exv10w43






Exhibit 10.43




PPM Loan No. 09-01102




LOAN AGREEMENT




by and between




JACKSON NATIONAL LIFE INSURANCE COMPANY, as Lender




and




Those entities shown on Schedule A attached hereto, collectively Borrowers




Loan Opening Date: August 31, 2009




 









 





LOAN AGREEMENT




     THIS LOAN AGREEMENT is made as of this 31st day of August, 2009, by and among those entities
shown on Schedule “A” attached hereto (each a “Borrower” and jointly and severally, “Borrowers”)
and JACKSON NATIONAL LIFE INSURANCE COMPANY, a Michigan corporation (“Lender”).



RECITALS




     A. Each Borrower is listed on Schedule “A” and has its principal place of business at 2555 E.
Camelback Road, Suite 400, Phoenix, Arizona 85016. Indemnitor is the sole member of each Borrower
that is a limited liability company and the sole limited partner of each Borrower that is a limited
partnership. Cole GP CCPT III, LLC, a Delaware limited liability company is the sole general
partner (“General Partner”) of each Borrower that is a limited partnership. The ownership of
Indemnitor is set forth on Schedule “B” hereto.



     B. Lender has agreed to loan to Borrowers the maximum amount of $30,000,000.00 (the “Loan”) on
the terms and conditions contained herein.



     C. COLE HD SAN DIEGO CA, LP, a Delaware limited partnership is the owner of certain real
estate located in San Diego County, CA, which is described more particularly on Exhibit
“A-1” attached hereto (the “San Diego Land”), consisting of approximately 11.2 acres, which is
improved with a 106,204 net rentable square foot building that is commonly known as Home Depot (GL)
(the “San Diego Improvements”).



     D. COLE HT DURHAM NC, LLC, a Delaware limited liability company is the owner of certain real
estate located in Durham County, NC, which is described more particularly on Exhibit “A-2”
attached hereto (the “Durham Land”), consisting of approximately 6.1 acres, which is improved with
a 48,000 net rentable square foot building that is commonly known as Harris Teeter (GL) (the
“Durham Improvements”).



     E. COLE KO MONROVIA CA, LP, a Delaware limited partnership is the owner of certain real estate
located in Los Angeles County, CA, which is described more particularly on Exhibit “A-3”
attached hereto (the “Monrovia Land”), consisting of approximately 6.47 acres, which is improved
with a 76,804 net rentable square foot building that is commonly known as Kohl’s (the “Monrovia
Improvements”).



     F. COLE HH NORTH CHARLESTON SC, LLC, a Delaware limited liability company is the owner of
certain real estate located in Charleston County, SC, which is described more particularly on
Exhibit “A-4” attached hereto (the “North Charleston Land”), consisting of approximately
2.4 acres, which is improved with a 30,167 net rentable square foot building commonly known as HH
Gregg (the “North Charleston Improvements”).



2









 





     G. COLE WG EDMOND OK, LLC, a Delaware limited liability company is the owner of certain real
estate located in Oklahoma County, OK, which is described more particularly on Exhibit
“A-5” attached hereto (the “Edmond Land”), consisting of approximately 1.45 acres, which is
improved with a 13,905 net rentable square foot building commonly known as Walgreens (the “Edmond
Improvements”).



     H. COLE CV SOUTHAVEN MS, LLC, a Delaware limited liability company is the owner of certain
real estate located in De Soto County, MS, which is described more particularly on Exhibit
“A-6” attached hereto (the “Southaven Land”), consisting of approximately 2.0 acres, which is
improved with a 13,225 net rentable square foot building commonly known as CVS (the “Southaven
Improvements”).



     I. COLE KO TAVARES FL, LLC, a Delaware limited liability company is the owner of certain real
estate located in Lake County, FL, which is described more particularly on Exhibit “A-7”
attached hereto (the “Tavares Land”), consisting of approximately 6.7 acres, which is improved with
a 90,829 net rentable square foot building commonly known as Kohl’s (GL) (the “Tavares
Improvements”).



     J. COLE BB CORAL SPRINGS FL, LLC, a Delaware limited liability company is the owner of certain
real estate located in Broward County, FL, which is described more particularly on Exhibit
“A-8” attached hereto (the “Coral Springs Land”), consisting of approximately 4.606 acres,
which is improved with a 52,500 net rentable square foot building commonly known as Best Buy (the
“Coral Springs Improvements”).



     K. The San Diego Land, the Durham Land, the Monrovia Land, the North Charlestown Land, the
Edmond Land, the Southaven Land, the Tavares Land and the Coral Springs Land are referred to
hereinafter collectively as the “Land”. Each portion of the Land owned by a Borrower is sometimes
referred to as a “Parcel”. The San Diego Improvements, the Durham Improvements, the Monrovia
Improvements, the North Charleston Improvements, the Edmond Improvements, the Southaven
Improvements, the Tavares Improvements and the Coral Springs Improvements are hereinafter referred
to collectively as the “Improvements”, and more particularly described on Exhibit “B” attached
hereto.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
parties hereto agree as follows:


1. DEFINED TERMS. The following terms as used herein shall have the following meanings:




     Affiliated Party: any person or entity directly or indirectly controlling or under
common control with any Borrower or Indemnitor, including the general partner of Indemnitor.



     Agreement: This Loan Agreement, as originally executed or as may be hereafter
supplemented or amended from time to time in writing.



     Application/Commitment: Collectively, the application to PPM Finance, Inc. for the
Loan dated June 24, 2009 and the acceptance thereof as a
commitment dated July 30, 2009.



3









 





     Appraisal: An appraisal prepared by a member of a national appraisal organization
that has adopted the Uniform Standards of Professional Appraisal Practice (USPAP) established by
the Appraisal Standards Board of the Appraisal Foundation. The appraisal shall be in conformity
with Lender’s appraisal guidelines and the requirements of the Application/Commitment.



     Approved Lease: A lease of Land or Land and Improvements approved by Lender in
writing. The Approved Leases as of the Loan Opening Date are described on Exhibit “E”
hereto.



     Borrower and Borrowers: The meaning set forth in the introductory paragraph of this
Agreement.



     Building Laws: All federal, state and local laws, statutes, regulations, codes,
ordinances, orders, rules and requirements applicable to the development, construction, use,
operation, management and maintenance of a Project, including without limitation, all access,
building, zoning, planning, subdivision, fire, traffic, safety, health, labor, discrimination,
wetlands, shoreline, and flood plain laws, regulations and ordinances, including, without
limitation, all applicable requirements of the Americans with Disabilities Act of 1990, as amended,
and all orders or decrees of any court adopted or enacted with respect thereto applicable to a
Project, as any of the same may from time to time be amended, modified or supplemented. The term
Building Laws shall not include any “Environmental Laws” as such term is defined in the
Environmental Indemnity Agreements.



     Default: Any event which, if it were to continue uncured, would, with notice or lapse
of time or both, constitute an Event of Default (as such term is defined in Section 7.1 of this
Agreement).



     Default Rate: The default interest rate specified in the Note.



     Environmental Indemnity Agreements: The Environmental Indemnity Agreements for each
Project described in Section 2.2 of this Agreement, as may be hereafter supplemented or amended
from time to time in writing.



     Executive Order and Patriot Act: Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001 (the “Executive Order”) and Public Law 107.56, known as the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (the “Patriot Act”).



     ERISA: Employee Retirement Income Security Act of 1974, as amended, and the
regulations promulgated thereunder from time to time.



     Governmental Approvals: The meaning set forth in Section 4.11 of this Agreement.



     Governmental Authority: Any federal, state, county or municipal government, or
political subdivision thereof, any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality, or public body, or any court or administrative
tribunal with jurisdiction over one or more of the Projects.



4









 





     Improvements: The meaning set forth in Recital K of this Agreement.



     Include or including: Including, but not limited to.



     Indemnity Agreement: The indemnification agreement described in Section 2.2 of this
Agreement, executed by Indemnitor, as originally executed or as may be hereafter supplemented or
amended from time to time in writing.



     Indemnitor: Cole REIT III Operating Partnership, LP, a Delaware limited partnership



     Internal Revenue Code: The Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder from time to time.



     Knowledge: When used to modify a representation or warranty, actual knowledge or such
knowledge as a reasonable person under the circumstances should have after diligent inquiry and
investigation.



     Land: The land legally described in Exhibits “A-1” through “A-8”
hereto.



     Laws: Collectively, all federal, state and local laws, statutes, codes, ordinances,
orders, rules and regulations, including judicial opinions or precedential authority in the
applicable jurisdiction, as any of the same may from time to time be amended, modified or
supplemented.



     Lender: The Mortgagee and, as applicable, PPM Finance, Inc., on behalf of and acting
as the investment advisor and authorized representative for the Mortgagee.



     Loan: The meaning set forth in Recital B of this Agreement.



     Loan Documents: This Agreement, the Environmental Indemnity Agreements, the Indemnity
Agreement, the Mortgages, the Note, the other documents and instruments listed in Section 2.2 of
this Agreement, and all other documents and instruments given to Lender from time to time in
connection with or to secure the Loan, as originally executed or as any of the same may be
hereafter supplemented or amended from time to time, in writing.



     Loan Maturity: September 1, 2013 unless extended in accordance with Section 2.3
hereof.



     Loan Opening Date: The date of the disbursement of the Loan.



     Loan Year: A period of 12 consecutive calendar months commencing on September 1, 2009
or any anniversary thereof.



     Mortgages: The mortgages, deeds of trust, security deeds, deeds to secure debt or
similar instruments described in Section 2.2 of this Agreement, as originally executed or as may be
hereafter supplemented or amended from time to time in writing.



5









 





     Mortgage Correspondent: As of the date hereof, the Mortgage Correspondent is CBRE
Melody and its address is: 400 North Ashley Drive, Suite 1700, Tampa, Florida 33602. Lender retains
the right to change the Mortgage Correspondent at any time during the term of the Loan. Borrower
hereby acknowledges that Lender may utilize Mortgage Correspondent or other outside third parties
selected by Lender in any aspects of the Loan, including but not limited to, the servicing,
administration and monitoring of the Loan. For purposes of this Loan Agreement, where it is
referenced that information will be provided to “Mortgage Correspondent and Lender”, unless
designated otherwise by Lender, the information shall be provided to Mortgage Correspondent, who
will provide the same to Lender. Lender may at any time, request that the information be provided
to both Mortgage Correspondent and Lender or to another third party in place of Mortgage
Correspondent.



     Mortgagee: Jackson National Life Insurance Company, its successors and or assigns.



     Note: The “Note” described and defined in Section 2.2 of this Agreement, as
originally executed or as may be hereafter supplemented or amended from time to time in writing.



     Permitted Exceptions: Those matters shown as title exceptions on the loan title
policies approved by Lender.



     PPM Finance, Inc.: The investment advisor and authorized representative and affiliate
of Lender.



     Project: Each Parcel comprising the Land together with the improvements thereon and
any and all other buildings, structures and improvements located or to be located thereon
(“Improvements”) and all rights, privileges, easements, hereditaments and appurtenances, thereunto
relating or appertaining, including parking in compliance with any applicable zoning ordinance and
tenant leases, and all personal property, fixtures and equipment required or used (or to be used)
for the operation thereof, collectively the Projects.



     Project Improvements: The Improvements which are located on a Parcel, but not
including Tenant Improvements.



     REA: Any of the documents described on Schedule C hereto.



     SPE: A special purpose bankruptcy remote entity which is unlikely to become insolvent
as a result of its own activities and which is adequately insulated from the consequences of any
related party’s insolvency.



     Tenant Improvements: The San Diego Improvements, Durham Improvements and the Tavares
Improvements which are owned by the applicable Tenant and not the Borrower that owns the underlying
Parcel.



6









 





     Tenant: A tenant under an Approved Lease.



     Title Insurer: First American Title Insurance Company and any other national title
insurance company acceptable to Lender.



     Defined terms may be used in the singular or the plural. When used in the singular preceded by
“a”, “an”, or “any”, such term shall be taken to indicate one or more members of the relevant
class. When used in the plural, such term shall be taken to indicate all members of the relevant
class.



2. TERMS OF LOAN AND DOCUMENTS.




     2.1 Agreement to Borrow and Lend. Subject to all of the terms, provisions and
conditions set forth in this Agreement and the Application/Commitment, Lender agrees to make and
Borrowers agree to accept the Loan. Each Borrower agrees to pay all indebtedness evidenced and
secured by the Loan Documents in accordance with the terms thereof and hereof.



     2.2 Loan Documents. In consideration of Lender’s entry into this Agreement and
Lender’s agreement to make the Loan, each Borrower agrees that it will, as applicable, in
sufficient time for review by Lender and its counsel prior to the Loan Opening Date, execute and
deliver or cause to be executed and delivered to Lender the following documents and instruments in
form and substance acceptable to Lender:



     (a) A promissory note from all Borrowers payable to Lender in the original principal amount of
Thirty Million and 00/100 Dollars ($30,000,000.00) (or the actual Loan amount determined in
accordance with the Application/Commitment);



     (b) First mortgages or deeds of trust, as applicable (collectively, “Mortgage”) on each
Borrower’s Parcel and interest in the Project Improvements, subject only to the Permitted
Exceptions;



     (c) An assignment to Lender from each Borrower of all rents, income, issues and profits of,
and all leases, licenses, concessions and other similar agreements relating to or connected with
the Parcel owned by it, which shall be a present first priority absolute assignment of all present
and future leases of all or any part of such Parcel, all guarantees thereof and all rents and other
sums payable thereunder;



     (d) A security agreement from each Borrower granting Lender a security interest in all
personal property, tangible and intangible, owned or hereafter acquired by such Borrower and
relating to operation or maintenance of the Parcel owned by such Borrower, including bank accounts,
accounts receivable, all escrow impound or reserve accounts required in the Loan Documents, and
other intangible property, which agreement may be combined with the Mortgage;



     (e) Uniform Commercial Code financing statements with each Borrower as debtor with respect to
all of the personal property owned by it;



7









 





     (f) Indemnity agreements from Indemnitor and Borrowers with respect to certain matters
including environmental covenants;



     (g) The Indemnity Agreement from Indemnitor with respect to certain matters excluded from the
non-recourse provisions of the Loan Documents;



     (h) An affidavit from each Borrower containing certain warranties and representations (each, a
“Borrower’s Certificate”);



     (i) Any other documents required by the Application/Commitment; and



     (j) Such other papers and documents as may be required by this Agreement or as Lender may
reasonably require.



     2.3 Terms of the Loan. The Loan will bear interest for the period and at the rate or
rates set forth in the Note, and be payable in accordance with the terms of the Note. The
outstanding principal balance, all accrued and unpaid interest and all other sums due and payable
under the Note or other Loan Documents, if not sooner paid, shall be paid in full on September 1,
2013 (the “Initial Term Maturity Date”). Provided, however, Lender may at its sole discretion,
reset the interest rate on the Loan to a new rate (the “Reset Rate”) to be effective after the
Initial Term Maturity Date if the Maturity Date is extended as provided herein. If Lender elects to
reset the Interest Rate (as defined in the Note), Lender will, during the 42nd to
44th month after the date hereof, provide Borrower with written notice of its intent to
do so. The notice will specify the interest rate spread and index, each of which shall be decided
by Lender in its sole discretion, that will be used to calculate the Reset Rate. The exact Reset
Rate will be disclosed to Borrower during the first two weeks of the 47th full month
after the date hereof.


Upon receipt of notice of the Reset Rate from Lender, Borrower may either accept the Reset Rate
unconditionally or repay the Loan in full on or before the Initial Term Maturity Date. Acceptance
of the Reset Rate must be in writing and must be received by the Lender no later than the last day
of the 47th full month after the date hereof. Unless Borrower so accepts the Reset Rate,
the Loan shall be due and payable, in full, without prepayment premium, on the Initial Term
Maturity Date. If the Borrower accepts the Reset Rate, the Maturity Date will be extended to
September 1, 2019, and interest will begin to accrue at the Reset Rate commencing on September 1,
2013 and interest only payments will continue. Commencing on October 1, 2014, the amount of the
monthly payment will be adjusted to reflect the monthly payment of interest (calculated at the
Reset Rate) and principal based on a 25 year amortization schedule. Borrower will execute and
deliver all documents and instruments reasonably required by Lender to effect such adjustment.




     2.4 Prepayments. Borrowers shall have no right to make prepayment of the Loan in
whole or in part except in accordance with the terms of the Note and the applicable provisions of
this Agreement.



8









 





     2.5 Conditions to Disbursement. Each Borrower agrees to perform and satisfy all
conditions precedent to disbursement of the proceeds of the Loan set forth in the
Application/Commitment including those set forth in Sections 2.4 (Third Party Reports) and 3 (The
Closing) thereof.



     2.6 Sources and Uses. Each Borrower shall use the proceeds of the Loan obtained by it
solely for the purposes set forth in Exhibit “C-1” hereto. The Sources and Uses Statement
executed prior to the Loan Opening Date must be in substantial accordance with the Sources and Uses
Statement attached to the Application/Commitment.



     2.7 Cross-Collateralization; Cross Default. Each Borrower acknowledges that the Loan
shall be secured by each Borrower’s interest in its Project. Any Event of Default under this
Agreement shall be an Event of Default under all Loan Documents.



3. BORROWERS’ COVENANTS. Borrowers covenant and agree with Lender as follows:




     3.1 Escrow Deposits.



     (a) Unless specifically waived by a separate written agreement, each Borrower shall deposit
monthly with Lender or Mortgage Correspondent a sum equal to one-twelfth (1/12th) of the amount
estimated by Lender or Mortgage Correspondent to be required to pay, at least thirty (30) days
prior to their respective due dates, annual property taxes, assessments, ground rent and insurance
premiums for the Project owned by such Borrower (the “Escrow Account”). Lender shall not pay
interest on or segregate the Escrow Account unless required to do so under applicable law. If
Lender is required to segregate the Escrow Account, each Borrower shall (1) execute such documents
as Lender, in its sole discretion, deems necessary to perfect its security interest in the Escrow
Account and (2) pay the costs of setting-up and maintaining the Escrow Account. Prior to the Loan
Opening Date, Lender will determine the amount of the initial deposit that must be made by each
Borrower to the Escrow Account at Closing; and



     (b) The Escrow Account is hereby pledged as additional security for the Loan and shall be held
to be irrevocably applied for the purposes for which made hereunder and shall not be subject to the
direction or control of Borrowers or any of them; provided, however, that neither Lender, Mortgage
Correspondent nor any depository holding such funds shall be liable for any failure to apply to the
payment of taxes, assessments, ground rent or insurance premiums any amount so deposited unless (i)
each Borrower shall have requested Lender, Mortgage Correspondent or said depository in writing to
make application of such funds to the payment of the particular taxes, assessments, ground rent or
insurance premiums as the case may be, accompanied by the bills therefor, (ii) there shall exist no
Event of Default hereunder or under any of the Loan Documents, and (iii) there are sufficient funds
in the Escrow Account (including supplemental funds provided by each applicable Borrower for such
purpose) to pay the particular taxes, assessments, ground rent or insurance premiums and (iv)
following payment of such taxes, assessments, ground rent or insurance premiums, the Escrow Account
will include the appropriate proportion, in the reasonable opinion of Lender, of the payments
estimated to be due the following year, taking into account the Lender’s right to increase the
required monthly deposits for such year.



