EX-10.1






LEASEHOLD AND FEE DEED OF TRUST,

ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT AND FIXTURE FILING




by




NNN HEALTHCARE/OFFICE REIT TUCSON MEDICAL OFFICE, LLC,

a Delaware limited liability company




to and for the benefit of




Fidelity National Title Agency, Inc., Trustee




and




LASALLE BANK NATIONAL ASSOCIATION,

a national banking association, as agent

for itself and other Banks




AFTER RECORDING RETURN TO:



Schwartz Cooper Chartered


180 North LaSalle Street


Suite 2700


Chicago, Illinois 60601


Attn: Shane T. Young, Esq.



TO BE RECORDED IN


PIMA COUNTY, AZ





1



LEASEHOLD AND FEE DEED OF TRUST,

ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT AND FIXTURE FILING




THIS LEASEHOLD AND FEE DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT (“Deed of Trust”) is made as of the 20th
day of December, 2007 by NNN HEALTHCARE/OFFICE REIT TUCSON MEDICAL OFFICE, LLC, a Delaware limited
liability company, whose mailing address is c/o Triple Net Properties, LLC, 1551 North Tustin
Avenue, Suite 200, Santa Ana, California 92705 (the “Trustor”), to FIDELITY NATIONAL TITLE
AGENCY, INC., whose mailing address is 7750 E. Broadway, Suite 200, Tucson, AZ 85710
(“Trustee”), for the benefit of LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, whose mailing address is 135 South LaSalle Street, Chicago, Illinois 60603-4015, its
successors and assigns, individually and as Agent for the “Banks” (as defined in the Loan Agreement
described below) (“Beneficiary”).



RECITALS:




A. The Banks have agreed to loan to Grubb & Ellis Healthcare REIT Holdings, L.P., a Delaware
limited partnership (f/k/a NNN Healthcare/Office REIT Holdings, L.P.) (“Borrower”), on a revolving
basis, up to the principal amount of up to Fifty Million and no/100 Dollars ($50,000,000.00) (which
has subsequently been increased to $80,000,000.00 and may be increased to $120,000,000 under the
terms set forth in the Loan Agreement) (the “Loan”) pursuant to the terms of a Loan
Agreement between Beneficiary and Borrower dated September 10, 2007 (the “Loan Agreement”;
all capitalized terms not defined herein shall have the meanings ascribed to them in the Loan
Agreement.) The Loan shall be evidenced by one or more Promissory Notes (as amended, restated or
replaced from time to time, collectively, the “Notes”), executed by the Borrower and made
payable to the order of the Beneficiary and/or other Banks in the original principal amount of the
Loan and due on September 10, 2010; subject to extension to September 10, 2011 as provided in the
Loan Agreement, except as may be accelerated pursuant to the terms hereof or of the Loan Agreement
or of any other document or instrument now or hereafter given to evidence or secure the payment of
the Notes or delivered to induce the Beneficiary to disburse the proceeds of the Loan (the Loan
Agreement, the Notes, together with such other documents, as amended, restated or replaced from
time to time, being collectively referred to herein as the “Loan Documents”).



B. A condition precedent to the Beneficiary’s issuance of additional advances to Trustor under
the Loan in connection with Trustor’s ownership of and/or leasehold interest in the Real Estate (as
hereinafter defined) to the Borrower is the execution and delivery by the Trustor of this Deed of
Trust, and Trustor acknowledges that it will receive direct and indirect benefits from the
Beneficiary’s extension of the Loan to the Borrower.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Trustor agrees as follows:



Trustor hereby grants, transfers, sets over, assigns, remises, releases, warrants and conveys
to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, its
successors and assigns, and grants a security interest in, all of Trustor’s estate, right, title
and interest, now owned or hereafter acquired, including any reversion or remainder interest, in
and to the following property (referred to collectively herein as “Premises”), all of which
property, rights and interests are hereby pledged primarily and on a parity with the Real Estate
(as defined below) and not secondarily:




(a) The real estate located in the County of Pima, State of Arizona and legally
described as the “Fee Parcel” on Exhibit A attached hereto and made a part hereof
(the “Fee Parcel”);




(b) The leasehold estate of Trustor under the Ground Lease (as defined in Paragraph 1
hereof) in respect to the “Leasehold Parcel” of the Real Estate (as hereinafter defined)
located in the County of Pima, State of Arizona and legally described on Exhibit A.
(The Fee Parcel and the Leasehold Parcel are jointly referred to herein as the “Real
Estate”).




(c) All improvements of every nature whatsoever now or hereafter situated on the Real
Estate, and all fixtures and personal property of every nature whatsoever now or hereafter
owned by the Trustor and located on, or used in connection with the Real Estate or the
improvements thereon, or in connection with any construction thereon, including all
extensions, additions, improvements, betterments, renewals, substitutions and replacements
to any of the foregoing and all of the right, title and interest of the Trustor in and to
any such personal property or fixtures together with the benefit of any deposits or payments
now or hereafter made on such personal property or fixtures by the Trustor or on its behalf
(the “Improvements”);




(d) All easements, rights of way, gores of real estate, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers, and all estates,
rights, titles, interests, privileges, liberties, tenements, hereditaments and appurtenances
whatsoever, in any way now or hereafter belonging, relating or appertaining to the Real
Estate, and the reversions, remainders, rents, issues and profits thereof, and all the
estate, right, title, interest, property, possession, claim and demand whatsoever, at law as
well as in equity, of the Trustor of, in and to the same;




(e) All rents, revenues, issues, profits, proceeds, income, royalties, Letter of Credit
Rights (as defined in the Code (as hereafter defined), escrows, security deposits, impounds,
reserves, tax refunds and other rights to monies from the Premises and/or the businesses and
operations conducted by the Trustor thereon to be applied against the Indebtedness (as
hereinafter defined); provided, however, that the Trustor, so long as no Event of Default
(as hereinafter defined) has occurred hereunder, may collect rent as it becomes due, but not
more than one (1) month in advance thereof;




(f) All interest of the Trustor in all leases now or hereafter on the Premises, whether
written or oral (each, a “Lease”, and collectively, the “Leases”), together
with all security therefor and all monies payable thereunder, subject, however, to the
conditional permission hereinabove given to the Trustor to collect the rentals under any
such Lease;




(g) All fixtures and articles of personal property now or hereafter owned by the
Trustor and forming a part of or used in connection with the Real Estate or the
Improvements, including, but without limitation, any and all air conditioners, antennae,
appliances, apparatus, awnings, basins, bathtubs, bidets, boilers, bookcases, cabinets,
carpets, computer hardware and software used in the operation of the Premises, coolers,
curtains, dehumidifiers, disposals, doors, drapes, dryers, ducts, dynamos, elevators,
engines, equipment, escalators, exercise equipment, fans, fittings, floor coverings,
furnaces, furnishings, furniture, hardware, heaters, humidifiers, incinerators, lighting,
machinery, motors, ovens, pipes, plumbing, pumps, radiators, ranges, recreational
facilities, refrigerators, screens, security systems, shades, shelving, sinks, sprinklers,
stokers, stoves, toilets, ventilators, wall coverings, washers, windows, window coverings,
wiring, and all renewals or replacements thereof or articles in substitution therefor,
whether or not the same are or shall be attached to the Real Estate or the Improvements in
any manner; it being mutually agreed that all of the aforesaid property owned by the Trustor
and placed on the Real Estate or the Improvements, so far as permitted by law, shall be
deemed to be fixtures, a part of the realty, and security for the Indebtedness;
notwithstanding the agreement hereinabove expressed that certain articles of property form a
part of the realty covered by this Deed of Trust and be appropriated to its use and deemed
to be realty, to the extent that such agreement and declaration may not be effective and
that any of said articles may constitute Goods (as defined in the Commercial Code of the
State of Arizona in effect from time to time, [the “Code”]), this instrument shall
constitute a security agreement, creating a security interest in such goods, as collateral,
for the benefit of Beneficiary as secured party, all in accordance with the Code;




(h) All of the Trustor’s interests in General Intangibles, including Payment
Intangibles and Software (each as defined in the Code) now owned or hereafter acquired and
related to the Premises, including, without limitation, all of the Trustor’s right, title
and interest in and to: (i) all agreements, licenses, permits and contracts to which the
Trustor is or may become a party and which relate to the Premises; (ii) all obligations and
indebtedness owed to the Trustor thereunder; (iii) all intellectual property related to the
Premises; and (iv) all choses in action and causes of action relating to the Premises;




(i) All of the Trustor’s accounts now owned or hereafter created or acquired as relate
to the Premises and/or the businesses and operations conducted thereon, including, without
limitation, all of the following now owned or hereafter created or acquired by the Trustor:
(i) Accounts (as defined in the Code), contract rights, book debts, notes, drafts, and other
obligations or indebtedness owing to the Trustor arising from the sale, lease or exchange of
goods or other property and/or the performance of services; (ii) the Trustor’s rights in, to
and under all purchase orders for goods, services or other property; (iii) the Trustor’s
rights to any goods, services or other property represented by any of the foregoing;
(iv) monies due or to become due to the Trustor under all contracts for the sale, lease or
exchange of goods or other property and/or the performance of services including the right
to payment of any interest or finance charges in respect thereto (whether or not yet earned
by performance on the part of the Trustor); (v) Securities, Investment Property, Financial
Assets and Securities Entitlements (each as defined in the Code); (vi) proceeds of any of
the foregoing and all collateral security and guaranties of any kind given by any person or
entity with respect to any of the foregoing; and (vii) all warranties, guarantees, permits
and licenses in favor of the Trustor with respect to the Premises; and




(j) All proceeds of the foregoing, including, without limitation, all judgments, awards
of damages and settlements hereafter made resulting from condemnation proceeds or the taking
of the Premises or any portion thereof under the power of eminent domain, any proceeds of
any policies of insurance, maintained with respect to the Premises or proceeds of any sale,
option or contract to sell the Premises or any portion thereof.



TO HAVE AND TO HOLD the Premises, unto Trustee for the benefit of Beneficiary, its successors
and assigns, forever, for the purposes and upon the uses herein set forth together with all right
to possession of the Premises after the occurrence of any Event of Default; Trustor hereby
RELEASING AND WAIVING all rights under and by virtue of the homestead exemption laws of the State
of Arizona.



FOR THE PURPOSE OF SECURING: (i) the payment of the Loan and all interest, late charges,
LIBOR breakage charges (including any Make Whole Costs described in the Loan Agreement), prepayment
premium, if any, exit fee, if any, interest rate swap or hedge expenses (if any), reimbursement
obligations, fees and expenses for letters of credit issued by any Bank for the benefit of the
Borrower, if any, and other indebtedness evidenced by or owing under the Notes, any of the other
Loan Documents, and any application for letters of credit and master letter of credit agreement,
together with any extensions, modifications, renewals or refinancings of any of the foregoing; (ii)
the obligations and liabilities of the Borrower to the Beneficiary under and pursuant to interest
rate, currency or commodity swap agreement, cap agreement or collar agreement, executed by and
between the Borrower and the Beneficiary from time to time (collectively, “Interest Rate
Agreements”), (iii) the performance and observance of the covenants, conditions, agreements,
representations, warranties and other liabilities and obligations of the Borrower or Trustor or any
other obligor to or benefiting the Beneficiary which are evidenced or secured by or otherwise
provided in the Notes, this Deed of Trust or any of the other Loan Documents; and (iv) the
reimbursement to the Beneficiary of any and all sums incurred, expended or advanced by the
Beneficiary pursuant to any term or provision of or constituting additional indebtedness under or
secured by this Deed of Trust, any of the other Loan Documents or any Interest Rate Agreements or
any application for letters of credit and master letter of credit agreement, with interest thereon
as provided herein or therein (collectively, the “Indebtedness”).



IT IS FURTHER UNDERSTOOD AND AGREED THAT:



1. Title. Trustor represents, warrants and covenants that (a) Trustor is the lessee
under the lease described in Exhibit E hereto (the “Ground Lease”) that demises the parcel
of real estate described as the “Leasehold Parcel” on Exhibit A and is the holder of the
fee simple title to the the parcel of real estate described as the “Fee Parcel” on Exhibit
A, both free and clear of all liens and encumbrances, except those liens and encumbrances in
favor of or for the benefit of Beneficiary and as otherwise described on Exhibit B attached
hereto (“Permitted Exceptions”); and (b) Trustor has legal power and authority to grant,
bargain, sell, and convey the Premises. Trustor will warrant and forever defend unto Beneficiary
the title to the Premises against all claims and demands, subject only to the Permitted Exceptions.



