EX-10.4






LOAN AGREEMENT




between




NNN VF 7777 BONHOMME AVENUE, LLC




as Borrower




and




GENERAL ELECTRIC CAPITAL CORPORATION




as Lender




October 25, 2007




1




TABLE OF CONTENTS




Page




	 	 	 
	ARTICLE 1 CERTAIN DEFINITIONS

	Section 1.1

	 	Certain Definitions






	 	 	 
	ARTICLE 2 LOAN TERMS

	Section 2.1

Section 2.2

Section 2.3

Section 2.4

Section 2.5

	 	The Loan

Interest Rate; Late Charge

Terms of Payment

Repayment Fee

Security






	 	 	 
	ARTICLE 3 INSURANCE, CONDEMNATION, AND IMPOUNDS

	Section 3.1

Section 3.2

Section 3.3

Section 3.4

	 	Insurance

Use and Application of Insurance Proceeds

Condemnation Awards

Impounds






	 	 	 
	ARTICLE 4 REPRESENTATIONS AND WARRANTIES

	Section 4.1

Section 4.2

Section 4.3

Section 4.4

Section 4.5

Section 4.6

Section 4.7

Section 4.8

Section 4.9

Section 4.10

Section 4.11

Section 4.12

Section 4.13

Section 4.14

	 	Organization and Power

Validity of Loan Documents

Liabilities; Litigation; Other Secured Transactions.

Taxes and Assessments

Other Agreements; Defaults

Compliance with Law.

Location of Borrower

ERISA.

Margin Stock

Tax Filings

Solvency

Full and Accurate Disclosure

Single Purpose Entity

Property Specific Representations






	 	 	 
	ARTICLE 5 ENVIRONMENTAL MATTERS

	Section 5.1

Section 5.2

Section 5.3

Section 5.4

Section 5.5

	 	Representations and Warranties on Environmental Matters

Covenants on Environmental Matters.

Allocation of Risks and Indemnity

Lender’s Right to Protect Collateral

No Waiver






	 	 	 
	ARTICLE 6 LEASING MATTERS

	Section 6.1

Section 6.2

Section 6.3

Section 6.4

	 	Representations and Warranties on Leases

Standard Lease Form; Approval Rights

Covenants

Tenant Estoppels






	 	 	 
	ARTICLE 7 FINANCIAL REPORTING

	Section 7.1

Section 7.2

Section 7.3

Section 7.4

Section 7.5

	 	Financial Statements.

Accounting Principles

Other Information

Annual Budget

Audits






	 	 	 
	ARTICLE 8 COVENANTS

	Section 8.1

Section 8.2

Section 8.3

Section 8.4

Section 8.5

Section 8.6

Section 8.7

Section 8.8

Section 8.9

Section 8.10

Section 8.11

Section 8.12

Section 8.13

Section 8.14

Section 8.15

Section 8.16

	 	Due on Sale and Encumbrance; Transfers of Interests

Taxes; Charges

Control; Management

Operation; Maintenance; Inspection

Taxes on Security

Legal Existence; Name, Etc.

Affiliate Transactions

Limitation on Other Debt

Further Assurances

Estoppel Certificates

Notice of Certain Events

Indemnification

Application of Operating Revenues

Representations and Warranties

Post-Closing Work

Property Specific Covenants







	 	 	ARTICLE 9 ANTI-MONEY LAUNDERING AND INTERNATIONAL TRADE CONTROLS	 






	 	 	 	Section 9.1 Compliance with International Trade Control Laws and OFAC Regulations	 






	 	 	 	Section 9.2 Borrower’s Funds	 





	 	 	 
	ARTICLE 10 EVENTS OF DEFAULT

	Section 10.1

Section 10.2

Section 10.3

Section 10.4

Section 10.5

Section 10.6

Section 10.7

Section 10.8

Section 10.9

	 	Payments

Insurance

Transfer

Covenants

Representations and Warranties

Other Encumbrances

Involuntary Bankruptcy or Other Proceeding

Voluntary Petitions, Etc.

Future Advance






	 	 	 
	ARTICLE 11 REMEDIES

	Section 11.1

Section 11.2

Section 11.3

	 	Remedies — Insolvency Events

Remedies - Other Events

Lender’s Right to Perform the Obligations






	 	 	 
	ARTICLE 12 MISCELLANEOUS

	Section 12.1

Section 12.2

Section 12.3

Section 12.4

Section 12.5

Section 12.6

Section 12.7

Section 12.8

Section 12.9

Section 12.10

Section 12.11

Section 12.12

Section 12.13

Section 12.14

Section 12.15

Section 12.16

Section 12.17

Section 12.18

Section 12.19

Section 12.20

Section 12.21

Section 12.22

Section 12.23

Section 12.24

Section 12.25

	 	Notices

Amendments and Waivers; References

Limitation on Interest

Invalid Provisions

Reimbursement of Expenses

Approvals; Third Parties; Conditions

Lender Not in Control; No Partnership

Time of the Essence

Successors and Assigns

Renewal, Extension or Rearrangement

Sale of Loan, Participation

Waivers

Cumulative Rights

Singular and Plural

Phrases

Exhibits and Schedules

Titles of Articles, Sections and Subsections

Promotional Material

Survival

WAIVER OF JURY TRIAL

Punitive or Consequential Damages; Waiver

Governing Law

Entire Agreement

Counterparts

Representations of Credit in Writing






	 	 	 
	ARTICLE 13 LIMITATIONS ON LIABILITY

	Section 13.1

Section 13.2

	 	Limitation on Liability.

Limitation on Liability of Lender’s Officers, Employees, Etc.






2



LIST OF EXHIBITS AND SCHEDULES




	 	 	 	 	 
	EXHIBIT A

EXHIBIT B

SCHEDULE 2.1(1)

SCHEDULE 2.1(2)

SCHEDULE 2.1(3)

SCHEDULE 2.3(4)

SCHEDULE 2.5(1)

SCHEDULE 4.1

SCHEDULE 4.3

SCHEDULE 6.2

	 	–

–

–

–

–

–

–

–

–

–
	 	LEGAL DESCRIPTION OF PROJECT

BUDGET

ADVANCE CONDITIONS

REQUIRED REPAIRS

CAPITAL IMPROVEMENTS BUDGET

MAKE WHOLE BREAKAGE AMOUNT DEFINITION

CAPITAL IMPROVEMENTS RESERVE

ORGANIZATIONAL MATTERS

SEC INVESTIGATION

LEASING PARAMETERS






3




LOAN AGREEMENT




This Loan Agreement (this “Agreement”) is entered into as of October 25, 2007, between
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“Lender”), and NNN VF 7777
BONHOMME AVENUE, LLC, a Delaware limited liability company (“Borrower”).



ARTICLE 1




CERTAIN DEFINITIONS




Section 1.1 Certain Definitions. As used herein, the following terms have the meanings
indicated:



“Affiliate” means, as to any Person, (a) any corporation in which such Person or any
partner, shareholder, director, officer, member, or manager of such Person, at any level, directly
or indirectly owns or controls more than ten percent (10%) of the beneficial interest, (b) any
partnership, joint venture or limited liability company in which such Person or any partner,
shareholder, director, officer, member, or manager of such Person, at any level, is a partner,
joint venturer or member, (c) any trust in which such Person or any partner, shareholder, director,
officer, member or manager of such Person, at any level, or any individual related by birth,
adoption or marriage to such Person, is a trustee or beneficiary, (d) any entity of any type which
is directly or indirectly owned or controlled by (or is under common control with) such Person or
any partner, shareholder, director, officer, member or manager of such Person, at any level,
(e) any partner, shareholder, director, officer, member, manager or employee of such Person, or
(f) any individual related by birth, adoption or marriage to any partner, shareholder, director,
officer, member, manager, or employee of such Person. Each Borrower Party shall be deemed to be
an Affiliate of Borrower.



“Agreement” means this Loan Agreement.



“Anti-Money Laundering Laws” means those laws, regulations and sanctions, state and
federal, criminal and civil, that (a) limit the use of and/or seek the forfeiture of proceeds from
illegal transactions; (b) limit commercial transactions with designated countries or individuals
believed to be terrorists, narcotics dealers or otherwise engaged in activities contrary to the
interests of the United States; (c) require identification and documentation of the parties with
whom a Financial Institution conducts business; or (d) are designed to disrupt the flow of funds to
terrorist organizations. Such laws, regulations and sanctions shall be deemed to include the
Patriot Act, the Bank Secrecy Act, the Trading with the Enemy Act, 50 U.S.C. App. Section 1
et seq., the International Emergency Economic Powers Act, 50 U.S.C. Section 1701 et seq., and the
sanction regulations promulgated pursuant thereto by the OFAC, as well as laws relating to
prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957.



“Assignment of Rents and Leases” means the Assignment of Rents and Leases, executed by
Borrower for the benefit of Lender, and pertaining to leases of space in the Project.



“Bank Secrecy Act” means the Bank Secrecy Act, 31 U.S.C. Sections 5311 et seq.



“Borrower Party” means any Joinder Party, any Guarantor and any general partner or
managing member in Borrower, at any level.



“Budget” means the budget attached as Exhibit B showing total costs relating
to the subject transaction, use of the initial advance of the Loan, and amounts allocated for
future advances (if any).



“Business Day” means a day other than a Saturday, a Sunday, or a legal holiday on
which national banks located in the State of New York are not open for general banking business.



“Cash on Cash Return” means, as of any date, the ratio, expressed as a percentage, of
(a) annualized Underwritten NOI as of such date, to (b) the sum of the outstanding principal
balance of the Loan as of such date and any undisbursed Loan funds.



“Closing Date” means the date on which Lender makes the initial advance of Loan
proceeds.



“Collateral“ means the Project and all other “Mortgaged Property” described in the
Mortgage, and any other property that at any time secures the Loan or any portion thereof.



“Contract Rate” has the meaning assigned in Article 2.



“Conversion Fixed Rate” has the meaning assigned in Article 2.



“Debt” means, for any Person, without duplication: (a) all indebtedness of such
Person for borrowed money, for amounts drawn under a letter of credit, or for the deferred purchase
price of property for which such Person or any of its assets is liable, (b) all unfunded amounts
under a loan agreement, letter of credit, or other credit facility for which such Person or any of
its assets would be liable or subject, if such amounts were advanced under the credit facility,
(c) all amounts required to be paid by such Person as a guaranteed payment to partners or a
preferred or special dividend, including any mandatory redemption of shares or interests, (d) all
indebtedness guaranteed by such Person, directly or indirectly, (e) all obligations under leases
that constitute capital leases for which such Person or any of its assets is liable or subject, and
(f) all obligations of such Person under interest rate swaps, caps, floors, collars and other
interest hedge agreements, in each case whether such Person or any of its assets is liable or
subject, contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which
obligations such Person otherwise assures a creditor against loss.



“Debt Service” means the aggregate interest, fixed principal, and other payments due
under the Loan (and under any other permitted Debt relating to the Project expressly approved by
Lender) for the period of time for which calculated. The foregoing calculation shall exclude
payments applied to escrows or reserves required by Lender.



“Debt Service Coverage” means, for the period of time for which calculation is being
made, the ratio of annualized Underwritten NOI to annualized Debt Service. Notwithstanding the
foregoing, (i) for purposes of calculating Cash on Cash Return and Debt Service Coverage in Section
2.3(3), the annualized Underwriten NOI shall be calculated using the previous six (6) months of
Underwritten Operating Revenue and (ii) for purposes of calculating the Debt Service Coverage to
determine the occurrence of a Trigger Event, the annualized Underwriten NOI shall be calculated
using the previous three (3) months of Underwritten Operating Revenue.



“Default Rate” means the lesser of (a) the maximum per annum rate of interest allowed
by applicable law, and (b) five percent (5%) per annum in excess of the applicable Contract Rate.



“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.



“Event of Default” has the meaning assigned in Article 10.



“Extension Period” has the meaning assigned in Article 2.



“Extension Period Floating Rate” has the meaning assigned in Article 2.



“Extension Request” has the meaning assigned in Article 2.



“Financial Institution” means a United States Financial Institution as defined in
31 U.S.C. Section 5312, as periodically amended.



“Future Advances” has the meaning assigned in Section 2.1(3).



“Hazardous Materials” means (a) petroleum or 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.



“Interest Holder” has the meaning assigned in Section 8.1.



“Interest Reserve” has the meaning assigned in Article 2.



“Joinder Party” means the Persons executing the Joinders hereto.



“Libor Rate” shall mean the British Bankers Association LIBOR Rate (rounded upward to
the nearest one sixteenth of one percent) listed on Reuters Screen LIBOR01 Page for U.S. Dollar
deposits with a designated maturity of one (1) month determined as of 11:00 a.m. London Time on the
second (2nd) full Eurodollar Business Day next preceding the first day of each month with respect
to which interest is payable under the Loan (unless such date is not a Business Day in which event
the next succeeding Eurodollar Business Day which is also a Business Day will be used). If Reuters
(i) publishes more than one (1) such Libor Rate, the average of such rates shall apply, or
(ii) ceases to publish the Libor Rate, then the Libor Rate shall be determined from such substitute
financial reporting service as Lender in its discretion shall determine. The term “Eurodollar
Business Day,” shall mean any day on which banks in the City of London are generally open for
interbank or foreign exchange transactions.



“Lien” means any interest, or claim thereof, in the Collateral securing an obligation
owed to, or a claim by, any Person other than the owner of the Collateral, whether such interest is
based on common law, statute or contract, including the lien or security interest arising from a
deed of trust, mortgage, assignment, encumbrance, pledge, security agreement, conditional sale or
trust receipt or a lease, consignment or bailment for security purposes. The term “Lien” shall
include reservations, exceptions, encroachments, easements, rights of way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances affecting the Collateral.



“Loan” means the loan to be made by Lender to Borrower under this Agreement and all
other amounts secured by the Loan Documents.



“Loan Documents” means: (a) this Agreement, (b) the Note, (c) the Mortgage, (d) the
Assignment of Rents and Leases, (e) UCC financing statements, (f) such assignments of management
agreements, contracts and other rights as may be required by Lender, (g) any letter of credit
provided to Lender in connection with the Loan, (h) all other documents evidencing, securing,
governing or otherwise pertaining to the Loan, and (i) all amendments, modifications, renewals,
substitutions and replacements of any of the foregoing.



“Loan Year” means the period between the Closing Date and October 31, 2008, for the
first Loan Year and the period between each succeeding November 1 and October 31 until the Maturity
Date.



“Lockout Period” has the meaning assigned in Section 2.3(4).



“Make Whole Breakage Amount” has the meaning assigned in Schedule 2.3(4).



“Maturity Date” means the earlier of (a) October 31, 2010, as such date may possibly
be extended as provided in Section 2.3(3), or (b) any earlier date on which the entire Loan is
required to be paid in full, by acceleration or otherwise, under this Agreement or any of the other
Loan Documents.



“Mortgage” means the Deed of Trust, Security Agreement and Fixture Filing, executed by
Borrower in favor of Lender, covering the Project.



“Net Cash Flow” means, for any period, the amount by which Operating Revenues
exceed the sum of (a) Operating Expenses, (b) Debt Service paid during such period,
(c) capital expenditures, tenant improvement costs and leasing commissions, each approved by Lender
or provided for in the annual budget and paid by Borrower during such period, and (d) any actual
payment into impounds, escrows, or reserves required by Lender, except to the extent that any such
payment is already included within the definition of Operating Expenses. No deduction for capital
expenditures or impound, escrow or reserve payments shall be made until such capital expenditure is
actually paid by Borrower or the impound, escrow or impound, escrow or reserve amount is actually
deposited with Lender. In addition, Net Cash Flow shall be increased by any proceeds withdrawn
from reserves and impounds funded out of Operating Revenues to the extent such proceeds are not
applied to Operating Expenses, Debt Service, capital improvement costs and/or leasing commissions
as such are described within this defined term.



“Net Cash Flow Commencement Date” has the meaning assigned in Section 2.3(2).



“Net Cash Flow Payments” has the meaning assigned in Section 2.3(2).



“Note” means the Promissory Note of even date, in the stated principal amount of
$23,500,000.00, executed by Borrower, and payable to the order of Lender in evidence of the Loan.



“OFAC” means the Office of Foreign Assets Control, Department of the Treasury.



