EX-10.1






MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT




THIS MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT (this “Agreement”), is made as of this
9th day of March, 2007 (the “Effective Date”), by and between NNN GALLERY MEDICAL
MEMBER, LLC, a Delaware limited liability company (“Seller”); NNN GALLERY MEDICAL, LLC, a Delaware
limited liability company (the “Company”); and NNN HEALTHCARE/OFFICE REIT HOLDINGS, L.P., a
Delaware limited partnership (“Buyer”).



Recitals




A. The Company is a Delaware limited liability company.



B. The Company owns that certain real property commonly known as Gallery Professional
Building, located in St. Paul, Minnesota and more particularly described on Exhibit A
 attached hereto (the “Property”).



C. The Company also owns certain personal property in conjunction with its ownership of the
Property.



D. All of the Company’s liabilities are listed on Exhibit C attached hereto and made a
part hereof, and such liabilities are being transferred to and assumed by the Buyer (the
“Liabilities”).



E. Seller is the owner and holder of one hundred percent (100%) of the membership interests in
the Company.



F. Buyer desires to purchase and Seller desires to sell all of the membership interests in the
Company which owns or will own the Property upon the terms and conditions hereinafter set forth.



Agreement




NOW, THEREFORE, in consideration of the mutual promises herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:



Recitals. The Recitals are made an integral part of this Agreement.



2. Sale and Purchase. Subject to the terms and conditions set forth herein, Seller
hereby agrees to sell and Buyer hereby agrees to purchase all of Seller’s membership interests in
the Company (the “Membership Interests”), being one hundred Percent (100%) of the issued and
outstanding Membership Interests in the Company at the time of Closing (defined below).



3. Purchase Price / Closing. The purchase price (the “Purchase Price”) for the
Membership Interests is Eight Million Eight Hundred Thousand Dollars ($8,800,000), reduced by the
Liabilities. The Purchase Price shall be due and payable at Closing. The closing for the sale of
Membership Interests in the Company (the “Closing”) shall occur on a day which is mutually
agreeable to Seller and Buyer no later than ten (10) days following the Effective Date, provided
that all conditions to Closing set forth in this Agreement have been satisfied, including but not
limited to the terms of Section 14 hereof.



4. Delivery of Certain Materials to Buyer. Buyer acknowledges that Seller has
delivered or made available to Buyer the following:



(a) A copy of Company’s Articles of Organization, Operating Agreement and all of Company’s
books and records including books of account;



(b) The financial reports, unaudited financial statements, and the Company’s tax returns from
Company’s inception and un-audited financial records (including balance sheets and results of
operation), including a current list of Company accounts payable and receivable;



(c) All Company contracts currently in effect, and the terms of any contracts currently
pending;



(d) A copy of all pending litigation, governmental investigations or actions or other
proceedings affecting the Company, the Property and/or Seller and a description of any threatened
claims, litigation or governmental investigations or actions or other proceedings affecting the
Company, the Property and/or Seller;



(e) A list of all employees of the Company, dates of employment, current salaries and a copy
of all employment contracts, if any;



(f) A list of all existing insurance policies for the Company;



(g) Copies of the most current title reports and all owner’s policies of title insurance, if
any, with respect to the Property or any portion thereof previously obtained by or in the
possession or control of Seller, the Company, or the Company’s agents. In addition, a copy of all
title-objection letters or notices with respect to the Property or any portion thereof, and any
response thereto;



(h) Copies of all existing leases on the Property or any portion thereof and a schedule of
security deposits and accrued interest, if any;



(i) Copies of the most current survey of the Property or any portion thereof and all other
surveys with respect to the Property or any portion thereof in the possession or control of the
Seller, the Company or the Company’s agents or the engineer or surveyor that prepared the same;



(j) Copies of all real property tax assessments or bills for the Property in Seller’s
possession or control;



(k) Copies of all improvement plans and specifications and any and all contracts affecting the
Property or any portion thereof;



(l) Copies of all environmental reports, surveys, all engineering investigations and studies,
including but not limited to archeological studies, grading studies, development layouts and plats,
zoning and community comments, letters, and any other proposals, investigations, studies, documents
or information in the possession of Seller and/or Company with respect to the Property or any
portion thereof (If such reports, surveys, proposals, investigations, studies, comments, letters,
documents or information are not in the possession of Seller or Company, Seller or Company shall
authorize the individual or organization in possession of these items to release them to Buyer.);



(m) Copies of all cross-easement agreements, master association declarations, homeowners
association documents, covenants, conditions, and restrictions and other agreements relating to the
development of the Property or any portion thereof in the possession or control of the Seller, the
Company, or the Company’s agents or the engineer, surveyor, or attorney that prepared the same;



(n) Copies of all licenses, permits, service contracts, warranties and guaranties related to
the Property or any portion thereof or to the Company; and



(o) Copies of all bonds, letters of credit or other financial instruments securing development
work related to the Property or any portion thereof.



5. Inspections and Due Diligence Period. Buyer hereby acknowledges that Buyer has
reviewed (i) the materials listed in Section 4 above and (ii) the Property, and that Buyer is
satisfied with its review of said materials and the Property.



6. Title Insurance. The Company, Seller and Buyer shall cooperate as is reasonably
necessary for the title company currently insuring the Property to issue such endorsements as may
be necessary or desirable, in Buyer’s reasonable discretion.



7. Covenants, Representations and Warranties of Seller. In addition to the
representations and warranties contained elsewhere in this Agreement, Seller makes the following
representations, warranties and covenants as of the Effective Date and as of the date of Closing,
each of which is material, is relied upon by Buyer, and shall be true and correct as of the
Effective Date and as of the date of Closing:



(a) The Company is a Delaware limited liability company, duly organized, validly existing, and
in good standing under the laws of the State of Delaware. The Company has all requisite power to
conduct its business and to own and develop the Property.



