EX-10.4






	 	 	 	 	 
	Prepared By/Return To:
	 	 	 	 
	Sheppard, Mullin, Richter & Hampton llp
650 Town Center Drive, 4th Floor
Costa Mesa, California 92626-1993
Attn: Kenneth D. Fox, Esquire
	 	 	 	 
	   SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE







OPEN-END MORTGAGE, ASSIGNMENT,

SECURITY AGREEMENT AND

FIXTURE FILING




by




NNN HEALTHCARE/OFFICE REIT MARKET EXCHANGE, LLC,

a Delaware limited liability company,

as Mortgagor,




in favor of




WACHOVIA FINANCIAL SERVICES, INC.,

as Mortgagee




This document serves as a Fixture Filing under the Ohio Uniform Commercial Code.




Mortgagor’s Organizational Identification Number is 4400636




1




Open-End Mortgage, Assignment, Security Agreement and Fixture Filing




This Open End Mortgage, Assignment, Security Agreement and Fixture Filing is granted as of the
27th day of September, 2007, by NNN HEALTHCARE/OFFICE REIT MARKET EXCHANGE, LLC, a
Delaware limited liability company (herein referred to as “Mortgagor”), whose address is
c/o Triple Net Properties, LLC, 1551 N. Tustin Avenue, Suite 300, Santa Ana, California 92705, to
WACHOVIA FINANCIAL SERVICES, INC. (“Mortgagee”), whose address is c/o Wachovia Bank, N.A.,
Real Estate Financial Services, General Banking Group, Mail Code: CA 6233, 15750 Alton Parkway,
Irvine, California 92618.



Recitals




Mortgagor has requested that Mortgagee make the Loan (as hereinafter defined) to Mortgagor.
As a condition precedent to making the Loan, Mortgagee has required that Mortgagor execute and
deliver this Open-End Mortgage, Assignment, Security Agreement and Fixture Filing to Mortgagee.



Grants and Agreements




Now, therefore, in order to induce Mortgagee to make the Loan to Mortgagor, Mortgagor agrees
as follows:



Article I




Definitions




As used in this Mortgage, the terms defined in the Preamble hereto shall have the respective
meanings specified therein, and the following additional terms shall have the meanings specified:



"Accessories” means all fixtures, goods which are, or are to become, fixtures,
equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and
construction materials, supplies and other articles of personal property, of every kind and
character, tangible and intangible (including software embedded therein), now owned or hereafter
acquired by Mortgagor, which are now or hereafter attached to or situated in, on or about the Land
or Improvements, or used in or necessary to the complete and proper planning, development, use,
occupancy or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for
use or installation in or on the Land or Improvements, and all Additions to the foregoing, all of
which are hereby declared to be permanent accessions to the Land.



"Accelerating Transfer” means any Transfer of all or any part of the Property, the
legal or beneficial interest therein, or any membership interest in Mortgagor in violation of
Section 5.2 of this Mortgage.



"Accounts” means all accounts of Mortgagor, within the meaning of the Uniform
Commercial Code of the State, derived from or arising out of the use, occupancy or enjoyment of the
Property or for services rendered therein or thereon.



"Additions” means any and all alterations, additions, accessions and improvements to
property, substitutions therefor, and renewals and replacements thereof.



"Claim” means any liability, suit, action, claim, demand, loss, expense, penalty,
fine, judgment or other cost of any kind or nature whatsoever, including fees, costs and expenses
of attorneys, consultants, contractors and experts.



"Condemnation” means any taking of title to, use of, or any other interest in the
Property under the exercise of the power of condemnation or eminent domain, whether temporarily or
permanently, by any Governmental Authority or by any other Person acting under or for the benefit
of a Governmental Authority.



"Condemnation Awards” means any and all judgments, awards of damages (including
severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in
lieu of Condemnation, or other compensation heretofore or hereafter made, including interest
thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation
or threatened Condemnation.



"Contract of Sale” means any contract for the sale of all or any part of the Property
or any interest therein, whether now in existence or hereafter executed.



"Mortgage” means this Open-End Mortgage, Assignment, Security Agreement and Fixture
Filing, as the same may from time to time be extended, amended, restated, supplemented or otherwise
modified.



"Mortgagee” means Mortgagee and its successors and assigns.



"Default” means an event or circumstance which, with the giving of Notice or lapse of
time, or both, would constitute an Event of Default under the provisions of this Mortgage.



"Design and Development Documents” means, collectively, (a) all contracts for services
to be rendered, work to be performed or materials to be supplied in the development of the Land or
the construction or repair of Improvements, if any; (b) all plans, drawings and specifications for
the development of the Land or the construction or repair of Improvements, if any; (c) all permits,
licenses, variances and other rights or approvals issued by or obtained from any Governmental
Authority or other Person in connection with the development of the Land or the construction or
repair of Improvements, if any; and (d) all amendments of or supplements to any of the foregoing.



"Encumbrance” means any Lien, easement, right of way, roadway (public or private),
condition, covenant or restriction (including any condition, covenant or restriction imposed in
connection with any condominium development or cooperative housing development), Lease or other
matter of any nature that would affect title to the Property.



"Environmental Agreement” means the Environmental Indemnity Agreement of even date
herewith by and between Mortgagor and Guarantor in favor of Mortgagee pertaining to the Property,
as the same may from time to time be extended, amended, restated, supplemented or otherwise
modified. The Environmental Agreement is one of the Loan Documents, but this Mortgage does not
secure the obligations of Mortgagor or Guarantor under the Environmental Agreement.



"Event of Default” means an event or circumstance specified in Article VI and
the continuance of such event or circumstance beyond the applicable grace and/or cure periods
therefor, if any, set forth in Article VI.



"Expenses” means all fees, charges, costs and expenses of any nature whatsoever
incurred at any time and from time to time (whether before or after an Event of Default) by
Mortgagee in making, funding, administering or modifying the Loan, in negotiating or entering into
any “workout” of the Loan, or in exercising or enforcing any rights, powers and remedies provided
in this Mortgage or any of the other Loan Documents, including attorneys’ fees, court costs,
receiver’s fees, management fees and costs incurred in the repair, maintenance and operation of, or
taking possession of, or selling, the Property.



"Governmental Authority” means any governmental or quasi-governmental entity,
including any court, department, commission, board, bureau, agency, administration, service,
district or other instrumentality of any governmental entity.



"Ground Lease” means that certain Parking Space Lease Agreement (JDS Parking Area)
between Ground Lessor, as lessor, and Mortgagor, as lessee, dated as of August 15, 2007.



"Ground Lessor” means 4MX Partners, LLC, an Ohio limited liability company.



"Guarantor” means NNN Healthcare/Office REIT, Inc., a Maryland corporation.



"Improvements” means all buildings, structures and other improvements now or hereafter
existing, erected or placed on the Land, together with any off-site improvements owned by Mortgagor
in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the
Land.



"Insurance Proceeds” means the insurance claims under and the proceeds of any and all
policies of insurance covering the Property or any part thereof, including all returned and
unearned premiums with respect to any insurance relating to such Property, in each case whether now
or hereafter existing or arising.



"Land” means the real property described in Exhibit A attached hereto and made a part
hereof.



"Laws” means all federal, state and local laws, statutes, rules, ordinances,
regulations, codes, licenses, authorizations, decisions, injunctions, interpretations, orders or
decrees of any court or other Governmental Authority having jurisdiction as may be in effect from
time to time.



"Leases” means all leases, license agreements and other occupancy or use agreements
(whether oral or written), now or hereafter existing, which cover or relate to the Property or any
part thereof (including but not limited to all leasehold estate, right, title and interest of
Grantor in and to the Ground Lease, and any sub-ground leases), together with all options therefor,
amendments thereto and renewals, modifications and guaranties thereof, including any cash or
security deposited under the Leases to secure performance by the tenants of their obligations under
the Leases, whether such cash or security is to be held until the expiration of the terms of the
Leases or applied to one or more of the installments of rent coming due thereunder.



"Letter of Credit” means any letter of credit issued by Mortgagee for the account of
Mortgagor or its nominee in connection with the Property, together with any and all extensions,
renewals or modifications thereof, substitutions therefor or replacements thereof.



"Lien” means any mortgage, Mortgage, pledge, security interest, assignment, judgment,
lien or charge of any kind, including any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of, or agreement to give, any financing statement under
the Uniform Commercial Code of any jurisdiction.



"Loan” means the loan from Mortgagee to Mortgagor, the repayment obligations in
connection with which are evidenced by the Note.



