exv10w1



 





Exhibit 10.1




(Local Currency—Single Jurisdiction)









MASTER AGREEMENT

Dated as of: October 2, 2007




KEYBANK
NATIONAL ASSOCIATION and NNN Healthcare/Office REIT E Florida LTC, LLC




have entered and/or anticipate entering into one or more transactions (each a “Transaction”) that
are or will be governed by this Master Agreement, which includes the schedule (the “Schedule”), and
the documents and other confirming evidence (each a “Confirmation”) exchanged between the parties
confirming those Transactions.



Accordingly, the parties agree as follows: —



1. Interpretation




(a) Definitions. The terms defined in Section 12 and in the Schedule will have the meanings therein
specified for the purpose of this Master Agreement.



(b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the
other provisions of this Master Agreement, the Schedule will prevail. In the event of any
inconsistency between the provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant Transaction.



(c) Single Agreement. All Transactions are entered into in reliance on the fact that this Master
Agreement and all Confirmations form a single agreement between the parties (collectively referred
to as this “Agreement”), and the parties would not otherwise enter into any Transactions.



2. Obligations




(a) General Conditions.




(i) Each party will make each payment or delivery specified in each Confirmation to be made
by it, subject to the other provisions of this Agreement.




(ii) Payments under this Agreement will be made on the due date for value on that date in
the place of the account specified in the relevant Confirmation or otherwise pursuant to
this Agreement, in freely transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by payment), such
delivery will be made for receipt on the due date in the manner customary for the relevant
obligation unless otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.




(iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent that no Event of Default or Potential Event of Default with respect to the other
party has occurred and is continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.



 









 





(b) Change of Account. Either party may change its account for receiving a payment or delivery by
giving notice to the other party at least five Local Business Days prior to the scheduled date for
the payment or delivery to which such change applies unless such other party gives timely notice of
a reasonable objection to such change.



(c) Netting. If on any date amounts would otherwise be payable: —





(i) in the same currency; and




(ii) in respect of the same Transaction,



by each party to the other, then, on such date, each party’s obligation to make payment of any such
amount will be automatically satisfied and discharged and, if the aggregate amount that would
otherwise have been payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.



The parties may elect in respect of two or more Transactions that a net amount will be determined
in respect of all amounts payable on the same date in the same currency in respect of such
Transactions, regardless of whether such amounts are payable in respect of the same Transaction.
The election may be made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the election, together with
the starting date (in which case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for different groups of
Transactions and will apply separately to each pairing of branches or offices through which the
parties make and receive payments or deliveries.



(d) Default Interest; Other Amounts. Prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party that defaults in the performance
of any payment obligation will, to the extent permitted by law and subject to Section 6(c), be
required to pay interest (before as well as after judgment) on the overdue amount to the other
party on demand in the same currency as such overdue amount, for the period from (and including)
the original due date for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding and the actual number of
days elapsed. If, prior to the occurrence or effective designation of an Early Termination Date in
respect of the relevant Transaction, a party defaults in the performance of any obligation required
to be settled by delivery, it will compensate the other party on demand if and to the extent
provided for in the relevant Confirmation or elsewhere in this Agreement.



3. Representations




Each party represents to the other party (which representations will be deemed to be repeated by
each party on each date on which a Transaction is entered into) that:—



(a) Basic Representations.




(i) Status. It is duly organised and validly existing under the laws of the jurisdiction of
its organisation or incorporation and, if relevant under such laws, in good standing;




(ii) Powers. It has the power to execute this Agreement and any other documentation relating
to this Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement to deliver
and to perform its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;




(iii) No Violation or Conflict. Such execution, delivery and performance do not violate or
conflict with any law applicable to it, any provision of its constitutional documents, any
order or judgment of any court or other agency of government applicable to it or any of its
assets or any contractual restriction binding on or affecting it or any of its assets;




 









 






(iv) Consents. All governmental and other consents that are required to have been obtained
by it with respect to this Agreement or any Credit Support Document to which it is a party
have been obtained and are in full force and effect and all conditions of any such consents
have been complied with; and




(v) Obligations Binding. Its obligations under this Agreement and any Credit Support
Document to which it is a party constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally
and subject, as to enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity or at law)).



(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its
knowledge, Termination Event with respect to it has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or performing its obligations under this
Agreement or any Credit Support Document to which it is a party.



(c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it or any
of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely to affect the legality,
validity or enforceability against it of this Agreement or any Credit Support Document to which it
is a party or its ability to perform its obligations under this Agreement or such Credit Support
Document.



(d) Accuracy of Specified information. All applicable information that is furnished in writing by
or on behalf of it to the other party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true, accurate and complete in every material
respect.



4. Agreements




Each party agrees with the other that, so long as either party has or may have any obligation under
this Agreement or under any Credit Support Document to which it is a party:—



(a) Furnish Specified Information. It will deliver to the other party any forms, documents or
certificates specified in the Schedule or any Confirmation by the date specified in the Schedule or
such Confirmation or, if none is specified, as soon as reasonably practicable.



(b) Maintain Authorisations. It will use all reasonable efforts to maintain in full force and
effect all consents of any governmental or other authority that are required to be obtained by it
with respect to this Agreement or any Credit Support Document to which it is a party and will use
all reasonable efforts to obtain any that may become necessary in the future.



(c) Comply with Laws. It will comply in all material respects with all applicable laws and orders
to which it may be subject if failure so to comply would materially impair its ability to perform
its obligations under this Agreement or any Credit Support Document to which it is a party.



5. Events of Default and Termination Events




(a) Events of Default. The occurrence at any time with respect to a party or, if applicable, any
Credit Support Provider of such party or any Specified Entity of such party of any of the following
events constitutes an event of default (an “Event of Default”) with respect to such party:—




(i) Failure to Pay or Deliver. Failure by the party to make, when due, any payment under
this Agreement or delivery under Section 2(a)(i) or 2(d) required to be made by it if such
failure is not remedied on or before the third Local Business Day after notice of such
failure is given to the party;




(ii) Breach of Agreement. Failure by the party to comply with or perform any agreement or
obligation (other than an obligation to make any payment under this Agreement or delivery
under Section 2(a)(i) or 2(d) or to give notice of a Termination Event) to be complied with
or performed



 









 






by the party in accordance with this Agreement if such failure is not remedied on or before the
thirtieth day after notice of such failure is given to the party;




(iii) Credit Support Default.




