exv10w45






Exhibit 10.45




AFFILIATED PARTY SUBORDINATION AND 

CROSS-DEFAULT AGREEMENT




     THIS AGREEMENT is made as of the 31 day of August, 2009 by those entities shown on Schedule
“A” attached hereto (each a “Borrower” and jointly and severally, “Borrowers”); COLE REIT III
OPERATING PARTNERSHIP, LP, a Delaware limited partnership (“Cole REIT”) and JACKSON NATIONAL LIFE
INSURANCE COMPANY, a Michigan corporation (“Lender”).



WITNESSETH:




     WHEREAS, the Borrowers have executed and delivered to the Lender a certain promissory note in
the principal amount of Thirty Million and 00/100 Dollars ($30,000,000.00) of even date herewith
(the “Note”);



     WHEREAS, the Note has been executed and delivered pursuant to that certain Loan Agreement of
even date herewith by and between the Borrowers, Cole REIT and the Lender (the “Loan Agreement”);



     WHEREAS, all capitalized terms used herein and not otherwise defined herein have the meaning
ascribed to them in the Loan Agreement;



     WHEREAS, the Borrowers and Cole REIT have entered into or may enter into notes, loans or
similar agreements (such agreements, as the same may from time to time be amended, revised,
replaced, modified or supplemented, are hereinafter referred to as the “Intercompany Agreements”);



 









 





     WHEREAS, all of the fees, indebtedness, interests, liabilities, and obligations of the
Borrowers to Cole REIT and to each other, whether now existing or hereafter arising, including,
without limitation, the indebtedness, liabilities and obligations of the Borrowers under any
Intercompany Agreements or any other instruments and documents executed and delivered in connection
therewith (the “Related Party Debt”) shall, except as otherwise provided herein, be subordinate and
inferior to all Loan Documents as provided herein;



     WHEREAS, the Borrowers have entered into the Loan Agreement and other agreements concerning
the Loans with the Lender (such agreements, together with any agreements hereafter entered, now or
hereafter existing, as the same may from time to time be amended, revised, replaced, modified or
supplemented, are hereinafter referred to as the “Loan Documents”);



     WHEREAS, Cole REIT and the principals of the Borrowers shall derive a substantial benefit from
the making of the Loan by the Lender and therefore desire that the Lender make the Loan; and



     WHEREAS, it is a condition precedent to the willingness of the Lender to make the Loan that
the Borrowers and Cole REIT execute and deliver this Agreement for the benefit of the Lender.



     NOW THEREFORE, in order to induce the Lender to make the Loan and in consideration therefor,
and for One Dollar ($1.00) and other good and valuable consideration, and the receipt and
sufficiency of the mutual covenants set forth herein, the parties hereto hereby agree as follows:



     1. Subordination.



          A. The payment of any and all of the Related Party Debt is hereby expressly subordinated and
made junior to the payment and performance of all of the obligations and indebtedness of Borrowers
and Cole REIT to Lender (“Prime Indebtedness”).



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          B. Until the Prime Indebtedness has been completely paid, the Borrowers shall not make, and
Cole REIT shall not receive, accept, or retain, any direct or indirect payment or reduction
(whether by way of loan, set off, or otherwise) in respect to the principal of, or premium or
interest on, the Related Party Debt. Notwithstanding the foregoing, nothing contained herein shall
preclude Cole REIT from receiving distributions in accordance with the operating agreements of
Borrowers prior to any Event of Default or after any such Event of Default has been cured.



          C. In the event of any voluntary or involuntary insolvency, bankruptcy, receivership,
custodianship, readjustment of debt, arrangement, composition, assignment for the benefit of
creditors or other similar proceeding relative to the Borrowers or any of them, or the Borrowers’
property, then and in any such event:



               (i) all of the Prime Indebtedness shall first be paid in full before any payment or
distribution of any character shall be made in respect to the Related Party Debt;



               (ii) any payment or distribution of any character, which would otherwise (but for the terms
hereof) be payable or deliverable in respect of the Related Party Debt shall be made to Lender and
applied to the Prime Indebtedness;



               (iii) Cole REIT and the Borrowers shall execute and deliver to the Lender all such further
instruments confirming the matters set forth in the foregoing clauses (i) and (ii), and all such
proofs of claim, assignments of claim and other instruments and shall take all such other actions
as may be reasonably requested by the Lender in order to enable the Lender to enforce any and all
claims upon or in respect of such Related Party Debt and to collect and give any and all payments
or distributions which may be payable or deliverable at any time upon or with respect to such
Related Party Debt.



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          D. If, notwithstanding the provisions of this Agreement, any payment or distribution of any
character shall be received by Cole REIT and the Borrowers, or any of them, in contravention of the
terms of this Agreement, and before the Prime Indebtedness shall have been paid in full, such
payment or distribution shall be paid over or delivered and transferred to, the Lender for
application to the payment of the remaining unpaid Prime Indebtedness.