"Loan Agreement” means the Loan Agreement of even date herewith between Mortgagor and
Mortgagee which sets forth, among other things, the terms and conditions upon which the proceeds of
the Loan will be disbursed, as the same may from time to time be extended, amended, restated,
supplemented or otherwise modified.



"Loan Documents” means this Mortgage, the Note, the Repayment Guaranty, the
Environmental Agreement, the Loan Agreement, any application or reimbursement agreement executed in
connection with any Letter of Credit, and any and all other documents (other than any Swap
Contracts) which Mortgagor, Guarantor or any other party or parties have executed and delivered, or
may hereafter execute and deliver, to evidence, secure or guarantee the Obligations, or any part
thereof, as the same may from time to time be extended, amended, restated, supplemented or
otherwise modified.



"Note” means the Promissory Note of even date herewith in the original principal
amount of Fourteen Million Five Hundred Thousand and No/100 Dollars ($14,500,000.00) made by
Mortgagor to the order of Mortgagee, as the same may from time to time be extended, amended,
restated, supplemented or otherwise modified.



"Notice” means a notice, request, consent, demand or other communication given in
accordance with the provisions of Section 10.8 of this Mortgage.



"Obligations” means all present and future debts, obligations and liabilities of
Mortgagor to Mortgagee arising pursuant to, and/or on account of, the provisions of this Mortgage,
the Note or any of the other Loan Documents, including the obligations: (a) to pay all principal,
interest, late charges, prepayment premiums (if any) and other amounts due at any time under the
Note; (b) to pay all Expenses, indemnification payments, fees and other amounts due at any time
under this Mortgage or any of the other Loan Documents, together with interest thereon as herein or
therein provided; (c) to pay and perform all obligations of Mortgagor under any Swap Contract;
(d) to perform, observe and comply with all of the other terms, covenants and conditions, expressed
or implied, which Mortgagor is required to perform, observe or comply with pursuant to this
Mortgage or any of the other Loan Documents; and (e) to pay and perform all future advances and
other obligations that Mortgagor or any successor in ownership of all or part of the Property may
agree to pay and/or perform (whether as principal, surety or guarantor) for the benefit of
Mortgagee, when a writing evidences the parties’ agreement that the advance or obligation be
secured by this Mortgage; excluding, however, the debts, obligations and
liabilities of Mortgagor under the Environmental Agreement. This Mortgage does not secure the
Environmental Agreement, the Repayment Guaranty or any other Loan Document that is expressly stated
to be unsecured.



"Permitted Encumbrances” means (a) any matters set forth in any policy of title
insurance issued to Mortgagee and insuring Mortgagee’s interest in the Property which are
acceptable to Mortgagee as of the date hereof, (b) the Liens and interests of this Mortgage,
(c) that certain Cellular Tower Easement Agreement dated as of August 15, 2007, between Mortgagor
and Schmidt Development Company, Ltd., and (d) any other Encumbrance that Mortgagee shall expressly
approve in writing in its sole and absolute discretion.



"Person” means an individual, a corporation, a partnership, a joint venture, a limited
liability company, a trust, an unincorporated association, any Governmental Authority or any other
entity.



"Personalty” means all personal property of any kind or nature whatsoever, whether
tangible or intangible and whether now owned or hereafter acquired, in which Mortgagor now has or
hereafter acquires an interest and which is used in the construction of, or is placed upon, or is
derived from or used in connection with the maintenance, use, occupancy or enjoyment of, the
Property, including (a) the Accessories; (b) the Accounts; (c) all franchise, license, management
or other agreements with respect to the operation of the Real Property or the business conducted
therein (provided all of such agreements shall be subordinate to this Mortgage, and Mortgagee shall
have no responsibility for the performance of Mortgagor’s obligations thereunder) and all general
intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols
but excluding all of Mortgagor’s rights to the payment of money to Mortgagor under any Swap
Contracts) related to the Real Property or the operation thereof; (d) all sewer and water taps,
appurtenant water stock or water rights, allocations and agreements for utilities, bonds, letters
of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments,
Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes,
assessments, charges or deposits paid to any Governmental Authority related to the Real Property or
the operation thereof; (e) all insurance policies held by Mortgagor with respect to the Property or
Mortgagor’s operation thereof; and (f) all money, instruments and documents (whether tangible or
electronic) arising from or by virtue of any transactions related to the Property, and all deposits
and deposit accounts of Mortgagor with Mortgagee related to the Property, including any such
deposit account from which Mortgagor may from time to time authorize Mortgagee to debit and/or
credit payments due with respect to the Loan; together with all Additions to and Proceeds of all of
the foregoing. For purposes of clarification, “Personalty”, and the security interests granted
hereunder, do not include any of Mortgagor’s rights to the payment of money from Mortgagee (or its
Affiliates) under any Swap Contracts.



"Proceeds,” when used with respect to any of the Property, means all proceeds of such
Property, including all Insurance Proceeds and all other proceeds within the meaning of that term
as defined in the Uniform Commercial Code of the State.



"Property” means the Real Property and the Personalty and all other rights, interests
and benefits of every kind and character which Mortgagor now has or hereafter acquires in, to or
for the benefit of the Real Property and/or the Personalty and all other property and rights used
or useful in connection therewith, including all Leases, all Rents, all Condemnation Awards, all
Proceeds, and all of Mortgagor’s right, title and interest in and to all Design and Development
Documents, all Contracts of Sale and all Refinancing Commitments.



"Property Assessments” means all Taxes, payments in lieu of taxes, water rents, sewer
rents, assessments, condominium and owner’s association assessments and charges, maintenance
charges and other governmental or municipal or public or private dues, charges and levies and any
Liens (including federal tax liens) which are or may be levied, imposed or assessed upon the
Property or any part thereof, or upon any Leases or any Rents, whether levied directly or
indirectly or as excise taxes, as income taxes, or otherwise.



"Real Property” means the Land and Improvements, together with (a) all estates, title
interests, title reversion rights, remainders, increases, issues, profits, rights-of-way or uses,
additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water
courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments,
appurtenances, easements, rights of ingress or egress, parking rights, timber, crops, mineral
interests and other rights, now or hereafter owned by Mortgagor and belonging or appertaining to
the Land or Improvements, including, without limitation, the leasehold estate created by the Ground
Lease, all options and rights now existing hereafter or arising thereunder, all of Grantor’s right
to waive, excuse, release or consent to any waiver, excuse or release of any provision of the
Ground Lease or to consent to subordination of the Ground Lease to any mortgage or estate superior
to the Ground Lease to any other estate and all deposits made by Grantor pursuant to the Ground
Lease; (b) all Claims whatsoever of Mortgagor with respect to the Land or Improvements, either in
law or in equity, in possession or in expectancy; (c) all estate, right, title and interest of
Mortgagor in and to all streets, roads and public places, opened or proposed, now or hereafter
adjoining or appertaining to the Land or Improvements; and (d) all options to purchase the Land or
Improvements, or any portion thereof or interest therein, and any greater estate in the Land or
Improvements, and all Additions to and Proceeds of the foregoing.



"Refinancing Commitment” means any commitment from or other agreement with any Person
providing for the financing of the Property, some or all of the proceeds of which are intended to
be used for the repayment of all or a portion of the Loan.



"Rents” means all of the rents, royalties, issues, profits, revenues, earnings, income
and other benefits of the Property, or arising from the use or enjoyment of the Property, including
all such amounts paid under or arising from any of the Leases and all fees, charges, accounts or
other payments for the use or occupancy of rooms or other public facilities within the Real
Property.



"Repayment Guaranty” means the Repayment Guaranty of even date herewith executed by
Guarantor for the benefit of Lender, as the same may from time to time be extended, amended,
restated, supplemented or otherwise modified.



"State” means the state in which the Land is located.



"Swap Contract” means any agreement, whether or not in writing, relating to any
transaction that is a rate swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap or option, bond, note or bill option, interest rate option,
forward foreign exchange transaction, interest cap, collar or floor transaction, currency swap,
cross-currency rate swap, swap option, currency option or any other similar transaction (including
any option to enter into the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any form of master agreement published by the International
Swaps and Derivatives Association, Inc., or any other master agreement, entered into between
Mortgagee (or its affiliate) and Mortgagor (or its affiliate) in connection with the Loan, together
with any related schedules and confirmations, as amended, supplemented, superseded or replaced from
time to time, relating to or governing any or all of the foregoing.



"Taxes” means all taxes and assessments, whether general or special, ordinary or
extraordinary, or foreseen or unforeseen, which at any time may be assessed, levied, confirmed or
imposed by any Governmental Authority or any community facilities or other private district on
Mortgagor or on any of its properties or assets or any part thereof or in respect of any of its
franchises, businesses, income or profits.