2. Maintenance, Repair, Restoration, Prior Liens, Parking. Trustor covenants that, so
long as any portion of the Indebtedness remains unpaid (or unless the Premises has been released
from the lien of this Deed of Trust pursuant to the terms of the Loan Agreement), Trustor will:




(a) promptly repair, restore or rebuild any Improvements now or hereafter on the
Premises which may become damaged or be destroyed to a condition substantially similar to
the condition immediately prior to such damage or destruction, so long as proceeds of
insurance are made available to Trustor;




(b) keep the Premises in good condition and repair, without waste, subject to normal
wear and tear and free from mechanics’, materialmen’s or like liens or claims or other liens
or claims for lien (subject to Trustor’s right to contest liens as permitted by the terms of
Paragraph 28 hereof);




(c) pay when due the Indebtedness in accordance with the terms of the Notes and the
other Loan Documents and duly perform and observe all of the terms, covenants and conditions
to be observed and performed by Trustor under the Notes, this Deed of Trust and the other
Loan Documents;




(d) pay when due any indebtedness, or discharge of record any obligation, which may be
secured by a lien or charge on the Premises on a parity with, superior to or inferior to the
lien hereof, and upon request exhibit satisfactory evidence of the discharge of such lien to
the Beneficiary (subject to Trustor’s right to contest liens as permitted by the terms of
Paragraph 28 hereof);




(e) complete within a reasonable time any Improvements now or at any time in the
process of erection upon the Premises;




(f) comply with all applicable requirements of law, municipal ordinances or
restrictions and covenants of record with respect to the Premises and the use thereof;




(g) obtain and maintain in full force and effect, and abide by and satisfy the material
terms and conditions of, all applicable material permits, licenses, registrations and other
authorizations with or granted by any governmental authorities that may be required from
time to time with respect to the performance of its obligations under this Deed of Trust;




(h) make no material alterations in the Premises or demolish any portion of the
Premises without Beneficiary’s prior written consent which consent shall not be unreasonably
withheld, conditioned or delayed except as required by law or municipal ordinance or
pursuant to leases entered into in accordance with the terms of the Loan Documents;




(i) suffer or permit no change in the use or general nature of the occupancy of the
Premises, without the Beneficiary’s prior written consent;




(j) pay when due all operating costs of the Premises;




(k) not initiate or acquiesce in any zoning reclassification or partition with respect
to or of the Premises, without Beneficiary’s prior written consent;




(l) provide and thereafter maintain adequate parking areas within the Premises as may
be required by law, ordinance or regulation (whichever may be greater), together with any
sidewalks, aisles, streets, driveways and sidewalk cuts and sufficient paved areas for
ingress, egress and right-of-way to and from the adjacent public thoroughfares necessary for
the use thereof; and




(m) comply, and shall cause the Premises at all times to be operated in compliance,
with all applicable federal, state, local and municipal environmental, health and safety
laws, statutes, ordinances, rules and regulations, including, without limitation, Trustor
shall (i) ensure, and cause each of its subsidiaries to ensure, that no person who owns
twenty percent (20.00%) or more of the equity interests in the Trustor, or otherwise
controls the Trustor or any of its subsidiaries is or shall be listed on the Specially
Designated Nationals and Blocked Person List or other similar lists maintained by the Office
of Foreign Assets Control (“OFAC”), the Department of the Treasury or included in
any Executive Orders, (ii) not use or permit the use of the proceeds of the Loan to violate
any of the foreign asset control regulations of OFAC or any enabling statute or Executive
Order relating thereto, and (iii) comply, and cause each of its subsidiaries to comply, with
all applicable Bank Secrecy Act (“BSA”) laws and regulations, as amended.



3. Payment of Taxes and Assessments. Trustor will pay when due and before any penalty
attaches, all general and special taxes, assessments, water charges, sewer charges, and other fees,
taxes, charges and assessments of every kind and nature whatsoever (all herein generally called
“Taxes”), whether or not assessed against Trustor, if applicable to the Premises or any
interest therein, or the Indebtedness, or any obligation or agreement secured hereby, subject to
Trustor’s right to contest the same, as provided by the terms hereof; and Trustor will, upon
written request, furnish to the Beneficiary duplicate receipts therefor within ten (10) days after
Beneficiary’s request unless Beneficiary pays such Taxes from escrowed funds.



4. Tax Deposits. At Beneficiary’s option, Trustor shall deposit with Beneficiary, on
the first day of each month until the Indebtedness is fully paid, a sum equal to one-twelfth
(1/12th) of one hundred five percent (105%) of the most recent ascertainable annual Taxes on the
Premises. If requested by Beneficiary, Trustor shall also deposit with Beneficiary an amount of
money which, together with the aggregate of the monthly deposits to be made pursuant to the
preceding sentence as of one month prior to the date on which the next installment of annual Taxes
for the current calendar year become due, shall be sufficient to pay in full such installment of
annual Taxes, as estimated by Beneficiary. Such deposits are to be held with allowance of interest
at a rate equal to the Lender’s then current money market rate, as determined by the Lender in its
sole discretion and adjusted by the Lender from time to time and are to be used for the payment of
Taxes next due and payable when they become due, except as otherwise provided herein. So long as
no Event of Default shall exist, Beneficiary shall, at its option, pay such Taxes when the same
become due and payable (upon submission of appropriate bills therefor from Trustor) or shall
release sufficient funds to Trustor for the payment thereof. If the funds so deposited are
insufficient to pay any such Taxes for any year (or installments thereof, as applicable) when the
same shall become due and payable, Trustor shall, within ten (10) days after receipt of written
demand therefor, deposit additional funds as may be necessary to pay such Taxes in full. If the
funds so deposited exceed the amount required to pay such Taxes for any year, the excess shall be
applied toward subsequent deposits. Said deposits need not be kept separate and apart from any
other funds of Beneficiary. Beneficiary, in making any payment hereby authorized relating to
Taxes, may do so according to any bill, statement or estimate procured from the appropriate public
office without inquiry into the accuracy of such bill, statement or estimate or into the validity
of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof.



5. Beneficiary’s Interest In and Use of Deposits. Upon an Event of Default,
Beneficiary may, at its option, apply any monies at the time on deposit pursuant to Paragraph 4
hereof to cure an Event of Default or to pay any of the Indebtedness in such order and manner as
Beneficiary may elect. If such deposits are used to cure an Event of Default or pay any of the
Indebtedness, Trustor shall within three (3) days, upon demand by Beneficiary, deposit with
Beneficiary an amount equal to the amount expended by Trustor from the deposits. When the
Indebtedness has been fully paid, any remaining deposits shall be returned to Trustor. Such
deposits are hereby pledged as additional security for the Indebtedness and shall not be subject to
the direction or control of Trustor.



6. Insurance.




(a) Trustor shall at all times keep all buildings, improvements, fixtures and articles
of personal property now or hereafter situated on the Premises insured against loss or
damage by fire and such other hazards as may reasonably be required by Beneficiary, in
accordance with the terms, coverages and provisions described on Exhibit C attached
hereto and made a part hereof, and such other insurance as Beneficiary may from time to time
reasonably require. Unless Trustor provides Beneficiary evidence of the insurance coverages
required hereunder, Beneficiary may purchase insurance at Trustor’s expense to cover
Beneficiary’s interest in the Premises. The insurance may, but need not, protect Trustor’s
interest. The coverages that Beneficiary purchases may not pay any claim that Trustor makes
or any claim that is made against Trustor in connection with the Premises. Trustor may
later cancel any insurance purchased by Beneficiary, but only after providing Beneficiary
with evidence that Trustor has obtained insurance as required by this Deed of Trust. If
Beneficiary purchases insurance for the Premises, Trustor will be responsible for the costs
of such insurance, including, without limitation, interest and any other charges which
Beneficiary may impose in connection with the placement of the insurance, until the
effective date of the cancellation or expiration of the insurance. The costs of the
insurance may be added to the Indebtedness. The cost of the insurance may be more than the
cost of insurance Trustor may be able to obtain on its own.




(b) Trustor shall not take out separate insurance concurrent in form or contributing in
the event of loss with that required to be maintained hereunder unless Beneficiary is
included thereon as the loss payee or an additional insured as applicable, under a standard
mortgage clause acceptable to Beneficiary and such separate insurance is otherwise
acceptable to Beneficiary.




(c) In the event of loss, the Trustor shall give prompt notice thereof to the
Beneficiary, who, if such loss exceeds the lesser of ten percent (10.00%) of the
Indebtedness or Five Hundred Thousand and 00/100 Dollars ($500,000.00) (the
“Threshold”), shall have the sole and absolute right to make proof of loss. If such
loss exceeds the Threshold or if such loss is equal to or less than the Threshold and the
conditions set forth in clauses (i), (ii) and (iii) of the immediately succeeding subsection
are not satisfied, then the Beneficiary, solely and directly shall receive such payment for
loss from each insurance company concerned. If and only if (i) such loss is equal to or
less than the Threshold, (ii) no Event of Default or event that with the passage of time,
the giving of notice or both would constitute an Event of Default then exists, (iii) the
Beneficiary determines that the work required to complete the repair or restoration of the
Premises necessitated by such loss can be completed no later than three (3) months prior to
the Maturity Date, and (iv) the total of the insurance proceeds and such additional amounts
placed on deposit with the Beneficiary by the Trustor for the specific purpose of rebuilding
or restoring the Improvements equals or exceeds, in the sole and absolute discretion of the
Beneficiary, the reasonable costs of such rebuilding or restoration, then the Beneficiary
shall endorse to the Trustor any such payment and the Trustor may collect such payment
directly. The Beneficiary shall have the right, at its option and in its sole discretion,
to apply any insurance proceeds received by the Beneficiary pursuant to the terms of this
section, after the payment of all of the Beneficiary’s expenses, either (i) on account of
the Indebtedness, irrespective of whether such principal balance is then due and payable,
whereupon the Beneficiary may declare the whole of the balance of Indebtedness plus any Make
Whole Costs (as defined in the Loan Agreement) to be due and payable, or (ii) to the
restoration or repair of the property damaged as provided in subsection (d) below; provided,
however, that the Beneficiary hereby agrees to permit the application of such proceeds to
the restoration or repair of the damaged property, subject to the provisions of
subsection (d) below, if (i) after giving effect to any Leases which have been or could be
terminated, the Debt Service Coverage Ratio (as defined in the Loan Agreement) shall be
satisfied, (ii) the Beneficiary has received satisfactory evidence that such restoration or
repair shall be completed no later than the date that is three (3) months prior to the
Maturity Date, and (iii) no Event of Default, or event that with the passage of time, the
giving of notice or both would constitute an Event of Default, then exists. If insurance
proceeds are made available to the Trustor by the Beneficiary as hereinafter provided, the
Trustor shall repair, restore or rebuild the damaged or destroyed portion of the Premises so
that the condition and value of the Premises are substantially the same as the condition and
value of the Premises prior to being damaged or destroyed. Any insurance proceeds applied
on account of the unpaid principal balance of the Notes shall be subject to the Make Whole
Costs (as defined in the Loan Agreement). In the event of foreclosure of this Deed of
Trust, all right, title and interest of the Trustor in and to any insurance policies then in
force shall pass to the purchaser at the foreclosure sale. Trustor shall be entitled to
interest on insurance proceeds held by Beneficiary at Beneficiary’s then current money
market rates.




(d) If insurance proceeds are made available by Beneficiary to Trustor, Trustor shall
comply with the following conditions:




(i) Before commencing to repair, restore or rebuild following damage to, or
destruction of, all or a portion of the Premises, whether by fire or other casualty,
Trustor shall obtain from Beneficiary its approval, not to be unreasonably withheld,
of all site and building plans and specifications pertaining to such repair,
restoration or rebuilding.




(ii) Prior to each payment or application of any insurance proceeds to the
repair or restoration of the improvements upon the Premises to the extent permitted
in subparagraph (c) above (which payment or application may be made, at
Beneficiary’s option, through an escrow, the terms and conditions of which are
satisfactory to Beneficiary and the cost of which is to be borne by Trustor),
Beneficiary shall be satisfied as to the following:




(a) no Event of Default or any event which, with the passage of time or
giving of notice would constitute an Event of Default, has occurred;




(b) either such Improvements have been fully restored, or the
expenditure of money as may be received from such insurance proceeds will be
sufficient to repair, restore or rebuild the Premises, free and clear of all
liens, claims and encumbrances, except the lien of this Deed of Trust and
the Permitted Exceptions, or, if such insurance proceeds shall be
insufficient to repair, restore and rebuild the Premises, Trustor has
deposited with Beneficiary such amount of money which, together with the
insurance proceeds shall be sufficient to restore, repair and rebuild the
Premises; and




(c) prior to each disbursement of any such proceeds, Beneficiary shall
be furnished with a statement of Beneficiary’s architect (the cost of which
shall be borne by Trustor), certifying the extent of the repair and
restoration completed to the date thereof, and that such repairs,
restoration, and rebuilding have been performed to date in conformity with
the plans and specifications approved by Beneficiary and with all statutes,
regulations or ordinances (including building and zoning ordinances)
affecting the Premises; and Beneficiary shall be furnished with appropriate
evidence of payment for labor or materials furnished to the Premises, and
total or partial lien waivers substantiating such payments.