(1) Failure by the party or any Credit Support Provider of such party to comply with
or perform any agreement or obligation to be complied with or performed by it in
accordance with any Credit Support Document if such failure is continuing after any
applicable grace period has elapsed;




(2) the expiration or termination of such Credit Support Document or the failing or
ceasing of such Credit Support Document to be in full force and effect for the
purpose of this Agreement (in either case other than in accordance with its terms)
prior to the satisfaction of all obligations of such party under each Transaction to
which such Credit Support Document relates without the written consent of the other
party; or




(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or
rejects, in whole or in part, or challenges the validity of, such Credit Support
Document;




(iv) Misrepresentation. A representation made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this Agreement or any
Credit Support Document proves to have been incorrect or misleading in any material respect
when made or repeated or deemed to have been made or repeated;




(v) Default under Specified Transaction. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party (1) defaults under a Specified
Transaction and, after giving effect to any applicable notice requirement or grace period,
there occurs a liquidation of, an acceleration of obligations under, or an early termination
of, that Specified Transaction, (2) defaults, after giving effect to any applicable notice
requirement or grace period, in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early termination of, a Specified
Transaction (or such default continues for at least three Local Business Days if there is no
applicable notice requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is taken by any person
or entity appointed or empowered to operate it or act on its behalf);




(vi) Cross Default. If “Cross Default” is specified in the Schedule as applying to the
party, the occurrence or existence of (1) a default, event of default or other similar
condition or event (however described) in respect of such party, any Credit Support Provider
of such party or any applicable Specified Entity of such party under one or more agreements
or instruments relating to Specified Indebtedness of any of them (individually or
collectively) in an aggregate amount of not less than the applicable Threshold Amount (as
specified in the Schedule) which has resulted in such Specified Indebtedness becoming, or
becoming capable at such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a default by such
party, such Credit Support Provider or such Specified Entity (individually or collectively)
in making one or more payments on the due date thereof in an aggregate amount of not less
than the applicable Threshold Amount under such agreements or instruments (after giving
effect to any applicable notice requirement or grace period);




(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable
Specified Entity of such party:—




(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(2) becomes insolvent or is unable to pay its debts or fails or admits in writing
its inability generally to pay its debts as they become due; (3) makes a general
assignment, arrangement or composition with or for the benefit of its creditors; (4)
institutes or has instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law
or other similar law affecting creditors’ rights, or a petition is presented for its



 









 






winding-up or liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A) results in a
judgment of insolvency or bankruptcy or the entry of an order for relief or the making
of an order for its winding-up or liquidation or (B) is not dismissed, discharged,
stayed or restrained in each case within 30 days of the institution or presentation
thereof; (5) has a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation or merger); (6)
seeks or becomes subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other similar official for it
or for all or substantially all its assets; (7) has a secured party take possession of
all or substantially all its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains possession, or any such
process is not dismissed, discharged, stayed or restrained, in each case within 30
days thereafter; (8) causes or is subject to any event with respect to it which, under
the applicable laws of any jurisdiction, has an analogous effect to any of the events
specified in clauses (1) to (7) (inclusive); or (9) takes any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the
foregoing acts; or




(viii) Merger Without Assumption. The party or any Credit Support Provider of such party
consolidates or amalgamates with, or merges with or into, or transfers all or substantially
all its assets to, another entity and, at the time of such consolidation, amalgamation,
merger or transfer:




(1) the resulting, surviving or transferee entity fails to assume all the
obligations of such party or such Credit Support Provider under this Agreement or
any Credit Support Document to which it or its predecessor was a party by operation
of law or pursuant to an agreement reasonably satisfactory to the other party to
this Agreement; or




(2) the benefits of any Credit Support Document fail to extend (without the consent
of the other party) to the performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.



(b) Termination Events. The occurrence at any time with respect to a party or, if applicable, any
Credit Support Provider of such party or any Specified Entity of such party of any event specified
below constitutes an Illegality if the event is specified in (i) below, and, if specified to be
applicable, a Credit Event Upon Merger if the event is specified pursuant to (ii) below or an
Additional Termination Event if the event is specified pursuant to (iii) below:—




(i) Illegality. Due to the adoption of, or any change in, any applicable law after the date
on which a Transaction is entered into, or due to the promulgation of, or any change in, the
interpretation by any court, tribunal or regulatory authority with competent jurisdiction of
any applicable law after such date, it becomes unlawful (other than as a result of a breach
by the party of Section 4(b)) for such party (which will be the Affected Party):—




(1) to perform any absolute or contingent obligation to make a payment or delivery or
to receive a payment or delivery in respect of such Transaction or to comply with any
other material provision of this Agreement relating to such Transaction; or




(2) to perform, or for any Credit Support Provider of such party to perform, any
contingent or other obligation which the party (or such Credit Support Provider) has
under any Credit Support Document relating to such Transaction;




(ii) Credit Event Upon Merger. If “Credit Event Upon Merger” is specified in the Schedule
as applying to the party, such party (“X”), any Credit Support Provider of X or any
applicable Specified Entity of X consolidates or amalgamates with, or merges with or into,
or transfers all or substantially all its assets to, another entity and such action does
not constitute an event described in Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially weaker than that of X, such Credit
Support Provider or such Specified Entity, as the case may be, immediately prior to such
action (and, in such event, X or its successor or transferee, as appropriate, will be the
Affected Party); or



 









 






(iii) Additional Termination Event. If any “Additional Termination Event” is specified in
the Schedule or any Confirmation as applying, the occurrence of such event (and, in such
event, the Affected Party or Affected Parties shall be as specified for such Additional
Termination Event in the Schedule or such Confirmation).



(c) Event of Default and Illegality. If an event or circumstance which would otherwise constitute
or give rise to an Event of Default also constitutes an Illegality, it will be treated as an
Illegality and will not constitute an Event of Default.



6. Early Termination




(a) Right to Terminate Following Event of Default. If at any time an Event of Default with respect
to a party (the “Defaulting Party”) has occurred and is then continuing, the other party (the
“Non-defaulting Party”) may, by not more than 20 days notice to the Defaulting Party specifying the
relevant Event of Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however, “Automatic Early
Termination” is specified in the Schedule as applying to a party, then an Early Termination Date in
respect of all outstanding Transactions will occur immediately upon the occurrence with respect to
such party of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the institution of the
relevant proceeding or the presentation of the relevant petition upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to the extent analogous
thereto, (8).



(b) Right to Terminate Following Termination Event.




(i) Notice. If a Termination Event occurs, an Affected Party will, promptly upon becoming
aware of it, notify the other party, specifying the nature of that Termination Event and
each Affected Transaction and will also give such other information about that Termination
Event as the other party may reasonably require.




(ii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) occurs and there are
two Affected Parties, each party will use all reasonable efforts to reach agreement within
30 days after notice thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.




(iii) Right to Terminate. If: —




(1) an agreement under Section 6(b)(ii) has not been effected with respect to all
Affected Transactions within 30 days after an Affected Party gives notice under
Section 6(b)(i); or




(2) an Illegality other than that referred to in Section 6(b)(ii), a Credit Event
Upon Merger or an Additional Termination Event occurs,




either party in the case of an Illegality, any Affected Party in the case of an Additional
Termination Event if there is more than one Affected Party, or the party which is not the
Affected Party in the case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days notice to the other party
and provided that the relevant Termination Event is then continuing, designate a day not
earlier than the day such notice is effective as an Early Termination Date in respect of all
Affected Transactions.



(c) Effect of Designation.




(i) If notice designating an Early Termination Date is given under Section 6(a) or (b), the
Early Termination Date will occur on the date so designated, whether or not the relevant
Event of Default or Termination Event is then continuing.




 









 






(ii) Upon the occurrence or effective designation of an Early Termination Date, no further
payments or deliveries under Section 2(a)(i) or 2(d) in respect of the Terminated
Transactions will be required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).