"Transfer” means any direct or indirect sale, assignment, conveyance or transfer,
including any Contract of Sale and any other contract or agreement to sell, assign, convey or
transfer, whether made voluntarily or by operation of Law or otherwise, and whether made with or
without consideration.



Article II




Granting Clauses; Condition of Grant




Section 2.1 Conveyances and Security Interests.



In order to secure the prompt payment and performance of the Obligations, Mortgagor
(a) irrevocably and unconditionally grants, conveys, transfers and assigns to Mortgagee, all
estate, right, title and interest that Mortgagor now has or may later acquire in and to the Ground
Lease and the Real Property, including without limitation any options to purchase or rights of
first offer/refusal under the Ground Lease; (b) grants to Mortgagee a security interest in the
Personalty; (c) assigns to Mortgagee, and grants to Mortgagee a security interest in, all
Condemnation Awards and all Insurance Proceeds; and (d) assigns to Mortgagee , and grants to
Mortgagee a security interest in, all of Mortgagor’s right, title and interest in, but not any of
Mortgagor’s obligations or liabilities under, all Design and Development Documents, all Contracts
of Sale and all Refinancing Commitments. All Persons who may have or acquire an interest in all or
any part of the Property will be deemed to have notice of, and will be bound by, the terms of the
Obligations and each other agreement or instrument made or entered into in connection with each of
the Obligations. Such terms include any provisions in the Note, the Loan Agreement or any Swap
Contract which provide that the interest rate on one or more of the Obligations may vary from time
to time. Unless Lender otherwise agrees in writing, Mortgagor’s obligations under any Swap
Contract shall continue to be secured by this Mortgage notwithstanding that Lender has sold,
participated, syndicated or otherwise transferred or released some or all of its interest in the
Loan to another person.



Section 2.2 Absolute Assignment of Leases and Rents.



In consideration of the making of the Loan by Mortgagee to Mortgagor and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Mortgagor
absolutely and unconditionally assigns the Leases and Rents to Mortgagee. This assignment is, and
is intended to be, an unconditional, absolute and present assignment from Mortgagor to Mortgagee of
all of Mortgagor’s right, title and interest in and to the Leases and the Rents and not an
assignment in the nature of a pledge of the Leases and Rents or the mere grant of a security
interest therein. So long as no Event of Default shall exist, however, and so long as Mortgagor is
not in default in the performance of any obligation, covenant or agreement contained in the Leases,
Mortgagor shall have a license (which license shall terminate automatically and without notice upon
the occurrence of an Event of Default or a default by Mortgagor under the Leases) to collect, but
not prior to accrual, all Rents. Mortgagor agrees to collect and hold all Rents in trust for
Mortgagee and to use the Rents for the payment of the cost of operating and maintaining the
Property and for the payment of the other Obligations before using the Rents for any other purpose.



Section 2.3 Security Agreement, Fixture Filing and Financing Statement.



This Mortgage creates a security interest in the Personalty, and, to the extent the Personalty
is not real property, this Mortgage constitutes a security agreement from Mortgagor to Mortgagee
under the Uniform Commercial Code of the State. In addition to all of its other rights under this
Mortgage and otherwise, Mortgagee shall have all of the rights of a secured party under the Uniform
Commercial Code of the State, as in effect from time to time, or under the Uniform Commercial Code
in force from time to time in any other state to the extent the same is applicable Law. This
Mortgage is to be effective as a financing statement filed as a fixture filing (as defined in
Section 1309.102(A)(40) of the Ohio Revised Code) for the purposes of the Uniform Commercial Code
as adopted and in effect on the date hereof in the State of Ohio (the “State”). This
Mortgage covers all equipment, all inventory, and all other goods in which Mortgagor now has or
hereafter acquires any rights or any power to transfer rights and that are or are to become
fixtures related to the Land. This Mortgage is to be filed in the real property records of each
county within the State in which all or any part of the Land is located. Mortgagor is the record
owner of the Land. The information provided in this Section 2.3 is provided in order that a record
of this Mortgage so filed shall comply with the requirements of Section 1309.502(C) the Ohio
Revised Code for a record of a mortgage to be effective, from the date of recording, as a financing
statement filed as fixture filing as so defined, and in order that, among other things, filing will
occur for purposes of Section 1309.516(B) of the Ohio Revised Code if and to the extent that such
Section may be applicable to a record of a mortgage. Mortgagee is the “Secured Party” of record
and its name and mailing address are provided in the preamble of this Mortgage. Mortgagor is the
“Debtor” and its names and mailing addressed are provided in the preamble of this Mortgage.
Mortgagor is a limited liability company organized under the laws of the State of Delaware, and the
organizational identification number of Mortgagor is 4400636. Mortgagor hereby irrevocably
authorizes Mortgagee at any time and from time to time to file any initial financing statements,
amendments thereto and continuation statements as authorized by applicable Law, reasonably required
by Mortgagee to establish or maintain the validity, perfection and priority of the security
interests granted in this Mortgage. The foregoing authorization includes Mortgagor’s irrevocable
authorization for Mortgagee at any time and from time to time to file any initial financing
statements and amendments thereto that indicate the Personalty (a) as “all assets” of Mortgagor or
words of similar effect, regardless of whether any particular asset comprised in the Personalty
falls within the scope of the Uniform Commercial Code of the State or the jurisdiction where the
initial financing statement or amendment is filed, or (b) as being of an equal or lesser scope or
with greater detail; provided that in either case, such description is limited to assets used on or
in connection with the Property.



Section 2.4 Release of Mortgage and Termination of Assignments and Financing
Statements.



If and when Mortgagor has paid and performed all of the Obligations, and no further advances
are to be made under the Loan Agreement and all Swap Contracts have been terminated, Mortgagee will
provide a release of the Property from the lien of this Mortgage and termination statements for
filed financing statements, if any, to Mortgagor. Mortgagor shall be responsible for the
recordation of such release and the payment of any recording and filing costs. Upon the recording
of such release and the filing of such termination statements, the absolute assignments set forth
in Section 2.2 shall automatically terminate and become null and void. Partial releases of
the Property from the lien of this Mortgage shall be made on the terms and subject to the
conditions of the Loan Agreement. No partial release shall be sought, requested or required if any
Event of Default has occurred which has not been cured.



Article III




Representations and Warranties




	 	 	 
	Mortgagor makes the following representations and warranties to Mortgagee:

	Section 3.1

	 	Title to Real Property.
	
 
	 	 






Mortgagor (a) owns fee simple title to the Real Property (other than the interest created by
the Ground Lease for which Mortgagor has a leasehold right as a tenant), (b) owns all of the
beneficial and equitable interest in and to the Real Property, and (c) is lawfully seized and
possessed of the Real Property. Mortgagor has the right and authority to convey a security
interest in the Real Property and does hereby convey a security interest in the Real Property. The
Real Property is subject to no Encumbrances other than the Permitted Encumbrances.



Section 3.2 Title to Other Property.



Mortgagor has good title to the Personalty, and the Personalty is not subject to any
Encumbrance other than the Permitted Encumbrances. None of the Leases, Rents, Design and
Development Documents, Contracts of Sale or Refinancing Commitments are subject to any Encumbrance
other than the Permitted Encumbrances.



Section 3.3 Property Assessments.



To Borrower’s knowledge, the Real Property is assessed for purposes of Property Assessments as
a separate and distinct parcel from any other property, such that the Real Property is not subject
to the Lien of any Property Assessments levied or assessed against any property other than the Real
Property.



Section 3.4 Independence of the Real Property.



To Borrower’s knowledge, no buildings or other improvements on property not covered by this
Mortgage rely on the Real Property or any interest therein to fulfill any requirement of any
Governmental Authority for the existence of such property, building or improvements; and none of
the Real Property relies, or will rely, on any property not covered by this Mortgage or any
interest therein to fulfill any requirement of any Governmental Authority. To Borrower’s
knowledge, the Real Property has been properly subdivided from all other property in accordance
with the requirements of any applicable Governmental Authorities.



Section 3.5 Existing Improvements.



The existing Improvements, if any, were constructed, and are being used and maintained, in
accordance with all applicable Laws, including zoning Laws.



Section 3.6 Leases and Tenants.



