EX-10.3






MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING




NNN Gallery Medical, LLC,

a Delaware limited liability company,

Borrower




To




LaSalle Bank National Association,

a national banking association,

as Lender




The maximum principal indebtedness secured by this mortgage is $6,000,000.00



This instrument was prepared by and


after recording return to:



KATTEN MUCHIN ROSENMAN LLP


401 South Tryon Street, Suite 2600


Charlotte, North Carolina 28202


Attention: Daniel S. Huffenus, Esq.



1




MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING




Table of Contents




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ParagraphPage	 	 	 	 	 	 
	1.	 	Payment of Indebtedness; Performance of Obligations	 	5	 	 	 	 	 	 
	2.	 	Taxes and Other Obligations	 	5	 	 	 	 	 	 
	3.	 	Reserves for Taxes/Ground Rents/Insurance/Replacement Reserve/Tenant Improvements and Leasing Reserve.	 	 	 	 	 	5
	4.	 	Use of Property	 	9	 	 	 	 	 	 
	5.	 	Insurance and Condemnation.	 	9	 	 	 	 	 	 
	6.	 	Preservation and Maintenance of Property	 	14	 	 	 	 	 	 
	7.	 	Protection of Lender’s Security; Leases	 	14	 	 	 	 	 	 
	8.	 	Inspection	 	16	 	 	 	 	 	 
	9.	 	Books and Records	 	16	 	 	 	 	 	 
	10.	 	Financial Statements	 	16	 	 	 	 	 	 
	11.	 	Hazardous Substances	 	18	 	 	 	 	 	 
	12.	 	Representations and Covenants.	 	18	 	 	 	 	 	 
	13.	 	Lease Assignment	 	23	 	 	 	 	 	 
	14.	 	Subordination, Non-Disturbance and Attornment Agreements/Estoppel Certificates.23	 	 	 	 	 	 	 	 	 	 
	15.	 	Transfers of the Property or Ownership Interests in Borrower; Assumption; Due on	 	 	 	 	 	23	 	 	 	 
	 	 	Sale/Encumbrance.	 	 	 	 	 	 	 	 	 	 
	16.	 	No Additional Liens	 	31	 	 	 	 	 	 	 	 
	17.
	 	Single Asset Entity	 	 	32	 	 	 	 	 	 	 	 	 
	18.
	 	Borrower and Lien Not Released	 	 	36	 	 	 	 	 	 	 	 	 
	19.
	 	Uniform Commercial Code Security Agreement and Fixture Filing	 	 	37	 	 	 	 	 	 	 	 	 
	20.
	 	Events of Default; Acceleration of Indebtedness; Remedies	 	 	38	 	 	 	 	 	 	 	 	 
	21.
	 	Entry; Foreclosure; Remedies	 	 	40	 	 	 	 	 	 	 	 	 
	22.
	 	Expenditures and Expenses	 	 	43	 	 	 	 	 	 	 	 	 
	23.
	 	Application of Proceeds of Foreclosure Sale	 	 	43	 	 	 	 	 	 	 	 	 
	24.
	 	Appointment of Receiver or Mortgagee in Possession	 	 	43	 	 	 	 	 	 	 	 	 
	25.
	 	Forbearance by Lender Not a Waiver	 	 	44	 	 	 	 	 	 	 	 	 
	26.
	 	Waiver of Statute of Limitations	 	 	44	 	 	 	 	 	 	 	 	 
	27.
	 	Waiver of Homestead and Redemption	 	 	44	 	 	 	 	 	 	 	 	 
	28.
	 	Jury Trial Waiver	 	 	44	 	 	 	 	 	 	 	 	 
	29.
	 	Indemnification	 	 	45	 	 	 	 	 	 	 	 	 
	30.
	 	Duty to Defend	 	 	45	 	 	 	 	 	 	 	 	 
	31.
	 	ERISA	 	 	46	 	 	 	 	 	 	 	 	 
	32.
	 	No Oral Change	 	 	46	 	 	 	 	 	 	 	 	 
	33.
	 	Notice	 	 	46	 	 	 	 	 	 	 	 	 
	34.
	 	Successors and Assigns Bound; Joint and Several Liability; Agents; Captions	 	 	46	 	 	 	 	 	 	 	 	 
	35.
	 	Governing Law; Jurisdiction; Severability	 	 	47	 	 	 	 	 	 	 	 	 
	36.
	 	Release	 	 	47	 	 	 	 	 	 	 	 	 
	37.
	 	Covenants Running with the Land	 	 	47	 	 	 	 	 	 	 	 	 
	38.
	 	Terms	 	 	47	 	 	 	 	 	 	 	 	 
	39.
	 	Loss of Note	 	 	47	 	 	 	 	 	 	 	 	 
	40.
	 	Changes in the Laws Regarding Taxation	 	 	48	 	 	 	 	 	 	 	 	 
	41.
	 	Exculpation	 	 	48	 	 	 	 	 	 	 	 	 
	42.
	 	Disclosure of Information	 	 	48	 	 	 	 	 	 	 	 	 
	43.
	 	Sale of Loan; Securitization	 	 	48	 	 	 	 	 	 	 	 	 
	44.
	 	Actions and Proceedings	 	 	49	 	 	 	 	 	 	 	 	 
	45.
	 	No Third Party Beneficiaries	 	 	49	 	 	 	 	 	 	 	 	 
	46.
	 	Exhibits and Riders	 	 	49	 	 	 	 	 	 	 	 	 
	47.
	 	Customer Identification – USA Patriot Act Notice; OFAC	 	 	49	 	 	 	 	 	 	 	 	 
	48.
	 	Counterparts	 	 	50	 	 	 	 	 	 	 	 	 
	49.
	 	Disclaimers	 	 	50	 	 	 	 	 	 	 	 	 
	50.
	 	Maximum Principal Amount.	 	 	50	 	 	 	 	 	 	 	 	 
	51.
	 	Non-Agricultural Use.  .	 	 	51	 	 	 	 	 	 	 	 	 






Exhibit A — Legal Description



Exhibit B — Personal Property Description



Exhibit C — Pending and Threatened Litigation



2




Defined Terms




As used in this Mortgage, the following terms shall have the following meanings assigned to
them:



	 	 	 	 	 
	Borrower
	 	NNN Gallery Medical, LLC (“Borrower”) having its principal places of business at 1551 N. Tustin

	 
	 	Avenue, Suite 300, Santa Ana, California 92705.

	Borrower’s Address
	 	1551 N. Tustin Avenue, Suite 300
	 
	 	Santa Ana, California 92705

	Property Address
	 	17 W Exchange Street
	 
	 	St. Paul, Minnesota 55102-1045

	Lender
	 	LaSalle Bank National Association, a national banking association, and its successors and assigns

	 
	 	as holders of the Note

	Lender’s Address
	 	135 S. LaSalle Street, Suite 3410
	 
	 	Chicago, Illinois 60603

	 
	 	Attention: Real Estate Capital Markets

	 
	 	Re: Gallery Medical Office

	Note
	 	That Promissory Note of even date herewith made by Borrower to the order of Lender in the

	 
	 	Principal Amount, together with all notes issued in substitution or exchange therefor, as any of

	 
	 	the foregoing may be amended, consolidated, modified or supplemented from time to time

	Principal Amount
	 	$	6,000,000.00	 
	Maturity Date
	 	March 1, 2017

	Land
	 	The property described on Exhibit A to this Mortgage

	Personal Property
	 	The property described on Exhibit B to this Mortgage

	Replacement Reserve
Monthly Payment
	 	$1,757.22, subject to the provisions of subparagraph 3(c) of this Mortgage
	TI and Leasing Reserve
Monthly Payment
	 	$8,786.08, subject to the provisions of subparagraph 3(d) of this Mortgage
	Permitted Use
	 	Office

	Guarantor
	 	NNN Realty Advisors, Inc., a Delaware corporation

	Required Rating
	 	A General Policy Rating of A: VIII or better in A.M. Best’s Key Rating Guide







3




THIS MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (“Mortgage”) is made as of the
5th day of February, 2007, by Borrower to Lender.



R E C I T A L S:




A. Borrower has executed and delivered to Lender the Note (which is hereinafter referred to
as the “Note”), providing for monthly installments of principal and/or interest, with the balance
thereof, if not sooner due or paid as set forth in the Note, due and payable on the Maturity Date;



B. Lender wishes to secure (i) the prompt payment of the Note, together with all interest
thereon in accordance with the terms of the Note, as well as the prompt payment of any additional
indebtedness accruing to Lender on account of any future payments, advances or expenditures made by
Lender pursuant to the Note or this Mortgage or any other agreement, document, or instrument
securing the payment of the indebtedness evidenced by the Note (the Note, this Mortgage, and any
other documents evidencing or securing the indebtedness evidenced by the Note or executed in
connection therewith, and any modification, renewal, and/or extension thereof, are hereinafter
collectively referred to as the “Loan Documents”), and (ii) the prompt performance of each and
every covenant, condition, and agreement now or hereafter arising contained in the Loan Documents
of Borrower. All payment obligations of Borrower are hereinafter sometimes collectively referred
to as the “Indebtedness” and all other obligations of Borrower are hereinafter sometimes
collectively referred to as the “Obligations”; and



C. The Schedule of Defined Terms appearing immediately before this page is incorporated into
this Mortgage by reference with the same force and effect as if contained in the body hereof.



D. Subsequent to the closing of the “Loan” (as defined in the Note), subject to the terms of
Paragraph 15 of this Mortgage, Borrower may transfer undivided tenant in common interests in the
Property (provided, however, there may be no more than thirty-five (35) tenants in common (“Tenants
in Common”) in the aggregate including Borrower (collectively “permitted TICs”) with the consent of
Lender, as more specifically set forth in one or more Loan Assumption, Ratification and Consent
Agreements(s) by and between Borrower, Guarantor, the Tenants in Common and Lender (individually
and collectively, the “Assumption Agreement”), and upon the execution of such Assumption Agreement,
“Borrower” shall thereafter be deemed to collectively include Borrower under this Mortgage and all
then existing Tenants in Common.



NOW, THEREFORE, TO SECURE TO LENDER the repayment of the Indebtedness and the performance of
the Obligations, Borrower has mortgaged, given, granted, bargained, sold, alienated, enfeoffed,
transferred, conveyed, confirmed, warranted, pledged, assigned, hypothecated and granted and by
these presents does hereby irrevocably mortgage, give, grant, bargain, sell, alien, enfeoff,
transfer, convey, confirm, warrant, pledge, assign, hypothecate and grant a security interest in
and to Lender, with power of sale, the following described property and all proceeds thereof (which
property is hereinafter sometimes collectively referred to as the “Property”):



A. The Land;



B. All improvements of every nature whatsoever now or hereafter situated on the Land and owned
by Borrower (the “Improvements”), and all machinery, furnishings, equipment, fixtures (the
“Fixtures”), mechanical systems and other personal property now or hereafter owned by Borrower and
used in connection with the operation of the Improvements;



C. All easements, rights-of-way, strips and gores of land, streets, ways, alleys, passages,
sewer rights, water, water courses, water rights and powers, air rights and development rights, and
all estates, rights, titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or pertaining to the Land
and the Improvements and the reversion and reversions, remainder and remainders, and all land lying
in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to
the center line thereof and all the estates, rights, titles, interests, dower and rights of dower,
curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and
in equity, of Borrower of, in and to the Land and the Improvements and every part and parcel
thereof, with the appurtenances thereto;



D. All agreements affecting the use, enjoyment or occupancy of the Land and/or Improvements
now or hereafter entered into (the “Leases”), including any and all guaranties of such Leases, and
the immediate and continuing right to collect all rents, income, receipts, royalties, profits,
issues, service reimbursements, fees, accounts receivables, revenues and prepayments of any of the
same from or related to the Land and/or Improvements from time to time accruing under the Leases
and/or the operation of the Land and/or Improvements (the “Rents”), reserving to Borrower, however,
so long as no “Event of Default” (hereinafter defined) has occurred hereunder, a revocable license
to receive and apply the Rents in accordance with the terms and conditions of Paragraph 13 of this
Mortgage;



E. The Personal Property;



F. All awards or payments, including interest thereon, which may heretofore and hereafter be
made with respect to the Land and the Improvements, whether from the exercise of the right of
eminent domain or condemnation (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of said rights), or for a change of grade, or for any other injury to
or decrease in the value of the Land and Improvements;



G. All proceeds of and any unearned premiums on any insurance policies covering the Property,
including, without limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Property;



H. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing
including, without limitation, proceeds of insurance and condemnation awards, into cash or
liquidation claims;



I. Any and all proceeds and products of any of the foregoing and any and all other security
and collateral of any nature whatsoever, now or hereafter given for the repayment of the
Indebtedness and the performance of Borrower’s obligations under the Loan Documents, including
(without limitation) the Replacement Reserve, the TI and Leasing Reserve, and all other escrows
established with Lender by Borrower; and



J. All property management agreements and tenants in common agreements relating to the
Property.



AND without limiting any of the other provisions of this Mortgage, to the extent permitted by
applicable law, Borrower expressly grants to Lender, as a secured party, a security interest in the
portion of the Property that is or may be subject to the provisions of the Uniform Commercial Code
that are applicable to secured transactions; it being understood and agreed that the Improvements
and Fixtures are part and parcel of the Land (the Land, the Improvements and the Fixtures are
collectively referred to as the “Real Property”) appropriated to the use thereof and, whether
affixed or annexed to the Real Property or not, shall for the purposes of this Mortgage be deemed
conclusively to be real estate and mortgaged hereby.



TO HAVE AND TO HOLD the Property and all parts thereof, together with the rents, issues,
profits and proceeds thereof, unto Lender and to the use, benefit and advantage of Lender, forever,
subject, however, to the terms, covenants, and conditions herein.



Borrower covenants and agrees with Lender as follows:



1. Payment of Indebtedness; Performance of Obligations. Borrower shall promptly pay
when due the Indebtedness and shall promptly perform all Obligations.



2. Taxes and Other Obligations. Borrower shall pay, when due, and before any
interest, collection fees or penalties shall accrue, all taxes, assessments, fines, impositions and
other charges and obligations, including charges and obligations for any present or future repairs
or improvements made on the Property, or for any other goods or services or utilities furnished to
the Property, which may become a lien on or charge against the Property prior to this Mortgage,
subject, however, to Borrower’s right to contest such lien or charge upon the posting of security
reasonably satisfactory to Lender so long as such contest stays the enforcement or collection of
such lien or charge. Should Borrower fail to make such payments, Lender may, at its option and at
the expense of Borrower, pay the amounts due for the account of Borrower. Upon the request of
Lender, Borrower shall immediately furnish to Lender all notices of amounts due and receipts
evidencing payment. Borrower shall promptly notify Lender of any lien on all or any part of the
Property and shall promptly discharge any unpermitted lien or encumbrance.



3. Reserves for Taxes/Ground Rents/Insurance/Replacement Reserve/Tenant Improvements and
Leasing Reserve.




(a) Borrower shall pay to Lender, at the time of and in addition to the monthly
installments of principal and/or interest due under the Note, a sum equal to 1/12 of the
amount estimated by Lender from time to time to be sufficient to enable Lender to pay at
least 30 days before they become due and payable, all taxes, assessments and other similar
charges levied against the Property (collectively, the “Taxes”), and all ground rents, if
applicable. So long as no Event of Default exists hereunder, Lender shall apply the sums so
paid by Borrower to pay such tax items and ground rents, if applicable. In making any such
payments, Lender may do so according to any bill, statement or estimate obtained by Lender
in good faith, without inquiry into the accuracy of such bill, statement or estimate or into
the validity thereof. These sums may be commingled with the general funds of Lender, and no
interest shall be payable thereon nor shall these sums constitute trust funds. If such
amount on deposit with Lender is insufficient to fully pay such tax items and ground rents,
if applicable, Borrower shall, within 10 days following notice at any time from Lender,
deposit such additional sum as may be required for the full payment of such tax items and
ground rents, if applicable. Borrower hereby represents and warrants that Lender has a
security interest in such funds and Borrower shall execute any other documents and take any
other actions necessary to provide Lender with a perfected security interest. Upon the
Maturity Date, the moneys then remaining on deposit with Lender or its agent shall, at
Lender’s option, be applied against the Indebtedness. The obligation of Borrower to pay
such tax items and ground rents is not affected or modified by the provisions of this
paragraph.




(b) Borrower shall pay to Lender, at the time of and in addition to the monthly
installments of principal and/or interest due under the Note, a sum equal to 1/12 of the
amount estimated by Lender from time to time to be sufficient to enable Lender to pay at
least 30 days before they become due and payable, all insurance premiums due for the
renewal, on an annual basis, of the coverage afforded by the insurance policies required
hereunder upon the expiration thereof. So long as no Event of Default exists hereunder,
Lender shall apply the sums so paid by Borrower to pay such insurance premiums. In making
any such payment, Lender may do so according to any bill, statement or estimate obtained by
Lender in good faith, without inquiry into the accuracy of such bill, statement or estimate
or into the validity thereof. These sums may be commingled with the general funds of
Lender, and no interest shall be payable thereon nor shall these sums constitute trust
funds. If such amount on deposit with Lender is insufficient to fully pay such insurance
premiums, Borrower shall, within 10 days following notice at any time from Lender, deposit
such additional sum as may be required for the full payment of such insurance premiums.
Borrower hereby represents and warrants that Lender has a security interest in such funds
and Borrower shall execute any other documents and take any other actions necessary to
provide Lender with a perfected security interest. Upon the Maturity Date, the moneys then
remaining on deposit with Lender or its agent shall, at Lender’s option, be applied against
the Indebtedness. The obligation of Borrower to pay such insurance premiums is not affected
or modified by the provisions of this paragraph.