(d) Calculations.




(i) Statement. On or as soon as reasonably practicable following the occurrence of an Early
Termination Date, each party will make the calculations on its part, if any, contemplated by
Section 6(e) and will provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and specifying any amount
payable under Section 6(e)) and (2) giving details of the relevant account to which any
amount payable to it is to be paid. In the absence of written confirmation from the source
of a quotation obtained in determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the existence and accuracy of such
quotation.




(ii) Payment Date. An amount calculated as being due in respect of any Early Termination
Date under Section 6(e) will be payable on the day that notice of the amount payable is
effective (in the case of an Early Termination Date which is designated or occurs as a
result of an Event of Default) and on the day which is two Local Business Days after the day
on which notice of the amount payable is effective (in the case of an Early Termination Date
which is designated as a result of a Termination Event). Such amount will be paid together
with (to the extent permitted under applicable law) interest thereon (before as well as
after judgment), from (and including) the relevant Early Termination Date to (but excluding)
the date such amount is paid, at the Applicable Rate. Such interest will be calculated on
the basis of daily compounding and the actual number of days elapsed.



(e) Payments on Early Termination. If an Early Termination Date occurs, the following provisions
shall apply based on the parties’ election in the Schedule of a payment measure, either “Market
Quotation” or “Loss”, and a payment method, either the “First Method” or the “Second Method”. If
the parties fail to designate a payment measure or payment method in the Schedule, it will be
deemed that “Market Quotation” or the “Second Method”, as the case may be, shall apply. The
amount, if any, payable in respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off.




(i) Events of Default. If the Early Termination Date results from an Event of Default:—




(1) First Method and Market Quotation. If the First Method and Market Quotation
apply, the Defaulting Party will pay to the Non-defaulting Party the excess, if a
positive number, of


(A) the sum of the Settlement Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the Unpaid Amounts owing to the
Non-defaulting Party over

(B) the Unpaid Amounts owing to the Defaulting Party.




(2) First Method and Loss. If the First Method and Loss apply, the Defaulting Party
will pay to the Non-defaulting Party, if a positive number, the Non-defaulting
Party’s Loss in respect of this Agreement.




(3) Second Method and Market Quotation. If the Second Method and Market Quotation
apply, an amount will be payable equal to (A) the sum of the Settlement Amount
(determined by the Non-defaulting Party) in respect of the Terminated Transactions
and the Unpaid Amounts owing to the Non-defaulting Party less (B) the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive number, the Defaulting
Party will pay it to the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to the Defaulting
Party.




(4) Second Method and Loss. If the Second Method and Loss apply, an amount will be
payable equal to the Non-defaulting Party’s Loss in respect of this Agreement. If
that amount is a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative
number, the Non-defaulting Party will pay the absolute value of that amount to the
Defaulting Party.



 









 






(ii) Termination Events. If the Early Termination Date results from a Termination Event:—




(1) One Affected Party. If there is one Affected Party, the amount payable will be
determined in accordance with Section 6(e)(i)(3), if Market Quotation applies, or
Section 6(e)(i)(4), if Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed to be references to
the Affected Party and the party which is not the Affected Party, respectively, and,
if Loss applies and fewer than all the Transactions are being terminated, Loss shall
be calculated in respect of all Terminated Transactions.




(2) Two Affected Parties. If there are two Affected Parties:—




(A) if Market Quotation applies, each party will determine a Settlement
Amount in respect of the Terminated Transactions, and an amount will be
payable equal to (I) the sum of (a) one-half of the difference between the
Settlement Amount of the party with the higher Settlement Amount (“X”) and
the Settlement Amount of the party with the lower Settlement Amount (“Y”)
and (b) the Unpaid Amounts owing to X less (II) the Unpaid Amounts owing to
Y; and




(B) if Loss applies, each party will determine its Loss in respect of this
Agreement (or, if fewer than all the Transactions are being terminated, in
respect of all Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party with the higher
Loss (“X”) and the Loss of the party with the lower Loss (“Y”).




If the amount payable is a positive number, Y will pay it to X; if it is a negative
number, X will pay the absolute value of that amount to Y.




(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs
because “Automatic Early Termination” applies in respect of a party, the amount determined
under this Section 6(e) will be subject to such adjustments as are appropriate and permitted
by law to reflect any payments or deliveries made by one party to the other under this
Agreement (and retained by such other party) during the period from the relevant Early
Termination Date to the date for payment determined under Section 6(d)(ii).




(iv) Pre -Estimate. The parties agree that if Market Quotation applies an amount recoverable
under this Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount
is payable for the loss of bargain and the loss of protection against future risks and
except as otherwise provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.



7. Transfer




Neither this Agreement nor any interest or obligation in or under this Agreement may be transferred
(whether by way of security or otherwise) by either party without the prior written consent of the
other party, except that:—



(a) a party may make such a transfer of this Agreement pursuant to a consolidation amalgamation
with, or merger with or into, or transfer of all or substantially all its assets to, another entity
(but without prejudice to any other right or remedy under this Agreement); and



(b) a party may make such a transfer of all or any part of its interest in any amount payable to it
from a Defaulting Party under Section 6(e).



Any purported transfer that is not in compliance with this Section will be void




 









 





8. Miscellaneous




(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the
parties with respect to its subject matter and supersedes all oral communication and prior writings
with respect thereto.



(b) Amendments. No amendment, modification or waiver in respect of this Agreement will be effective
unless in writing (including a writing evidenced by a facsimile transmission) and executed by each
of the parties or confirmed by an exchange of telexes or electronic messages on an electronic
messaging system.



(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations
of the parties under this Agreement will survive the termination of any Transaction.



(d) Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative and not exclusive of any rights, powers,
remedies and privileges provided by law.



(e) Counterparts and Confirmations.




(i) This Agreement (and each amendment, modification and waiver in respect of it) may be
executed and delivered in counterparts (including by facsimile transmission), each of which
will be deemed an original.




(ii) The parties intend that they are legally bound by the terms of each Transaction from
the moment they agree to those terms (whether orally or otherwise). A Confirmation shall be
entered into as soon as practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system, which in each case will
be sufficient for all purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.



(f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect
of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of
any right, power or privilege will not be presumed to preclude any subsequent or further exercise,
of that right, power or privilege or the exercise of any other right, power or privilege.



(g) Headings. The headings used in this Agreement are for convenience of reference only and are not
to affect the construction of or to be taken into consideration in interpreting this Agreement.



9. Expenses




A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees, incurred by such other party by reason of
the enforcement and protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of any Transaction,
including, but not limited to, costs of collection.