9









 





     3.2 Payment of Taxes.



     (a) Each Borrower shall pay, or cause to be paid, or direct the Mortgage Correspondent or
depository to pay, all real estate taxes, assessments and charges of every kind upon the Parcel
owned by it before the same become delinquent; provided, however, that each Borrower shall have the
right to pay any such tax, assessment or charge under protest or to otherwise contest any such tax,
assessment or charge but only if (i) such contest has the effect of delaying or preventing the
collection of such tax, assessment or charge so contested and also preventing the sale or
forfeiture of the Parcel owned by it, or any part thereof or any interest therein, (ii) such
Borrower has notified Lender in writing in advance of its intent (or, if applicable, Tenant’s
intent if Tenant is required under the applicable Approved Lease to notify landlord of such intent)
to contest such tax, assessment or charge, and (iii) such Borrower has deposited security in form
and amount satisfactory to Lender, in its sole judgment, and increases the amount of such security
so deposited promptly after Lender’s request therefor. If any such Borrower shall fail to commence
such contest or, having commenced such contest, and having deposited such security required by
Lender for its full amount, shall thereafter fail to prosecute such contest in good faith or with
due diligence, or, upon adverse conclusion of any such contest, shall fail to pay the tax,
assessment or charge so contested, Lender may at its election (but shall not be required to), pay
and discharge any such tax, assessment or charge, and any interest or penalty thereon, and any
amounts so expended by Lender shall be deemed to constitute disbursements of the Loan proceeds
hereunder (even if the total amount of disbursements would exceed the face amount of the Note), and
shall bear interest from the date expended at the Default Rate and be payable with such interest
upon demand. Lender in making any payment hereby authorized relating to any tax, assessment or
charge, may do so according to any bill, statement or estimate procured from the appropriate public
office without inquiry into the accuracy of such bill, statement or estimate or into the validity
of any tax, assessment, charge, sale, forfeiture, tax lien or title or claim thereof.



     (b) Subject to the conditions set forth in (a) (i) and (ii) above, Lender acknowledges that a
Tenant under any Approved Lease may so contest any such tax assessment in accordance with the terms
of such Approved Lease.



     3.3 Maintenance of Insurance. (a) Insurance Coverage Requirements: Each
Borrower shall maintain or cause to be maintained insurance coverage as contained on Exhibit D to
the Application/Commitment and as attached hereto and made a part hereof as Exhibit “D”.



     (b) No Other Insurance. No Borrower shall take out separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained hereunder unless
Lender is included thereon under a standard, non-contributory Lender clause acceptable to Lender.
Each Borrower shall immediately notify Lender whenever any such separate insurance is taken out and
shall promptly deliver to Lender the original policy or policies of such insurance.



10









 





     (c) Lender’s Right to Obtain Insurance: Notwithstanding this Section 3.3, in
the event that any Borrower fails to maintain or cause to be maintained the insurance required
hereunder, Lender or Mortgage Correspondent shall have the right (but not the obligation) to place
and maintain insurance required to be placed and maintained by such Borrower hereunder, and use
funds on deposit in the Escrow Account for the payment of insurance to pay for same. Any additional
amounts expended therefor shall constitute additional disbursements of Loan proceeds (even if the
total amount of disbursements would exceed the face amount of the Note), and shall bear interest
from the date expended at the Default Rate and be payable together with such interest upon demand.



     Notwithstanding the foregoing provisions of this Section 3.3 or anything to the contrary
contained herein, so long as (i) the applicable Approved Lease is in effect with respect to a
particular Project and the applicable Tenant is in compliance with the insurance requirements set
forth in its Approved Lease and (ii) either the applicable Borrower or the applicable Tenant shall
provide the required loss of rents insurance or, the Approved Lease does not allow the applicable
Tenant to abate its rent, then the applicable Borrower shall be deemed to be in compliance with the
insurance requirements of Lender. Lender acknowledges that, as of the Loan Opening Date, no
Approved Lease allows rent abatement after casualty or condemnation.



     3.4 Mechanics’ Liens and Contest Thereof. Each Borrower agrees (i) not to suffer or
permit any mechanics’ lien claims to be filed or otherwise asserted against the Parcel owned by it;
(ii) to promptly discharge the same, and if applicable, cause the same to be discharged by Tenant
in accordance with the provisions of its Approved Lease, as a lien against such Parcel if any
claims for lien or any proceedings for the enforcement thereof are filed or commenced; provided,
however, that any Borrower or Tenant shall have the right to contest in good faith and with due
diligence the validity of any such lien or claim upon the Title Insurer being furnished with such
security or indemnity as it may require to induce the Title Insurer to insure against all such
claims, liens or proceedings; and provided further that Lender will not be required to make any
further disbursements of the Loan proceeds unless (a) any mechanics’ lien claims shown by any title
insurance commitments or interim binders or certifications have been released or insured against by
the Title Insurer or (b) the applicable Borrower shall have provided Lender, or caused Lender to be
provided, with such other security with respect to such claim as may be acceptable to Lender, in
its sole discretion.



11









 





     3.5 Settlement of Mechanics’ Lien Claims. If any Borrower shall fail promptly to
discharge, or cause to be discharged, any mechanics’ lien claim filed or otherwise asserted or to
contest any such claims and give security or indemnity in the manner provided in Section
3.4 hereof, or, if such Borrower (or any Tenant under an Approved Lease, as applicable)
having commenced to contest the same, and having given such security or indemnity, shall thereafter
fail to prosecute such contest in good faith or with due diligence, or fail to maintain such
indemnity or security so required by the Title Insurer for its full amount, or, upon adverse
conclusion of any such contest, shall fail to cause any judgment or decree to be satisfied and lien
to be promptly released, then, and in any such event, unless the applicable Approved Lease permits
any of the foregoing, Lender may, after ten (10) business days written notice to such Borrower, at
its election, but shall not be required to, (i) procure the release and discharge of any such claim
and any judgment or decree thereon, without inquiring into or investigating the amount, validity or
enforceability of such lien or claim and (ii) effect any settlement or compromise of the same, or
may furnish such security or indemnity to the Title Insurer, and any amounts expended by Lender in
doing so, including premiums paid or security furnished in connection with the issuance of any
surety company bonds, shall be deemed to constitute disbursements of the Loan proceeds hereunder
(even if the total amount of disbursements would exceed the face amount of the Note), and shall
bear interest from the date expended at the Default Rate and be payable together with such interest
upon demand.



     3.6 Maintenance, Repair and Restoration of Improvements. Each Borrower shall (or if
applicable under an Approved Lease, shall cause the Tenant to) (i) promptly repair, restore or
rebuild (or cause to be repaired, restored, or rebuilt) any Project Improvements or Tenant
Improvements, as applicable, which may become damaged or be destroyed, subject (if applicable) to
Lender’s agreement to make available to such Borrower any insurance proceeds relating thereto
pursuant to the terms of this Agreement, and (ii) keep such Improvements in good condition and
repair, without waste, normal wear and tear excepted.



     Notwithstanding the foregoing provisions of this Section 3.6 or anything to the contrary
contained herein, for so long as an Approved Lease is in effect with respect to a particular
Project, the repair and restoration of any Improvements located thereon and the disposition of
casualty and condemnation proceeds related to such Project shall be governed by the applicable
Approved Lease, and the SNDA (defined below) delivered to Lender by the Tenant of such Project.



     3.7 Leases and Lease Reports. (a) Each Borrower agrees not to enter into, modify,
amend, or waive any material provision of, terminate or cancel any lease(s) of space to which it is
a party without the prior written consent of Lender. All lessees shall be required, at Lender’s
election, to execute estoppel certificates and subordination, non-disturbance and attornment
agreements (“SNDA”) in form and substance reasonably satisfactory to Lender. With respect to
Tenants under Approved Leases, Lender agrees not to unreasonably withhold its consent to any SNDA
in Tenant’s standard form. Within thirty (30) days following the end of each calendar year, each
Borrower shall deliver to Lender a certified report showing the status of the leasing of space in
the Project owned by it.



12









 





          (b) Any new lease, modification, amendment, waiver of any material provision, termination or
cancellation of any lease of space in any Project without the prior written consent of Lender
(which consent shall not be unreasonably withheld, conditioned or delayed) shall be deemed by
Lender in its sole discretion, as an Event of Default. Lender shall grant or deny its consent to
any new lease, lease amendment, modification, termination, renewal or expansion within ten (10)
business days of a written request therefore, and to the extent Lender fails to expressly deny its
consent within such ten (10) business day period, such consent shall be deemed granted. The
renewal, amendment or modification of any Approved Lease by its terms shall not require the consent
of Lender. Borrower shall provide Lender with copies of all renewals, amendments or modifications
within ten (10) business days after execution.




     3.8 Compliance With Laws. Each Borrower shall promptly comply, or cause compliance,
with all applicable Laws of any Governmental Authority having jurisdiction over such Borrower or
the Project owned by it, and shall take, or cause to be taken, all actions necessary to bring said
Project into compliance with all applicable Laws, including, without limitation, all Building Laws
(whether now existing or hereafter enacted).



     3.9 Alterations. (a) Without the prior written consent of Lender, no Borrower shall
(i) make any structural alterations to the Project owned by it (other than completion of work
required or permitted in accordance with the Approved Leases and any new leases entered into in
accordance with the terms of this Agreement) or (ii) construct any new building Improvements of any
kind on its Parcel.



     (b) If a request is made by a Borrower, and consented to by Lender, Lender’s consent shall be
conditioned upon receipt and approval of information, documentation and assurances, standard in the
lending industry, when new construction is contemplated. Such information, documentation and
assurances shall include, but not by way of limitation, lien waivers, invoices and proof of
payment, survey revisions, date down title endorsements and evidence of property and liability
coverage. Such consent is also conditioned upon such Borrower’s payment of any and all Lender’s
attorney fees in connection with such information, documentation and assurances as a result of the
alterations or new improvements to the Project owned by it.



     (c) Notwithstanding anything to the contrary contained herein, the approval of Lender shall
not be required with respect to any alterations undertaken by a Tenant under an Approved Lease;
provided that (i) any such alterations are performed in accordance with the Approved Lease, and
(ii) if such alterations require Borrower’s approval, Borrower shall not provide such approval
without Lender’s prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.



13









 





     3.10 Personal Property. (i) All personal property, fixtures, furnishings, furniture,
attachments and equipment located on or used in connection with a Project, that is owned by the
Borrower owning said Project shall always be located at said Project and shall also be kept free
and clear of all chattel mortgages, conditional vendor’s liens and all other liens, encumbrances
and security interests of any kind whatever, (ii) each Borrower will be the absolute owner of said
personal property, fixtures, furnishings, furniture, attachments and equipment (if any) and (iii)
if applicable, each Borrower shall, from time to time, furnish Lender with evidence of such
ownership reasonably satisfactory to Lender, including searches of applicable public records.



     3.11 Prohibition Against Cash Distributions and Application of Cash Flow. Each
Borrower agrees to first apply all cash flow from the Project owned by it to pay expenses for said
Project, including amounts due to Lender pursuant to the Loan Documents. No cash flow from any
Project shall be distributed to any partners, principals, members or shareholders of the owner
thereof, or applied to the payment of any obligations, debts or expenses not related to such
Project if an Event of Default has occurred and has not been cured.



     3.12 Inspection by Lender. Each Borrower will cooperate (and will cause its managing
agent to cooperate) with Lender in arranging for inspections of the Project owned by it, from time
to time by Lender and its agents and representatives.



     3.13 Furnishing Information. Each Borrower shall deliver or cause to be delivered to
Lender and Mortgage Correspondent: 1) annual financial statements for such Borrower and for the
Project owned by it, 2) annual financial statements for Indemnitor, and 3) annual tenant sales for
any tenant required to deliver same under the terms of its lease, or any amendment or modification
thereto, as soon as available and in all events no later than ninety (90) days after the close of
each fiscal year of such Borrower and Indemnitor (as applicable), other than tenant sales which
will be delivered if and when they are received from the tenants. Notwithstanding the foregoing
requirement (3), if any Borrower or Indemnitor has any ownership interest in (whether direct or
indirect) or is a related entity with any tenant, including being an affiliate or parent of tenant,
then and in that case, regardless of the requirements under the applicable lease, or any amendment
or modification thereto, such Borrower shall deliver or cause to be delivered annual financial
statements and sales of such tenant, if applicable, in the exact manner and timing as stated above.
Such statements shall be certified as true and correct by an authorized financial officer of such
Borrower or by an authorized financial officer of Indemnitor, as the case may be. While only annual
financial statements will be required initially, Lender shall have the right to require that the
Borrowers provide quarterly financial statements, aged delinquency reports and tenant sales figures
for tenants required to report sales under its lease with a Borrower to Lender and Mortgage
Correspondent, at any time during the Loan term. Borrowers shall cause Indemnitor to deliver to
Lender within ninety (90) days after the end of each calendar year, and within twenty (20) days
after Lender’s request in the event of any Default by any Borrower under any of the Loan Documents,
a current financial statement, certified as correct by Indemnitor. On the occurrence of an Event of
Default, Borrowers shall and shall cause Indemnitor to promptly provide Lender and Mortgage
Correspondent with such additional financial reports and such additional financial information as
Lender may require. If an Event of Default has occurred or Lender reasonably believes that
previously provided financial statements are materially inaccurate, the annual statements shall be
audited by certified public accountants acceptable to Lender and prepared in accordance with
generally accepted accounting principles. Each Borrower shall also furnish a current operating
statement for the Project owned by it (including a rent roll) at the time it delivers its financial
statements.



14









 





     Additionally, Borrowers will and will cause Indemnitor to:



          (i) promptly supply Lender and Mortgage Correspondent with such information concerning their
respective affairs and property relating to the development and operation of the Projects as Lender
may hereafter reasonably request from time to time;




          (ii) at any time during regular business hours permit Lender, Mortgage Correspondent or any of
its agents or representatives to have access to and examine all of its books and records regarding
the operation of the Projects; and




          (iii) promptly notify Lender and Mortgage Correspondent if any Borrower receives any actual
notice that any Project violates or is alleged to violate any Building Law, or of a condition or
situation on any Project which would constitute violation of a Building Law. The notice to Lender
shall describe with particularity the Building Law violation and the applicable Borrower’s plan to
promptly correct the violation.




     3.14 Documents of Further Assurance. Borrowers shall, from time to time, upon Lender’s
request, execute, deliver, record and furnish such documents as Lender may reasonably deem
necessary or desirable to (i) perfect and maintain perfected as valid liens upon Borrowers’
interest in the Projects, the liens granted by Borrowers to Lender under the applicable Mortgage(s)
and the collateral assignments and other security interests under the other Loan Documents as
contemplated by this Agreement, (ii) correct any errors of a typographical nature or
inconsistencies which may be contained in any of the Loan Documents, and (iii) consummate fully the
transaction contemplated under this Agreement.



     3.15 Furnishing Reports. Each Borrower shall provide Lender and Mortgage Correspondent
promptly after receipt with copies of all inspections, reports, test results and other information
received by such Borrower from time to time from its employees, agents, representatives, architects
and engineers, which in any way relate to a material and adverse condition at the Project owned by
it, or any part thereof.



     3.16 Operation of Project and Zoning. As long as any portion of the Loan remains
outstanding, each Project remaining subject to the Loan Documents shall be maintained in a manner
similar to other like properties in the respective markets of such Project and shall be used for
the same use as of the date hereof or any other permitted use under an Approved Lease. Each
Borrower shall fully and faithfully perform all of its covenants, agreements and obligations under
each of the leases of space in the Project owned by it. Each Borrower agrees not to initiate or
acquiesce in a zoning variation or reclassification without Lender’s prior written consent.



15









 





     3.17 Management Agents’ and Brokers’ Contracts. Each Borrower agrees not to enter
into, modify, amend or waive any material provision of, terminate or cancel any management
contracts for any Project without the prior written approval of Lender, which shall not be
unreasonably withheld, conditioned or delayed; provided, however, that any
Affiliated Party may enter into, modify and/or terminate contracts with third parties for certain
property management services for a Project so long as (i) such third parties do not have any
responsibility for collecting rents or paying any bills of such Project or any part thereof; (ii)
such contracts may be terminated at any time without penalty upon Lender’s taking actual possession
of the affected Project; and (iii) the applicable Borrower shall provide Lender with a copy of all
such third party contracts within ten (10) business days after Lender’s request therefor. Borrowers
shall also provide Lender with true and complete copies of all leasing and brokerage agreements
affecting the Projects (or any part thereof) within ten (10) days after Lender’s request therefor.



     3.18 Furnishing Notices. Each Borrower shall deliver to Lender copies of all material
notices received or given by such Borrower (or its agents or representatives) in connection with
the Project owned by it.



     3.19 Indemnification. Borrowers shall indemnify, defend and hold Lender, Mortgage
Correspondent and their respective officers, directors, employees, shareholders, advisers, and
agents (collectively, “Indemnified Parties”) harmless from and against all claims, injury, damage,
loss, costs (including reasonable attorneys’ fees and costs) and liability of any and every kind
incurred by Indemnified Parties by reason of (i) the operation or maintenance of any Project or any
construction at a Project by or on behalf of any Borrower; (ii) the payment of any brokerage
commissions or fees of any kind with respect to the Application/Commitment or the Loan, and for any
reasonable legal fees or expenses incurred by Lender in connection with any claims for such
commissions or fees; and (iii) the breach of any representation or warranty by any Borrower or
failure by any Borrower to fulfill it’s obligations under this Agreement or any other Loan
Document. The foregoing indemnity shall subject to Sections 3.6 and 3.9 above, include the cost of
all alterations, repairs and replacements to any Project (including, without limitation,
architectural, engineering, reasonable legal and accounting costs), all fines, fees and penalties,
and all legal and other expenses (including reasonable attorneys’ fees), incurred in connection
with any Project being in violation of Building Laws and for the cost of collection of the sums due
under this indemnity, whether or not a Borrower is in possession of the Project. If Lender shall
become the owner of or acquire an interest in or rights to any Project by foreclosure or deed in
lieu of foreclosure of a Mortgage, or by other means, the foregoing indemnification obligation
shall survive such foreclosure or deed in lieu of foreclosure or other acquisition of a Project.



     3.20 Organizational Documents. Without the prior written consent of Lender, each
Borrower agrees not to permit or suffer (i) any amendment or modification of its organizational
documents, or (ii) the admission of any new member, shareholder, or partner, except as permitted
pursuant to Section 6.3. Without limiting the generality of the foregoing, each Borrower shall
remain an SPE.



16









 





     3.21 Publicity. During the term of the Loan, Lender or Mortgage Correspondent may
issue or publish releases or announcements stating that the financing for the Projects is being
provided by Lender to Borrowers and Borrowers hereby consent thereto, subject to Borrowers’ right
to approve the contents of any such release or announcement, which approval shall not be
unreasonably withheld, conditioned or delayed.



     3.22 Access to Leased Premises and Right to Cure Defaults Under the REA. In the event
of a material default by any Borrower under any REA applicable to the Parcel owned by it, such
Borrower agrees that Lender shall have the right (but not the obligation), to cure or cause the
cure of such default and, in the event the cure of such default by its nature requires that Lender
enter upon and/or take possession of said Parcel. Such Borrower hereby agrees that Lender may, and
such Borrower hereby grants Lender the right to, enter in and upon and take exclusive possession of
the Parcel owned by it for the purpose of curing such default, subject to the rights of the tenants
of the related Project; provided, however, Lender shall not be entitled to exercise its rights
under this Section if such Borrower is diligently proceeding to effect a cure prior to the
expiration of applicable grace periods under such agreements. Any costs reasonably incurred by
Lender in curing such default shall constitute additional indebtedness evidenced by the Note and
secured by the Mortgages and other Loan Documents, and shall bear interest from the date expended
at the Default Rate and be payable together with such interest within ten (10) business days of
written demand.