(iii) If Trustor shall fail to restore, repair or rebuild the Improvements
within a time deemed satisfactory by Beneficiary, then upon thirty (30) days notice
to Trustor, Beneficiary, at its option, may (a) commence and perform all necessary
acts to restore, repair or rebuild the said Improvements for or on behalf of
Trustor, or (b) declare an Event of Default. If insurance proceeds shall exceed the
amount necessary to complete the repair, restoration or rebuilding of the
Improvements, such excess shall be applied on account of the Indebtedness
irrespective of whether such Indebtedness is then due and payable without payment of
any premium or penalty.



7. Condemnation. If all or any part of the Premises are damaged, taken or acquired,
either temporarily or permanently, in any condemnation proceeding, or by exercise of the right of
eminent domain, the amount of any award or other payment for such taking or damages made in
consideration thereof, to the extent of the full amount of the remaining unpaid Indebtedness, is
hereby assigned to Trustee for the benefit of Beneficiary, who is empowered to collect and receive
the same and to give proper receipts therefor in the name of Trustor and the same shall be paid
forthwith to Beneficiary. Such award or monies shall be applied on account of the Indebtedness,
irrespective of whether such Indebtedness is then due and payable and, at any time from and after
the taking Beneficiary may declare the whole of the balance of the Indebtedness plus any Make Whole
Costs to be due and payable. Notwithstanding the provisions of this paragraph to the contrary, if
any condemnation or taking of less than the entire Premises occurs and provided that no Event of
Default and no event or circumstance which with the passage of time, the giving of notice or both
would constitute an Event of Default then exists, and if such partial condemnation, in the
reasonable discretion of Beneficiary, has no material adverse effect on the operation or value of
the Premises, then the award or payment for such taking or consideration for damages resulting
therefrom may be collected and received by Trustor, and Beneficiary hereby agrees that in such
event it shall not declare the Indebtedness to be due and payable, if it is not otherwise then due
and payable.



8. Stamp Tax. If, by the laws of the United States of America, or of any state or
political subdivision having jurisdiction over Trustor, any tax is due or becomes due in respect of
the execution and delivery of this Deed of Trust, the Notes or any of the other Loan Documents,
Trustor shall pay such tax in the manner required by any such law. Trustor further agrees to
reimburse Beneficiary for any sums which Beneficiary may expend by reason of the imposition of any
such tax. Notwithstanding the foregoing, Trustor shall not be required to pay any income or
franchise taxes of Beneficiary.



9. Lease Assignment. Trustor acknowledges that, concurrently herewith, Trustor has
executed and delivered to Beneficiary, as additional security for the repayment of the Loan, an
Assignment of Rents and Leases (“Assignment”) pursuant to which Trustor has assigned to
Beneficiary interests in the leases of the Premises and the rents and income from the Premises.
All of the provisions of the Assignment are hereby incorporated herein as if fully set forth at
length in the text of this Deed of Trust. Trustor agrees to abide by all of the provisions of the
Assignment.



10. Effect of Extensions of Time and Other Changes. If the payment of the
Indebtedness or any part thereof is extended or varied, if any part of any security for the payment
of the Indebtedness is released, if the rate of interest charged under the Notes is changed or if
the time for payment thereof is extended or varied, all persons now or at any time hereafter liable
therefor, or interested in the Premises or having an interest in Trustor, shall be held to assent
to such extension, variation, release or change and their liability and the lien and all of the
provisions hereof shall continue in full force, any right of recourse against all such persons
being expressly reserved by Beneficiary, notwithstanding such extension, variation, release or
change.



11. Effect of Changes in Laws Regarding Taxation. If any law is enacted after the
date hereof requiring (a) the deduction of any lien on the Premises from the value thereof for the
purpose of taxation or (b) the imposition upon Beneficiary of the payment of the whole or any part
of the Taxes, charges or liens herein required to be paid by Trustor, or (c) a change in the method
of taxation of mortgages, deeds of trust, or debts secured by mortgages or deeds of trust or
Beneficiary’s interest in the Premises, or the manner of collection of taxes, so as to affect this
Deed of Trust or the Indebtedness or the holders thereof, then Trustor, upon demand by Beneficiary,
shall pay such Taxes or charges, or reimburse Beneficiary therefor; provided, however, that Trustor
shall not be deemed to be required to pay any income or franchise taxes of Beneficiary.
Notwithstanding the foregoing, if in the opinion of counsel for Beneficiary it is or may be
unlawful to require Trustor to make such payment or the making of such payment might result in the
imposition of interest beyond the maximum amount permitted by law, then Beneficiary may declare the
portion of the Indebtedness allocated by Lender to the Premises to be due and payable within one
hundred eighty (180) days; provided Trustor shall not be liable for Make Whole Costs in connection
with such payment.



12. Beneficiary’s Performance of Defaulted Acts and Expenses Incurred by Beneficiary.
If an Event of Default has occurred, Beneficiary may, but need not, make any payment or perform any
act herein required of Trustor in any form and manner deemed expedient by Beneficiary, and may, but
need not, make full or partial payments of principal or interest on prior encumbrances, if any, and
purchase, discharge, compromise or settle any tax lien or other prior lien or title or claim
thereof, or redeem from any tax sale or forfeiture affecting the Premises or consent to any tax or
assessment or cure any default of Trustor in any lease of the Premises. All monies paid for any of
the purposes herein authorized and all expenses paid or incurred in connection therewith, including
reasonable attorneys’ fees, and any other monies advanced by Beneficiary in regard to any tax
referred to in Paragraph 8 above or to protect the Premises or the lien hereof, shall be so much
additional Indebtedness, and shall become immediately due and payable by Trustor to Beneficiary,
upon demand, and with interest thereon accruing from the date of such demand until paid at the
Default Rate (as defined in the Loan Agreement). In addition to the foregoing, any costs, expenses
and fees, including reasonable attorneys’ fees, incurred by Beneficiary in connection with
(a) sustaining the lien of this Deed of Trust or its priority, (b) protecting or enforcing any of
Beneficiary’s rights hereunder, (c) recovering any Indebtedness, (d) any litigation or proceedings
affecting the Notes, this Deed of Trust, any of the other Loan Documents or the Premises, including
without limitation, bankruptcy and probate proceedings, or (e) preparing for the commencement,
defense or participation in any threatened litigation or proceedings affecting the Notes, this Deed
of Trust, any of the other Loan Documents or the Premises, shall be so much additional
Indebtedness, and shall become immediately due and payable by Trustor to Beneficiary, upon demand,
and with interest thereon accruing from the date of such demand until paid at the Default Rate.
The interest accruing under this Paragraph 12 shall be immediately due and payable by Trustor to
Beneficiary, and shall be additional Indebtedness evidenced by the Notes and secured by this Deed
of Trust. Beneficiary’s failure to act shall never be considered as a waiver of any right accruing
to Beneficiary on account of any Event of Default. Should any amount paid out or advanced by
Beneficiary hereunder, or pursuant to any agreement executed by Trustor in connection with the
Loan, be used directly or indirectly to pay off, discharge or satisfy, in whole or in part, any
lien or encumbrance upon the Premises or any part thereof, then Beneficiary shall be subrogated to
any and all rights, equal or superior titles, liens and equities, owned or claimed by any owner or
holder of said outstanding liens, charges and indebtedness, regardless of whether said liens,
charges and indebtedness are acquired by assignment or have been released of record by the holder
thereof upon payment.



13. Security Agreement. Trustor and Beneficiary agree that this Deed of Trust shall
constitute a Security Agreement within the meaning of the Code with respect to (a) all sums at any
time on deposit for the benefit of Trustor or held by the Beneficiary (whether deposited by or on
behalf of Trustor or anyone else) pursuant to any of the provisions of this Deed of Trust or the
other Loan Documents, and (b) with respect to any personal property included in the granting
clauses of this Deed of Trust or described on Exhibit D attached hereto, which personal
property may not be deemed to be affixed to the Premises or may not constitute a “fixture” (within
the meaning the Code) (which property is hereinafter referred to as “Personal Property”),
and all replacements of, substitutions for, additions to, and the proceeds thereof, and the
“supporting obligations” (as defined in the Code) (all of said Personal Property and the
replacements, substitutions and additions thereto and the proceeds thereof being sometimes
hereinafter collectively referred to as “Collateral”), and that a security interest in and
to the Collateral is hereby granted to the Beneficiary, and the Collateral and all of Trustor’s
right, title and interest therein are hereby assigned to Beneficiary, all to secure payment of the
Indebtedness. All of the provisions contained in this Deed of Trust pertain and apply to the
Collateral as fully and to the same extent as to any other property comprising the Premises; and
the following provisions of this Paragraph shall not limit the applicability of any other provision
of this Deed of Trust but shall be in addition thereto:




(a) Trustor (being the Debtor as that term is used in the Code) is and will be the true
and lawful owner of the Collateral, subject to no liens, charges or encumbrances other than
the lien hereof, other liens and encumbrances benefiting Beneficiary and no other party, and
liens and encumbrances, if any, expressly permitted by the other Loan Documents.




(b) The Collateral is to be used by Trustor solely for business purposes.




(c) The Collateral will be kept at the Real Estate and, except for Obsolete Collateral
(as hereinafter defined), will not be removed therefrom without the consent of Beneficiary
(being the Secured Party as that term is used in the Code). The Collateral may be affixed to
the Real Estate but will not be affixed to any other real estate.




(d) No Financing Statement (other than Financing Statements showing Beneficiary as the
sole secured party, or with respect to liens or encumbrances, if any, expressly permitted
hereby) covering any of the Collateral or any proceeds thereof is on file in any public
office except pursuant hereto; and Trustor, at its own cost and expense, upon demand, will
furnish to Beneficiary such further information and will execute and deliver to Beneficiary
such financing statements and other documents in form satisfactory to Beneficiary and will
do all such acts as Beneficiary may request at any time or from time to time or as may be
necessary or appropriate to establish and maintain a perfected security interest in the
Collateral as security for the Indebtedness, subject to no other liens or encumbrances,
other than liens or encumbrances benefiting Beneficiary and no other party and liens and
encumbrances (if any) expressly permitted hereby; and Trustor will pay the cost of filing or
recording such financing statements or other documents, and this instrument, in all public
offices wherever filing or recording is deemed by Beneficiary to be desirable. Trustor
hereby irrevocably authorizes Beneficiary at any time, and from time to time, to file in any
jurisdiction any initial financing statements and amendments thereto, without the signature
of the Trustor that (i) indicate the Collateral as all assets of Trustor (or words of
similar effect), regardless of whether any particular asset comprising a part of 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 (including, without
limitation, the Code), or as being of an equal or lesser scope or within greater detail, and
(ii) 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 whether Trustor is an organization, the type of organization and any
organizational identification number issued to Trustor, and 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.
Trustor agrees to furnish any such information to Beneficiary promptly upon request.
Trustor further ratifies and affirms its authorization for any financing statements and/or
amendments thereto, executed and filed by or on behalf of Beneficiary in any jurisdiction
prior to the date of this Deed of Trust. In addition, Trustor shall make appropriate
entries on its books and records disclosing the Beneficiary’s security interests in the
Collateral.