The Leases are valid and are in full force and effect, and Mortgagor is not in default under
any of the terms thereof. Except as expressly permitted in the Loan Agreement, Mortgagor has not
accepted any Rents in advance of the time the same became due under the Leases and has not
forgiven, compromised or discounted any of the Rents. Mortgagor has title to and the right to
assign the Leases and Rents to Mortgagee, and no other assignment of the Leases or Rents has been
granted. To the best of Mortgagor’s knowledge and belief, no tenant or tenants occupying,
individually or in the aggregate, more than five percent (5%) of the net rentable area of the
Improvements are in default under their Lease(s) or are the subject of any bankruptcy, insolvency
or similar proceeding.



Article IV




Affirmative Covenants




Section 4.1 Obligations.



Mortgagor agrees to promptly pay and perform all of the Obligations, time being of the essence
in each case.



Section 4.2 Property Assessments; Documentary Taxes.



Mortgagor (a) will promptly pay in full and discharge all Property Assessments, and (b) will
furnish to Mortgagee, upon demand, the receipted bills for such Property Assessments prior to the
day upon which the same shall become delinquent. Property Assessments shall be considered
delinquent as of the first day any interest or penalty commences to accrue thereon. Mortgagor will
promptly pay all stamp, documentary, recordation, transfer and intangible taxes and all other taxes
that may from time to time be required to be paid with respect to the Loan, the Note, this Mortgage
or any of the other Loan Documents.



Section 4.3 Permitted Contests.



Mortgagor shall not be required to pay any of the Property Assessments, or to comply with any
Law, so long as Mortgagor shall in good faith, and at its cost and expense, contest the amount or
validity thereof, or take other appropriate action with respect thereto, in good faith and in an
appropriate manner or by appropriate proceedings; provided that (a) such proceedings operate to
prevent the collection of, or other realization upon, such Property Assessments or enforcement of
the Law so contested, (b) there will be no sale, forfeiture or loss of the Property during the
contest, (c) Mortgagee is not subjected to any Claim as a result of such contest, and (d) Mortgagor
provides assurances satisfactory to Mortgagee (including the establishment of an appropriate
reserve account with Mortgagee) of its ability to pay such Property Assessments or comply with such
Law in the event Mortgagor is unsuccessful in its contest. Each such contest shall be promptly
prosecuted to final conclusion or settlement, and Mortgagor shall indemnify and save Mortgagee
harmless against all Claims in connection therewith. Promptly after the settlement or conclusion
of such contest or action, Mortgagor shall comply with such Law and/or pay and discharge the
amounts which shall be levied, assessed or imposed or determined to be payable, together with all
penalties, fines, interests, costs and expenses in connection therewith.



Section 4.4 Compliance with Laws.



Mortgagor will comply with and not violate, and cause to be complied with and not violated,
all present and future Laws applicable to the Property and its use and operation.



Section 4.5 Maintenance and Repair of the Property.



Mortgagor, at Mortgagor’s sole expense, will (a) keep and maintain Improvements and
Accessories in good condition, working order and repair, and (b) make all necessary or appropriate
repairs and Additions to Improvements and Accessories, so that each part of the Improvements and
all of the Accessories shall at all times be in good condition and fit and proper for the
respective purposes for which they were originally intended, erected, or installed.



Section 4.6 Additions to Security.



All right, title and interest of Mortgagor in and to all Improvements and Additions hereafter
constructed or placed on the Property and in and to any Accessories hereafter acquired shall,
without any further Mortgage, conveyance, assignment or other act by Mortgagor, become subject to
the Lien of this Mortgage as fully and completely, and with the same effect, as though now owned by
Mortgagor and specifically described in the granting clauses hereof. Mortgagor agrees, however, to
execute and deliver to Mortgagee such further documents as may be required by the terms of the Loan
Agreement and the other Loan Documents.



Section 4.7 Subrogation.



To the extent permitted by Law, Mortgagee shall be subrogated, notwithstanding its release of
record, to any Lien now or hereafter existing on the Property to the extent that such Lien is paid
or discharged by Mortgagee whether or not from the proceeds of the Loan. This Section shall not be
deemed or construed, however, to obligate Mortgagee to pay or discharge any Lien.



Section 4.8 Leases.



(a) Except as expressly permitted in the Loan Agreement, Mortgagor shall not enter into any
Material Lease (as defined in the Loan Agreement) with respect to all or any portion of the
Property without the prior written consent of Mortgagee.



(b) Mortgagee shall not be obligated to perform or discharge any obligation of Mortgagor under
any Lease. The assignment of Leases provided for in this Mortgage in no manner places on Mortgagee
any responsibility for (i) the control, care, management or repair of the Property, (ii) the
carrying out of any of the terms and conditions of the Leases, (iii) any waste committed on the
Property, or (iv) any dangerous or defective condition on the Property (whether known or unknown).



(c) No approval of any Lease by Mortgagee shall be for any purpose other than to protect
Mortgagee’s security and to preserve Mortgagee’s rights under the Loan Documents, and no such
approval shall result in a waiver of a Default or Event of Default.



Article V




Negative Covenants




Section 5.1 Encumbrances.



Mortgagor will not permit any of the Property to become subject to any Encumbrance other than
the Permitted Encumbrances. Within thirty (30) days after the filing of any mechanic’s lien or
other Lien or Encumbrance against the Property, Mortgagor will promptly discharge the same by
payment or filing a bond or otherwise as permitted by Law. So long as Mortgagee’s security has
been protected by the filing of a bond or otherwise in a manner satisfactory to Mortgagee in its
sole and absolute discretion, Mortgagor shall have the right to contest in good faith any Claim,
Lien or Encumbrance, provided that Mortgagor does so diligently and without prejudice to Mortgagee
or delay in completing construction of the Improvements. Mortgagor shall give Mortgagee Notice of
any default under any Lien and Notice of any foreclosure or threat of foreclosure with respect to
any of the Property.



Section 5.2 Transfer of the Property.



Except for the transfer of the Telecommunications Parcel (as defined in the Loan Agreement) in
accordance with Section 13.1 of the Loan Agreement, Mortgagor will not Transfer, or contract to
Transfer, all or any part of the Property or any legal or beneficial interest therein (except for
certain Transfers of the Accessories expressly permitted in this Mortgage). The Transfer of more
than 10% of the membership interests in Mortgagor (whether in one or more transactions during the
term of the Loans) shall be deemed to be a prohibited Transfer of the Property. Notwithstanding
the foregoing, no transfer of shares of stock in NNN Healthcare/Office REIT, Inc. shall be
prohibited or shall constitute a Default or Event of Default under this Mortgage.



Section 5.3 Removal, Demolition or Alteration of Accessories and Improvements.



Except to the extent permitted by the following sentence, no Improvements or Accessories shall
be removed, demolished or materially altered without the prior written consent of Mortgagee.
Mortgagor may remove and dispose of, free from the Lien of this Mortgage, such Accessories as from
time to time become worn out or obsolete, provided that, either (a) Borrower reasonably determines
that such Accessories are not necessary for the proper ownership or operation of the Property,
(b) at the time of, or prior to, such removal, any such Accessories are replaced with other
Accessories which are free from Liens other than Permitted Encumbrances and have a value at least
equal to that of the replaced Accessories (and by such removal and replacement Mortgagor shall be
deemed to have subjected such replacement Accessories to the Lien of this Mortgage), or (c) so long
as a prepayment may be made without the imposition of any premium pursuant to the Note, such
Accessories are sold at fair market value for cash and the net cash proceeds received from such
disposition are paid over promptly to Mortgagee to be applied to the prepayment of the principal of
the Loan.



Section 5.4 Additional Improvements.



Mortgagor will not construct any Improvements other than those presently on the Land and those
described in the Loan Agreement without the prior written consent of Mortgagee. Mortgagor will
complete and pay for, within a reasonable time, any Improvements which Mortgagor is permitted to
construct on the Land. Mortgagor will construct and erect any permitted Improvements (a) strictly
in accordance with all applicable Laws and any private restrictive covenants, (b) entirely on lots
or parcels of the Land, (c) so as not to encroach upon any easement or right-of-way or upon the
land of others, and (d) wholly within any building restriction and setback lines applicable to the
Land.



Section 5.5 Restrictive Covenants, Zoning, etc.



Without the prior written consent of Mortgagee, Mortgagor will not initiate, join in, or
consent to any change in, any restrictive covenant, easement, zoning ordinance, or other public or
private restrictions limiting or defining the uses which may be made of the Property. Mortgagor
(a) will promptly perform and observe, and cause to be performed and observed, all of the terms and
conditions of all agreements affecting the Property, and (b) will do or cause to be done all things
necessary to preserve intact and unimpaired any and all easements, appurtenances and other
interests and rights in favor of, or constituting any portion of, the Property.