10. Notices




(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in
any manner set forth below (except that a notice or other communication under Section 5 or 6 may
not be given by facsimile transmission or electronic messaging system) to the address or number or
in accordance with the electronic messaging system details provided (see the Schedule) and will be
deemed effective as indicated:—




(i) if in writing and delivered in person or by courier, on the date it is delivered;




(ii) if sent by telex, on the date the recipient’s answerback is received;




 









 






(iii) if sent by facsimile transmission, on the date that transmission is received by a
responsible employee of the recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a transmission report generated
by the sender’s facsimile machine);




(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent
(return receipt requested), on the date that mail is delivered or its delivery is attempted;
or




(v) if sent by electronic messaging system, on the date that electronic message is received,



unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a
Local Business Day or that communication is delivered (or attempted) or received, as applicable,
after the close of business on a Local Business Day, in which case that communication shall be
deemed given and effective on the first following day that is a Local Business Day.



(b) Change of Addresses. Either party may by notice to the other change the address, telex or
facsimile number or electronic messaging system details at which notices or other communications
are to be given to it.



11. Governing Law and Jurisdiction




(a) Governing Law. This Agreement will be governed by and construed in accordance with the law
specified in the Schedule.



(b) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement
(“Proceedings”), each party irrevocably: —




(i) submits to the jurisdiction of the English courts, if this Agreement is expressed to be
governed by English law, or to the non-exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of Manhattan in New
York City, if this Agreement is expressed to be governed by the laws of the State of New
York; and




(ii) waives any objection which it may have at any time to the laying of venue of any
Proceedings brought in any such court, waives any claim that such Proceedings have been
brought in an inconvenient forum and further waives the right to object, with respect to
such Proceedings, that such court does not have any jurisdiction over such party.



Nothing in this Agreement precludes either party from bringing Proceedings in any other
jurisdiction (outside, if this Agreement is expressed to be governed by English law, the
Contracting States, as defined in Section 1(3) of the Civil Jurisdiction and Judgments Act 1982 or
any modification, extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in
any other jurisdiction.



(c) Waiver of Immunities. Each party irrevocably waives, to the fullest extent permitted by
applicable law, with respect to itself and its revenues and assets (irrespective of their use or
intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit,
(ii) jurisdiction of any court, (iii) relief by way of injunction, order for specific performance
or for recovery of property, (iv) attachment of its assets (whether before or after judgment) and
(v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise
be entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the
extent permitted by applicable law, that it will not claim any such immunity in any Proceedings.



12. Definitions




As used in this Agreement:—




“Additional Termination Event” has the meaning specified in Section 5(b).



“Affected Party” has the meaning specified in Section 5(b).




 









 





“Affected Transactions” means (a) with respect to any Termination Event consisting of an
Illegality, all Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.



“Affiliate” means, subject to the Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls, directly or indirectly, the person
or any entity directly or indirectly under common control with the person. For this purpose,
“control” of any entity or person means ownership of a majority of the voting power of the entity
or person.



“Applicable Rate” means:—




(a) in respect of obligations payable or deliverable (or which would have been but for Section
2(a)(iii)) by a Defaulting Party, the Default Rate;



(b) in respect of an obligation to pay an amount under Section 6(e) of either party from and after
the date (determined in accordance with Section 6(d)(ii)) on which that amount is payable, the
Default Rate;



(c) in respect of all other obligations payable or deliverable (or which would have been but for
Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and



(d) in all other cases, the Termination Rate.



“consent” includes a consent, approval, action, authorisation, exemption, notice, filing,
registration or exchange control consent.



“Credit Event Upon Merger” has the meaning specified in Section 5(b).



“Credit Support Document” means any agreement or instrument that is specified as such in this
Agreement.



“Credit Support Provider” has the meaning specified in the Schedule.



“Default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual
cost) to the relevant payee (as certified by it) if it were to fund or of funding the relevant
amount plus 1 % per annum.



“Defaulting Party” has the meaning specified in Section 6(a).



“Early Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iii).



“Event of Default” has the meaning specified in Section 5(a) and, if applicable, in the Schedule.



“Illegality” has the meaning specified in Section 5(b).



“law” includes any treaty, law, rule or regulation and “lawful” and “unlawful” will be construed
accordingly.



“Local Business Day” means, subject to the Schedule, a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency deposits) (a) in relation to
any obligation under Section 2(a)(i), in the place(s) specified in the relevant Confirmation or, if
not so specified, as otherwise agreed by the parties in writing or determined pursuant to
provisions contained, or incorporated by reference, in this Agreement, (b) in relation to any other
payment, in the place where the relevant account is located, (c) in relation to any notice or other
communication, including notice contemplated under Section 5(a)(i), in the city specified in the
address for notice provided by the recipient and, in the case of a notice contemplated by Section
2(b), in the place where the relevant new account is to be located and (d) in relation to Section
5(a)(v)(2), in the relevant locations for performance with respect to such Specified Transaction.



“Loss” means, with respect to this Agreement or one or more Terminated Transactions, as the case
may be, and a party, an amount that party reasonably determines in good faith to be its total
losses and costs (or gain, in which case expressed as a negative number) in connection with this
Agreement or that Terminated Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at
the election of such party but without duplication, loss or cost incurred as a result of its
terminating, liquidating, obtaining or reestablishing any hedge or related trading position ( or
any gain




 












 




resulting from any of them). Loss includes losses and costs (or gains) in respect of any payment or
delivery required to have been made (assuming satisfaction of each applicable condition precedent)
on or before the relevant Early Termination Date and not made, except, so as to avoid duplication,
if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a party’s legal fees
and out-of-pocket expenses referred to under Section 9. A party will determine its Loss as of the
relevant Early Termination Date, or, if that is not reasonably practicable, as of the earliest date
thereafter as is reasonably practicable. A party may (but need not) determine its Loss by reference
to quotations of relevant rates or prices from one or more leading dealers in the relevant markets.



“Market Quotation” means, with respect to one or more Terminated Transactions and a party making
the determination, an amount determined on the basis of quotations from Reference Market-makers.
Each quotation will be for an amount, if any, that would be paid to such party (expressed as a
negative number) or by such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document with respect to the
obligations of such party) and the quoting Reference Market-maker to enter into a transaction (the
“Replacement Transaction”) that would have the effect of preserving for such party the economic
equivalent of any payment or delivery (whether the underlying obligation was absolute or contingent
and assuming the satisfaction of each applicable condition precedent) by the parties under Section
2(a)(i) in respect of such Terminated Transaction or group of Terminated Transactions that would,
but for the occurrence of the relevant Early Termination Date, have been required after that date.
For this purpose, Unpaid Amounts in respect of the Terminated Transaction or group of Terminated
Transactions are to be excluded but, without limitation, any payment or delivery that would, but
for the relevant Early Termination Date, have been required (assuming satisfaction of each
applicable condition precedent) after that Early Termination Date is to be included. The
Replacement Transaction would be subject to such documentation as such party and the Reference
Market-maker may, in good faith, agree. The party making the determination (or its agent) will
request each Reference Market-maker to provide its quotation to the extent reasonably practicable
as of the same day and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of which those
quotations are to be obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after consultation with the
other. If more than three quotations are provided, the Market Quotation will be the arithmetic mean
of the quotations, without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more than one quotation
has the same highest value or lowest value, then one of such quotations shall be disregarded. If
fewer than three quotations are provided, it will be deemed that the Market Quotation in respect of
such Terminated Transaction or group of Terminated Transactions cannot be determined.