“Operating Expenses” means, for any period, all reasonable and necessary expenses of
operating the Project in the ordinary course of business which are paid in cash by Borrower during
such period and which are directly associated with and fairly allocable to the Project for the
applicable period, including ad valorem real estate taxes and assessments, insurance premiums,
regularly scheduled tax impounds paid to Lender, maintenance costs, management fees and costs,
wages, salaries, personnel expenses, accounting, legal and other professional fees, fees and other
expenses incurred by Lender and reimbursed by Borrower under the Loan Documents and deposits to any
capital replacement, leasing or other reserves required by Lender. Operating Expenses shall
exclude Debt Service, capital expenditures, tenant improvement costs, leasing commissions, any of
the foregoing operating expenses which are paid from deposits to cash reserves and such deposits
were previously included as Operating Expenses, any payment or expense for which Borrower was or is
to be reimbursed from proceeds of the Loan or insurance or by any third party, and any non-cash
charges such as depreciation and amortization. Any management fee or other management expense
shall be included as an Operating Expense to the extent such fee or expense does not exceed three
percent (3%) of Operating Revenues. Any management fee or other management expense which exceeds
three percent (3%) of Operating Revenues shall be included as an Operating Expense only with
Lender’s prior approval. Operating Expenses shall not include federal, state or local income
taxes.



“Operating Revenues” means, for any period, all cash receipts of Borrower during such
period from operation of the Project or otherwise arising in respect of the Project after the date
hereof which are properly allocable to the Project for the applicable period, including receipts
from leases and parking agreements, concession fees and charges, other miscellaneous operating
revenues and proceeds from rental or business interruption insurance, but excluding security
deposits and earnest money deposits until they are forfeited by the depositor, advance rentals
until they are earned, and proceeds from a sale or other disposition.



“Patriot Act” means the USA PATRIOT Act of 2001, Pub. L. No. 107-56.



“Person” means any individual, corporation, partnership, joint venture, association,
joint stock company, trust, trustee, estate, limited liability company, unincorporated
organization, real estate investment trust, government or any agency or political subdivision
thereof, or any other form of entity.



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



“Project” means The Sevens Building, St. Louis, Missouri, and all related facilities,
amenities, fixtures, and personal property owned by Borrower and any improvements now or hereafter
located on the real property described in Exhibit A.



“Repayment Fee” has the meaning assigned in Section 2.4.



“Required Repair Fund” has the meaning assigned in Section 2.1(b).



“SEC Investigation” has the meaning assigned in Schedule 4.3.



“Single Purpose Entity” shall mean a Person (other than an individual, a government or
any agency or political subdivision thereof), which exists solely for the purpose of owning the
Project, observes corporate, company or partnership formalities, as applicable, independent of any
other entity, and which otherwise complies with the covenants set forth in Section 4.13.



“Site Assessment” means an environmental engineering report for the Project prepared
by an engineer engaged by Lender at Borrower’s expense, and 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 Project, and the past or present discharge, disposal,
release or escape of any such substances, all consistent with ASTM Standard E 1527-05 (or any
successor thereto published by ASTM) and other good customary and commercial practice.



“Specially Designated National and Blocked Persons” means those Persons that have been
designated by executive order or by the sanction regulations of OFAC as Persons with whom U.S.
Persons may not transact business or must limit their interactions to types approved by OFAC.



“Standard Adjustments” means the following assumptions to be made when calculating
Underwritten NOI: (a) an occupancy rate equal to the lesser of market occupancy or the Project’s
actual occupancy rate; (b) capital reserves of the greater of $0.20 per square foot or such higher
amount as reasonably determined by Lender; and (c) a management fee equal to the greater of (i) the
Project’s actual management fee (excluding any subordinated asset management fee) or (ii) three
percent (3%) of Operating Revenues. As used above, “market occupancy” means the average occupancy
rate of office projects that are similar in size and quality to the Project and that are located in
the Project’s geographic market or sub-market area, all as reasonably determined by Lender.



“Swap Rate” means the yield calculated by linear interpolation (rounded to
one-thousandth of one percent (i.e., .001%) of the yields, as reported by Bloomberg LP as the US
Dollar Composite Swap Rate with terms (one longer and one shorter) most nearly approximating the
remaining term of the Loan as of the applicable Fixed Rate Conversion Date. In the event the US
Dollar Composite Swap Rate is no longer quoted by Bloomberg LP, Lender shall select a comparable
publication to determine the Swap Rate.



“Tax and Insurance Escrow Fund” has the meaning assigned in Section 3.4.



“Threshold Casualty” has the meaning assigned in Section 3.2(A).



“Transfer” has the meaning assigned in Section 8.1.



“Trigger Event” means the Debt Service Coverage for the Project falls below 1.20:1 for
any calendar quarter occurring following the second Loan Year.



“Trigger Event Cure” means the Debt Service Coverage for the Project is 1.20:1 for two
(2) consecutive calendar quarters following the occurrence of a Trigger Event.



“UCC” means the Uniform Commercial Code as enacted and in effect in the state where
the Project is located (and as it may from time to time be amended); provided that, to the extent
that the UCC is used to define any term in this Agreement or in any other Loan Document and such
term is defined differently in different Articles or Divisions of the UCC, the definition of such
term contained in Article or Division 9 shall govern; provided further, however, that if, by reason
of mandatory provisions of law, any or all of the attachment, perfection or priority of, or
remedies with respect to, Lender’s Liens on any Collateral is governed by the Uniform Commercial
Code as enacted and in effect in a jurisdiction other than the state where the Project is located,
the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other
jurisdiction solely for the purposes of the provisions thereof relating to such attachment,
perfection, priority or remedies and for purposes of definitions related to such provisions.



“Underwritten NOI” means the amount by which Underwritten Operating Revenues exceed
Underwritten Operating Expenses, which, except as expressly provided herein, shall be averaged for
the trailing twelve (12) month period.



“Underwritten Operating Expenses” means Operating Expenses as determined and adjusted
by Lender to reflect the Standard Adjustments and otherwise in accordance with its then current
audit policies and procedures for properties similar to the Project.



“Underwritten Operating Revenues” means Operating Revenues as determined and adjusted
by Lender to reflect the Standard Adjustments and otherwise in accordance with its then current
audit policies and procedures for properties similar to the Project.



“U.S. Person” means any United States citizen, any entity organized under the laws of
the United States or its constituent states or territories, or any entity, regardless of where
organized, having its principal place of business within the United States or any of its
territories.



“Variable Rate” has the meaning assigned in Article 2.



“Variable Rate Principal Amount” has the meaning assigned in Article 2.



ARTICLE 2




LOAN TERMS




Section 2.1 The Loan.



(1) The Loan of up to TWENTY-THREE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($23,500,000.00) shall be funded in one or more advances and repaid in accordance with this
Agreement. The initial advance of the Loan shall be in the amount of up to $21,000,000.00. The
initial advance and all advances for the items shown on the Budget shall be made upon Borrower’s
satisfaction of the conditions for such advances described in Schedule 2.1(1) and in
Sections 2.1(2), 2.1(3), and 2.1(4) below. The Loan is not a revolving credit loan, and
Borrower is not entitled to any readvances of any portion of the Loan which it may (or is otherwise
required to) prepay pursuant to the provisions of this Agreement.



(2) Although no escrow is required therefor, Borrower shall complete the required repairs set
forth on Schedule 2.1(2) annexed hereto on or before ninety (90) days from the date hereof.



(3) Borrower may qualify to receive additional advances (collectively, the “Future
Advances”) of the Loan, not to exceed $2,000,000.00 in the aggregate as specified in the
Budget, for capital improvements, tenant improvements, and leasing commissions to the Project as
set forth below upon satisfaction of the following terms and conditions:




(a) the amount of up to $300,000.00 may be advanced in accordance with the capital
improvements budget attached as Schedule 2.1(3);




(b) the amount of up to $1,200,000.00 may be advanced for tenant improvements and the
amount of up to $500,000.00 may be advanced for leasing commissions pursuant to leases at
the Project approved or deemed approved in accordance with Section 6.2 and Part C of
Schedule 2.1(1);




(c) unless otherwise approved by Lender, each Future Advance shall be in minimum
increments of $20,000.00 and made not more frequently than once in any calendar month;




(d) in no event shall any Future Advance be made from and after April 30, 2010;




(e) at the time of each Future Advance, all of the applicable conditions set forth in
Part B, C and D of Schedule 2.1(1) must be satisfied or waived in writing by Lender;
and




(f) each Future Advance shall be made based upon a written request submitted by
Borrower to Lender at least seven (7) days prior to the date of the requested advance.



(4) The amount of $500,000.00, as specified in the Budget, represents reserves for interest on
the Loan (the “Interest Reserve”) prior to the end of the second Loan Year to the extent
that Net Cash Flow (without including Debt Service in the calculation thereof) (“Net Operating
Income”) for any month is not sufficient to pay such interest. On or before the fifth (5th)
Business Day prior to the end of each calendar month prior to the end of the second Loan Year,
Borrower shall notify Lender of the amount by which Debt Service for the following month will
exceed the projected Net Operating Income for such month. If such Net Operating Income for any
such month is projected to equal or exceed the accrued but unpaid Debt Service payable under the
Note for such month, (i) Lender shall have no obligation to make any advance from the Interest
Reserve for that month and (ii) Borrower shall pay Debt Service for such month from Net Operating
Income. If such notice provides that the projected Net Operating Income will be less than Debt
Service for such month, Lender shall advance such shortfall from the Interest Reserve on the first
(1st) day of the applicable month and Borrower shall pay the remaining amount of Debt Service as
required hereunder. Lender shall have no obligation to make any advance from the Interest Reserve
after the end of the second Loan Year. Interest at the Variable Rate shall be charged on any
disbursed portion of the Interest Reserve as and when advanced, but interest will not be charged on
the undisbursed portion of the Interest Reserve. Borrower hereby authorizes Lender, and Lender
shall have the right to disburse and charge the Interest Reserve for Debt Service in accordance
with this Section 2.1(4). Such disbursements shall be made by a bookkeeping entry on Lender’s
records and shall be reflected as additional advances under the Loan, in amounts equal to the Debt
Service due and payable on the first (1st) day of each month. Such bookkeeping entry shall be
deemed to be as if Borrower had delivered a check to Lender for the amount in question. Unless
otherwise directed by Lender in its sole discretion, the Interest Reserve shall be available only
for disbursements of the periodic payments of Debt Service due to Lender on the Loan prior to the
end of the second Loan Year pursuant to the terms of this Agreement and the other Loan Documents.
Any funds disbursed in the manner provided in this Section 2.1(4) shall have been deemed paid to
and received by Borrower.



Section 2.2 Interest Rate; Late Charge. The outstanding principal balance of the Loan
(including any amounts added to principal under the Loan Documents) shall bear interest as set
forth in this Section 2.2:



(1) the Initial Advance shall bear interest at a fixed rate of interest equal to five and
ninety-five hundredths percent (5.95%) per annum (the “Initial Advance Fixed Rate”);



(2) the amount of each Future Advance and advance from the Interest Reserve Advance shall bear
interest as and when advanced (the “Variable Rate Principal Amount”) at a variable rate of
interest, adjusted monthly, equal to two and twenty-five percent (2.25%) per annum in excess of the
Libor Rate determined as of the effective date of the applicable advance (the “Variable
Rate”), subject to Borrower’s right to convert the Variable Rate on all or portions of the
Variable Rate Principal Amount to a Conversion Fixed Rate in accordance with Section 2.2(3) below.



(3) Borrower shall have the option (the “Fixed Rate Conversion Option”) to convert all
or a portion of the Variable Rate Principal Amount from time to time to a Conversion Fixed Rate,
subject to and in accordance with the following terms and conditions:




(a) Once the Variable Rate Principal Amount (or portion thereof) has been converted to
a Conversion Fixed Rate, it shall always remain at the Conversion Fixed Rate and cannot be
converted back to the Variable Rate.




(b) The minimum amount that may be converted to the Conversion Fixed Rate shall be
$500,000.00.




(c) No Event of Default or Potential Default may exist either at the time that Borrower
exercises the Fixed Rate Conversion Option or on the intended effective date of the Fixed
Rate Conversion Option.




(d) Borrower shall notify Lender in writing specifying what portion of the Variable
Rate Principal Amount is desired to be converted (the “Initial Notice”) and the effective
date of such conversion.




(e) The Initial Notice must be given not less than ten (10) business days prior to the
effective date of Fixed Rate Conversion Option.




(f) Borrower shall pay, on demand, all reasonable transaction costs and expenses
incurred by Lender in connection with the conversion to a Conversion Fixed Rate, and any
amount not so paid on demand shall accrue interest at the Default Rate and shall be secured
by the Loan Documents.




(g) The Conversion Fixed Rate applicable to each Fixed Rate Conversion Option shall be
calculated by Lender as of the effective date of each Fixed Rate Conversion Option.




In the event that a Fixed Rate Conversion Option is exercised, then the portion of the
Variable Rate Principal Amount subject to such Fixed Rate Conversion Option shall bear
interest at a fixed rate of interest equal to one and five tenths percent (1.5%) per annum
in excess of the Swap Rate (the “Conversion Fixed Rate”).



(4) During the Extension Period, the outstanding principal balance of the Loan shall bear
interest at a variable rate of interest, adjusted monthly, equal to two and twenty-five hundredths
percent (2.25%) in excess of the Libor Rate (the “Extension Period Floating Rate”).



(5) The Initial Advance Fixed Rate, the Variable Rate, the Conversion Fixed Rate, and the
Extension Period Floating Rate, as applicable, are collectively referred to as the “Contract
Rate.”



(6) Interest owing under this Section 2.2 for each month shall be computed on the basis of a
fraction, the denominator of which is three hundred sixty (360) and the numerator of which is the
actual number of days elapsed from the first day of such month (or, for the initial advance, from
the date of such advance). Principal and other amortization payments shall be applied to the Loan
balance as and when actually received. If Borrower fails to pay any installment of interest or
principal within five (5) days after the date on which the same is due, Borrower shall pay to
Lender a late charge on such past-due amount, as liquidated damages and not as a penalty, equal to
five percent (5%) of such amount, but not in excess of the maximum amount of interest allowed by
applicable law. Notwithstanding anything herein to the contrary, Borrower shall not be obligated
to pay to Lender a late charge on the balloon payment due on the Maturity Date. The foregoing late
charge is intended to compensate Lender for the expenses incident to handling any such delinquent
payment and for the losses incurred by Lender as a result of such delinquent payment. Borrower
agrees that, considering all of the circumstances existing on the date this Agreement is executed,
the late charge represents a reasonable estimate of the costs and losses Lender will incur by
reason of late payment. Borrower and Lender further agree that proof of actual losses would be
costly, inconvenient, impracticable and extremely difficult to fix. Acceptance of the late charge
shall not constitute a waiver of the default arising from the overdue installment, and shall not
prevent Lender from exercising any other rights or remedies available to Lender. While any Event
of Default exists, the Loan shall bear interest at the Default Rate.



Section 2.3 Terms of Payment. The Loan shall be payable as follows:



(1) Interest. A payment of interest only shall be payable on the Closing Date for the
period from the Closing Date through the last day of the current month. Thereafter, commencing on
December 1, 2007, Borrower shall pay interest in arrears on the first day of each month until all
amounts due under the Loan Documents are paid in full.



(2) Net Cash Flow Payments. Upon the fifteenth (15th) day of the month following
written notice from Lender of the occurrence of a Trigger Event (the “Net Cash Flow
Commencement Date”), and continuing on the fifteenth (15th) day of each calendar month
thereafter until a Trigger Event Cure has occurred, Borrower shall pay all Net Cash Flow from the
Project for the prior month (the “Net Cash Flow Payments”) to Lender for application to the
outstanding principal balance of the Loan. Upon the occurrence of a Trigger Event Cure, such Net
Cash Flow Payments shall be suspended until the occurrence of another Trigger Event.



(3) Maturity. On the Maturity Date, Borrower shall pay to Lender all outstanding
principal, accrued and unpaid interest, and any other amounts due under the Loan Documents.
Subject to the provisions of this Section 2.3(3), Borrower, at its option, may extend the term of
the Loan for one (1) additional 12-month period (the “Extension Period”). Borrower’s right
to extend the term of the Loan is subject to the satisfaction of each of the following conditions
as to each extension:




(a) Borrower shall deliver to Lender a written request to extend the term of the Loan
(the “Extension Request”) at least sixty (60) days before the then existing Maturity
Date.




(b) No Event of Default or Potential Default has occurred and is continuing on the date
on which Borrower delivers the Extension Request to Lender, or on the date the Extension
Period commences.




(c) Borrower shall have paid to Lender, in immediately available funds, an extension
fee equal to twenty-five hundredths percent (.25%) of the outstanding principal balance of
the Loan as of the first day of such extension.