(e) Upon an Event of Default hereunder, Beneficiary shall have the remedies of a
secured party under the Code, including, without limitation, the right to take immediate and
exclusive possession of the Collateral, or any part thereof, and for that purpose, so far as
Trustor can give authority therefor, with or without judicial process, may enter (if this
can be done without breach of the peace) upon any place which the Collateral or any part
thereof may be situated and remove the same therefrom (provided that if the Collateral is
affixed to real estate, such removal shall be subject to the conditions stated in the
Code); and Beneficiary shall be entitled to hold, maintain, preserve and prepare the
Collateral for sale, until disposed of, or may propose to retain the Collateral subject to
Trustor’s right of redemption in satisfaction of Trustor’s obligations, as provided in the
Code. Beneficiary may render the Collateral unusable without removal and may dispose of the
Collateral on the Premises. Beneficiary may require Trustor to assemble the Collateral and
make it available to Beneficiary for its possession at a place to be designated by
Beneficiary which is reasonably convenient to both parties. Beneficiary will give Trustor
at least ten (10) days’ notice of the time and place of any public sale of the Collateral or
of the time after which any private sale or any other intended disposition thereof is made.
The requirements of reasonable notice shall be met if such notice is mailed, by certified
United States mail or equivalent, postage prepaid, to the address of Trustor hereinafter set
forth at least ten (10) days before the time of the sale or disposition. Beneficiary may
buy at any public sale. Beneficiary may buy at private sale if the Collateral is of a type
customarily sold in a recognized market or is of a type which is the subject of widely
distributed standard price quotations. Any such sale may be held in conjunction with any
foreclosure sale of the Premises. If Beneficiary so elects, the Premises and the Collateral
may be sold as one lot. The net proceeds realized upon any such disposition, after
deduction for the expenses of retaking, holding, preparing for sale, selling and the
reasonable attorneys’ fees and legal expenses incurred by Beneficiary, shall be applied
against the Indebtedness in such order or manner as Beneficiary shall select. Beneficiary
will account to Trustor for any surplus realized on such disposition.




(f) The terms and provisions contained in this Paragraph 13, unless the context
otherwise requires, shall have the meanings and be construed as provided in the Code.




(g) This Deed of Trust is intended to be a financing statement within the purview of
Section 47-9502 of the Code with respect to the Collateral and the goods described herein,
which goods are or may become fixtures relating to the Premises. The addresses of Trustor
(Debtor) and Beneficiary (Secured Party) are hereinbelow set forth. This Deed of Trust is
to be filed for recording with the Recorder of Deeds of the county or counties where the
Premises are located.




(h) To the extent permitted by applicable law, the security interest created hereby is
specifically intended to cover all Leases between Trustor or its agents as lessor, and
various tenants named therein, as lessee, including all extended terms and all extensions
and renewals of the terms thereof, as well as any amendments to or replacement of said
Leases, together with all of the right, title and interest of Trustor, as lessor thereunder.




(i) Trustor represents and warrants that:




(i) Trustor is the record owner of the Fee Parcel;




(ii) Trustor has a valid and enforceable leasehold interest in the Leasehold
Parcel;




(iii) Trustor’s chief executive office is located in the State of California;




(iv) Trustor’s state of formation is the State of Delaware;




(v) Trustor’s exact legal name is as set forth in the first paragraph of this
Deed of Trust; and




(vi) Trustor’s organizational identification number is 4440419.




(j) Trustor agrees that:




(i) Where Collateral is in possession of a third party, Trustor will join with
the Beneficiary in notifying the third party of the Beneficiary’s interest and
obtaining an acknowledgment from the third party that it is holding the Collateral
for the benefit of Beneficiary;




(ii) Trustor will cooperate with the Beneficiary in obtaining control with
respect to Collateral consisting of: deposit accounts, investment property, letter
of credit rights and electronic chattel paper; and




(iii) Until the Indebtedness is paid in full, Trustor will not change the state
where it is located or change its corporate name without giving the Beneficiary at
least 30 days’ prior written notice in each instance.



14. Restrictions on Transfer.




(a) Trustor, without the prior written consent of Beneficiary, shall not effect, suffer
or permit any Prohibited Transfer (as defined herein). Any conveyance, sale, assignment,
transfer, lien, pledge, mortgage, security interest or other encumbrance or alienation (or
any agreement to do any of the foregoing) of any of the following properties or interests
shall constitute a “Prohibited Transfer”:




(i) The Premises or any part thereof or interest therein, excepting only sales
or other dispositions of Collateral (herein called “Obsolete Collateral”) no
longer useful in connection with the operation of the Premises, provided that prior
to the sale or other disposition thereof, such Obsolete Collateral has been replaced
by Collateral of at least equal value and utility which is subject to the lien
hereof with the same priority as with respect to the Obsolete Collateral;




(ii) Any shares of capital stock of a corporate Trustor, a corporation which is
a general partner or managing member/manager in a partnership or limited liability
company constituting Trustor (except for shares of stock in Grubb & Ellis Healthcare
REIT, Inc. [f/k/a NNN Healthcare/Office REIT, Inc.]), or a corporation which is the
owner of substantially all of the capital stock of any corporation described in this
subparagraph (other than the shares of capital stock of a corporate trustee or a
corporation whose stock is publicly traded on a national securities exchange or on
the National Association of Securities Dealers’ Automated Quotation System);




(iii) All or any part of the membership interests of Trustor, or of the
managing member or manager interest, as the case may be, in a limited liability
company constituting Trustor or partnership interests in a limited partnership which
is a general partner of a partnership constituting Trustor; provided, however the
foregoing transfers shall be permitted so long as at all times Borrower owns one
hundred percent (100%), directly or indirectly, of the membership interests of
Trustor;




(iv) All or any part of the general partner or joint venture interest, as the
case may be, of a partnership constituting Trustor or a partnership which is a
manager of a limited liability company constituting Trustor or the conversion of a
partnership constituting Trustor to a corporation or limited liability company;
provided, however the foregoing transfers shall be permitted so long as at all times
Borrower owns one hundred percent (100%), directly or indirectly, of the membership
interests of Trustor;or




(v) If there shall be any change in control (by way of transfers of stock,
partnership or member interests or otherwise) in any partner, member, manager or
shareholder, as applicable, which directly or indirectly controls the day to day
operations and management of the Trustor or the Guarantor (as defined in the Loan
Agreement) and/or owns a controlling interest in the Trustor or the Guarantor;




in each case whether any such conveyance, sale, assignment, transfer, lien, pledge,
mortgage, security interest, encumbrance or alienation is effected directly, indirectly
(including the nominee agreement), voluntarily or involuntarily, by operation of law or
otherwise; provided, however, the foregoing provisions of this Paragraph 14 shall not apply
(i) to liens securing the Indebtedness, (ii) to the lien of current taxes and assessments
not in default, (iii) to any transfers of the Premises, or part thereof, or interest
therein, or any beneficial interests, or shares of stock or partnership or joint venture
interests, as the case may be, by or on behalf of an owner thereof who is deceased or
declared judicially incompetent, to such owner’s heirs, legatees, devisees, executors,
administrators, estate or personal representatives, (iv) to leases permitted by the terms of
the Loan Documents, (v) transfers for estate planning purposes of membership interests in
the entities comprising Trustor (provided, however, that following such transfers, Triple
Net Properties or an affiliate of Triple Net shall retain management and operating control
of Trustor) or (vi) transfers of membership interests in the entities comprising Trustor
from individual members to revocable trusts of which the transferor is the Trustee
(provided, however, that following such transfers, Triple Net shall retain management and
operating control of Trustor).




(b) In determining whether or not to make the Loan, Beneficiary evaluated the
background and experience of Trustor and its members in owning and operating property such
as the Premises, found it acceptable and relied and continues to rely upon same as the means
of maintaining the value of the Premises which is Beneficiary’s security for the Notes.
Trustor and its members are well experienced in borrowing money and owning and operating
property such as the Premises, were ably represented by a licensed attorney at law in the
negotiation and documentation of the Loan and bargained at arm’s length and without duress
of any kind for all of the terms and conditions of the Loan, including this provision.
Trustor recognizes that Beneficiary is entitled to keep its loan portfolio at current
interest rates by either making new loans at such rates or collecting assumption fees and/or
increasing the interest rate on a loan, the security for which is purchased by a party other
than the original Trustor. Trustor further recognizes that any secondary junior financing
placed upon the Premises (a) may divert funds which would otherwise be used to pay the
Notes; (b) could result in acceleration and foreclosure by any such junior encumbrancer
which would force Beneficiary to take measures and incur expenses to protect its security;
(c) would detract from the value of the Premises should Beneficiary come into possession
thereof with the intention of selling same; and (d) would impair Beneficiary’s right to
accept a deed in lieu of foreclosure, as a foreclosure by Beneficiary would be necessary to
clear the title to the Premises. In accordance with the foregoing and for the purposes of
(i) protecting Beneficiary’s security, both of repayment and of value of the Premises;
(ii) giving Beneficiary the full benefit of its bargain and contract with Trustor;
(iii) allowing Beneficiary to raise the interest rate and collect assumption fees; and
(iv) keeping the Premises free of subordinate financing liens, Trustor agrees that if this
Paragraph 14 is deemed a restraint on alienation, that it is a reasonable one.



15. Single Asset Entity.



Except as otherwise permitted by Beneficiary, the Trustor shall not hold or acquire, directly
or indirectly, any ownership interest (legal or equitable) in any real or personal property other
than the Premises, or become a shareholder of or a member or partner in any entity which acquires
any property other than the Premises, until such time as the Indebtedness has been fully repaid.
Trustor covenants:




(a) To maintain its assets, accounts, books, records, financial statements, stationery,
invoices, and checks separate from and not commingled with any of those of any other person
or entity;




(b) To conduct its own business in its own name, pay its own liabilities out of its own
funds, allocate fairly and reasonably any overhead for shared employees and office space,
and to maintain an arm’s length relationship with its affiliates;




(c) To hold itself out as a separate entity, correct any known misunderstanding
regarding its separate identity, maintain adequate capital in light of its contemplated
business operations, and observe all organizational formalities;




(d) Except if in favor of Beneficiary, not to 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;




(e) Except if in favor of Beneficiary, not to pledge its assets for the benefit of any
other entity or person or make any loans or advances to any person or entity;




(f) Not to enter into any contract or agreement with any party which is directly or
indirectly controlling, controlled by or under common control with the Trustor (an
“Affiliate”), except upon terms and conditions that are intrinsically fair and
substantially similar to those that would be available on an arms-length basis with third
parties other than any Affiliate or are approved in writing by Beneficiary;




(g) Neither the Trustor nor any constituent party of the Trustor will seek the
dissolution or winding up, in whole or in part, of the Trustor, nor will the Trustor merge
with or be consolidated into any other entity;




(h) The Trustor has 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 constituent party of the Trustor, any Affiliate, the Guarantor or any other person; and




(i) The Trustor now has and will hereafter have no debts or obligations other than
normal accounts payable in the ordinary course of business, the Loan, this Deed of Trust and
the other Loan Documents; and any other indebtedness or other obligation of the Trustor,
other than normal accounts payable in the ordinary course of business, the Loan, this Deed
of Trust and the other Loan Documents, has been paid in full prior to or through application
of proceeds from the funding of the Loan.



16. Events of Default; Acceleration. Each of the following shall constitute an “Event
of Default” for purposes of this Deed of Trust:




(a) The Borrower fails to pay (i) any installment of principal when due, (ii) any
interest within five (5) days after the date when due, or (iii) any other amount payable to
Beneficiary under the Notes, this Deed of Trust or any of the other Loan Documents within
five (5) days after written notice such payment is due in accordance with the terms hereof
or thereof;




(b) The Trustor fails to perform or cause to be performed any other obligation or
observe any other condition, covenant, term, agreement or provision required to be performed
or observed by the Borrower under the Notes or the Trustor under this Deed of Trust or any
of the other Loan Documents; provided, however, that if such failure by its nature can be
cured, then so long as the continued operation and safety of the Premises, and the priority,
validity and enforceability of the liens created by the Deed of Trust or any of the other
Loan Documents and the value of the Premises are not impaired, threatened or jeopardized,
then the Trustor shall have a period (the “Cure Period”) of thirty (30) days after
the Trustor obtains actual knowledge of such failure or receives written notice of such
failure to cure the same and an Event of Default shall not be deemed to exist during the
Cure Period; provided further that if the Trustor commences to cure such failure during the
Cure Period and is diligently and in good faith attempting to effect such cure, the Cure
Period shall be extended for thirty (30) additional days, but in no event shall the Cure
Period be longer than sixty (60) days in the aggregate;




(c) the existence of any inaccuracy or untruth in any material respect in any
certification, representation or warranty contained in this Deed of Trust or any of the
other Loan Documents or of any statement or certification as to facts delivered to the
Beneficiary by the Trustor or the Guarantor that would or could reasonably be expected to
result in a Material Adverse Effect;




(d) The Trustor or the Guarantor files a voluntary petition in bankruptcy or is
adjudicated a bankrupt or insolvent or files any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief under the present or any future federal, state, or other statute or law, or seeks or
consents to or acquiesces in the appointment of any trustee, receiver or similar officer of
the Trustor or of all or any substantial part of the property of the Trustor, the Guarantor,
the Premises or all or a substantial part of the assets of the Trustor or the Guarantor are
attached, seized, subjected to a writ or distress warrant or are levied upon unless the same
is released or located within sixty (60) days;




(e) the commencement of any involuntary petition in bankruptcy against the Trustor or
the Guarantor, or the institution against the Trustor or the Guarantor of any
reorganization, arrangement, composition, readjustment, dissolution, liquidation or similar
proceedings under any present or future federal, state or other statute or law, or the
appointment of a receiver, trustee or similar officer for all or any substantial part of the
property of the Trustor or the Guarantor which shall remain undismissed or undischarged for
a period of sixty (60) days;




(f) the dissolution, termination or merger of the Trustor or the Guarantor;




(g) the occurrence of a Prohibited Transfer;




(h) the occurrence of an Event of Default under the Loan Agreement or any of the other
Loan Documents; or




(i) the occurrence of any default or event of default, after the expiration of any
applicable periods of notice or cure, under any document or agreement evidencing or securing
any other obligation or indebtedness of the Trustor and/or the Guarantor to the Beneficiary.