Article VI




Events of Default




The occurrence or happening, from time to time, of any one or more of the following shall
constitute an Event of Default under this Mortgage:



Section 6.1 Payment Obligations.



Mortgagor fails to pay any of the Obligations when due, whether on the scheduled due date or
upon acceleration, maturity or otherwise, subject to applicable cure periods.



Section 6.2 Transfers.



Except for the transfer of the Telecommunications Parcel (as defined in the Loan Agreement) in
accordance with Section 13.1 of the Loan Agreement, Mortgagor Transfers, or contracts to Transfer,
all or any part of the Property or any legal or beneficial interest therein (except for Transfers
of the Accessories expressly permitted under this Mortgage). The Transfer of more than 10% of the
membership interests in Mortgagor (whether in one or more transactions during the term of the
Loans) shall be deemed to be a prohibited Transfer of the Property. Notwithstanding the foregoing,
no transfer of shares of stock in NNN Healthcare/Office REIT, Inc. shall be prohibited or shall
constitute a Default or Event of Default under this Mortgage.



Section 6.3 Other Obligations.



Mortgagor fails to promptly perform or comply with any of the Obligations set forth in this
Mortgage (other than those expressly described in other Sections of this Article VI), and
such failure continues uncured for a period of thirty (30) days after Notice from Mortgagee to
Mortgagor; provided, however, that if such default is susceptible of cure but such cure cannot be
accomplished with reasonable diligence within said period of time, and if Mortgagor commences to
cure such default promptly after receipt of notice thereof from Mortgagee, and thereafter
prosecutes the curing of such default with reasonable diligence, such period of time shall be
extended for such period of time as may be necessary to cure such default with reasonable
diligence, but not to exceed an additional sixty (60) days.



Section 6.4 Event of Default Under Other Loan Documents.



An Event of Default (as defined therein) occurs under the Note or the Loan Agreement, or
Borrower or Guarantor fails to promptly pay, perform, observe or comply with any obligation or
agreement contained in any of the other Loan Documents (within any applicable grace or cure
period).



Section 6.5 Default Under Other Lien Documents.



A default by Borrower occurs under any other mortgage, deed of trust or security agreement
covering the Property, including any Permitted Encumbrances.



Section 6.6 Execution; Attachment.



Any execution or attachment is levied against any of the Property, and such execution or
attachment is not set aside, discharged or stayed within sixty (60) days after the same is levied.



Article VII




Rights and Remedies




Upon the happening of and during the continuance of any Event of Default, Mortgagee shall have
the right, in addition to any other rights or remedies available to Mortgagee under any of the Loan
Documents or applicable Law, to exercise any one or more of the following rights, powers or
remedies:



Section 7.1 Acceleration.



Mortgagee may accelerate all Obligations under the Loan Documents (except as provided below)
whereupon such Obligations shall become immediately due and payable, without notice of default,
notice of acceleration or intention to accelerate, presentment or demand for payment, protest,
notice of protest, notice of nonpayment or dishonor, or notices or demands of any kind or character
(all of which are hereby waived by Mortgagor); provided that the foregoing provisions of this
Section 7.1 shall not be applicable to the Swap Contracts, and any acceleration of the obligations
thereunder or exercise of other remedies thereunder shall be governed by the terms of the Swap
Contracts.



Section 7.2 Foreclosure.



Mortgagee shall have all of the rights and may exercise all of the powers set forth in
applicable Law of the State. Mortgagee may sell the Property in its entirety or in parcels, and by
one or by several sales, as deemed appropriate by Mortgagee in its sole and absolute discretion.
If Mortgagee chooses to have more than one foreclosure sale, Mortgagee may cause the foreclosure
sales to be held simultaneously or successively, on the same day, or on such different days and at
such different times as Mortgagee may elect. Before any foreclosure sale, Mortgagee shall give
such notice of default and election to sell as may be required by Law. After the lapse of such
time as may then be required by Law following the recordation of such notice of default, and notice
of sale having been given as then required by Law, Mortgagee shall sell the property being sold at
a public auction to be held at the time and place specified in the notice of sale. Mortgagee shall
have no obligation to make demand on Mortgagor before any foreclosure sale. From time to time in
accordance with then-applicable Law, Mortgagee may postpone any foreclosure sale by public
announcement at the time and place noticed for that sale. At any foreclosure sale, Mortgagee shall
sell to the highest bidder at public auction for cash in lawful money of the United States (or cash
equivalents acceptable to Mortgagee to the extent permitted by applicable Law), payable at the time
of sale. Mortgagee shall execute and deliver to the purchaser(s) a deed or deeds conveying the
property being sold without any covenant or warranty whatsoever, expressed or implied. The
recitals in any such deed of any matters of fact, including any facts bearing upon the regularity
or validity of any foreclosure sale, shall be conclusive proof of their truthfulness. Any such
deed shall be conclusive against all Persons as to the facts recited therein. Any Person,
including Mortgagee, may purchase at such sale, and any bid by Mortgagee may be, in whole or in
part, in the form of cancellation of all or any part of the Obligations. Notwithstanding the
provisions of this Section 7.2 to the contrary, any foreclosure sale of all or any portion of the
lien of this Mortgage shall be a judicial foreclosure in accordance with the applicable
requirements of Ohio law, as from time to time amended.



Section 7.3 Judicial Action.



Mortgagee shall have the right to bring an action in any court of competent jurisdiction for
foreclosure of this Mortgage and a deficiency judgment as provided by Law, or for specific
enforcement of any of the covenants or agreements of this Mortgage.



Section 7.4 Collection of Rents.



Upon the occurrence of an Event of Default, the license granted to Mortgagor to collect the
Rents shall be automatically and immediately revoked, without further notice to or demand upon
Mortgagor. Mortgagee may, but shall not be obligated to, perform any or all obligations of the
landlord under any or all of the Leases, and Mortgagee may, but shall not be obligated to, exercise
and enforce any or all of Mortgagor’s rights under the Leases. Without limiting the generality of
the foregoing, Mortgagee may notify the tenants under the Leases that all Rents are to be paid to
Mortgagee, and following such notice all Rents shall be paid directly to Mortgagee and not to
Mortgagor or any other Person other than as directed by Mortgagee, it being understood that a
demand by Mortgagee on any tenant under the Leases for the payment of Rent shall be sufficient to
warrant payment by such tenant of Rent to Mortgagee without the necessity of further consent by
Mortgagor. Mortgagor hereby irrevocably authorizes and directs the tenants under the Leases to pay
all Rents to Mortgagee instead of to Mortgagor, upon receipt of written notice from Mortgagee,
without the necessity of any inquiry of Mortgagor and without the necessity of determining the
existence or non-existence of an Event of Default. Mortgagor hereby appoints Mortgagee as
Mortgagor’s attorney-in-fact with full power of substitution, which appointment shall take effect
upon the occurrence of an Event of Default and is coupled with an interest and is irrevocable prior
to the full and final payment and performance of the Obligations, in Mortgagor’s name or in
Mortgagee’s name: (a) to endorse all checks and other instruments received in payment of Rents and
to deposit the same in any account selected by Mortgagee; (b) to give receipts and releases in
relation thereto; (c) to institute, prosecute and/or settle actions for the recovery of Rents;
(d) to modify the terms of any Leases including terms relating to the Rents payable thereunder;
(e) to cancel any Leases; (f) to enter into new Leases; and (g) to do all other acts and things
with respect to the Leases and Rents which Mortgagee may deem necessary or desirable to protect the
security for the Obligations. Any Rents received shall be applied first to pay all Expenses and
next in reduction of the other Obligations. Mortgagor shall pay, on demand, to Mortgagee, the
amount of any deficiency between (i) the Rents received by Mortgagee, and (ii) all Expenses
incurred together with interest thereon as provided in the Loan Agreement and the other Loan
Documents.



Section 7.5 Taking Possession or Control of the Property.



To the extent permitted by Law, Mortgagee shall be entitled, upon application to a court of
competent jurisdiction, to the immediate appointment of a receiver for all or any part of the
Property and the Rents, whether such receivership may be incidental to a proposed sale of the
Property or otherwise, and Mortgagor hereby consents to the appointment of such a receiver and
agrees that such receiver shall have all of the rights and powers granted to Mortgagee pursuant to
Section 7.4. In addition, to the extent permitted by Law, and with or without the
appointment of a receiver, or an application therefor, Mortgagee may (a) enter upon, and take
possession of (and Mortgagor shall surrender actual possession of), the Property or any part
thereof, without notice to Mortgagor and without bringing any legal action or proceeding, or, if
necessary by force, legal proceedings, ejectment or otherwise, and (b) remove and exclude Mortgagor
and its agents and employees therefrom.