(c) At the time of and in addition to the monthly installments of principal and/or
interest due under the Note, Borrower shall pay to Lender the Replacement Reserve Monthly
Payment (such payments shall be referred to as the “Replacement Reserve”). The Replacement
Reserve may be commingled with the general funds of Lender and such Replacement Reserve
shall not constitute trust funds. The funds contained in the Replacement Reserve shall bear
interest for the benefit of Borrower at the rate of interest which is the lower of (i) the
amount paid from time to time by Lender on commercial money market accounts; or (ii) the
return on permitted investments to be made with the funds by any third party servicer,
rating agency or loan purchaser (“Reserve Interest Rate”), and all such interest shall be
added to and become part of the Replacement Reserve, provided Lender shall make no
representation or warranty as to the actual rate of interest. The funds contained in the
Replacement Reserve shall be utilized by Borrower solely for exterior, structural, HVAC and
mechanical improvements that are customarily accounted for as capital expenses (“Capital
Expenses”), and other capital improvements approved in advance by Lender. Lender shall make
disbursements from the Replacement Reserve for the actual cost of such items and approved
capital improvements upon Borrower’s providing Lender with receipts, invoices, lien waivers,
photographs and other documentation deemed necessary by Lender to insure that the work
and/or materials related to the requested disbursement have been completed and/or provided,
with minimum draws of $10,000.00, which shall occur no more frequently than once per month.
Upon the Maturity Date, the moneys then remaining on deposit with Lender or its agent shall,
at Lender’s option, be applied against the Indebtedness. Borrower hereby represents and
warrants that Lender has a security interest in the Replacement Reserve and Borrower shall
execute any other documents and take any other actions necessary to provide Lender with a
perfected security interest in the Replacement Reserve.




Notwithstanding the foregoing, without waiving any of Borrower’s repair and maintenance
obligations under the Loan Documents, Lender agrees to defer its right under this Mortgage
to require monthly deposits of the Replacement Reserve Monthly Payment into the Replacement
Reserve until March 1, 2010, as long as there exists no event of default (or event with
which notice or lapse of time or both could constitute an event of default) under the Loan
Documents. If Lender determines that such condition is not satisfied, then in addition to
Lender’s other remedies under applicable law and under the Loan Documents, Lender may
require that Borrower immediately commence making monthly deposits of the Replacement
Reserve Monthly Payments in an amount determined by Lender for such purpose into the
Replacement Reserve.




(d) On the date hereof Borrower shall deposit with Lender the sum of $     and at
the time of and in addition to the monthly installments of principal and/or interest due
under the Note, Borrower shall pay to Lender monthly deposits in the amount of the TI and
Leasing Reserve Monthly Payment for approved tenant improvements and leasing commissions
(such payments shall be referred to as the “TI and Leasing Reserve”) until such time as the
balance in the TI and Leasing Reserve equals $     (the “Minimum TI and Leasing
Reserve Balance”). Thereafter, if at any time there is a draw causing the TI and
Leasing Reserve to contain less than the Minimum TI and Leasing Reserve Balance (whether on
account of expenditures approved by Lender or its servicer or otherwise), Borrower shall
continue to pay Lender for deposit into the TI and Leasing Reserve, the TI and Leasing
Reserve Monthly Payment until the balance in the TI and Leasing Reserve again equals the
Minimum TI and Leasing Reserve Balance. Whenever the balance in the TI and Leasing Reserve
again equals the Minimum TI and Leasing Reserve Balance, Borrower may suspend making monthly
payments into the TI and Leasing Reserve. The TI and Leasing Reserve may be commingled with
the general funds of Lender and such TI and Leasing Reserve shall not constitute trust
funds. [The funds contained in the TI and Leasing Reserve shall bear interest for the
benefit of Borrower at the Reserve Interest Rate and all such interest shall be added to and
become a part of the TI and Leasing Reserve, provided Lender shall make no representation or
warranty as to the actual rate of interest. The funds contained in the TI and Leasing
Reserve shall be disbursed to Borrower solely to pay for tenant improvements and leasing
commissions due pursuant to leases entered into in accordance with the requirements of
Paragraph 7 hereof or otherwise approved by Lender, but only when the tenants under such
leases are in occupancy, open for business, and paying full contractual rent without any
right of offset or rent abatement. Lender shall make disbursements from the TI and Leasing
Reserve for the actual cost of such approved tenant improvements and leasing commissions
upon Borrower’s providing Lender with receipts, invoices, lien waivers, photographs and
other documentation deemed necessary by Lender to insure that the work and/or materials
related to the requested disbursement have been completed and/or provided, with minimum
draws of $10,000.00, which shall occur no more frequently than once per month. Upon the
Maturity Date, the moneys then remaining on deposit with Lender or its agent shall, at
Lender’s option, be applied against the Indebtedness. Borrower hereby grants Lender a first
priority security interest in the TI and Leasing Reserve and shall execute any other
documents and take any other actions necessary to provide Lender with such a perfected
security interest in the TI and Leasing Reserve.




In the event that (i) the Loan is not fully transferred to and assumed by NNN
Healthcare/Office REIT Holdings, L.P., a Delaware Limited Partnership (the “REIT”) or to a
newly formed entity that is owned and controlled by the REIT, or (ii) the membership
interests in Borrower are not transferred to the REIT or to a newly formed entity that is
owned and controlled by the REIT, on or before June 5, 2007, the following conditions must
be satisfied; (i) the Required Balance will immediately increase to $     , (ii) Borrower
will within three (3) Business Days make a payment of $500,000.00 into the TI and Leasing
Reserve and (iii) Borrower will within ten (10) Business Days fully satisfy and pay off any
and all additional debt on the Property and cause to be released any and all liens
associated with the additional debt.



Notwithstanding the foregoing, without waiving any of Borrower’s leasing restrictions and
obligations under the Loan Documents, Lender agrees to defer its right under this Mortgage to
require monthly deposits of the TI and Leasing Reserve Monthly Payment into the TI and Leasing
Reserve until the Release Requirements are met as long as there exists no Event of Default (or
event with which notice or lapse of time or both could constitute an Event of Default) under the
Loan Documents. Notwithstanding the foregoing, without waiving any of Borrower’s repair and
maintenance obligations under the Loan Documents, Lender agrees to defer its right under this
Mortgage to require monthly deposits of the Pfizer Reserve Monthly Payment into the TI and Leasing
Reserve for a period of sixteen (16) months from the date hereof as long as there exists no Event
of Default (or event with which notice or lapse of time or both could constitute an Event of
Default) under the Loan Documents.




(e) Upon the occurrence of an Event of Default, Lender may apply any amounts then held
in any of the Reserves described above to the payment of the Indebtedness in such order as
Lender may elect, in its sole and absolute discretion.




(f) On the date hereof, Borrower shall have deposited with Lender the sum of $     .00
(“Security Reserve”). The Security Reserve shall constitute additional security for the
Loan. The Security Reserve may be commingled with the general funds of Lender and shall not
constitute trust funds. No interest shall be paid to Borrower on the Security Reserve. No
disbursement from the Security Reserve shall be made to the Borrower. Upon the Maturity
Date, the moneys then remaining on deposit with Lender or its agent shall, at Lender’s
option, be applied against the Indebtedness. Borrower hereby grants Lender a security
interest in the Security Reserve and shall execute any other documents and take any other
actions necessary to provide Lender with a perfected security interest in the Security
Reserve.



4. Use of Property. Unless required by applicable law, Borrower shall not permit
changes in the use of any part of the Property from the use existing at the time this Mortgage was
executed, which use Borrower represents and warrants is limited to the Permitted Use and related
uses. Borrower shall not initiate or acquiesce in a change in the zoning classification of the
Property without Lender’s prior written consent.



5. Insurance and Condemnation. Borrower shall obtain and maintain, or cause to be
maintained, insurance for Borrower and the Property providing at least the following coverages:




(a) comprehensive all risk insurance (“Special Form”) including, but not limited to,
loss caused by any type of windstorm or hail on the Improvements and the Personal Property,
(i) in an amount equal to one hundred percent (100%) of the “Full Replacement Cost,” which
for purposes of this Mortgage shall mean actual replacement value (exclusive of costs of
excavations, foundations, underground utilities and footings) with a waiver of depreciation,
but the amount shall in no event be less than the outstanding principal balance of the Loan;
(ii) containing an agreed amount endorsement with respect to the Improvements and Personal
Property waiving all co-insurance provisions or to be written on a no co-insurance form;
(iii) providing for no deductible in excess of Ten Thousand and 00/100 Dollars ($10,000.00)
for all such insurance coverage excluding windstorm and earthquake, and (iv) if any of the
Improvements or the use of the Property shall at any time constitute legal non-conforming
structures or uses, coverage for loss due to operation of law in an amount equal to the Full
Replacement Cost, coverage for demolition costs and coverage for increased costs of
construction. In addition, Borrower shall obtain: (A) if any portion of the Improvements
is currently or at any time in the future located in a federally designated “special flood
hazard area”, flood hazard insurance in an amount equal to the lesser of (1) the outstanding
principal balance of the Note or (2) the maximum amount of such insurance available under
the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the
National Flood Insurance Reform Act of 1994, as each may be amended or such greater amount
as Lender shall require and (B) earthquake insurance in amounts and in form and substance
satisfactory to Lender in the event the Property is located in an area with a high degree of
seismic activity;




(b) business income insurance (i) with loss payable to Lender; (ii) covering all risks
required to be covered by the insurance provided for in subparagraph (a) above; (iii) in an
amount equal to one hundred percent (100%) of the projected gross revenues from the
operation of the Property (as reduced to reflect expenses not incurred during a period of
restoration or repair) for a period of at least twelve (12) months after the date of the
loss or damage by fire or other casualty; and (iv) containing an extended period of
indemnity endorsement which provides that after the physical loss to the Improvements and
Personal Property has been repaired, the continued loss of income will be insured until such
income either returns to the same level it was at prior to the loss, or the expiration of
six (6) months from the date that the Property is repaired or replaced and operations are
resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the
end of such period. The amount of such business income insurance shall be determined prior
to the date hereof and at least once each year thereafter based on Borrower’s reasonable
estimate of the gross revenues from the Property for the succeeding twelve (12) month
period. All proceeds payable to Lender pursuant to this subsection shall be held by Lender
and shall be applied to the obligations secured by the Loan Documents from time to time due
and payable hereunder and under the Note; provided, however, that nothing herein contained
shall be deemed to relieve Borrower of its obligations to pay the obligations secured by the
Loan Documents on the respective dates of payment provided for in this Mortgage and the
other Loan Documents except to the extent such amounts are actually paid out of the proceeds
of such business income insurance;




(c) at all times during which structural construction, repairs or alterations are being
made with respect to the Improvements, and only if the Property coverage form does not
otherwise apply, (i) owner’s contingent or protective liability insurance, otherwise known
as Owner Contractor’s Protective Liability, covering claims not covered by or under the
terms or provisions of the above mentioned commercial general liability insurance policy and
(ii) the insurance provided for in subparagraph (a) above written in a so-called builder’s
risk completed value form (A) on a non-reporting basis, (B) against all risks insured
against pursuant to subparagraph (a) above, (C) including permission to occupy the Property
and (D) with an agreed amount endorsement waiving co-insurance provisions;




(d) comprehensive boiler and machinery insurance, if steam boilers or other
pressure-fixed vessels are in operation, in amounts as shall be reasonably required by
Lender on terms consistent with the commercial property insurance policy required under
subparagraph (a) above;




(e) commercial general liability insurance against claims for personal injury, bodily
injury, death or property damage occurring upon, in or about the Property, such insurance
(i) to be on the so-called “occurrence” form with a combined limit of not less than Two
Million and 00/100 Dollars ($2,000,000.00) in the aggregate and One Million and 00/100
Dollars ($1,000,000.00) per occurrence; (ii) to continue at not less than the aforesaid
limit until required to be changed by Lender in writing by reason of changed economic
conditions making such protection inadequate and (iii) to cover at least the following
hazards: (A) premises and operations; (B) products and completed operations on an “if any”
basis; (C) independent contractors; (D) blanket contractual liability for all written
contracts and (E) contractual liability covering the indemnities contained in Paragraph 29
of this Mortgage to the extent the same is available;




(f) automobile liability coverage for all owned and non-owned vehicles, including
rented and leased vehicles containing minimum limits per occurrence of One Million Dollars
and 00/100 Dollars ($1,000,000.00);




(g) worker’s compensation and employee’s liability subject to the worker’s compensation
laws of the applicable state;




(h) umbrella and excess liability insurance in an amount not less than Three Million
and 00/100 Dollars ($3,000,000.00) per occurrence on terms consistent with the commercial
general liability insurance policy required under subparagraph (e) above, including, but not
limited to, supplemental coverage for employer liability and automobile liability, which
umbrella liability coverage shall apply in excess of the automobile liability coverage in
subparagraph (f) above;




(i) the insurance required under this Paragraph 5 above shall cover perils of terrorism
and acts of terrorism and Borrower shall maintain insurance for loss resulting from perils
and acts of terrorism on terms (including amounts) consistent with those required under
Paragraph 5 above at all times during the term of the Loan; and




(j) upon sixty (60) days written notice, such other reasonable insurance, including,
but not limited to, sinkhole or land subsidence insurance, if available at commercially
reasonable costs, and in such reasonable amounts as Lender from time to time may reasonably
request against such other insurable hazards which at the time are commonly insured against
for property similar to the Property located in or around the region in which the Property
is located.



All insurance provided for in this Paragraph 5, shall be obtained under valid and enforceable
policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to
the approval of Lender as to insurance companies, amounts, deductibles, loss payees and insureds.
The Policies shall be issued by financially sound and responsible insurance companies authorized to
do business in the State and having a claims paying ability rating of “AA” or better (and the
equivalent thereof) by at least two (2) of the rating agencies rating the Securities (one (1) of
which shall be S&P if they are rating the Securities and one (1) of which will be Moody’s if they
are rating the Securities), or if only one (1) rating agency is rating the Securities, then only by
such rating agency. The Policies described in this Paragraph 5 (other than those strictly limited
to liability protection) shall designate Lender as loss payee. Not less than ten (10) days prior
to the expiration dates of the Policies theretofore furnished to Lender, certificates of insurance
evidencing the Policies accompanied by evidence satisfactory to Lender of payment of the premiums
due thereunder (the “Insurance Premiums”), shall be delivered by Borrower to Lender. Any blanket
insurance Policy shall specifically allocate to the Property the amount of coverage from time to
time required hereunder and shall otherwise provide the same protection as would a separate Policy
insuring only the Property in compliance with the provisions of this Paragraph 5. All Policies
provided for or contemplated by this Paragraph 5, except for the Policy referenced in Paragraph
5(g) of this Mortgage, shall name Borrower as the insured and Lender as the additional insured, as
its interests may appear, and in the case of property damage, boiler and machinery, flood and
earthquake insurance, shall contain a so-called New York standard non-contributing mortgagee clause
in favor of Lender providing that the loss thereunder shall be payable to Lender. All Policies
shall contain clauses or endorsements to the effect that: (1) no act or negligence of Borrower, or
anyone acting for Borrower, or of any tenant or other occupant, or failure to comply with the
provisions of any Policy, which might otherwise result in a forfeiture of the insurance or any part
thereof, shall in any way affect the validity or enforceability of the insurance insofar as Lender
is concerned; (2) the Policy shall not be materially changed (other than to increase the coverage
provided thereby) or canceled without at least ten (10) days written notice to Lender and any other
party named therein as an additional insured; (3) the issuers thereof shall give written notice to
Lender if the Policy has not been renewed thirty (30) days prior to its expiration; and (4) Lender
shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.



Borrower shall keep the Improvements insured, and shall maintain during the entire term of
this Mortgage, comprehensive general liability coverage and such other coverages requested by
Lender, by carrier(s), in amounts and in form at all times satisfactory to Lender, which
carrier(s), amounts and form shall not be changed without the prior written consent of Lender. All
such policies of insurance shall be issued by insurers qualified under the laws of the state in
which the Land is located, duly authorized and licensed to transact business in such state and
reflecting the Required Rating. Borrower shall maintain all coverages on the Property as are
required by Lender at the closing of the Loan, and all other coverages as may be deemed necessary
by Lender from time to time during the term of the Loan. Any failure by Lender to insist on full
compliance with all of the above insurance requirements at closing does not constitute a waiver of
Lender’s right to subsequently require full compliance with these requirements. All policies
required hereunder shall be indicated by evidence of insurance on the Accord 28 form of certificate
(as such form may be updated and renamed from time to time), naming Lender as loss payee and as
additional insured. Unless Borrower provides Lender with evidence of the insurance coverage
required by this Mortgage, Lender may purchase insurance at Borrower’s expense to protect Lender’s
interests in the Property and to maintain the insurance required by this Mortgage. This insurance
may, but need not, protect Borrower’s interests. The coverage purchased by Lender may not pay any
claim made by Borrower or any claim that is made against Borrower in connection with the Property
or any required insurance policy. Borrower may later cancel any insurance purchased by Lender, but
only after providing Lender with evidence that Borrower has obtained insurance as required by this
Mortgage. If Lender purchases insurance for the Property or insurance otherwise required by this
Mortgage, Borrower will be responsible for the costs of that insurance, including interest and
other charges imposed by Lender in connection with the placement of the insurance, until the
effective date of the cancellation or expiration of the insurance. The costs of the insurance may
be added to the Indebtedness. The costs of the insurance may be more than the cost of insurance
Borrower is able to obtain on its own.