     3.23 Lender’s Attorneys’ Fees and Expenses. If at any time prior to repayment of the
Loan in full, Lender employs counsel for advice or other representation (whether or not any suit
has been or shall be filed and whether or not other legal proceedings have been or shall be
instituted and, if such suit is filed or legal proceedings instituted, through all administrative,
trial, and appellate levels) with respect to the Loan, a Project or any part thereof, this
Agreement or any of the other Loan Documents, including any proposed or actual restructuring of the
Loan, or to protect, collect, lease, sell, take possession of, or liquidate any Borrower’s interest
in any Project, or to attempt to enforce any security interest or lien on any Borrower’s interest
in any Project, or to enforce any rights of Lender or any of Borrowers’ obligations hereunder or
those of any other person, firm or corporation which may be obligated to Lender by virtue of this
Agreement or any other agreement, instrument or document heretofore or hereafter delivered to
Lender by or for the benefit of any Borrower in connection with the Loan or any Project, or to
analyze and respond to any request for consent or approval made by any Borrower, then, in any such
event, all of the reasonable and actual attorneys’ fees and expenses arising from such services,
and all expenses, costs and charges relating thereto (collectively the “Costs”), shall bear
interest from the date expended at the “Interest Rate” provided in the Note, and shall be paid by
Borrowers on demand therefor and if Borrowers fail to pay such Costs within ten (10) business days
after demand payment thereof by Lender, such Costs shall be deemed to constitute disbursement of
the Loan proceeds hereunder (even if the total amount of disbursements would exceed the face amount
of the Note) and shall constitute additional indebtedness of Borrowers to Lender, secured by the
Mortgages and all other Loan Documents and bearing interest from ten (10) business days after
demand at the Default Rate. Notwithstanding the foregoing, nothing herein shall obligate Borrowers
to pay the Lender’s attorney fees and expenses in connection with any dispute with respect to the
Loan which is determined in favor of Borrowers or any of them.



17









 





     3.24 Loan Expenses. Borrowers agree to pay all expenses of the Loan, including all
amounts payable pursuant to Section 3.25 of this Agreement, and also including all recording
charges, title insurance charges, costs of surveys, costs for certified copies of instruments,
escrow charges, fees, expenses and charges of architectural/engineering consultants of Lender,
reasonable fees and expenses of Lender’s attorneys, and all costs and expenses incurred by Lender
in connection with the determination of whether any Borrower has performed the obligations
undertaken by Borrowers under this Agreement or has satisfied any conditions precedent to the
obligations of Lender under this Agreement. All such expenses, charges, costs and fees shall be the
Borrowers’ obligation regardless of whether the Loan is disbursed in whole or in part unless such
failure to disburse is due to Lender’s wrongful failure to disburse hereunder. Any and all advances
or payments made by Lender under this Agreement from time to time, or for reasonable fees of
architectural and engineering consultants and reasonable attorneys’ fees and expenses, if any, and
all other reasonable Loan expenses which are the responsibility of Borrowers hereunder and/or under
any other Loan Document shall, as and when advanced or incurred by Lender, constitute additional
indebtedness evidenced by the Note and secured by the Mortgages and the other Loan Documents to the
same extent and effect as if the terms and provisions of this Agreement were set forth therein,
whether or not the aggregate of such indebtedness shall exceed the aggregate face amount of the
Note. It is specifically acknowledged and agreed that Borrowers shall not be responsible for any
loan servicing fees, administrative fees or monitoring fees in connection with the Loan, unless
such fees are provided for herein, or arise due to requests by any Borrower or acts by any Borrower
in contravention of the Loan Documents. All such fees shall be charged at the then standard rate
charged to borrowers for such services with respect to similar loans. Typical services for which
administrative fees are payable are shown on Schedule “D” hereto.



     3.25 Loan Fees. Borrowers agree to pay the loan fees (“Loan Fees”) as are set forth
in the Application/Commitment, subject to the terms and conditions set forth therein. Borrowers
shall pay all Loan Fees at the times set forth in the Application/Commitment and shall pay all
expenses incurred by Lender at the Loan Opening Date and on demand at such subsequent times as
Lender may determine including reasonable administrative fees and expenses in connection with any
modification of any of the terms of the Loan. Lender may require the payment of such fees and
expenses as a condition to the disbursement of the Loan.



     3.26 No Additional Debt. No Borrower shall, without the prior written consent of
Lender, incur any indebtedness (whether personal or nonrecourse, secured or unsecured) in
connection with the Project owned by it, other than customary trade payables paid within sixty (60)
days after they are incurred.



4. REPRESENTATIONS AND WARRANTIES. To induce Lender to execute this Agreement and perform
the obligations of Lender hereunder, Borrowers, collectively, and each Borrower individually, as
applicable, hereby represents and warrants to Lender as follows:




     4.1 Title. On the Loan Opening Date and thereafter, each Borrower will have good and
marketable fee simple title to the Parcel owned by it as shown on Exhibit “A”, subject only to the
Permitted Exceptions, as applicable.



18









 





     4.2 No Litigation. Except for claims fully covered by insurance, where the insurance
company is defending such claims and such defense is not being provided under a reservation of
rights, and except as disclosed in writing to Lender prior to the date hereof, each Borrower
represents and warrants that there is no pending litigation or unsatisfied judgment entered of
record against such Borrower or the Project owned by it; and no litigation or proceedings are
pending, or to such Borrower’s knowledge are threatened, (i) which might affect the validity or
priority of the lien of the Mortgage executed by it, (ii) which might affect the ability of such
Borrower to perform its obligations pursuant to and as contemplated by the terms and provisions of
this Agreement and the other Loan Documents, or (iii) which could materially and adversely affect
the operations or financial condition of such Borrower or the Project owned by it.



     To the knowledge of Borrowers, no litigation is pending or threatened, (i) which might affect
the ability of Indemnitor to perform its obligations pursuant to and as contemplated by the terms
and provisions of this Agreement and the other Loan Documents, or (ii) which could materially and
adversely affect the operations or financial condition of Indemnitor.



     4.3 Due Authorization. Each Borrower represents and warrants that the execution and
delivery of the Loan Documents and all other documents executed or delivered by or on behalf of
such Borrower pertaining to the Loan have been duly authorized or approved by such Borrower and,
when executed and delivered by such Borrower or when caused to be executed and delivered on behalf
of such Borrower, will constitute the legal, valid and binding obligations of such Borrower,
enforceable in accordance with their respective terms except as limited by bankruptcy, insolvency,
or other laws of general application relating to the enforcement of creditor’s rights, and the
payment or performance thereof will be subject to no offsets, claims or defenses of any kind or
nature whatsoever.



     4.4 Breach of Laws or Agreements. Each Borrower represents and warrants to Lender that
the execution, delivery and performance of this Agreement and the other Loan Documents have not
constituted (and will not, upon the giving of notice or lapse of time or both, constitute) a breach
or default under any other agreement to which such Borrower is a party or may be bound or affected,
or a violation of any Law which may affect the Project owned by such Borrower, any part thereof,
any interest therein, or the use thereof, or such Borrower.



     To the knowledge of Borrowers, the execution, delivery and performance of this Agreement and
the other Loan Documents have not constituted (and will not, upon the giving of notice or lapse of
time or both, constitute) a breach or default under any other agreement to which Indemnitor is a
party or may be bound or affected, or a violation of any Law which may affect Indemnitor.



     4.5 Leases. Each Borrower represents and warrants that neither it nor its agents have
entered into any leases or other arrangements for occupancy of space within the Project owned by it
other than leases shown on the most recent rent roll furnished to Lender (the “Rent Roll”) by such
Borrower with respect to its Project. All leases disclosed on the Rent Roll are in full force and
effect and to such Borrower’s actual knowledge, there are no existing defaults thereunder other
than as disclosed in writing to Lender.



19









 





     4.6 Condemnation. Each Borrower represents and warrants that (i) no condemnation of
any portion of the Project owned by it, (ii) no condemnation or relocation of any roadways abutting
such Project, and (iii) no denial of access to such Project from any point of access to such
Project, has commenced or, to such Borrower’s actual knowledge, is pending or, to its actual
knowledge contemplated by any Governmental Authority.



     4.7 Condition of Improvements. Each Borrower represents and warrants to Lender that
to the best of its knowledge and except as may be disclosed in the property condition reports for
the Parcel owned by it delivered to Lender in connection with the Loan, as of the date hereof: (i)
the foundations and structure of the Project Improvements owned by it are structurally sound and
the various mechanical systems have adequate capacities and are in good working condition; (ii)
such Project Improvements were built in substantial compliance with applicable plans and
specifications furnished to Lender’s Engineer; (iii) such Project Improvements are in substantial
compliance with all applicable Building Laws, including but not limited to The American’s with
Disabilities Act; (iv) certificates of occupancy with respect to such Project Improvements, and any
other certificates which may be required to evidence compliance with building codes and permits and
approval for full occupancy of such Project Improvements and all installations therein have been
issued by all appropriate authorities (except for certificates of occupancy or comparable permits
required to be obtained by the applicable tenant under its lease for space in such Project); and
(v) no capital expenditures or deferred maintenance for such Project Improvements is required other
than those that would be normally expected for a building of similar age and type. As of the date
hereof, no written notice of violation of any Building Law with respect to the Project owned by it
has been received by such Borrower.



     4.8 Information Correct. All financial statements furnished to Lender by Borrowers or
Indemnitor fairly present the financial condition of such persons or entities and were prepared in
accordance with a method of preparation consistently applied, and all other information previously
furnished by Borrowers or Indemnitor to Lender in connection with the Loan are true, complete and
correct in all material respects except as otherwise disclosed to Lender in writing and do not fail
to state any material fact necessary to make the statements made not misleading. Neither Borrowers
nor, to the best knowledge of Borrowers, Indemnitor have misstated or failed to disclose to Lender
any material and adverse fact actually known to Borrowers or Indemnitor or any of them as of the
date hereof relating to: (i) the condition, use or operation of the Projects, (ii) the status or
any material condition of any tenant or lease at the Projects known to it, (iii) Borrowers, (iv)
Indemnitor, or (v) the litigation disclosure provided by Borrowers and Indemnitor, except as
disclosed in writing to Lender prior to the date hereof.



     4.9 Material Adverse Change. As of the date hereof, no material adverse change in the
operations or financial condition of Borrowers, or to the best knowledge of Borrowers, Indemnitor,
has occurred since the respective effective dates of their financial statements previously
submitted to Lender or Mortgage Correspondent, and, as of the date hereof, no material adverse
change in the condition (physical or economic) of the Projects has occurred since the date of the
Application/Commitment.





20












 





     4.10 Solvency. Neither any Borrower, nor to the best knowledge of Borrowers,
Indemnitor, is (i) currently insolvent on a balance sheet basis, or (ii) currently unable to pay
its debts as they come due and no bankruptcy or receivership proceedings are contemplated or
pending as to any of them.



     4.11 Zoning. Each Borrower represents and warrants to Lender that to its actual
knowledge, and except as disclosed in the property condition report or property compliance report
addressed to Lender, the use of the Project owned by it (including contemplated accessory uses)
does not violate (i) any Building Law or any Environmental Law, or (ii) any restrictions of record,
or any agreement affecting such Project or any part thereof. Without limiting the generality of the
foregoing, as of the date hereof, all consents, licenses and permits and all other authorizations
or approvals (collectively, “Governmental Approvals”) required to be obtained by such Borrower (as
opposed to any tenant) relating to the use and operation of such Project have been complied with.



     4.12 Utilities. Each Borrower represents and warrants to Lender that the Project owned
by it has adequate water, gas and electrical supply, storm and sanitary sewerage facilities, other
required public utilities, fire and police protection, and means of appropriate access between such
Project and public highways.



     4.13 Brokerage Fees. No brokerage fees or commissions are payable by or to any person
in connection with this Agreement or the Loan to be disbursed hereunder other than fees payable to
Mortgage Correspondent which fees shall be paid by Borrowers.



     4.14 Encroachments. Each Borrower represents and warrants to Lender that except as
may be disclosed on the survey for the Parcel owned by it and delivered to Lender in connection
with the Loan, no building or other improvement in such Parcel encroaches upon any building line,
setback line, side yard line, or any recorded or visible easement (or other easement of which such
Borrower has knowledge of with respect to such Parcel).



     4.15 Separate Parcel. Each Borrower represents and warrants to Lender that except as
otherwise disclosed to Lender in writing, the Parcel owned by such Borrower is taxed separately
without regard to any other property and for all purposes such Parcel may be mortgaged, conveyed,
and otherwise dealt with as an independent parcel.



     4.16 ERISA. Each Borrower represents and warrants to Lender that the assets of such
Borrower are not “plan assets” of any employee benefit plan covered by ERISA or Section 4975 of the
Internal Revenue Code. The transactions contemplated by this Loan Agreement by or with such
Borrower are not in violation of state statutes regulating investments of and fiduciary obligations
with respect to “governmental plans”, as defined in Section 3(32) of ERISA.



     4.17 Executive Order and Patriot Act. Neither Borrowers, nor any of them, to the best
knowledge of Borrowers, Indemnitor, nor any entity or person owning an interest in or being an
investor or otherwise, in any Borrower or the Indemnitor or their respective constituents or
affiliates are in violation of any laws relating to terrorism or money laundering, including the
Executive Order and the Patriot Act as defined in Section 1 hereof; provided that Borrowers make no
representation or warranty with respect to indirect owners of any Borrower whose indirect ownership
derives from ownership in publicly traded companies or non traded public companies that are
directly or indirectly an owner of Borrower; e.g. Cole Credit Property Trust III, Inc.



21









 





     4.18 No Default. No Event of Default has occurred and is continuing and, as of the
date hereof, no Default exists.



     4.19 Trade Name; Principal Place of Business. Each Borrower represents and warrants
to Lender that it uses no trade name other than its actual name set forth herein. The principal
place of business of each Borrower is as stated on page 1 hereof.



     4.20 FIRPTA. Each Borrower represents and warrants to Lender that it is not a
“foreign person” within the meaning of Sections 1445 or 7701 of the Internal Revenue Code.



     4.21 RICO. Neither Borrowers, nor any of them, nor to the best knowledge of
Borrowers, Indemnitor has been charged with nor, to its knowledge, is it under investigation for,
possible violations of the Racketeer Influenced and Corrupt Organizations Act, the Continuing
Criminal Enterprise Act, the Controlled Substance Act of 1978, or similar laws providing for the
possible forfeiture of any of its respective assets or properties.



     4.22 No Casualty. Each Borrower represents and warrants to Lender that no part of the
Project owned by it has been damaged by fire or other casualty except as disclosed in writing to
Lender.



     4.23 Truth of Recitals. All statements set forth in the Recitals are true and correct
as of the date hereof.


5. CASUALTY AND CONDEMNATION.




     5.1 Lender’s Right to Settle Claims; Election to Apply Insurance and Condemnation Proceeds
to Indebtedness. Except as otherwise provided in this Section 5.1, and subject to the
provisions of Sections 3.3 and 3.6 hereof, in the event of any loss or damage to any portion of any
Project due to fire or other casualty, or any taking of any portion of any Project by condemnation
or under power of eminent domain, Lender may, in its sole and absolute discretion, either apply the
proceeds to the Loan balance or disburse them for the purposes of repair and restoration.
Notwithstanding, each Borrower has the right to use insurance or condemnation proceeds to rebuild
following a casualty or a condemnation of the Improvements owned by it or to remedy the effect on
the Project owned by it of any condemnation, provided that (i) Lender shall have the right to
settle any claim or award that such Borrower has not settled on or before one hundred twenty (120)
days after the date of such loss or prior to the date of such taking and (ii) each of the following
is satisfied: (a) no Event of Default exists under the Loan Agreement, the Note or other Loan
Documents, (b) no more than two payment Events of Default have occurred during the preceding twelve
months, (c) the proceeds received by Lender, together with any additional funds deposited with
Lender by such Borrower, are sufficient, in Lender’s sole and absolute discretion, either to
restore said Project to substantially the same condition existing before the casualty or to remedy
the condemnation, (d) local building and zoning laws allow such Project to be rebuilt to be
substantially similar to such Project as existed prior to the casualty or condemnation, (e) a loss
of no more than 5% of the commercial tenant rental income results through commercial tenants
exercising rights to terminate or amend their leases as a result of such casualty or condemnation,
and (f) the Loan-to-Value ratio of such Project on completion will be 55% or less, as determined by
an Appraisal which Appraisal shall be at such Borrower’s expense. Lender may condition
disbursements from such proceeds on approval of plans and



22









 







specifications, compliance with disbursement procedures, submittal of appropriate evidence of
completion and updating and endorsement of Lender’s mortgagee title insurance policy. If, and only
if, Lender is entitled to retain such proceeds pursuant to this Section 5.1, Lender may, in it sole
and absolute discretion, either apply the proceeds to the Loan balance without premium or penalty
or disburse the proceeds for repair and reconstruction of said Project. Notwithstanding anything to
the contrary contained herein, in the event the casualty or condemnation proceeds received are less
than 3% of the original Loan amount allocated to such Project, such Borrower will not have to
satisfy condition (f) above in order to have the right to obtain the insurance or condemnation
proceeds to repair or reconstruct said Project.


Notwithstanding the foregoing, for Project Improvements and Tenant Improvements leased pursuant to
an Approved Lease, Lender will permit insurance and condemnation proceeds to be held and disbursed
in accordance with the terms of such Approved Lease, provided that the subject Approved Lease
remains in full force and effect and the applicable Borrower provides evidence reasonably
acceptable to Lender that the applicable Tenant remains obligated to perform under such Approved
Lease. To the extent consistent with terms of the Approved Lease, Lender may condition
disbursements from such proceeds on approval of plans and specifications, compliance with
disbursement procedures, submittal of appropriate evidence of completion and updating and
endorsement of Lender’s mortgagee title insurance policy. Any insurance or condemnation proceeds
that are not required under the Approved Lease to be paid to a Tenant shall be paid to Lender and
applied or disbursed in accordance with the provisions hereof. As to insurance or condemnation
proceeds not required hereby to be applied to the restoration, the Lender may, in it sole and
absolute discretion, either apply the proceeds to the Loan balance or disburse the proceeds for the
purposes or repair and reconstruction or to remedy the effect of a condemnation. No prepayment
premium will be charged on proceeds applied to reduce the principal balance of the Loan. If there
is an uncured Default such Borrower shall have no interest in any of said condemnation or insurance
proceeds.



Provided that no Event of Default exists and subject to the provisions of the applicable Approved
Lease (if any), (a) Borrowers may settle all claims up to the aggregate of $300,000 for all claims
by all Borrowers directly with the insurance company without the prior consent of Lender provided
that (i) each applicable Borrower uses or causes the proceeds of any claim to be used to rebuild or
restore the applicable Project to substantially the same condition existing prior to the casualty,
(ii) such Borrower provides Lender with written notice of the casualty, and (iii) local building
and zoning laws allow such Project to be rebuilt to substantially the same condition existing prior
to the casualty. Failure of any Borrower to either use the insurance proceeds received directly
from the insurance company to rebuild and restore or to pay same to Lender as provided herein will
constitute an Event of Default under the Loan Documents and is a Recourse Event as defined in
Section 9.18.