Section 7.6 Management of the Property.



Upon obtaining possession of the Property or upon the appointment of a receiver as described
in Section 7.5, Mortgagee or the receiver, as the case may be, may, at its sole option,
(a) make all necessary or proper repairs and Additions to or upon the Property, (b) operate,
maintain, control, make secure and preserve the Property, and (c) complete the construction of any
unfinished Improvements on the Property and, in connection therewith, continue any and all
outstanding contracts for the erection and completion of such Improvements and make and enter into
any further contracts which may be necessary, either in their or its own name or in the name of
Mortgagor (the costs of completing such Improvements shall be Expenses secured by this Mortgage and
shall accrue interest as provided in the Loan Agreement and the other Loan Documents). Mortgagee
or such receiver shall be under no liability for, or by reason of, any such taking of possession,
entry, holding, removal, maintaining, operation or management, except for gross negligence or
willful misconduct. The exercise of the remedies provided in this Section shall not cure or waive
any Event of Default, and the enforcement of such remedies, once commenced, shall continue for so
long as Mortgagee shall elect, notwithstanding the fact that the exercise of such remedies may
have, for a time, cured the original Event of Default.



Section 7.7 Uniform Commercial Code.



Mortgagee may proceed under the Uniform Commercial Code as to all or any part of the
Personalty, and in conjunction therewith may exercise all of the rights, remedies and powers of a
secured creditor under the Uniform Commercial Code. Upon the occurrence of any Event of Default,
Mortgagor shall assemble all of the Accessories and make the same available within the
Improvements. Any notification required by the Uniform Commercial Code shall be deemed reasonably
and properly given if sent in accordance with the Notice provisions of this Mortgage at least
ten (10) days before any sale or other disposition of the Personalty. Disposition of the
Personalty shall be deemed commercially reasonable if made pursuant to a public sale advertised at
least twice in a newspaper of general circulation in the community where the Property is located.
It shall be deemed commercially reasonable for the Mortgagee to dispose of the Personalty without
giving any warranties as to the Personalty and specifically disclaiming all disposition warranties.
Alternatively, Mortgagee may choose to dispose of some or all of the Property, in any combination
consisting of both Personalty and Real Property, in one sale to be held in accordance with the Law
and procedures applicable to real property, as permitted by Article 9 of the Uniform Commercial
Code. Mortgagor agrees that such a sale of Personalty together with Real Property constitutes a
commercially reasonable sale of the Personalty.



Section 7.8 Application of Proceeds.



Unless otherwise provided by applicable Law, all proceeds from the sale of the Property or any
part thereof pursuant to the rights and remedies set forth in this Article VII and any
other proceeds received by Mortgagee from the exercise of any of its other rights and remedies
hereunder or under the other Loan Documents shall be applied first to pay all Expenses and next in
reduction of the other Obligations, in such manner and order as Mortgagee may elect.



Section 7.9 Other Remedies.



Mortgagee shall have the right from time to time to protect, exercise and enforce any legal or
equitable remedy against Mortgagor provided under the Loan Documents, any Swap Contracts with
Mortgagee (or its affiliate) or by applicable Laws.



Article VIII




Ground Lease 




Section 8.1 General.



Mortgagor agrees not to amend, modify, extend, renew or terminate the leasehold estate which
constitutes a portion of the Property, any interest therein, or the Ground Lease without the prior
written consent of Mortgagee, which consent may be withheld by Mortgagee in its absolute and sole
discretion. Consent to one amendment, modification, extension or renewal shall not be deemed to be
a waiver of the right to require consent to other, future or successive amendments, modifications,
extensions or renewals. Mortgagor agrees to perform all obligations and agreements under the
Ground Lease and shall not take any action or omit to take any action which would effect or permit
the termination of said leasehold. Mortgagor agrees to promptly notify Mortgagee in writing with
respect to any default or alleged default by any party thereto and to promptly deliver to Mortgagee
copies of all notices, demands, complaints or other communications received or given by Mortgagor
with respect to any such default or alleged default. Mortgagee shall have the option to cure any
such default and to perform any or all of Mortgagor’s obligations thereunder. All sums expended by
Mortgagee in curing any such default shall be secured hereby and shall be immediately due and
payable without demand or notice.



Section 8.2 Representations, Warranties, and Agreements.



Mortgagor hereby represents, warrants, covenants and agrees that:



(a) Mortgagor will promptly pay, when due and payable, the net rent, additional rent, if any,
taxes, if any, and all other sums and charges mentioned in and made payable pursuant to the Ground
Lease.



(b) Mortgagor will promptly perform and observe all of the terms, covenants and conditions
required to be performed and observed by Mortgagor as lessee under the Ground Lease, within the
period (exclusive of grace periods) provided in the Ground Lease, or such lesser periods (exclusive
of grace periods) as are provided in this Mortgage, and will do all things necessary to preserve
and to keep unimpaired its rights under the Ground Lease. Mortgagor specifically acknowledges
Mortgagee’s right, while any default by Mortgagor under any Ground Lease remains uncured, to
perform the defaulted obligations and take all other actions which Mortgagee reasonably deems
necessary to protect its interests with respect thereto, and Mortgagor hereby irrevocably appoints
Mortgagee its true and lawful attorney-in-fact in its name or otherwise to execute all documents,
and perform all other acts, which Mortgagee reasonably deems necessary to preserve its or
Mortgagor’s rights with respect to any Leasehold. Such appointment is deemed coupled with an
interest.



(c) Mortgagor will promptly notify Mortgagee in writing of any default (including the
expiration of all notice and cure periods) by Mortgagor in the performance or observance of any of
the terms, covenants or conditions on the part of Mortgagor to be performed or observed under the
Ground Lease.



(d) Mortgagor will (i) promptly notify Mortgagee in writing of the receipt by Mortgagor of any
notice from the Ground Lessor and of any notice noting or claiming any default by Mortgagor in the
performance or observance of any of the terms, covenants or conditions on the part of Mortgagor to
be performed or observed under the Ground Lease; (ii) promptly notify Mortgagee in writing of the
receipt by Mortgagor of any notice from the Ground Lessor to Mortgagor of termination of the Ground
Lease pursuant to the provisions of the Ground Lease; (iii) promptly cause a copy of each such
notice received by Mortgagor from the Ground Lease to be delivered to Mortgagee; provided, however,
that no such delivery by Mortgagor to Mortgagee of any such notices shall be deemed to waive,
release, or modify any obligation of the Ground Lessor to separately provide such notice to
Mortgagee pursuant to the terms of the Ground Lease; and (iv) will promptly notify Mortgagee in
writing of any default by the Ground Lessor in the performance or observance of any of the terms,
covenants or conditions on the part of the Ground Lessor to be performed or observed.



(e) Mortgagor will promptly notify Mortgagee in writing of all arbitration or other
proceedings regarding the Property or the Ground Lease. Mortgagee shall have the right to
participate in any such arbitration proceedings in association with Mortgagor or on its own behalf
as an interested party and no determination made in such proceeding or settlement or agreement in
connection therewith shall be binding upon Mortgagee unless and until Mortgagee has participated in
such proceeding and/or consented to such settlement or agreement.



(f) Mortgagor will not, without the prior written consent of Mortgagee (which may be granted
or withheld in the sole and absolute discretion of Mortgagee), terminate, materially modify or
surrender or suffer or permit any termination, material modification or surrender of the Ground
Lease.



(g) Promptly upon demand by Mortgagee, Mortgagor shall use reasonable efforts to obtain from
the Ground Lessor and deliver to Mortgagee a certificate stating that such Ground Lease is in full
force and effect, is unmodified, that no notice of termination thereon has been served on
Mortgagor, stating that no default or event which with notice or lapse of time (or both) would
become a default is existing under the Ground Lease (or specifying the nature of any defaults or
events which with notice or lapse of time, or both, would become a default under the Ground Lease),
stating the date to which net rent has been paid, and containing such other statements and
representations as may be requested by Mortgagee.



(h) Mortgagor will furnish to Mortgagee, within five (5) days after request by Mortgagee,
proof of payment of all items that are required to be paid by Mortgagor pursuant to the Ground
Lease and proof of payment which is required to be given to the Ground Lessor.



(i) Mortgagor shall not consent to any waiver of Ground Lessor’s obligations under the Ground
Lease, material modification or cancellation of any provision of the Ground Lease.



(j) Mortgagor shall execute and deliver, on request of Mortgagee, such instruments as
Mortgagee may deem useful or require to permit Mortgagee to cure any default under the Ground Lease
or permit Mortgagee to take such other action as Mortgagee considers desirable to cure or remedy
the matter in default and preserve the interest of Mortgagee in the Premises.