In case of loss or damage by fire or other casualty, Borrower shall give immediate written
notice thereof to the insurance carrier(s) and to Lender. Lender is authorized and empowered to
make or file proofs of loss or damage (in each case only so long as such loss or damage is equal to
or greater than $120,000.00 and to settle and adjust any claim under insurance policies which
insure against such risks, or to direct Borrower, in writing, to agree with the insurance
carrier(s) on the amount to be paid in regard to such loss. The proceeds of any insurance claim
are hereby assigned to and shall be paid to Lender as further security for the payment of the
Indebtedness and performance of the Obligations and applied as set forth herein.



Borrower shall immediately notify Lender of any action or proceeding relating to any
condemnation or other taking, whether direct or indirect, of the Property, or part thereof, and
Borrower shall appear in and prosecute any such action or proceeding unless otherwise directed by
Lender in writing. Borrower authorizes Lender, at Lender’s option, as attorney-in-fact for
Borrower, to commence, appear in and prosecute, in Lender’s or Borrower’s name, any action or
proceeding relating to any condemnation or other taking of the Property, whether direct or
indirect, and to settle or compromise any claim in connection with such condemnation or other
taking, provided such claim is for an amount equal to or greater than $120,000.00. The proceeds of
any award, payment or claim for damages, direct or consequential, in connection with any
condemnation or other taking, whether direct or indirect, of the Property, or part thereof, or for
conveyances in lieu of condemnation, are hereby assigned to and shall be paid to Lender as further
security for the payment of the Indebtedness and performance of the Obligations and applied as set
forth herein.



Provided no Event of Default then exists hereunder, the net insurance proceeds and net
proceeds of any condemnation award (in each case after deducting only Lender’s reasonable costs and
expenses, if any, in collecting the same) shall be made available for the restoration or repair of
the Property if, in Lender’s sole judgment (a) restoration or repair and the continued operation of
the Property is economically feasible, as determined by Lender, (b) the value of Lender’s security
is not reduced, (c) the loss or condemnation, as applicable, does not occur in the 6-month period
preceding the stated Maturity Date and Lender’s independent consultant certifies that the
restoration of the Property can be completed at least 90 days prior to the Maturity Date, and
(d) Borrower deposits with Lender an amount, in cash, which Lender, in its sole discretion,
determines is necessary, in addition to the net insurance proceeds or net proceeds of any
condemnation award, as applicable, to pay in full the cost of the restoration or repair, including
the cost to carry the Property and make all required payments due under the Loan during the period
of restoration or repair. Notwithstanding the foregoing, it shall be a condition precedent to any
disbursement of insurance proceeds held by Lender hereunder that Lender shall have approved (x) all
plans and specifications for any proposed repair or restoration, (y) the construction schedule and
(z) the architect’s and general contractor’s contract for all restoration that exceeds $25,000.00
in the aggregate. Lender may establish other conditions it deems reasonably necessary to assure
the work is fully completed in a good and workmanlike manner free of all liens or claims by reason
thereof. Borrower’s deposits made pursuant to this paragraph shall be used before the net
insurance proceeds or net proceeds of any condemnation award, as applicable, for such restoration
or repair. If the net insurance proceeds or net proceeds of any condemnation award, as applicable,
are made available for restoration or repair, such work shall be completed by Borrower in an
expeditious and diligent fashion, and in compliance with all applicable laws, rules and
regulations. At Lender’s option, the net insurance proceeds or net proceeds of any condemnation
award, as applicable, shall be disbursed pursuant to a construction escrow acceptable to Lender.
If following the final payments for the completion of such restoration or repair there are any net
insurance proceeds or net proceeds of any condemnation award, as applicable, remaining, such
proceeds shall be paid (i) to Borrower to the extent Borrower was required to make a deposit
pursuant to this paragraph, (ii) then to fund any shortfall in the Replacement Reserve, (iii) then
to Lender to be applied to the Indebtedness, whether or not due and payable until paid in full, and
(iv) then to Borrower. If an Event of Default then exists, or any of the conditions set forth in
subparagraphs (a) through (d) of this Paragraph 5 have not been met or satisfied, the net insurance
proceeds or net proceeds of any condemnation award, as applicable, shall be applied to the
Indebtedness, whether or not due and payable, with any excess paid to Borrower.



6. Preservation and Maintenance of Property. Borrower (a) shall not commit waste or
permit impairment or deterioration of the Property; (b) shall not abandon the Property; (c) shall
keep the Property in good repair and restore or repair promptly, in a good and workmanlike manner,
all or any part of the Property to the equivalent of its original condition, ordinary wear and tear
excepted, or such other condition as Lender may approve in writing, upon any damage or loss
thereto, if net insurance proceeds are made available to cover in whole or in part the costs of
such restoration or repair; (d) shall comply with all laws, ordinances, regulations and
requirements of any governmental body, and all requirements of any documents applicable to the
Property; (e) shall provide for management of the Property by Borrower or by a property manager
satisfactory to Lender pursuant to a contract in form and substance satisfactory to Lender; (f)
shall not take any steps whatsoever to convert the Property, or any portion thereof, to a
condominium or cooperative form of management; (g) shall not install or permit to be installed on
the Property any underground storage tank or above-ground storage tank without the written consent
of Lender; and (h) shall give notice in writing to Lender of and, unless otherwise directed in
writing by Lender, appear in and defend any action or proceeding purporting to affect the Property,
the security granted by the Loan Documents or the rights or powers of Lender. Neither Borrower nor
any tenant or other person shall remove, demolish or alter any Improvement or any Fixture,
equipment, machinery or appliance in or on the Land and owned or leased by Borrower except when
incident to the replacement of Fixtures, equipment, machinery and appliances with items of like
kind.



7. Protection of Lender’s Security; Leases. If Borrower fails to pay the Indebtedness
or perform the Obligations, or if any action or proceeding is commenced which affects the Property,
Lender may make such appearances, disburse such sums and take such action as Lender deems
necessary, in its sole discretion, to protect the Property or Lender’s interests herein, including
entry upon the Property to make repairs and perform environmental tests and studies. Any amounts
disbursed by Lender pursuant to this Paragraph 7 (including attorneys’ costs and expenses), with
interest thereon at the “Default Rate” (defined in the Note) from the date of disbursement, shall
become additional Indebtedness of Borrower secured by the Loan Documents and shall be due and
payable on demand. Nothing contained in this Paragraph 7 shall require Lender to incur any expense
or take any action hereunder.



Borrower shall not be authorized to enter into any ground lease of the Property, without
Lender’s prior written approval. Borrower shall not, without Lender’s prior written consent,
modify, amend, surrender or terminate any Lease, which approval shall not be unreasonably withheld
or delayed. All Leases of space in the Property shall be on the form of lease previously approved
by Lender with tenants and for a use acceptable to Lender. All Leases of space in the Property
executed or renewed after the date hereof must be approved by Lender prior to the execution thereof
by Borrower.



Notwithstanding anything contained herein to the contrary, Borrower may enter into a proposed
Lease (including the amendment, renewal or extension of an existing Lease (a “Renewal Lease”)
without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i)
provides for rental rates and terms comparable to existing local market rates and terms (taking
into account the type and quality of the tenant) as of the date such Lease or Renewal Lease is
executed by Borrower (unless, in the case of a Renewal Lease, the rent payable during such renewal,
or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is
an arms-length transaction with a bona fide, independent third party tenant, (iii) is written on
the standard form of lease previously approved by Lender, (iv) is not for premises greater than or
ten percent (10%) of the gross leaseable area of the Property, (v) is not for a rental greater than
or equal to ten percent (10%) of the total gross rental revenues of the Property; (vi) shall have
an initial term of not less than three (3) years or greater than ten (10) years, (vii) is for the
same use as the current use of the Property, (viii) shall not contain any options for renewal or
expansion by the tenant thereunder at rental rates which are either below comparable market levels
or less than the rental rates paid by the tenant during initial lease term; and (ix) shall be to a
tenant which is experienced, creditworthy and reputable. If Lender consents to any new Lease of
space in the Property or the renewal of any existing Lease of space in the Property, at Lender’s
request, Borrower shall cause the tenant thereunder to execute a subordination and attornment
agreement in form and substance satisfactory to Lender contemporaneously with the execution of such
Lease. Borrower expressly understands that any and all new or proposed leases or Renewal Leases
are included in the definition of “Lease” or “Leases” as such terms may be used throughout this
Mortgage or any of the other Loan Documents. Notwithstanding anything contained herein to the
contrary, Borrower may terminate a Lease without Lender’s request in the ordinary course of
business if (a) the related tenant is in default and (b) either (x) such Lease is for less than ten
percent (10%) of the then currently occupied and rentable square feet of space at the Property, or
(y) Borrower has executed a lease with a replacement tenant for the premises in question. To the
extent Lender’s consent is required under this Paragraph 7, and the lease in question is for less
than 25% of both the gross leaseable area of the Property and the total gross rental revenues of
the Property, Borrower shall submit a request to Lender with the following language prominently
displayed at the top and on the cover of any such request in allcaps, boldface, 14 point type or
larger: “IMMEDIATE RESPONSE REQUIRED, CONSENT DEEMED GIVEN IF NO RESPONSE WITHIN 10 BUSINESS
DAYS.” If no response has been received within 10 Business Days of Lender’s receipt of such
request, Borrower shall submit a second request to Lender with the following language prominently
displayed at the top and on the cover of any such request in allcaps, boldface, 14 point type or
larger: “IMMEDIATE RESPONSE REQUIRED, CONSENT DEEMED GIVEN IF NO RESPONSE WITHIN 5 BUSINESS DAYS.”
If no response has been received within 5 Business Days of Lender’s receipt of such second
request, Lender’s consent shall be deemed to be given.



If at the time one or more Disclosure Documents (as hereinafter defined) are being prepared
for a securitization and if requested by Lender, Borrower shall furnish, or shall cause the
applicable tenant to furnish, to Lender financial data and/or financial statements in accordance
with Regulation AB (as defined in Item 1101(k) of Regulation AB) for any tenant of any Property if,
in connection with a securitization, Lender reasonably expects there to be, with respect to such
tenant or group of affiliated tenants, a concentration within all of the mortgage loans included or
reasonably expected to be included, as applicable, in such securitization such that such tenant or
group of affiliated tenants would constitute a Significant Obligor (as defined in Item 1101(k));
provided, however, that in the event the related lease does not require the related tenant to
provide the foregoing information, Borrower shall use commercially reasonable efforts to cause the
applicable tenant to furnish such information, provided however, that Borrower shall be in default
hereunder only for failure to use commercially reasonable efforts to cause such tenant to furnish
such information.



8. Inspection. Lender and its agents and designees may make or cause to be made
reasonable entries upon and inspections of the Property, including for performing any environmental
inspections and testing of the Property, and inspections of Borrower’s books, records, and
contracts at all reasonable times upon reasonable advance notice, which notice may be given in
writing or orally. Borrower shall cooperate with Lender and its agents and designees with respect
to all such inspections, including any related to the sale or potential sale of all or any portion
of the Loan by Lender and any securitization or potential securitization involving the Loan.



9. Books and Records. Borrower shall keep and maintain at all times at Borrower’s
address stated above, or such other place as Lender may approve in writing, complete and accurate
books of accounts and records adequate to reflect correctly the results of the operation of the
Property and copies of all written contracts, Leases and other instruments affecting the Property.



10. Financial Statements. If required by Lender, Borrower shall furnish to Lender,
within 60 days after the end of each calendar month, until the later to occur of either (i) the
first 12 calendar months following the closing of the loan (the “Loan”) evidenced by the Note, or
(ii) the Loan is securitized as described in Paragraph 43 below, a monthly unaudited (a) statement
of income and expenses, each in reasonable detail, prepared on a consistent, cash/tax basis in
accordance with sound accounting practices (relating to the real estate industry) or in accordance
with generally accepted accounting principles and certified as true and complete by Borrower or its
general partner, manager/managing member or chief financial officer, and (b) a rent roll showing
the name of each tenant, and for each tenant, (i) the space occupied, (ii) the lease expiration
date, (iii) the rent payable, and (iv) the security deposit being held for such tenant, each in
reasonable detail and dated and certified as true and complete by Borrower or its general partner
or chief financial officer. If required by Lender, Borrower shall furnish to Lender, within 60
days after the end of each fiscal quarter of the operation of the business of Borrower and at any
other time upon Lender’s request, an unaudited (a) balance sheet, (b) a statement of income and
expenses of the Property, and (c) a list of aged accounts receivables, each in reasonable detail,
prepared on a consistent, cash/tax basis in accordance with sound accounting practices (relating to
the real estate industry) or in accordance with generally accepted accounting principles prepared
on a consistent basis and certified as true and complete by Borrower or its general partner,
manager/managing member or chief financial officer. If required by Lender, Borrower shall also
furnish to Lender, and shall cause each Guarantor (as defined in the Note) to furnish to Lender,
within 60 days after the end of each fiscal year of Borrower, an unaudited (a) balance sheet, (b) a
statement of income and expenses and (c) a statement of cash flows, each in reasonable detail,
prepared on a consistent, cash/tax basis in accordance with sound accounting practices (relating to
the real estate industry) or in accordance with generally accepted accounting principles prepared
on a consistent basis and certified as true and complete by Borrower or its general partner,
manager/managing member or chief financial officer and each Guarantor, as the case may be. In the
event that the Loan has an original principal balance equal to or greater than $20,000,000.00 such
annual financial statements shall be audited by an independent certified public accountant. If
Lender requires audited GAAP-compliant financial statements of Guarantor, Guarantor will provide
such financial statements to Lender within 120 days of Guarantor’s fiscal year-end or within 20
days of the filing of its returns with the Internal Revenue Service. All of the information
required by Lender in this paragraph must be in a form acceptable to Lender in its absolute and
sole discretion. If Borrower fails to timely furnish Lender with any of the financial information
and reports set forth in this paragraph within the required time periods, Lender shall have the
right, acting in its sole discretion, to hire a certified public accounting firm acceptable to
Lender, to prepare such financial information and reports, on an audited basis. The costs and
expenses of such accounting firm shall be paid by Borrower on demand and, to the extent advanced by
Lender become, with interest thereon from the date advanced by Lender at the Default Rate,
additional Indebtedness of Borrower secured by the Loan Documents. Additionally, if Borrower fails
to timely furnish Lender with any of the financial information and reports set forth in this
paragraph within the required time periods, Lender shall be entitled to receive a late charge equal
to $500.00 for each financial information and/or report not so furnished to Lender (the “Financial
Late Charge”). The Financial Late Charge shall be due and payable by Borrower immediately upon
receipt by Borrower of an invoice for same from Lender. Until paid, the Financial Late Charge
shall bear interest at the Default Rate, and shall be deemed additional Indebtedness of Borrower
secured by the Loan Documents.



If, at the time one or more Disclosure Documents are being prepared for a securitization,
Lender reasonably expects that Borrower alone or Borrower and one or more affiliates of Borrower
collectively, or the Property alone or the Property and any other parcel(s) of real property,
together with improvements thereon and personal property related thereto, that is “related”, within
the meaning of the definition of Significant Obligor of Regulation AB), to the Property (a “Related
Property”) collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon
request (i) the selected financial data as required under Item 1112(b)(1) of Regulation AB, if
Lender reasonably expects that the principal amount of the Loan, together with any loans made to an
affiliate of Borrower or secured by a Related Property that is included in a securitization with
the Loan (a “Related Loan”), as of the cut-off date for such securitization may, or if the
principal amount of the Loan together with any Related Loans as of the cut-off date for such
securitization and at any time during which the Loan and any Related Loans are included in a
securitization does, equal or exceed ten percent (10%) of the aggregate principal amount of all
mortgage loans included or reasonably expected to be included, as applicable, in the securitization
or (ii) the financial statements as required under Item 1112(b)(2) of Regulation AB, if Lender
reasonably expects that the principal amount of the Loan together with any Related Loans as of the
cut-off date for such securitization may, or if the principal amount of the Loan together with any
Related Loans as of the cut-off date for such securitization and at any time during which the Loan
and any Related Loans are included in a securitization does, equal or exceed twenty percent (20%)
of the aggregate principal amount of all mortgage loans included or reasonably expected to be
included, as applicable, in the securitization. Such financial data or financial statements shall
be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection
with the preparation of Disclosure Documents for the securitization, (B) not later than thirty (30)
days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days
after the end of each fiscal year of Borrower for any period for which a filing pursuant to the
Securities Exchange Act of 1934 in connection with or relating to the securitization (an “Exchange
Act Filing”) is not required. As used herein, “Regulation AB” shall mean Regulation AB under the
Securities Act of 1933 and the Securities Exchange Act of 1934 (as amended). As used herein,
“Disclosure Document” shall mean a prospectus, prospectus supplement, private placement memorandum,
or similar offering memorandum or offering circular, in each case in preliminary or final form,
used to offer securities in connection with a securitization.



11. Hazardous Substances. Borrower covenants and agrees that it (a) shall not use,
generate, store, or allow to be generated, stored or used, any “Hazardous Substances” (hereinafter
defined) on the Property, except in the ordinary course of Borrower’s business and in accordance
with all “Environmental Laws” (hereinafter defined), (b) shall at all times maintain the Property
in full compliance with all applicable Environmental Laws, including timely remediating the
Property if and when required, and (c) shall cause compliance by all tenants and sub-tenants on the
Property with Borrower’s covenants and agreements contained in this Paragraph 11. Borrower shall
promptly notify Lender in writing of (i) any investigation, claim or other proceeding by any party
caused or threatened in connection with any Hazardous Substances on the Property, or the failure or
alleged failure of the Property to comply with any applicable Environmental Laws, or
(ii) Borrower’s discovery of any condition on or in the vicinity of the Property to fail to comply
with applicable Environmental Laws.