If an Event of Default occurs, the Beneficiary may, at its option, declare the whole of the
Indebtedness to be immediately due and payable without further notice to the Trustor, with interest
thereon accruing from the date of such Event of Default until paid at the Default Rate.



17. Foreclosure; Expense of Litigation. Upon the occurrence of an Event of Default
and in the event of any action by Beneficiary to enforce its rights hereunder, Trustor agrees to
pay all of Beneficiary’s costs and expenses, including but not limited to, court costs and
reasonable attorneys’ fees. Upon the occurrence of an Event of Default hereunder or under any
other Loan Documents, Beneficiary may, at its option, declare all Indebtedness and obligations
secured hereby to be immediately due and payable without any presentment, demand, protest or notice
of any kind, all of which are hereby expressly waived; and whether or not Beneficiary exercises
said option, Beneficiary may:




(a) To the extent permitted by law, either in person or by agent, with or without
bringing any action or proceeding (to the extent permitted by law), or by a receiver
appointed by a court and without regard to the adequacy of its security, enter upon and take
possession of the Premises (except for any portion of the Premises that has been released or
reconveyed), or any part thereof, in its own name or in the name of the Trustee, and do any
act which it deems necessary or desirable to preserve the value, marketability or
rentability of the Premises, or part thereof or interest therein, increase the income
therefrom or protect the security thereof and, with or without taking possession of the
Premises, sue for or otherwise collect the rents including those past due and unpaid, and
apply the same, less costs and attorneys’ fees upon any Indebtedness secured hereby, all in
such order as Beneficiary may determine. Trustor hereby irrevocably constitutes and
appoints Beneficiary as Trustor’s attorney-in-fact, with full power of substitution, to
perform such acts and execute such documents as Beneficiary in its sole discretion may
consider appropriate in connection with taking these measures, including endorsement of
Trustor’s name on any instruments, which appointment shall be deemed to be coupled with an
interest. The entering upon and taking possession of the Premises, the collection of such
rents, and the application thereof as aforesaid, shall not cure or waive any default or
notice of default hereunder or invalidate any act done in response to such default or
pursuant to such notice of default and, notwithstanding the continuance in possession by
Trustee, Beneficiary or a receiver of all or any portion of the Premises or the collection,
receipt and application of any of the rents thereby, the Trustee or Beneficiary shall be
entitled to exercise every right provided for in any of the Loan Documents or by law upon
the occurrence of any Event of Default, including the right to exercise the power of sale;




(b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a
receiver, or specifically enforce any of the covenants hereof;




(c) Deliver to Trustee such statement of breach of nonperformance and notice of sale as
may then be required by applicable law, which notice the Trustee or Beneficiary shall cause
to be duly filed for record in the Recorder’s Office of the County or Counties in which the
Premises are located; or




(d) Exercise all other rights and remedies provided herein, in any Loan Document or in
any other document or agreement now or hereafter securing all or any portion of the
obligations secured hereby, or provided by law.



18. Foreclosure by Power of Sale.




(a) Upon the occurrence of an Event of Default, should Beneficiary elect to foreclose
by exercise of the power of sale herein contained, Beneficiary shall notify Trustee and
shall deposit with Trustee this Deed of Trust, and the Loan Documents and such receipts and
evidence of expenditures made and secured hereby as Trustee may require.




(b) Upon receipt of such notice from Beneficiary, Trustee shall cause to be recorded,
published and delivered to Trustor such statement of breach or nonperformance and notice of
sale as is then required by applicable law. Trustee shall, without demand on Trustor, after
lapse of such time as may then be required by law, sell the Premises at the time and place
of sale fixed by it in said notice of sale, either as a whole, or in separate lots or
parcels or items and in such order as Beneficiary may direct Trustee so to do, at public
auction to the highest bidder as provided by law. Trustee shall deliver to such purchaser
or purchasers thereof its good and sufficient deed or deeds conveying the property so sold,
but without any covenant or warranty, express or implied. The recitals in such deed of any
matter or fact shall be conclusive proof of the truthfulness thereof. Any person including,
without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor
hereby covenants to warrant and defend the title of such purchaser or purchasers subject
only to the Permitted Exceptions.




(c) After deducting all reasonable out-of-pocket costs, fees and expenses of
Beneficiary and Trustee, including costs of evidence of title in connection with sale,
Beneficiary shall apply the proceeds of sale in the following priority, to payment of
(i) first, all sums expended under the terms hereof, not then repaid, with accrued interest
at the Default Rate; (ii) second, all other sums then secured hereby in such order as the
Beneficiary shall determine; and (iii) the remainder, if any, to the person or persons
legally entitled thereto.




(d) Subject to Arizona Revised Statute §33-810(B), Trustee may postpone sale of all or
any portion of the Premises as permitted by law, and without further notice make such sale
at the time fixed by the last postponement, or may, in its discretion, give a new notice of
sale.




(e) A sale of less than the whole of the Premises or any defective or irregular sale
made hereunder shall not exhaust the power of sale provided for herein; and subsequent sales
may be made hereunder until all obligations secured hereby have been satisfied, or the
entire Premises sold, without defect or irregularity.



19. Appointment of Receiver. Upon the occurrence of an Event of Default, Beneficiary
shall, as a matter of right, without notice and without giving bond to Trustor or anyone coming by,
under, or through it, shall be entitled to the appointment of a receiver for the Premises. Such
appointment may be made without notice (any and all rights of Trustor to receive notice being
hereby waived by Trustor), without regard to the solvency or insolvency of Trustor at the time of
application for such receiver and without regard to the value of the Premises or whether the same
shall be then occupied as a homestead or not and Beneficiary hereunder or any other holder of the
Beneficiary’s Note may be appointed as such receiver. Such receiver shall have power to collect
the rents, issues and profits of the Premises (i) during the pendency of the exercise of the power
of sale set forth in Paragraph 18, (ii) in case of a sale and a deficiency, during the full
statutory period of confirmation, whether there be confirmation or not, and (iii) during any
further times when Trustor, but for the intervention of such receiver, would be entitled to collect
such rents, issues and profits. Such receiver also shall have all other powers and rights that may
be necessary or are usual in such cases for the protection, possession, control, management and
operation of the Premises during said period, including, to the extent permitted by law, the right
to lease all or any portion of the Premises for a term that extends beyond the time of such
receiver’s possession without obtaining prior court approval of such lease. The court from time to
time may authorize the application of the net income received by the receiver in payment of (a) the
Indebtedness, or by any decree foreclosing this Deed of Trust, or any tax, special assessment or
other lien which may be or become superior to the lien hereof or of such decree, provided such
application is made prior to foreclosure sale, and (b) any deficiency upon a sale and deficiency.



20. Application of Proceeds of Foreclosure Sale. The proceeds of any judicial or
non-judicial foreclosure sale of the Premises shall be distributed and applied in accordance with
the Arizona Foreclosure Laws (as defined in Paragraph 22 hereof) and, unless otherwise specified
therein, in such order as Beneficiary may determine in its sole and absolute discretion.



21. Application of Income Received by Beneficiary. Beneficiary, in the exercise of
the rights and powers hereinabove conferred upon it after an Event of Default, shall have full
power to use and apply the avails, rents, issues and profits of the Premises to the payment of or
on account of the following, in such order as Beneficiary may determine:




(a) to the payment of the operating expenses of the Premises, including cost of
management and leasing thereof (which shall include compensation to Beneficiary and its
agent or agents, if management be delegated to an agent or agents, and shall also include
lease commissions and other compensation and expenses of seeking and procuring tenants and
entering into leases), established claims for damages, if any, and premiums on insurance
hereinabove authorized;




(b) to the payment of taxes and special assessments now due or which may hereafter
become due on the Premises; and




(c) to the payment of any Indebtedness, including any deficiency which may result from
any foreclosure sale.



22. Compliance with Arizona Foreclosure Law.




(a) If any provision in this Deed of Trust shall be inconsistent with any provision of
the judicial and non-judicial foreclosure laws of the State of Arizona (“Arizona Foreclosure
Laws”), the provisions of the Arizona Foreclosure Laws shall take precedence over the
provisions of this Deed of Trust, but shall not invalidate or render unenforceable any other
provision of this Deed of Trust that can be construed in a manner consistent with applicable
law.




(b) If any provision of this Deed of Trust shall grant to Trustee and/or Beneficiary
(including Trustee and/or Beneficiary acting as a Beneficiary-in-possession) or a receiver
appointed pursuant to the provisions of Paragraph 19 of this Deed of Trust any powers,
rights or remedies prior to, upon or following the occurrence of an Event of Default which
are more limited than the powers, rights or remedies that would otherwise be vested in
Beneficiary or in such receiver under applicable law in the absence of said provision,
Beneficiary and such receiver shall be vested with the powers, rights and remedies granted
under applicable law.




(c) Without limiting the generality of the foregoing, all expenses incurred by
Beneficiary which are of the type coverable by applicable law, whether incurred before or
after any decree or judgment of foreclosure, and whether or not enumerated in Paragraph 12,
17 or 29 of this Deed of Trust, shall be added to the Indebtedness and/or by the judgment of
foreclosure.




All references to Beneficiary in this Section shall include Trustee acting for or on behalf
of Beneficiary.



23. Rights Cumulative. Each right, power and remedy herein conferred upon Trustee
and/or Beneficiary is cumulative and in addition to every other right, power or remedy, express or
implied, given now or hereafter existing under any of the Loan Documents or at law or in equity,
and each and every right, power and remedy herein set forth or otherwise so existing may be
exercised from time to time as often and in such order as may be deemed expedient by Beneficiary,
and the exercise or the beginning of the exercise of one right, power or remedy shall not be a
waiver of the right to exercise at the same time or thereafter any other right, power or remedy,
and no delay or omission of Trustee and/or Beneficiary in the exercise of any right, power or
remedy accruing hereunder or arising otherwise shall impair any such right, power or remedy, or be
construed to be a waiver of any Event of Default or acquiescence therein.



24. Beneficiary’s Right of Inspection. Beneficiary and its representatives shall have
the right to inspect the Premises and the books and records with respect thereto at all reasonable
times upon not less than twenty-four (24) hours prior notice to Trustor, and access thereto,
subject to the rights of tenants in possession, shall be permitted for that purpose.



25. Acceptance Of Late And Partial Payments. The acceptance by Beneficiary of the
payment of any sum or the performance of any other obligation secured by this Deed of Trust after
its due date shall not constitute a waiver of the right to require prompt payment or performance
when due of all other and future sums and obligations so secured, or to declare an Event of Default
for any failure to so pay or perform, or to proceed with foreclosure or sale for any other Event of
Default then existing. The acceptance by Beneficiary of the payment of a portion of any sum, or
the partial performance of any other obligation, secured by this Deed of Trust at such time that
the same is due and/or payable in its entirety shall neither cure nor excuse the Event of Default
caused by failure to pay the whole of such installment or otherwise fully perform such obligation,
or affect any notice of default recorded prior to such acceptance, unless such notice of default is
expressly revoked in writing by Beneficiary. Such acceptance shall not constitute a waiver of
Beneficiary’s rights to require full payment or performance when due of all other and future sums
or other obligations so secured.



26. Notices. Any notices, communications and waivers under this Deed of Trust shall
be in writing and shall be (a) delivered in person, (b) mailed, postage prepaid, either by
registered or certified mail, return receipt requested, or (c) sent by overnight express carrier,
addressed in each case as follows:



	 	 	 	 	 
	To the Beneficiary
	 	LaSalle Bank National Association
	 
	 	135 South LaSalle Street
	 
	 	Suite 1200
	 
	 	Chicago, Illinois  60603
	 
	 	Attention:  Commercial Real Estate Division
	With a copy to:
	 	Schwartz Cooper Chartered
	 
	 	180 North LaSalle Street
	 
	 	Suite 2700
	 
	 	Chicago, Illinois  60601
	 
	 	Attention:  Michael S. Kurtzon, Esq.
	With a copy to the Trustee:
	 	Fidelity National Title Agency, Inc.
	 