Except as otherwise provided in this Section 5.1, Lender shall have the right (but not the
obligation) to collect, retain and apply to the indebtedness of Borrowers under this Agreement and
the other Loan Documents all insurance and condemnation proceeds (after deduction of all expenses
of collection and settlement, including attorneys’ and adjusters’ fees and expenses), thereunder in
the event that, in the judgment of Lender the balance of the affected Projects (i) does not provide
adequate security or (ii) does not generate sufficient cash flow to pay all Project expenses,
including debt service on the balance of the Loan, taking into account applicable loss of rents
proceeds. Any proceeds remaining after application to the indebtedness of Borrowers under this
Agreement and the other Loan Documents shall be paid by Lender to the applicable Borrower or the
party then entitled thereto.




23









 








     5.2 Borrower’s Obligation to Rebuild and Use of Proceeds Therefor. If Lender does not
elect to or is not entitled to apply fire or casualty insurance proceeds to the indebtedness, and
if not otherwise inconsistent with the terms of any applicable Approved Lease, all insurance
proceeds received will be deposited into a third party escrow account controlled by Lender or its
Mortgage Correspondent. Lender shall have a first and prior security interest in each such escrow
account. If any such fire or casualty results in rental abatement under any Approved Lease, Lender
may also require that the applicable Borrower deposit any deficit between the business interruption
or loss of rents proceeds received and the debt service due under the Loan Documents during the
period of rebuilding or restoration of such Improvements. Subject to the terms of Sections 3.6 and
5.1 of this Agreement, Lender shall have the right (but not the obligation) to settle, collect and
retain such proceeds, and after deduction of all expenses of collection and settlement, including
attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower
periodically, provided that such Borrower shall:



     (a) Expeditiously repair and restore, or cause to be repaired and restored, all damage to the
portion of the applicable Project resulting from such fire or other casualty, including completion
of the construction if such fire or other casualty shall have occurred prior to completion, so that
such Project will be completed in accordance with the plans and specifications therefor; and



     (b) If the proceeds of fire or casualty insurance (and the undisbursed available Loan proceeds
for construction) are, in Lender’s sole judgment, insufficient to complete the repair and
restoration of the buildings, structures and other improvements constituting the affected Project,
then such Borrower shall promptly deposit with Lender the amount of such deficiency.



     Any request by a Borrower for a disbursement by Lender of fire or casualty insurance proceeds
and funds deposited by such Borrower pursuant to this Section 5.2 and the disbursement
thereof shall be conditioned upon such Borrower’s compliance with and satisfaction of the same
conditions precedent as would be applicable in connection with construction loans made by
institutional lenders for projects similar to the subject Project, including approval of plans and
specifications, submittal of evidence of completion, updated title insurance, lien waivers, and
other customary safeguards, to the extent such requirements are not inconsistent (as determined by
Lender) with the terms of any Approved Lease governing the disbursement of such proceeds, as
described in Section 5.1 above.


6. ASSIGNMENTS.




     6.1 Lender’s Right to Assign. Lender shall have the right to assign, transfer, sell,
negotiate, pledge or otherwise hypothecate this Agreement and any of its rights and security
hereunder, including the Note, Mortgages, and any other Loan Documents. Lender, at Lender’s
expense, shall have the right to hire outside firms it deems necessary to assist with the
servicing, administration and monitoring of the Loan. Borrowers hereby agree that all of the rights
and remedies of Lender in connection with the interest so assigned shall be enforceable against
Borrowers by such assignee with the same force and effect and to the same extent as the same would
have been enforceable by Lender but for such assignment. Borrowers agree that Lender shall have
the right to sell participations in the Loan or to include the Note in a securitized pool of
indebtedness without the consent of Borrowers, and without any cost or expense to Borrowers.



24









 





     6.2 Prohibition of Assignments by Borrower. No Borrower shall assign or attempt to
assign its rights under this Agreement. Except as provided in Section 6.3 hereof, no Borrower will
suffer or permit any of its interest or rights in its Project or its membership or partnership
interests to be assigned, sold, pledged, encumbered, transferred, hypothecated or otherwise
disposed of until the provisions of this Agreement have been fully complied with and the Loan and
all other sums evidenced by the Note and/or secured by the Mortgages and other Loan Documents, have
been repaid in full; provided, however, any Borrower shall be permitted to grant customary utility
easements (which do not affect the marketability of title or encroach upon any Improvements) to
facilitate the delivery of utility services to the Project it owns in the normal course of business
without the prior consent of Lender.



     6.3 Transfers of Interests in any Borrower. No Borrower, nor any partner, member or
shareholder of any Borrower shall be permitted to make a sale, conveyance, transfer or other
vesting of any direct or indirect interest in any Borrower (other than a general partnership
interest in a Borrower if Borrower is a limited partnership) up to an aggregate of 49% of the total
interests of any Borrower without the prior consent of Lender, except for any such sale,
conveyance, transfer or other vesting that does not change the direct or indirect control or
management of any Borrower. Copies of any and all documents evidencing any such sale, conveyance,
transfer or other vesting must be provided to Lender within ten (10) business days after the
occurrence of said action including, without limitation, a statement detailing the action and a
listing of reallocations and percentages of ownership interest in such Borrower. Except as set
forth in the first sentence of this Section 6.3, no direct or indirect interests or management
control in (1) any Borrower’s interest in any Project, or (2) any Borrower, (3) any partner, member
or shareholder of any Borrower or (4) any entity that owns (directly or indirectly) at least a 10%
interest in or has decision making control of any partner, member or shareholder of any Borrower
may be sold, transferred (either to third parties or to related entities) conveyed, encumbered,
secured, pledged or vested without the prior written consent of Lender (which Lender may withhold
at its sole discretion), and the occurrence of any such event will constitute an Event of Default
under the Loan Documents. Notwithstanding, the foregoing, any transfers that would result in
multiple borrowers in replacement of a single Borrower, or more borrowers than was originally
contemplated during the term of the Loan, shall be strictly prohibited.


In addition to the above, the following transfers shall not be deemed to be prohibited transfers:
any transfers of ownership interest within Cole REIT III Operating Partnership, LP (together with
its wholly owned subsidiaries, “Cole’”) provided that the transfer does not change the direct or
indirect control or management of Cole.




25









 








     6.4 One Time Transfer. Lender may consent to a one-time transfer of Borrowers’
interest in the Projects to a purchaser, if the Loan is not then in Default and if the Lender
approves of the proposed buyer’s ownership structure, financial strength, creditworthiness and
management capabilities. The transferee and its principals must assume all of Borrowers’ and
Indemnitor’s liabilities and obligations under the terms of the Loan Documents including those
liabilities and obligations listed in Section 9.18 hereof. The Borrowers and Indemnitor shall not
remain liable for any liabilities and obligations described in the Loan Documents and Recourse
Events described in Section 9.18 first occurring after such transfer; however, Borrowers and
Indemnitor shall remain liable for any liabilities and obligations in the Loan Documents including
the Recourse Events first occurring prior to such transfer. Such a transfer will be conditioned on
the execution and delivery of all required documents, and compliance with all of Lender’s standard
requirements for similar assumption transfers, together with the payment of an assumption fee of
one percent (1%) of the then outstanding principal balance of the Loan and payment of any costs and
expenses (including reasonable attorneys fees) of Lender in connection therewith. Lender shall not
be obligated to entertain any request from a proposed buyer for the modification of any substantive
provision of the Loan Documents. Borrowers, Indemnitor and buyer shall execute all documents and
comply with all other standard requirements of Lender in connection therewith.



     6.5 Successors and Assigns. Subject to the foregoing restrictions on transfer and
assignment contained in this Article 6, this Agreement shall inure to the benefit of and shall be
binding on the parties hereto and their respective successors and assigns.


7. EVENTS OF DEFAULT.




     7.1 The occurrence of any one or more of the following shall constitute an “Event of Default,”
as such term is used herein:



     (a) If any payment of principal or interest under the Note is not paid in full when due;



     (b) If any Borrower defaults in the performance of any of its other covenants, agreements and
obligations under this Agreement or any other Loan Document involving the payment of money, and
fails to cure such default within ten (10) days after written notice thereof from Lender;



     (c) If any Borrower defaults in the performance of any of its non-monetary covenants,
agreements and obligations under this Agreement and fails to cure such default within thirty (30)
days after written notice thereof from Lender; provided, however, that if such
default is reasonably susceptible of cure, but cannot be cured within such thirty (30) day period,
then so long as Borrower promptly commences cure and thereafter diligently pursues such cure to
completion, the cure period shall be extended for an additional thirty (30) days, within which
Borrower may complete such cure;



     (d) If at any time or times hereafter any representation or warranty (including the
representations and warranties of any Borrower set forth herein and in any other Loan Document),
statement, report or certificate furnished to Lender in connection with the Loan is not true and
correct in any material respect;



26









 





     (e) If any petition is filed by or against any Borrower or Indemnitor under the Federal
Bankruptcy Code or any similar state or federal Law, whether now or hereafter existing (and, in the
case of involuntary proceedings, failure to cause the same to be vacated, stayed or set aside
within sixty (60) days after filing);



     (f) If any assignment, pledge, encumbrance, transfer, hypothecation or other disposition is
made in violation of Section 6.2 or Section 6.3 of this Agreement;



     (g) If any Borrower or Indemnitor shall fail to pay any debt owed by it or is in default under
any agreement with Lender or any other party (other than a failure or default for which the maximum
liability of such Borrower or Indemnitor does not exceed 25% of their respective assets) and such
failure or default continues after any applicable grace period specified in the instrument or
agreement relating thereto; or



     (h) If a default occurs under any of the other Loan Documents executed by any Borrower and
continues beyond the applicable grace period, if any, contained therein.


8. REMEDIES.




     8.1 Remedies Conferred Upon Lender. Upon the occurrence of any Event of Default,
including, without limitation, the filing by any Borrower of a voluntary petition under Chapter 11
of the Bankruptcy Code, Lender shall have the right (but not the obligation) to pursue any one or
more of the following remedies concurrently or successively, it being the intent hereof that all
such remedies shall be cumulative and that no such remedy shall be to the exclusion of any other:



     (a) Declare the Note to be immediately due and payable;



     (b) Use and apply any monies deposited by any Borrower with Lender, including amounts in the
Escrow Account, regardless of the purpose for which the same was deposited, to cure any such
default or to apply on account of any indebtedness under this Agreement which is due and owing to
Lender; and



     (c) Exercise or pursue any other right or remedy permitted under this Agreement or any of the
Loan Documents or conferred upon Lender or available to Lender at law or in equity or otherwise.



     8.2 Non-Waiver of Remedies. No waiver of any breach or default hereunder shall
constitute or be construed as a waiver by Lender of any subsequent breach or default or of any
breach or default of any other provision of this Agreement.



     8.3 Cash Collateral Account. Upon the occurrence of an Event of Default, at the
request of Lender each Borrower shall deposit all revenues from the operation of the Project owned
by it into an account held by and pledged to Lender (“Cash Collateral Account”). Lender shall not
pay interest on any amounts held on deposit in the Cash Collateral Account, unless required to do
so under applicable law. Each Borrower shall execute such documents as Lender, in its sole
discretion, deems necessary to perfect its interest in the Cash Collateral Account.



27









 




9. GENERAL PROVISIONS.




     9.1 Captions. The captions and headings of various Articles and Sections of this
Agreement and Exhibits pertaining hereto are for convenience only and are not to be considered as
defining or limiting in any way, the scope or intent of the provisions hereof.



     9.2 Merger. This Agreement, the Application/Commitment and the Loan Documents and
instruments delivered in connection herewith, as may be amended from time to time in writing,
constitute the entire agreement of the parties with respect to the Project and the Loan, and all
prior discussions, negotiations and document drafts are merged herein and therein. If there are
any inconsistencies between the Application/Commitment and this Agreement or the Loan Documents,
the terms contained in this Agreement and the other Loan Documents shall prevail. Neither Lender
nor any employee of Lender has made or is authorized to make any representation or agreement upon
which Borrowers may rely unless such matter is made for the benefit of Borrowers and is in writing
signed by an authorized officer of Lender. Each Borrower agrees that it has not and will not rely
on any custom or practice of Lender, or on any course of dealing with Lender, in connection with
the Loan unless such matters are set forth in this Agreement or the Loan Documents or in an
instrument made for the benefit of Borrower and in a writing signed by an authorized officer of
Lender.



     9.3 Notices. Any notice, demand, request or other communication which any party
hereto may be required or may desire to give hereunder shall be in writing, addressed as follows
and shall be deemed to have been properly given if hand delivered, if sent by reputable overnight
courier (effective the business day following delivery to such courier) or if mailed (effective two
business days after mailing) by United States registered or certified mail, postage prepaid, return
receipt requested:



	 	 	 
	If to Borrowers:

	 	Cole REIT III Operating Partnership, LP

2555 East Camelback Road, Suite 400

Phoenix, Arizona 85016

Attn: Legal Department
	 
	 	 
	with a copy to:

	 	Lytle Cartwright & Smith PLC

9903 E. Bell Road, Suite 110

Scottsdale, Arizona 85260

Attn: Kevin T. Lytle, Attorney
	 
	 	 
	If to Lender:

	 	Jackson National Life Insurance Company

c/o PPM Finance, Inc.

225 West Wacker Drive, Suite 1200

Chicago, IL 60606

Attn: Vice President, Loan Servicing






28









 






	 	 	 
	AND SEPARATELY TO:

	 	Jackson National Life Insurance Company

c/o PPM Finance, Inc.

225 West Wacker Drive, Suite 1200

Chicago, IL 60606

Attn: Vice President, Settlements & Administration






or at such other address as the party to be served with notice may have furnished in writing to the
party seeking or desiring to serve notice as a place for the service of notice. Notices given in
any other fashion shall be deemed effective only upon receipt.



     9.4 Modification; Waiver. No modification, waiver, amendment, discharge or change of
this Agreement shall be valid unless the same is in writing and signed by the party against which
the enforcement of such modification, waiver, amendment, discharge or change is sought. Lender
reserves the right to charge a reasonable administrative fee for any such modification, waiver,
amendment, discharge, or change of this Agreement.



     9.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
INTERNAL LAWS (AS OPPOSED TO THE LAWS OF CONFLICTS) OF THE STATE OF FLORIDA.



     9.6 Acquiescence Not to Constitute Waiver of Lender’s Requirements. Each and every
covenant and condition for the benefit of Lender contained in this Agreement may be waived by
Lender.



     9.7 Disclaimer by Lender.



     (a) This Agreement is made for the sole benefit of Borrowers (and each of their permitted
successors and assigns) and Lender (and Lender’s successors and assigns and participants, if any),
and no other person or persons shall have any benefits, rights or remedies under or by reason of
this Agreement, or by reason of any actions taken by Lender pursuant to this Agreement. Lender
shall not be liable for any debts or claims accruing in favor of any third parties against any
Borrower or others or against any Project. No Borrower is, and no Borrower shall be, an agent of
Lender for any purposes. Except as expressly set forth in the Loan Documents, Lender is not and
shall not be an agent of any Borrower for any purpose. Lender, by making the Loan or taking any
action pursuant to any of the Loan Documents, shall not be deemed a partner or a joint venturer
with any Borrower or fiduciary of any Borrower.



29









 





     (b) Any review, investigation or inspection conducted by Lender, any architectural or
engineering consultants retained by Lender or any agent or representative of Lender in order to
verify independently Borrowers’ satisfaction of any conditions precedent to the disbursement of the
Loan, Borrowers’ performance of any of the covenants, agreements and obligations of Borrowers under
this Agreement, or the truth of any representations and warranties made by Borrowers hereunder
(regardless of whether or not the party conducting such review, investigation or inspection should
have discovered that any of such conditions precedent were not satisfied or that any such
covenants, agreements or obligations were not performed or that any such representations or
warranties were not true), shall not affect (or constitute a waiver by Lender of) (i) any of
Borrowers’ representations and warranties under this Agreement or Lender’s reliance thereon, or
(ii) Lender’s reliance upon any certifications required under this Agreement or any other facts,
information or reports furnished Lender by Borrowers hereunder.



     (c) By accepting or approving anything required to be observed, performed, fulfilled or given
to Lender pursuant to the Loan Documents, including any certificate, statement of profit and loss
or other financial statement, survey, appraisal, lease or insurance policy, Lender shall not be
deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of
the same, or of any term, provision or condition thereof, and such acceptance or approval thereof
shall not constitute a warranty or representation to anyone with respect thereto by Lender.



     9.8 Right of Lender to Make Advances to Cure Borrower’s Defaults. If any Borrower
shall fail to perform any of such Borrower’s covenants, agreements or obligations contained in this
Agreement or the Loan Documents in a timely fashion and such failure shall continue after notice
from Lender and the expiration of any applicable grace or cure period, Lender may (but shall not be
required to) perform any of such covenants, agreements and obligations. Any funds advanced by
Lender in the exercise of its judgment that the same are needed to protect its security for the
Loan are deemed to be obligatory advances hereunder and any amounts expended (whether by
disbursement of undisbursed Loan proceeds or otherwise) by Lender in so doing, shall constitute
additional indebtedness evidenced and secured by the Note, the Mortgages and the other Loan
Documents, shall bear interest from the date expended at the Default Rate and be payable together
with such interest upon demand.



     9.9 Definitions Include Amendments. Definitions contained in this Agreement which
identify documents, including the Loan Documents, shall be deemed to include all amendments and
supplements to such documents from the date hereof, and all future amendments and supplements
thereto entered into from time to time to satisfy the requirements of this Agreement or otherwise
with the consent of the Lender. Reference to this Agreement contained in any of the foregoing
documents shall be deemed to include all amendments and supplements to this Agreement.



     9.10 Time Is of the Essence. Time is hereby declared to be of the essence of this
Agreement and of every part hereof.



30









 





     9.11 Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.



     9.12 Waiver of Consequential Damages. In no event shall Lender be liable to Borrowers,
or any of them, for consequential or punitive damages, whatever the nature of a breach by Lender of
its obligations under this Loan Agreement, or any of the Loan Documents, and each Borrower for
itself and all Affiliated Parties hereby waives all claims for consequential and punitive damages.



     9.13 Claims Against Lender. Lender shall not be in default under this Agreement, or
under any other Loan Documents, unless a written notice specifically setting forth the claim of any
Borrower shall have been given to Lender within thirty (30) days after such Borrower first had
actual knowledge of the occurrence of the event which such Borrower alleges gave rise to such claim
and Lender does not remedy or cure the default, if any there be, promptly thereafter. If it is
determined in any proceedings that Lender has improperly failed to grant its consent or approval,
where such consent or approval is required by this Loan Agreement or any other Loan Documents,
Borrowers’ sole remedy shall be to obtain declaratory relief determining such withholding to have
been improper, and for itself and all Affiliated Parties, each Borrower hereby waives all claims
for damages or set-off against Lender resulting from any withholding of consent or approval by
Lender. Notwithstanding the foregoing, if a court of competent jurisdiction issues a final
unappealable order that Lender’s failure to grant its consent or approval was grossly unreasonable
or in bad faith, then such Borrower may recover actual (but not punitive) damages.



     9.14 Jurisdiction and Venue. With respect to any suit, action or proceedings relating
to this Agreement, the Projects, or any of the other Loan Documents (“Proceedings”) each party
irrevocably (i) submits to the non exclusive jurisdiction of (A) the state and federal courts
located in the State where any Project is located and (B) the appropriate federal or state court in
Palm Beach County, Florida (ii) waives any objection which it may have at any time to the laying of
venue of any proceedings brought in any such court, waives any claim that such Proceedings have
been brought in an inconvenient forum and further waives the right to object, with respect to such
Proceedings, that such court does not have jurisdiction over such party. Nothing in this Agreement
shall preclude either party from bringing Proceedings in any other jurisdiction nor will the
bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in
any other jurisdiction.