(k) Mortgagor shall not subordinate the Ground Lease or any of its leasehold estate thereunder
to any Mortgage or other encumbrance of, or lien on, any interest in the real property subject to
the Ground Lease without the prior written consent of Mortgagee. Any such subordination without
such consent shall, at Mortgagee’s option, be void. Notwithstanding the foregoing, Mortgagor may
agree to subordinate the Ground Lease to the extent required by Ground Lessor acting pursuant to
Section 19 of the Ground Lease.



(l) Mortgagor shall exercise any option or right to renew or extend the term of the Ground
Lease at least six (6) months prior to the date of termination (or if later, then the earliest date
for such exercise provided in the Ground Lease) of any such option, or right, shall give immediate
written notice thereof to Mortgagee, and shall execute, deliver and record any documents requested
by Mortgagee to evidence the lien of this Mortgage on such extended or renewed lease term. If
Mortgagor fails to exercise any such option or right as required herein, Mortgagee may exercise the
option or right as Mortgagor’s agent and attorney-in-fact pursuant to this Mortgage, or in
Mortgagee’s own name or in the name of and on behalf of a nominee of Mortgagee, as Mortgagee
chooses in its absolute discretion. Such appointment is deemed coupled with an interest.



(m) Without limiting the provisions of this Mortgage, Mortgagor hereby specifically assigns to
Mortgagee, as security for the Obligations, all prepaid rents and security deposits and all other
security which the Ground Lessor under the Ground Lease holds for the performance of Mortgagor’s
obligations thereunder.



(n) Promptly upon demand by Mortgagee, Mortgagor shall use reasonable efforts to obtain from
the Ground Lessor under the Ground Lease and furnish to Mortgagee an estoppel of such Ground Lessor
stating the date through which rent has been paid, whether or not there are any defaults, and the
specific nature of any claimed defaults.



(o) Mortgagor shall notify Mortgagee promptly in writing of any request by either party to any
Ground Lease for arbitration, appraisal or other proceedings relating to the Ground Lease and of
the institution of any such proceeding, and shall promptly deliver to Mortgagee a copy of all
determinations in any such proceeding. Mortgagee shall have the right, but not the obligation,
following written notice to Mortgagor, to participate in any such proceeding in association with
Mortgagor or on its own behalf as an interested party. Mortgagor shall notify Mortgagee promptly
in writing of the institution of any legal proceeding involving obligations under the Ground Lease,
and Mortgagee may intervene in any such legal proceeding and be made a party, at its option.
Mortgagor shall promptly provide Mortgagee with a copy of any decision rendered in connection with
any such proceeding.



(p) To the extent not expressly prohibited by law, the price payable by Mortgagor or any other
party in the exercise of the right of redemption, if any, from any sale under, or decree of
foreclosure of, this Mortgage shall include all rents and other amounts paid and other sums
advanced by Mortgagee on behalf of Mortgagor as the ground lessee under the Ground Lease.



(q) In addition to all other Events of Default described in this Mortgage, the occurrence of
any of the following shall be an Event of Default hereunder:




(i) A breach or default by Mortgagor under the Ground Lease; or




(ii) The occurrence of any event or circumstance which gives the Ground Lessor under
the Ground Lease a right to terminate the Ground Lease.



(r) As used in this Mortgage, the “Bankruptcy Code” shall mean 11 U.S.C. §§ 101 et
seq., as modified and/or recodified from time to time. Notwithstanding anything to the
contrary contained herein with respect to the Ground Lease:




(i) Mortgagor shall not treat the Ground Lease as terminated by any election made under
Section 365(h) of the Bankruptcy Code of 1978 or under any similar law or right of any
nature, and hereby assigns to Mortgagee any right to acquiesce in any such termination.




(ii) The lien of this Mortgage attaches to all of Mortgagor’s rights under
Subsection 365(h) of the Bankruptcy Code, including without limitation any and all elections
to be made thereunder, any and all rights under the Ground Lease which Mortgagor is entitled
to retain pursuant to 11 U.S.C. § 365(h)(1)(A)(ii) in the event of a rejection under the
Bankruptcy Code of such Lease by the Ground Lessor thereunder (or any trustee thereof), and
any and all rights of offset under or as described in 11 U.S.C. § 365(h)(1)(B).




(iii) Mortgagor acknowledges and agrees that, as the Mortgagee under this Mortgage and
by operation of 11 U.S.C. § 365(h)(1)(D), Mortgagee has, and until this Mortgage has been
fully released continuously shall have, whether before or after any default under any of the
Obligations or the taking of any action to enforce any of Mortgagee’s rights and remedies
under this Mortgage or any foreclosure sale hereunder, the complete, unfettered and
exclusive right, in its sole and absolute discretion, to elect (the “365(h) Election”)
whether (i) the Ground Lease that has been rejected under the Bankruptcy Code by the Ground
Lessor thereunder (or any trustee therefor) shall be treated as terminated under 11 U.S.C.
§ 365(h)(1)(A)(i), or (ii) the rights under such Ground Lease that are in or appurtenant to
the real property, as described in 11 U.S.C. § 365(h)(1)(A)(ii), should be retained pursuant
to that subsection. To the extent that, notwithstanding the preceding sentence and
11 U.S.C. § 365(h)(1)(D), Mortgagor now or at any time in the future has any right to make,
or to participate in or otherwise in any manner affect the making of, the 365(h) Election
with respect to the Ground Lease, Mortgagor hereby absolutely assigns and conveys to
Mortgagee any and all such rights, and all of Mortgagor’s right, title, and interest
therein, which may be used and exercised by Mortgagee completely, exclusively, and without
any restriction whatsoever, in Mortgagee’s sole and absolute discretion, whether before or
after any default upon any of the Obligations, the taking of any action to enforce any of
Mortgagee’s rights and remedies under this Mortgage, or any foreclosure sale hereunder.
Mortgagor hereby unconditionally and irrevocably appoints Mortgagee as its attorney-in-fact
to exercise Mortgagor’s right, if any, to make, or participate in or otherwise in any matter
affect the making of, the 365(h) Election with respect to the Ground Lease. Such
appointment shall be deemed coupled with an interest. Mortgagor shall not in any manner
impede or interfere with any action taken by Mortgagee and, at the request of Mortgagee,
Mortgagor shall take or join in the taking of any action to make, or participate in or
otherwise in any manner affect the making of, the 365(h) Election with respect to the Ground
Lease, in such manner as Mortgagee determines in its sole and absolute discretion. Unless
and until instructed to do so by Mortgagee (as determined by Mortgagee in its sole and
absolute discretion), Mortgagor shall not take any action to make, or participate in or
otherwise in any manner affect the making of, the 365(h) Election with respect to the Ground
Lease, including in particular, but without limitation, any election to treat the Ground
Lease as terminated. Mortgagee shall have no obligation whatsoever to Mortgagor or any
other person or entity in connection with the making of the 365(h) Election with respect to
the Ground Lease or any instruction by Mortgagee to Mortgagor given, withheld or delayed in
respect thereof, nor shall Mortgagee have any liability to Mortgagor or any other person or
entity arising from any of the same.




(iv) As security for the Obligations, Mortgagor hereby irrevocably assigns to Mortgagee
all of Mortgagor’s rights to damages arising from any rejection by the Ground Lessor (or any
trustee thereof) of the Ground Lease under the Bankruptcy Code. Mortgagee and Mortgagor
shall proceed jointly or in the name of Mortgagor in respect of any claim or proceeding
relating to the rejection of the Ground Lease, including without limitation the right to
file and prosecute any proofs of claim, complaints, motions and other documents in any case
in respect of such Ground Lessor under the Bankruptcy Code. This assignment shall continue
in effect until all of the Obligations have been satisfied in full. Any amounts received by
Mortgagee or Mortgagor as damages arising from the rejection of the Ground Lease as
aforesaid shall be applied first to all costs reasonably incurred by Mortgagee (including
attorneys’ fees) in connection with this subsection (c) and then in accordance with other
applicable provisions of this Mortgage.




(v) If, pursuant to the Bankruptcy Code, Mortgagor seeks to offset against the rent
reserved in the Ground Lease the amount of any damages caused by the nonperformance of the
Ground Lessor’s obligations after the rejection by the Ground Lessor (or any trustee
thereof) of such Ground Lease, Mortgagor shall, prior to effecting such offset, notify
Mortgagee in writing of its intent to do so, setting forth the amounts proposed to be offset
and, in the event that Mortgagee objects, Mortgagor shall not effect any offset of the
amounts to which Mortgagee objects. If Mortgagee fails to object within ten (10) days
following receipt of such notice, Mortgagor may offset the amounts set forth in Mortgagor’s
notice.