(d) During the extended term of the Loan, all terms and conditions of the Loan
Documents (other than the original Maturity Date) shall continue to apply except that
Borrower shall have no further right to extend the term of the Loan after the second
extension.




(e) The Cash on Cash Return equals or exceeds nine percent (9%) and the Debt Service
Coverage (each based on the Contract Rate which will be in effect upon commencement of such
Extension Period) equals or exceeds 1.30 to 1; provided, however, that if, based on the
outstanding Loan balance as of the date of calculation, Borrower fails to satisfy the
foregoing Cash on Cash Return and/or Debt Service Coverage condition(s), Borrower may
satisfy such condition(s) by paying down the outstanding Loan balance to an amount that
would result in such condition(s) being satisfied.




(f) If requested by Lender, Borrower shall cause to be delivered to Lender at
Borrower’s expense an updated Site Assessment satisfactory to Lender, which shall show no
adverse matters or items.




(g) If requested by Lender, Borrower shall cause to be delivered to Lender at
Borrower’s expense an updated engineering report satisfactory to Lender, which shall show no
adverse matters or items.




(h) Borrower shall execute and deliver such other instruments, certificates, opinions
of counsel and documentation as Lender shall reasonably request in order to preserve,
confirm or secure the Liens and security granted to Lender by the Loan Documents, including
any amendments, modifications or supplements to any of the Loan Documents, endorsements to
Lender’s title insurance policy and, if required by Lender, estoppels and other
certificates.




(i) Borrower shall pay all out of pocket costs and expenses incurred by Lender in
connection with such extension of the Loan, including Lender’s reasonable attorneys’ fees
and disbursements.



(4) Lockout/Prepayment. The Loan is closed to prepayment, in whole or in part,
through April 30, 2009 (the “Lockout Period”), except for Net Cash Flow Payments in
accordance with Section 2.3(2). After the Lockout Period, Borrower may prepay the Loan, in whole
but not in part (except for Net Cash Flow Payments in accordance with Section 2.3(2)), upon not
less than thirty (30) days’ prior written notice to Lender and upon payment of a prepayment premium
equal to the Make Whole Breakage Amount calculated as provided in Schedule 2.3(4). In
addition to the prepayment premium set forth above, Borrower shall pay the Repayment Fee. If the
Loan is accelerated during the Lockout Period for any reason other than casualty or condemnation,
Borrower shall pay, in addition to all other amounts outstanding under the Loan Documents, a
prepayment premium equal to five percent (5%) of the outstanding balance of the Loan. If the Loan
is accelerated following the Lockout Period for any reason other than casualty or condemnation,
Borrower shall pay, in addition to all other amounts outstanding under the Loan Documents, to
Lender the applicable prepayment premium described above.



(5) Application of Payments. All payments received by Lender under the Loan Documents
shall be applied to the following, in such order as Lender may elect in its sole discretion:
(a) to any fees and expenses due to Lender under the Loan Documents; (b) to any Default Rate
interest or late charges; (c) to accrued and unpaid interest; (d) to amounts owed under any
reserves or escrows required by Lender; and (e) to the principal sum and other amounts due under
the Loan Documents. Prepayments of principal, if permitted or accepted, shall be applied against
amounts owing in inverse order of maturity.



Section 2.4 Repayment Fee. In addition to all other amounts payable under the Loan
Documents, including the origination fee payable pursuant to Schedule 2.1(1), Part A, and
any prepayment premiums, and regardless of the actual amount of the Loan actually disbursed,
Borrower shall pay to Lender an additional fee (the “Repayment Fee”) in an amount equal to
$235,000.00, provided that fifty percent (50%) of the Repayment Fee will be waived if Borrower
refinances the Loan with Lender. Borrower acknowledges that Lender has made no commitment and has
no obligation, express or implied, to provide any such refinancing loan, and any such loan shall be
subject to Lender’s approval in its sole discretion. The Repayment Fee shall be retained by
Lender, as its sole property and as additional consideration for furnishing the Loan, and shall not
be applied against interest, principal or any other amounts payable under the Loan Documents. The
Repayment Fee shall be deemed fully earned upon the initial disbursement of the Loan and shall be
payable on the Maturity Date, or earlier prepayment of the entire Loan, whether such prepayment is
voluntary or otherwise.



Section 2.5 Security. The Loan shall be secured by the Mortgage creating a first lien on
the Project, the Assignment of Rents and Leases and the other Loan Documents. As further security
for the Loan, Borrower agrees:



(1) to fund the Capital Improvements Reserve in accordance with Schedule 2.5(1); and



(2) to make the Net Cash Flow Payments in accordance with Section 2.3(2).



ARTICLE 3




INSURANCE, CONDEMNATION, AND IMPOUNDS




Section 3.1 Insurance. Borrower shall maintain insurance as follows:



(1) Casualty; Business Interruption. Borrower shall keep the Project insured against
damage by fire and the other hazards covered by a standard extended coverage and all-risk insurance
policy for the full insurable value thereof on a replacement cost claim recovery basis (without
reduction for depreciation or co-insurance and without any exclusions or reduction of policy limits
for acts of domestic and foreign terrorism or other specified action/inaction), and shall maintain
boiler and machinery insurance, acts of domestic and foreign terrorism endorsement coverage , law
or ordinance coverage in an amount equal to the replacement cost of the Project, and such other
casualty insurance as reasonably required by Lender. Lender reserves the right to require from
time to time the following additional insurance: flood, earthquake/sinkhole, windstorm and/or
building law or ordinance. Borrower shall keep the Project insured against loss by flood if the
Project is located currently or at any time in the future in an area identified by the Federal
Emergency Management Agency as an area having special flood hazards and in which flood insurance
has been made available under the National Flood Insurance Act of 1968, the Flood Disaster
Protection Act of 1973 or the National Flood Insurance Reform Act of 1994 (as such acts may from
time to time be amended) in an amount at least equal to the lesser of (a) the maximum amount of the
Loan or (b) the maximum limit of coverage available under said acts. Any such flood insurance
policy shall be issued in accordance with the requirements and current guidelines of the Federal
Insurance Administration. Borrower shall maintain business interruption insurance, including use
and occupancy, rental income loss and extra expense, against all periods covered by Borrower’s
property insurance for a limit equal to twelve (12) calendar months’ exposure with extended
coverage, all without any exclusions or reduction of policy limits for acts of foreign terrorism or
other specified action/inaction. Borrower shall not maintain any separate or additional insurance
which is contributing in the event of loss unless it is properly endorsed and otherwise reasonably
satisfactory to Lender in all respects. The proceeds of insurance paid on account of any damage or
destruction to the Project shall be paid to Lender to be applied as provided in Section 3.2.



(2) Liability. Borrower shall maintain (a) commercial general liability insurance
with respect to the Project providing for limits of liability of not less than $5,000,000 for both
injury to or death of a person and for property damage per occurrence and in aggregate, and
(b) other liability insurance as reasonably required by Lender.



(3) Form and Quality. All insurance policies shall be endorsed in form and substance
acceptable to Lender to name Lender as an additional insured, loss payee or mortgagee thereunder,
as its interest may appear, with loss payable to Lender, without contribution, under a standard New
York (or local equivalent) mortgagee clause. All such insurance policies and endorsements shall be
fully paid for, shall be issued by appropriately licensed insurance companies acceptable to Lender
with a rating of “A-IX” or better as established by A.M. Best’s Rating Guide, and shall be in such
form, and shall contain such provisions, deductibles (with no increased deductible for acts of
domestic and foreign terrorism or other specified action/inaction) and expiration dates, as are
acceptable to Lender. Each policy shall provide that such policy may not be canceled or materially
changed except upon thirty (30) days’ prior written notice of intention of non-renewal,
cancellation or material change to Lender and that no act or thing done by Borrower shall
invalidate any policy as against Lender. Blanket policies shall be permitted only if Lender
receives appropriate endorsements and/or duplicate policies containing Lender’s right to continue
coverage on a pro rata pass-through basis and that coverage will not be affected by any loss on
other properties covered by the policies. If Borrower fails to maintain insurance in compliance
with this Section 3.1, Lender may obtain such insurance and pay the premium therefor and Borrower
shall, on demand, reimburse Lender for all expenses incurred in connection therewith. Unless
Borrower provides evidence of the insurance coverage required by this Agreement, Lender may
purchase insurance at Borrower’s expense to protect Lender’s interest in the collateral. This
insurance may, but need not, protect Borrower’s interests. The coverage that Lender purchases may
not pay any claim that Borrower makes or any claim that is made against Borrower in connection with
the collateral. Borrower may later cancel any insurance purchased by Lender, but only after
providing evidence that Borrower has obtained insurance as required by this Agreement. If Lender
purchases insurance for the collateral, Borrower will be responsible for the costs of that
insurance including the insurance premium, interest and any other charges Lender may impose in
connection with the placement of the insurance, until the effective date of the cancellation or
expiration of the insurance. The costs of the insurance may be added to Borrower’s total
outstanding balance or obligation. The costs of the insurance may be more than the cost of
insurance Borrower may be able to obtain on its own.



(4) Assignment. Borrower shall collaterally assign all right, title and interest of
Borrower in insurance policies (regardless of whether required by Lender) as to the Project,
unearned premiums therefor and proceeds from such policies covering any of the Project now or
hereafter acquired by Borrower to Lender, in such manner and form that Lender and its successors
and assigns shall at all times have and hold the same as security for the payment of the Loan. If
requested by Lender, Borrower shall deliver copies of all original policies certified to Lender by
the insurance company or authorized agent as being true copies, together with the endorsements
required hereunder. If Borrower elects to obtain any insurance which is not required under this
Agreement, all related insurance policies shall be endorsed in compliance with Section 3.1(3), and
such additional insurance shall not be canceled without prior notice to Lender. From time to time
upon Lender’s request, Borrower shall identify to Lender all insurance maintained by Borrower with
respect to the Project. The proceeds of insurance policies coming into the possession of Lender
shall not be deemed trust funds, and Lender shall be entitled to apply such proceeds as herein
provided.



(5) Adjustments. Borrower shall give immediate written notice of any loss to the
insurance carrier and to Lender. Borrower hereby irrevocably authorizes and empowers Lender, as
attorney-in-fact for Borrower coupled with an interest, to notify any of Borrower’s insurance
carriers to add Lender as a loss payee, mortgagee insured or additional insured, as the case may
be, to any policy maintained by Borrower (regardless of whether such policy is required under this
Agreement), to make proof of loss, to adjust and compromise any claim under insurance policies, to
appear in and prosecute any action arising from such insurance policies, to collect and receive
insurance proceeds, and to deduct therefrom Lender’s expenses incurred in the collection of such
proceeds. Nothing contained in this Section 3.1(5), however, shall require Lender to incur any
expense or take any action hereunder.



Section 3.2 Use and Application of Insurance Proceeds.



(A) If the Project shall be damaged or destroyed, in whole or in part, by fire or other
casualty (a “Casualty”), Borrower shall give prompt notice thereof to Lender. In the event
any Casualty occurs to the Project such that a conditional use permit, variance, or other issuance
required under applicable law (a “Conditional Use Permit”) is required to repair such
damage or destruction and fully rebuild and restore the improvements (a “Threshold
Casualty”), Borrower shall make application for the Conditional Use Permit to the applicable
zoning authority within sixty (60) days of such Threshold Casualty to allow the continued operation
of the Project as an office and retail facility with parking garage in substantially the same
condition as prior to such Threshold Casualty and shall diligently pursue obtaining such
Conditional Use Permit and the repair of any damage or destruction. If the Project suffers a
Threshold Casualty, and within one hundred eighty (180) days of such Threshold Casualty Borrower
fails to obtain a Conditional Use Permit from the applicable zoning authority permitting such
restoration in substantially the same condition as prior to such Threshold Casualty and thereafter
diligently pursue the repair of any damage or destruction, Borrower shall, at Lender’s option, be
obligated to repay the Loan in full without the payment of a prepayment premium or fee.



(B) Lender shall apply insurance proceeds to costs of restoring the Project or the Loan as
follows:



(1) if the loss is less than sixty percent (60%) of replacement value of the improvements as
determined in accordance with the applicable zoning ordinances, Lender shall apply the insurance
proceeds to restoration provided that at all times during such restoration (a) no Event of Default
or Potential Default exists; (b) Lender determines that there are sufficient funds available to
restore and repair the Project to a condition approved by Lender; (c) Lender reasonably determines
that the Underwritten NOI during restoration will be sufficient to pay Debt Service during
restoration; (d) Lender reasonably determines (based on leases which will remain in effect after
restoration is complete if the Project is not a multi-family project) that after restoration the
Debt Service Coverage will be at least equal to the Debt Service Coverage amounts set forth in
Paragraph 1 in Part A of Schedule 2.1(1), or if the loss occurs during the Extension
Period, the Debt Service Coverage and Cash on Cash Return will be at least equal to the
requirements in Section 2.3(3)(e); (e) Lender reasonably determines that the ratio of the
outstanding principal balance of the Loan to appraised value of the Project after restoration will
not exceed the loan-to-value ratio that existed on the Closing Date; (f) Lender reasonably
determines that restoration and repair of the Project to a condition approved by Lender will be
completed within six months after the date of loss or casualty and in any event ninety (90) days
prior to the Maturity Date; (g) Borrower promptly commences and is diligently pursuing restoration
of the Project; (h) Borrower has obtain the Conditional Use Permit and is in compliance with
Section 3.2(A) above; and (i) the Project after the restoration will be in compliance with and
permitted under all applicable zoning, building and land use laws, rules, regulations and
ordinances;



(2) if the conditions set forth in Section 3.2(B)(1) are not satisfied, in Lender’s sole
discretion, Lender may apply any insurance proceeds it may receive to amounts owing under the Loan
Documents (without prepayment penalty or premium) in such order and manner as Lender in its sole
discretion determines, or allow all or a portion of such proceeds to be used for the restoration of
the Project;



(3) if sixty percent (60%) or more of the replacement value of the improvements as determined
in accordance with the applicable zoning ordinance, the Loan shall be immediately due and payable
(without prepayment penalty or premium) and Lender shall apply any insurance proceeds it may
receive to amounts owing under the Loan Documents (without prepayment penalty or premium) in such
order and manner as Lender in its sole discretion determines; and



(4) insurance proceeds applied to restoration will be disbursed on receipt of satisfactory
plans and specifications, contracts and subcontracts, schedules, budgets, lien waivers and
architects’ certificates, and otherwise in accordance with prudent commercial construction lending
practices for construction loan advances, including, as applicable, the advance conditions under
Schedule 2.1(1). Any insurance proceeds remaining after payment of all restoration costs
shall be applied by Lender to the Loan balance or, at Lender’s sole option, remitted to Borrower.



Section 3.3 Condemnation Awards. Borrower shall immediately notify Lender of the
institution of any proceeding for the condemnation or other taking of the Project or any portion
thereof. Lender may participate in any such proceeding and Borrower will deliver to Lender all
instruments necessary or required by Lender to permit such participation. Without Lender’s prior
consent, Borrower (1) shall not agree to any compensation or award, and (2) shall not take any
action or fail to take any action which would cause the compensation to be determined. All awards
and compensation for the taking or purchase in lieu of condemnation of the Project or any part
thereof are hereby assigned to and shall be paid to Lender. Borrower authorizes Lender to collect
and receive such awards and compensation, to give proper receipts and acquittances therefor, and in
Lender’s sole discretion to apply the same toward the payment of the Loan, notwithstanding that the
Loan may not then be due and payable, or to the restoration of the Project; however, if the award
is less than or equal to $50,000 and Borrower requests that such proceeds be used for
non-structural site improvements (such as landscape, driveway, walkway and parking area repairs)
required to be made as a result of such condemnation, Lender will apply the award to such
restoration in accordance with disbursement procedures applicable to insurance proceeds provided
there exists no Potential Default or Event of Default. Borrower, upon request by Lender, shall
execute all instruments requested to confirm the assignment of the awards and compensation to
Lender, free and clear of all liens, charges or encumbrances.