     9.15 Severability. The parties hereto intend and believe that each provision in this
Agreement comports with all applicable local, state and federal Laws. However, if any provision or
provisions, or if any portion of any provision or provisions, in this Agreement is found by a court
of law to be in violation of any applicable Law, and if such court declares such portion,
provision, or provisions of this Agreement to be illegal, invalid, unlawful, void or unenforceable
as written, then it is the intent of all parties hereto that such portion, provision, or provisions
shall be given force to the fullest possible extent that they are legal, valid and enforceable, and
that the remainder of this Agreement shall be construed as if such illegal, invalid, unlawful,
void, or unenforceable portion, provision, or provisions were not contained herein, and that the
rights, obligations, and interests of Borrowers and Lender under the remainder of this Agreement
shall continue in full force and effect.



31









 





     9.16 Incorporation of Recitals. The Recitals set forth herein and the Exhibits
attached hereto are incorporated herein and expressly made a part hereof.



     9.17 WAIVER OF JURY TRIAL. BORROWERS, INDEMNITOR AND LENDER EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP
WHICH IS THE SUBJECT OF THIS AGREEMENT AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.



     9.18 Limitation of Liability. Subject to the provisions of this Section 9.18, the Loan
shall be non-recourse to the Borrowers. Accordingly, Lender shall not enforce the liability and
obligation of Borrowers to perform and observe the obligations contained in the Note, this
Agreement, the Mortgages or the other Loan Documents by any action or proceeding wherein a money
judgment shall be sought against Borrowers, or any of them, except that Lender may bring a
foreclosure action, an action for specific performance or any other action or proceeding Lender
deems appropriate to enable Lender to enforce and realize upon its interest under the Note, this
Agreement, the Mortgages and the other Loan Documents, or in the Projects, the rents or any other
collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as
specifically provided herein, any judgment in any such action or proceeding shall be enforceable
against any Borrower only to the extent of a Borrower’s interest in a Project, including the rents
and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the
Mortgages and the other Loan Documents, agrees that it shall not sue for, seek or demand any
deficiency judgment against Borrowers or any of them, in any such action or proceeding under or by
reason of or under or in connection with the Note, this Agreement, the Mortgages or any other Loan
Documents. Notwithstanding the foregoing, each Borrower and the Indemnitor shall be, jointly and
severally, liable for and shall indemnify and defend Lender against, and hold Lender harmless from
and against Lender’s costs, expenses (including reasonable attorney fees), losses and damages
caused by or related to any of the following “Recourse Events” committed, permitted or omitted by
any Borrower, its agents, employees and/or contractors: (i) waste to or of a Project (except to the
extent an Approved Lease permits waste by Tenant with respect to its Tenant Improvements) or a
failure to maintain the condition of each Project in a first-class manner (or as otherwise required
in an Approved Lease); (ii) fraud or material misrepresentation by any Borrower or Indemnitor;
(iii) failure to pay, or to make sufficient payments into the Escrow Account pursuant to Section
3.1 hereof to enable Lender or Mortgage Correspondent to pay, insurance premiums, taxes,
assessments, ground rent or any other lienable impositions as required under the Loan Documents,
including the payment of any applicable Prevailing Deductible described in Exhibit D hereto
toward restoration of a Borrower’s interest in the applicable Project, or failure to apply fire or
casualty insurance proceeds that are not deposited with Lender to the restoration of any Borrower’s
interest in any Project or misapplication of insurance or condemnation proceeds; provided however,
Borrowers and Indemnitor shall have liability for losses and damages under this clause (iii) only
to the extent a deficiency remains following Lender’s exercise of its remedies under the Loan
Documents; (iv) misapplication of tenant security deposits; (v) failure during the existence of a
monetary Event of Default to pay to Lender all rents, income and profits received by Borrowers, the
agents or employees of and from the Projects, net of reasonable and customary operating expenses;
(vi) breach of, or failure to perform under the environmental warranties, representations,
covenants or indemnifications described in any Environmental Indemnity Agreement or in the other
Loan Documents; (vii)



32









 







destruction or removal of fixtures or personal property owned by any Borrower securing the
Loan from any Project, unless replaced by items of equal value; (viii) terminating, renewing,
amending or entering into a lease of any Project, or portion thereof, in violation of the Loan
Documents; (ix) failure of a Borrower’s interest in any Project to comply with the Americans with
Disabilities Act of 1990, as amended, the Fair Housing Act of 1988, as amended, or any other
similar Building Laws during the period of any Borrower’s ownership of its interest in any Project
after any Governmental Authority has notified a Borrower, its agents, employees and/or contractors
of such non-compliance; (x) breaches of representations or covenants contained in the Loan
Documents relating to compliance with terrorism or money laundering laws, including Executive Order
No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”) and Public
Law 107-56, known as the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (the “Patriot Act); (xi) failure to pay to Lender
any rent, income or profits which have been prepaid more than 30 days in advance except in
accordance with an Approved Lease that provided for such prepayment; (xii) willful violation of
applicable law; and (xiii) failure of Borrowers to pay all amounts payable under the Note in full,
together with reasonable attorney fees, if any Borrower transfers or encumbers any Project in
contravention of the Loan Documents, or if any Borrower files a voluntary petition under Chapter 11
of the Bankruptcy Code prior to the one-year anniversary of the transfer of title to a Project to
Lender by foreclosure of deed or other conveyance in lieu of foreclosure or otherwise.



     Nothing contained herein shall be construed to prevent Lender from exercising any remedy
allowed by Law or by the terms of this Agreement or any other Loan Document which does not result
in an obligation by any Borrower to pay money.


10. PARTIAL RELEASE OF COLLATERAL. In the event that any Borrower or Borrowers (“Releasing
Borrower”) sells one or more (but not all) of the Projects to an arms-length third party purchaser,
Lender agrees to release such Project (“Released Property”) from the lien of the applicable Loan
Documents, upon Releasing Borrower’s written request, subject to the following terms and
conditions:




     (i) On the date of Releasing Borrower’s request and on the date of the scheduled release,
there shall be no Event of Default;



     (ii) On the date of Releasing Borrower’s request tenants will be in occupancy, open for
business and paying rent in at least 90% of the square footage of the remaining Projects;



     (iii) On the date requested by Releasing Borrower for such release, Releasing Borrower shall
pay to Lender a “Release Payment” equal to 115% of the then outstanding balance of the Loan
multiplied by the Allocated Loan Percentage shown on Exhibit “C” for the Released Property;



     (iv) On the date scheduled for release, Releasing Borrower shall pay the appropriate
Prepayment Premium in accordance with the prepayment provisions of the Note based on the amount of
the principal balance being paid;



33









 





     (v) On the date scheduled for release, in addition to the applicable Release Payment,
Releasing Borrower shall pay to Lender the actual expenses incurred by Lender in connection with
such release, including without limitation, any title insurance charges and reasonable attorneys’
fees and expenses;



     (vi) All recording costs for the release documents shall be paid by Releasing Borrower; and



     (vii) The Release Payment will be applied pro-rata to pay down the Allocated Loan Amount (as
shown on Exhibit “C”) for each of the remaining Projects based on the Allocated Loan Percentage.


11. JOINT AND SEVERAL. All obligations of Borrowers herein and under the other Loan
Documents are joint and several.



12. MONROVIA SEISMIC REPORT.




     (a) Cole KO Monrovia CA, LP (“Monrovia Borrower”) has provided Lender with a “Seismic Report”
from IVI Assessment Services, Inc., dated July 29, 2009. Pursuant to the Seismic Report and the
Lender’s underwriting requirements, retrofitting is required for the Monrovia Project. Lender has
agreed to waive this requirement provided that all of the following conditions are satisfied on the
Loan Opening Date, and remain satisfied:




	 	1.	 	Insurance coverage or self-insured retention in satisfaction of all applicable
insurance requirements set forth in the applicable Approved Lease is provided by or on
behalf of Kohl’s Department Stores, Inc. (“Monrovia Tenant”); and
	 
	 	2.	 	The Lease dated February 29, 2008 and assigned to Monrovia Tenant on February
17, 2009 remains in full force and effect, without any modification not consented to by
Lender in writing.





     (b) It is understood and agreed that, in the event of the failure of either of the conditions
set forth above, Monrovia Borrower shall undertake, within 90 days of Lender’s request, and shall
thereafter prosecute in good faith to completion alterations and repairs to the Monrovia Project
necessary to comply with the Lender’s reasonable retrofitting requirements in accordance with then
current seismic guidelines and a current seismic report conforming to Lender’s then current seismic
report requirements of such Project.



     (c) Lender hereby acknowledges and agrees that, as of the Loan Opening Date, both of the
foregoing conditions set forth in (a) above are satisfied.




34












 




IN WITNESS WHEREOF, Borrowers and Lender have executed this Agreement as of the day and year first
set forth above.




BORROWERS:




	 	 	 	 	 
	 	COLE HD SAN DIEGO CA, LP,

a Delaware limited partnership



By: Cole GP CCPT III, LLC, a Delaware limited
liability company, its General Partner


 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE HT DURHAM NC, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware
limited liability company, its Manager


 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE KO MONROVIA CA, LP,

a Delaware limited partnership



By: Cole GP CCPT III, LLC, a Delaware limited
liability company, its General Partner


 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 



35









 






	 	 	 	 	 



	 	 	 	 	 
	 	COLE HH NORTH CHARLESTON SC, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware
limited liability company, its Manager


 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE WG EDMOND OK, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware
limited liability company, its Manager


 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE CV SOUTHAVEN MS, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware
limited liability company, its Manager


 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	COLE KO TAVARES FL, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware
limited liability company, its Manager


 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 



36









 






	 	 	 	 	 
	 	COLE BB CORAL SPRINGS FL, LLC,

a Delaware limited liability company



By: Cole REIT Advisors III, LLC, a Delaware
limited liability company, its Manager


 	 
	 	By:  	/s/ Todd J. Weiss
 	 
	 	 	Todd J. Weiss, Vice President 	 
	 	 	 	 
	 



LENDER:




	 	 	 	 	 
	 	JACKSON NATIONAL LIFE INSURANCE COMPANY



By: PPM Finance, Inc., its authorized agent
 
	 
	 
	 	By:  	/s/ David M. Zachar
 	 
	 	 	Name:  	David M. Zachar 	 
	 	 	Title:  	Executive Vice President 	 



37









 






	 	 	 	 	 



SCHEDULE OF EXHIBITS




	 	 	 
	Exhibit A-1

	 	San Diego Land (Legal Description)
	 
	 	 
	Exhibit A-2

	 	Durham Land (Legal Description)
	 
	 	 
	Exhibit A-3

	 	Monrovia Land (Legal Description)
	 
	 	 
	Exhibit A-4

	 	North Charleston Land (Legal Description)
	 
	 	 
	Exhibit A-5

	 	Edmond Land (Legal Description)
	 
	 	 
	Exhibit A-6

	 	Southhaven Land (Legal Description)
	 
	 	 
	Exhibit A-7

	 	Tavares Land (Legal Description)
	 
	 	 
	Exhibit A-8

	 	Coral Springs (Legal Description)
	 
	 	 
	Exhibit B

	 	Improvements
	 
	 	 
	Exhibit C

	 	Loan Allocation (each Project)
	 
	 	 
	Exhibit C-1

	 	Sources and Uses
	 
	 	 
	Exhibit D

	 	Insurance Requirements
	 
	 	 
	Exhibit E

	 	Approved Leases
	 
	 	 
	Schedule A

	 	Borrowers
	 
	 	 
	Schedule B

	 	Ownership of Indemnitor
	 
	 	 
	Schedule C

	 	Reciprocal Easement Agreements
	 
	 	 
	Schedule D

	 	Administrative Fees






38









 






EXHIBIT A-1




SAN DIEGO LAND (LEGAL DESCRIPTION)



PARCEL A:



THE NORTH HALF OF LOT 5 IN BLOCK 45 ACCORDING TO THE MAP OF GRANTVILLE AND OUT LOTS IN THE CITY OF
SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO JUNIPERO LAND AND WATER COMPANY’S
AMENDED MAP NO. 1, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 16,
1894, AS MAP NO. 776.



EXCEPTING THE INTEREST CONVEYED TO THE CITY OF SAN DIEGO BY DEED RECORDED SEPTEMBER 3, 1981 AS
DOCUMENT NO. 81-283655 OF OFFICIAL RECORDS IN AND TO THE EASTERLY 10 FEET OF SAID NORTH HALF.



EXCEPTING THEREFROM, ALL BUILDINGS AND STRUCTURES LOCATED THEREON



PARCEL B:



PARCEL 1 OF PARCEL MAP NO. 18220, IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY OF SAN DIEGO, MARCH 4, 1999
AS INSTRUMENT NO.1999-0013657 OF OFFICIAL RECORDS.



EXCEPTING THEREFROM, ALL BUILDINGS AND STRUCTURES LOCATED THEREON.



SAID PARCELS A AND B BEING MORE PARTICULARLY DESCRIBED ON SURVEY BY ADVANCED LAND SOLUTIONS, UNDER
THE SUPERVISION OF THE MATTHEWS COMPANY, INC., DATED MARCH 9, 2009 AND LAST REVISED JUNE 30, 2009
AS FOLLOWS:



BEGINNING AT THE NORTHWEST CORNER OF PARCEL 1 OF PARCEL MAP NO. 18220, IN THE CITY OF SAN DIEGO,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY
OF SAN DIEGO, MARCH 4, 1999 AS INSTRUMENT NO. 1999-0013657 OF OFFICIAL RECORDS; THENCE NORTH
89o41’25” EAST 580.00 FEET; THENCE SOUTH 00o17’28” EAST 710.31 FEET; THENCE SOUTH 89o41’03” WEST
714.73 FEET; THENCE NORTH 00o16’21” WEST 479.74 FEET; THENCE NORTH 89o43’55” EAST 50.00 FEET;
THENCE NORTH 19o50’21” EAST 245.73 FEET TO THE POINT OF BEGINNING.



EXCEPTING THEREFROM, ALL BUILDINGS AND STRUCTURES LOCATED THEREON.

APN: 461-300-04-00 and 461-150-21-00




39









 








EXHIBIT A-2




DURHAM LAND (LEGAL DESCRIPTION)



Parcel No. 1:



Being all of Lot 1, as shown on the certain final plat entitled “Subdivision of Willowdaile Cinema”
prepared by S.D. Puckett & Assocs, Inc. dated November 1, 1990, last revised December 7, 1990 and
recorded December 21, 1990 in Plat Book 124 at Page 132 (the “Plat”) in the office of the Register
of Deeds in Durham County, North Carolina (the “Registry”), as revised by that certain Final Right
of Way Dedication Plat for IRT Partners, L.P., prepared by BBM Associates, Inc., dated February 5,
2007, last revised April 17, 2007, and recorded November 2, 2007 in Plat Book 179, Page 365 in the
office of the Register of Deeds in Durham County, North Carolina; and being more particularly
described as follows:



ALL THAT CERTAIN PIECE, PARCEL OR TRACT OF LAND SITUATE, LYING AND BEING IN THE CITY OF DURHAM,
COUNTY OF DURHAM, STATE OF NORTH CAROLINA, CONTAINING 6.093 ACRES ACCORDING TO A PLAT ENTITLED
“ALTA/ACSM LAND TITLE SURVEY FOR COLE REAL ESTATE INVESTMENTS” 1501 HORTON ROAD, DURHAM COUNTY,
DURHAM, NORTH CAROLINA (HARRIS TEETER)”, DATED 6/09/09 AND PREPARED BY SITE DESIGN, INC., WITH THE
FOLLOWING METES AND BOUNDS TO WIT:



BEGINNING AT A MAG NAIL SET LOCATED ON THE SOUTHERN RIGHT OF WAY OF HORTON ROAD AT THE JOINT CORNER
OF IRT CAROLINA LLC PROPERTY (LOT 2), NOW OR FORMERLY, SAID MAG NAIL ALSO BEING 251.0’ +/- WEST OF
THE INTERSECTION OF THE WESTERN RIGHT OF WAY OF GUESS ROAD (NC HWY 157) AND THE SOUTHERN RIGHT OF
WAY OF HORTON ROAD; THENCE LEAVING SAID SOUTHERN RIGHT OF WAY RUNNING ALONG THE LINE OF SAID IRT
CAROLINA, LLC (LOT 2) PROPERTY, AND ALSO ALONG THE LINES OF DURHAM GUESS, LLC PROPERTY, (LOT 3),
NOW OR FORMERLY AND OTHER PROPERTY OF IRT CAROLINA, LLC (PART OF LOT 4), NOW OR FORMERLY, S
05-04-25 W 611.27 FEET TO AN OLD 1/2” OPEN TOP IRON PIN AT THE JOINT CORNER OF PEPPERTREE
HOMEOWNERS ASSOCIATION PROPERTY, NOW OR FORMERLY; THENCE TURNING AND RUNNING ALONG THE LINES OF
SAID PEPPERTREE HOMEOWNERS ASSOCIATION PROPERTIES THE FOLLOWING COURSES AND DISTANCES: N 84-52-01 W
261.31 FEET TO AN OLD 2” OPEN TOP IRON PIN; THENCE N 39-47-04 W 289.92 FEET TO AN OLD 1.25” OPEN
TOP IRON PIN; THENCE TURNING AND RUNNING STILL WITH THE LINE OF PEPPERTREE HOMEOWNERS ASSOCIATION
PROPERTY AND ALSO WITH THE LINE OF NNN LANDING APARTMENTS 22, LLC PROPERTY, NOW OR FORMERLY N
05-06-21 E 411.79 FEET TO AN OLD 5/8” REBAR IRON PIN (BENT) LOCATED ON THE SOUTHERN RIGHT OF WAY OF
HORTON ROAD S 84-53-20 E 267.73 FEET TO AN 5/8” REBAR IRON PIN SET; THENCE S 77-57-01 E 50.46 FEET
TO A 5/8” REBAR IRON PIN; THENCE S 84-55-38 E 147.76 FEET TO THE POINT AN PLACE OF BEGINNING.




40









 







Parcel No. 2:



Non-exclusive easement, appurtenant to Parcel No. 1, for private sanitary sewer as created on plat
recorded in Plat Book 124, Page 132, Durham County Registry.



Parcel No. 3:



Non-exclusive easements, appurtenant to Parcel No. 1, for cross access and private sanitary sewer,
as created on plat recorded in Plat Book 179, Page 371, Durham County Registry.



Parcel No. 4



Non-exclusive easement for vehicular and pedestrian traffic through and over the adjacent land
described therein for access to and from Guess Road, as set forth in Reciprocal Easement Agreement
recorded in Book 1709, Page 849, Durham County Registry.



Parcel No. 5:



Non-exclusive easement for vehicular and pedestrian traffic through and over the Access Drive
described therein for access to and from Guess Road, as set forth in Reciprocal Easement Agreement
recorded in Book 2133, Page 401, as amended in Book 5788, Page 530, Durham County Registry.



Parcel No. 6:



Non-exclusive easements for cross access, drainage, sanitary sewer, waterline and temporary
construction purposes, as set forth in Temporary Construction and Permanent Cross Access, Sanitary
Sewer, Storm Drainage and Waterline Easement Agreement, recorded in Book 5788, Page 545, Durham
County Registry.



Parcel No. 7:



Non-exclusive easements for cross access, sanitary sewer and waterline purposes, as set forth in
Temporary Construction and Slope and Permanent Cross Access, Sanitary Sewer and Waterline Easement
Agreement, recorded in Book 5788, Page 557, Durham County Registry.