“Non-default Rate” means a rate per annum equal to the cost (without proof or evidence of any
actual cost) to the Non-defaulting Party (as certified by it) if it were to fund the relevant
amount.



“Non-defaulting Party” has the meaning specified in Section 6(a).



“Potential Event of Default” means any event which, with the giving of notice or the lapse of time
or both, would constitute an Event of Default.



“Reference Market-makers” means four leading dealers in the relevant market selected by the party
determining a Market Quotation in good faith (a) from among dealers of the highest credit standing
which satisfy all the criteria that such party applies generally at the time in deciding whether to
offer or to make an extension of credit and (b) to the extent practicable, from among such dealers
having an office in the same

city.



“Scheduled Payment Date” means a date on which a payment or delivery is to be made under Section
2(a)(i) with respect to a Transaction.



“Set-off” means set-off, offset, combination of accounts, right of retention or withholding or
similar right or requirement to which the payer of an amount under Section 6 is entitled or subject
(whether arising under
this Agreement, another contract, applicable law or otherwise) that is exercised by, or imposed on,
such payer.





 









 







“Settlement Amount” means, with respect to a party and any Early Termination Date, the sum of:—



(a) the Market Quotations (whether positive or negative) for each Terminated Transaction or group
of Terminated Transactions for which a Market Quotation is determined; and



(b) such party’s Loss (whether positive or negative and without reference to any Unpaid Amounts)
for each Terminated Transaction or group of Terminated Transactions for which a Market Quotation
cannot be determined or would not (in the reasonable belief of the party making the determination)
produce a commercially reasonable result.



“Specified Entity” has the meaning specified in the Schedule.



“Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money.



“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an agreement
with respect thereto) now existing or hereafter entered into between one party to this Agreement
(or any Credit Support Provider of such party or any applicable Specified Entity of such party) and
the other party to this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including any option with
respect to any of these transactions), (b) any combination of these transactions and (c) any other
transaction identified as a Specified Transaction in this Agreement or the relevant confirmation.



“Terminated Transactions” means with respect to any Early Termination Date (a) if resulting from a
Termination Event, all Affected Transactions and (b) if resulting from an Event of Default, all
Transactions (in either case) in effect immediately before the effectiveness of the notice
designating that Early Termination Date (or, if “Automatic Early Termination” applies, immediately
before that Early Termination Date).



“Termination Event” means an Illegality or, if specified to be applicable, a Credit Event Upon
Merger or an Additional Termination Event.



“Termination Rate” means a rate per annum equal to the arithmetic mean of the cost (without proof
or evidence of any actual cost) to each party (as certified by such party) if it were to fund or of
funding such amounts.



“Unpaid Amounts” owing to any party means, with respect to an Early Termination Date, the aggregate
of (a) in respect of all Terminated Transactions, the amounts that became payable (or that would
have become payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to
such Early Termination Date and which remain unpaid as at such Early Termination Date and (b) in
respect of each Terminated Transaction, for each obligation under Section 2(a)(i) which was (or
would have been but for Section 2(a)(iii)) required to be settled by delivery to such party on or
prior to such Early Termination Date and which has not been so settled as at such Early Termination
Date, an amount equal to the fair market value of that which was (or would have been) required to
be delivered as of the originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such amounts, from (and
including) the date such amounts or obligations were or would have been required to have been paid
or performed to (but excluding) such Early Termination Date, at the Applicable Rate. Such amounts
of interest will be calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above shall be
reasonably determined




 









 




by the party obliged to make the determination under Section 6(e) or, if each party is so obliged,
it shall be the average of the fair market values reasonably determined by both parties.



IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.




	 	 	 
	KeyBank National Association
	 	NNN Healthcare/Office REIT E Florida LTC, LLC
	(Name of Party)
	 	a Delaware limited liability company
	 
	 	(Name of Party)






	 	 	 
	By: /s/ Thomas J. Simenic

	 	By: /s/ Shannon K S Johnson
	Name: Thomas J. Simenic

	 	Name: Shannon K S Johnson
	Title: Senior Vice President

	 	Title: Authorized Signatory
	Date: October 2, 2007

	 	Date: October 19, 2007







 









 








SCHEDULE

TO THE

ISDA MASTER AGREEMENT

dated as of October 2, 2007

between




	 	 	 	 	 
	KeyBank National Association
	 	and
	 	NNN Healthcare/Office REIT E Florida
	 
	 	 	 	LTC, LLC
	(“Party A”)
	 	 	 	(“Party B”)






Part 1. Termination Provisions.





	(a)	 	“Specified Entity” means in relation to Party A for the purpose of:





	 	 	 	 	 
	 

	 	Section 5(a)(v):
	 	None
	 
	 	 	 	 
	 

	 	Section 5(a)(vi):
	 	None
	 
	 	 	 	 
	 

	 	Section 5(a)(vii):
	 	None
	 
	 	 	 	 
	 

	 	Section 5(b)(ii):
	 	None
	 
	 	 	 	 
	 	 	and in relation to Party B for the purpose of:
	 
	 	 	 	 
	 

	 	Section 5(a)(v):
	 	Any current or future Affiliate of Party B
	 
	 	 	 	 
	 

	 	Section 5(a)(vi):
	 	Any current or future Affiliate of Party B
	 
	 	 	 	 
	 

	 	Section 5(a)(vii):
	 	Any current or future Affiliate of Party B
	 
	 	 	 	 
	 

	 	Section 5(b)(ii):
	 	Any current or future Affiliate of Party B







	(b)	 	“Specified Transaction” will have the meaning specified in Section 12 of this Agreement.
	 
	(c)	 	The “Cross Default” provisions of Section 5(a)(vi) will apply to Party B.
	 
	(d)	 	“Specified Indebtedness” will have the meaning specified in Section 12 of this Agreement.
	 
	(e)	 	“Threshold Amount” means $100,000.
	 
	(f)	 	The “Credit Event Upon Merger” provisions of Section 5(b)(ii) will apply to Party B.
	 
	(g)	 	The “Automatic Early Termination” provision of Section 6(a) will not apply to Party A or Party
B.
	 
	(h)	 	Payments on Early Termination. For the purpose of Section 6(e) of this Agreement:






	 	(i)	 	The Second Method payment method will apply.
	 
	 	(ii)	 	The Loss payment measure will apply.






	(i)	 	Additional Termination Event: For the purpose of Section 5(b)(iii) of this Agreement, it
shall be an “Additional Termination Event” with Party B being the Affected Party if:






	 	(i)	 	the loan or other indebtedness which relate to Transactions between the parties
based on interest rates is repaid, in whole or in part, whether upon acceleration of
principal, at maturity, or otherwise, or for any other reason ceases to be an
obligation of Party B, with or without the
consent of Party A;




 









 






	 	(ii)	 	any Credit Support Document expires, terminates, or ceases to be in full force
and effect for the purpose of this Agreement unless this Agreement is expressly amended
in writing to reflect that it is no longer a Credit Support Document hereunder;
	 
	 	(iii)	 	an “Event of Default” under and as defined in the Credit Agreement (defined in
clause (c) of Part 3 herein) shall have occurred;
	 
	 	(iv)	 	the Credit Agreement shall be paid or prepaid in full, expire, terminate or
otherwise cease to be in full force and effect; or
	 
	 	(v)	 	Party A shall cease to be a party to, or have any commitments under, the Credit
Agreement.