	 	7750 E. Broadway
	 
	 	Suite 200
	 
	 	Tucson, AZ 85710
	To the Trustor:
	 	Grubb & Ellis Healthcare REIT Holdings, LP
	 
	 	c/o Triple Net Properties, LLC
	 
	 	1551 North Tustin Avenue
	 
	 	Suite 200
	 
	 	Santa Ana, California  92705
	 
	 	Attn:  Andrea Biller, Esq.
	With copy to:
	 	Cox Castle Nicholson, LLP
	 
	 	2049 Century Park East
	 
	 	28th Floor
	 
	 	Los Angeles, CA 90067
	 
	 	Attn:  David Lari, Esq.






or to any other address as to any of the parties hereto, as such party shall designate in a written
notice to the other party hereto. All notices sent pursuant to the terms of this section shall be
deemed received (i) if personally delivered, then on the date of delivery, (ii) if sent by
overnight, express carrier, then on the next federal banking day immediately following the day
sent, or (iii) if sent by registered or certified mail, then on the earlier of the third federal
banking day following the day sent or when actually received.



27. Waiver of Rights. The Trustor hereby covenants and agrees that it will not at any
time insist upon or plead, or in any manner claim or take any advantage of, any stay, exemption or
extension law or any so-called “Moratorium Law” now or at any time hereafter in force providing for
the valuation or appraisement of the Premises, or any part thereof, prior to any sale or sales
thereof to be made pursuant to any provisions herein contained, or to decree, judgment or order of
any court of competent jurisdiction; or, after such sale or sales, claim or exercise any rights
under any statute now or hereafter in force to redeem the property so sold, or any part thereof, or
relating to the marshalling thereof, upon foreclosure sale or other enforcement hereof; and without
limiting the foregoing:



(a) The Trustor hereby expressly waives any and all rights of reinstatement and redemption, if
any, under any order or decree of foreclosure of this Deed of Trust, on its own behalf and on
behalf of each and every person, it being the intent hereof that any and all such rights of
reinstatement and redemption of the Trustor and of all other persons are and shall be deemed to be
hereby waived to the full extent permitted by the provisions of Arizona law or other applicable law
or replacement statutes;



(b) The Trustsor will not invoke or utilize any such law or laws or otherwise hinder, delay or
impede the execution of any right, power remedy herein or otherwise granted or delegated to the
Beneficiary but will suffer and permit the execution of every such right, power and remedy as
though no such law or laws had been made or enacted; and



(c) If the Trustor is a trustee, the Trustor represents that the provisions of this section
(including the waiver of reinstatement and redemption rights) were made at the express direction of
the Trustor’s beneficiaries and the persons having the power of direction over the Trustor, and are
made on behalf of the trust estate of the Trustor and all beneficiaries of the Trusor, as well as
all other persons mentioned above.



(d) all benefit that might accrue to Trustor by virtue of any present or future law exempting
the Premises, or any part of the proceeds arising from any sale thereof, from attachment, levy or
sale on execution, or providing for any appraisement, valuation, stay of execution, exemption from
civil process, redemption or extension of time for payment;



(e) unless specifically required herein, all notices of default, or Beneficiary’s actual
exercise of any option or remedy under the Loan Documents, or otherwise;



(f) any right to have the Premises marshaled; and



(g) Trustor, to the fullest extent permitted by law, waives all rights and benefits under
A.R.S. §§ 33-729 and 33-814 (if any).



28. Contests. Notwithstanding anything to the contrary herein contained, Trustor
shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes
imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’,
materialmen’s or other liens or similar claims for lien upon the Premises or proceeds of the Loan
(all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of
Default hereunder, if, but only if:




(a) Trustor shall forthwith give notice of any Contested Lien to Beneficiary at the
time the same shall be asserted;




(b) Trustor shall either pay under protest or deposit with Beneficiary the full amount
(herein called “Lien Amount”) of such Contested Lien, together with such amount as
Beneficiary may reasonably estimate as interest or penalties which might arise during the
period of contest; provided that in lieu of such payment Trustor may furnish to Beneficiary
a bond or title indemnity in such amount and form, and issued by a bond or title insuring
company, as may be satisfactory to Beneficiary;




(c) Trustor shall diligently prosecute the contest of any Contested Lien by appropriate
legal proceedings having the effect of staying the foreclosure or forfeiture of the
Premises, and shall permit Beneficiary to be represented in any such contest and shall pay
all expenses incurred, in so doing, including fees and expenses of Beneficiary’s counsel
(all of which shall constitute so much additional Indebtedness bearing interest at the
Default Rate until paid, and payable upon demand); and




(d) Trustor shall pay such Contested Lien and all Lien Amounts together with interest
and penalties thereon (i) if and to the extent that any such Contested Lien shall be
determined adverse to Trustor, or (ii) forthwith upon demand by Beneficiary if, in the
opinion of Beneficiary, and notwithstanding any such contest, the Premises shall be in
jeopardy or in danger of being forfeited or foreclosed; provided that if Trustor shall fail
so to do, Beneficiary may, but shall not be required to, pay all such Contested Liens and
Lien Amounts and interest and penalties thereon and such other sums as may be necessary in
the judgment of the Beneficiary to obtain the release and discharge of such liens; and any
amount expended by Beneficiary in so doing shall be so much additional Indebtedness bearing
interest at the Default Rate until paid, and payable upon demand; and provided further that
Beneficiary may in such case use and apply monies deposited as provided in subsection (b)
above and may demand payment upon any bond or title indemnity furnished as aforesaid.



29. Expenses Relating to Notes and Deed of Trust.




(a) Trustor will pay all expenses, charges, costs and fees relating to the Loan or
necessitated by the terms of the Notes, this Deed of Trust or any of the other Loan
Documents, including without limitation, Trustee’s and Beneficiary’s reasonable attorneys’
fees in connection with the negotiation, documentation, administration, servicing and
enforcement of the Notes, this Deed of Trust and the other Loan Documents, all filing,
registration and recording fees, all other expenses incident to the execution and
acknowledgment of this Deed of Trust and all federal, state, county and municipal taxes, and
other taxes (provided Trustor shall not be required to pay any income or franchise taxes of
Beneficiary), duties, imposts, assessments and charges arising out of or in connection with
the execution and delivery of the Notes and this Deed of Trust. Trustor recognizes that,
during the term of this Deed of Trust, Beneficiary:




(i) May be involved in court or administrative proceedings, including, without
restricting the foregoing, foreclosure, probate, bankruptcy, creditors’
arrangements, insolvency, pollution control proceedings of any kind, to which
Beneficiary shall be a party by reason of the Loan Documents or in which the Loan
Documents or the Premises are involved directly or indirectly;




(ii) May make preparations following the occurrence of an Event of Default
hereunder for the commencement of any suit for the foreclosure hereof, which may or
may not be actually commenced;




(iii) May make preparations following the occurrence of an Event of Default
hereunder for, and do work in connection with, Beneficiary’s taking possession of
and managing the Premises, which event may or may not actually occur;




(iv) May make preparations for and commence other private or public actions to
remedy an Event of Default hereunder, which other actions may or may not be actually
commenced;




(v) May enter into negotiations with Trustor or any of its agents, employees or
attorneys in connection with the existence or curing of any Event of Default
hereunder, the sale of the Premises, the assumption of liability for any of the
Indebtedness or the transfer of the Premises in lieu of foreclosure; or




(vi) May enter into negotiations with Trustor or any of its agents, employees
or attorneys pertaining to Beneficiary’s approval of actions taken or proposed to be
taken by Trustor which approval is required by the terms of this Deed of Trust.




(b) All expenses, charges, costs and fees described in this Paragraph 29 shall be so
much additional Indebtedness, shall bear interest from the date so incurred until paid at
the Default Rate and shall be paid, together with said interest, by Trustor forthwith upon
demand.



30. [Intentionally Omitted].



31. Statement of Indebtedness. Trustor will within thirty days after being so
requested by Beneficiary, no more than two times per year, shall furnish a duly acknowledged
written statement setting forth the amount of the debt secured by this Deed of Trust, the date to
which interest has been paid and stating either that no offsets or defenses exist against such debt
or, if such offsets or defenses are alleged to exist, the nature thereof.



32. Further Instruments. Upon request of Beneficiary, Trustor shall execute,
acknowledge and deliver all such additional instruments and further assurances of title and shall
do or cause to be done all such further acts and things as may reasonably be necessary fully to
effectuate the intent of this Deed of Trust and of the other Loan Documents.



33. Additional Indebtedness Secured. All persons and entities with any interest in
the Premises or about to acquire any such interest should be aware that this Deed of Trust secures
more than the stated principal amount of the Notes and interest thereon; this Deed of Trust secures
any and all other amounts which may become due under the Notes or any other document or instrument
evidencing, securing or otherwise affecting the Indebtedness, including, without limitation, any
and all amounts expended by Beneficiary to operate, manage or maintain the Premises or to otherwise
protect the Premises or the lien of this Deed of Trust.



34. Indemnity. Trustor hereby covenants and agrees that no liability shall be
asserted or enforced against Beneficiary in the exercise of the rights and powers granted to
Beneficiary in this Deed of Trust, and Trustor hereby expressly waives and releases any such
liability. Trustor shall indemnify and save Beneficiary harmless from and against any and all
liabilities, obligations, losses, damages, claims, costs and expenses (including reasonable
attorneys’ fees and court costs) (collectively, “Claims”) of whatever kind or nature which
may be imposed on, incurred by or asserted against Beneficiary at any time by any third party which
relate to or arise from: (a) any suit or proceeding (including probate and bankruptcy
proceedings), or the threat thereof, in or to which Beneficiary may or does become a party, either
as plaintiff or as a defendant, by reason of this Deed of Trust or for the purpose of protecting
the lien of this Deed of Trust; (b) the offer for sale or sale of all or any portion of the
Premises; and (c) the ownership, leasing, use, operation or maintenance of the Premises, if such
Claims relate to or arise from actions taken prior to the surrender of possession of the Premises
to Beneficiary in accordance with the terms of this Deed of Trust; provided, however, that Trustor
shall not be obligated to indemnify or hold Beneficiary harmless from and against any Claims
arising from the gross negligence or willful misconduct of Beneficiary. All costs provided for
herein and paid for by Beneficiary shall be so much additional Indebtedness and shall become
immediately due and payable upon demand by Beneficiary and with interest thereon from the date
incurred by Beneficiary until paid at the Default Rate.



35. Subordination of Property Manager’s Lien. Any property management agreement for
the Premises entered into hereafter with a property manager shall contain a provision whereby the
property manager agrees that any and all lien rights that the property manager or anyone claiming
by, through or under the property manager may have in the Premises shall be subject and subordinate
to the lien of this Deed of Trust and shall provide that Beneficiary may terminate such agreement
without penalty or cost at any time after the occurrence and continuation of an Event of Default
hereunder. In addition, if the property management agreement in existence as of the date hereof
does not contain a subordination provision, Trustor shall cause the property manager under such
agreement to enter into a subordination of the management agreement with Beneficiary, whereby such
property manager subordinates present and future lien rights and those of any party claiming by,
through or under such property manager to the lien of this Deed of Trust.



36. [Intentionally Omitted].



37. [Intentionally Omitted].



38. Remedies Against Other Collateral. The Trustor hereby acknowledges that certain
Loan Documents other than this Deed of Trust create liens on other collateral located in the State
of Arizona or elsewhere. The Trustor further acknowledges that this Deed of Trust and the other
Loan Documents are cross-defaulted with the other Loan Documents. The Trustor agrees that the
Beneficiary may proceed, at the same or at different times, to foreclose any or all liens against
such collateral (or sell such collateral under power of sale) by any proceedings appropriate in the
county and state where such collateral lies, and that no event of enforcement taking place in any
county or state pursuant to any of the Loan Documents shall preclude or bar enforcement in any
other county or state. Any foreclosure or other appropriate remedy brought in any county or state
in which collateral is located may be brought and prosecuted as to any part of such collateral
without regard to the fact that foreclosure proceedings or other appropriate remedies have or have
not been instituted elsewhere on any other part of the collateral for the Loan.



39. Miscellaneous.




(a) Successors and Assigns. This Deed of Trust and all provisions hereof shall
be binding upon and enforceable against Trustor and its assigns and other successors. This
Deed of Trust and all provisions hereof shall inure to the benefit of Beneficiary, its
successors and assigns and any holder or holders, from time to time, of the Notes.