(b) Seller owns all of the Membership Interests of the Company and none of the Membership
Interests are subject to any security interests, liens, pledges, charging orders, encumbrances or
other claims. The Membership Interests have been duly and validly issued and are fully-paid and
non-assessable. Seller is the record and beneficial owner of all of the Membership Interests, the
Membership Interests constitute 100% of all of the issued and outstanding Membership Interests of
Company, and there are no options, warrants, convertible securities, subscriptions or other
agreements under which Company may be obligated to issue membership interests or any other equity
securities. Seller owns and at Closing will have the absolute right to sell, assign and transfer
the Membership Interests to Buyer, free and clear of any security interests, liens, pledges,
charging orders, encumbrances, other claims, buy-sell agreements, rights-of-first refusal, or
rights of others whatsoever. The Membership Interests are owned as set forth in Exhibit D.



(c) As of the Closing, there will be no outstanding debts, liabilities, undertakings,
performances, commitments or other obligations of the Company of any nature, whether absolute,
accrued, contingent, or otherwise, and whether known or unknown, and whether due or to become due,
and whether in contract, tort or otherwise, except for the Liabilities set forth on Exhibit
C.



(d) The financial reports and financial statements, the Company tax returns and all other
Company financial information previously delivered to Buyer under Section 4, if any, are
complete and accurate in all material aspects, are in accordance with the books and records of the
Company, represent fairly the financial condition and result of operation of the Company for the
periods covered thereby, are prepared in accordance with generally accepted accounting principles
consistently applied. The Company has no liabilities or other obligations which are not fully
shown or provided in the financial records of Company furnished to or made available to Buyer, and
represent all such reports, statements and tax returns for the Company.



(e) Since the inception of the Company, neither Seller nor the Company has:



(i) sold, encumbered, assigned or transferred any of the Company assets, except in the
ordinary course of business, except any assets which shall be transferred according to Section
13 below prior to Closing;



(ii) created, incurred, assumed or guaranteed any indebtedness for money borrowed or
mortgaged, pledged or subjected any of the Company assets to any mortgage, lien, pledge, security
interest, conditional sales contract or other encumbrance of any nature whatsoever, except any
debts or liens which shall be transferred in accordance with Section 13 below prior to
Closing or which are permitted pursuant to Section 6 that will be discharged or become
Retained Liabilities in connection with the Closing;



(iii) made or suffered any amendment or termination of any material agreement, contract,
commitment, lease or plan of the Company to which it is a party or by which it is bound, or
cancelled, modified or waived any debts or claims held by it or waived any rights or substantial
value, whether or not in the ordinary course of business; or



(iv) encumbered, granted a security interest or caused or permitted any lien, charging order
or other claim to attach against any of the Membership Interests.



(f) The Company has accurately prepared and timely filed all income, gross receipts, franchise
or other tax returns that it was or is required to file. Such tax returns are accurate, complete
and correct in all material respects. Either the Company or the Seller has timely paid all tax
liabilities (including any interest and penalties) due and owing in connection with the Company’s
operations. No claim has been made by any taxing authority that there is any deficiency in the
payment of taxes arising from the Company’s operations.



(g) At Closing the Company will hold fee simple title to the Property and all of the
improvements, fixtures and equipment situated thereon, free and clear of liens, encumbrances,
restrictions and easements, which would affect the marketability of the title, except liens set
forth in the title policy currently insuring the Property and current mortgages of record that are
set forth as Liabilities on Exhibit C.



(h) The only assets of the Company as of the date of Closing shall be the Property and the
following assets (together with the Property and the Property Purchase Contracts sometimes referred
to as the “Project Assets”): all contracts, leases, surveys, plans, title policies and
commitments, and other rights and agreements relating to the Property, all structures, improvements
and fixtures on the Property, all insurance policies of the Company, all rights to the names
associated with the Property as set forth in the Recitals, and all books, records and documents of
the Company, and all other assets of the Company existing as of the Effective Date. The Company
has good and marketable title to all the Project Assets other than the Property, free and clear of
all security interests, liens, pledges, encumbrances or other claims.



(i) The Property is not subject to any unrecorded covenants or equitable servitudes of any
kind.



(j) There is no litigation, actions, suits, investigations, or other proceedings pending or,
to the best of Company’s or Seller’s knowledge, threatened against or affecting the Property, the
Company, its other assets or the Membership Interests, whether at law or in equity or before any
federal, state or municipal or local government authority, department, commission, board, bureau,
agency or instrumentality thereof. Neither Seller nor Company has received notice of, or has
knowledge of, any violation or alleged violation of any law, statute, ordinance, regulation or
order with respect to the Property, the Company, its other assets or the Membership Interests.
Seller and Company are in compliance with all laws, statutes, ordinances, regulations and orders
which relate to the Company’s operations or the ownership of the Property.



(k) Company has all required licenses and permits necessary in the operation of its business
or for the ownership of the Property, and none of such licenses or permits are conditional or
restricted in any material respect. All returns, reports, plans and filings of any kind or nature
(other than tax returns) required to be filed prior to the Closing date by the Company with any
governmental authorities have been properly completed and filed in material compliance with all
applicable statutory or regulatory requirements.



(l) Seller and Company have each duly and validly executed this Agreement, each has full power
to enter into and perform this Agreement, each has obtained all necessary consents and approvals,
and the parties executing this Agreement on behalf of Seller and Company have been duly authorized.
Seller and the Company shall give such further assurances as Buyer may reasonably request. This
Agreement is enforceable against Seller and Company in accordance with its terms, subject to
creditors’ rights laws and general equitable principles of enforcement.