The term “Environmental Laws” shall include any present and future federal, state and/or local
law, statute, ordinance, code, rule, regulation, license, authorization, decision, order,
injunction or decree and/or other governmental directive or requirement, as well as common law,
which pertains or relates to health, safety or the environment (including but not limited to,
ground or air or water or noise pollution or contamination, and underground or above ground tanks)
and shall include, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (“CERCLA”), the Resource Conservation and Recovery Act of 1976,
as amended (“RCRA”), and any state or federal lien or superlien or environmental clean-up statutes,
and regulations, rules, guidelines, or standards promulgated pursuant thereto all as amended from
time to time. The term “Hazardous Substances” shall include any substance, whether solid, liquid
or gaseous: (i) which is listed, defined or regulated as a “hazardous substance,” “hazardous
waste” or “solid waste,” or otherwise classified as hazardous or toxic, in or pursuant to any
Environmental Laws; or (ii) which is or contains asbestos, radon, any polychlorinated biphenyl,
urea formaldehyde foam insulation, explosive or radioactive material, lead paint, or motor fuel or
other petroleum hydrocarbons; or (iii) which causes or poses a threat to cause a contamination or
nuisance on the Property or any adjacent property or a hazard to the environment or to the health
or safety of persons on or about the Property.



12. Representations and Covenants.




(a) If Borrower is a corporation, it represents that it is a corporation duly
organized, existing and in good standing under the laws of its state of incorporation, that
it is duly qualified and in good standing under the laws of the state where the Land is
located, and that the execution and delivery of the Loan Documents and the performance of
the obligations thereunder are within Borrower’s corporate powers, have been duly authorized
by all necessary action of its board of directors, and do not contravene the terms of its
articles of incorporation or by-laws.




(b) If Borrower is a general or limited partnership or a limited liability company, it
represents that it is duly formed, organized and existing in the state of its formation,
that it is qualified to do business under the laws of the state where the Land is located,
and that the execution and delivery of the Loan Documents and the performance of the
obligations thereunder do not conflict with any provision of Borrower’s partnership
agreement or operating agreement, as applicable, and all other certificates and agreements
governing Borrower, and have been duly authorized by all necessary action of its partners or
members.




(c) Borrower represents that (i) the execution and delivery of the Loan Documents, the
payment of the Indebtedness, and the performance of the Obligations do not violate any law
or conflict with any agreement by which Borrower is bound, or any court order by which
Borrower is bound, (ii) no consent or approval of any governmental authority or any third
party is required for the execution or delivery of the Loan Documents, the payment of
Indebtedness, and the performance of the Obligations, and (iii) the Loan Documents are valid
and binding agreements, enforceable in accordance with their terms.




(d) Borrower represents that (i) it is lawfully seized with fee simple title in the
estate hereby conveyed; (ii) it has the right to mortgage, convey, assign and grant a first
security interest in the Property; (iii) the Property is unencumbered, and Borrower will
warrant and defend title to the Property against all claims and demands, subject to
easements and restrictions listed in a schedule of exceptions to coverage in the title
insurance policy accepted by Lender insuring Lender’s interests in the Property; and (iv) it
has no operations, assets or activities other than the Property.




(e) Borrower represents and covenants that, to the best of Borrower’s knowledge,
(i) all material permits, licenses, authorizations, approvals, and certificates, including
certificates of completion and occupancy permits, required by law, ordinance or regulation
have been obtained and are and shall remain in full force and effect; and (ii) Borrower and
the use and occupancy of the Land and all improvements thereon are and shall remain in
compliance with all laws, regulations and ordinances, including without limitation, all
restrictive covenants of record and zoning and building laws.




(f) Borrower represents that, to the best of its knowledge after inquiry, except as
disclosed on the survey furnished by Borrower to Lender in connection with the Loan, all of
the improvements on the Land lie wholly within the boundaries of and building line
restrictions relating to the Land and no improvements located on adjoining lands encroach
upon the Land so as to affect the value or marketability of the Property, except those which
are insured against by the title insurance policy accepted by Lender insuring Lender’s
interests in the Property.




(g) Borrower represents that, to the best of Borrower’s knowledge, the Property is
served by public utilities, water and sewer (or septic facilities) and services in the
surrounding community, including police and fire protection, public transportation, refuse
removal, public education, and enforcement of safety codes which are adequate in relation to
the premises and location on which the Property is located (taking into account the
Permitted Use of the Property).




(h) Borrower represents that, to the best of Borrower’s knowledge, the Property is
serviced by public water and sewer systems which are adequate in relation of the
improvements and location on which the Property is located. All liquid and solid waste
disposal, septic and sewer systems located on the Property are in good and safe condition
and repair and in compliance with all applicable laws.




(i) Borrower represents that the Property has parking and other amenities necessary for
the operation of the business currently conducted thereon which are adequate in relation to
the premises and location on which the Property is located.




(j) Borrower represents that the Property is a contiguous parcel and a separate tax
parcel, and there are no delinquent taxes or other outstanding charges adversely affecting
the Property.




(k) Borrower represents that no action, omission, misrepresentation, negligence, fraud
or similar occurrence has taken place on the part of any person that would reasonably be
expected to result in the failure or impairment of full and timely coverage under any
insurance policies providing coverage for the Property.




(l) None of Borrower, any Guarantor, or any other holder of a direct or indirect legal
or beneficial interest in Borrower is or will be, held, directly or indirectly, by a
“foreign corporation,” “foreign partnership,” “foreign trust,” “foreign estate,” “foreign
person,” “affiliate” of a “foreign person” or a “United States intermediary” of a “foreign
person” within the meaning of IRC Sections 897 and 1445, the Foreign Investments in Real
Property Tax Act of 1980, the International Investment and Trade in Services Survey Act, the
Agricultural Foreign Investment Disclosure Act of 1978, the regulations promulgated pursuant
to such acts or any amendments to such acts.




(m) None of Borrower or any Guarantor is insolvent, and there has been no
(i) assignment made for the benefit of the creditors of any of them, (ii) appointment of a
receiver for any of them or for the properties of any of them, or (iii) bankruptcy,
reorganization, or liquidation proceeding instituted by or against any of them.




(n) All information in the application for the Loan submitted by Borrower to Lender
(the “Loan Application”) and in all financial statements, rent rolls, reports, certificates
and other documents submitted in connection with the Loan Application or in satisfaction of
the terms thereof, are accurate, complete and correct in all material respects, provided,
however, to the extent that such information was prepared by someone other than Borrower or
an affiliate of Borrower, the foregoing representation is made to the best of Borrower’s
knowledge after inquiry. There has been no material adverse change in the representations
made or information heretofore supplied by or on behalf of Borrower or any Guarantor in
connection with the Loan or the Loan Application as to Borrower, any Guarantor, or the
Property. There has been no adverse change in any condition, fact, circumstance or event
that would make any such representations or information inaccurate, incomplete or otherwise
misleading.




(o) Except as listed on Exhibit C hereto, (i) there is no litigation,
arbitration, condemnation proceeding or other proceeding or governmental investigation
pending or, to Borrower’s knowledge, threatened against or relating to Borrower, any
Guarantor, or the Property and there are no outstanding judgment(s) against or relating to
Borrower or any Guarantor, in each case that may have a material adverse effect on
Borrower’s financial condition, the value of the Property or the net operating income
therefrom, (ii) Borrower and Guarantor, each has not (A) had any property foreclosed upon,
(B) given a deed in lieu of foreclosure, or (C) been involved in any criminal proceedings
where Borrower or Guarantor was the defendant and (iii) Borrower and Guarantor have not
defaulted on any loan or other indebtedness.




(p) The proceeds evidenced by the Note will be used by Borrower solely and exclusively
for proper business purposes and will not be used for the purchase or carrying of registered
equity securities within the purview and operation of any regulation issued by the Board of
Governors of the Federal Reserve System or for the purpose of releasing or retiring any
indebtedness which was originally incurred for any such purpose.




(q) Borrower represents and covenants that all Leases of space in the Property existing
as of the date hereof are in writing.




(r) Borrower covenants that Lender shall be allowed to advertise in the various news or
financial media that Lender has provided the Loan to Borrower, but Borrower shall not do so
without Lender’s prior written permission.




(s) Borrower represents that Borrower and all Guarantors have filed all federal, state,
county, municipal, and city income and other tax returns required to have been filed by them
and have paid all taxes and related liabilities which have become due pursuant to such
returns or pursuant to any assessments received by them. Neither Borrower nor any Guarantor
knows of any basis for any additional assessment in respect to any such taxes and related
liabilities for prior years.




(t) Borrower covenants that if at any time the United States of America, any State
thereof or any subdivision of any such State shall require revenue or other stamps to be
affixed to the Note or this Mortgage, or impose any other tax or charge on the same,
Borrower will pay for the same, with interest and penalties thereon, if any.




(u) As of the date hereof, Borrower represents that Borrower and Guarantors have no
valid offset, defense, counterclaim, abatement or right to rescission with respect to any of
the Loan Documents.




(v) Borrower has dealt with no broker other than L.J. Melody (“Broker”) and Borrower
shall pay all fees and expenses owing to any mortgage broker and will indemnify, defend and
hold Lender harmless from any and all other brokerage claims related to the Loan.
Notwithstanding the foregoing, Lender may, at its sole election, pay incentive fees or other
compensation (collectively, “Incentives”) to Broker. Those Incentives are intended to
encourage Broker to bring loans to Lender, and may be based on a variety of different
factors, including the amount of the Loan, the Contract Rate (as defined in the Note) the
spread, the number of loan applications or loans referred to Lender, the amount of
investigative, due diligence or other assistance provided by Broker, or other factors. Any
cash payments to Broker are not referenced in the Loan Documents.




(w) Notwithstanding anything to the contrary contained herein, so long as this Mortgage
remains in effect, Borrower shall not bring an action for partition with respect to such
Borrower’s ownership interest in the Property or to compel any sale thereof, and each entity
comprising Borrower hereby expressly waives any and all rights to partition the Property.




(x) Borrower shall give prompt notice to Lender of any default under any Tenant in
Common Agreement (“TIC Agreement”).




(y) Borrower shall not modify, amend or terminate the TIC Agreement without the prior
written consent of Lender, which consent may be withheld in Lender’s sole and absolute
discretion.




(z) Without limiting the generality of Paragraph 15, there shall never be more than
thirty-five (35) tenants in common (including Borrower) owning the Property.




(aa) Borrower covenants that it shall not terminate the property manager under that
certain Management Agreement (the “Management Agreement”) executed by and between Borrower
and Triple Net Properties Realty, Inc. (the “Property Manager”) or modify and/or terminate
the Management Agreement or enter into a new management agreement, without the prior written
consent of Lender. In the event Borrower does terminate the Property Manager with the
written consent of Lender, Lender shall have the right to approve the new management
agreement and approve any new property manager named by Borrower which new property manager
must be acceptable to Lender in its sole discretion. The Management Agreement or any
subsequently approved management agreement shall provide that such property manager may not
be terminated without Lender’s prior written consent, and which such new property management
agreement may not be terminated or amended without Lender’s prior written consent. In
addition, the Management Agreement shall provide that all notice from Lender to the Tenants
in Common may go to the Property Manager on behalf of all Tenants in Common.




(bb) At all times during the term of the Loan, Property Manager shall have all
operating authority for the Property pursuant to the terms of the Management Agreement.




(cc) Borrower represents and warrants that it has not granted a security interest in
the Replacement Reserve or TI and Leasing Reserve to any other person or entity.



Except as otherwise provided herein, each and all of the representations, covenants and obligations
of Borrower shall survive the execution and delivery of the Loan Documents and shall continue in
full force and effect until the Indebtedness is paid in full.



13. Lease Assignment. Borrower acknowledges that, concurrently herewith Borrower is
delivering to Lender, as additional security for the repayment of the Loan, an Assignment of Leases
and Rents (the “Assignment”) pursuant to which Borrower has assigned to Lender all of Borrower’s
right, title and interest in the Leases and the Rents and income from the Property. All of the
provisions of the Assignment are hereby incorporated herein as if fully set forth at length in the
text of this Mortgage. Borrower agrees to abide by all of the provisions of the Assignment.



14. Subordination, Non-Disturbance and Attornment Agreements/Estoppel Certificates.




(a) Borrower shall, within 15 days after Lender’s request, furnish Lender with a
written statement, duly acknowledged, setting forth the sums secured by the Loan Documents
and any right of set-off, counterclaim or other defense which exists against such sums and
the Obligations.




(b) If the Property includes commercial property, Borrower shall use best efforts
(including institution of litigation) to deliver to Lender upon request, tenant
subordination, non-disturbance and attornment agreements/estoppel certificates from each
commercial tenant at the Property in form and substance reasonably satisfactory to Lender
provided that Borrower shall not be required to deliver such certificates more frequently
than two (2) times in any calendar year.



15. Transfers of the Property or Ownership Interests in Borrower; Assumption; Due on
Sale/Encumbrance.




(a) No Sale/Encumbrance. Borrower agrees that Borrower shall not, without the
prior written consent of Lender, sell, convey, mortgage, grant, bargain, encumber, pledge,
assign, or otherwise transfer the Property or any interest therein or any part thereof or
permit the Property or any part thereof to be sold, conveyed, mortgaged, granted, bargained,
encumbered, pledged, assigned, or otherwise transferred except for: (i) pursuant to Leases
of space in the Property to tenants in accordance with the provisions of Paragraph 7;
(ii) in connection with a condemnation action or other taking; or (iii) the disposal of
personalty that is obsolete or no longer used or useful, so long as such personalty is
replaced with similar items of comparable value and utility and in which Lender has a first
lien and mortgage. In addition, Borrower shall not allow, without the prior written consent
of Lender, any pledge of any ownership interests in Borrower.




(b) Sale/Encumbrance Defined. A sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer of the Property within the meaning of this
Paragraph 15 shall be deemed to include, but not limited to the following: (i) an
installment sales agreement wherein Borrower agrees to sell the Property or any part thereof
for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a
substantial part of the Property for other than actual occupancy by a space tenant
thereunder or a sale, assignment or other transfer of, or the grant of a mortgage in,
Borrower’s right, title and interest in and to any Leases or any Rents; or (iii) a sale,
encumbrance, pledge, hypothecation, or transfer of any direct and/or indirect ownership
interests (including beneficial interests) in Borrower. Notwithstanding the foregoing,
provided that no Event of Default has occurred, the following transfers shall not be deemed
to be a sale or encumbrance for the purpose of this Paragraph 15: (A) transfers of interests
in Borrower for estate planning purposes to immediate family members (which shall be limited
to a spouse, parent, child and grandchild (each an “Immediate Family Member”)) of such party
or to trusts or entities created for the benefit of Immediate Family Members provided that
(1) Borrower shall provide Lender with 30 days’ prior written notice of any such permitted
transfer, and (2) Borrower shall furnish Lender with copies of any documentation executed in
connection with such permitted transfer promptly after execution thereof, (B) transfers of
direct and/or indirect interests in Borrower by operation of law or upon death by devise or
descent, provided that Borrower shall furnish Lender with copies of any documentation
executed in connection with such permitted transfer promptly after execution thereof, (C)
transfers of direct and/or indirect interests in Borrower to Guarantor(s), (D) a sale,
encumbrance, pledge, hypothecation, or transfer of up to ninety-nine percent (99%) in the
aggregate (which may be pursuant to one or more transactions during the term of the Loan) of
the direct and/or indirect ownership interests (including beneficial interests) in Borrower
provided that (1) if such Transfer exceeds forty-nine percent (49.0%) of the direct or
indirect ownership interests in Borrower, such Transfer is to the REIT or to a newly formed
entity that is owned and controlled by the REIT, (2) Borrower shall furnish Lender with
copies of any documentation executed in connection with such permitted transfer promptly
after execution thereof, and (3) such transfer does not result in change in the control or
management of Borrower, (E) Sole Member of Borrower may transfer 100% of its interest in
Borrower or Property to the REIT or to a newly formed entity that is owned and controlled by
the REIT, and (F) the issuance of new membership interests in Borrower by which an aggregate
of less than forty-nine percent (49%) of the ownership of Borrower’s membership interests
shall be vested in or pledged to a party or parties other than Guarantor, provided that (1)
Borrower shall furnish Lender with copies of any documentation executed in connection with
such permitted transfer promptly after execution thereof, and (2) such transfer does not
result in change in the control or management of Borrower. To the extent that the forgoing
are not deemed to be a sale or encumbrance for purposes of this Paragraph 15, no
administrative fee shall be required in connection therewith.