(b) Invalidity of Provisions; Governing Law. THIS DEED OF TRUST SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA AND THE LAWS OF
THE UNITED STATES APPLICABLE TO TRANSACTIONS IN THE STATE OF ARIZONA. IN THE EVENT THAT ANY
PROVISION OR CLAUSE OF THIS DEED OF TRUST OR THE NOTES CONFLICTS WITH APPLICABLE LAW, SUCH
CONFLICT SHALL NOT AFFECT OTHER PROVISIONS OF THIS DEED OF TRUST OR ANY OF THE LOAN
DOCUMENTS WHICH CAN BE GIVEN EFFECT WITHOUT THE CONFLICTING PROVISION, AND TO THIS END THE
PROVISIONS OF THIS DEED OF TRUST ARE DECLARED TO BE SEVERABLE.




(c) Municipal Requirements. Trustor shall not by act or omission permit any
building or other improvement on premises not subject to the lien of this Deed of Trust to
rely on the Premises or any part thereof or any interest therein to fulfill any municipal or
governmental requirement, and Trustor hereby assigns, to the extent permitted by law, to
Beneficiary any and all rights to give consent for all or any portion of the Premises or any
interest therein to be so used. Similarly, no building or other improvement on the Premises
shall rely on any premises not subject to the lien of this Deed of Trust or any interest
therein to fulfill any governmental or municipal requirement. Any act or omission by
Trustor which would result in a violation of any of the provisions of this
subparagraph shall be void.




(d) Rights of Tenants. Beneficiary shall have the right and option to commence
a civil action to foreclose this Deed of Trust and to obtain a decree of foreclosure and
sale subject to the rights of any tenant or tenants of the Premises having an interest in
the Premises prior to that of Beneficiary. The failure to join any such tenant or tenants
of the Premises as party defendant or defendants in any such civil action or the failure of
any decree of foreclosure and sale to foreclose their rights shall not be asserted by
Trustor as a defense in any civil action instituted to collect the Indebtedness, or any part
thereof or any deficiency remaining unpaid after foreclosure and sale of the Premises, any
statute or rule of law at any time existing to the contrary notwithstanding.




(e) Option of Beneficiary to Subordinate. At the option of Beneficiary, this
Deed of Trust shall become subject and subordinate, in whole or in part (but not with
respect to priority of entitlement to insurance proceeds or any condemnation or eminent
domain award) to any and all leases of all or any part of the Premises upon the execution by
Beneficiary of a unilateral declaration to that effect and the recording thereof in the
Office of the Recorder of Deeds in and for the county wherein the Premises are situated.




(f) Beneficiary in Possession. Nothing herein contained shall be construed as
constituting Beneficiary a Beneficiary in possession in the absence of the actual taking of
possession of the Premises by Beneficiary pursuant to this Deed of Trust.




(g) Relationship of Beneficiary and Trustor. Beneficiary shall in no event be
construed for any purpose to be a partner, joint venturer, agent or associate of Trustor or
of any lessee, operator, concessionaire or licensee of Trustor in the conduct of their
respective businesses, and, without limiting the foregoing, Beneficiary shall not be deemed
to be such partner, joint venturer, agent or associate on account of Beneficiary becoming a
Beneficiary in possession or exercising any rights pursuant to this Deed of Trust, any of
the other Loan Documents, or otherwise. The relationship of Trustor and Beneficiary
hereunder is solely that of debtor/creditor.




(h) Time of the Essence. Time is of the essence of the payment by Trustor of
all amounts due and owing to Beneficiary under the Notes and the other Loan Documents and
the performance and observance by Trustor of all terms, conditions, obligations and
agreements contained in this Deed of Trust and the other Loan Documents.




(i) No Merger. The parties hereto intend that the Deed of Trust and the lien
hereof shall not merge in fee simple title to the Premises, and if Beneficiary acquires any
additional or other interest in or to the Premises or the ownership thereof, then, unless a
contrary intent is manifested by Beneficiary as evidenced by an express statement to that
effect in an appropriate document duly recorded, this Deed of Trust and the lien hereof
shall not merge in the fee simple title and this Deed of Trust may be foreclosed as if owned
by a stranger to the fee simple title.




(j) Consent to Jurisdiction. TO INDUCE BENEFICIARY TO ACCEPT THE NOTES,
TRUSTOR IRREVOCABLY AGREES THAT, SUBJECT TO BENEFICIARY’S SOLE AND ABSOLUTE ELECTION, ALL
ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO THIS DEED OF TRUST WILL BE
LITIGATED IN COURTS HAVING SITUS IN PIMA COUNTY, ARIZONA. TRUSTOR HEREBY CONSENTS AND
SUBMITS TO THE JURISDICTION OF ANY COURT LOCATED WITHIN PIMA COUNTY, ARIZONA, TO THE EXTENT
PERMITTED BY LAW, WAIVES PERSONAL SERVICE OF PROCESS UPON TRUSTOR, AND AGREES THAT ALL SUCH
SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL DIRECTED TO TRUSTOR AT THE ADDRESS STATED
HEREIN AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT.




(k) Waiver of Jury Trial. TRUSTOR AND BENEFICIARY (BY ACCEPTANCE HEREOF),
HAVING BEEN REPRESENTED BY COUNSEL EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (a) UNDER THIS
DEED OF TRUST OR ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT, DEED OF TRUST, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH THIS DEED OF
TRUST OR (b) ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS DEED OF
TRUST, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY. TRUSTOR AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST BENEFICIARY OR ANY
OTHER PERSON INDEMNIFIED UNDER THIS DEED OF TRUST ON ANY THEORY OF LIABILITY FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.




(l) [Intentionally Deleted[.




(m) Complete Agreement. This Deed of Trust, the Notes and the other Loan
Documents constitute the complete agreement between the parties with respect to the subject
matter hereof and the Loan Documents may not be modified, altered or amended except by an
agreement in writing signed by both Beneficiary, and Borrower or Trustor, as applicable.




(n) Substitute Trustee. Trustee shall not be liable for any error of judgment
or act done by Trustee, or be otherwise responsible or accountable under any circumstances
whatsoever, except Trustee’s gross negligence or willful misconduct. Trustee shall not be
personally liable in case of entry by it or anyone acting by virtue of the powers herein
granted it upon the Premises for debts contracted or liability or damages incurred in the
management or operation of the Premises. All monies received by Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated in any manner from any other monies (except to the
extent required by law) and Trustee shall be under no liability for interest on any monies
received by it hereunder.




Trustee may resign by giving notice of such resignation in writing to Beneficiary. If
Trustee shall die, resign or become disqualified from acting, or shall fail or refuse to
exercise its powers hereunder when requested by Beneficiary so to do, or if for any reason
and without cause Beneficiary shall prefer to appoint a substitute trustee to act instead of
the original Trustee named herein, or any prior successor or substitute trustee, Beneficiary
shall have full power to appoint a substitute trustee and, if preferred, several substitute
trustees in succession who shall succeed to all the estate, rights, powers and duties of the
aforenamed Trustee. Upon appointment by Beneficiary, any new Trustee appointed pursuant to
any of the provisions hereof shall, without any further act, deed or conveyance, become
vested with all the estates, properties, rights, powers and trusts of its predecessor in the
rights hereunder with the same effect as if originally named as Trustee herein.




(o) Conflict. In the event of any inconsistency among the terms hereof
(including incorporated terms), and the terms of any other Loan Document, Beneficiary may
elect which terms shall govern and prevail.



40. Maximum Indebtedness. This Deed of Trust is given to secure not only the original
indebtedness secured hereby, but also such future advances up to a total indebtedness of
$120,000,000.00, as may be made within twenty (20) years from the date hereof, plus interest
thereon, and any disbursements made by Beneficairy for the payment of taxes, insurance or other
liens on the Premises, with interest on such disbursements, which advances shall be secured hereby
to the same extent as if such future advances were made this date. The total amount of indebtedness
secured hereby may increase or decrease from time to time. The provisions of this paragraph shall
not be construed to imply any obligation on the Banks to make any future advances, it being the
intention of the parties that any future advances shall be solely at the discretion and option of
Beneficiary. Any reference to the Notes in this Deed of Trust shall be construed to reference any
future advances pursuant to this paragraph.



41. Usury. All agreements between Trustor and Beneficiary, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no contingency,
whether by reason of demand or acceleration of the maturity date of the Notes or otherwise, shall
the interest contracted for, charged, received, paid or agreed to be paid to Beneficiary exceed the
maximum amount permissible under the applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to Beneficiary in excess of the maximum amount permissible
under applicable law, the interest payable to Beneficiary shall be reduced to the maximum amount
permissible under applicable law; and if from any circumstance Beneficiary shall ever receive
anything of value deemed interest by applicable law in excess of the maximum amount permissible
under applicable law, an amount equal to the excessive interest shall be applied to the reduction
of the principal of the Notes and not to the payment of interest, or if such excessive amount of
interest exceeds the unpaid balance of principal of the Notes, such excess shall be refunded to
Borrower. All interest paid or agreed to be paid to Beneficiary shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the full period (including
any renewal or extension) until payment in full of the principal so that the interest accruing
under the Notes for such full period shall not exceed the maximum amount permissible under
applicable law. Trustor expressly disavows any intent to contract for, charge or receive interest
in an amount which exceeds the maximum amount permissible under applicable law.



42. Refinancing Proposal. Trustor agrees that at such time as the Loan is refinanced,
Trustor shall permit Beneficiary to offer a proposal for such refinancing upon Beneficiary’s
then-current underwriting standards. In the event that Trustor shall solicit refinancing proposals
from any other bank or credit source, Trustor shall give Beneficiary the right to offer to Trustor
a proposal on similar or more favorable terms then other competing proposals. Notwithstanding the
foregoing, Trustor acknowledges that Beneficiary is under no obligation whatsoever to make any
proposal to Trustor on any specific terms and conditions.



43. Leasehold Protection Provisions.




(a) Representations and Warranties Regarding Ground Lease. Trustor
represents and warrants that:




(i) The Ground Lease contains the entire agreement of ground lessor
(“Ground Lessor”) under the Ground Lease and Trustor pertaining to the
Leasehold Parcel. Trustor has no estate, right, or interest in or to the Leasehold
Parcel except under and pursuant to the Ground Lease. Except as set forth on
Exhibit E, no modifications or amendments have occurred to the Ground Lease,
and to Trustor’s knowledge no such modifications or amendments are contemplated.




(ii) The Ground Lease is in full force and effect. Ground Lessor has
no rights to terminate the Ground Lease other than as set forth in Sections 18, 19
and 21 of the Ground Lease. Trustor has no right to purchase any interest in the
Leasehold Parcel, other than as set forth in Section 23 of the Ground Lease or
Section 1(d) of the Second Amendment to the Ground Lease, to the extent applicable.




(iii) No breach or default or event that with the giving of notice or
passage of time would constitute a breach or default of or under the Ground Lease (a
“Ground Lease Default”) exists or has occurred which has not been cured within any
applicable grace or cure period prior to the date hereof (A) as to Trustor’s
obligations under the Ground Lease, nor (B) to Trustor’s knowledge, as to Ground
Lessor’s obligations under the Ground Lease. Trustor has not received any written
notice, communication, or information that a Ground Lease Default has occurred or
exists, or that Ground Lessor or any third party alleges the same to have occurred
or exist.




(iv) Trustor is the exclusive owner of its interest under and
pursuant to the Ground Lease. Trustor has not assigned, transferred, or encumbered
its interest in, to, or under the Ground Lease, except in favor of Beneficiary
pursuant to this Deed of Trust and the other Loan Documents, and also except for
subleases or leases as to which Trustor is the sublessor or landlord.




(b) Grant of After-Acquired Interest. As security for all
obligations secured by this Deed of Trust, Trustor hereby irrevocably grants, conveys,
transfers and assigns to Beneficiary, with power of sale and right of entry and possession,
all title, and interest in and to the Leasehold Parcel that may hereafter be acquired by
Trustor. Without limitation of the foregoing, if Trustor hereafter should acquire the fee
estate in the Leasehold Parcel or in any land or improvements comprising the same, or should
acquire any interest or estate in the Leasehold Parcel or any component thereof that Trustor
does not presently hold, then this Deed of Trust shall encumber and constitute a lien upon
any and all of such interest or estate, without further act or instrument by Trustor or any
third party. Trustor immediately shall notify Beneficiary of any such acquisition. Upon
request of Beneficiary and without cost or expense to Beneficiary, Trustor will execute,
acknowledge and deliver all such further instruments and assurances as Beneficiary shall
reasonably require to ratify, confirm, or perfect Beneficiary’s lien on any right, title,
interest or estate in or to the Leasehold Parcel acquired at any time hereafter.