Section 3.4 Impounds. Borrower shall deposit into a reserve with Lender, monthly on the
first day of each month, one-twelfth (1/12th) of the annual charges for ground or other rent, if
any (but only if such rent is due less often than monthly or, regardless of payment frequency, if
Borrower has failed to make one or more of such payments), insurance premiums and real estate
taxes, assessments and similar charges relating to the Project (the “Tax and Insurance Escrow
Fund”). At or before the initial advance of the Loan, Borrower shall deposit with Lender a sum
of money which together with the monthly installments will be sufficient to make each of such
payments thirty (30) days prior to the date any delinquency or penalty becomes due with respect to
such payments. Deposits shall be made on the basis of Lender’s reasonable estimate from time to
time of the charges for the current year (after giving effect to any reassessment or, at Lender’s
election, on the basis of the charges for the prior year, with adjustments when the charges are
fixed for the then current year). All funds so deposited shall be held by Lender, without
interest, and may be commingled with Lender’s general funds. Borrower hereby grants to Lender a
security interest in all funds so deposited with Lender for the purpose of securing the Loan.
While an Event of Default exists, the funds deposited may be applied in payment of the charges for
which such funds have been deposited, or to the payment of the Loan or any other charges affecting
the security of Lender, as Lender may elect, but no such application shall be deemed to have been
made by operation of law or otherwise until actually made by Lender. Borrower shall furnish Lender
with bills for the charges for which such deposits are required at least thirty (30) days prior to
the date on which the charges first become payable. If at any time the amount on deposit with
Lender, together with amounts to be deposited by Borrower before such charges are payable, is
insufficient to pay such charges, Borrower shall deposit any deficiency with Lender immediately
upon demand. Lender shall pay such charges when the amount on deposit with Lender is sufficient to
pay such charges and Lender has received a bill for such charges.



ARTICLE 4




REPRESENTATIONS AND WARRANTIES




Borrower represents and warrants to Lender that:



Section 4.1 Organization and Power. Borrower and each Borrower Party is duly organized,
validly existing and in good standing under the laws of the state of its formation or existence,
and is in compliance with all legal requirements applicable to doing business in the state in which
the Project is located. Borrower is not a “foreign person” within the meaning of
Section 1445(f)(3) of the Internal Revenue Code. Borrower and each Borrower Party has only one
state of incorporation or organization, which is set forth in Schedule 4.1. All other
information regarding Borrower and each Borrower Party contained in Schedule 4.1, including
the ownership structure of Borrower and its constituent entities, is true and correct as of the
Closing Date.



Section 4.2 Validity of Loan Documents. The execution, delivery and performance by
Borrower and each Borrower Party of the Loan Documents: (1) are duly authorized and do not require
the consent or approval of any other party or governmental authority which has not been obtained;
and (2) will not violate any law or result in the imposition of any lien, charge or encumbrance
upon the assets of any such party, except as contemplated by the Loan Documents. The Loan
Documents constitute the legal, valid and binding obligations of Borrower and each Borrower Party,
enforceable in accordance with their respective terms, subject to applicable bankruptcy,
insolvency, or similar laws generally affecting the enforcement of creditors’ rights.



Section 4.3 Liabilities; Litigation; Other Secured Transactions.



(1) The financial statements delivered by Borrower and each Borrower Party are true and
correct with no significant change since the date of preparation. Except as disclosed in such
financial statements, there are no liabilities (fixed or contingent) affecting the Project,
Borrower or any Borrower Party. Except as disclosed in such financial statements or otherwise
disclosed in writing, and as set forth in Schedule 4.3, there is no litigation,
administrative proceeding, investigation or other legal action (including any proceeding under any
state or federal bankruptcy or insolvency law) pending or, to the knowledge of Borrower,
threatened, against the Project, Borrower or any Borrower Party which if adversely determined could
have a material adverse effect on such party, the Project or the Loan.



(2) Borrower is not, and has not been, bound (whether as a result of a merger or otherwise) as
a debtor under a pledge or security agreement entered into by another Person, which has not
heretofore been terminated.



Section 4.4 Taxes and Assessments. The Project is comprised of one or more parcels, each
of which constitutes a separate tax lot and none of which constitutes a portion of any other tax
lot. There are no pending or, to Borrower’s best knowledge, proposed special or other assessments
for public improvements or otherwise affecting the Project, nor are there any contemplated
improvements to the Project that may result in such special or other assessments.



Section 4.5 Other Agreements; Defaults. Neither Borrower nor any Borrower Party is a party
to any agreement or instrument or subject to any court order, injunction, permit, or restriction
which might adversely affect the Project or the business, operations, or condition (financial or
otherwise) of Borrower or any Borrower Party. Neither Borrower nor any Borrower Party is in
violation of any agreement which violation would have an adverse effect on the Project, Borrower,
or any Borrower Party or Borrower’s or any Borrower Party’s business, properties, or assets,
operations or condition, financial or otherwise.



Section 4.6 Compliance with Law.



(1) Borrower, to its actual knowledge and with inquiry, and each Borrower Party have all
requisite licenses, permits, franchises, qualifications, certificates of occupancy or other
governmental authorizations to own, lease and operate the Project and carry on its business. The
Project is in compliance with all applicable zoning, subdivision, building and other legal
requirements and is free of structural defects. All of the Project’s building systems are in good
working order, subject to ordinary wear and tear. The Project does not constitute, in whole or in
part, a legally non-conforming use under applicable legal requirements.



(2) No condemnation has been commenced or, to Borrower’s knowledge, is contemplated with
respect to all or any portion of the Project or for the relocation of roadways adjacent to and
providing access to the Project.



(3) The Project has adequate rights of access to public ways and is served by adequate water,
sewer, sanitary sewer and storm drain facilities. All public utilities necessary or convenient to
the full use and enjoyment of the Project are located in the public right-of-way abutting the
Project, and all such utilities are connected so as to serve the Project without passing over other
property, except to the extent such other property is subject to a perpetual easement for such
utility benefiting the Project. All roads necessary for the full utilization of the Project for
its current purpose have been completed and dedicated to public use and accepted by all
governmental authorities.



Section 4.7 Location of Borrower. Borrower’s principal place of business and chief
executive offices are located at the address stated in Section 12.1 and, except as otherwise set
forth in Schedule 4.1, Borrower at all times has maintained its principal place of business
and chief executive office at such location or at other locations within the same state.



Section 4.8 ERISA.



(1) As of the Closing Date and throughout the term of the Loan, (a) Borrower is not and will
not be an “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA“), which is subject to Title I of ERISA, and
(b) the assets of Borrower do not and will not constitute “plan assets” of one or more such plans
for purposes of Title I of ERISA.



(2) As of the Closing Date and throughout the term of the Loan (a) Borrower is not and will
not be a “governmental plan” within the meaning of Section 3(3) of ERISA and (b) transactions by or
with Borrower are not and will not be subject to state statutes applicable to Borrower regulating
investments of and fiduciary obligations with respect to governmental plans.



(3) Borrower has no employees.



Section 4.9 Margin Stock. No part of proceeds of the Loan will be used for purchasing or
acquiring any “margin stock” within the meaning of Regulations T, U or X of the Board of Governors
of the Federal Reserve System.



Section 4.10 Tax Filings. Borrower and each Borrower Party have filed (or have obtained
effective extensions for filing) all federal, state and local tax returns required to be filed and
have paid or made adequate provision for the payment of all federal, state and local taxes, charges
and assessments payable by Borrower and each Borrower Party, respectively.



Section 4.11 Solvency. Giving effect to the Loan, the fair saleable value of Borrower’s
assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total
liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent
liabilities. The fair saleable value of Borrower’s assets is and will, immediately following the
making of the Loan, be greater than Borrower’s probable liabilities, including the maximum amount
of its contingent liabilities on its Debts as such Debts become absolute and matured. Borrower’s
assets do not and, immediately following the making of the Loan will not, constitute unreasonably
small capital to carry out its business as conducted or as proposed to be conducted. Borrower does
not intend to, and does not believe that it will, incur Debts and liabilities (including contingent
liabilities and other commitments) beyond its ability to pay such Debts as they mature (taking into
account the timing and amounts of cash to be received by Borrower and the amounts to be payable on
or in respect of obligations of Borrower). Except as expressly disclosed to Lender in writing, no
petition in bankruptcy has been filed by or against Borrower or any Borrower Party in the last
seven (7) years, and neither Borrower nor any Borrower Party in the last seven (7) years has ever
made an assignment for the benefit of creditors or taken advantage of any insolvency act for the
benefit of debtors. Neither Borrower nor any Borrower Party is contemplating either the filing of
a petition by it under state or federal bankruptcy or insolvency laws or the liquidation of all or
a major portion of its assets or property, and neither Borrower nor any Borrower Party has
knowledge of any Person contemplating the filing of any such petition against it.



Section 4.12 Full and Accurate Disclosure. No statement of fact made by or on behalf of
Borrower or any Borrower Party in this Agreement or in any of the other Loan Documents contains any
untrue statement of a material fact or omits to state any material fact necessary to make
statements contained herein or therein not misleading. There is no fact presently known to
Borrower which has not been disclosed to Lender which adversely affects, nor as far as Borrower can
foresee, might adversely affect, the Project or the business, operations or condition (financial or
otherwise) of Borrower or any Borrower Party. All information supplied by Borrower regarding any
other Collateral is accurate and complete in all material respects. All evidence of Borrower’s and
each Borrower Party’s identity provided to Lender is genuine, and all related information is
accurate.



Section 4.13 Single Purpose Entity. In order to maintain its status as a separate entity
and to avoid any confusion or potential consolidation with any Affiliate, Borrower represents and
warrants that in the conduct of its operations since its organization it has observed, and
covenants that it will continue to observe, the following:



(1) Limited Purpose. The sole purpose conducted or promoted by Borrower since its
organization and at least during the term of the Loan is to engage in the following activities:




(a) to acquire, own, hold, lease, operate, manage, maintain, develop and improve the
Project;




(b) to enter into and perform its obligations under the Loan Documents;




(c) to sell, transfer, service, convey, dispose of, pledge, assign, borrow money
against, finance, refinance or otherwise deal with the Project to the extent permitted under
the Loan Documents; and




(d) to engage in any lawful act or activity and to exercise any powers permitted to
limited liability companies organized under the laws of the State of Delaware that are
related or incidental to and necessary, convenient or advisable for the accomplishment of
the above mentioned purposes.



(2) Limitations on Debt, Actions. Notwithstanding anything to the contrary in the
Loan Documents or in any other document governing the formation, management or operation of
Borrower, Borrower shall not:




(a) guarantee any obligation of any Person, including any Affiliate, or become
obligated for the debts of any other Person or hold out its credit as being available to pay
the obligations of any other Person;




(b) engage, directly or indirectly, in any business other than as required or permitted
to be performed under this Section;




(c) incur, create or assume any Debt other than (A) the Loan and (B) unsecured trade
payables incurred in the ordinary course of its business ownership and operation of the
Project and which shall (1) not exceed two percent (2%) of the outstanding balance of the
Loan, (2) not be evidenced by a note, (3) be paid within sixty (60) days, and (4) otherwise
expressly be permitted under the Loan Documents; no Debt other than the Loan may be secured
(subordinate or pari passu) by the Project;




(d) make or permit to remain outstanding any loan or advance to, or own or acquire any
stock or securities of, any Person, except that Borrower may invest in those investments
permitted under the Loan Documents;




(e) to the fullest extent permitted by law, engage in any dissolution, liquidation,
consolidation, merger, sale or other transfer of any of its assets outside the ordinary
course of Borrower’s business;




(f) buy or hold evidence of indebtedness issued by any other Person (other than cash or
investment-grade securities);




(g) form, acquire or hold any subsidiary (whether corporate, partnership, limited
liability company or other) or own any equity interest in any other entity;




(h) own any asset or property other than the Project and incidental personal property
necessary for the ownership or operation of the Project; or




(i) take any Material Action (as defined below) without the unanimous written approval
of all members of Borrower and the Independent Director/Manager.



(3) Separateness. Notwithstanding anything to the contrary in the Loan Documents or
in any other document governing the formation, management or operation of Borrower, Borrower shall:




(a) maintain books and records and bank accounts separate from those of any other
Person;




(b) maintain its assets in such a manner that it is not costly or difficult to
segregate, identify or ascertain such assets;




(c) comply with all organizational formalities necessary to maintain its separate
existence;




(d) hold itself out to creditors and the public as a legal entity separate and distinct
from any other entity;




(e) maintain separate financial statements, showing its assets and liabilities separate
and apart from those of any other Person and not have its assets listed on any financial
statement of any other Person; except that Borrower’s assets may be included in a
consolidated financial statement of its Affiliate so long as appropriate notation is made on
such consolidated financial statements to indicate the separateness of Borrower from such
Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the
debts and other obligations of such Affiliate or any other Person;




(f) prepare and file its own tax returns separate from those of any Person to the
extent required by applicable law, and pay any taxes required to be paid by applicable law;




(g) allocate and charge fairly and reasonably any common employee or overhead shared
with Affiliates;




(h) not enter into any transaction with Affiliates except on an arm’s-length basis on
terms which are intrinsically fair and no less favorable than would be available for
unaffiliated third parties, and pursuant to written, enforceable agreements;




(i) conduct business in its own name, and use separate stationery, invoices and checks;




(j) not commingle its assets or funds with those of any other Person;




(k) not assume, guarantee or pay the debts or obligations of any other Person;




(l) correct any known misunderstanding as to its separate identity;




(m) not permit any Affiliate to guarantee or pay its obligations (other than limited
guarantees and indemnities set forth in the Loan Documents);




(n) not make loans or advances to any other Person;




(o) pay its liabilities and expenses out of and to the extent of its own funds;




(p) maintain a sufficient number of employees in light of its contemplated business
purpose and pay the salaries of its own employees, if any, only from its own funds;




(q) maintain adequate capital in light of its contemplated business purpose,
transactions and liabilities; provided, however, that the foregoing shall not require any
equity owner to make additional capital contributions to Borrower; and




(r) cause the managers, officers, employees, agents and other representatives of
Borrower to act at all times with respect to Borrower consistently and in furtherance of the
foregoing and in the best interests of Borrower.




Failure of Borrower to comply with any of the foregoing covenants or any other covenants
contained in this Agreement shall not affect the status of Borrower as a separate legal
entity.



(4) SPE Party. Unless Borrower is an Acceptable Delaware LLC, if Borrower is a
limited partnership or limited liability company, then Borrower shall at all times have a managing
member/general partner (which shall be its sole general partner) (“SPE Party”) with
provisions in its organizational documents limiting its purpose and authority to those set forth in
clauses (a) — (c) above, modified to allow such SPE Party to act as managing member/general partner
of Borrower and requiring it to have an Independent Director/Manager so long as any obligation
under the Loan remains outstanding, and to engage in no other business or activity.



(5) Independent Director/Manager. As long as any obligation under the Loan is
outstanding, the Borrower/SPE Party at all times shall have an Independent Director/Manager. To
the fullest extent permitted by law, the Independent Director/Manager shall consider only the
interests of the Borrower and its creditors in acting or otherwise voting on any Material Action.
No resignation or removal of an Independent Director/Manager, and no appointment of a successor
Independent Director/Manager, shall be effective until such successor shall have accepted his or
her appointment as an Independent Director/Manager by a written instrument. In the event of a
vacancy in the position of Independent Director/Manager, the Borrower or SPE Party shall, as soon
as practicable, appoint a successor Independent Director/Manager.



“Independent Director/Manager” means a natural Person who is not at the time of
initial appointment as a manager/director or at any time while serving as a manager/director of the
Borrower/SPE Party has not been at any time during the five (5) years preceding such initial
appointment:




(a) a stockholder, director, manager (with the exception of serving as an Independent
Director/Manager of the Borrower/SPE Party), officer, trustee, employee, partner, member,
attorney or counsel of the Borrower, or any Affiliate of either of them;




(b) a creditor, customer, supplier, or other Person who derives any of its purchases or
revenues from its activities with the Borrower or any Affiliate;




(c) a Person Controlling or under common Control with any Person excluded from serving
as Independent Director/Manager under (a) or (b); or




(d) a member of the immediate family by blood or marriage of any Person excluded from
serving as Independent Director/Manager under (a) or (b).



A natural Person who satisfies the foregoing definition other than subparagraph (ii) shall not be
disqualified from serving as an Independent Director/Manager of the Borrower/SPE Party if such
individual is an Independent Director/Manager provided by a nationally-recognized company that
provides professional independent managers/directors (a “Professional Independent
Director/Manager”) and other corporate services in the ordinary course of its business. A
natural Person who otherwise satisfies the foregoing definition other than subparagraph (a) by
reason of being the independent director or manager of a “special purpose entity” affiliated with
the Borrower shall not be disqualified from serving as an Independent Director/Manager of the
Borrower/SPE Party if such individual is either (i) a Professional Independent Director/Manager or
(ii) the fees that such individual earns from serving as independent manager of affiliates of the
Borrower in any given year constitute in the aggregate less than five percent (5%) of such
individual’s annual income for that year. Notwithstanding the immediately preceding sentence, an
Independent Director/Manager may not simultaneously serve as Independent Director/Manager of the
Borrower/SPE Party and independent manager or director of a special purpose entity that owns a
direct or indirect equity interest in the Borrower (other than the SPE Party’s interest in
Borrower).