(c) TIC Assumption. Notwithstanding the foregoing provisions of this
Paragraph 15, Lender shall not withhold its consent to a transfer of an undivided
tenant-in-common interest in the Property and partial assumption of this Loan (hereinafter,
a “TIC Assumption”), provided that each of the following terms and conditions are satisfied:




(i) Borrower is in compliance with all terms and conditions of the Loan
Documents and no Event of Default has occurred and is then continuing hereunder or
under any of the other Loan Documents and the proposed transferee (“Transferee”)
agrees to continue to comply with and be bound by all provisions of the Loan
Documents;




(ii) Borrower gives Lender written notice of the terms of such prospective TIC
Assumption not less than thirty (30) days before the date on which such TIC
Assumption is scheduled to take place and, concurrently therewith, gives Lender all
such information concerning Transferee as Lender reasonably requests;




(iii) Borrower shall pay Lender (A) in connection with such proposed TIC
Assumption, all reasonable out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys’ fees incurred by Lender and any rating agency
approval fees (whether such transfer is approved or rejected) plus (B) concurrently
with the closing of such TIC Assumption, a nonrefundable assumption fee in an amount
equal to the greater of (A) $5,000.00, or (B) 1% of such Transferee’s proportionate
share of the Principal Amount (based on such Transferee’s tenancy in common interest
in the Property);




(iv) Transferee executes and delivers such documents and agreements as Lender
shall reasonably require to evidence and effectuate said assumption and delivers
such legal opinions as Lender may reasonably require, including, without limitation,
hazard insurance endorsements or certificates and other similar materials as Lender
may deem necessary at the time of the TIC Assumption, all in form and substance
satisfactory to Lender, including, without limitation, an endorsement or
endorsements to Lender’s loan title insurance policy insuring the lien of this
Mortgage, extending the effective date of such policy to the date of execution and
delivery of the assumption agreement referenced in this subparagraph 15(c)(iv), with
no additional exceptions added to such policy, except for items consented to by
Lender or permitted under this Mortgage, and insuring that Transferee’s
proportionate interest in the fee simple title to the Property is vested in the
Transferee;




(v) the transferring Borrower executes and delivers to Lender, without any cost
or expense to Lender, a release of Lender, its officers, directors, employees and
agents, from all claims and liability relating to the transactions evidenced by the
other security documents through and including the date of the closing of the TIC
Assumption, which agreement shall be in form and substance satisfactory to Lender
and shall be binding upon the Transferee;




(vi) subject to the provisions of Paragraph 11 of the Note, such TIC Assumption
is not construed so as to relieve the transferring Borrower of any personal
liability under the Note or any of the Loan Documents for any act or events
occurring or obligations arising prior to or simultaneously with the closing of such
TIC Assumption (excluding payment of the principal amount of the Note and interest
accrued thereon) and the transferring Borrower executes, without any cost or expense
to Lender, such documents and agreements as Lender shall reasonably require to
evidence and effectuate the ratification of such personal liability;




(vii) Transferee shall furnish, if Transferee is a corporation, partnership or
other entity, all appropriate papers evidencing Transferee’s capacity in good
standing and the qualification of the signers to execute the assumption of the
Obligations, which paper shall include certified copies of all documents relating to
the organization and formation of Transferee and of the entities, if any, which are
partners, members or shareholders of Transferee. Transferee and such constituent
partners, members or shareholders of Transferee (as the case may be) as Lender shall
require, shall be single purpose entities, whose formation documents shall be
approved by counsel to Lender. Transferee must comply with the provisions of
Paragraph 17 hereof;




(viii) Transferee shall furnish an opinion of counsel satisfactory to Lender
and its counsel stating that (A) Transferee’s formation documents provide proof for
the matters described in subparagraph (vii) above, (B) the assets of Transferee will
not be consolidated with the assets of any other entity having an interest in, or
affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any
such entity if required by any rating agency after the securitization of the Loan,
(C) the assumption of the Obligations has been duly authorized, executed and
delivered and the Loan Documents are valid, binding and enforceable against the
Transferee in accordance with their terms, (D) Transferee and any entity which is a
controlling stockholder, general partner or managing member of Transferee have been
duly organized and are in good standing and in existence, (E) the waiver of the
right to partition the Property is enforceable against Transferee, and (F) with
respect to such other matters as Lender or any applicable rating agency may request;




(ix) if the Loan has previously been securitized pursuant to Paragraph 43,
Lender shall have received evidence in writing from the rating agencies to the
effect the proposed transfer will not result in a downgrade, qualification,
reduction or withdrawal of any rating initially assigned or to be assigned to any
securities issued in connection with the Loan; and




(x) Notwithstanding the foregoing or any of the provisions of the Loan
Documents to the contrary, a Transferee must meet all of the following conditions:




(A) the owner(s) of all of the ownership interests in a Transferee must be
an “ Accredited Investor” as defined in Rule 501 of Regulation D of the
Securities Act of 1933, and Transferee and/or its principals must have a
Beacon/FICO score of not less than 650;




(B) neither a Transferee nor the owner(s) of any of the ownership interests
in a Transferee shall have (1) been a party to any bankruptcy proceedings,
voluntary or involuntary, (2) made an assignment for the benefit of
creditors or taken advantage of any insolvency act, or any act for the
benefit of debtors, (3) defaulted on any indebtedness, (4) owned any
property which was subject to foreclosure or attachment proceedings, (5)
been a target of, or party to, any criminal investigation or proceeding, (6)
been a party to any threatened or pending litigation or (7) any outstanding
judgments;




(C) intentionally deleted;




(D) there shall be no material convictions, judgments, litigation or
regulatory action pending or threatened against Transferee, Transferee’s
principals or related entities which is not reasonably acceptable to Lender,
and none of Transferee, Transferee’s principals or such related entities
shall be on any so-called prohibited persons lists;




(E) other than with respect to transfers by the initial Borrower hereunder,
the transfer (1) must be for the entire interest of a Tenant in Common in
the Property (or 100% of the ownership interests in a Tenant in Common), and
(2) can only be made to a single new Tenant in Common. In no event may any
such transfer result in “Borrower” being comprised of more than the number
of co-owners set forth in Revenue Procedure 2002-22, I.R.B. 2002-14, as such
pronouncement may be modified from time to time (which number is thirty five
[35] as of the date hereof);




(F) Transferee, Transferee’s principals and the related entities shall not
have defaulted under its or their obligations with respect to any other
indebtedness in a manner which is not acceptable to Lender; and




(G) Transferee, Transferee’s principals and the related entities must have
demonstrated expertise in owning and operating real estate investment
property, which expertise shall be reasonably determined by Lender.




Any such TIC Assumption shall not be construed as to relieve any current Guarantors of their
obligations under any guarantees or indemnity agreements executed in connection with the
Note, provided that if Transferee or a party associated with Transferee approved by Lender in
its sole discretion assumes the obligations of the current Guarantors under their guarantees
or indemnity agreements and Transferee or such party associated with Transferee if
applicable, executes, without any cost or expense to Lender, a new guarantee and/or indemnity
agreement in form and substance satisfactory to Lender, then Lender shall release the current
Guarantors from all obligations first arising under their guarantees or indemnity agreements
after the closing of such TIC Assumption;




(d) One-Time Assumption. Notwithstanding the foregoing provisions of this
Paragraph 15, Lender shall not withhold its consent to a sale of the entire Property and
assumption of this Loan (hereinafter, an “Assumption”), provided that each of the following
terms and conditions are satisfied:




(i) Borrower is in compliance with all terms and conditions of the Loan
Documents and no default has occurred and is then continuing hereunder or under any
of the other Loan Documents and the proposed Transferee agrees to continue to comply
with and be bound by all provisions of the Loan Documents;




(ii) Borrower gives Lender written notice of the terms of such prospective
Assumption not less than forty-five (45) days before the date on which such
Assumption is scheduled to take place and, concurrently therewith, gives Lender all
such information concerning Transferee as Lender reasonably requests. Lender shall
have the right to approve or disapprove the proposed Transferee. In determining
whether to give or withhold its approval of the proposed Transferee, Lender shall
consider Transferee’s experience in owning and operating a facility similar to the
Property, Transferee’s entity structure, Transferee’s financial strength, the
Transferee’s general business standing and Transferee’s relationship and experience
with contractors, vendors, tenants, lenders and other business entities;




(iii) Borrower shall pay Lender (A) in connection with such proposed
Assumption, all reasonable out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys’ fees incurred by Lender and any rating agency
approval fees (whether such transfer is approved or rejected), plus (B) concurrently
with the closing of such Assumption, a nonrefundable assumption fee in an amount
equal to 1% of the then outstanding principal balance of the Note (the “Assumption
Fee”). Notwithstanding the foregoing, Lender agrees to waive the first Assumption
Fee, so long as the Transferee is the REIT or a newly formed entity that is owned
and controlled by the REIT;




(iv) Transferee executes and delivers such documents and agreements as Lender
shall reasonably require to evidence and effectuate said assumption and delivers
such legal opinions as Lender may reasonably require, including, without limitation,
hazard insurance endorsements or certificates and other similar materials as Lender
may deem necessary at the time of the Assumption, all in form and substance
satisfactory to Lender, including, without limitation, an endorsement or
endorsements to Lender’s loan title insurance policy insuring the lien of this
Mortgage, extending the effective date of such policy to the date of execution and
delivery of the assumption agreement referenced in this subparagraph 15(c)(iv), with
no additional exceptions added to such policy, except for items consented to by
Lender or permitted under this Mortgage, and insuring that fee simple title to the
Property is vested in the Transferee;




(v) Borrower executes and delivers to Lender, without any cost or expense to
Lender, a release of Lender, its officers, directors, employees and agents, from all
claims and liability relating to the transactions evidenced by the other security
documents through and including the date of the closing of the Assumption, which
agreement shall be in form and substance satisfactory to Lender and shall be binding
upon the Transferee;




(vi) subject to the provisions of Paragraph 11 of the Note, such Assumption is
not construed so as to relieve Borrower of any personal liability under the Note or
any of the Loan Documents for any act or events occurring or obligations arising
prior to or simultaneously with the closing of such Assumption (excluding payment of
the principal amount of the Note and interest accrued thereon) and Borrower
executes, without any cost or expense to Lender, such documents and agreements as
Lender shall reasonably require to evidence and effectuate the ratification of such
personal liability;




(vii) Transferee shall furnish, if Transferee is a corporation, partnership or
other entity, all appropriate papers evidencing Transferee’s capacity in good
standing and the qualification of the signers to execute the assumption of the
Obligations, which paper shall include certified copies of all documents relating to
the organization and formation of Transferee and of the entities, if any, which are
partners, members or shareholders of Transferee. Transferee and such constituent
partners, members or shareholders of Transferee (as the case may be) as Lender shall
require, shall be single purpose entities, whose formation documents shall be
approved by counsel to Lender. Transferee must comply with the provisions of
Paragraph 17 hereof;




(viii) Transferee shall furnish an opinion of counsel satisfactory to Lender
and its counsel stating that (A) Transferee’s formation documents provide proof for
the matters described in subparagraph (vi) above, (B) the assets of Transferee will
not be consolidated with the assets of any other entity having an interest in, or
affiliation with, the Transferee, in the event of a bankruptcy or insolvency of any
such entity if required by any rating agency after the securitization of the Loan,
(C) the assumption of the Obligations has been duly authorized, executed and
delivered and the Loan Documents are valid, binding and enforceable against the
Transferee in accordance with their terms, (D) Transferee and any entity which is a
controlling stockholder, general partner or managing member of Transferee have been
duly organized and are in good standing and in existence, and (E) with respect to
such other matters as Lender or any applicable rating agency may request; and




(ix) if the Loan has previously been securitized pursuant to Paragraph 44,
Lender shall have received evidence in writing from the rating agencies to the
effect the proposed transfer will not result in a downgrade, qualification,
reduction or withdrawal of any rating initially assigned or to be assigned to any
securities issued in connection with the Loan.




Any such Assumption shall not be construed as to relieve any current Guarantors of their
obligations under any guarantees or indemnity agreements executed in connection with the Note,
provided that if Transferee or a party associated with Transferee approved by Lender in its
sole discretion assumes the obligations of the current Guarantors under their guarantees or
indemnity agreements and Transferee or such party associated with Transferee if applicable,
executes, without any cost or expense to Lender, a new guarantee and/or indemnity agreement in
form and substance satisfactory to Lender, then Lender shall release the current Guarantors
from all obligations first arising under their guarantees or indemnity agreements after the
closing of such Assumption. If the Transferee under this Section 15(d) is the REIT, at such
time as the REIT achieves a minimum net worth not less than $10,000,000 as determined by
Lender in its sole discretion, then the REIT shall be deemed an acceptable substitute
guarantor for purposes of this section;




(e) Transfer of Membership Interests.




Notwithstanding anything herein to the contrary, the sole member of the initial
Borrower hereunder shall have the right, without Lender’s consent, to transfer non-managing
limited liability company interests in such initial Borrower to one or more Persons (each, a
“Member Transferee”), provided, the following criteria are satisfied:




1) Each Member Transferee and/or its principals must be an “Accredited Investor” as
defined in Rule 501 of Regulation D of the Securities Act of 1933;




2) Each Member Transferee and/or its principals must not be listed on any so-called
prohibited persons lists, including, but not limited to any list published by the Office of
Foreign Assets Control or any successor agency;




3) No Member Transferee and/or its principals may, in the previous ten (10) years, have
been party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for
the benefit of creditors or taken advantage of any insolvency act, or any act for the
benefit of debtors;




4) No Member Transferee may hold more than 7.5% of the interest in the Property
(determined by multiplying the initial Borrower’s interest in the Property by the Member
Transferee’s interest in such initial Borrower);




5) Triple Net Properties, LLC becomes the sole manager of Borrower; and




6) Not less than 10 days prior to such transfer, Borrower shall provide notice of the
pending transfer to Lender, together with a certificate certifying compliance with the
foregoing.




(f) Lender’s Rights. Except as provided in subparagraph 15(c), (d) and (e)
above, Lender reserves the right to condition the consent required hereunder upon a
modification of the terms hereof and on assumption of the Note, this Mortgage and the Loan
Documents as so modified by the proposed Transferee, payment of an assumption fee of one
percent (1%) of the Principal Amount, and all of Lender’s out of pocket expenses incurred in
connection with such transfer, the approval by a rating agency of the proposed transferee,
the proposed transferee’s continued compliance with the covenants set forth in this
Mortgage, including, without limitation, the covenants contained in Paragraph 17, or such
other conditions as Lender shall determine in its sole discretion to be in the interest of
Lender. All of Lender’s out-of-pocket expenses incurred shall be payable by Borrower
whether or not Lender consents to such assumption. Lender shall not be required to
demonstrate any actual impairment of its security or any increased risk of default hereunder
in order to declare the Note immediately due and payable upon Borrower’s prohibited sale,
conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the
Property without Lender’s consent. This provision shall apply to every sale, conveyance,
mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the Property
regardless of whether voluntary or not, or whether or not Lender has consented to any
previous sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or
transfer of the Property.




(g) Lockout Periods.




(i) Lender may send written notice (the “Securitization Notice”) to Borrower
notifying Borrower that Lender has initiated contact with (A) any rating agency
concerning the securitization of the Loan or (B) any purchaser or investor regarding
the sale of the Loan. Once a Securitization Notice has been given, Borrower can no
longer transfer any interest in the Property; provided, however, that
notwithstanding the foregoing, in the event that Borrower has been provided with all
the information concerning any proposed Tenant in Common as a Transferee as
described above in subparagraph 15(c)(ii) prior to the receipt of the Securitization
Notice, Borrower shall have thirty (30) days from the date of the receipt of the
Securitization Notice to complete all the requirements set forth in this
Paragraph 15 necessary to transfer a Tenant in Common interest hereunder. In the
event such transfer is not completed within said thirty (30) day period, Borrower
shall be prohibited from trying to add the proposed Tenant in Common or transferring
any interest to any other Tenant in Common for six (6) months from the date of the
Securitization Notice. If the Loan is not securitized or sold within six (6) months
from the date of the Securitization Notice, then Borrower may again try to admit a
new Tenant in Common subject to Lender providing a subsequent Securitization Notice
in the event Lender later initiates contact with any rating agency concerning the
securitization of the Loan or initializes contact with a potential whole loan
purchaser or investor and the thirty (30) day period and six (6) month period
described above shall commence again. Any subsequent approval and admittance of a
new Tenant in Common shall comply with the terms and conditions of this Paragraph
15.




(ii) Lender shall have no obligation to provide a Securitization Notice if an
Event of Default has occurred and is then continuing hereunder or under any of the
other Loan Documents and in such event Borrower shall have no right to add an
additional Tenant in Common or transfer any interest in the Property.



16. No Additional Liens. Borrower covenants not to execute any mortgage, security
agreement, assignment of leases and rents or other agreement granting a lien (except the liens
granted to Lender by the Loan Documents) or, except as set forth in Paragraph 2 above, take or fail
to take any other action which would result in a lien against the interest of Borrower in the
Property without the prior written consent of Lender.