Parcel No. 8:



Non-exclusive easement for pedestrian and vehicular cross access, ingress and egress, upon, over
and across the driveways, drives aisles and sidewalks as located on the easement parcel described
in easement Agreement recorded in Book 6296, Page 474, Durham County Registry.




41









 








EXHIBIT A-3




MONROVIA LAND (LEGAL DESCRIPTION)



PARCEL 1:



LOT 1 AND LOT 18 OF TRACT NO. 44342, IN THE CITY OF MONROVIA, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 1073, PAGES 79 TO 82 INCLUSIVE OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.



SAID PARCEL BEING MORE PARTICULARLY DESCRIBES ON SURVEY BY ROSELL SURVEYING UNDER THE SUPERVISION
OF THE MATTHEWS COMPANY, JOB NO. 34986, AS FOLLOWS:



LOT 1 AND LOT 18 OF TRACT NO. 44342, IN THE CITY OF MONROVIA, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 1073, PAGES 79 TO 82 INCLUSIVE OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:



BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 1, THENCE ALONG THE OUTER SIDELINES OF SAID LOT 1
THE FOLLOWING 8 COURSES:



1. NORTH 00°25’52” WEST 397.00 FEET; THENCE, 2. SOUTH 89°35’57” WEST 301.00 FEET; THENCE, 3. NORTH
00°24’03” WEST 36.00 FEET; THENCE, 4. SOUTH 89°35’57” WEST 411.48 FEET; THENCE, 5. SOUTH 00°24’03”
EAST 404.00 FEET; THENCE, 6. NORTH 89°35’57” EAST 541.68 FEET; THENCE, 7. SOUTH 00°24’03” EAST
29.00 FEET; THENCE, 8. NORTH 89°35’57” EAST 171.01 FEET TO THE POINT OF BEGINNING.



PARCEL 2:



ALL EASEMENTS AND OTHER USE RIGHTS AS PROVIDED FOR IN THAT GRANT OF RECIPROCAL EASEMENTS AND
DECLARATION OF COVENANTS RECORDED ON DECEMBER 24, 1981, AS INSTRUMENT 81-1260451 AND AS MODIFIED BY
A DOCUMENT RECORDED NOVEMBER 4, 1986, AS INSTRUMENT NO. 86-1507218 AND ALSO BY A DOCUMENT RECORDED
JANUARY 24, 1994, AS INSTRUMENT NO, 94-156908, ALL OF OFFICIAL RECORDS.



APN: 8508-015-067, 8508-015-068, 8508-015-069, 8508-015-070, 8508 015-093, 8508-015-094,
8508-015-095 and 8508-015-096





 









 








EXHIBIT A-4




NORTH CHARLESTON LAND (LEGAL DESCRIPTION)



PARCEL NO. 1:



ALL THAT CERTAIN PIECE, PARCEL OR TRACT OF LAND SITUATE, LYING AND BEING IN THE CITY OF NORTH
CHARLESTON, COUNTY OF CHARLESTON, STATE OF SOUTH CAROLINA, BEING KNOWN AND DESIGNATED AS “TRACT 4”
AS SHOWN ON PLAT OF SURVEY RECORDED IN THE RMC OFFICE FOR CHARLESTON COUNTY, SC IN PLAT BOOK EL,
PAGE 407 AND CONTAINING 2.416 ACRES ACCORDING TO A PLAT ENTITLED “ALTA/ACSM LAND TITLE SURVEY
PREPARED FOR COLE REAL ESTATE INVESTMENTS, 2150 MORRIS BAKER BOULEVARD, CHARLESTON COUNTY, NORTH
CHARLESTON, SOUTH CAROLINA (HH GREGG), DATED 5/04/09 BY SITE DESIGN, INC. WITH THE FOLLOWING METES
AND BOUNDS TO WIT:



BEGINNING AT AN OLD 5/8” REBAR IRON PIN LOCATED ON THE WESTERN RIGHT OF WAY OF RIVERS AVENUE (U.S.
HIGHWAY 52 & 78) AT THE JOINT CORNER OF NAVY FEDERAL CREDIT UNION PROPERTY, NOW OR FORMERLY, SAID
IRON PIN ALSO BEING LOCATED AT THE NORTHEASTERN END OF A SIGHT FLARE MARKING THE INTERSECTION OF
THE WESTERN RIGHT OF WAY OF SAID RIVERS AVENUE (U.S. HIGHWAY 52 & 78) AND THE NORTHERN RIGHT OF WAY
OF MORRIS BAKER BOULEVARD; THENCE RUNNING ALONG SAID SIGHT FLARE AND ALONG A CURVE TO THE RIGHT
HAVING A RADIUS OF 25.00 FEET, AN ARC LENGTH OF 34.07 FEET AND A CHORD BEARING AND DISTANCE OF S
24° 07’ 13” W 31.50 FEET TO AN OLD 5/8” REBAR IRON PIN LOCATED ON THE NORTHERN RIGHT OF WAY OF
MORRIS BAKER BOULEVARD AND ALSO AT THE SOUTHWESTERN END OF SAID SIGHT FLARE; THENCE RUNNING ALONG
SAID NORTHERN RIGHT OF WAY OF MORRIS BAKER BOULEVARD S 63° 17’ 54” W 142.93 FEET TO AN OLD 5/8”
REBAR IRON PIN; THENCE TURNING AND STILL RUNNING WITH SAID RIGHT OF WAY AND ALONG A CURVE TO THE
RIGHT HAVING A RADIUS OF 709.59 FEET, AN ARC LENGTH OF 302.24 FEET AND A CHORD BEARING AND DISTANCE
OF S 74° 49’ 52” W 299.96 FEET TO A MAG NAIL SET; THENCE TURNING AND RUNNING STILL WITH SAID RIGHT
OF WAY AND ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 825.00 FEET, AN ARC LENGTH OF 108.90 FEET
AND A CHORD BEARING AND DISTANCE OF S 84° 48’ 22” W 108.83 FEET TO A 5/8” REBAR IRON PIN SET AT THE
JOINT CORNER OF RIVERS AVENUE DEVELOPMENT, INC. PROPERTY, NOW OR FORMERLY; THENCE TURNING AND
LEAVING SAID RIGHT OF WAY AND RUNNING ALONG THE LINE OF SAID RIVERS AVENUE DEVELOPMENT, INC.
PROPERTY AND ALSO WITH THE LINE OF SUMMIT APARTMENTS, INC. PROPERTY, NOW OR FORMERLY, N 26° 55’ 17”
W 302.26 FEET TO AN OLD 5/8” REBAR IRON PIN AT THE JOINT CORNER OF ATRIUM SIDES, LLC ET AL
PROPERTY, NOW OR FORMERLY, CROSSING OVER AN OLD 2” FLATBAR AT 43.43 FEET; THENCE TURNING AND
RUNNING ALONG THE LINE OF SAID ATRIUM SIDES, LLC ET AL PROPERTY N 68° 55’ 18” E 306.19 FEET TO AN
OLD 3/4” REBAR IRON PIN FOUND AT THE JOINT CORNER OF NAVY FEDERAL CREDIT UNION PROPERTY, NOW OR
FORMERLY; THENCE TURNING AND RUNNING ALONG THE LINES OF SAID NAVY FEDERAL CREDIT UNION PROPERTY THE
FOLLOWING COURSES AND DISTANCES: S 26° 51’ 34” E 366.50 FEET TO AN OLD RR SPIKE; THENCE ALONG A
CURVE TO THE LEFT HAVING A RADIUS OF 708.59 FEET, AN ARC LENGTH OF 90.75 FEET AND A CHORD BEARING
AND DISTANCE OF N 66° 13’ 36” E 90.69 FEET TO A 5/8” REBAR IRON PIN SET; THENCE TURNING AND RUNNING
N 63° 17’ 54” E 117.94 FEET TO AN OLD 5/8” REBAR IRON PIN; THENCE N 26° 59’ 32” W 18.86 FEET TO AN
OLD 5/8” REBAR IRON PIN; THENCE N 63° 15’ 20” E 49.51 FEET TO THE POINT OF BEGINNING.




 









 







PARCEL NO. 2:



All appurtenant easements and use rights provided for in that Declaration of Easements and
Restrictions for North River Center as recorded in Deed Book K660 at Page 91, Charleston County
Registry (the “Declaration:), including, without limitation, a perpetual right and easement to use
and enjoyment in and to the Commons (as defined in the Declaration); (ii) a perpetual right and
easement of access over the Commons to and from each Owner’s tract; (iii) a perpetual right and
easement in the streets, parking, walkways and other portions of the Commons for access, utilities,
and drainage; and (iv) the non-exclusive, perpetual easement for pedestrian and vehicular ingress
and egress in, to upon, over and across an area located along the common boundary of Tract 3 and
Tract 4 for the passage and accommodation of vehicles and pedestrians over and across a joint
driveway upon Tract 3, as set forth in Declaration.




44









 








EXHIBIT A-5




EDMOND LAND (LEGAL DESCRIPTION)



A tract of land lying in the Southeast Quarter (SE/4) of Section Two (2), Township Thirteen (13)
North, Range Three (3) West of the Indian Meridian, Oklahoma County, Oklahoma, being more
particularly described as follows:



Being part of the SE/4 of said Section 2 and all of Lot One (1), Block Three (3), Elwood heights
Addition, Section 7 to the City of Edmond, Oklahoma County, Oklahoma, being further described as:
Beginning at the Southeast corner (said Southeast corner being a PK Nail) of said Section 2; Thence
North 89°13’40” West (Deed West) on the South line of said Section 2 a distance of 214.97 feet
(Deed 13 rods = 214.50 feet) to a point; Thence North 00°21’05” West (Deed North) a distance of
203.30 feet (Deed 12 1/3 rods = 203.50 feet) to a point (said point being a Capped 3/8” Iron Pin);
Thence North 00°01’58” West on the West line of said Lot 1 (Plat North 00°17’24” East) a distance
of 121.59 feet (Plat 121.25 feet) to a point (said point being a 3/8” Iron Pin); Thence South
89°44’07” East (Plat South 89°42’36” East) a distance of 164.88 feet (Plat 164.49 feet) to a point
(said point being a 3/8” Capped Iron Pin); Thence South 00°08’22” West (Plat South 00°17’24” West)
on the East line of said Lot 1 a distance of 123.10 feet (Plat 122.99 feet) to a point (said point
being a 3/8” Iron Pin); Thence South 89°47’10” East a distance of 49.95 feet to a point on the East
line of said Section 2; Thence South 00°12’50” West (Deed South) on the East line of said Section 2
a distance of 203.74 feet (Deed 12 1/3 rods = 203.50 feet) to the point or place of beginning.



The above described parcel is comprised of the following tracts.



Tract 1:



A tract of land lying in the Southeast Quarter (SE/4) of Section Two (2), Township Thirteen (13)
North, Range Three (3) West of the Indian Meridian, Oklahoma County, Oklahoma, being more
particularly described as follows:



Beginning at the Southeast corner of said SE/4 of Section 2; Thence West Thirteen (13) rods (214.50
feet); Thence North Twelve and One-third (12 1/3) rods (203.50 feet); Thence East Thirteen (13)
rods (214.50 feet); Thence South Twelve and One-third (12 1/3) rods (203.50 feet) to the place of
beginning.



Tract 2:



Lot One (1) in Block Three (3) in Elwood Heights Addition, Section 7, an addition to the City of
Edmond, Oklahoma County, Oklahoma, according to the recorded plat thereof.



The foregoing legal descriptions are more particularly described as:



As Surveyed Description



A tract of land lying in the Southeast Quarter (SE/4) of Section Two (2), Township Thirteen (13)
North, Range Three (3) West of the Indian Meridian, Oklahoma County, Oklahoma, being more
particularly described as follows:



Beginning at the Southeast corner of said Section 2; Thence North 89°14’56” West on the South line
of said Section 2 a distance of 214.50 feet; Thence North 00°17’24” East a distance of 203.49 feet
to the Southwest Corner of Lot 1, Block 3, Elwood Heights Addition, Section 7, recorded in Book 45,
Plats, Page 93; Thence continuing North 00°17’24” East a distance of 121.25’ on the West line of
said Lot 1; Thence South 89°42’36”




45









 







East, on the North line of Lot 1 and being the South Right-of-Way line of East 32nd Street, a
distance of 164.49 feet to a point on the West Right-of-Way line of South Boulevard Street; Thence
South 00°17’24” West on said West Right-of-Way line and the East line of said Lot 1, a distance of
122.57 feet; Thence South 89°14’56” East a distance of 50.00 feet to a point on the East line of
said Section 2; Thence South 00°17’24” West on the East line of Section 2 a distance of 203.49 feet
to the point of beginning. Containing 63,700 Sq. Ft. or 1.4623 acres, more or less.



The foregoing legal descriptions are more particularly described on that certain ALTA/ASCM Land
Title Survey dated June 10, 2009, last revised June 23, 2009, by Todd Powers, P.L.S. No.
1369,under supervision of The Matthews Company, Job No. 34948.




46









 








EXHIBIT A-6




SOUTHAVEN LAND (LEGAL DESCRIPTION)



Lot 1, District 21, Phase A, Snowden Farms PUD, situated in Section 33, Township 1 South Range 7
West, DeSoto County, Mississippi, as per plat thereof recorded in Plat Book 108, Pages 14-16, in
the Office of the Chancery Clerk of DeSoto County, Mississippi, and being a part of the Bob White
Land, LLC, Bob White Farm, LLC, RTA Properties, LLC, THT, III Properties, LLC, BST Properties, LLC
and RCT Properties, LLC property as described in Book 569 Page 754 (Parcel V) and being in the
Northeast Quarter of Section 33, Township 1 South, Range 7 West in the City of Southaven, Desoto
County, Mississippi:



Commencing at the recognized and accepted Northeast corner of Section 33, Township 1 South, Range 7
West in the City of Southaven, Desoto County, Mississippi, said point being the intersection of the
centerlines of Goodman Road (Mississippi Highway 302) and Getwell Road; thence North 89 Degrees 22
Minutes 56 Seconds West with the centerline of Goodman Road a distance of 381.27 feet to a point;
thence South 00 Degrees 37 Minutes 04 Seconds West a distance of 75.00 feet to an iron pin set in
the South line of Goodman Road (right-of-way varies) said iron pin being the true point of
beginning; thence South 00 Degrees 14 Minutes 56 Seconds East a distance of 135.94 feet to an iron
pin set at a point of curvature; thence southeastwardly along a curve to the left having a radius
of 216.00 feet a distance of 142.82 feet (chord = South 19 Degrees 11 Minutes 28 Seconds East
140.23 feet, Delta = 37 Degrees 53 Minutes 05 Seconds) to an iron pin set; thence South 50 Degrees
06 Minutes 47 Seconds West a distance of 100.77 feet to an iron pin set; thence North 38 Degrees 42
Minutes 14 Seconds West a distance of 51.82 feet to an iron pin set; thence South 89 Degrees 45
Minutes 04 Seconds West a distance of 216.72 feet to an iron pin set; thence North 00 Degrees 14
Minutes 56 Seconds West a distance of 286.78 feet to an iron pin set in the South line of Goodman
Road; thence easterly along the South line of Goodman Road the following three calls:



South 89 Degrees 11 Minutes 13 Seconds East a distance of 108.14 feet to an iron pin set; thence
North 86 Degrees 28 Minutes 25 Seconds East a distance of 140.05 feet to an iron pin set; thence
South 89 Degrees 22 Minutes 56 seconds East a distance of 33.10 feet to the point of beginning and
containing 1.96 acres.



Together with those appurtenant rights and easements and the benefits thereof to the extent they
represent interest in the real property by virtue of the Declaration of Easements, Covenants,
Conditions and Restrictions dated December 19, 2008 entered into by and among RTA Properties, LLC,
THT, III Properties, LLC, BST Properties, LLC, RCT Properties, LLC, Bob White Land, LLC, and Bob
White Farms, LLC, recorded in Book 600, Page 41, in the Office of the Chancery Clerk of DeSoto
County, Mississippi including, without limitation, all easements as provided for in Section 2 of
said Declaration as well as the following Ingress and Egress Easements:



Ingress/Egress Easement #1



Commencing at the recognized and accepted Northeast corner of Section 33, Township 1 South, Range 7
West in the City of Southaven, Desoto County, Mississippi, said point being the intersection of the
centerlines of Goodman Road (Mississippi Highway 302) and Getwell Road; thence North 89 Degrees 22
Minutes and 56 Seconds West with the centerline of Goodman Road a distance of 381.27 feet to a
point; thence South 00 degrees 37 Minutes 04 Seconds West a Distance of 75.00 feet to an iron pin
set in the south line of Goodman Road (right-of-way varies), thence with the south line of Goodman
Road the following three Calls: -


47









 






North 89 Degrees 22 Minutes 56 Seconds West a distance of 33.10 feet; thence South 86 Degrees 28
Minutes 25 Seconds West a distance of 140.05 feet; thence North 89 Degrees 11 Minutes 13 Seconds
West a distance of 108.14 feet to an iron pin set in the west line of Tract 1; thence South 00
Degrees 14 Minutes 56 Seconds East with said west line a distance of 42.50 feet to a point, said
point being the true point of beginning; thence South 00 Degrees 14 Minutes 56 Seconds East a
distance of 24.00 feet to a point; thence South 89 Degrees 45 Minutes 04 Seconds West a distance of
181.50 feet to a point of curvature; thence northwestwardly along a curve to the right having a
radius of 25.00 feet to a distance of 39.27 feet, Chord = North 45 Degrees 14 Minutes 56 Seconds
West 35.36 feet, Delta = 90 Degrees 00 Minutes 00 Seconds) to a point of tangency; thence North 00
Degrees 14 minutes 56 Seconds West a distance of 45.33 feet to a point in the south line of Goodman
Road; thence South 89 Degrees 11 Minutes 13 Seconds East with the south line of Goodman Road a
distance of 36.51 feet to a point; thence South 00 Degrees 14 Minutes 56 Seconds East a distance of
15.65 feet to a point of curvature; thence southeastwardly along a curve to the left having a
radius of 30.00 feet a distance of 47.12 feet (chord = South 45 Degrees 14 Minutes 56 Seconds East
42.43 feet, Delta = 90 Degrees 00 minutes 00 Seconds) to a point of tangency; thence North 89
Degrees 45 Minutes 04 Seconds East a distance of 140.00 feet to the point of beginning.