For purposes of this paragraph, a “special purpose entity” is an entity whose organizational
documents contain restrictions on its activities and impose requirements intended to preserve such
entity’s separateness that are substantially similar to the special purpose provisions of this
Agreement.



“Material Action” means to file any insolvency, or reorganization case or proceeding,
to institute proceedings to have the Borrower or any SPE Party be adjudicated bankrupt or
insolvent, to institute proceedings under any applicable insolvency law, to seek any relief under
any law relating to relief from debts or the protection of debtors, to consent to the filing or
institution of bankruptcy or insolvency proceedings against the Borrower or any SPE Party, to file
a petition seeking, or consent to, reorganization or relief with respect to the Borrower or any SPE
Party under any applicable federal or state law relating to bankruptcy or insolvency, to seek or
consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian,
or any similar official of or for the Borrower or any SPE Party or a substantial part of its
property, to make any assignment for the benefit of creditors of the Borrower or any SPE Party, to
admit in writing the Borrower’s or any SPE Party inability to pay its debts generally as they
become due, or to take action in furtherance of any of the foregoing.



(6) Acceptable Delaware LLC Requirements. In the event Borrower or the SPE Party is a
limited liability company, then it must be an Acceptable Delaware LLC, and the limited liability
company agreement of Borrower or the SPE Party (as applicable) (the “LLC Agreement”) shall
provide that (i) upon the occurrence of any event that causes the last remaining member of Borrower
or the SPE Party (as applicable) (“Member”) to cease to be the member of Borrower or the
SPE Party (as applicable) (other than (A) upon an assignment by Member of all of its limited
liability company interest in Borrower or the SPE Party (as applicable) and the admission of the
transferee in accordance with the Loan Documents and the LLC Agreement, or (B) the resignation of
Member and the admission of an additional member of Borrower or the SPE Party (as applicable) in
accordance with the terms of the Loan Documents and the LLC Agreement), any Person acting as
Independent Director/Manager of Borrower or the SPE Party (as applicable) shall, without any action
of any other Person and simultaneously with the Member ceasing to be the member of Borrower or the
SPE Party (as applicable) automatically be admitted to Borrower or the SPE Party (as applicable) as
a member with a zero percent (0%) economic interest (“Special Member”) and shall continue
Borrower or the SPE Party (as applicable) without dissolution and (ii) Special Member may not
resign from Borrower or the SPE Party (as applicable) or transfer its rights as Special Member
unless (A) a successor Special Member has been admitted to Borrower or the SPE Party (as
applicable) as a Special Member in accordance with requirements of Delaware law and (B) after
giving effect to such resignation or transfer, there remains at least one Independent
Director/Manager of the SPE Party or Borrower (as applicable). The LLC Agreement shall further
provide that (i) Special Member shall automatically cease to be a member of Borrower or the SPE
Party (as applicable) upon the admission to Borrower or the SPE Party (as applicable) of the first
substitute member, (ii) Special Member shall be a member of Borrower or the SPE Party (as
applicable) that has no interest in the profits, losses and capital of Borrower or the SPE Party
(as applicable) and has no right to receive any distributions of the assets of Borrower or the SPE
Party (as applicable), (iii) pursuant to Section 18 301 of the Delaware Limited Liability Company
Act (the “Act”), Special Member shall not be required to make any capital contributions to
Borrower or the SPE Party (as applicable) and shall not receive a limited liability company
interest in Borrower or the SPE Party (as applicable), (iv) Special Member, in its capacity as
Special Member, may not bind Borrower or the SPE Party (as applicable) and (v) except as required
by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall
have no right to vote on, approve or otherwise consent to any action by, or matter relating to,
Borrower or the SPE Party (as applicable) including, without limitation, the merger, consolidation
or conversion of Borrower or the SPE Party (as applicable); provided, however, such prohibition
shall not limit the obligations of Special Member, in its capacity as Independent Director/Manager,
to vote on such matters required by the Loan Documents or the LLC Agreement. In order to implement
the admission to Borrower or the SPE Party (as applicable) of Special Member, Special Member shall
execute a counterpart to the LLC Agreement. Prior to its admission to Borrower or the SPE Party
(as applicable) as Special Member, Special Member shall not be a member of Borrower or the SPE
Party (as applicable), but Special Member may serve as an Independent Director/Manager of Borrower
or the SPE Party (as applicable).



(7) Upon the occurrence of any event that causes the Member to cease to be a member of
Borrower or the SPE Party (as applicable) to the fullest extent permitted by law, the personal
representative of Member shall, within ninety (90) days after the occurrence of the event that
terminated the continued membership of Member in Borrower or the SPE Party (as applicable) agree in
writing (i) to continue Borrower or the SPE Party (as applicable) and (ii) to the admission of the
personal representative or its nominee or designee, as the case may be, as a substitute member of
Borrower or the SPE Party (as applicable) effective as of the occurrence of the event that
terminated the continued membership of Member in Borrower or the SPE Party (as applicable). Any
action initiated by or brought against Member or Special Member under the United States Bankruptcy
Code or similar state insolvency laws shall not cause Member or Special Member to cease to be a
member of Borrower or the SPE Party (as applicable) and upon the occurrence of such an event, the
business of Borrower or the SPE Party (as applicable) shall continue without dissolution. The LLC
Agreement shall provide that each of Member and Special Member waives any right it might have to
agree in writing to dissolve Borrower or the SPE Party (as applicable) upon the occurrence of any
action initiated by or brought against Member or Special Member under the United States Bankruptcy
Code or similar state insolvency laws, or the occurrence of an event that causes Member or Special
Member to cease to be a member of Borrower or the SPE Party (as applicable).



“Acceptable Delaware LLC” shall mean a limited liability company formed under Delaware
law which has at least one springing member, which, upon the dissolution of all of the members or
the withdrawal or the disassociation of all of the members from such limited liability company,
shall immediately become the sole member of such limited liability company.



Section 4.14 Property Specific Representations. The management agreement for the
Project is in full force and effect and there is no default or violation by any party thereunder.



ARTICLE 5




ENVIRONMENTAL MATTERS




Section 5.1 Representations and Warranties on Environmental Matters. To Borrower’s
knowledge, except as set forth in the Site Assessment, (1) no Hazardous Material is now or was
formerly used, stored, generated, manufactured, installed, disposed of or otherwise present at or
about the Project or any property adjacent to the Project (except for cleaning and other products
currently used in connection with the routine maintenance or repair of the Project in full
compliance with Environmental Laws), (2) all permits, licenses, approvals and filings required by
Environmental Laws have been obtained, and the use, operation and condition of the Project do not,
and did not previously, violate any Environmental Laws, and (3) 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 Project concerning Hazardous Materials or Environmental Laws.



Section 5.2 Covenants on Environmental Matters.



(1) Borrower shall (a) comply strictly and in all respects with applicable Environmental Laws;
(b) notify Lender immediately upon Borrower’s discovery of any spill, discharge, release or
presence of any Hazardous Material at, upon, under, within, contiguous to or otherwise affecting
the Project; (c) promptly remove such Hazardous Materials and remediate the Project 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 Project or Borrower.



(2) Borrower shall not cause, shall prohibit any other Person within the control of Borrower
from causing, and shall use prudent, commercially reasonable efforts to prohibit other Persons
(including tenants) from causing (a) 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 Project or the transportation of any Hazardous Materials to or from the Project
(except for cleaning and other products used in connection with routine maintenance or repair of
the Project in full compliance with Environmental Laws), (b) any underground storage tanks to be
installed at the Project, or (c) any activity that requires a permit or other authorization under
Environmental Laws to be conducted at the Project.



(3) Borrower shall provide to Lender, at Borrower’s expense promptly upon the written request
of Lender from time to time (provided that Lender has a reasonable basis for requesting same), a
Site Assessment or, if required by Lender, an update to any existing Site Assessment (provided that
Lender has a reasonable basis for requiring same) 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 Project. Borrower 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 either information provided under Section 5.2(1), a
reasonable suspicion of Hazardous Materials at or near the Project, a breach of representations
under Section 5.1, or an Event of Default, in which case any such Site Assessment or update shall
be at Borrower’s expense.



(4) Within ninety (90) days after the date hereof, Borrower shall cause to be prepared by
environmental engineers approved by Lender and deliver to Lender, an Operations and Maintenance
Program for the removal or encapsulation of, or other action for handling, asbestos-containing
materials and lead-based paint at the Project (the “O&M Program”) which contains at a
minimum, the items recommended in the EPA’s guide to managing lead-based paint in buildings.
Borrower shall immediately implement the O&M Program. Prior to the commencement of any
construction, rehabilitation, modification or renovation at the Project, including any such work
which requires the removal of any materials or improvements of any kind in connection with the
vinyl floor tiles, wallboard compound, cementitious thermal insulation, cooling tower board, and
roofing materials, and other portions of any Project containing asbestos-containing materials (the
“Work”), all Work shall be implemented in accordance with the procedures and programs in
the O&M Program and all applicable governmental requirements. The O&M Program and work resulting
therefrom shall be conducted by an accredited, licensed, abatement contractor using
state-of-the-art work practices and procedures and shall include all monitoring and project
management performed by an accredited asbestos and lead-based paint consultant. Borrower shall
deliver to Lender promptly when available, copies of all reports, notices, submittals, permits,
licenses, and certificates relating to the O&M Program. Until all matters in the O&M Program have
been satisfied, Borrower shall deliver to Lender, on or before the first day of each Loan Year,
evidence of an annual inspection by the environmental engineers for the Project, addressing the
status of affected space requiring Work or other action with respect to Hazardous Materials.
Borrower shall follow the procedures of the O&M Program with respect to any additional Hazardous
Materials revealed by any annual inspection. All fees and expenses incurred for all such
inspections and review and approval of the O&M Program shall be paid by Borrower.



Section 5.3 Allocation of Risks and Indemnity. As between Borrower 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 Project, shall lie solely with
Borrower. Accordingly, Borrower 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.
Borrower 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 Borrower 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 (however, Borrower shall not be liable under such indemnification
to the extent such loss, liability, damage, claim, cost, or expense results solely from Lender’s
gross negligence or willful misconduct), under or on account of the Environmental Laws, including
the assertion of any lien thereunder, with respect to: (1) a breach of any representation,
warranty or covenant of Borrower contained in this Article 5; (2) any acts performed by Lender
pursuant to the provisions of this Article 5; (3) any discharge of Hazardous Materials, the threat
of discharge of any Hazardous Materials or the storage or presence of any Hazardous Materials
affecting the Project whether or not the same originates or emanates from the Project or any
contiguous real estate, including any loss of value of the Project as a result of the foregoing;
(4) 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; (5) 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 Project; and/or (6) any other environmental matter affecting
the Project within the jurisdiction of the Environmental Protection Agency, any other federal
agency or any state or local environmental agency. The foregoing notwithstanding, Borrower 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.
Borrower’s obligations under this Article 5 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 Project (by foreclosure, deed in lieu of foreclosure or otherwise). Notwithstanding the
foregoing, subject to the conditions specified below in this Section 5.3, Borrower shall not be
liable under this Section 5.3 for such indemnified matters directly created or arising from events
or conditions caused or created by Lender and first existing after Lender acquires title to the
Project by foreclosure or acceptance of a deed in lieu thereof, but only if (a) Borrower delivers
to Lender a current site assessment evidencing the presence of no Hazardous Materials on the
Project and no violation of any Environmental Laws with respect to the Project not more than
ninety (90) days and not less than thirty (30) days prior thereto, and (b) such loss, liability,
damage, claim, cost or expense does not directly or indirectly arise from or relate to any release
of or exposure to any Hazardous Material (including personal injury or damage to property),
non-compliance with any Environmental Laws, or remediation existing or occurring prior to the date
Lender acquires title to the Project.



Section 5.4 Lender’s Right to Protect Collateral. If (1) any discharge of Hazardous
Materials or the threat of a discharge of Hazardous Material affecting the Project occurs, whether
originating or emanating from the Project or any contiguous real estate, and/or (2) Borrower fails
to comply with any 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
Project 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 Borrower’s
noncompliance.



Section 5.5 No Waiver. Notwithstanding any provision in this Article 5 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.”



ARTICLE 6




LEASING MATTERS




Section 6.1 Representations and Warranties on Leases. Borrower, to its actual knowledge
and with inquiry, represents and warrants to Lender with respect to leases of the Project that, to
the best of Borrower’s knowledge: (1) the rent roll delivered to Lender is true and correct, and
the leases are valid and in full force and effect; (2) the leases (including amendments) are in
writing, and there are no oral agreements with respect thereto; (3) the copies of the leases
delivered to Lender are true and correct; (4) neither the landlord nor any tenant is in default
under any of the leases; (5) Borrower has no knowledge of any notice of termination or default with
respect to any lease (except as shown on the rent roll); (6) Borrower has not assigned or pledged
any of the leases, the rents or any interests therein except to Lender; (7) no tenant or other
party has an option to purchase all or any portion of the Project; (8) no tenant has the right to
terminate its lease prior to expiration of the stated term of such lease, unless otherwise
specified in the applicable lease agreement; and (9) no tenant has prepaid more than one month’s
rent in advance (except as shown on the rent roll and except for bona fide security deposits not in
excess of an amount equal to two month’s rent.



Section 6.2 Standard Lease Form; Approval Rights. All leases and other rental arrangements
shall in all respects be approved by Lender and shall be on a standard lease form approved by
Lender with no modifications (except as approved by Lender). Such lease form shall provide that
the tenant shall attorn to Lender, and that any cancellation, surrender, or amendment of such lease
without the prior written consent of Lender shall be voidable by Lender. Borrower shall hold, in
trust, all tenant security deposits in a segregated account, and, to the extent required by
applicable law, shall not commingle any such funds with any other funds of Borrower. Within ten
(10) days after Lender’s request, Borrower shall furnish to Lender a statement of all tenant
security deposits, and copies of all leases not previously delivered to Lender, certified by
Borrower as being true and correct. Notwithstanding anything contained in the Loan Documents,
Lender’s approval shall not be required for future leases or lease extensions if the following
conditions are satisfied: (1) there exists no Potential Default or Event of Default; (2) the lease
is on the standard lease form approved by Lender with no modifications (except for minor
modifications entered into in the ordinary course of business consistent with prudent property
management practices and not affecting the economic terms of the lease); (3) the lease does not
conflict with any restrictive covenant affecting the Project or any other lease for space in the
Project; and (4)  the lease is in accordance with the leasing parameters as Schedule 6.2
attached hereto. Leases that require the approval of Lender shall be submitted to Lender at least
ten (10) Business Days prior to the proposed execution date. All costs and expenses incurred by
Lender in its review and approval of any lease shall be paid by Borrower promptly upon request.



Section 6.3 Covenants. Borrower (1) shall perform the obligations which Borrower is
required to perform under the leases in accordance with prudent property management practices;
(2) shall enforce the obligations to be performed by the tenants in accordance with prudent
property management practices; (3) shall promptly furnish to Lender any notice of default or
termination received by Borrower from any tenant; (4) shall not collect any rents for more than
thirty (30) days in advance of the time when the same shall become due, except for bona fide
security deposits not in excess of an amount equal to two months rent; (5) shall not enter into any
ground lease or master lease of any part of the Project; (6) shall not further assign or encumber
any lease; (7) shall not, except with Lender’s prior written consent, cancel or accept surrender or
termination of any lease, except for default thereunder in accordance with prudent property
management practices; (8) shall not, except with Lender’s prior written consent, modify or amend
any lease (except for minor modifications and amendments entered into in the ordinary course of
business, consistent with prudent property management practices, not affecting the economic terms
of the lease); (9) shall assign to Lender any letter of credit evidencing a security deposit on
such terms as may be required by Lender and shall deliver the original of such letter(s) of credit
to Lender; (10) shall not lease, or permit the use of, any space in the Project as an on-site dry
cleaning plant operation; and (11) shall deposit with Lender any lease termination or cancellation
fee which shall be held by Lender in a rollover escrow fund for tenant improvements and leasing
commission costs pertaining to the applicable space. Any action in violation of clauses (5), (6),
(7), and (8) of this Section 6.3 shall be void at the election of Lender.