(m) Neither Seller nor Company has received notice of, or has knowledge of, any assessments
for public improvements against the Property or any portion thereof which now, or at the time of
Closing will, remain unpaid, including, without limitation, those assessments for construction of
sewer and water lines and mains, streets, sidewalks and curbs. To the best of Seller’s and
Company’s knowledge, no public improvements have been ordered or threatened to be made which have
not heretofore been completed, assessed and paid for. Neither Seller nor Company has received
notice of, or knowledge of, a proposed increase in assessments for real property taxes with respect
to the Property or any portion thereof. There is no unpaid property tax, levy or assessment
against the Property owned by Company at Closing, nor is there any pending or, to the best
knowledge of the Seller and Company, threatened condemnation proceeding against the Property or any
portion thereof.



(n) No work has been done or will be done and no materials have been or will be supplied to
the Property or any portion thereof by or for the benefit of Company that will enable or permit the
filing of a mechanic’s lien or any other lien against the Property or any portion thereof. In the
event any claim is made by any party for the payment of sums due for the furnishing of labor and/or
materials for the Property or any portion thereof subsequent to the date of this Agreement but
prior to the date of Closing, or in the event any lien is filed against the Property or any portion
thereof subsequent to Closing as a result of the furnishing of such materials and/or labor, then
Seller shall expeditiously pay said claim or discharge said lien or obtain a full and complete
release thereof, or provide a sufficient surety bond or other security to fully protect Buyer while
any such claim is being defended or challenged by Company. Seller will execute the necessary
affidavits and indemnification agreements required by Buyer’s title insurance company to eliminate
from its owner’s title policy any exception to claims which could be the basis for mechanics liens.



(o) The Property has free access to and from validly dedicated public highways, streets and
roads and neither Seller nor Company has knowledge of any pending or threatened governmental
investigation or other proceeding or any other fact or condition which would limit or result in the
termination of such access.



(p) Neither the Property nor any portion thereof is subject to any moratoria or other
restriction on the issuance of grading, development, or building permits or the construction of
residential and commercial improvements on the Property in accordance with the Plans.



(q) Neither Seller nor the Company has received notice of, or has knowledge of, any pending
property rezoning or reclassification with respect to the Property or any portion thereof.



(r) Neither the Company, Seller, nor, to the best of Seller’s and Company’s knowledge, any
prior owner, has placed on the Property or any portion thereof or allowed the Property or any
portion thereof to be used for the generating, storage, transporting, treating, maintenance,
emission, or discharge or disposal of, and to the best of Seller’s knowledge the Property and each
portion thereof (including the land, surface water, and any improvements) is free of, any material
amounts of waste or debris and is free of all contamination including: (i) any “hazardous waste”
as defined by the Resource Conservation and Recovery Act of 1976, as amended from time to time, and
regulations promulgated thereunder; (ii) any “hazardous substance” as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from time to time, and
regulations promulgated thereunder; (iii) any hazardous waste, toxic substance or hazardous
substance as defined and/or referenced in the Code of Virginia, Section 10.1-1400 et seq. and
related statutes thereunder; (iv) any substance the presence of which on the Property or any
portion thereof is prohibited by any other federal, state, or local law; and (v) underground
storage tanks or surface impoundments, asbestos containing materials, or any spills of
polychlorinated biphenyls, including those used in hydraulic oils, electric transformers or other
equipment (“Hazardous Materials”). To the best of the Company’s and Seller’s knowledge, the
Company and Seller have disclosed to Buyer the existence of any of the foregoing Hazardous
Materials or environmental conditions affecting the Property or any portion thereof. No person,
private agency or entity has given any notice of or asserted any claim, cause of action, penalty,
cost or demand for payment or compensation, whether or not involving any injury or threatened
injury to human health, the environment or natural resources, resulting or allegedly resulting from
any activity or event described in this paragraph.



(s) Neither the execution of this Agreement nor the consummation of the transactions
contemplated hereby will: (i) conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, or accelerate any indebtedness or other payment, or
result in the forfeiture or termination of rights under any agreement or instrument to which Seller
or Company is a party, including but not limited to Company’s organizational documents; (ii)
violate any restriction to which Seller or Company is subject; or (iii) violate or conflict with
any law, statute, regulation, ordinance or order.



(t) Neither the Property nor any portion thereof is subject to any leases, contracts or other
agreements which give any person or entity an interest in the Property, except the leases and other
contracts previously delivered or made available to Buyer, which are in full force and effect and
neither the Company nor any other party thereto is in default under such contracts.



(u) Seller is not contemplating either (i) the filing of a petition by it under any bankruptcy
or insolvency laws (and Seller has no knowledge of any person contemplating the filing of any such
petition against it), or (ii) the liquidation of all or a major portion of the assets of Seller
except the sale of the Property hereunder.



(v) Seller Indemnitors (as defined below) shall indemnify, defend and save Buyer and all other
parties indemnified by Buyer under Section 19 hereof harmless from and against all
liabilities, fees, costs, and expenses, including, but not limited to, costs of litigation and
reasonable attorneys’ fees, arising out of (i) any breach of the representations and warranties of
Seller and/or Company set forth in this Agreement and (ii) any and all acts and omissions of Seller
and Company, their respective agents, servants, employees, contractors, successors and assigns
prior to Closing;



(w) Seller and the Company have delivered or made available to Buyer all documents and
materials set forth in Section 4 hereof.