Ingress/Egress Easement #2



Commencing at the recognized and accepted Northeast corner of Section 33, Township I South, Range 7
West in the City of Southaven, Desoto County, Mississippi, said point being the intersection of the
centerlines of Goodman Road (Mississippi Highway 302) and Getwell Road; thence South 00 Degrees 07
Minutes 40 Seconds East, with the centerline of Getwell Road a distance of 421.52 feet to a point;
thence South 89 Degrees 52 Minutes 20 Seconds West a distance of 60.00 feet to an iron pin set in
the south line of Tract 2, said iron pin being the true point of beginning;



thence South 00 Degrees 07 Minutes 40 Seconds East with the west line of Getwell Road a distance of
15.50 feet to a point; thence South 89 Degrees 52 Minutes 20 Seconds West a distance of 105.93 feet
to a point of curvature; thence northwestwardly along a curve to the right having a radius of
231.50 feet a distance of 180.52 feet (chord = North 67 Degrees 47 Minutes 18 Seconds West 175.98
feet, Delta = 44 degrees 40 Minutes 44 Seconds) to a point of reverse curve; thence northwestwardly
along a curve to the left having a radius of 15.00 feet a distance of 22.11 feet (chord = North 87
Degrees 40 Minutes 04 Seconds West 20.16 feet, Delta 84 Degrees 26 Minutes 17 Seconds) to a point;
thence South 50 Degrees 06 Minutes 47 Seconds West a distance of 30.21 feet to a point of
curvature; thence southwestwardly along a curve to the left having a radius of 15.00 feet a
distance of 23.11 feet (chord = South 05 Degrees 58 Minutes 26 Seconds West 20.89 feet, Delta 88
Degrees 16 Minutes 42 Seconds) to a point; thence South 47 Degrees 57 Minutes 57 Seconds West a
distance of 24.05 feet to a point on curve; thence northwestwardly along a curve to the left having
a radius of 15.00 feet a distance of 8.96 feet (chord = North 55 Degrees 16 Minutes 09 Seconds West
8.82 feet, Delta 34 Degrees 12 Minutes 27 Seconds) to a point; thence North 38 Degrees 37 Minutes
54 Seconds West a distance of 22.45 feet to a point in the southeast line of Tract 1; thence North
50 Degrees 06 Minutes 47 Seconds East with said southeast line a distance of 100.53 feet to a point
on curve in the south line of Tract 2; thence southeastwardly along a curve to the left having a
radius of 216.00 feet to distance of 196.01 feet (chord South 64 Degrees 07 Minutes 49 Seconds East
189.35 feet, Delta = 51 Degrees 59 Minutes 37 Seconds) to a point; thence North 89 Degrees 52
Minutes 20 Seconds East a distance of 105.93 feet to the point of beginning.




48









 








EXHIBIT A-7




TAVARES LAND (LEGAL DESCRIPTION)



PARCEL NO. 1:



A PARCEL OF LAND COMPRISING OF A PORTION OF GOVERNMENT LOT 2, LYING IN SECTION 22, TOWNSHIP 19
SOUTH, RANGE 26 EAST, LAKE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:



COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST 1/4 OF SAID SECTION 22, THENCE RUN SOUTH 00°03’15”
EAST ALONG THE EAST LINE OF SAID NORTHWEST 1/4 FOR A DISTANCE OF 2645.01 FEET TO THE SOUTHEAST CORNER
OF SAID NORTHWEST 1/4; THENCE CONTINUE SOUTH 00°03’15” EAST ALONG THE WEST LINE OF THE SOUTHEAST 1/4 OF
AFORESAID SECTION 22 FOR A DISTANCE OF 2.75 FEET TO A POINT ALONG THE CENTERLINE OF SURVEY OF STATE
ROAD 500 (U.S. 441), ACCORDING TO THE FLORIDA DEPARTMENT OF TRANSPORTATION MAP, SECTION 11010-2503;
THENCE DEPARTING SAID WEST LINE RUN NORTH 89°57’05” EAST ALONG SAID CENTERLINE FOR A DISTANCE OF
691.63 FEET TO A POINT OF CURVATURE OF A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 2864.93
FEET; THENCE CONTINUING ALONG SAID CENTERLINE RUN NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 08°35’52” FOR AN ARC DISTANCE OF 429.91 FEET TO A POINT ALONG THE NORTHERLY PROJECTION OF
THE EASTERLY LINE OF THE PARCEL, AS DESCRIBED IN THE ORDER OF TAKING AS RECORDED IN OFFICIAL
RECORDS BOOK 2309, PAGE 1759 OF THE PUBLIC RECORDS OF LAKE COUNTY, FLORIDA; THENCE RUN SOUTH
00°01’41” EAST ALONG SAID NORTHERLY PROJECTION FOR A DISTANCE OF 50.56 FEET TO A POINT ALONG THE
SOUTHERLY RIGHT OF WAY LINE OF AFORESAID STATE ROAD 500 (U.S. 441); THENCE DEPARTING SAID SOUTHERLY
RIGHT OF WAY LINE CONTINUE SOUTH 00°01’41” EAST ALONG THE EASTERLY LINE OF SAID ORDER OF TAKING
PARCEL FOR A DISTANCE OF 507.07 FEET TO A POINT ALONG THE NORTHERLY RIGHT OF WAY LINE OF COUNTY
ROAD 19-A (DORA ROAD); THENCE RUN SOUTH 69°10’10” WEST ALONG SAID NORTHERLY RIGHT OF WAY LINE FOR A
DISTANCE OF 235.13 FEET TO A POINT ON THE WESTERLY LINE OF AFORESAID ORDER OF TAKING PARCEL; THENCE
DEPARTING SAID NORTH RIGHT-OF-WAY LINE RUN NORTH 00°01’41” WEST ALONG SAID WESTERLY LINE FOR A
DISTANCE OF 303.34 FEET TO THE POINT OF BEGINNING; THENCE RUN SOUTH 89°58’19” WEST FOR A DISTANCE
OF 54.58 FEET; THENCE RUN SOUTH 00°01’41” EAST FOR A DISTANCE OF 99.08 FEET; THENCE RUN NORTH
90°00’00” WEST FOR A DISTANCE OF 214.45 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE
NORTHEASTERLY, HAVING A RADIUS OF 69.00 FEET; A CHORD DISTANCE OF 35.73 FEET AND A CHORD BEARING OF
NORTH 74°59’44” WEST; THENCE RUN NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
30°00’32” FOR AN ARC DISTANCE OF 36.14 FEET TO A POINT OF REVERSE CURVATURE OF A NON-TANGENT CURVE
CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 125.02 FEET, A CHORD DISTANCE OF 41.61 FEET AND A CHORD
BEARING OF NORTH 69°42’53” WEST; THENCE RUN NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 19°09’34” FOR AN ARC DISTANCE OF 41.81 FEET TO A POINT OF REVERSE CURVATURE OF A NON-TANGENT
CURVE CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 9.50 FEET, A CHORD DISTANCE OF 1.53 FEET AND A
CHORD BEARING OF NORTH 73°40’00” WEST; THENCE RUN NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 9°15’35” FOR AN ARC DISTANCE OF 1.54 FEET; THENCE RUN SOUTH 00°02’55” EAST FOR A DISTANCE
OF 193.94 FEET; THENCE RUN NORTH 89°57’05” EAST FOR A DISTANCE OF 268.42


49









 






FEET; THENCE RUN SOUTH 20°50’31” EAST FOR A DISTANCE OF 59.23 FEET TO A POINT ON THE AFORESAID
NORTHERLY RIGHT OF WAY LINE OF COUNTY ROAD 19-A (DORA ROAD); THENCE CONTINUE SOUTH 69°10’10” WEST
ALONG SAID NORTHERLY RIGHT OF WAY LINE FOR A DISTANCE OF 904.13 FEET TO A POINT ON THE AFORESAID
WEST LINE OF THE SOUTHEAST 1/4 OF SECTION 22, ALSO BEING THE WESTERLY LINE OF GOVERNMENT LOT 2;
THENCE DEPARTING SAID NORTHERLY RIGHT OF WAY LINE RUN NORTH 00°03’15” WEST ALONG SAID WEST AND
WESTERLY LINE FOR A DISTANCE OF 900.34 FEET TO A POINT ON THE AFORESAID SOUTHERLY RIGHT OF WAY LINE
OF STATE ROAD 500 (U.S. 441); THENCE DEPARTING SAID WEST AND WESTERLY LINE RUN NORTH 89°57’05” EAST
ALONG SAID SOUTHERLY RIGHT OF WAY LINE FOR A DISTANCE OF 691.62 FEET TO A POINT OF CURVATURE OF A
CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 2914.93 FEET; THENCE RUN EASTERLY ALONG SAID CURVE AND
SAID SOUTHERLY RIGHT OF WAY LINE THROUGH A CENTRAL ANGLE OF 00°02’47” FOR AN ARC DISTANCE OF 2.36
FEET; THENCE DEPARTING SAID SOUTHERLY RIGHT OF WAY LINE RUN SOUTH 00°01’41” EAST FOR A DISTANCE OF
212.92 FEET; THENCE RUN NORTH 90°00’00” EAST FOR A DISTANCE OF 206.11 FEET TO A POINT ALONG THE
WESTERLY LINE OF AFORESAID ORDER OF TAKING PARCEL; THENCE RUN SOUTH 00°01’41” EAST ALONG SAID
WESTERLY LINE FOR A DISTANCE OF 42.43 FEET TO THE AFORESAID POINT OF BEGINNING.



PARCEL NO. 2:



ALL NON-EXCLUSIVE EASEMENTS AS SET FORTH IN RECIPROCAL EASEMENT AGREEMENT BETWEEN KOHL’S DEPARTMENT
STORES, INC. AND CONTINENTAL 219 FUND, LLC, RECORDED DECEMBER 14, 2007 IN O.R. BOOK 3554, PAGE
1229, INCLUDING WITHOUT LIMITATION THOSE EASEMENTS FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS,
PARKING, UTILITY LINES AND FACILITIES, SIGNAGE, IRRIGATION, STORMWATER DRAINAGE AND DETENTION.




50













 





EXHIBIT A-8




CORAL SPRINGS LAND (LEGAL DESCRIPTION)



PARCEL 1 (FEE PARCEL)



A PORTION OF PARCEL “F”, OAK WOOD, ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT BOOK 80, AT PAGE
39, OF THE PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA, AS AFFECTED BY RESOLUTION NO. 91-380 BY THE
CORAL SPRINGS CITY COMMISSION, RECORDED IN OFFICIAL RECORDS BOOK 19123, PAGE 541, AND CORRECTED BY
RESOLUTION NO. 94-220, RECORDED IN OFFICIAL RECORDS BOOK 22882, PAGE 508, AS FURTHER AFFECTED BY
RESOLUTION NO. 94-222 BY THE CORAL SPRINGS CITY COMMISSION, RECORDED IN OFFICIAL RECORDS BOOK
22887, PAGE 699, AND BY THAT CERTAIN AGREEMENT TO PLACE NOTATION ON A PORTION OF PARCEL F OF THE
OAKWOOD PLAT RECORDED IN OFFICIAL RECORDS BOOK 23426, PAGE 880, OF THE PUBLIC RECORDS OF BROWARD
COUNTY, FLORIDA, DESCRIBED AS FOLLOWS:



COMMENCING AT THE INTERSECTION OF THE CENTER LINE OF WEST ATLANTIC BOULEVARD AS DESCRIBED IN
OFFICIAL RECORDS BOOK 4947, AT PAGE 723, OF SAID PUBLIC RECORDS, WITH THE CENTER LINE OF UNIVERSITY
DRIVE AS DESCRIBED IN OFFICIAL RECORDS BOOK 4741, AT PAGE 623, OF SAID PUBLIC RECORDS; THENCE SOUTH
13° 22’ 08” WEST ALONG SAID CENTER LINE OF UNIVERSITY DRIVE, A DISTANCE OF 110.00 FEET; THENCE
NORTH 76° 37’ 52” WEST, A DISTANCE OF 60.00 FEET TO THE POINT OF BEGINNING ON THE EASTERLY LINE OF
SAID PARCEL “F”; THENCE SOUTH 13° 22’ 08” WEST, ALONG SAID EASTERLY LINE, A DISTANCE OF 191.02 FEET
TO THAT PORTION OF SAID PARCEL “F” DESCRIBED IN OFFICIAL RECORDS BOOK 10728, AT PAGE 925, OF SAID
PUBLIC RECORDS; THENCE SOUTH 17° 51’ 46” WEST, ALONG THE WESTERLY LINE OF SAID PORTION, A DISTANCE
OF 100.70 FEET TO A POINT ON A CURVE CONCAVE TO THE EAST, HAVING A RADIUS OF 2378.26 FEET AND TO
SAID POINT A RADIAL LINE BEARS NORTH 79° 02’ 40” WEST; THENCE SOUTHERLY ALONG SAID CURVE ON SAID
WESTERLY LINE, THROUGH A CENTRAL ANGLE OF 01° 48’ 29”, A DISTANCE OF 75.04 FEET TO A LINE PARALLEL
WITH AND 438.00 FEET NORTHERLY FROM THE SOUTHERLY LINE OF SAID PARCEL “F”; THENCE SOUTH 87° 33’
18.5” WEST ALONG SAID PARALLEL LINE, A DISTANCE OF 298.13 FEET; THENCE SOUTH 02° 26’ 41.5” EAST, A
DISTANCE OF 155.00 FEET TO A NORTHERLY LINE OF THAT INGRESS AND EGRESS EASEMENT DESCRIBED IN
OFFICIAL RECORDS BOOK 7727, AT PAGE 706, OF SAID PUBLIC RECORDS, SAID NORTHERLY LINE BEING PARALLEL
WITH AND 283.00 FEET NORTHERLY FROM SAID SOUTHERLY LINE OF PARCEL “F”; THENCE SOUTH 87° 33’ 18.5”
WEST, ALONG SAID NORTHERLY LINE, A DISTANCE OF 97.66 FEET TO THE BEGINNING OF A CURVE CONCAVE TO
THE NORTHEAST, HAVING A RADIUS OF 37.00 FEET AND A CENTRAL ANGLE OF 90° 00’ 00”; THENCE WESTERLY,
NORTHWESTERLY, AND NORTHERLY ALONG SAID CURVE, A DISTANCE OF 58.12 FEET TO THE POINT OF TANGENCY ON
AN EASTERLY LINE OF SAID INGRESS AND EGRESS EASEMENT; THENCE NORTH 02° 26’ 41.5” WEST ALONG SAID
EASTERLY LINE, A DISTANCE OF 416.50 FEET TO A LINE PARALLEL WITH AND 736.50 FEET NORTHERLY FROM
SAID SOUTHERLY LINE OF PARCEL “F”; THENCE NORTH 87° 33’ 18.5” EAST ALONG SAID PARALLEL LINE, A
DISTANCE OF 220.00 FEET; THENCE NORTH 02° 26’ 41.5” WEST, A DISTANCE OF 179.13 FEET TO THE
SOUTHERLY LINE OF THAT PORTION OF SAID PARCEL “F” DESCRIBED IN OFFICIAL RECORDS BOOK 10728, AT PAGE
923, OF SAID PUBLIC RECORDS; THENCE SOUTH 77° 41’ 11” EAST ALONG SAID SOUTHERLY LINE, A DISTANCE OF
69.06 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF 2228.00 FEET AND A RADIAL
LINE TO SAID POINT BEARS NORTH 11° 16’ 19” EAST; THENCE EASTERLY ALONG SAID CURVE ON SAID SOUTHERLY
LINE, THROUGH A CENTRAL




51









 







ANGLE OF 02° 05’ 57”, A DISTANCE OF 81.63 FEET TO THE POINT OF TANGENCY; THENCE SOUTH 76° 37’ 44”
EAST ALONG SAID SOUTHERLY LINE, A DISTANCE OF 149.78 FEET; THENCE SOUTH 31° 37’ 49” EAST ALONG SAID
SOUTHERLY LINE, A DISTANCE OF 53.74 FEET TO THE POINT OF BEGINNING.



SAID LAND BEING IN BROWARD COUNTY, FLORIDA.



PARCEL 2 (EASEMENT PARCEL)



NON-EXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS AND OTHER PURPOSES AS SET FORTH IN THAT CERTAIN
CROSS EASEMENT AGREEMENT RECORDED IN OFFICIAL RECORDS BOOK 14610, PAGE 782, OVER, ACROSS AND UPON
THE REAL PROPERTY THEREIN DESCRIBED.




52









 








EXHIBIT B




IMPROVEMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Land Area	 	 	Building	 	 	Year	 	 	Bldg.	 	Location	 	Overall
	Property	 	Lease Type	 	(Acres)	 	 	Area (SF)	 	 	Built	 	 	Quality	 	Quality	 	Quality
	Kohl’s — Monrovia
	 	Land & Bldg	 	 	6.47	 	 	 	76,804	 	 	 	1982 	*	 	A-	 	B+	 	A-
	Home Depot — San Diego
	 	Ground Lease	 	 	11.18	 	 	 	106,024	**	 	 	1998	 	 	A-	 	B+	 	A-
	Walgreens — Edmund
	 	Land & Bldg	 	 	1.45	 	 	 	13,905	 	 	 	1999	 	 	A-	 	B	 	B+
	CVS — Southaven
	 	Land & Bldg	 	 	1.96	 	 	 	13,225	 	 	 	2009	 	 	A	 	B	 	B+
	Harris Teeter — Durham
	 	Ground Lease	 	 	6.1	 	 	 	48,000	 	 	 	2008	 	 	A	 	B+	 	A-
	HH Gregg — No. Charleston
	 	Land & Bldg	 	 	2.4	 	 	 	30,167	 	 	 	2008	 	 	A	 	B	 	B+
	Kohl’s Tavares
	 	Ground Lease	 	 	6.7	 	 	 	90,829	 	 	 	2008	 	 	A	 	B	 	B+
	Best Buy — Coral Springs
	 	Land & Bldg	 	 	4.7	 	 	 	52,500	 	 	 	2006	 	 	A-	 	A-	 	A-








 




			
	*	 	The building was formerly occupied by Mervyns Department Store. It is currently being
completely remodeled including new HVAC, ceiling grid, electrical and plumbing for the new
tenant, Kohl’s.
	 
	**	 	The property also contains a 23,632 SF garden center




53









 










EXHIBIT C




LOAN ALLOCATIONS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Allocated Loan
	Property Name	 	City, State	 	Allocated Loan Amount	 	Percentage
	Home Depot
	 	San Diego, CA	 	$	6,350,000	 	 	 	21.17	%
	Harris Teeter
	 	Durham, NC	 	$	1,700,000	 	 	 	5.67	%
	Kohl’s
	 	Monrovia, CA	 	$	6,500,000	 	 	 	21.67	%
	HH Gregg
	 	North Charleston, SC	 	$	2,700.000	 	 	 	9.00	%
	Walgreens
	 	Edmond, OK	 	$	2,250.000	 	 	 	7.50	%
	CVS
	 	Southaven, MS	 	$	2,700.000	 	 	 	9.00	%
	Kohl’s
	 	Tavares, FL	 	$	4,400,000	 	 	 	14.67	%
	Best Buy
	 	Coral Springs, FL	 	$	3,400,000	 	 	 	11.33	%
	Totals
	 	 	 	 	 	$	30,000,000.00	 	 	 	100.00	%






 









 






EXHIBIT C-1




SOURCES AND USES




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Purchase	 
	Property Name	 	City	 	 	State	 	 	Price	 
	Home Depot (Ground)
	 	San Diego	 	CA	 	$	12,352,671	 
	Harris Teeter (Ground)
	 	Durham	 	NC	 	$	3,245,000	 
	Kohl’s
	 	Monrovia	 	CA	 	$	12,893,000	 
	HH Gregg
	 	North Charleston	 	SC	 	$	5,593,000	 
	Walgreens
	 	Edmond	 	OK	 	$	4,093,000	 
	CVS
	 	Southaven	 	MS	 	$	5,308,695	 
	Kohl’s (Ground)
	 	Tavares	 	FL	 	$	8,467,000	 
	Best Buy
	 	Coral Springs	 	FL	 	$	6,239,459	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Total Purchase Price
	 	 	 	 	 	$	58,191,825	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Closing Costs
	 	 	 	 	 	 	250,000	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Total Uses of Funds
	 	 	 	 	 	$	58,441,825	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Loan Amount
	 	 	 	 	 	$	30,000,000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Borrower Equity 
	 	 	 	 	 	$	28,441,825	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Total Sources of Funds
	 	 	 	 	 	$	58,441,825	 






55









 






EXHIBIT D




PPM FINANCE, INC. PROPERTY AND LIABILITY INSURANCE REQUIREMENTS FOR



JACKSON NATIONAL LIFE INSURANCE COMPANY REVISED MAY 2008



PPM Finance, Inc. (“PPM”) is an affiliate of and authorized agent for Jackson National Life
Insurance Company (“Mortgagee” and/or “Lender”), and as such has established the following
insurance requirements to be complied with during the lifetime of the loan:



REQUIREMENTS OF ALL POLICIES:



Insureds: The Borrower’s full name (as per loan documents) must be either the Named
Insured or Additional Insured on all policies. If a third party or tenant provides coverage, the
Borrower must be endorsed as Additional Insured on all policies required herein. If a third party
or tenant provides coverage, the Lender must be endorsed as Mortgagee and Loss Payee on all
property policies required herein and Additional Insured on the general liability policy.