Part 2. Agreement to Deliver Documents.



For the purpose of Section 4(a) of this Agreement, Party B agrees to deliver the following
documents:





	(a)	 	A certificate of an authorized officer of Party B evidencing the necessary corporate
authorizations, resolutions, and approvals with respect to the execution, delivery and
performance of this Agreement, and certifying the names, true signatures, and authority of the
officer(s) signing this Agreement and executing Transactions hereunder.
	 
	(b)	 	Quarterly and annual financial statements of Party B when requested by Party A.
	 
	(c)	 	IRS Form W-9 of Party B when requested by Party A.





Part 3. Miscellaneous.





	(a)	 	Addresses for Notices: For the purpose of Section 10(a) of this
Agreement
	 
	 	 	Address for notices or communications to Party A:

Address: 127 Public Square, OH-01-27-0405, Cleveland, Ohio 44114-1306

Attention: Interest Rate Risk Management

Facsimile No.: 216-689-4737

Telephone No.: 425-709-4392

	 
	 	 	Address for notices or communications to Party B:

Address: 14551 North Tustin Avenue, Suite 300 — Santa Ana,
CA 92705


Attention: Danny Prosky

Facsimile No.: Please Provide                     

Telephone No.: 714-667-8252
	 
	(b)	 	Calculation Agent. The Calculation Agent is Party A.
	 
	(c)	 	Credit Support Document. In relation to Party A, means not applicable. In relation to Party
B, means any guarantee, security agreement, or other document in effect from time to time
that, by its terms, guarantees, secures or otherwise supports the performance of Party B’s
obligations under this Agreement, including without limitation, that certain Loan Agreement
dated September 28, 2007 (the “Credit Agreement”) among Party A and Party B, and each other
Loan Document (as defined in the Credit Agreement), in each case as amended, restated,
renewed, or refinanced from time to time, including without limitation,






	 	(i)	 	that certain Promissory Note dated as of September 28, 2007 among Party A and
Party B,
	 
	 	(ii)	 	that certain Unconditional Payment Guaranty dated as of
September 28, 2007 given by NNN Healthcare/Office REIT, Inc. in favor
of Party A,




 









 






	 	(iii)	 	that certain Mortgage, Assignment of Rents, Security Agreement, and Fixture
Filing dated
	 
	 	(iv)	 	that certain Mortgage, Assignment of Rents, Security Agreement, and Fixture
Filing dated as of September 28, 2007 (“Duval Mortgage”) among Party A and Party B, and
	 
	 	(v)	 	that certain Mortgage, Assignment of Rents, Security Agreement, and Fixture
Filing dated as of September 28, 2007 (“Broward Mortgage”) among Party A and Party B.






	(d)	 	Credit Support Provider. In relation to Party A, means not applicable. In relation to Party
B, means each party to any Credit Support Document of Party B, including without limitation
NNN Healthcare/Office REIT, Inc., other than (i) Party A or Party B, (ii) any Affiliate of
Party A, or (iii) any other secured party under such Credit Support Document.
	 
	(e)	 	Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
	 
	(f)	 	Definitions. Section 12 is modified as follows:






	 	(i)	 	“Default Rate” means Prime +2%.






	(g)	 	Payments.
	 
	 	 	Party A will make payments to Party B by transfer to the account of Party B at KeyBank
National Association (Account Number: Please Provide                     ).
	 
	 	 	Party B will make payments to Party A by transfer from the account of Party B at KeyBank
National Association (Account Number: Please Provide                     ), and Party A is
irrevocably authorized to debit such account for each such payment (it being understood that
Party B will at all times maintain sufficient balances in such account for such purposes).





Part 4. Other Provisions.





	(a)	 	Additional Representations. Party B represents to Party A (which representation will be
deemed to be repeated by Party B on each date on which a Transaction is entered into) that it,
or any Credit Support Provider, has: (A) if a corporation, partnership, proprietorship,
limited liability company or trust, (1) total assets exceeding $10,000,000 or (2) a net worth
exceeding $1,000,000 and is entering into the Transaction in connection with the conduct of
its business or to manage the risk associated with an asset or liability owned or incurred in
the conduct of its business, or (B) if an individual, total assets exceeding (1) $10,000,000
or (2) $5,000,000 and who is entering into the Transaction to manage the risk associated with
an asset owned or liability incurred, or reasonably likely to be
owned or incurred, by the individual, and as such, it is an “eligible contract participant”
as such term is defined in Section la(12) of the Commodity Exchange Act (2000).
	 
	(b)	 	Event of Default. Each Party agrees to notify the other party of the occurrence of any Event
of Default or Potential Event of Default immediately upon learning of the occurrence thereof.
	 
	(c)	 	Disclaimer. In entering into this Agreement, Party B acknowledges and agrees that:






	 	1.	 	Party B understands that there is no assurance as to the direction in which
interests rates in financial markets may move in the future and that Party A makes no
covenant, representation, or warranty in this regard or in regard to the suitability of
the terms of the Agreement or any Transaction to the particular needs and financial
situation of Party B.
	 
	 	2.	 	Party B has made its own independent, informed decision to enter into this
Agreement and any Transaction.
	 
	 	3.	 	Party B represents, which representation shall be deemed repeated with respect
to and at the




 









 






	 	 	 	time of each Agreement and Transaction, that (A) it has had the opportunity,
independently of Party A and Party A’s affiliates, officers, employees, and agents,
to consult its own financial advisors and has determined that it is in Party B’s
interest to enter into the Agreement and any Transaction, (B) it is capable of
assuming and assumes the risks of any Transaction and (C) it is capable of assuming
and assumes all risks (financial and otherwise) associated with any Transaction,
including but not limited to, Market Risk (defined as the risk that the Transaction
may increase or decrease in value with a change in, among other things, interest
rates or the yield curve), and Liquidity Risk (defined as the risk that the
Transaction cannot be closed out of or disposed of quickly at or near its value).
	 
	 	4.	 	Party A is not acting as a fiduciary for or advisor to Party B in respect of
any Transaction.
	 
	 	5.	 	Party B is not relying on any communications (written or oral) of Party A as
investment advice or as a recommendation to enter into this Transaction, it being
understood that information and explanations related to the terms and conditions of
this Agreement and any Transaction shall not be considered investment advice or a
recommendation to enter into this Transaction.
	 
	 	6.	 	Party B is capable of assessing the terms, conditions and risks (on its own
behalf or through independent professional advice) of this Agreement and any
Transaction and understands and accepts such terms, conditions and risks.






	(d)	 	Waiver of Jury Trial. Each party hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all rights it may have to trial by jury in respect of any
proceedings arising out of or relating to this Agreement or any Transaction and acknowledges
that it and the other party have been induced to enter into this Agreement by, among other
things, these mutual waivers.
	 