(x) Section 1445 of the Internal Revenue Code provides that a purchaser of a U.S. real
property interest must withhold tax if seller is a foreign person. In connection therewith,
Seller warrants that withholding of tax is not required upon disposition of the Membership
Interests being sold pursuant to this Agreement, and also represent the following:



(i) Company is not a foreign company, foreign partnership, foreign trust, or foreign estate,
and none of the individuals included in the definition of Seller are foreign persons (as those
terms are defined in the Internal Revenue Code and the regulations promulgated thereunder);



(ii) Intentionally deleted;



(iii) Company’s principal office address is 1551 N. Tustin Avenue, Suite 300, Santa Ana, CA
92705.



(iv) Company will provide on or before the Closing date a certification of nonforeign status
as provided by Treas. Reg. Section 1.1445-5T(b)(2)(iii)(B); and



(v) Seller and Company agree that the information contained in this Section 7(x) may
be disclosed to the Internal Revenue Service by Buyer.



(vi) No taxes, withholding or other liability will be assessed against Company or Buyer under
the Foreign Investment in Real Property Act of 1980, as amended, in connection with the
transactions contemplated by this Agreement.



(y) Intentionally Omitted.



(z) No representation or warranty by Seller or Company in this Agreement, the attached
Exhibits, or any statement, certificate, schedule or document furnished or to be furnished to Buyer
pursuant hereto, or in connection with the transactions contemplated hereby, including but not
limited to those specified in Section 4 hereof, contains or will contain any untrue
statement of material fact, or omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading. Seller and Company have disclosed to Buyer
or have identified and made available to Buyer all material information of which they know relating
to the Property, the other Project Assets, the Liabilities and the business, properties, affairs
and financial condition of Company.



(aa) Seller or Company shall immediately notify Buyer, in writing, of any event or condition
known to the parties which occurs prior to Closing hereunder which causes a change in the facts
relating to, or the truth of, any of the above representations or warranties.



(bb) In addition to, but not in limitation of, other default remedies herein elsewhere stated
or provided at law or in equity, in the event that any of the aforesaid representations and/or
warranties is not true, shall not have been complied with, or shall not have transpired as of the
Effective Date or at the time of Closing, notwithstanding any other provision to the contrary
contained in this Agreement or provided at law or in equity, Buyer, at any time prior to or at
Closing, shall provide written notice to Seller of such default and if Seller does not cure such
default within fifteen (15) days after receipt of such notice, Buyer may declare this Agreement
null, void, terminated and of no further effect, in which event, and notwithstanding any other
provision to the contrary contained in this Agreement, except for the representations, warranties
and indemnities provided herein, no party shall have any further obligations or liability to the
other. All covenants, representations and warranties contained in this Agreement shall survive
Closing and shall be for the benefit of Buyer and its successors and assigns.



8. Covenants, Representations and Warranties of Buyer. Buyer makes the following
representations and warranties as of the Effective Date, each of which is material and is relied
upon by Seller and shall be repeated and true at the time of Closing:



(a) Buyer represents and warrants that: (i) Buyer is a Delaware limited partnership, validly
existing, and in good standing under the laws of the State of Delaware; (ii) Buyer has duly and
validly executed this Agreement, and has full power to enter into and perform this Agreement, (iii)
Buyer has obtained all necessary authorizations; and (iv) the parties executing this Agreement and
the documents referred to hereunder on behalf of Buyer have been duly authorized, and the Agreement
and such documents have been duly executed;



(b) Buyer is not contemplating either (i) the filing of a petition by it under any bankruptcy
or insolvency laws (and Buyer has no knowledge of any person contemplating the filing of any such
petition against it), or (ii) the liquidation of all or a major portion of the assets of Buyer;



(c) Buyer shall indemnify and save Seller and the Company and its members harmless for all
acts of Buyer, its agents, servants, employees, contractors, successors and assigns subsequent to
Closing, provided, however, that the foregoing indemnification shall not apply to any acts for
which Buyer is indemnified in connection with breaches of Seller’s representations and warranties
herein or otherwise under this Agreement; and



(d) Buyer acknowledges that the Company will, subsequent to Closing, have continuing
obligations pursuant to agreements entered in by Company prior to Closing, including but not
limited to obligations, if any, arising from the Property Purchase Contracts to the extent that
such obligations survive the closing of such acquisitions.



(e) The covenants, representations and warranties provided in this Agreement shall survive
Closing.



9. Use of Property Until the Closing. Seller and Company, jointly and severally,
agree that, from the Effective Date to the Closing date, Company will: (i) not enter into any
contract or agreement relating to the Property or otherwise without the prior written consent of
Buyer; (ii) not become a party to any service contract that cannot be paid at or by Closing with
respect to or affecting the Property without the prior written consent of Buyer except for
contracts which can be terminated on thirty (30) days’ or less notice; (iii) keep the Property and
any other Project Assets in as good of a condition as exists as of the date hereof, ordinary wear
and tear, casualty and condemnation excepted; (iv) correct all building code or other violations
relating to the Property of which Company or Seller has knowledge as of the Effective Date or any
time thereafter up to the Closing date; and (v) not enter into any amendment, modification,
addendum or supplement of any of the Property Purchase Contacts without the prior written consent
of Buyer.



10. Possession; Risk of Loss; Insurance; Condemnation; Confidentiality.



(a) Possession of the Membership Interests shall be given to Buyer as of the date of Closing
and the Property and the other Project Assets will be in the possession of Company at such time.



(b) The Property and the other Project Assets are to be held at the risk of the Seller until
the Membership Interests have been transferred to Buyer.