     2. Continued Effectiveness of this Agreement.



          A. The terms of this Agreement, the subordination effected hereby, and the rights of the
Lender and the obligations of Cole REIT and the Borrowers arising hereunder shall not be affected,
modified or impaired in any manner or to any extent by:



               (i) any renewal, replacement, amendment, extension, substitution, revision, consolidation,
modification or termination of or supplement to the Loan Documents or any of them;



               (ii) the validity or enforceability of any such documents referred to in clause (i) above;



               (iii) the release, sale, exchange or surrender, in whole or in part, of any collateral
security, now or hereafter existing, for the Prime Indebtedness;



               (iv) any exercise (or lack thereof) of any right, power or remedy under or in respect of the
Loan Documents;



               (v) any waiver, consent, release, indulgence, extension, renewal, modification, delay or other
action, inaction or omission in respect of the Prime Indebtedness or any of the agreements,
instruments or documents referred to in clause (i) above or in respect of any collateral security
for the Prime Indebtedness or any other indebtedness, liability or obligation of the Borrowers to
the Lender, now existing or hereafter arising, whether or not Cole



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REIT shall have had notice or knowledge of any of the foregoing and whether or not it shall have
consented thereto.




          B. In the event of any sale, assignment, disposition or other transfer of the Related Party
Debt, Cole REIT and Borrowers shall cause the transferee thereof to execute and deliver to the
Lender an agreement (substantially identical with this Agreement); provided, however, that,
notwithstanding the delivery of such an agreement, the provisions hereof shall be binding on said
transferee.



     3. Cross-Default. Cole REIT and the Borrowers hereby confirm to the Lender that a
default hereunder shall be deemed an Event of Default under the Loan Documents.



     4. Conflict. In the event of any conflict between any term, covenant or condition of
this Agreement and any term, covenant or condition of the Intercompany Agreements, or the Loan
Documents, the provisions of this Agreement shall control and govern.



     5. Further Assurances. Each party hereto agrees to do all acts and things and to
make, execute and deliver such written instruments, as shall from time to time be reasonably
required to carry out the terms and provisions of this Agreement.



     6. Notice. Any notice, request, demand, statement or consent made hereunder shall be
in writing and shall be deemed duly given if personally delivered, sent by certified mail, return
receipt requested, or sent by a nationally recognized commercial overnight deliver service with
provisions for a receipt, postage, or delivery charges prepaid, and shall be deemed given when
postmarked or placed in the possession of such mail or delivery service and addressed as follows:



	 	 	 
	 If to Borrower:

	 	Cole REIT III Operating Partnership, LP

2555 East Camelback Road, Suite 400

Phoenix, Arizona 85016

Attn: Legal Department






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	with a copy to:

	 	Lytle Cartwright & Smith PLC

9903 E. Bell Road, Suite 110

Scottsdale, Arizona 85260

Attn: Kevin T. Lytle, Attorney
	 
	 	 
	 If to Cole REIT:

	 	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, Illinois 60606

Attn: Vice President, Loan Servicing
	 
	 	 
	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






     7. Priority. This Agreement is intended to establish relative rights and priorities
between the Lender, Cole REIT and the Borrowers.



     8. Governing Law. This Agreement and the rights and the obligations of the parties
shall be construed in accordance with the laws of the State of Florida.



     9. Amendments and Modifications. This Agreement sets forth the entire agreement of
the parties with respect to the subject matter hereof and may not be amended, modified, revised, or
terminated except by an agreement in writing signed by the party against whom enforcement is
sought. The provisions of this Agreement shall extend and be applicable to all



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renewals, replacements, amendments, extensions substitutions, revisions, consolidations, and
modifications of the Loan Documents.




     10. Invalidity. If any provision of this Agreement or the application thereof to any
person (as hereinafter defined) or circumstance, for any reason and to any extent, shall be held to
be invalid or unenforceable, neither the remainder of this Agreement, nor the application of such
provision to any other person or circumstance shall be affected thereby, but rather the same shall
be enforced to the greatest extent permitted by law.



     Notwithstanding the foregoing, it is the intent of Cole REIT, the Borrowers and the Lender
that if any provision of any of this Agreement is capable of two (2) constructions, one of which
would render the provision valid, then such provision shall be construed in accordance with the
construction which renders such provision valid.



     11. Successors and Assigns; Joint and Several Liability. The provisions of this
Agreement shall be (i) binding on Cole REIT and the Borrowers and their respective heirs,
executors, administrators, legal representatives, successors and assigns, and (ii) inure to the
benefit of the Lender, any other person who may now or hereafter hold any interest in the Loan and
their respective successors, assigns and participants.



     12. No Waiver. No waiver of any term or provision of this Agreement shall be
effective, unless it is in writing, making specific reference to this Agreement, and signed by the
person against whom such waiver is sought to be enforced. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.



     13. Time of the Essence. Time is of the essence of each and every term, condition,
obligation, agreement, covenant and warranty set forth herein.



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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the day and
year first above written.



	 	 	 	 	 
	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	 	 






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	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	 	 






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	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	 	 
	 
	 	 	 	 
	COLE REIT III OPERATING PARTNERSHIP, LP,

a Delaware limited partnership	 	 
	 
	 	 	 	 
	By:

	 	Cole Credit Property Trust III, Inc., a Maryland


corporation, its general partner	 	 
	 
	 	 	 	 
	By:

	 	/s/ John M. Pons	 	 
	 

	 	 	 	 
	 

	 	John M. Pons, Authorized Officer	 	 







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