	(e)	 	Set-off. The right to exercise a Set-off against any amount otherwise payable in respect of
an Early Termination Date pursuant to Section 6(e) may be applied solely at the election of
the Non- Defaulting Party in the case of an Event of Default, and by the party other than the
Affected Party in the case of a Termination Event or Additional Termination Event, whether or
not such party is the payer or payee of an amount determined pursuant to Section 6. If an
obligation is unascertained, such party may in good faith estimate that obligation and
exercise a Set-off in respect of the estimate, subject to the relevant party accounting to the
other party when the obligation becomes ascertained.
	 
	(f)	 	Small Business Administration Loans. If this Agreement relates to an interest rate swap on a
loan guaranteed by the Small Business Administration, then Party B acknowledges that the Small
Business Administration is not a party to this Agreement and does not guaranty it. In the
event that the Small Business Administration is called upon to honor its guaranty to Party A,
Party B’s debt will be determined by the terms of the loan, including the variable interest
rate provision.
	 
	(g)	 	USA PATRIOT Act Notice. Party A hereby notifies Party B that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L 107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to obtain, verify and record information that identifies Party B, which
information includes the name and address of Party B, the Tax-Identification Number, and other
information that will allow Party A to identify Party B in accordance with the
Act.1
	 
	(h)	 	Termination. Party B acknowledges that upon an early termination of any or all Transactions
or Specified Transactions under this Agreement, monies may be due and payable by Party B to
Party A, or by Party A to Party B.
	 
	(i)	 	Definitions. Unless otherwise specified in a Confirmation, each Transaction between the
parties shall be







 




			
	1	 	This provision is included as a means of compliance
with the notice requirements contained in the regulations under the USA PATRIOT
ACT.




 









 









			
	 	 	subject to the 2000 ISDA Definitions (the “Definitions”) as published by the International
Swaps and Derivatives Association, Inc., as such Definitions hereinafter are amended and as
such Definitions may be amended, supplemented, replaced, or modified, are incorporated by
reference into this Agreement and each Confirmation as if fully set forth herein or in such
Confirmation. For these purposes, all references in the Definitions to a “Swap Transaction”
shall be deemed to apply to each Transaction under this Agreement. Unless expressly provided
otherwise, in the event of any inconsistency between any of the documents identified in this
Part 4(i), the document listed first will prevail: (i) the Confirmation; (ii) the Schedule;
(iii) the printed form of ISDA Master Agreement; and (iv) the Definitions.




IN WITNESS WHEREOF, the parties have executed this Schedule by their duly authorized officers as of
the date hereof.




	 	 	 
	               KeyBank National Association

	 	NNN Healthcare/Office REIT E Florida LTC,

     LLC, a Delaware limited liability company
	 
	 	 
	By: /s/ Thomas J. Simenic

	 	By: /s/ Shannon K S Johnson
	Name: Thomas J. Simenic

	 	Name: Shannon K S Johnson
	Title: Senior Vice President

	 	Title: Authorized Signatory
	Date:

	 	Date: October 19, 2007







 









 








KEYBANK NATIONAL ASSOCIATION




CONFIRMATION




	 	 	 
	To:

	 	NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC
	 
	 	 
	 

	 	1551 NORTH TUSTIN AVE.
	 

	 	SUITE 300
	 

	 	SANTA ANA, CA 92705
	 
	 	 
	Attn:

	 	DANNY PROSKY
	Fax:
	 	 
	 
	 	 
	Duplicate
	 	 
	Confirm to:
	 	 
	Client ID:

	 	1000364274~KOZAK
	 
	 	 
	From:

	 	KEYBANK NATIONAL ASSOCIATION
	Date:

	 	19-Oct-07 
	Our Ref:

	 	187597/187597 





The purpose of this letter agreement is to set forth the terms and conditions of the Swap
Transaction entered into between KEYBANK NATIONAL ASSOCIATION and NNN HEALTHCARE/OFFICE REIT E
FLORIDA LTC, LLC on the Trade Date specified below (the “Swap Transaction”). This letter agreement
constitutes a “Confirmation” as referred to in the Swap Agreement specified below.




     1. The definitions and provisions contained in the 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc. (the “Definitions”) and amended from time to
time, are incorporated into this Confirmation.



     If you and we are parties to an ISDA Master Agreement as published by the International Swap
Dealers Association, Inc. and the Schedule to such agreement that sets forth the general terms and
conditions applicable to Swap Transactions between us (a “Swap Agreement”), this Confirmation
supplements, forms a part of, and is subject to, such Swap Agreement. If you and we are not yet
parties to a Swap Agreement, this Confirmation will be a complete valid legal binding agreement
between us as supplemented by the general terms and conditions set forth in the standard form ISDA
Master Agreement copyright 1992 by the International Swap Dealers Association, Inc.(“standard ISDA
form”). All provisions contained or incorporated by reference in such Swap Agreement shall govern
this Confirmation except as expressly modified below. In the event of any inconsistency between
this Confirmation and the Definitions or the Swap Agreement or the standard ISDA form if a Swap
Agreement has not been entered into between us, this Confirmation will govern.



     This Confirmation will be governed by and construed in accordance with the laws of the State
of New York, without reference to choice of law doctrine, provided that this provision will be
superseded by any choice of law provision in the Swap Agreement.


2. This Confirmation constitutes a Rate Swap Transaction under the Swap Agreement and the terms of
the Rate Swap Transaction to which this Confirmation relates are as follows:




 









 








NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC

Our Ref: 187597/187597




	 	 	 	 	 
	 

	 	Notional Amount:
	 	$30,500,000.00 USD Amortizing by $101,666.67 per month
	 
	 	 	 	 
	 

	 	Trade Date:
	 	19-Oct-07 
	 
	 	 	 	 
	 

	 	Effective Date:
	 	01-Nov-07 
	 
	 	 	 	 
	 

	 	Termination Date:
	 	01-Nov-10 
	 
	 	 	 	 
	 

	 	Fixed Amounts:	 	 
	 

	 	     Fixed Rate Payer:
	 	NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC






	 	 	 
	Fixed Rate Payer Payment Dates:

	 	Commencing 01-Dec-07 and monthly
thereafter on the 1st calendar day of the month up to and including
the Termination Date, subject to adjustment in accordance with Following Business Day Convention.






	 	 	 	 	 
	 

	 	     Period End Dates:
	 	Monthly on the 1st commencing 01-Dec-07 subject to No Adjustment.
	 
	 

	 	     Fixed Rate:
	 	4.62000 %     
	 
	 

	 	     Fixed Rate Day	 	 
	 

	 	     Count Fraction:
	 	Act/360     
	 
	 

	 	Floating Amounts:	 	 
	 

	 	     Floating Rate Payer:
	 	KEYBANK NATIONAL ASSOCIATION






	 	 	 
	Floating Rate Payer Payment Dates:

	 	Commencing 01-Dec-07 and monthly
thereafter on the 1st calendar day of the month up to and including
the Termination Date, subject to adjustment in accordance with Following Business Day Convention.






	 	 	 	 	 
	 

	 	     Period End Dates:
	 	Monthly on the 1st commencing 01-Dec-07 subject to No Adjustment.
	 