(c) During the term of this Agreement, Company shall keep Buyer advised of the nature and
amount of any insurance in effect, and upon request therefor, shall provide Buyer with copies of
such insurance policies. In the event it shall be determined by Buyer that the Property or any
other Project Assets are inadequately insured by Company, Buyer shall have the right, at Buyer’s
option and expense, to obtain such insurance, or additional insurance as shall be satisfactory to
Buyer.



(d) In the event of the condemnation or taking by eminent domain, or sale in lieu thereof, of
all or any substantial part of the Property (substantial shall be defined as any portion of the
Property which reduces the land available for development by more than ten percent (10%)) prior to
the transfer of Membership Interests by Seller hereunder and while this Agreement is in full force
and effect, Buyer shall have the right, by written notice to Seller within five (5) days after
notice by Seller to Buyer of such condemnation, taking or sale, with respect to the Property to
either:



(i) notwithstanding any other provision to the contrary contained in this Agreement, terminate
this Agreement; or



(ii) notify Seller that Buyer intends to proceed forward with the Closing hereunder, with no
reduction in the Purchase Price, notwithstanding such condemnation, in which event the amount of
any such condemnation award with respect to the Property purchased, shall be held by the Company
and shall become subject to Buyer’s control, if, as and when Buyer completes the Closing pursuant
to this Agreement (the proceeds standing in lieu of the condemned Property held by the Company).
If this Agreement is fully terminated as to the purchase of Membership Interests prior to the
Closing, said proceeds shall belong to the Company.



11. Default.



(a) Default by Buyer. In the event that all conditions precedent to Buyer’s
obligation to consummate the transactions contemplated by this Agreement have been satisfied or
waived and Buyer is not entitled to terminate this Agreement under any provisions hereof, then in
the event of default by Buyer under this Agreement, Seller shall have the right to terminate this
Agreement and neither party to this Agreement shall have any further liability to the other for any
damages of any kind whatsoever, whether compensatory, consequential, punitive, or otherwise (except
as to the indemnities contained in Sections 5(d), 7(v), 8(e), 19 and 20 hereof) or be
subject to the remedy of specific performance, and this Agreement shall be and become null and void
and of no further force and effect either at law or in equity.



(b) Default by Seller. In the event Seller shall fail to effectuate the Closing
hereunder for any reason whatsoever, other than by reason of a breach of covenant of Buyer
hereunder, or in the event Seller shall otherwise default under this Agreement, Buyer shall have
the right to terminate this Agreement and shall have the right to pursue all remedies under this
Agreement or at law or in equity, including the remedy of specific performance.



12. Covenant Not to Encumber. Seller represents, warrants and covenants to Buyer that
from the Effective Date until the date of Closing for the Membership Interests or the date of
termination of this Agreement, whichever occurs first, neither Company or Seller will (i) enter
into or execute any contract, covenant, deed, restriction, right-of-way, easement, mortgage, deed
of trust, or other agreement, encumbering, transferring or otherwise affecting the Property, any
other Project Assets or the Membership Interests, (ii) on the Company’s behalf, incur any debts,
liabilities, undertakings, performances, commitments or other obligations or (iii) permit any of
the above to occur.



13. Seller’s Deliveries at Closing and Conditions Precedent to Buyer’s Obligations.



(a) All costs of the transactions set forth in this Section 13 (a) shall be borne by
Buyer. All documents accomplishing the transactions in this Section 13 (a) shall be
mutually acceptable to Seller and Buyer.



(b) Seller shall deliver to Buyer, and/or Buyer’s designee, at the Closing:



(i) Assignment of Membership Interests. The Assignment of Membership Interests
representing legal and beneficial ownership of one hundred percent (100%) of all the outstanding
membership interests of the Company, free and clear of all security interests, liens, pledges,
charging orders, encumbrances, or other claims in substantially the form attached hereto as
Exhibit F.



(ii) Original Company Records and Documents. All original Company records and
documents, including books of account and minute books.



(ii) Certification of Representations and Warranties. A certification that all of the
representations and warranties contained herein are true and correct as of the date of Closing.



(iii) Possession. Possession of the Property.



(iv) Resignations. Resignations of all current managers, officers and other agents of
the Company, effective as of the date of Closing.



(v) Miscellaneous. Such other instruments as may reasonably be required to consummate
the transactions contemplated by this Agreement.



14. Conditions to Closing. Buyer’s obligation to purchase the Membership Interests at
Closing, as defined below, shall be contingent upon Seller’s performance of all obligations and
commitments required to be satisfied prior to or at Closing, and the satisfaction of the following
condition: All covenants, representations, and warranties of Seller and the Company contained
herein shall be true and correct as if made on the Closing date. If the condition set forth at
subsections above is not satisfied at Closing, Buyer shall have the right to extend, waive or
terminate this Agreement and if terminated and no party shall have any further obligation to the
other except as otherwise specifically set forth in this Agreement.



15. Buyer’s Obligation at Closing. Buyer shall pay the Purchase Price in accordance
with Section 3 at Closing.



16. Mechanics of Closing. Seller and Buyer shall deliver to the other at Closing:



(a) evidence that Seller has satisfied Section 13(a) above;



(b) all documents set forth Section 13(b) above; and



(c) the Purchase Price as set forth at Section 15.



17. Closing. Notwithstanding any other provision in this Agreement, including but not
limited to the running of any inspection or due diligence periods, whether or not extended, unless
specifically extended by written agreement of Buyer and Seller, Closing shall be on or before ten
(10) days following the Effective Date. If the date of the Closing is a Saturday, Sunday or legal
holiday, the Closing shall be held on the next business day. Upon payment of the Purchase Price as
provided for in Section 3, on the date of Closing, Seller shall convey good, marketable and
merchantable title to the Membership Interests to Buyer, free and clear of all security interests,
liens, pledges, charging orders, encumbrances or other claims, and Company shall have good,
marketable and merchantable title to the Property as provided for in Section 6, as well as
to the other Project Assets.