Section 6.4 Tenant Estoppels. At Lender’s request, which shall not occur more than once a
year, Borrower shall obtain and furnish to Lender, written estoppels in form and substance
reasonably satisfactory to Lender, executed by tenants under leases of any part of the Project and
confirming the term, rent, and other provisions and matters relating to the leases.



ARTICLE 7




FINANCIAL REPORTING




Section 7.1 Financial Statements.



(1) Monthly Reports. Within thirty (30) days after the end of each calendar month,
Borrower shall furnish to Lender a current (as of the calendar month just ended) balance sheet, a
detailed operating statement (showing monthly activity and year-to-date) stating Operating
Revenues, Operating Expenses and Net Cash Flow for the calendar month just ended, an updated rent
roll, and, as requested by Lender, a written statement setting forth any variance from the annual
budget, and if required by Lender, a general ledger, copies of bank statements and bank
reconciliations and other documentation supporting the information disclosed in the most recent
financial statements.



(2) Quarterly Reports. Within forty-five (45) days after the end of each calendar
quarter, Borrower shall furnish to Lender a detailed operating statement (showing quarterly
activity and year-to-date) stating Operating Revenues, Operating Expenses and Net Cash Flow for the
calendar quarter just ended.



(3) Annual Reports. Within ninety (90) days after the end of each fiscal year of
Borrower’s operation of the Project, or if commercially reasonably unavailable by such date, within
twenty (20) days after Borrower’s filing with the Internal Revenue Service, Borrower shall furnish
to Lender a current (as of the end of such fiscal year) balance sheet, a detailed operating
statement stating Operating Revenues, Operating Expenses and Net Cash Flow for each of Borrower and
the Project. Borrower’s annual financial statements shall include (a) a list of the tenants, if
any, occupying more than twenty percent (20%) of the total floor area of the Project, (b) a
breakdown showing the year in which each lease then in effect expires, and (c) a breakdown of the
percentage of total floor area of the Project and the percentage of base rent with respect to which
leases shall expire in each year, each such percentage to be expressed on both a per year and a
cumulative basis. If required by Lender upon the occurrence of an Event of Default, Borrower shall
provide audited financial statements audited by an independent public accountant reasonably
satisfactory to Lender and NNN 2003 Value Fund, LLC and NNN Realty Investors, Inc. to provide,
within thirty (30) days of Lender’s request, balance sheets in accordance with paragraph 2(d) of
the Joinder.



(4) Certification; Supporting Documentation. Except as provided in Section 7.1(1),
each such financial statement shall be in scope and detail satisfactory to Lender and certified by
the chief financial representative of Borrower.



(5) Tax Returns. Borrower shall furnish to Lender copies of Borrower’s filed federal,
state and (if applicable) local income tax returns for each taxable year (with all forms and
supporting schedules attached) within thirty (30) days after filing.



Section 7.2 Accounting Principles. All financial statements shall be prepared at
Borrower’s option on a Cash/Tax basis in accordance with sound accounting practices (relating to
the real estate industry) consistently applied or in accordance with generally accepted accounting
principles consistently applied and certified by the chief financial representative of Borrower.
In the event Lender reasonably believes Borrower’s financial statements, as provided, materially
misrepresent the financial condition of the Project or in the Event of Default or Potential
Default, then, upon prior notice from Lender, Borrower shall provide to Lender, at Borrower’s sole
cost and expense, financial statements for the Project, audited by an independent public accountant
satisfactory to Lender, in accordance with generally accepted accounting principles, consistently
applied from year to year within ninety (90) days of Lender’s request. If the financial statements
are prepared on an accrual basis, such statements shall be accompanied by a reconciliation to cash
basis accounting principles.



Section 7.3 Other Information. Borrower shall deliver to Lender such additional
information regarding Borrower, its subsidiaries, its business, any Borrower Party, and the Project
reasonably requested by Lender within thirty (30) days after Lender’s request therefor.



Section 7.4 Annual Budget. At least thirty (30) days prior to the commencement of each
fiscal year, Borrower shall provide to Lender its proposed annual capital improvements budget for
such fiscal year for Lender’s review and approval, and Borrower shall provide to Lender its
proposed annual operating budget for such fiscal year for Lender’s review. Borrower will provide
to Lender within thirty (30) days after the expiration of each fiscal year, its annual operating
and capital improvements budgets for the subsequent fiscal year.



Section 7.5 Audits. Lender’s employees and third party consultants shall be entitled to
perform such financial investigations and audits of Borrower’s books and records as Lender shall
deem necessary. Upon prior notice from Lender, Borrower shall permit Lender and Lender’s agents
and consultants to examine during normal business hours such records, books and papers of Borrower
which reflect upon its financial condition, the income and expenses relative to the Project and the
representations set forth in Article 9. Borrower authorizes Lender to communicate directly with
Borrower’s independent certified public accountants, if any, and authorizes such accountants to
disclose to Lender any and all financial statements and other supporting financial documents and
schedules, including copies of any management letter, with respect to the business, financial
condition and other affairs of Borrower.



ARTICLE 8




COVENANTS




	 	 	 
	
 
	 	Borrower covenants and agrees with Lender as follows:
	Section 8.1

	 	Due on Sale and Encumbrance; Transfers of Interests.
	
 
	 	 






(1) Without the prior written consent of Lender,




(a) no Transfer shall occur or be permitted, nor shall Borrower enter into any easement
or other agreement granting rights in or restricting the use or development of the Project,
except in the ordinary course of business of prudent property management provided that any
such agreement or easement shall not have a material adverse effect on the Project;




(b) no Transfer shall occur or be permitted which would (a) cause NNN 2003 Value Fund,
LLC (“Value Fund”) not to own 100% of the interest in Borrower and Triple Net
Properties, LLC not to be the manager of Value Fund and not to have the power to direct the
affairs of Borrower or (b) result in a new general partner, member or limited partner having
the ability to control the affairs of Borrower being admitted to or created in Borrower (or
result in any existing general partner or member or controlling limited partner withdrawing
from Borrower); and




(c) no Transfer shall occur or be permitted which, either alone or together with all
prior Transfers during the Loan term, would result in the Transfer of more than twenty-five
percent (25%) of the direct or indirect beneficial or other ownership interest in Borrower,
provided that Transfers of any or all membership interests in Value Fund shall be permitted
so long as the provisions of Section 8.1(1)(b) remain true and correct.



(2) As used in this Agreement, “Transfer“ shall mean any direct or indirect sale,
transfer, conveyance, installment sale, master lease, mortgage, pledge, encumbrance, grant of Lien
or other interest, license, lease, alienation or assignment, whether voluntary or involuntary, of
all or any portion of the direct or indirect legal or beneficial ownership of, or any interest in
(a) the Project or any part thereof, or (b) Borrower, including any agreement to transfer or cede
to another Person any voting, management or approval rights, or any other rights, appurtenant to
any such legal or beneficial ownership or other interest. “Transfer” is specifically intended to
include any pledge or assignment, directly or indirectly, of a controlling interest in Borrower or
its general partner, controlling limited partner or controlling member for purposes of securing
so-called “mezzanine” indebtedness. “Transfer” shall not include (i) the leasing of individual
units within the Project so long as Borrower complies with the provisions of the Loan Documents
relating to such leasing activity; or (ii) so long as the transfer does not violate the provisions
of Sections 8.1(b) and 8.1(c), and does not violate the provisions of Article 9 of the Loan
Agreement, (x) the transfer of limited partner or non-managing member interests in Borrower or
Value Fund and (y) in connection with the recapitalization of Value Fund, the transfer of all of
the ownership interests in Value Fund to a joint venture or other entity owned by Triple Net
Properties, LLC and an institutional investor approved by Lender (the “Recapitalization”).



(3) Without limiting the foregoing, Borrower further agrees that it will require each Person
that proposes to become a partner, member or shareholder (each such Person, an “Interest
Holder”) in Borrower after the Closing Date to sign and deliver to Borrower, within thirty (30)
days after such transfer (and Borrower shall deliver to Lender promptly after receipt), a
certificate executed by a duly authorized officer of the new Interest Holder containing
representations, warranties and covenants substantially the same as the representations, warranties
and covenants provided by Borrower in Article 9 hereof.



(4) Lender shall not be required to demonstrate any actual impairment of its security or any
increased risk of default hereunder in order to declare the Indebtedness immediately due and
payable upon Borrower’s sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of
the Project without Lender’s consent. This provision shall apply to every sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Project regardless of whether
voluntary or not, or whether or not Lender has consented to any previous sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Project.



(5) Lender’s consent to one sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer of the Project or any interest in Borrower shall not be deemed to be a waiver of Lender’s
right to require such consent to any future occurrence of same. Any sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Project made in contravention of this paragraph
shall be null and void and of no force and effect.



(6) Borrower agrees to bear and shall pay or reimburse Lender on demand for all reasonable
expenses (including, without limitation, reasonable attorneys’ fees and disbursements, title search
costs and title insurance endorsement premiums incurred by Lender in connection with the review,
approval and documentation of any such sale, conveyance, alienation, mortgage, encumbrance, pledge
or transfer.



(7) Lender’s consent to the sale or transfer of the Project will not be unreasonably withheld
after consideration of all relevant factors, provided that:




(a) no Event of Default or event which with the giving of notice or the passage of time
would constitute an Event of Default shall have occurred and remain uncured;




(b) the proposed transferee (“Transferee”) shall be a reputable entity or
person of good character, creditworthy, with sufficient financial worth considering the
obligations assumed and undertaken, as evidenced by financial statements and other
information reasonably requested by Lender and shall be a Single Purpose Entity;




(c) the Transferee and its property manager shall have sufficient experience in the
ownership and management of properties similar to the Project, and Lender shall be provided
with reasonable evidence thereof (and Lender reserves the right to approve the Transferee
without approving the substitution of the property manager);




(d) Lender shall have approved new indemnitors and joinder parties;




(e) the Transferee shall have executed and delivered to Lender an assumption agreement
in form and substance acceptable to Lender, evidencing such Transferee’s agreement to abide
and be bound by the terms of the Note, this Deed of Trust and the other Loan Documents,
together with such legal opinions and title insurance endorsements as may be reasonably
requested by Lender; and




(f) Lender shall have received an assumption fee equal to one percent (1%) of the then
unpaid principal balance of the Note in addition to the payment of all out-of-pocket costs
and expenses incurred by Lender in connection with such assumption (including reasonable
attorneys’ fees and costs); provided that, in the event that the Recapitalization occurs
during the first Loan Year, no such assumption or other fee shall be payable, but Borrower
shall be responsible for all of Lender’s out-of-pocket costs and expenses (including
reasonable attorneys’ fees and costs).



Section 8.2 Taxes; Charges. Borrower shall pay before any fine, penalty, interest or cost
may be added thereto, and shall not enter into any agreement to defer, any real estate taxes and
assessments, franchise taxes and charges, and other governmental charges that may become a Lien
upon the Project or become payable during the term of the Loan, and will promptly furnish Lender
with evidence of such payment, upon Lender’s request; however, Borrower’s compliance with
Section 3.4 of this Agreement relating to impounds for taxes and assessments shall, with respect to
payment of such taxes and assessments, be deemed compliance with this Section 8.2. Borrower shall
not suffer or permit the joint assessment of the Project with any other real property constituting
a separate tax lot or with any other real or personal property. Borrower shall pay when due all
claims and demands of mechanics, materialmen, laborers and others which, if unpaid, might result in
a Lien on the Project; however, Borrower may contest the validity of such claims and demands so
long as (1) Borrower notifies Lender that it intends to contest such claim or demand, (2) Borrower
provides Lender with an indemnity, bond or other security satisfactory to Lender (including an
endorsement to Lender’s title insurance policy insuring against such claim or demand) assuring the
discharge of Borrower’s obligations for such claims and demands, including interest and penalties,
and (3) Borrower is diligently contesting the same by appropriate legal proceedings in good faith
and at its own expense and concludes such contest prior to the tenth (10th) day preceding the
earlier to occur of the Maturity Date or the date on which the Project is scheduled to be sold for
non-payment.



Section 8.3 Control; Management. Without the prior written consent of Lender, there shall
be no change in the day-to-day control and management of Borrower or the sole member of Borrower,
and no change in their respective organizational documents relating to control over Borrower,
Borrower’s general partner or managing member and/or the Project. Borrower shall not terminate,
replace or appoint any property manager or terminate or amend the property management agreement for
the Project without Lender’s prior written approval. Any change in ownership or control of the
property manager shall be cause for Lender to re-approve such property manager and property
management agreement. Notwithstanding anything herein to the contrary, Lender acknowledges the
intended merger of NNN Realty Advisors, Inc. with Grubb & Ellis Company and has approved a change
in ownership or control of the property manager to Grubb & Ellis Company and the accompanying
change in property management agreement. Each property manager shall hold and maintain all
necessary licenses, certifications and permits required by law. Borrower shall fully perform all
of its covenants, agreements and obligations under the property management agreement. Any
management fee payable under the management agreement or otherwise in excess of three percent (3%)
of rental collections shall be payable only to the extent of Net Cash Flow following payment of
Debt Service and all escrows and impounds and Operating Expenses required hereunder, and shall be
subordinate to the Loan.



Section 8.4 Operation; Maintenance; Inspection. Borrower shall observe and comply with all
legal requirements applicable to its existence and to the ownership, use and operation of the
Project. Borrower shall maintain the Project in good condition and promptly repair any damage or
casualty. Borrower shall not, without the prior written consent of Lender, undertake any material
alteration of the Project or permit any of the fixtures or personalty owned by Borrower to be
removed at any time from the Project, unless the removed item is removed temporarily for
maintenance and repair or, if removed permanently, is obsolete and is replaced by an article of
equal or better suitability and value, owned by Borrower and free and clear of any Liens except
those in favor of Lender. Borrower shall permit Lender and its agents, representatives and
employees, upon reasonable prior notice to Borrower, to inspect the Project and conduct such
environmental and engineering studies as Lender may require, provided such inspections and studies
do not materially interfere with the use and operation of the Project.



Section 8.5 Taxes on Security. Borrower shall pay all taxes, charges, filing, registration
and recording fees, excises and levies payable with respect to the Note or the Liens created or
secured by the Loan Documents, other than income, franchise and doing business taxes imposed on
Lender. If there shall be enacted any law (1) deducting the Loan from the value of the Project for
the purpose of taxation, (2) affecting any Lien on the Project, or (3) changing existing laws of
taxation of mortgages, deeds of trust, security deeds, or debts secured by real property, or
changing the manner of collecting any such taxes, Borrower shall promptly pay to Lender, on demand,
all taxes, costs and charges for which Lender is or may be liable as a result thereof; however, if
such payment would be prohibited by law or would render the Loan usurious, then instead of
collecting such payment, Lender may declare all amounts owing under the Loan Documents to be
immediately due and payable.



Section 8.6 Legal Existence; Name, Etc. Borrower shall preserve and keep in full force
and effect its existence as, and at all times operate as, a Single Purpose Entity, and Borrower and
each general partner or managing member in Borrower shall preserve and keep in full force and
effect its entity status, franchises, rights and privileges under the laws of the state of its
formation, and all qualifications, licenses and permits applicable to the ownership, use and
operation of the Project. Neither Borrower nor any general partner or managing member of Borrower
shall wind up, liquidate, dissolve, reorganize, merge, or consolidate with or into any Person, or
permit any subsidiary or Affiliate of Borrower to do so. Without limiting the foregoing, Borrower
shall not reincorporate or reorganize itself under the laws of any jurisdiction other than the
jurisdiction in which it is incorporated or organized as of the Closing Date. Borrower and each
general partner or managing member in Borrower shall conduct business only in its own name and
shall not change its name, identity, organizational structure, state of formation or the location
of its chief executive office or principal place of business unless Borrower (1) shall have
obtained the prior written consent of Lender to such change, and (2) shall have taken all actions
necessary or requested by Lender to file or amend any financing statement or continuation statement
to assure perfection and continuation of perfection of security interests under the Loan Documents.
Borrower (and each general partner or managing member in Borrower, if any) shall maintain its
separateness as an entity, including maintaining separate books, records, and accounts and
observing corporate and partnership formalities independent of any other entity, shall pay its
obligations with its own funds and shall not commingle funds or assets with those of any other
entity. If Borrower does not have an organizational identification number and later obtains one,
Borrower shall promptly notify Lender of its organizational identification number.



Section 8.7 Affiliate Transactions. Without the prior written consent of Lender, Borrower
shall not engage in any transaction affecting the Project with an Affiliate of Borrower or of any
Borrower Party.