(c) Non-Merger. No merger shall occur by reason of any acquisition
by Trustor of any additional right, title, interest or estate in or to the Leasehold Parcel
or any component thereof. Without limitation of the foregoing, unless Beneficiary shall
otherwise expressly consent in writing, which consent may be withheld by Beneficiary in its
sole and absolute discretion, the leasehold estate under the Ground Lease and any other
interest or estate in the Leasehold Parcel shall not merge but shall always remain separate
and distinct, notwithstanding any common ownership of the leasehold estate and any other
interest or estate.




(d) No Modification. Trustor shall not cause, join in, or suffer to
occur any actual or purported modification, amendment, surrender, or termination of the
Ground Lease, and Trustor shall have no right or power to modify, amend, terminate, or
surrender the Ground Lease, in each case without the prior written consent of Beneficiary,
which consent with respect to any amendment or modification of the Ground Lease may not be
unreasonably withheld by Beneficiary. Any attempted or purported modification, amendment,
surrender or termination of the Ground Lease without Beneficiary’s prior written consent
shall be null and void and of no force or effect.




(e) Performance of Ground Lease. Trustor shall fully perform as and
when due, each and all of its obligations under the Ground Lease in accordance with the
terms of the Ground Lease, and shall not cause or suffer to occur any breach or default in
any of such obligations. Trustor shall keep and maintain the Ground Lease in full force and
effect. Trustor shall exercise any option to renew or extend the Ground Lease and give
written confirmation thereof to Beneficiary within thirty (30) days after such option
becomes exercisable.




Notwithstanding that certain of Trustor’s obligations under this Deed of Trust may be
similar or identical to certain of Trustor’s obligations under the Ground Lease, all of
Trustor’s obligations under this Deed of Trust are and shall be separate from and in
addition to its obligations under the Ground Lease.




If Trustor shall have or receive notice or information that compliance with any of
Trustor’s obligations under either this Deed of Trust or the Ground Lease may constitute or
give rise to a breach or default under either one of them, then Trustor immediately shall
notify Beneficiary in writing of the same. If Beneficiary shall have or receive any such
notice or information, then Beneficiary may (but shall not be obligated to) give written
instructions to Trustor, in which case Trustor shall comply with such instructions.




(f) Notice of Default. If Trustor shall have or receive any notice
or information that any Ground Lease Default has occurred, then Trustor promptly shall
notify Beneficiary in writing of the same and promptly shall deliver to Beneficiary a true
and complete copy of each such notice. Further, Trustor immediately shall provide such
documents and information as Beneficiary shall request concerning the Ground Lease Default.




(g) Beneficiary’s Right to Cure. If any Ground Lease Default shall
occur, or if Beneficiary reasonably believes that a Ground Lease Default has occurred, or if
Ground Lessor asserts that a Ground Lease Default has occurred (whether or not Trustor
questions or denies such assertion), and has remained uncured beyond all notice and cure
periods under the Ground Lease, then Beneficiary may (but shall not be obligated to) take
any action that Beneficiary deems necessary or desirable, including, without limitation, (i)
performance or attempted performance of any of Trustor’s obligations under the Ground Lease,
(ii) curing or attempting to cure any actual or purported Ground Lease Default, (iii)
mitigating or attempting to mitigate any damages or consequences of the same, and (iv) entry
upon the Leasehold Parcel for any or all of such purposes. Upon Beneficiary’s request,
Trustor shall submit to Beneficiary satisfactory evidence of payment or performance of any
of Trustor’s obligations under the Ground Lease. Beneficiary may pay and expend such
reasonable sums of money as Beneficiary in its sole discretion deems necessary or desirable
for any such purpose, and Trustor shall pay to Beneficiary immediately upon demand all such
sums so paid or expended by Beneficiary, together with interest thereon from the date of
expenditure at the Default Rate.




(h) Acquisition of New Interests. If the Ground Lease shall be
rejected, canceled, or terminated, and if Beneficiary or its nominee thereafter or in
connection therewith shall acquire any right, title, interest or estate in or to the
Leasehold Parcel (which may include without limitation any new Lease of the Leasehold
Parcel) then Trustor shall have no right, title, interest or estate in or to such new Lease,
or the leasehold estate created by such new lease, or any other interest of Beneficiary or
its nominee in the Leasehold Parcel.




(i) Legal Action. Trustor shall not commence any action or
proceeding against Ground Lessor or affecting or potentially affecting the Ground Lease or
Trustor’s or Beneficiary’s interest therein without the prior written consent of
Beneficiary, which Beneficiary may withhold in its sole discretion. Trustor shall notify
Beneficiary promptly upon Trustor’s actual knowledge thereof, if any action or proceeding
shall be commenced between Ground Lessor and Trustor, or affecting or reasonably anticipated
to affect the Ground Lease or Trustor’s or Beneficiary’s interest therein (including,
without limitation, any case commenced by or against Ground Lessor under the Federal
Bankruptcy Code (the “Bankruptcy Code”)). Beneficiary shall have the option, exercisable
upon prior written notice from Beneficiary to Trustor, to conduct and control any such
action or proceeding with counsel of Beneficiary’s choice. Beneficiary may proceed in its
own name, and if required under applicable law in connection with such action or proceeding,
in the name of Trustor, in such action or proceeding, and Trustor shall cooperate with
Beneficiary, comply with the instructions of Beneficiary (which may include withdrawal or
exclusion of Trustor from such action or proceeding), and execute any and all powers,
authorizations, consents or other documents reasonably required by Beneficiary in connection
therewith. Neither, Trustor nor Beneficiary shall settle any such action or proceeding
without the prior written consent of the other party, which consent shall not be
unreasonably withheld, conditioned or delayed.




(j) No Assignment. Notwithstanding anything to the contrary
contained herein, this Deed of Trust shall not constitute an assignment of Trustor’s
interest under the Ground Lease, and Beneficiary shall have no liability or obligation
thereunder by reason of its acceptance of this Deed of Trust.




(k) Bankruptcy.




(i) If Ground Lessor shall reject the Ground Lease under or pursuant
to Section 365 of the Bankruptcy Code, Trustor shall not elect to treat the Ground
Lease as terminated but shall elect to remain in possession of the Leasehold Parcel
and the leasehold estate under the Ground Lease. The lien of this Deed of Trust
does and shall encumber and attach to all of Trustor’s rights and remedies at any
time arising under or pursuant to Section 365 of the Bankruptcy Code, including
without limitation, all of Trustor’s rights to remain in possession of the Leasehold
Parcel and the leasehold estate. If Ground Lessor (in the event of a bankruptcy
proceeding filed by or against any Ground Lessor) shall seek permission of the
Bankruptcy Court to sell or transfer the ground-leased property free and clear of
the Ground Lease under Section 363(f) of the Bankruptcy Code, Trustor shall (unless
otherwise directed in writing by Beneficiary) not consent to (and shall object to)
such attempted sale or transfer and shall promptly assert and pursue its right to
adequate protection of its leasehold estate under the Ground Lease, in a manner
acceptable to Beneficiary, under Section 363(e) of the Bankruptcy Code.




(ii) Trustor acknowledges and agrees that in any case commenced by or
against Trustor (or Ground Lessor) under the Bankruptcy Code, Beneficiary by reason
of the liens and rights granted under this Deed of Trust and the Loan Documents
shall have a substantial and material interest in the treatment and preservation of
Trustor’s rights and obligations under the Ground Lease, and that Trustor shall, in
any such bankruptcy case, provide to Beneficiary immediate and continuous adequate
protection of such interests, to the extent it may do so under applicable law.
Trustor and Beneficiary agree that such adequate protection shall include but shall
not necessarily be limited to the following, to the extent permissible under
applicable law:




A. Beneficiary shall be deemed a party to the Ground Lease
(but shall not have any obligations thereunder) for purposes of Sections 361
and 365 of the Bankruptcy Code, and shall have standing to appear and act as
a party in interest in relation to any matter arising out of or related to
the Ground Lease or the Leasehold Parcel.




B. Trustor shall serve Beneficiary with copies of all
notices, pleadings and other documents received by Trustor relating to or
affecting the Ground Lease or the Leasehold Parcel. Any notice, pleading or
document served by Trustor on any other party in the bankruptcy case shall
be contemporaneously served by Trustor on Beneficiary, and any notice,
pleading or document served upon or received by Trustor from any other party
in the bankruptcy case shall be served by Trustor on Beneficiary promptly
upon receipt by Trustor.




C. Upon written request of Beneficiary, Trustor shall assume
the Ground Lease, and shall take such steps as are necessary to preserve
Trustor’s right to assume the Ground Lease, including without limitation
obtaining extensions of time to assume or reject the Ground Lease under
Subsection 365(d) of the Bankruptcy Code to the extent it is applicable, and
objecting to any attempt by any Ground Lessor (in the event of a bankruptcy
proceeding filed by or against any Ground Lessor) to sell or transfer the
ground-leased property free and clear of the Ground Lease under Section 363
of the Bankruptcy Code and timely asserting and pursuing its right to
adequate protection under Section 363(e) of the Bankruptcy Code in such
event.




D. If Trustor or Ground Lessor seeks to terminate or reject
the Ground Lease or have the Ground Lease deemed terminated or rejected,
then prior to the hearing on such termination or rejection Beneficiary shall
be given no less than twenty (20) days’ notice and opportunity to elect in
lieu of such termination or rejection to have the Ground Lease assumed and
assigned to a nominee of Beneficiary. If Beneficiary shall so elect to
assume and assign the Ground Lease, then Trustor shall continue any request
to terminate or reject the Ground Lease until after the motion to assume and
assign has been heard. If Beneficiary shall not elect to assume and assign
the Ground Lease, then Beneficiary may obtain in connection with the
termination or rejection of the Ground Lease a determination that Ground
Lessor, at Beneficiary’s option, shall (1) agree to terminate the Ground
Lease and enter into a new lease with Beneficiary on the same terms and
conditions as the Ground Lease, for the remaining term of the Ground Lease,
or (2) treat the Ground Lease as breached and provide Beneficiary with the
rights to cure defaults under the Ground Lease and to assume the rights and
benefits of the Ground Lease.




Trustor shall join with and support any request by Beneficiary to grant
and approve the foregoing as necessary for adequate protection of
Beneficiary’s interests. Notwithstanding the foregoing, Beneficiary may
seek additional terms and conditions, including such economic monetary
protections as it reasonably deems appropriate to adequately protect its
interests, and any request for such additional terms or conditions shall not
delay or limit Beneficiary’s right to receive the specific elements of
adequate protection set forth herein.




Trustor hereby appoints Beneficiary as its attorney in fact to act on
behalf of Trustor in connection with all matters relating to or arising out
of the assumption, termination, or rejection of the Ground Lease, in which
the other party to the lease is a debtor in a case under the Bankruptcy
Code. This grant of power of attorney is present, unconditional,
irrevocable, durable and coupled with an interest.




Where reference is made to any code section or other law, the same
shall include any successor statute or provisions of law to the same or
substantially the same effect.




(l) Predecessors, Successors. Where reference herein is made to the
rights or obligations of Trustor or Ground Lessor under the Ground Lease, the same shall
include the rights and obligations of their successors and assigns.



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IN WITNESS WHEREOF, Trustor has executed and delivered this Deed of Trust the day and
year first above written.



	 
	NNN HEALTHCARE/OFFICE REIT TUCSON MEDICAL OFFICE, LLC, a Delaware limited

liability company

By: Grubb & Ellis Healthcare REIT Holdings, L.P., a Delaware limited

partnership, its sole member

By: Grubb & Ellis Healthcare REIT, Inc., a Maryland corporation, its

General Partner

By: /s/ Shannon K S Johnson

Name: Shannon K S Johnson

Title: Chief Financial Officer







	 	 	 	 	 
	STATE OF CALIFORNIA §







	 	 	 
	COUNTY OF ORANGE	 	§





On December 20, 2007 before me, Monica Chavez, Notary Public, personally appeared Shannon K S
Johnson, personally known to me to be the person whose name is subscribed to the within instrument
and acknowledged to me that she executed the same her authorized capacity, and that by her
signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.



	 	 	 
	WITNESS my hand and official seal.

/s/ Monica Chavez

(Signature of Notary)

(SEAL)

	 	

[Monica Chavez

Commission # 1762879

Notary Public — California

Orange County

My Comm. Expires Aug 21, 2011]






My Commission Expires:



August 21, 2011




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