18. Intentionally Omitted.



19. Indemnification.



(a) Indemnification by Seller. Seller, for itself and its successors, assigns and
heirs, (collectively, the “Seller Indemnitors”), agrees to reimburse, indemnify and hold Buyer and
its members, managers, employees, agents, attorneys and their respective successors and assigns
harmless from and against:



(i) any and all actions, suits claims proceedings, investigations, demands, assessments,
audits, fines, judgments, losses, deficiencies, liabilities, costs and other expenses (including,
without limitation, reasonable attorneys’ fees and costs) (“Adverse Consequences”) resulting from,
relating to or arising out of (A) any breach of representation or warranty of Seller or Company
under this Agreement; (B) any default in the performance of any agreement or covenant on the part
of Seller or Company under this Agreement; (C) the operation or management of the Company by Seller
or the ownership of any of the Property, or the other Project Assets by Company prior to the date
of Closing; (D) any claim asserted against Seller or the Company to the extent that such claim
relates to an actual or alleged act or omission of Seller, the Company or their respective agents
prior to the date of Closing or an actual or alleged state of facts existing with respect to the
Property or the other Project Assets or the Company prior to the date of Closing; and (E) any
indebtedness, liability, undertaking, performance, commitment or other obligation of Company
arising prior to Closing, except for Liabilities.



(ii) Other than indemnity obligations with respect to tax and environmental matters and
matters covered in Section 7(b), the indemnity obligations of the Seller Indemnitors under
Section 19(a)(i) above shall survive for a period of the later to occur of the applicable
respective period of limitations and thirty-six (36) months following the Closing. The indemnity
obligations of the Seller Indemnitors under Section 19(a)(i) with respect to tax and
environmental matters shall survive until the expiration of the respective statutes of limitations
applicable to such matters. The indemnity obligations of Seller Indemnitors with respect to breach
of Section 7(b) shall be perpetual. Notwithstanding the foregoing, any matters covered by
a Claim Notice (as defined below) delivered within the applicable survival period as specified
above shall survive until all indemnification obligations of the Seller Indemnitors relating to the
Claim Notice shall have been fully paid.



(iii) Assuming the Closing occurs, none of the Seller Indemnitors shall have any right of
contribution from Company with respect to any of their indemnification obligations arising under or
in connection with this Agreement, because Company will then be owned by Buyer, which will be a
beneficiary of any such indemnification obligations.



(b) Indemnification by Buyer. After the date of Closing, Buyer, on behalf of itself
and its successors and assigns, agrees to reimburse, indemnify and hold Seller and their respective
agents, attorneys, successors and assigns harmless from and against any and all Adverse
Consequences incurred in connection with, resulting from, relating to, or arising out of:



(i) the breach of a representation or warranty of Buyer under this Agreement;



(ii) the operation or management of the Company after the date of Closing; and



(iii) any claim asserted against Seller by a third party to the extent that such claim related
to an actual or alleged act or omission of Buyer subsequent to the date of Closing or an actual or
alleged state of facts existing with respect to the Property or the Company.



(c) Survival of Representations and Warranties. Except as otherwise limited herein,
the representations and warranties, obligations, covenants and agreements of Seller, Buyer or the
Company contained herein or in any exhibit or certificate delivered pursuant hereto shall survive
the Closing and continue in full force and effect, regardless of any knowledge or reason to know
which any parties may have had with respect to any breach of representation, warranty, obligation
or covenant or agreement.



(d) Exclusive Remedy. Except as otherwise provided in Sections 5(d) and 20
hereunder and subject to the next succeeding sentence, all claims made by virtue of the
representations, warranties, obligations, covenants and agreements contained in, or otherwise made
in connection with this Agreement shall be made under and subject to the limitations set forth in
this Section 19 which, from and after the Closing, shall be the exclusive remedy for Buyer
or Seller for any breach of this Agreement or other claim arising hereunder. The immediately
preceding sentence shall not limit any right of Buyer or Seller to seek any legal or equitable
relief (including, without limitation, specific performance) as specified in Section 11 in
respect to any breach of any covenant or other agreement herein, or any action or other proceeding
for fraud, intentional misrepresentation or concealment.



20. Brokerage Fees. Seller, Buyer and the Company each represent and warrant to the
other that none of them has used the services of any real estate broker, agent or finder in
connection with this Agreement. In reliance on these representations and warranties, each party
agrees to indemnify and hold the other harmless against any claim by any real estate broker, agent
or finder for a commission or fee arising by reason of the indemnifying party’s breach of its
representation and warranty. The provisions of this Section 20 shall survive the Closing
and the transfer of the Membership Interests.



21. Intentionally Omitted.



22. Intentionally Omitted.



23. Notices. Any notice or demand under this Agreement shall be in writing and sent
by hand-delivery, commercial overnight delivery or facsimile, as follows:



If to Seller or Company:



Triple Net Properties, LLC



1551 N. Tustin Avenue, Suite 200



Santa Ana, CA 92705



Attn: Francene LaPointe



Fax: (714) 667-6860



With a copy to:



Hirschler Fleischer, P.C.



2100 East Cary Street



Richmond, Virginia 23223-7078



Attn: Joseph J. McQuade, Esq.



Fax: (804) 644-0957



If to Buyer:



NNN Healthcare/Office REIT, Inc.



1551 N. Tustin Avenue, Suite 200



Santa Ana, CA 92705



Attn: Scott Peters



Fax: (714) 667-6860



With a copy to:



Hirschler Fleischer, P.C.