17. Single Asset Entity. Borrower and any other entity required by Lender to be a
Special Purpose Entity pursuant to the provisions of this Paragraph 17 or otherwise (a “Required
SPE”) shall not hold or acquire, directly or indirectly, any ownership interest (legal or
equitable) in any real or personal property other than the Property, or become a shareholder of or
a member or partner in any entity which acquires any property other than the Property, until such
time as the Indebtedness has been fully repaid and all Obligations are satisfied. Borrower’s and
any Required SPE’s articles of incorporation, partnership agreement or operating agreement, as
applicable, (w) as to Borrower, limit its purpose to the acquisition, ownership, operation and
disposition of the Property, and as to any Required SPE, limit its purpose to acting as the general
partner of the limited partnership that owns the Property, or a member of the limited liability
company that owns the Property, or the general partner of any Required SPE which is a limited
partnership, or a member of any Required SPE which is a limited liability company, (x) prohibit
other activities, mergers, consolidations and asset sales while the Loan is outstanding until such
time as the Indebtedness has been fully repaid, (y) contain separateness covenants satisfactory to
Lender, and (z) provide that such provisions shall not be amended without the prior written consent
of Lender. Borrower covenants that:




(a) Borrower is organized solely for the purpose of acquiring, developing, owning,
holding, selling, leasing, transferring, exchanging, managing and operating the Property,
entering into the Loan Documents with the Lender, refinancing the Property in connection
with a permitted repayment of the Loan, and transacting lawful business that is incident,
necessary and appropriate to accomplish the foregoing; and any Required SPE is organized
solely for the purpose of acting as a general partner of the limited partnership that owns
the Property, or a member of the limited liability company that owns the Property, or the
general partner of any Required SPE which is a limited partnership, or a member of any
Required SPE which is a limited liability company;




(b) Borrower is not engaged and will not engage in any business unrelated to the
acquisition, development, ownership, management or operation of the Property, and any
Required SPE is not engaged and will not engage in any business unrelated to (1) acting as
general partner of the limited partnership that owns the Property, (2) acting as a member of
the limited liability company that owns the Property, (3) acting as general partner of any
Required SPE which is a limited partnership, or (4) acting as a member of any Required SPE
which is a limited liability company;




(c) Borrower does not have and will not have any assets other than those related to the
Property and any Required SPE does not have and will not have any assets other than its
partnership interest in the limited partnership that owns the Property, or its membership
interest in the limited liability company that owns the Property or acts as the general
partner of such limited partnership or managing member of such limited liability company, as
applicable;




(d) neither Borrower nor any Required SPE have engaged, sought or consented to and will
not, without the affirmative vote of all of its members, managers, directors or general
partners, as applicable, engage in, seek or consent to any dissolution, winding up,
liquidation, consolidation, merger, sale of all or substantially all of its assets, transfer
of partnership or membership interests, or amendment of its limited partnership agreement,
articles of incorporation, bylaws, articles of organization, certificate of formation,
limited liability company agreement and/or operating agreement (as applicable) with respect
to the matters set forth in this definition (in each case, except as permitted hereunder or
otherwise with Lender’s prior written consent);




(e) Any Borrower or Required SPE that is a limited partnership has as its only general
partners, Special Purpose Entities that are corporations, limited partnerships or limited
liability companies;




(f) Any Borrower or Required SPE that is a limited liability company, if such limited
liability company has more than one member, has at least one manager that is a Special
Purpose Entity;




(g) Any Borrower or Required SPE that is a limited liability company, if such limited
liability company has only one member, (1) has been formed under Delaware law and (2) has
either a corporation or other person or entity that shall become a member of the limited
liability company upon the dissolution or disassociation of the member, and (3) will not
cause or allow such entity to take any action related to a bankruptcy or insolvency
proceeding or a voluntary dissolution without the unanimous affirmative vote of 100% of the
managers;




(h) Borrower and any Required SPE (1) have articles of organization, a certificate of
formation, limited liability company agreement and/or an operating agreement, as applicable
(if such entity is a limited liability company), (2) have a limited partnership agreement
(if such entity is a limited partnership), or (3) have a certificate of incorporation,
articles or bylaws (if such entity is a corporation) that, in each case, provide that such
entity will not, without the affirmative vote of all of its members, managers, directors, or
general partners, as applicable: (i) dissolve, merge, liquidate or consolidate and, as to
any Required SPE, permit Borrower (as applicable) to dissolve, merge, liquidate, or
consolidate; (ii) except as permitted herein, sell all or substantially all of its assets
or, as to any Required SPE, the assets of the Borrower (as applicable), (iii) engage in any
other business activity, or amend its organizational documents with respect to the matters
set forth in this definition without the consent of the Lender; or (iv) file a bankruptcy or
insolvency petition or otherwise institute insolvency proceedings with respect to itself or,
as to any Required SPE, with respect to Borrower (as applicable);




(i) Borrower and any Required SPE have not and shall not, without the affirmative vote
of all of its member, managers, directors or general partners, as applicable: (i) dissolve,
merge, liquidate, or consolidate, or, as to any Required SPE, permit Borrower (as
applicable) to dissolve, merge, liquidate, or consolidate; (ii) except as permitted herein,
sell all or substantially all of its assets or, as to any Required SPE, the assets of the
Borrower (as applicable), (iii) engage in any other business activity, or amend its
organizational documents, or, with respect to any Required SPE, amend the organizational
documents of Borrower, with respect to the matters set forth in this definition without the
consent of the Lender; or (iv) file a bankruptcy or insolvency petition or otherwise
institute insolvency proceedings with respect to itself or, as to any Required SPE, with
respect to Borrower;




(j) each of Borrower and any Required SPE is solvent and pays its debts and liabilities
(including, as applicable, shared personnel and overhead expenses) from its assets as the
same become due, and endeavors to maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of its
contemplated business operations;




(k) each of Borrower and any Required SPE has not failed and will not fail to correct
any known misunderstanding regarding the separate identity of such entity;




(l) each of Borrower and any Required SPE will file its own tax returns; provided,
however, that its assets and income may be included in a consolidated tax return of its
parent companies if inclusion on such consolidated tax return is in compliance with
applicable law or, in the event that such Borrower or Required SPE is a disregarded entity
for federal tax purposes, then its assets and income may be included on the tax returns
filed by its owner;




(m) each of Borrower and any Required SPE has maintained and will maintain its own
resolutions and agreements;




(n) each of Borrower and any Required SPE (1) has not commingled and will not commingle
its funds or assets with those of any other person, (2) will pay its obligations solely with
its own assets, and (3) has not participated and will not participate in any cash management
system with any other person other than Lender;




(o) each of Borrower and any Required SPE has held and will hold its assets in its own
name;




(p) each of Borrower and any Required SPE has conducted and will conduct its business
in its name or in a name franchised or licensed to it by an entity other than an Affiliate
of Borrower;




(q) each of Borrower and any Required SPE has maintained and will maintain its balance
sheets, operating statements and other entity documents separate from any other Person and
has not permitted and will not permit its assets to be listed as assets on the financial
statement of any other entity except as required or permitted by generally accepted
accounting principles; provided, however, that any such consolidated financial statement
shall contain a note indicating that it maintains separate balance sheets and operating
statements for such Borrower or Required SPE, respectively, and, if it is the Borrower, for
the Property.




(r) each of Borrower and any Required SPE has a sufficient number of employees in light
of its contemplated business operations, which may be none;




(s) each of Borrower and any Required SPE has observed and will observe all
partnership, corporate or limited liability company formalities, as applicable;




(t) each of Borrower and any Required SPE has no, and will have no, Indebtedness
(including loans (whether or not such loans are evidenced by a written agreement) between
such Borrower or Required SPE, respectively, and any Affiliates of Borrower) other than (i)
with respect to Borrower, the Loan; and (ii) with respect to Borrower or any Required SPE,
unsecured liabilities incurred in the ordinary course of business relating to the routine
administration of Borrower or such Required SPE, respectively, and, with respect to Borrower
only, unsecured liabilities incurred in the ordinary course of business relating to the
ownership and operation of the Property, which liabilities are owed to unrelated third
parties, are not more than sixty (60) days past the date incurred (unless disputed in
accordance with applicable law), are not evidenced by a note and are paid when due, and
which amounts are normal and reasonable under the circumstances, and shall not exceed two
percent (2%) of the outstanding principal balance of the Loan;




(u) each of Borrower and any Required SPE will not guarantee or become obligated for
the debts of any other entity or person or hold out its credits as being available to
satisfy the obligations of others, including not acquiring obligations or securities of its
partners, members or shareholders (except to the extent that any Required SPE acting as the
general partner of Borrower may become liable for the debts of Borrower, where Borrower is a
limited partnership);




(v) each of Borrower and any Required SPE has not and will not acquire obligations of
its partners, members or shareholders or any other Affiliate;




(w) each of Borrower and any Required SPE has allocated and will allocate fairly and
reasonably any overhead expenses that are shared with any Affiliate, including, but not
limited to, paying for shared office space and services performed by any employee of an
Affiliate;




(x) each of Borrower and any Required SPE has not maintained or used, and will not
maintain or use, invoices and checks bearing the name of any other Person, and will use its
own stationery for written communications with all other Persons;




(y) each of Borrower and any Required SPE has not pledged and will not pledge its
assets for the benefit of any other Person except as permitted or required pursuant to this
Mortgage;




(z) each of Borrower and any Required SPE has held itself out and identified itself and
will hold itself out and identify itself as a separate and distinct entity under its own
name or in a name franchised or licensed to it by an entity other than an Affiliate of
Borrower;




(aa) each of Borrower and any Required SPE has maintained and will maintain its assets
in such a manner that it will not be costly or difficult to segregate, ascertain or identify
its individual assets from those of any other Person;




(bb) each of Borrower and any Required SPE has not made and will not make loans to any
Person or hold evidence of indebtedness issued by any other person or entity (other than
cash and investment-grade securities issued by an entity that is not an Affiliate of or
subject to common ownership with such entity);




(cc) each of Borrower and any Required SPE has not identified and will not identify its
partners, members or shareholders, or any Affiliate of any of them, as a division or part of
it, and has not identified itself and shall not identify itself as a division of any other
Person (except to the extent such treatment may be required under the federal income tax law
and similar state law for disregarded entities);




(dd) each of Borrower and any Required SPE has not entered into or been a party to, and
will not enter into or be a party to, any transaction with its partners, members,
shareholders or Affiliates except in the ordinary course of its business and on terms which
are intrinsically fair, commercially reasonable and are no less favorable to it than would
be obtained in a comparable arm’s-length transaction with an unrelated third party;




(ee) each of Borrower and any Required SPE does not and will not have any of its
obligations guaranteed by any Affiliate except as otherwise required in the Loan Documents;
and




(ff) each of Borrower and any Required SPE has complied and will comply with all of the
terms and provisions contained in its organizational documents. The statement of facts
contained in its organizational documents are true and correct and will remain true and
correct.



For purposes of the foregoing:



“Affiliate” means any Person controlling, under common control with, or controlled by the
Person in question.



“Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of management, policies or activities of a person or entity, whether through ownership of
voting securities, by contract or otherwise



“Person” or “Persons” shall mean any individual, corporation, partnership, joint venture,
limited liability company, estate, trust, unincorporated association, any federal, state, county or
municipal government or any bureau, department or agency thereof and any fiduciary acting in such
capacity on behalf of any of the foregoing.



“Special Purpose Entity” shall mean a limited partnership, limited liability company or
corporation which, at all times until the Indebtedness is paid and all Obligations are satisfied,
meets all of the requirements of this Paragraph 17.



18. Borrower and Lien Not Released. Without affecting the liability of Borrower or
any other person liable for the payment of the Indebtedness, and without affecting the lien or
charge of this Mortgage as security for the payment of the Indebtedness, Lender may, from time to
time and without notice to any junior lien holder or holder of any right or other interest in and
to the Property: (a) release any person so liable, (b) waive or modify any provision of this
Mortgage or the other Loan Documents or grant other indulgences, (c) release all or any part of the
Property, (d) take additional security for any obligation herein mentioned, (e) subordinate the
lien or charge of this Mortgage, (f) consent to the granting of any easement, or (g) consent to any
map or plan of the Property.



19. Uniform Commercial Code Security Agreement and Fixture Filing. This Mortgage
shall constitute a security agreement and fixture filing pursuant to the Uniform Commercial Code in
effect from time to time for any of the items specified herein as part of the Property which, under
applicable law, may be subject to a security interest pursuant to the Uniform Commercial Code
(collectively, the “Collateral”), and Borrower hereby, pursuant to the terms of this Mortgage,
grants Lender a security interest in the Collateral. In addition, Borrower authorizes Lender to
file on its behalf any financing statements, as well as extensions, renewals and amendments
thereof, and reproductions of this Mortgage in such form as Lender may require to perfect the
security interest in respect to said items. In addition, Borrower agrees to execute and deliver to
Lender any financing statements, as well as extensions, renewals and amendments thereof, and
reproductions of this Mortgage in such form as Lender may require to perfect a security interest
with respect to said items. Borrower shall pay all costs of filing such financing statements and
any extensions, renewals, amendments and releases thereof, and shall pay all reasonable costs and
expenses of any record searches for financing statements Lender may reasonably require. Borrower
shall, at Lender’s request, at any time and from time to time, execute and deliver to Lender such
financing statements, amendments and other documents and do such acts as Lender deems necessary in
order to establish and maintain valid, attached and perfected first security interests in the
Collateral in favor of Lender, free and clear of all liens, claims and rights of third parties
whatsoever. Borrower hereby irrevocably authorizes Lender at any time, and from time to time, to
execute and file in any jurisdiction any initial financing statements and amendments thereto that
(a) indicate the Collateral (i) as all assets of the Borrower or words of similar effect,
regardless of whether any particular asset comprised in the Collateral falls within the scope of
Article 9 of the Uniform Commercial Code of the jurisdiction wherein such financing statement or
amendment is filed, or (ii) as being of an equal or lesser scope or within greater detail, and (b)
contain any other information required by Section 5 of Article 9 of the Uniform Commercial Code of
the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency
or filing office acceptance of any financing statement or amendment, including (i) whether the
Borrower is an organization, the type of organization and any organization identification number
issued to the Borrower, and (ii) in the case of a financing statement filed as a fixture filing or
indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of
real property to which the Collateral relates. Borrower agrees to furnish any such information to
Lender promptly upon request. Borrower further ratifies and affirms its authorization for any
financing statements and/or amendments thereto, executed and filed by Lender in any jurisdiction
prior to the date of this Mortgage. In addition, Borrower covenants to: (w) obtain acknowledgments
from any bailee holding Collateral; (x) obtain consents from any letter of credit issuers; (y)
notify and take steps to perfect Lender’s security interest in any Commercial Tort Claims; and (z)
take any action necessary to vest control in Lender of any of Borrower’s Electronic Chattel Paper.
If an Event of Default shall occur, Lender, in addition to any other rights and remedies which it
may have, shall have and may exercise immediately and without demand, any and all rights and
remedies granted to a secured party upon default under the Uniform Commercial Code, including
without limitation, the right to take possession of the Collateral or any part thereof, and to take
such other measures as Lender may deem necessary for the care, protection and preservation of the
Collateral. Upon request or demand of Lender, Borrower shall, at its expense, assemble the
Collateral and make it available to Lender at a convenient place acceptable to Lender and Borrower.
Borrower shall pay to Lender on demand any and all expenses, including legal expenses and
attorneys’ fees, incurred or paid by Lender in protecting the interest in the Collateral and in
enforcing the rights hereunder with respect to the Collateral. Any notice of sale, disposition or
other intended action by Lender, with respect to the Collateral, sent to Borrower in accordance
with the provisions hereof at least ten (10) days prior to such action, shall constitute
commercially reasonable notice to Borrower. Capitalized words and phrases used herein in this
Paragraph 19 and not otherwise defined herein shall have the respective meanings assigned to such
terms in either: (i) Article 9 of the Uniform Commercial Code as in force in Illinois at the time
the financing statement was filed by Lender, or (ii) Article 9 as in force at any relevant time in
Illinois, the meaning to be ascribed thereto with respect to any particular item of property shall
be that under the more encompassing of the two definitions.



THIS MORTGAGE SHALL BE EFFECTIVE AS A FINANCING STATEMENT FILED AS A FIXTURE FILING IN THE
REAL ESTATE RECORDS OF THE COUNTY WHERE THE PROPERTY IS LOCATED WITH RESPECT TO ALL GOODS
CONSTITUTING A PART OF THE PROPERTY WHICH ARE OR ARE TO BECOME FIXTURES RELATED TO THE PROPERTY.
FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE THE FOLLOWING INFORMATION IS FURNISHED:




	 	a.	 	Name and address of the record owner of the real estate
described in this Mortgage:






NNN Gallery Medical, LLC




1551 N. Tustin Avenue, Suite 300




Santa Ana, California 92705




	 	b.	 	Name and address of the debtor (Borrower):






NNN Gallery Medical, LLC


1551 N. Tustin Avenue, Suite 300


Santa Ana, California 92705




	 	c.	 	Name and address of the secured party (Lender):






LaSalle Bank National Association


135 South LaSalle Street


Suite 3410


Chicago, Cook County, Illinois 60603




	 	d.	 	Information concerning the security interest evidenced by this
Mortgage may be obtained from the secured party.






	 	e.	 	This Mortgage covers goods which are or are to become fixtures.





20. Events of Default; Acceleration of Indebtedness; Remedies. The occurrence of any
one or more of the following events shall constitute an “Event of Default” under this Mortgage:




(a) failure of Borrower to pay (i) within 5 days of the due date, any of the
Indebtedness, including any payment due under the Note or (ii) the outstanding Indebtedness,
including all accrued and unpaid interest, in full on the Maturity Date; or




(b) failure of Borrower to provide Lender with evidence of renewal of any insurance
required hereunder within 10 days of Lender’s request therefore, or




(c) failure of Borrower to pay when due any taxes, assessments and other similar
charges levied against the Property, or ground rents, if applicable, except to the extent
sums sufficient to pay such amounts have been escrowed with Lender as required under
Paragraph 3 and Borrower has given notice of such amounts due to Lender; or




(d) failure of Borrower to strictly comply with Paragraphs 15, 16 and 17 of this
Mortgage; or




(e) failure of Borrower to comply with the financial reporting requirements of
Paragraph 10 within 10 days after notice from Lender; or




(f) a petition under any Chapter of Title 11 of the United States Code or any similar
law or regulation is filed by or against Borrower or any Guarantor (and in the case of an
involuntary petition in bankruptcy, which petition is not discharged within sixty (60) days
of its filing), or a custodian, receiver or trustee for any of the Property is appointed, or
Borrower or any Guarantor makes an assignment for the benefit of creditors, or any of them
are adjudged insolvent by any state or federal court of competent jurisdiction, or an
attachment or execution is levied against any of the Property (individually or collectively,
a “Bankruptcy Default”), provided, however, in the event that Borrower is comprised of more
than one Tenants in Common and pursuant to a buy/sell provision in the applicable TIC
Agreement, the defaulting Tenant in Common transfers its interest in the Property to a
non-defaulting Tenant in Common within sixty (60) days, no Bankruptcy Default shall be
deemed to have occurred; or




(g) the occurrence of an “Event of Default” under and as defined in any other Loan
Document; or




(h) Borrower is in default in the payment of any indebtedness (other than the
Indebtedness) and such default is declared and is not cured within the time, if any,
specified therefor in any agreement governing the same; or




(i) any statement, report or certificate made or delivered to Lender by Borrower or any
Guarantor is not materially true and complete, or any representation or warranty made or
delivered to Lender by Borrower or any Guarantor is not materially true and correct; or




(j) seizure or forfeiture of the Property, or any portion thereof, or Borrower’s
interest therein, resulting from criminal wrongdoing or other unlawful action of Borrower,
its affiliates, or any tenant in the Property under any federal, state or local law; or




(k) failure of Borrower, within 30 days after notice and demand, to satisfy each and
every Obligation, other than those set forth in the subparagraphs above; provided, however,
if such failure to satisfy such Obligation cannot by its nature be cured within 30 days, and
if Borrower commences to cure such failure promptly after written notice thereof and
thereafter diligently pursues the curing thereof (and then in all events cures such failure
within 60 days after the original notice thereof), Borrower shall not be in default
hereunder during such period of diligent curing;




(l) the termination of the Property Manager or modification or termination of the
Management Agreement or TIC Agreement without the prior written consent of the Lender; or




(m) in the event that Borrower is comprised of more than one Tenants in Common, the
filing by a Tenant in Common of an action to partition all or any portion of the Property or
any action to compel any sale thereof (individually or collectively, a “Partition Default”),
provided, however, if pursuant to a buy/sell provision in the applicable TIC Agreement, the
defaulting Tenant in Common transfers its interest in the Property to a non-defaulting
Tenant in Common within sixty (60) days, no Partition Default shall be deemed to have
occurred.