Additional Interests: Lender must be designated as Mortgagee and Loss Payee on building,
business income, business personal property, and boiler and machinery/equipment breakdown coverage
forms; and Additional Insured on the general liability policy. The Additional Interest and
Certificate Holder wording should read:




Jackson National Life Insurance Company,

its successors, assigns, and/or affiliates

as their interests may appear (atima is acceptable)

c/o correspondent/servicer’s address.



Evidence of Insurance: Acceptable evidence of insurance can include any of the
following at closing and renewal:




Property





	 	•	 	A Certified Copy of the Policy.
	 
	 	•	 	Acord 28 (2003 Version).
	 
	 	•	 	Acord 27 (1993 Version) Showing the following Coverages, Limits, Deductibles, and Forms:






	 	•	 	Building.
	 
	 	•	 	Rents.
	 
	 	•	 	Equipment Breakdown/Boiler & Machinery.
	 
	 	•	 	Ordinance and Law Coverage A.
	 
	 	•	 	Agreed Amount/Waiver of Coinsurance.
	 
	 	•	 	Replacement Cost Valuation.
	 
	 	•	 	Special/All Risk Cause of Loss.
	 
	 	•	 	Earthquake, Flood, and Wind (Waiver Required for < 100% Replacement
Value) PPM does not recognize PML as a viable alternative to full replacement
value for Wind.
	 
	 	•	 	Terrorism.






	 	•	 	Proprietary Carrier Forms identifying the prescribed Coverages, Limits, Deductibles, and Forms.
	 
	 	•	 	Any form containing limiting/restrictive language that renders the form “For Information
Only” MUST be accompanied by a Certified Copy of the policy for single entity
properties; or the Mortgagee and Loss Payee Endorsements naming Jackson National Life
Insurance Company, its successors, assigns, and or affiliates, as their interest may appear
for blanket policies with multiple lender participation. If the policy is a first time
issue, we will accept a Binder of Insurance that lists all required coverages, limits and
deductibles, pending issue of the policy.




56









 






	 	•	 	If either the borrower or a tenant is permitted to “self insure” a document
acknowledging the intent to self insure must be received annually.
	 
	 	•	 	A “Certified Copy” or Mortgagee Copy of the Policy for single entity properties must be
received in the Correspondent’s office within 60 days of closing or renewal.
	 
	 	•	 	For multiple location polices with more than one lender, PPM will accept copies
of the endorsements naming Jackson as Mortgagee and Loss Payee. The endorsements must be
received within 60 days of closing or renewal.




Liability — Acceptable evidence of insurance can include any of the following at closing
and renewal:





	 	•	 	A Certified Copy of the Policy.
	 
	 	•	 	Acord 25 Showing the Coverages, Limits, Deductibles/SIR, and Forms.
	 
	 	•	 	Proprietary Carrier forms referencing the required information.
	 
	 	•	 	If either the borrower or a tenant is permitted to “self insure” a document
acknowledging their intent to self insure must be received annually.
	 
	 	•	 	A copy of the general liability endorsement naming Jackson as Additional Insured must be
received within 60 days of closing or renewal.




Both the Evidence of Property Insurance and Certificate of Liability must reference the Collateral
Property Address(s) and Borrowing Entity.



Notice of Cancellation: All policies and certificates shall contain a provision requiring
the insurance company to provide at least 30 days (10 days for non-payment of premium) written
notice cancellation or changes to the policy to Lender c/o correspondent that affect the Lender’s
interest in accordance with policy provisions or as required by law.



Acceptable Carriers: All insurance carriers participating on all layers evidencing the
required coverage must carry an AM Best Financial Strength Rating (FSR) of A- and a Financial Size
Category (FSC) of IX during the entire life of the loan. Carriers not rated by AM Best must be
approved on an individual basis. Carriers must be licensed to conduct business in the state where
the property is located.



PROPERTY INSURANCE REQUIREMENTS:



Building and Personal Property / Business Income / Boiler & Machinery/Equipment Breakdown
Coverage: Building and business personal property coverage must be written on an “All Risk” or
“Special Causes of Loss” form (as defined by the insurance contracts) on a Replacement Cost
valuation basis. Coverage is to include Wind and Hail and Ordinance or Law (Coverage A to be a
minimum of 50% of the building amount for a single building property or 50% of the highest valued
collateral building in multiple location properties). If the property has multiple buildings and
is written on a Blanket Basis, the policy must not contain a Margin Clause. Boiler and
Machinery/Equipment Breakdown coverage is to include property damage, business income, extra
expense and hazardous substance. If the Building and Boiler and Machinery/Equipment Breakdown
coverages are provided by separate policies, a Joint Loss Agreement Endorsement should be obtained
on each policy.



A Seismic Report is required on all properties located in Seismic Zone 3 or 4 as designated in the
1997 edition of the Uniform Building Code. Earthquake insurance is required on properties that
exceed the tolerance levels established by the Jackson National Life Insurance Company Seismic
Report Guidelines (usually > 20%).



The building and business personal property coverage limits must be for the full
Replacement Cost of the property unless waived in writing by PPM. This requirement includes Wind,
and when required, Flood. The policy must contain an Agreed Amount Endorsement or Waiver of
Coinsurance Clause. Blanket policies



57









 






should not contain a Margin Clause. The Agreed Amount Endorsement must identify the insured
property by its street address and include Business Income.



Property in Flood Zones A and V and/or all zones in the 100 year flood zone plain as determined by
the US Army Corps of Engineers must obtain flood coverage through the National Flood Insurance
Program (NFIP). Excess Flood coverage will be required if the NFIP limits fall below full
Replacement Cost of the building.



Business Income Coverage is required for the loss of gross rental income and other gross income for
an amount not less than 12 months rental income or on an Actual Loss Sustained form of coverage.
Coverage must provide a period of restoration of not less than 12 months. If the tenant insures
the building under a triple net lease and the lease contains a Rent Abatement Clause, the
Borrower must carry Business Income Coverage independently from any coverage the tenant may
provide.



The Borrower may use multiple policies to satisfy the requirements stated above as long as each
carrier used is rated A- IX or better by AM Best and the insurance program as a whole satisfies all
the requirements herein. No gaps of coverage between policy layers are acceptable.



When a property is vacant for 60 consecutive days or more, PPM is to receive a Vacancy Permit (ISO
form CP 04 05 or a form containing equivalent language) issued by the property insurance carriers
on each location when the vacancy rate is greater than 69% of the total net rentable square
footage. Vacancy rate is to be defined as the percentage of space not containing enough
furnishings to conduct customary operations.



If any buildings are constructed, added, or significantly altered by 10% or more of the property
value and/or affect any part of the rents, a Builder’s Risk Insurance Policy is required on a
completed value form in an amount equal to 100% of hard costs. There must be delayed income
insurance covering not less than 12 months anticipated loss of gross income. All builder’s risk
coverage terms and conditions are subject to PPM approval. Once the project has been completed,
the property in its entirety must comply with all the PPM insurance requirements stated herein.



Acceptable maximum per occurrence Deductibles are the following:




	 	 	 	 	 
	 

	 	Property
	 	$25,000 per occurrence
	 
	 	 	 	 
	 

	 	Boiler & Machinery/
	 	$25,000 per occurrence
	 
	 	 	 	 
	 

	 	Equipment Breakdown	 	 
	 
	 	 	 	 
	 

	 	Business Income
	 	72 hour (3 day) waiting period
	 
	 	 	 	 
	 

	 	Named Windstorm
	 	% of insured value — Negotiable per Loan Basis
	 

	 	Earthquake
	 	% of insured value — Negotiable per Loan Basis
	 	 	Flood $5,000 NFIP Policies; Excess Flood — % of insured value — Negotiable per Loan Basis






LIABILITY INSURANCE REQUIREMENTS:



General Liability: A General Liability Policy must be written on an Occurrence form.
Contractual Liability covering “Insured Contracts” must be included. If the Borrower sells or
serves liquor, the Certificate of Liability Insurance must evidence Dram Shop or Liquor Liability.



Minimum Acceptable Primary limits:




	 	 	 
	Bodily Injury and Property Damage

	 	$1,000,000 per occurrence
	 

	 	$2,000,000 in the aggregate






58









 





Personal and Advertising Injury $1,000,000 per occurrence and in the aggregate



No deductible is acceptable on the General Liability policy.



Professional Liability: Healthcare Professional Liability with a minimum $1,000,000 per
occurrence limit must be carried by all facilities providing “Assisted Living, Extended Stay,
Rehabilitation, or Medical” services or treatments for their residents.



Owned/Non-Owned Automobile Liability: Coverage must be provided when Borrower has
employees and or owned vehicles. Policy to extend to owned, hired, leased and non-owned vehicles
to include, not by way of limitation, employee’s vehicles while on company business. Required
limits:




	 	 	 
	Combined Single Limit:

	 	$1,000,000 per occurrence and in the aggregate
	or
	 	 
	Bodily Injury per person

	 	$1,000,000 per occurrence and in the aggregate
	Bodily Injury per accident

	 	$1,000,000 per occurrence and in the aggregate
	Property Damage

	 	$1,000,000 per occurrence and in the aggregate





No deductible is acceptable on the owned/non-owned automobile liability policy.



Workers’ Compensation/Employers’ Liability: Coverage must be provided when Borrower has
employees. Required limits:



Workers’ Compensation Statutory limits (State where employees are located/hired)




			
	Employers’ Liability

	 	$500,000 each accident
	 

	 	$500,000 disease policy limit
	 

	 	$500,000 disease each employee





No deductible is acceptable on the employers’ liability policy.



Umbrella/Excess Liability: Properties not in the Hospitality or “Assisted Living”
industries must provide Umbrella and/or Excess Liability coverage evidencing a limit of not
less than $5,000,000 per occurrence and in the aggregate with a Self-Insured Retention (SIR)
not greater than $10,000 over all required underlying liability policies. PPM reserves the right
to require higher limits from properties where liquor is sold.



Properties in the Hospitality and “Assisted Living” industries must provide Umbrella and/or
Excess Liability coverage evidencing a limit of not less than $10,000,000 per occurrence
and in the aggregate with a Self-Insured Retention (SIR) not greater than $10,000 over all required
underlying liability policies.



Limits provided by the Umbrella/Excess Liability policies must be excess over all the policy
extensions and the required underlying liability coverages and policies, including Liquor
Liability.



Underground and/or Above Ground Fuel Storage Tanks: Properties that have fuel and/or oil
storage tanks are required to carry an insurance policy covering damage to owned property as well
as bodily injury and property damage to third parties caused by tank overflow and/or leakage or
seepage. Coverage is to include, not by way of limitation, clean up costs. A minimum limit of
$1,000,000 is required or limit as required by law which ever is greater.



PPM reserves the right to require Terrorism (TRIA) Coverage on any of the coverage listed above for
properties with an exposure to loss from terrorist acts as determined by PPM criteria.




59









 







PPM reserves the right to require coverage for damage to owned property as well as bodily injury
and property damage to third parties caused by mold and/or fungi and/or other environmental
exposures where engineering and/or environmental reports would indicate an exposure.



The Borrower may use multiple policies to satisfy the Liability requirements stated above as long
as each carrier used is rated A- IX or better by AM Best and the insurance program as a whole
satisfies all the requirements herein. No gaps of coverage between policy layers are acceptable.



PPM reserves the right to modify any and all of the requirements above in accordance with standard
practices in the lending industry as these standards may change from time to time.





60












 





EXHIBIT E

APPROVED LEASES




	 	 	 	 	 
	ENTITY	 	LEASE DESCRIPTION/DATE	 	TERM/RENEWALS
	Cole BB Coral Springs 

FL, LLC

	 	Tenant: Best Buy Stores, L.P.

Landlord: Cole BB Coral Springs, FL,

LLC 


Lease dated 2/27/06 


Letter Agreement between Landlord and
Tenant dated 2/27/06 regarding
delivery of premises and delivery of
SNDA
	 	October 30,
2006-January 31,
2022

Two (2) Five (5)
year extension
options
	 
	 	 	 	 
	Cole CV Southhaven 

MS, LLC

	 	Tenant: Mississippi CVS Pharmacy,

L.L.C.

Original Landlord: Cole CV Southhaven
MS, LLC


Leased dated 12/1/08


Lease Term Letter dated 7/21/09

Memorandum of Lease dated 2/25/09
	 	May 28, 2009-

January 31, 2035

Five (5) Five (5)
year extension
options
	 
	 	 	 	 
	Cole HD San Diego 

CA, LP

	 	Tenant: Home Depot U.S.A., Inc.

Landlord: Cole HD San Diego CA, LP


Ground Lease dated 4/15/09

Memorandum of Lease dated 4/15/09

Lease Confirmation Certificate dated
4/15/09
	 	April 15, 2009-

April 30, 2034

Six (6) Five (5)
year extension
options






61









 






	 	 	 	 	 
	ENTITY	 	LEASE DESCRIPTION/DATE	 	TERM/RENEWALS
	Cole HH North 

Charleston SC, LLC

	 	Tenant: Gregg Appliances, Inc.

Landlord: Cole HH North Charleston
 SC,
LLC 


Lease dated 5/15/08

Commencement of Term Agreement dated
10/7/08
	 	October 11,
2008-October 31,
2023
	 
	 	 	 	 
	Cole HT Durham NC, 

LLC

	 	Tenant: Harris Teeter, Inc.

Landlord: Cole HT Durham NC, LLC


Lease dated October 4, 2004

Amendment dated 10/31/07
	 	October 4,
2004-November 30,
2024

Six (6) Five (5)
year extension
options
	 
	 	 	 	 
	Cole KO Monrovia, LP

	 	Tenant: Kohl’s Department Stores, Inc.

Landlord: Cole KO Monrovia CA, LP


Amended and Restated Lease dated 1/1/09


Guarantee of Lease 1/1/09

Sale Order (as defined in the Lease)

REA (as defined in the Lease), notice
modifying REA dated 4/21/1982 and
notice dated May 27, 2003 (regarding
Mervyn’s election to self insure)
	 	January 1, 2009-
	 
	 	 	 	 
	Cole KO Tavares FL, 

LLC

	 	Tenant: Kohl’s Department Stores, Inc.


Landlord: Cole KO Tavares FL, LLC


Ground Lease dated 11/8/07

Memorandum of Lease dated 11/8/07

SNDA dated 11/8/07

Notice of Address for payment of Rents
	 	January 23, 2008 —
January 31, 2024

Eight (8) five(5)
year extension
options






62









 






	 	 	 	 	 
	ENTITY	 	LEASE DESCRIPTION/DATE	 	TERM/RENEWALS
	 

	 	8/7/08

Lease Supplement dated 12/12/08

Letter regarding Waiver of Refusal

Right dated 5/14/09

Estoppel Certificate dated 5/19/09	 	 
	 
	 	 	 	 
	Cole WG Edmond OK 

LLC

	 	Tenant: Walgreens

Landlord: Cole WG Edmond OK LLC


Lease dated 7/22/98
	 	November 20, 1999

November 30, 2059







63









 








SCHEDULE A




BORROWERS




     COLE HD SAN DIEGO CA, LP, a Delaware limited partnership



     COLE HT DURHAM NC, LLC, a Delaware limited liability company



     COLE KO MONROVIA CA, LP, a Delaware limited partnership



     COLE HH NORTH CHARLESTON SC, LLC, a Delaware limited liability company



     COLE WG EDMOND OK, LLC, a Delaware limited liability company



     COLE CV SOUTHAVEN MS, LLC, a Delaware limited liability company



     COLE KO TAVARES FL, LLC, a Delaware limited liability company



     COLE BB CORAL SPRINGS FL, LLC, a Delaware limited liability



64









 





SCHEDULE B




OWNERSHIP OF INDEMNITOR




General Partner: Cole Credit Property Trust III, Inc. — 99.9%




Limited Partner: Cole REIT Advisors III, LLC — 0.1%




65









 








SCHEDULE C




RECRIPOCAL EASEMENT AGREEMENTS




SAN DIEGO, CA (San Diego County): NONE




DURHAM, NC (Durham County):





	 	1)	 	Reciprocal Easement Agreement recorded in Book 1709, Page 849, of the Public
Records of Durham County, North Carolina.
	 
	 	2)	 	Reciprocal Easement Agreement recorded in Book 2133, Page 401, of the Public
Records of Durham County, North Carolina.
	 
	 	3)	 	Temporary Construction and Permanent Cross Access, Sanitary Sewer, Storm
Drainage and Water Line Easement recorded in Book 5788, Page 545, of the Public Records
of Durham County, North Carolina.
	 
	 	4)	 	Temporary Construction and Slope and Permanent Cross Access, Sanitary Sewer,
Storm Drainage and Water Line Easement recorded in Book 5788, Page 557, of the Public
Records of Durham County, North Carolina.
	 
	 	5)	 	Easement Agreement recorded in Book 6296, Page 474, of the Public Records of
Durham County, North Carolina.





MONROVIA, CA (Los Angeles County):





	 	1)	 	Grant of Reciprocal Easement Agreements and Declaration of Covenants recorded
as Instrument 81-1260451 as modified by documents recorded as Instrument 86-1507218 and
Instrument 94-156908 of the Public Records of Los Angeles County, California.





NORTH CHARLESTON, SC (Charleston County):





	 	1)	 	Declaration of Easements and Restrictions recorded in Deed Book K660 at Page
91, of the Public Records of Charleston County, South Carolina.





EDMOND, OK (Oklahoma County): NONE




SOUTHAVEN, MS (Desoto County):





	 	1)	 	Declaration of Easements, Covenants, Conditions and Restrictions recorded in
Book 600, Page 41, of the Public Records of Desoto County, Mississippi.




66









 











TAVARES, FL (Lake County):





	 	1)	 	Reciprocal Easement Agreement recorded in Official Records Book 3554, Page
1229, of the Public Records of Lake County, Florida.





CORAL SPRINGS, FL (Broward County):





	 	1)	 	Cross Easement Agreement recorded in Official Records Book 14610, Page 782, of
the Public Records of Broward County, Florida.




67









 











SCHEDULE D




ADMINISTRATIVE FEES



By way of example (and not limitation) Administrative Fees (at the standard rates) are charged for
the following matters:




CONDEMNATION




EASEMENT




GUARANTEES



Release or Reduction

(Unless contractually provided for in the Loan docs)




LEASE REVIEWS AND TENANT DOCUMENTS



Lease on Tenant Form

(or major changes to Landlords Standard Form)



Changes to SNDA/Estoppel that require negotiations with Tenant




LETTERS OF CREDIT



Release or Reduction

Change in form, parties or new LOC




LOAN EXTENSION REQUEST




PARTIAL RELEASE




SECONDARY FINANCING REQUEST




TRANSFER OF INTEREST WITHIN BORROWER



Not expressly controlled by Loan Documents





68