2100 East Cary Street



Richmond, Virginia 23223-7078



Attn: Joseph J. McQuade, Esq.



Fax: (804) 644-0957



Any such notice or demand shall be deemed given (i) upon delivery if hand-delivered, (ii) upon
deposit, prepaid, for next business day delivery, if sent by commercial overnight delivery service
or (iii) transmission confirmation if sent by facsimile. Either party by notice to the other in
accordance with the above, may designate a substitute address for such notice or demand and
thereafter such substitute address shall be used for the giving of notice or demand.



24. Miscellaneous.



(a) Intentionally Omitted.



(b) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon Seller, the Company, Buyer and their respective heirs, personal representatives,
successors and permitted assigns. Buyer specifically reserves the right at any time prior to or at
the Closing to assign this Agreement to an entity in which Buyer or its principals have a
controlling interest, in which event such assignee shall be entitled to all benefits of and be
subject to obligations of Buyer hereunder, provided that any such assignment shall not release
Buyer from liability under this Agreement. Seller specifically reserves the right at any time
prior to or at the Closing to assign this Agreement to an entity in which the principals of Seller
have a controlling interest, provided that any such assignment shall not release Seller from
liability under this Agreement. The provisions hereof shall survive the transfer of the Membership
Interests and shall not be merged therein.



(c) Entire Agreement; Amendment. This Agreement (including the Exhibits hereto)
contains the final and entire agreement between the parties hereto and supersedes all prior oral
representations, negotiations and agreements, and neither the parties, nor their agents, shall be
bound by any terms, conditions and representations not herein written or incorporated herein by
reference. This Agreement may not be modified or changed orally, but only by agreement in writing
signed by the party against whom enforcement of any such change is sought.



(d) Governing Law. The interpretation, construction and performance of this Agreement
shall be governed by Minnesota law without regard to principles of conflicts of law.



(e) Intentionally Omitted.



(f) Headings. The headings and titles of the sections are inserted as a matter of
convenience and for reference and in no way define, limit or describe the scope of this Agreement
or the intent of any provision thereof.



(g) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.



(h) No Waiver. No party hereto shall be deemed to have waived the exercise of any
right which it holds hereunder unless such waiver is made expressly and in writing (and no delay or
omission by any party hereto in exercising any such right shall be deemed a waiver of its future
exercise). No such waiver made as to any instance involving the exercise of any such right shall
be deemed a waiver as to any other such instance, or any other such right.



(i) Severability. No determination by any court, governmental, administrative or
other entity that any provision of this Agreement or any amendment hereof is invalid or
unenforceable in any instance shall affect the validity or enforceability of (i) any other such
provision, or (ii) such provision in any circumstance not controlled by such determination. Each
such provision shall be valid and enforceable to the fullest extent allowed by, and shall be
construed wherever possible as being consistent with, applicable law.



(j) No Partnership. Nothing in the provisions of this Agreement shall be deemed in
any way to create between the parties hereto any relationship of partnership, joint venture or
association, and the parties hereto hereby disclaim the existence of any such relationship.



(k) Rule Against Perpetuities. For the purposes of satisfying the Rule against
Perpetuities, the “Term of this Agreement,” and the last date for completing the Closing shall be
December 31, 2015.



(l) Drafted Jointly. This Agreement was prepared for the benefit of each of the
parties and the language in this Agreement shall not be construed in any way against the drafting
party.



(m) Time Periods. Any and all references in this Agreement to time periods which are
specified by reference to a certain number of days refer to calendar days, unless “business days”
is otherwise expressly provided. Therefore, if (a), the last date by which a Closing is permitted
to occur hereunder, or (b) any date by which a party is required to provide the other party with
notice hereunder, occurs on a Saturday or Sunday or a banking holiday in the jurisdiction where the
Property is located, then and in any of such events, such applicable dates shall be deemed to
occur, for all purposes of this Agreement, on that calendar day which is the next, succeeding day,
which is not a Saturday, Sunday or banking holiday.



(n) No Third-Party Beneficiaries. No person who is not a party to this Agreement (or
a permitted assignee hereunder) shall have any benefit hereunder nor have any third party
beneficiary rights as a result of this Agreement, nor shall any party be entitled to rely on any
actions or inactions to the parties hereof or their agents, all of which are done for the sole
benefit of the parties hereto.



(o) Consent to Venue and Jurisdiction. The parties consent to the jurisdiction and
venue of the courts of any county in the State of Minnesota or to the jurisdiction and venue of the
United States District Court for the jurisdiction in which the Property is located in any action or
judicial proceeding brought to enforce, construe or interpret this Agreement.



(p) Force Majeure. In the event that the parties shall be delayed, hindered in or
prevented from the performance of any act or obligation required under this Agreement by reason of
acts of God, vandalism, accident, flood, severe weather, other casualty, riot, insurrection, civil
commotion, sabotage, explosion, war, natural or local emergency, acts or omissions of others or
other reasons of a similar or dissimilar nature not solely the fault of, or under the exclusive
control of, the parties, then performance of such act or obligation shall be excused for the period
of the delay and the period for the performance of any such act or obligation shall be extended for
the period equivalent to the period of such delay.



(q) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY
COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES
IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.



25. Intentionally Omitted.



26. Tax Reporting and Allocations.



(a) Preparation and Filing of Pre-Closing and Post-Closing Period Tax Returns.



(i) Seller shall prepare or cause to be prepared and file or cause to be filed all tax returns
of the Company for all periods ending on or prior to the Closing date which are filed after the
Closing date. Seller shall permit Buyer to review and comment on each such tax return described in
the preceding sentence prior to filing. The amount of any such pre-Closing taxes shall be
conclusively deemed to be the responsibility of and an indemnification obligation of Seller
Indemnitors hereunder.