Upon the occurrence of an Event of Default, the Indebtedness, at the option of the Lender,
shall become immediately due and payable without notice to Borrower; and Lender shall be entitled
to immediately exercise and pursue any or all of the rights and remedies contained in this Mortgage
and any other Loan Document or otherwise available at law or in equity. Each remedy provided in
the Loan Documents is distinct and cumulative to all other rights or remedies under the Loan
Documents or afforded by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.



21. Entry; Foreclosure; Remedies. Upon the occurrence of an Event of Default,
(a) Borrower, upon demand of Lender, shall forthwith surrender to Lender the actual possession, or
to the extent permitted by law, Lender itself, or by such officers or agents as it may appoint, may
enter and take possession of all or any part of the Property, and may exclude Borrower and its
agents and employees wholly therefrom, and may have joint access with Borrower to the books, papers
and accounts of Borrower; and (b) if Borrower shall for any reason fail to surrender or deliver the
Property or any part thereof after such demand by Lender, Lender may obtain a judgment or decree
conferring on Lender the right to immediate possession or requiring the delivery to Lender of the
Property, and Borrower specifically consents to the entry of such judgment or decree. Upon every
such entering upon or taking of possession, Lender may hold, store, use, operate, manage and
control the Property and conduct the business thereof. Lender shall have no liability for any
loss, damage, injury, cost or expense resulting from any action or omission by it or its
representatives which was taken or omitted in good faith.



Upon any foreclosure sale, Lender may bid for and purchase the Property and shall be entitled
to apply all or part of the Indebtedness as a credit to the purchase price.



Upon the occurrence of an Event of Default, then, without notice to or the consent of
Borrower, Lender shall be entitled to immediately exercise or pursue or cause to be exercised or
pursued any or all of the rights and remedies contained in this Mortgage or in any other Loan
Document or otherwise available at law or in equity including the right to do any one or more of
the following:




(a) declare the entire Indebtedness to be immediately due and payable;




(b) institute proceedings to foreclose this Mortgage, in which case the Property or any
interest therein may be sold for cash or upon credit in one or more parcels or in several
interests or portions and in any order or manner;




(c) with or without entry, to the extent permitted and pursuant to the procedures
provided by applicable law, institute proceedings for the partial foreclosure of this
Mortgage for the portion of the Indebtedness then due and payable, subject to the continuing
lien of this Mortgage for the balance of the Indebtedness not then due;




(d) institute an action, suit or proceeding in equity for the specific performance of
any covenant, condition or agreement contained herein, in the Note or the Other Security
Documents;




(e) recover judgment on the Note either before, during or after any proceedings for the
enforcement of this Mortgage;




(f) obtain appointment of a trustee, receiver, liquidator or conservator of the
Property, without notice and without regard for the adequacy of the security for the
Indebtedness or the solvency of Borrower, any Guarantor or of any person, firm or other
entity liable for the payment of the Indebtedness which appointment is hereby agreed and
consented to by the Borrower;




(g) enforce Lender’s interest in the Leases and Rents and enter into or upon the
Property, either personally or by its agents, nominees or attorneys and dispossess Borrower
and its agents and servants therefrom, and thereupon Lender may: (A) use, operate, manage,
control, insure, maintain, repair, restore and otherwise deal with all and every part of the
Property and conduct the business thereat; (B) complete any construction on the Property in
such manner and form as Lender deems advisable; (C) make alterations, additions, renewals,
replacements and improvements to or on the Property; (D) exercise all rights and powers of
Borrower with respect to the Property, whether in the name of Borrower or otherwise,
including, without limitation, the right to make, cancel, enforce or modify Leases, obtain
and evict tenants, and demand, sue for, collect and receive all earnings, revenues, rents,
issues, profits and other income of the Property and every part thereof; and (E) apply the
receipts from the Property to the payment of the Indebtedness, after deducting therefrom all
expenses (including reasonable attorney fees) incurred in connection with the aforesaid
operations and all amounts necessary to pay the taxes, assessments, insurance premiums and
other charges in connection with the Property, as well as just and reasonable compensation
for the services of Lender, its counsel, agents and employees; and/or




(h) pursue such other rights and remedies as may then be available at law and in
equity. To the extent permitted presently or in the future by laws of the state in which
the Property and Improvements are located, Lender may institute a proceeding or proceedings,
judicial, or nonjudicial, by advertisement or otherwise, for the complete or partial
foreclosure of this Mortgage or the complete or partial sale of the Property under a power
of sale which power is hereby granted to Lender;




(i) Lender shall be entitled as a matter of right without notice and without giving
bond and without regard to the solvency or insolvency of Borrower, or waste of the Property
or adequacy of the security of the Property, to apply for the appointment of a receiver in
accordance with the statutes and laws made and provided for who shall have all rights,
powers and remedies as provided by such statute, and who shall apply the rents, issues and
profits as provided by statute and thereafter to all expenses for maintenance of the
Property and to the costs and expenses of the receivership, including reasonable attorneys’
fees and to the repayment of the Indebtedness and Obligations secured hereby and as further
provided in any Assignment of Leases and Rents, executed by Borrower as further security for
the Indebtedness, whether included in this Mortgage or separate instrument. Borrower does
hereby irrevocably consent to such appointment. Nothing contained in this Mortgage and no
actions taken pursuant to this Mortgage shall be construed as constituting Lender a
mortgagee in possession. Lender shall have the right, at any time and without limitation,
as provided in Minn. §580.03, to advance money to the receiver to pay any part or
all of the items which the receiver would otherwise pay if cash were available from the
Property; and sums so advanced, with interest at the rate set forth in the Note, shall be
secured hereby, or if advanced during the period of redemption shall be part of the sum
required to be paid to redeem from sale; and




(j) To foreclose this Mortgage by judicial or non-judicial process as set forth below:




Foreclosure/Power of Sale. Borrower hereby authorizes and fully empowers Lender



to foreclose this Mortgage by judicial proceedings or by non-judicial proceeding, in accordance
with the laws of the State of Minnesota, with full power of sale and authority to sell the Property
at public auction to the highest bidder for cash, after giving notice or making publication, if
required by the laws of the State of Minnesota, and to convey the same to the purchaser in fee
simple all in accordance with and in the manner prescribed by the laws of the State of Minnesota,
and out of the proceeds arising from the sale and foreclosure to retain the principal and interest
due on the Note and the Indebtedness, together with all such sums of money as Lender shall have
expended or advanced pursuant to this Mortgage or pursuant to statute, together with interest
thereon as herein provided, and all costs and expenses of such foreclosure, which shall be
immediately due and payable by Borrower, with interest thereon at the rate of interest specified in
the Loan Documents, with the balance, if any, to be paid to the persons entitled thereto by law.
Borrower acknowledges that in such event, Borrower shall remain liable for any deficiency to the
extent permitted by the laws of the State of Minnesota and the Loan Documents. By conferring this
power of sale upon Lender, Borrower, for itself, its successors and assigns, after an opportunity
for consultation with its legal counsel, hereby voluntarily, knowingly and intelligently waives all
rights under the Constitution and laws of the United States and under the Constitution and laws of
the State of Minnesota, both to a hearing on the right to exercise and the exercise of the power of
sale, and to notice, except as may be required by any statute of the State of Minnesota.



The foregoing remedies shall be cumulative of any other nonjudicial remedies available to
Lender under this Mortgage or the other Loan Documents, at law or in equity. Proceeding with a
request or receiving a judgment for legal relief shall not be or be deemed to be an election of
remedies or bar any available nonjudicial remedy of Lender.



22. Expenditures and Expenses. Borrower acknowledges and confirms that Lender shall
impose certain administrative processing and/or commitment fees in connection with (a) the
extension, renewal, modification, amendment and termination of its loans, (b) the release or
substitution of collateral therefor, (c) obtaining certain consents, waivers and approvals with
respect to the Property, or (d) the review of any Lease or proposed Lease or the preparation or
review of any subordination, non-disturbance and attornment agreement. In addition, in any civil
action to foreclose the lien hereof or otherwise enforce Lender’s rights, there shall be allowed
and included as additional Indebtedness in the order or judgment for foreclosure and sale or other
order all expenditures and expenses which may be paid or incurred by or on behalf of Lender
including attorneys’ fees, costs and expenses, receiver’s fees, costs and expenses, appraiser’s
fees, engineers’ fees, outlays for documentary and expert evidence, stenographers’ charges,
publication costs, and costs (which may be estimates as to items to be expended after entry of said
order or judgment) of procuring all such abstracts of title, title searches and examination, title
insurance policies, Torrens’ Certificates and similar data and assurances with respect to the title
as Lender may deem reasonably necessary either to prosecute such civil action or to evidence to
bidders at any sale which may be had pursuant to such order or judgment the true condition of the
title to, or the value of, the Property (all said expenditures and expenses are hereinafter
collectively referred to as the “Reimbursable Expenses”). All Reimbursable Expenses, and such
costs, expenses and fees as may be incurred by Lender at any time or times hereafter in the
protection of the Property, in enforcing the Obligations, and/or the maintenance of the lien
established by any of the Loan Documents, including accountants’ and attorneys’ fees, costs and
expenses in any advice, litigation, or proceeding affecting the Loan Documents or the Property,
whether instituted by Lender, Borrower or any other party, or in preparation for the commencement
or defense of any action or proceeding or threatened action or proceeding, shall be immediately due
and payable to Lender by Borrower, and, to the extent such services relate to the Hazardous
Substances Indemnification Agreement of even date herewith from Borrower and Guarantors in favor of
Lender, by Borrower and Guarantors, with interest thereon at the Default Rate set forth in the
Note, and shall be secured by the Loan Documents. In addition, Borrower shall be liable for the
payment of all commissions and brokerage fees relating to the Loan.



23. Application of Proceeds of Foreclosure Sale. The proceeds of any foreclosure sale
of the Property shall be distributed and applied in the order of priority set forth in the Note
with the excess, if any, being applied to any parties entitled thereto as their rights may appear.



24. Appointment of Receiver or Mortgagee in Possession. If an Event of Default is
continuing or if Lender shall have accelerated the Indebtedness, Lender, upon application to a
court of competent jurisdiction, shall be entitled as a matter of strict right, without notice, and
without regard to the occupancy or value of any security for the Indebtedness, without any showing
of fraud or mismanagement on the part of Borrower or the insolvency of any party bound for its
payment, without regard to the existence of a declaration that the Indebtedness, or any portion
thereof, is immediately due and payable, and without regard to the filing of a notice of default,
to the appointment of a receiver or the immediate appointment of Lender to take possession of and
to operate the Property, and to collect and apply the rents, issues, profits and revenues thereof,
and Borrower consents to such appointment.



25. Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any
right or remedy under any of the Loan Documents, or otherwise afforded by applicable law, shall not
be a waiver of or preclude the exercise of any right or remedy. Lender’s acceptance of payment of
any sum secured by any of the Loan Documents after the due date of such payment shall not be a
waiver of Lender’s right to either require prompt payment when due of all other sums so secured or
to declare a default for failure to make prompt payment. The procurement of insurance or the
payment of taxes or other liens or charges by Lender shall not be a waiver of Lender’s right to
accelerate the maturity of the Indebtedness, nor shall Lender’s receipt of any awards, proceeds or
damages under Paragraph 5 hereof operate to cure or waive Borrower’s default in payment or sums
secured by any of the Loan Documents. With respect to all Loan Documents, only waivers made in
writing by Lender shall be effective against Lender.



26. Waiver of Statute of Limitations. Borrower hereby waives the right to assert any
statute of limitations as a bar to the enforcement of the lien created by any of the Loan Documents
or to any action brought to enforce the Note or any other obligation secured by any of the Loan
Documents.



27. Waiver of Homestead and Redemption. Borrower hereby waives all rights of
homestead exemption in the Property. Borrower hereby waives all right of redemption on behalf of
Borrower and on behalf of all other persons acquiring any interest or title in the Property
subsequent to the date of this Mortgage, except decree or judgment creditors of Borrower.



28. Jury Trial Waiver. BORROWER AND LENDER BY ITS ACCEPTANCE OF THIS MORTGAGE, EACH
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THE LOAN DOCUMENTS AND
THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY MADE BY BORROWER AND BY LENDER, AND BORROWER ACKNOWLEDGES ON BEHALF OF ITSELF AND ITS
PARTNERS, MEMBERS, SHAREHOLDERS, AS THE CASE MAY BE, THAT NEITHER LENDER NOR ANY PERSON ACTING ON
BEHALF OF LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR HAS
TAKEN ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. BORROWER AND LENDER ACKNOWLEDGE
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT BORROWER AND
LENDER HAVE ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THE LOAN DOCUMENTS AND THAT EACH OF THEM
WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER AND LENDER FURTHER
ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE
SIGNING OF THE LOAN DOCUMENTS AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF THEIR OWN FREE WILL AND THAT THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.



29. Indemnification. In addition to any other indemnifications provided in any of the
other Loan Documents, Borrower shall, at its sole cost and expense, protect, defend, indemnify,
release and save harmless Lender, or any person or entity who is or will have been involved in the
servicing of this Loan, as well as the respective affiliates, subsidiaries, persons controlling or
under common control, directors, officers, shareholders, members, partners, employees, agents,
servants, representatives, contractors, subcontractors, participants, successors and assigns of any
and all of the foregoing (collectively, the “Indemnified Parties”), from and against all
liabilities, obligations, claims, demands, damages, penalties, causes of action, losses, fines,
costs and expenses (including without limitation reasonable attorneys’ fees and expenses), imposed
upon or incurred by or asserted against any of the Indemnified Parties and directly or indirectly
arising out of or in any way relating to any one or more of the following: (a) ownership of this
Mortgage, the Property or any interest therein or receipt of any Rents; (b) any amendment to, or
restructuring of, the Indebtedness, the Note, this Mortgage or any other Loan Documents; (c) any
and all lawful action that may be taken by Lender in connection with the enforcement of the
provisions of this Mortgage or the Note or any other Loan Documents, whether or not suit is filed
in connection with same, or in connection with Borrower or any Guarantor becoming a party to a
voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding; (d) any
accident, injury to or death of persons or loss of or damage to property occurring in, on or about
the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, streets or ways; (e) any failure on the part of Borrower to perform or
comply with any of the terms of this Mortgage; (f) performance of any labor or services or the
furnishing of any materials or other property in respect of the Property or any part thereof; (g)
any failure of the Property to comply with any laws or ordinances affecting or which may be
interpreted to affect the Property; or (h) any representation or warranty made in the Note, this
Mortgage or the other Loan Documents being false or misleading in any respect as of the date such
representation or warranty was made. The obligations and liabilities of Borrower under this
Paragraph 29 (A) shall survive for a period of two (2) years following any release of this Mortgage
executed by Lender and satisfaction of the Loan evidenced by the Loan Documents, and (B) shall
survive the transfer or assignment of this Mortgage, the entry of a judgment of foreclosure, sale
of the Property by nonjudicial foreclosure sale, or delivery of a deed in lieu of foreclosure
(including, without limitation, any transfer by Borrower of any of its rights, title and interest
in and to the Property to any party, whether or not affiliated with Borrower); provided, however,
that any act or omission pursuant to subparagraphs (a) through (h) above was taken or occurred
prior to the payment in full of the Indebtedness.



30. Duty to Defend. Upon written request by an Indemnified Party, Borrower shall
defend such Indemnified Party (if requested by an Indemnified Party, in the name of the Indemnified
Party) by attorneys and other professionals approved by the Indemnified Parties. Notwithstanding
the foregoing, any Indemnified Parties may, in their sole and absolute discretion, engage their own
attorneys and other professionals to defend or assist them, and, at the option of the Indemnified
Parties, their attorneys shall control the resolution of the claim or proceeding. Upon demand,
Borrower shall pay or, in the sole and absolute discretion of the Indemnified Parties, reimburse,
the Indemnified Parties for the payment of reasonable fees and disbursements of attorneys,
engineers, and other professionals in connection therewith. Any amounts payable to any of the
Indemnified Parties by reason of the application of Paragraph 29 or this paragraph shall be secured
by this Mortgage and shall become immediately due and payable and shall bear interest at the
Default Rate specified in the Note from the date loss or damage is sustained by any of the
Indemnified Parties until paid.