Section 8.8 Limitation on Other Debt. Borrower (and each general partner or managing
member in Borrower, if any) shall not, without the prior written consent of Lender, incur any Debt
other than the Loan and customary trade payables which are payable, and shall be paid, within
sixty (60) days of when incurred.



Section 8.9 Further Assurances. Borrower shall promptly (1) cure any defects in the
execution and delivery of the Loan Documents, (2) provide, and to cause each Borrower Party to
provide, Lender such additional information and documentation on Borrower’s and each Borrower
Party’s legal or beneficial ownership, policies, procedures and sources of funds as Lender deems
necessary or prudent to enable Lender to comply with Anti-Money Laundering Laws as now in existence
or hereafter amended, and (3) execute and deliver, or cause to be executed and delivered, all such
other documents, agreements and instruments as Lender may reasonably request to further evidence
and more fully describe the collateral for the Loan, to correct any omissions in the Loan
Documents, to perfect, protect or preserve any Liens created under any of the Loan Documents, or to
make any recordings, file any notices, or obtain any consents, as may be necessary or appropriate
in connection therewith. From time to time upon the written request of Lender, Borrower shall
deliver to Lender a schedule of the name, legal domicile address and jurisdiction of organization,
if applicable, for each Borrower Party and each holder of a legal interest in Borrower.



Section 8.10 Estoppel Certificates. Borrower, within ten (10) days after reasonable
request, shall furnish to Lender a written statement, duly acknowledged, setting forth the amount
due on the Loan, the terms of payment of the Loan, the date to which interest has been paid,
whether any offsets or defenses exist against the Loan and, if any are alleged to exist, the nature
thereof in detail, and such other matters as Lender reasonably may request.



Section 8.11 Notice of Certain Events. Borrower shall promptly notify Lender of (1) any
Potential Default or Event of Default, together with a detailed statement of the steps being taken
to cure such Potential Default or Event of Default; (2) any notice of default received by Borrower
under other obligations relating to the Project or otherwise material to Borrower’s business; and
(3) any threatened or pending legal, judicial or regulatory proceedings, including any dispute
between Borrower and any governmental authority, affecting Borrower or the Project.



Section 8.12 Indemnification. Unless caused by Lender’s gross negligence or willful
misconduct, except to the extent caused by Lender’s gross negligence or willful misconduct,
Borrower shall indemnify, defend and hold Lender harmless from and against any and all losses,
liabilities, claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs
and disbursements (including without limitation, those arising from the joint, concurrent or
comparative negligence of Lender, except to the extent any of the foregoing is caused by Lender’s
gross negligence or willful misconduct), and the reasonable fees and actual expenses of Lender’s
counsel, of any kind or nature whatsoever, including those arising from the joint, concurrent, or
comparative negligence of Lender, in connection with (1) any inspection, review or testing of or
with respect to the Project, (2) any investigative, administrative, mediation, arbitration, or
judicial proceeding, whether or not Lender is designated a party thereto, commenced or threatened
at any time (including after the repayment of the Loan) in any way related to the execution,
delivery or performance of any Loan Document or to the Project, (3) any proceeding instituted by
any Person claiming a Lien, and (4) any brokerage commissions or finder’s fees claimed by any
broker or other party in connection with the Loan, the Project, or any of the transactions
contemplated in the Loan Documents, except to the extent any of the foregoing is caused by Lender’s
gross negligence or willful misconduct.



Section 8.13 Application of Operating Revenues. Borrower shall apply all Operating
Revenues to the payment of Debt Service and other payments due under the Loan Documents, taxes,
assessments, water charges, sewer rents and other governmental charges levied, assessed or imposed
against the Project, insurance premiums, operations and maintenance charges relating to the
Project, and other obligations of the lessor under leases of space at the Project, before using
Operating Revenues for any other purpose.



Section 8.14 Representations and Warranties. Borrower will cause all representations and
warranties to remain true and correct all times while any portion of the Loan remains outstanding.



Section 8.15 Post-Closing Work. Borrower shall complete (i) the Required Repairs in
accordance with Section 2.1(2) on or before ninety (90) days following the Closing Date and (ii)
the O&M Program in accordance with Section 5.2(4).



Section 8.16 Property Specific Covenants. Triple Net Properties, LLC and Affiliates
shall comply with all investigation requests of the Securities Exchange Commission and any state
securities agencies regarding the matters which are the subject of the SEC Investigation and any
final unappealable orders, settlement agreements, or similar documents issued in connection with
the SEC Investigation, and shall maintain an ongoing full disclosure and cooperation policy with
Lender relating to all such matters during the Loan term.



ARTICLE 9




ANTI-MONEY LAUNDERING AND




INTERNATIONAL TRADE CONTROLS




Section 9.1 Compliance with International Trade Control Laws and OFAC Regulations.
Borrower represents, warrants and covenants to Lender that:



(1) It is not now nor shall it be at any time until after the Loan is fully repaid a Person
with whom a U.S. Person, including a Financial Institution, is prohibited from transacting business
of the type contemplated by this Agreement, whether such prohibition arises under U.S. law,
regulation, executive orders and lists published by the OFAC (including those executive orders and
lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or
otherwise.



(2) No Borrower Party and no Person who owns a direct interest in Borrower is now nor shall be
at any time until after the Loan is fully repaid a Person with whom a U.S. Person, including a
Financial Institution, is prohibited from transacting business of the type contemplated by this
Agreement, whether such prohibition arises under U.S. law, regulation, executive orders and lists
published by the OFAC (including those executive orders and lists published by OFAC with respect to
Specially Designated Nationals and Blocked Persons) or otherwise.



Section 9.2 Borrower’s Funds. Borrower represents, warrants and covenants to Lender that:



(1) It has taken, and shall continue to take until after the Loan is fully repaid, such
measures as are required by law to verify that the funds invested in the Borrower are derived
(a) from transactions that do not violate U.S. law nor, to the extent such funds originate outside
the United States, do not violate the laws of the jurisdiction in which they originated; and
(b) from permissible sources under U.S. law and to the extent such funds originate outside the
United States, under the laws of the jurisdiction in which they originated.



(2) To the best of its knowledge, neither Borrower, nor any Borrower Party, nor any holder of
a direct interest in Borrower, nor any Person providing funds to Borrower (a) is under
investigation by any governmental authority for, or has been charged with, or convicted of, money
laundering, drug trafficking, terrorist-related activities, any crimes which in the United States
would be predicate crimes to money laundering, or any violation of any Anti-Money Laundering Laws;
(b) has been assessed civil or criminal penalties under any Anti-Money Laundering Laws; and (c) has
had any of its/his/her funds seized or forfeited in any action under any Anti-Money Laundering
Laws.



(3) Borrower shall make payments on the Loan using funds invested in Borrower, Operating
Revenues or insurance proceeds unless otherwise agreed to by Lender.



(4) To the best of Borrower’s knowledge, as of the Closing Date and at all times during the
term of the Loan, all Operating Revenues are and will be derived from lawful business activities of
Project tenants or other permissible sources under U.S. law.



(5) On the Maturity Date, Borrower will take reasonable steps to verify that funds used to
repay the Loan in full (whether in connection with a refinancing, asset sale or otherwise) are from
sources permissible under U.S. law and to the extent such funds originate outside the United
States, permissible under the laws of the jurisdiction in which they originated.



ARTICLE 10




EVENTS OF DEFAULT




Each of the following shall constitute an Event of Default under the Loan:



Section 10.1 Payments. Borrower’s failure to pay any regularly scheduled installment of
principal, interest or other amount due under the Loan Documents within five (5) days after the
date when due, or Borrower’s failure to pay the Loan at the Maturity Date, whether by acceleration
or otherwise.



Section 10.2 Insurance. Borrower’s failure to maintain insurance as required under
Section 3.1 of this Agreement.



Section 10.3 Transfer. Any Transfer occurs in violation of Section 8.1 of this Agreement.



Section 10.4 Covenants. Borrower’s failure to perform, observe or comply with any of the
agreements, covenants or provisions contained in this Agreement or in any of the other Loan
Documents (other than those agreements, covenants and provisions referred to elsewhere in this
Article 10), and the continuance of such failure for ten (10) days after written notice by Lender
to Borrower; however, subject to any shorter period for curing any failure by Borrower as specified
in any of the other Loan Documents, Borrower shall have an additional sixty (60) days to cure such
failure if (1) such failure does not involve the failure to make payments on a monetary obligation;
(2) such failure cannot reasonably be cured within ten (10) days but, using reasonable diligence,
is curable within such 60-day period; (3) Borrower is diligently undertaking to cure such default,
and (4) Borrower has provided Lender with security reasonably satisfactory to Lender against any
interruption of payment or impairment of collateral as a result of such continuing failure. The
notice and cure provisions of this Section 10.4 do not apply to the other Events of Default
described in this Article 10 or to Borrower’s failure to perform, observe or comply with any of the
agreements, covenants or provisions contained in Article 9 (for which no notice and cure period
shall apply).



Section 10.5 Representations and Warranties. Any representation or warranty made in any
Loan Document proves to be untrue in any material respect when made or deemed made.



Section 10.6 Other Encumbrances. Any default under any document or instrument, other than
the Loan Documents, evidencing or creating a Lien on the Project or any part thereof.



Section 10.7 Involuntary Bankruptcy or Other Proceeding. Commencement of an involuntary
case or other proceeding against Borrower, any Borrower Party or any other Person having an
ownership or, other than Lender, security interest in the Project (each, a “Bankruptcy
Party”) which seeks liquidation, reorganization or other relief with respect to it or its Debts
or other liabilities under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeks the appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any of its property, and such involuntary case or other proceeding shall remain
undismissed or unstayed for a period of sixty (60) days; or an order for relief against a
Bankruptcy Party shall be entered in any such case under the Federal Bankruptcy Code.



Section 10.8 Voluntary Petitions, Etc. Commencement by a Bankruptcy Party of a voluntary
case or other proceeding seeking liquidation, reorganization or other relief with respect to itself
or its Debts or other liabilities under any bankruptcy, insolvency or other similar law or seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar official for it or
any of its property, or consent by a Bankruptcy Party to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other proceeding commenced
against it, or the making by a Bankruptcy Party of a general assignment for the benefit of
creditors, or the failure by a Bankruptcy Party, or the admission by a Bankruptcy Party in writing
of its inability, to pay its debts generally as they become due, or any action by a Bankruptcy
Party to authorize or effect any of the foregoing.



Section 10.9 Future Advance. Any attempt by Borrower to terminate the Mortgage with
respect to future advances or future obligations.



ARTICLE 11




REMEDIES




Section 11.1 Remedies — Insolvency Events. Upon the occurrence of any Event of Default
described in Section 10.7 or 10.8, the obligations of Lender to advance amounts hereunder shall
immediately terminate, and all amounts due under the Loan Documents immediately shall become due
and payable, all without written notice and without presentment, demand, protest, notice of protest
or dishonor, notice of intent to accelerate the maturity thereof, notice of acceleration of the
maturity thereof, or any other notice of default of any kind, all of which are hereby expressly
waived by Borrower; however, if the Bankruptcy Party under Section 10.7 or 10.8 is other than
Borrower, then all amounts due under the Loan Documents shall become immediately due and payable at
Lender’s election, in Lender’s sole discretion.



Section 11.2 Remedies - Other Events. Except as set forth in Section 11.1 above, while any
Event of Default exists, Lender may (1) by written notice to Borrower, declare the entire Loan to
be immediately due and payable without presentment, demand, protest, notice of protest or dishonor,
notice of intent to accelerate the maturity thereof, notice of acceleration of the maturity
thereof, or other notice of default of any kind, all of which are hereby expressly waived by
Borrower, (2) terminate the obligation, if any, of Lender to advance amounts hereunder, and
(3) exercise all rights and remedies therefor under the Loan Documents and at law or in equity.



Section 11.3 Lender’s Right to Perform the Obligations. If Borrower shall fail, refuse or
neglect to make any payment or perform any act required by the Loan Documents, then while any Event
of Default exists, and without notice to or demand upon Borrower and without waiving or releasing
any other right, remedy or recourse Lender may have because of such Event of Default, Lender may
(but shall not be obligated to) make such payment or perform such act for the account of and at the
expense of Borrower, and shall have the right to enter upon the Project for such purpose and to
take all such action thereon and with respect to the Project as it may deem necessary or
appropriate. If Lender shall elect to pay any sum due with reference to the Project, Lender may do
so in reliance on any bill, statement or assessment procured from the appropriate governmental
authority or other issuer thereof without inquiring into the accuracy or validity thereof.
Similarly, in making any payments to protect the security intended to be created by the Loan
Documents, Lender shall not be bound to inquire into the validity of any apparent or threatened
adverse title, lien, encumbrance, claim or charge before making an advance for the purpose of
preventing or removing the same. Borrower shall indemnify, defend and hold Lender harmless from
and against any and all losses, liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements of any kind or nature whatsoever, including
reasonable attorneys’ fees, incurred or accruing by reason of any acts performed by Lender pursuant
to the provisions of this Section 11.3, including those arising from the joint, concurrent, or
comparative negligence of Lender, except as a result of Lender’s gross negligence or willful
misconduct. All sums paid by Lender pursuant to this Section 11.3 and all other sums expended by
Lender to which it shall be entitled to be indemnified, together with interest thereon at the
Default Rate from the date of such payment or expenditure until paid, shall constitute additions to
the Loan, shall be secured by the Loan Documents and shall be paid by Borrower to Lender upon
demand.



ARTICLE 12




MISCELLANEOUS




Section 12.1 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 12.1). 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 Borrower:	 	NNN VF 7777 Bonhomme Avenue, LLC
	 	 	c/o Triple Net Properties, LLC
	 	 	1551 N. Tustin, Suite 200
	 	 	Santa Ana, California 92705
	
 
	 	Attention:

Telecopy:
	 	Richard Hutton

(714)      -     






E-Mail: rhutton@1031nnn.com



	 	 	 	 	 	 	 	 	 
	with a courtesy copy to:
	 	Joseph McQuade, Esq.	 	 	 	 
	 
	 	Gregory Kaplan, PLC	 	 	 	 
	 
	 	7 East Second Street	 	 	 	 
	 
	 	Richmond, Virginia 23224	 	 	 	 
	 
	 	Telecopy:  (804) 916-9127	 	 	 	 
	 	 	E-Mail: jmcquade@gregkaplaw.com
	If to Lender:	 	General Electric Capital Corporation
	 	 	16479 Dallas Parkway, Suite 500
	 
	 	Two Bent Tree Tower	 	 	 	 
	 	 	Addison, Texas 75001-2512
	 	 	Attention: Asset Manager/The Sevens Building
	 
	 	Telecopy:	 	 	(972) 728-7640	 






E-Mail: sherri.jardine@gecapital.com



Any notice so addressed and sent by United States 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
(except as otherwise provided in the Mortgage). Any notice so delivered in person shall be deemed
to be given when receipted for by, or actually received by Lender or Borrower, 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 12.1. 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 12.1. 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.



Section 12.2 Amendments and Waivers; References. No amendment or waiver of any provision
of the Loan Documents shall be effective unless in writing and signed by the party against whom
enforcement is sought. This Agreement and the other Loan Documents shall not be executed, entered
into, altered, amended, or modified by electronic means. Without limiting the generality of the
foregoing, the Borrower and Lender hereby agree that the transactions contemplated by this
Agreement shall not be conducted by electronic means, except as specifically set forth in
Section 12.1 regarding notices. Any reference to a Loan Document, whether in this Agreement or in
any other Loan Document, shall be deemed to be a reference to such Loan Document as it may
hereafter from time to time be amended, modified, supplemented and restated in accordance with the
terms hereof.