	 	 	 	 
	 

	 	     Floating Rate for Initial	 	 
	 

	 	      Calculation Period including	 	 
	 

	 	     spread:
	 	To Be Determined
	 
	 	 	 	 
	 

	 	     Floating Rate Option:
	 	USD-LIBOR-BBA
	 
	 	 	 	 
	 

	 	     Designated Maturity:
	 	1-Month
	 
	 	 	 	 
	 

	 	     Spread:
	 	None






	 	 	 
	Floating Rate Day
	 	 
	Count Fraction:

	 	Act/360





Reset Dates:          The first day of each Floating Rate Payer Calculation Period.




 









 








NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC

Our Ref: 187597/187597




	 	 	 	 	 
	 

	 	Calculation Agent:
	 	KEYBANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	Business days:
	 	London and New York
	 
	 	 	 	 
	 

	 	Other Terms
and Conditions:
	 	None
	 
	 	 	 	 
	 

	 	Payment Method:
	 	Please Provide





Please confirm the foregoing correctly sets forth the terms of our Agreement by executing the copy
of this Confirmation enclosed for that purpose and returning it to us.




Regards,




KEYBANK NATIONAL ASSOCIATION




By: /s/ Mary Chudzinski




Name: Mary Chudzinski




Accepted and Confirmed as

of the Trade Date




NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC




Name:

Title:





 









 








KEYBANK NATIONAL ASSOCIATION




AMENDED CONFIRMATION




	 	 	 
	To:

	 	NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC
	 
	 	 
	 

	 	1551 NORTH TUSTIN AVE.
	 

	 	SUITE 300
	 

	 	SANTA ANA, CA 92705
	 
	 	 
	Attn:

	 	DANNY PROSKY
	Fax:

	 	dprosky@1031nnn.com, soh@1031nnn.com
	 
	 	 
	Duplicate
	 	 
	Confirm to:
	 	 
	Client ID:

	 	1000364274~KOZAK
	 
	 	 
	From:

	 	KEYBANK NATIONAL ASSOCIATION
	Date:

	 	25-Oct-07 
	Our Ref:

	 	187597/187964 





The purpose of this letter agreement is to set forth the terms and conditions of the Swap
Transaction entered into between KEYBANK NATIONAL ASSOCIATION and NNN HEALTHCARE/OFFICE REIT E
FLORIDA LTC, LLC on the Trade Date specified below (the “Swap Transaction”). This letter agreement
constitutes a “Confirmation” as referred to in the Swap Agreement specified below.




     1. The definitions and provisions contained in the 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc. (the “Definitions”) and amended from time to
time, are incorporated into this Confirmation.



     If you and we are parties to an ISDA Master Agreement as published by the International Swap
Dealers Association, Inc. and the Schedule to such agreement that sets forth the general terms and
conditions applicable to Swap Transactions between us (a “Swap Agreement”), this Confirmation
supplements, forms a part of, and is subject to, such Swap Agreement. If you and we are not yet
parties to a Swap Agreement, this Confirmation will be a complete valid legal binding agreement
between us as supplemented by the general terms and conditions set forth in the standard form ISDA
Master Agreement copyright 1992 by the International Swap Dealers Association, Inc.(“standard ISDA
form”). All provisions contained or incorporated by reference in such Swap Agreement shall govern
this Confirmation except as expressly modified below. In the event of any inconsistency between
this Confirmation and the Definitions or the Swap Agreement or the standard ISDA form if a Swap
Agreement has not been entered into between us, this Confirmation will govern.



     This Confirmation will be governed by and construed in accordance with the laws of the State
of New York, without reference to choice of law doctrine, provided that this provision will be
superseded by any choice of law provision in the Swap Agreement.


2. This Confirmation constitutes a Rate Swap Transaction under the Swap Agreement and the terms of
the Rate Swap Transaction to which this Confirmation relates are as follows:




 









 








NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC

Our Ref: 187597/187964




	 	 	 	 	 
	 

	 	Notional Amount:
	 	$30,461,146.00 USD Amortizing by $38,854.00 per month
	 
	 	 	 	 
	 

	 	Trade Date:
	 	25-Oct-07     
	 
	 	 	 	 
	 

	 	Effective Date:
	 	01-Nov-07     
	 
	 	 	 	 
	 

	 	Termination Date:
	 	01-Oct-10     
	 
	 

	 	     Fixed Amounts:	 	 
	 

	 	        Fixed Rate Payer:
	 	NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC






	 	 	 
	Fixed Rate Payer Payment Dates:

	 	Commencing 10-Nov-07 and monthly
thereafter on the 10th calendar day of the month up to and including
the Termination Date, subject to adjustment in accordance with Following Business Day Convention.






	 	 	 	 	 
	 

	 	     Period End Dates:
	 	Monthly on the 10th commencing 10-Nov-07 subject to No Adjustment.
	 
	 	 	 	 
	 

	 	     Fixed Rate:
	 	4.62000 % 
	 
	 	 	 	 
	 

	 	     Fixed Rate Day	 	 
	 

	 	     Count Fraction:
	 	Act/360 
	 
	 	 	 	 
	 

	 	Floating Amounts:	 	 
	 

	 	     Floating Rate Payer:
	 	KEYBANK NATIONAL ASSOCIATION






	 	 	 
	     Floating Rate Payer Payment Dates:

	 	Commencing 10-Nov-07 and monthly thereafter on the 10th calendar day of the month up to and including
 the Termination Date, subject to adjustment in accordance with Following Business Day Convention.






	 	 	 	 	 
	 

	 	     Period End Dates:
	 	Monthly on the 10th commencing 10-Nov-07 subject to No Adjustment.
	 
	 	 	 	 
	 

	 	     Floating Rate for Initial	 	 
	 

	 	     Calculation Period including	 	 
	 

	 	     spread:
	 	To Be Determined
	 
	 	 	 	 
	 

	 	     Floating Rate Option:
	 	USD-LIBOR-BBA
	 
	 	 	 	 
	 

	 	     Designated Maturity:
	 	1-Month
	 
	 	 	 	 
	 

	 	     Spread:
	 	None






	 	 	 
	Floating Rate Day
	 	 
	Count Fraction:

	 	Act/360
	 
	 	 
	Reset Dates:

	 	The first day of each Floating Rate Payer Calculation Period.






 









 






NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC

Our Ref: 187597/187964




	 	 	 	 	 
	 

	 	Calculation Agent:
	 	KEYBANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	Business days:
	 	London and New York
	 
	 	 	 	 
	 

	 	Other Terms
and Conditions:
	 	None
	 
	 	 	 	 
	 

	 	Payment Method:
	 	Please Provide





Please confirm the foregoing correctly sets forth the terms of our Agreement by executing the copy
of this Confirmation enclosed for that purpose and returning it to us.




Regards,




KEYBANK NATIONAL ASSOCIATION




By: /s/ Mary Chudzinski




Name: Mary Chudzinski




Accepted and Confirmed as

of the Trade Date




NNN HEALTHCARE/OFFICE REIT E FLORIDA LTC, LLC




/s/ Shannon K S Johnson




Name: Shannon K S Johnson

Title: Authorized Signatory