(ii) Buyer shall prepare or cause to be prepared and file or cause to be filed all tax returns
of the Company for tax periods which begin after the Closing date, or that begin before the Closing
date and end after the Closing date. The amount of any pre-Closing taxes with respect to such tax
returns shall be conclusively deemed to be the responsibility of and an indemnification obligation
of Seller Indemnitors hereunder.



(b) Cooperation in Filing Tax Returns. Seller and Buyer shall provide one another
such cooperation and information, as and to the extent reasonably requested, in connection with the
filing of any tax return, amended tax return or claim for refund, determining liability for taxes
or a right to refund of taxes, or in conducting any audit, litigation or other proceeding with
respect to taxes. Such cooperation and information shall include providing copies of all relevant
portions of relevant tax returns, together with relevant accompanying schedules and relevant work
papers, relevant documents relating to rulings and other determinations by taxing authorities, and
relevant records concerning the ownership and tax basis of property, which any such party may
possess. Each party will retain all tax returns, schedules, work papers, and all material records
and other documents relating to tax matters, of the Company for the tax period first ending after
the Closing date and for all prior tax periods until the later of either (a) the expiration of the
applicable statute of limitations (and, to the extent notice in provided with respect thereto, any
extensions thereof) for the tax periods to which the tax returns and other documents relate or (b)
eight years following the due date (without extension) for such tax returns.



(c) Allocation of Certain Taxes.



(i) If the Company is permitted but not required under applicable income tax laws to treat the
Closing date as the last day of a taxable period, then the parties shall treat that day as the last
day of a taxable period.



(ii) In the case of taxes arising in a taxable period of the Company that includes, but does
not end on, the Closing date, except as provided in Section 26(c)(iii), the allocation of
such taxes between the pre-Closing period and the post-Closing period shall be made on the basis of
an interim closing of the books as of the end of the Closing date. For the avoidance of doubt, for
purposes of this Section 26, any tax resulting from the transactions contemplated by this
Agreement and any tax resulting from sale by Seller of the Membership Interests is attributable to
the pre-Closing period and therefore to Seller.



(iii) In the case of any taxes that are imposed on a periodic basis and are payable for a
taxable period that includes, but does not end on, the Closing date, the portion of such tax which
relates to the portion of such taxable period ending on the Closing date shall (A) in the case of
any taxes, other than taxes based upon or related to income or receipts, or franchise taxes, be
deemed to be the amount of such tax for the entire taxable period multiplied by a fraction, the
numerator of which is the number of days in the taxable period ending on the Closing date and the
denominator of which is the number of days in the entire taxable period, and (B) in the case of any
tax based upon or related to income or receipts, or franchise taxes, be deemed equal to the amount
which would be payable if the relevant taxable period ended as of the end of the Closing date. All
determinations necessary to give effect to the foregoing allocations shall be made in a manner
consistent with the prior practice of the Company.



(d) Tax Characterization of Payments. Except as otherwise required by applicable law,
the parties shall treat any indemnification payment by the Seller Indemnitors made pursuant to
Section 19 hereof or otherwise hereunder as an adjustment to the Purchase Price for tax purposes.



[SIGNATURE PAGE FOLLOWS]





1






IN WITNESS WHEREOF, the parties have respectively signed and sealed this Agreement as of the
day and year first written above.



	 	 	 	 	 	 	 
	SELLER:	 	NNN Gallery Medical Member, LLC,
	 	 
	 
	 	 	 	 	 	 
	 	 	a Delaware limited liability company
	 	 
	 
	 	 	 	 	 	 
	
 
	 	By:
	 	Triple Net Properties, LLC,
	 	

	 
	 	 	 	 	 	 
	 	 	 	 	a Virginia limited liability company

	 
	 	 	 	 	 	 
	
 
	 	Its:
	 	Sole Member and Manager
	 	

	 
	 	 	 	 	 	 
	
 
	 	 	 	By:
	 	/s/ Jeff Hanson
	
 
	 	 	 	 	 	 
	
 
	 	 	 	Name:
	 	Jeff Hanson
	
 
	 	 	 	 	 	 
	
 
	 	 	 	Title:
	 	Chief Investment Officer
	
 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	COMPANY:	 	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 and Manager                             }
                  By:                       /s/ Jeff Hanson                                     }

                  Name:                     Jeff Hanson                                         }

                  Title:                    Chief Investment Officer                            }

BUYER:            NNN Healthcare/Office REIT Holdings, L.P.,                                    }
                  a Delaware limited partnership                                                }
                  By:                       NNN Healthcare/Office REIT, Inc.,                   }
                                            a Maryland corporation                              }
                  Its:                      General Partner                                     }
                                            By:                          /s/ Andrea R. Biller   }

                                            Name:                        Andrea R. Biller       }

                                            Title:                       Executive Vice President

a Virginia limited liability company
	 	 	Its:	 	 	Sole Member and Manager
	 	 	By:	 	 	/s/ Jeff Hanson
	 	 	Name:	 	 	Jeff Hanson
	 	 	Title:	 	 	Chief Investment Officer
	BUYER:	 	NNN Healthcare/Office REIT Holdings, L.P.,
	 	 	a Delaware limited partnership
	 	 	By:	 	 	NNN Healthcare/Office REIT, Inc.,
	 	 	 	 	 	a Maryland corporation
	 	 	Its:	 	 	General Partner
	 	 	 	 	 	By: /s/ Andrea R. Biller
	 	 	 	 	 	Name: Andrea R. Biller
	 	 	 	 	 	Title: Executive Vice President






2