Section 12.3 Limitation on Interest. It is the intention of the parties hereto to conform
strictly to applicable usury laws. Accordingly, all agreements between Borrower and Lender with
respect to the Loan are hereby expressly limited so that in no event, whether by reason of
acceleration of maturity or otherwise, shall the amount paid or agreed to be paid to Lender or
charged by Lender for the use, forbearance or detention of the money to be lent hereunder or
otherwise, exceed the maximum amount allowed by law. If the Loan would be usurious under
applicable law, then, notwithstanding anything to the contrary in the Loan Documents: (1) the
aggregate of all consideration which constitutes interest under applicable law that is contracted
for, taken, reserved, charged or received under the Loan Documents shall under no circumstances
exceed the maximum amount of interest allowed by applicable law, and any excess shall be credited
on the Note by the holder thereof (or, if the Note has been paid in full, refunded to Borrower);
and (2) if maturity is accelerated by reason of an election by Lender, or in the event of any
prepayment, then any consideration which constitutes interest may never include more than the
maximum amount allowed by applicable law. In such case, excess interest, if any, provided for in
the Loan Documents or otherwise, to the extent permitted by applicable law, shall be amortized,
prorated, allocated and spread from the date of advance until payment in full so that the actual
rate of interest is uniform through the term hereof. If such amortization, proration, allocation
and spreading is not permitted under applicable law, then such excess interest shall be canceled
automatically as of the date of such acceleration or prepayment and, if theretofore paid, shall be
credited on the Note (or, if the Note has been paid in full, refunded to Borrower). The terms and
provisions of this Section 12.3 shall control and supersede every other provision of the Loan
Documents. If at any time the laws of the United States of America permit Lender to contract for,
take, reserve, charge or receive a higher rate of interest than is allowed by applicable state law
(whether such federal laws directly so provide or refer to the law of any state), then such federal
laws shall to such extent govern as to the rate of interest which Lender may contract for, take,
reserve, charge or receive under the Loan Documents.



Section 12.4 Invalid Provisions. If any provision of any Loan Document is held to be
illegal, invalid or unenforceable, such provision shall be fully severable; the Loan Documents
shall be construed and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part thereof; the remaining provisions thereof shall remain in full effect and shall
not be affected by the illegal, invalid, or unenforceable provision or by its severance therefrom;
and in lieu of such illegal, invalid or unenforceable provision there shall be added automatically
as a part of such Loan Document a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible to be legal, valid and enforceable.



Section 12.5 Reimbursement of Expenses. Borrower shall pay all costs and expenses incurred
by Lender in connection with the negotiation, documentation, closing, disbursement and
administration of the Loan, excluding routine loan administration costs, but including fees and
out-of-pocket expenses of Lender’s attorneys and Lender’s environmental, engineering, accounting
and other consultants; fees, charges and taxes for the recording or filing of Loan Documents;
financial investigation, audit and inspection fees and costs; settlement of condemnation and
casualty awards; title search costs, premiums for title insurance and endorsements thereto; and
fees and costs for UCC and litigation searches and background checks. Borrower shall, upon
request, promptly reimburse Lender for all amounts expended, advanced or incurred by Lender to
collect the Note, or to enforce the rights of Lender under this Agreement or any other Loan
Document, or to defend or assert the rights and claims of Lender under the Loan Documents or with
respect to the Project (by litigation or other proceedings), which amounts will include all court
costs, reasonable attorneys’ fees and expenses, fees of auditors and accountants, and investigation
expenses as may be incurred by Lender in connection with any such matters (whether or not
litigation is instituted), together with interest at the Default Rate on each such amount from the
date of disbursement until the date of reimbursement to Lender, all of which shall constitute part
of the Loan and shall be secured by the Loan Documents.



Section 12.6 Approvals; Third Parties; Conditions. All rights retained or exercised by
Lender to review or approve leases, contracts, plans, studies and other matters, including
Borrower’s and any other Person’s compliance with the provisions of Article 9 and compliance with
laws applicable to Borrower, the Project or any other Person, are solely to facilitate Lender’s
credit underwriting, and shall not be deemed or construed as a determination that Lender has passed
on the adequacy thereof for any other purpose and may not be relied upon by Borrower or any other
Person. This Agreement is for the sole and exclusive use of Lender and Borrower and may not be
enforced, nor relied upon, by any Person other than Lender and Borrower. All conditions of the
obligations of Lender hereunder, including the obligation to make advances, are imposed solely and
exclusively for the benefit of Lender, its successors and assigns, and no other Person shall have
standing to require satisfaction of such conditions or be entitled to assume that Lender will
refuse to make advances in the absence of strict compliance with any or all of such conditions, and
no other Person shall, under any circumstances, be deemed to be a beneficiary of such conditions,
any and all of which may be freely waived in whole or in part by Lender at any time in Lender’s
sole discretion.



Section 12.7 Lender Not in Control; No Partnership. None of the covenants or other
provisions contained in this Agreement shall, or shall be deemed to, give Lender the right or power
to exercise control over the affairs or management of Borrower, the power of Lender being limited
to the rights to exercise the remedies referred to in the Loan Documents. The relationship between
Borrower and Lender is, and at all times shall remain, solely that of debtor and creditor. No
covenant or provision of the Loan Documents is intended, nor shall it be deemed or construed, to
create a partnership, joint venture, agency or common interest in profits or income between Lender
and Borrower or to create an equity in the Project in Lender. Lender neither undertakes nor
assumes any responsibility or duty to Borrower or to any other Person with respect to the Project
or the Loan, except as expressly provided in the Loan Documents; and notwithstanding any other
provision of the Loan Documents: (1) Lender is not, and shall not be construed as, a partner,
joint venturer, alter ego, manager, controlling person or other business associate or participant
of any kind of Borrower or its stockholders, members, or partners and Lender does not intend to
ever assume such status; (2) Lender shall in no event be liable for any Debts, expenses or losses
incurred or sustained by Borrower; and (3) Lender shall not be deemed responsible for or a
participant in any acts, omissions or decisions of Borrower or its stockholders, members, or
partners. Lender and Borrower disclaim any intention to create any partnership, joint venture,
agency or common interest in profits or income between Lender and Borrower, or to create any equity
in the Project in Lender, or any sharing of liabilities, losses, costs or expenses.



Section 12.8 Time of the Essence. Time is of the essence with respect to this Agreement.



Section 12.9 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of Lender and Borrower and the respective successors and assigns of Lender and Borrower,
provided that neither Borrower nor any other Borrower Party shall, without the prior written
consent of Lender, assign any rights, duties or obligations hereunder.



Section 12.10 Renewal, Extension or Rearrangement. All provisions of the Loan Documents
shall apply with equal effect to each and all promissory notes and amendments thereof hereinafter
executed which in whole or in part represent a renewal, extension, increase or rearrangement of the
Loan. For portfolio management purposes, at any time during the term of the Loan Lender may elect
to divide the Loan into two or more separate loans evidenced by separate promissory notes so long
as the payment and other obligations of Borrower are not effectively increased or otherwise
modified. Borrower agrees to cooperate with Lender and to execute such documents as Lender
reasonably may request to effect such division of the Loan.



Section 12.11 Sale of Loan, Participation. Lender, at any time and without the consent of
Borrower or any Borrower Party, may grant participations in or sell, transfer, assign and convey
all or any portion of its right, title and interest in and to the Loan, this Agreement and the
other Loan Documents and any collateral given to secure the Loan. Lender shall have the right (but
shall be under no obligation) to make available to any party for the purpose of granting
participations in or selling, transferring, assigning or conveying all or any part of the Loan
(including any governmental agency or authority and any prospective bidder at any foreclosure sale
of the Project) any and all information which Lender may have with respect to the Project, Borrower
and any Borrower Party, whether provided by Borrower, any Borrower Party or any third party, or
obtained as a result of any environmental assessments. Borrower and each Borrower Party agrees
that Lender shall have no liability whatsoever as a result of delivering any such information to
any third party, and Borrower and the other Borrower Parties, on behalf of themselves and their
successors and assigns, hereby release and discharge Lender from any and all liabilities, claims,
damages, or causes of action arising out of, connected with or incidental to the delivery of any
such information to any third party.



Section 12.12 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 under any of the Loan Documents, shall operate as a waiver
thereof.



Section 12.13 Cumulative Rights. Rights and remedies of Lender under the Loan Documents
shall be cumulative, and the exercise or partial exercise of any such right or remedy shall not
preclude the exercise of any other right or remedy.



Section 12.14 Singular and Plural. Words used in this Agreement and the other Loan
Documents in the singular, where the context so permits, shall be deemed to include the plural and
vice versa. The definitions of words in the singular in this Agreement and the other Loan
Documents shall apply to such words when used in the plural where the context so permits and vice
versa.



Section 12.15 Phrases. When used in this Agreement and the other Loan Documents, the
phrase “including” shall mean “including, but not limited to,” the phrase “satisfactory to Lender”
shall mean “in form and substance satisfactory to Lender in all respects,” the phrase “with
Lender’s consent” or “with Lender’s approval” shall mean such consent or approval at Lender’s sole
discretion, and the phrase “acceptable to Lender” shall mean “acceptable to Lender at Lender’s sole
discretion.”



Section 12.16 Exhibits and Schedules. The exhibits and schedules attached to this
Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes
stated herein.



Section 12.17 Titles of Articles, Sections and Subsections. All titles or headings to
articles, sections, subsections or other divisions of this Agreement and the other Loan Documents
or the exhibits hereto and thereto are only for the convenience of the parties and shall not be
construed to have any effect or meaning with respect to the other content of such articles,
sections, subsections or other divisions, such other content being controlling as to the agreement
between the parties hereto.



Section 12.18 Promotional Material. Borrower authorizes Lender to issue press releases,
advertisements and other promotional materials in connection with Lender’s own promotional and
marketing activities, and describing the Loan in general terms or in detail and Lender’s
participation in the Loan, provided that all references to Borrower contained in any such press
releases, advertisements or promotional materials shall be approved in writing by Borrower in
advance of issuance. All references to Lender contained in any press release, advertisement or
promotional material issued by Borrower shall be approved in writing by Lender in advance of
issuance.



Section 12.19 Survival. All of the representations, warranties, covenants, and indemnities
hereunder, and under the indemnification provisions of the other Loan Documents, shall survive the
repayment in full of the Loan and the release of the liens evidencing or securing the Loan, and
shall survive the transfer (by sale, foreclosure, conveyance in lieu of foreclosure or otherwise)
of any or all right, title and interest in and to the Project to any party, whether or not an
Affiliate of Borrower.



Section 12.20 WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER 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 OTHER LOAN DOCUMENT, 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 UNDER
THE LOAN DOCUMENTS OR IN ANY WAY RELATING TO THE LOAN OR THE PROJECT (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 ENTER THIS AGREEMENT.



Section 12.21 Punitive or Consequential Damages; Waiver. Neither Lender nor Borrower shall
be responsible or liable to the other or to any other Person for any punitive, exemplary or
consequential damages which may be alleged as a result of the Loan or the transaction contemplated
hereby, including any breach or other default by any party hereto. Borrower represents and
warrants to Lender that as of the Closing Date neither Borrower nor any Borrower Party has any
claims against Lender in connection with the Loan.



Section 12.22 Governing Law. The Loan Documents are being executed and delivered, and are
intended to be performed, in the state of Missouri and the laws of the state of Missouri and of the
United States of America shall govern the rights and duties of the parties hereto and the validity,
construction, enforcement and interpretation of the Loan Documents, except to the extent otherwise
specified in any of the Loan Documents.



Section 12.23 Entire Agreement. This Agreement and the other Loan Documents embody the
entire agreement and understanding between Lender and Borrower and supersede all prior agreements
and understandings between such parties relating to the subject matter hereof and thereof,
including any commitment letter (if any) issued by Lender and any confidentiality agreement
previously signed by Lender with respect to the Loan. Accordingly, the Loan Documents may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties. If any conflict or inconsistency
exists between this Agreement and any of the other Loan Documents, the terms of this Agreement
shall control. 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 Agreement, the Loan Documents and
the Environmental Indemnity Agreement, which is the complete and exclusive statement of the
agreement between us, except as we may later agree in writing to modify it.



Section 12.24 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall constitute an original, but all of which shall constitute one document.



Section 12.25 Representations of Credit in Writing. Pursuant to R.S.Mo. Section
432.045 Borrower and Lender agree as follows:



Oral agreements or commitments to loan money, extend credit or to forbear 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.



ARTICLE 13




LIMITATIONS ON LIABILITY




Section 13.1 Limitation on Liability.



(1) Except as provided below in this Section 13.1, Borrower shall not be personally liable for
amounts due under the Loan Documents.



(2) Borrower shall be personally liable to Lender for any deficiency, loss or damage suffered
by Lender because of: (a) Borrower’s commission of a criminal act, (b) the failure by Borrower or
any Borrower Party to apply any funds derived from the Project, including Operating Revenues,
security deposits, insurance proceeds and condemnation awards, as required by the Loan Documents;
(c) the fraud or intentional misrepresentation by Borrower or any Borrower Party made in or in
connection with the Loan Documents or the Loan; (d) Borrower’s or its property manager’s collection
of rents more than one month in advance or entering into, modifying or canceling leases, or receipt
of monies by Borrower or any Borrower Party in connection with the modification or cancellation of
any leases, in each case in violation of this Agreement or any of the other Loan Documents; (e)
Borrower’s or its property manager’s interference with Lender’s exercise of rights under the
Assignment of Rents and Leases; (f) Borrower’s failure to turn over to Lender all tenant security
deposits upon Lender’s demand following an Event of Default; (g) Borrower’s failure to timely renew
any letter of credit issued in connection with the Loan; (h) Borrower’s failure to maintain
insurance as required by this Agreement or to pay any taxes or assessments affecting the Project;
(i) waste to the Project caused by the negligent or intentional acts or omissions of Borrower, its
agents, employees, or contractors; (j) Borrower’s failure to perform its obligations with respect
to environmental matters under Article 5; (k) Borrower’s failure to pay for any loss, liability or
expense (including reasonable attorneys’ fees) incurred by Lender arising out of any claim or
allegation made by Borrower, its successors or assigns, or any creditor of Borrower, that this
Agreement or the transactions contemplated by the Loan Documents establish a joint venture,
partnership or other similar arrangement between Borrower and Lender; or (l) any brokerage
commission or finder’s fees claimed in connection with the transactions contemplated by the Loan
Documents. Borrower also shall be personally liable to Lender for any and all reasonable
attorneys’ fees and expenses and court costs incurred by Lender in enforcing this Section 13.1(2)
or otherwise incurred by Lender in connection with any of the foregoing matters, regardless of
whether such matters are legal or equitable in nature or arise under tort or contract law.



(3) Notwithstanding anything to the contrary contained in the Loan Documents, the limitation
on Borrower’s liability contained in Section 13.1(1) SHALL BECOME NULL AND VOID and shall be of no
further force and effect if:




(a) any Transfer in violation of the Loan Documents occurs;




(b) Borrower or any of its members, partners or shareholders on behalf of Borrower
files a petition under the United States Bankruptcy Code or similar state insolvency laws;




(c) Borrower becomes the subject of an involuntary proceeding under the United States
Bankruptcy Code or similar state insolvency laws, and either (i) Borrower or any Affiliate
of Borrower conspired or cooperated with one or more creditors of Borrower to commence such
involuntary proceeding, or (ii) Borrower fails to use commercially reasonable efforts to
obtain a dismissal of such involuntary proceeding; or




(d) Borrower fails to repay the Loan in accordance with Section 3.2 hereof; provided,
however, that Borrower (or any Joinder party, as applicable) shall only be personally liable
for an amount equal to (1) the amount of all principal, accrued and unpaid interest and
other amounts due and owing under the Loan Documents less (2) the aggregate amount of
insurance proceeds or insurance coverage available to Borrower, and to Lender, paid under
its insurance policies as a result of a Threshold Casualty.



(4) The limitation on Borrower’s personal liability in Section 13.1(1) shall not modify,
diminish or discharge the personal liability of (a) any Guarantor or (b) any Joinder Party.



(5) Nothing in this Section 13.1 shall be deemed to be a waiver of any right which Lender may
have under Sections 506(a), 506(b), 1111(b) or any other provision of the United States Bankruptcy
Code, as such sections may be amended, or corresponding or superseding sections of the Bankruptcy
Amendments and Federal Judgeship Act of 1984, to file a claim for the full amount due to Lender
under the Loan Documents or to require that all Collateral shall continue to secure the amounts due
under the Loan Documents.



Section 13.2 Limitation on Liability of Lender’s Officers, Employees, Etc.Any obligation or
liability whatsoever of Lender which may arise at any time under this Agreement or any other Loan
Document shall be satisfied, if at all, out of the Lender’s assets only. No such obligation or
liability shall be personally binding upon, nor shall resort for the enforcement thereof be had to,
the property of any of Lender’s shareholders, directors, officers, employees or agents, regardless
of whether such obligation or liability is in the nature of contract, tort or otherwise.



	 	 	 	 	 	 	 
	EXECUTED as of the date first written above.
	 	 
	LENDER:	 	GENERAL ELECTRIC CAPITAL CORPORATION,	 	 
	 	 	a Delaware corporation	 	 
	 	 	By: /s/ Sherri Jardine	 	 
	 	 	Name: Sherri Jardine	 	 
	 	 	Title: Authorized Signatory	 	 
	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





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