31. ERISA. Borrower covenants and agrees that during the term of the Loan, (a)
Borrower is not a and will not become a “party in interest” as defined in Section 3(14) of the
Employee Retirement Income Security Act of 1974, as amended, with respect to any employee benefit
plan, (b) Borrower will take no action that would cause it to (i) become an “employee benefit plan”
or (ii) otherwise be considered “plan assets” as defined in 29 C.F.R. Section 2510.3-101, or
“assets of a governmental plan” subject to regulation under the state statutes, and (c) Borrower
will not sell, assign or transfer the Property, or any portion thereof or interest therein, to any
transferee that does not execute and deliver to Lender its written assumption of the obligations of
this covenant. Borrower further covenants and agrees to protect, defend, indemnify and hold Lender
harmless from and against all loss, cost, damage and expense (including without limitation, all
attorneys’ fees and excise taxes, costs of correcting any prohibited transaction or obtaining an
appropriate exemption) that Lender may incur as a result of Borrower’s breach of this covenant.
This covenant and indemnity shall survive the extinguishment of the lien of this Mortgage by
foreclosure or action in lieu thereof; furthermore, the foregoing indemnity shall supersede any
limitations on Borrower’s liability under any of the Loan Documents.



32. No Oral Change. This Mortgage may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or
Lender, but only by an agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is sought.



33. Notice. Except for any notice required under applicable law to be given in
another manner, (a) any notice to Borrower provided for in the Loan Documents shall be given by
mailing such notice by Federal Express or any other nationally recognized overnight carrier
addressed to Borrower at Borrower’s address stated above or at such other address as Borrower may
designate by notice to Lender as provided herein, and (b) any notice to Lender shall be given by
Federal Express or any other nationally recognized overnight carrier to Lender’s address stated
above or to such other address as Lender may designate by notice to Borrower as provided herein.
Any notice provided for in the Loan Documents shall be deemed to have been given to Borrower or
Lender on the first Business Day following such mailing in the manner designated herein. In
addition, notice may also be given by first class certified mail, return receipt requested, postage
prepaid, addressed to the address set forth above for the party to whom such notice is to be given
and such notice given in this manner shall be deemed received the third day after such notice was
deposited with the United States Postal Service.



34. Successors and Assigns Bound; Joint and Several Liability; Agents; Captions. The
covenants and agreements contained in the Loan Documents shall bind, and the rights thereunder
shall inure to, the respective successors and assigns of Lender and Borrower, subject to the
provisions of Paragraph 15 hereof. All representations, warranties, covenants and agreements of
Borrower contained in the Loan Documents shall be joint and several. In exercising any rights
under the Loan Documents or taking any actions provided for therein, Lender may act through its
employees, agents, or independent contractors as authorized by Lender. The captions and headings
of the paragraphs of this Mortgage are for convenience only and are not to be used to interpret or
define the provisions hereof.



35. Governing Law; Jurisdiction; Severability. THE PROVISIONS OF THIS INSTRUMENT
REGARDING THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS HEREIN
GRANTED SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF MINNESOTA. ALL OTHER
PROVISIONS OF THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS OF BORROWER AND LENDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS. THIS MORTGAGE SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, AND
BORROWER AGREES THAT THE PROPER VENUE FOR ANY MATTERS IN CONNECTION HEREWITH SHALL BE IN THE STATE
OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, AS LENDER MAY ELECT AND BORROWER HEREBY SUBMITS
ITSELF TO THE JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF ADJUDICATING ANY MATTERS RELATED TO
THE LOAN, PROVIDED, HOWEVER, THAT TO THE EXTENT THE MANDATORY PROVISIONS OF THE LAWS OF ANOTHER
JURISDICTION RELATING TO (i) THE PERFECTION OR THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE
SECURITY INTERESTS IN ANY OF THE PROPERTY, (ii) THE LIEN, ENCUMBRANCE OR OTHER INTEREST IN THE
PROPERTY GRANTED OR CONVEYED BY THIS MORTGAGE, OR (iii) THE AVAILABILITY OF AND PROCEDURES RELATING
TO ANY REMEDY HEREUNDER OR RELATED TO THIS MORTGAGE ARE REQUIRED TO BE GOVERNED BY SUCH OTHER
JURISDICTION’S LAWS, SUCH OTHER LAWS SHALL BE DEEMED TO GOVERN AND CONTROL. THE INVALIDITY,
ILLEGALITY OR UNENFORCEABILITY OF ANY PROVISION OF THIS MORTGAGE OR THE LOAN DOCUMENTS SHALL NOT
AFFECT OR IMPAIR THE VALIDITY, LEGALITY OR ENFORCEABILITY OF THE REMAINDER OF THIS MORTGAGE AND THE
OTHER LOAN DOCUMENTS, AND TO THIS END, THE PROVISIONS OF THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS
ARE DECLARED TO BE SEVERABLE.



36. Release. Upon payment of all sums secured by this Mortgage, Lender shall release
this Mortgage. Borrower shall pay Lender’s reasonable costs incurred in releasing this Mortgage
and any financing statements related hereto.



37. Covenants Running with the Land. All covenants, conditions, warranties,
representations and other obligations contained in this Mortgage and the other Loan Documents are
intended by Borrower and Lender to be, and shall be construed as, covenants running with the
Property until the lien of this Mortgage has been fully released by Lender.



38. Terms. As used in the Loan Documents, (i) “Business Day” means a day when banks
are not required or authorized to be closed in Chicago, Illinois or New York, New York; and
(ii) the words “include” and “including” shall mean “including but not limited to” unless
specifically set forth to the contrary.



39. Loss of Note. Upon notice from Lender of the loss, theft, or destruction of the
Note and upon receipt of indemnity reasonably satisfactory to Borrower from Lender, or in the case
of mutilation of the Note, upon surrender of the mutilated Note, Borrower shall make and deliver a
new note of like tenor in lieu of the then to be superseded Note.



40. Changes in the Laws Regarding Taxation. If any law is amended, enacted or adopted
after the date of this Mortgage which deducts the Indebtedness from the value of the Property for
the purpose of taxation or which imposes a tax, either directly or indirectly, on the Indebtedness
of Lender’s interest in the Property, Borrower will pay such tax, with interest and penalties
thereon, if any. In the event Lender is advised by counsel chosen by it that the payment of such
tax or interest and penalties by Borrower would be unlawful or taxable to Lender or unenforceable
or provide the basis for a defense of usury, then in any such event, Lender shall have the option,
by written notice of not less than forty-five (45) days, to declare the Indebtedness immediately
due and payable.



41. Exculpation. This Mortgage and other Loan Documents and all of Borrower’s
obligations hereunder and thereunder are subject to the provisions of Paragraph 11 of the Note
entitled Exculpation. All of the provisions of the Note, including Paragraph 11, are incorporated
herein by this reference.



42. Disclosure of Information. Lender shall have the right (but shall be under no
obligation) to make available to any party for the purpose of granting participation in or selling,
transferring, assigning or conveying all or any part of the Loan (including any governmental agency
or authority and any prospective bidder at any foreclosure sale of the Property) any and all
information which Lender may have with respect to the Property, Lease(s), Borrower and any
Guarantor, whether provided by Borrower, any Guarantor or any third party or obtained as a result
of any environmental assessments. Borrower and each Guarantor agree that Lender shall have no
liability whatsoever as a result of delivering any such information to any third party, and
Borrower and each Guarantor, on behalf of themselves and their successors and assigns, hereby
release and discharge Lender from any and all liability, claims, damages, or causes of action,
arising out of, connected with or incidental to the delivery of any such information to any third
party.



43. Sale of Loan; Securitization. Lender may, at any time and without the consent of
Borrower or any Guarantor, grant participation in or sell, transfer, securitize, assign and convey
all or any portion of its right, title and interest in and to the Loan, the servicing of the Loan,
this Mortgage, the Note and the other Loan Documents, any guaranties given in connection with the
Loan and any collateral given to secure the Loan. Borrower covenants to cooperate with Lender’s
efforts in the sale, transfer or securitization of the Loan; such cooperation includes Borrower’s
obligations to (a) make non-material modifications of the Loan Documents (such modifications shall
not have a material adverse impact on Borrower and accordingly such modifications shall not (i)
increase the amount of the Indebtedness or (ii) change the Contract Rate [as defined in the Note]),
(b) provide additional information regarding Borrower’s financial statements, (c) deliver updated
information regarding Borrower and the Property, (d) cooperate with all third parties, including,
but not limited to, rating agencies and potential investors to facilitate the rating and
securitization of the Loan, (e) review Lender’s securitization offering materials to the extent
such materials relate to Borrower, the Property or the Loan, (f) respond to any inquiries of Lender
or other party relating thereto and (g) deliver an estoppel certificate. Borrower agrees to
represent and warrant the absence of misstatements and/or omissions in the information relating to
Borrower, the Property and the Loan that is contained in the offering materials and which has been
furnished to or approved by Borrower. Borrower shall not be liable for Lender’s post-closing costs
incurred pursuant to any securitization of the Loan by Lender.



Any such sale, transfer, participation, securitization of all or any portion of the Note, this
Mortgage and/or other Loan Documentation including, without any limitation, with respect to any
whole loan sale or securitization of the Loan shall be deemed a “Secondary Market Transaction”.



44. Actions and Proceedings. Lender has the right to appear in and defend any action
or proceeding brought with respect to the Property and to bring any action or proceeding, in the
name and on behalf of Borrower, which Lender, in its discretion, decides should be brought to
protect their respective interests in the Property. Lender shall, at its option, be subrogated to
the lien of any Mortgage or other security instrument discharged in whole or in part by the
Indebtedness, and any such subrogation rights shall constitute additional security for the payment
of the Indebtedness.



45. No Third Party Beneficiaries. The provisions of this Mortgage and the other Loan
Documents are for the benefit of Borrower and Lender and shall not inure to the benefit of any
third party (other than any successor or assignee of Lender). This Mortgage and the other Loan
Documents shall not be construed as creating any rights, claims or causes of action against Lender
or any of its officers, directors, agents or employees in favor of any party other than Borrower
including but not limited to any claims to any sums held in the Replacement Reserve or the TI and
Leasing Reserve.



46. Exhibits and Riders. The following Exhibits and Riders (which may contain
additional representations, warranties, and covenants) are attached to this Mortgage and hereby
made a part of this Mortgage: Exhibit A (legal description for Land) Exhibit B
(definition of Personal Property), and Exhibit C (pending and threatened litigation).



47. Customer Identification – USA Patriot Act Notice; OFAC. Lender hereby notifies
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56,
signed into law October 26, 2001), as amended (the “Act”), and Lender’s policies and practices,
Lender is required to obtain, verify and record certain information and documentation that
identifies Borrower, which information includes the name and address of Borrower and such other
information that will allow Lender to identify Borrower in accordance with the Act. Borrower
represents and covenants that it is not and will not become a person (individually, a “Prohibited
Person” and collectively “Prohibited Persons”) listed on the Specially Designated Nationals and
Blocked Persons List maintained by the Office of Foreign Asset Control, U.S. Department of the
Treasury (the “OFAC List”) or otherwise subject to any other prohibitions or restriction imposed by
laws, rules, regulations or executive orders, including Executive Order No. 13224, administered by
OFAC (collectively the “OFAC Rules”). Borrower represents and covenants that it also (a) is not
and will not become owned or controlled by a Prohibited Person, (b) is not acting and will not act
for or on behalf of a Prohibited Person, (c) is not otherwise associated with and will not become
associated with a Prohibited Person, (d) is not providing and will not provide any material,
financial or technological support for or financial or other service to or in support of acts of
terrorism or a Prohibited Person. Borrower will not transfer any interest in Borrower to or enter
into a Lease with a Prohibited Person. Borrower shall immediately notify Lender if Borrower has
knowledge that any Guarantor or any member or beneficial owner of Borrower or any Guarantor is or
becomes a Prohibited Person or (i) is indicted on or (ii) arraigned and held over on charges
involving money laundering or predicate crimes to money laundering. Borrower will not enter into
any Lease or any other transaction or undertake any activities related to the Loan in violation of
the federal Bank Secrecy Act, as amended (“BSA”), 31 U.S.C. §5311, et seq. or any federal or state
laws, rules, regulations or executive orders, including, but not limited to, 18 U.S.C. §§1956, 1957
and 1960, prohibiting money laundering and terrorist financing (collectively “Anti-Money Laundering
Laws”). Borrower shall (A) not use or permit the use of any proceeds of the Loan in any way that
will violate either the OFAC Rules or Anti-Money Laundering Laws, (B) comply and cause all of its
subsidiaries to comply with applicable OFAC Rules and Anti-Money Laundering Laws, (C) provide
information as Lender may require from time to time to permit Lender to satisfy its obligations
under the OFAC Rules and/or the Anti-Money Laundering Laws and (D) not engage in or conspire to
engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempts to violate, any of the foregoing. Borrower shall immediately notify Lender if any Tenant
becomes a Prohibited Person or (1) is convicted of, (2) pleads nolo contendere to, (3) is indicted
on, or (4) is arraigned and held over on charges involving money laundering or predicate crimes to
money laundering.



48. Counterparts. This Mortgage may be executed in any number of counterparts each of
which shall be deemed to be an original but all of which when taken together shall constitute one
agreement.



49. Disclaimers. The relationship of Borrower and Lender under this Mortgage and the
other Loan Documents is, and shall at all times remain, solely that of borrower and lender; and
Lender neither undertakes nor assumes any responsibility or duty to Borrower or to any third party
with respect to the Property. Notwithstanding any other provisions of this Mortgage and the other
Loan Documents: (i) Lender is not, and shall not be construed to be, a partner, joint venturer,
member, alter ego, manager, controlling person or other business associate or participant of any
kind of Borrower and Lender, and Lender does not intend to ever assume such status; (ii) Lender
does not intend to ever assume any responsibility to any person for the quality, suitability,
safety or condition of the Property; and (iii) Lender shall not be deemed responsible for or a
participant in any acts, omissions or decisions of Borrower.



Lender shall not be directly or indirectly liable or responsible for any loss, claim, cause of
action, liability, indebtedness, damage or injury of any kind or character to any person or
property arising from any construction on, or occupancy or use of, the Property, whether caused by
or arising from: (i) any defect in any building, structure, grading, fill, landscaping, or other
improvements thereon or in any on-site or off-site improvement or other facility therein or
thereon; (ii) any act or omission of Borrower or any of Borrower’s agents, employees, independent
contractors, licensees or invitees; (iii) any accident in or on the Property or any fire, flood, or
other casualty or hazard thereon; (iv) the failure of Borrower or any of Borrower’s licensees,
employees, invitees, agents, independent contractors, or other representatives to maintain the
Property in a safe condition; or (v) any nuisance made or suffered on any part of the Property.



STATE SPECIFIC PROVISIONS




1. Maximum Principal Amount.



Borrower represents and covenants that:




	 	(a)	 	The maximum principal amount of the obligations secured by this
Mortgage at any one time, excluding advances made by the Lender in protection
of the Property or the lien of this Mortgage shall be Six Million and No/100
Dollars ($6,000,000.00) excluding accrued interest, fees, expenses and sums
advanced in accordance herewith to protect the security of this Mortgage for
which no Mortgage Registry Tax has been paid; and






	 	(b)	 	The representations contained in this section are made solely
for the benefit of county recording authorities in determining the Mortgage
Registry Tax payable as a prerequisite to the recording of this Mortgage. The
Borrower acknowledges that such representations do not constitute or imply an
agreement by the Lender to make any future advances to Borrower.





2. Non-Agricultural Use. No part of the Property is, or shall be during the term of
this Mortgage, agricultural property, used for agricultural production or used for any agricultural
use.



[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK;

SIGNATURE PAGES FOLLOW]




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IN WITNESS WHEREOF, Borrower has executed this Mortgage or has caused the same to be
executed by its representatives thereunto duly authorized.



	 
	 

	BORROWER:







	 	 	 
	NNN Gallery Medical, LLC, a Delaware limited liability company

	 
	 	 
	By:

	 	NNN Gallery Medical Member, LLC, a Delaware limited

liability company, its sole member
	 
	 	 
	By:

	 	Triple Net Properties, LLC, a Virginia limited liability

company, its sole member
	 
	 	 
	
 
	 	By: /s/ Jeff Hanson
	
 
	 	 
	
 
	 	Name: Jeff Hanson
	
 
	 	 
	
 
	 	Its: Managing Director of Real Estate
	
 
	 	 






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STATE OF CALIFORNIA



COUNTY OF ORANGE



Before me, J. Hu, a Notary Public of the state and county mentioned, personally appeared Jeff
Hanson, with whom I am personally acquainted (or proved to me on the basis of satisfactory
evidence), and who, upon oath, acknowledged himself/herself to be the Managing Director of Real
Estate of Triple Net Properties, LLC, a Virginia limited liability company, the sole member of NNN
Gallery Medical Member, LLC, a Delaware limited liability company, the sole member of NNN Galler
Medical, LLC, a Delaware limited liability company, the within named bargainor, and that he/she as
such Managing Director of Real Estate, executed the foregoing instrument for the purposes therein
contained, by personally signing the name of the Triple Net Properties, LLC, the sole member of
NNN Gallery Medical Member, LLC, a Delaware limited liability company, the sole member of NNN
Gallery Medical, LLC, by himself/herself as Managing Director of Real Estate.



WITNESS my hand and seal, at office in (county) Orange, California (state), this 2nd day
of February, 2007.



/s/ J. Hu



Notary Public



My Commission Expires: September 30, 2009.



[AFFIX NOTARY SEAL]




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