(vi) If any legal proceeding is commenced with respect to the Ground Lease in
connection with any case under the Bankruptcy Code, Mortgagee and Mortgagor shall
cooperatively conduct any such proceeding with counsel reasonably agreed upon between
Mortgagor and Mortgagee. Mortgagor shall, upon demand, pay to Mortgagee all costs
(including attorneys’ fees) reasonably incurred by Mortgagee in connection with any such
proceeding.




(vii) Mortgagor shall immediately notify Mortgagee orally upon learning of any filing
by or against the Ground Lessor under the Ground Lease of a petition under the Bankruptcy
Code. Mortgagor shall thereafter promptly give written notice of such filing to Mortgagee,
setting forth any information available to Mortgagor with respect to the date of such
filing, the court in which such petition was filed, and the relief sought therein.
Mortgagor shall promptly deliver to Mortgagee all notices, pleadings and other documents
received by Mortgagor in connection with any such proceeding.



The generality of the provisions of this section relating to Ground Lease shall not be limited by
other provisions of this Mortgage setting forth particular obligations of Mortgagor which are also
required by Mortgagor as the lessee under the Ground Lease.



Article IX




Intentionally Omitted.




Article X




Miscellaneous




Section 10.1 Rights, Powers and Remedies Cumulative.



Each right, power and remedy of Mortgagee as provided for in this Mortgage, or in any of the
other Loan Documents or now or hereafter existing by Law, shall be cumulative and concurrent and
shall be in addition to every other right, power or remedy provided for in this Mortgage, or in any
of the other Loan Documents or now or hereafter existing by Law, and the exercise or beginning of
the exercise by Mortgagee of any one or more of such rights, powers or remedies shall not preclude
the simultaneous or later exercise by Mortgagee of any or all such other rights, powers or
remedies.



Section 10.2 No Waiver by Mortgagee.



No course of dealing or conduct by or among Mortgagee and Mortgagor shall be effective to
amend, modify or change any provisions of this Mortgage or the other Loan Documents. No failure or
delay by Mortgagee to insist upon the strict performance of any term, covenant or agreement of this
Mortgage or of any of the other Loan Documents, or to exercise any right, power or remedy
consequent upon a breach thereof, shall constitute a waiver of any such term, covenant or agreement
or of any such breach, or preclude Mortgagee from exercising any such right, power or remedy at any
later time or times. By accepting payment after the due date of any of the Obligations, Mortgagee
shall not be deemed to waive the right either to require prompt payment when due of all other
Obligations, or to declare an Event of Default for failure to make prompt payment of any such other
Obligations. Neither Mortgagor nor any other Person now or hereafter obligated for the payment of
the whole or any part of the Obligations shall be relieved of such liability by reason of (a) the
failure of Mortgagee to comply with any request of Mortgagor or of any other Person to take action
to foreclose this Mortgage or otherwise enforce any of the provisions of this Mortgage, or (b) any
agreement or stipulation between any subsequent owner or owners of the Property and Mortgagee, or
(c) Mortgagee’s extending the time of payment or modifying the terms of this Mortgage or any of the
other Loan Documents without first having obtained the consent of Mortgagor or such other Person.
Regardless of consideration, and without the necessity for any notice to or consent by the holder
of any subordinate Lien on the Property, Mortgagee may release any Person at any time liable for
any of the Obligations or any part of the security for the Obligations and may extend the time of
payment or otherwise modify the terms of this Mortgage or any of the other Loan Documents without
in any way impairing or affecting the Lien of this Mortgage or the priority of this Mortgage over
any subordinate Lien. The holder of any subordinate Lien shall have no right to terminate any
Lease regardless of whether or not such Lease is subordinate to this Mortgage. Mortgagee may
resort to the security or collateral described in this Mortgage or any of the other Loan Documents
in such order and manner as Mortgagee may elect in its sole discretion.



Section 10.3 Waivers and Agreements Regarding Remedies.



To the fullest extent Mortgagor may do so under applicable law, Mortgagor hereby:



(a) agrees that it will not at any time plead, claim or take advantage of any Laws now or
hereafter in force providing for any appraisement, valuation, stay, extension or redemption, and
waives and releases all rights of redemption, valuation, appraisement, stay of execution, extension
and notice of election to accelerate the Obligations;



(b) waives all rights to a marshalling of the assets of Mortgagor, including the Property, or
to a sale in the inverse order of alienation in the event of a foreclosure of the Property, and
agrees not to assert any right under any Law pertaining to the marshalling of assets, the sale in
inverse order of alienation, the exemption of homestead, the administration of estates of
decedents, or other matters whatsoever to defeat, reduce or affect the right of Mortgagee under the
terms of this Mortgage to a sale of the Property without any prior or different resort for
collection, or the right of Mortgagee to the payment of the Obligations out of the proceeds of sale
of the Property in preference to every other claimant whatsoever;



(c) waives any right to bring or utilize any defense, counterclaim or setoff, other than one
which denies the existence or sufficiency of the facts upon which any foreclosure action is
grounded. If any defense, counterclaim or setoff, other than one permitted by the preceding
clause, is timely raised in a foreclosure action, such defense, counterclaim or setoff shall be
dismissed. If such defense, counterclaim or setoff is based on a Claim which could be tried in an
action for money damages, such Claim may be brought in a separate action which shall not thereafter
be consolidated with the foreclosure action. The bringing of such separate action for money
damages shall not be deemed to afford any grounds for staying the foreclosure action; and



(d) waives and relinquishes any and all rights and remedies which Mortgagor may have or be
able to assert by reason of the provisions of any Laws pertaining to the rights and remedies of
sureties.



Section 10.4 Successors and Assigns.



All of the grants, covenants, terms, provisions and conditions of this Mortgage shall run with
the Land and shall apply to and bind the successors and assigns of Mortgagor (including any
permitted subsequent owner of the Property), and inure to the benefit of Mortgagee, its successors.



Section 10.5 No Warranty by Mortgagee.



By inspecting the Property or by accepting or approving anything required to be observed,
performed or fulfilled by Mortgagor or to be given to Mortgagee pursuant to this Mortgage or any of
the other Loan Documents, Mortgagee shall not be deemed to have warranted or represented the
condition, sufficiency, legality, effectiveness or legal effect of the same, and such acceptance or
approval shall not constitute any warranty or representation with respect thereto by Mortgagee.



Section 10.6 Amendments.



This Mortgage may not be modified or amended except by an agreement in writing, signed by the
party against whom enforcement of the change is sought.



Section 10.7 Severability.



In the event any one or more of the provisions of this Mortgage or any of the other Loan
Documents shall for any reason be held to be invalid, illegal or unenforceable, in whole or in part
or in any other respect, or in the event any one or more of the provisions of the Loan Documents
operates or would prospectively operate to invalidate this Mortgage or any of the other Loan
Documents, then and in either of those events, at the option of Mortgagee, such provision or
provisions only shall be deemed null and void and shall not affect the validity of the remaining
obligations, and the remaining provisions of the Loan Documents shall remain operative and in full
force and effect and shall in no way be affected, prejudiced or disturbed thereby.



Section 10.8 Notices.



All Notices required or which any party desires to give hereunder or under any other Loan
Document shall be in writing and, unless otherwise specifically provided in such other Loan
Document, shall be deemed sufficiently given or furnished if delivered by personal delivery, by
nationally recognized overnight courier service or by certified United States mail, postage
prepaid, addressed to the party to whom directed at the applicable address specified in the
Preamble to this Mortgage (unless changed by similar notice in writing given by the particular
party whose address is to be changed) or by facsimile. Any Notice shall be deemed to have been
given either at the time of personal delivery or, in the case of courier or mail, as of the date of
first attempted delivery at the address and in the manner provided herein, or, in the case of
facsimile, upon receipt; provided that service of a Notice required by any applicable statute shall
be considered complete when the requirements of that statute are met. Notwithstanding the
foregoing, no notice of change of address shall be effective except upon actual receipt. This
Section shall not be construed in any way to affect or impair any waiver of notice or demand
provided in this Mortgage or in any other Loan Document or to require giving of notice or demand to
or upon any Person in any situation or for any reason.



Section 10.9 Joint and Several Liability.



If Mortgagor consists of two (2) or more Persons, the term “Mortgagor” shall also refer to all
Persons signing this Mortgage as Mortgagor, and to each of them, and all of them are jointly and
severally bound, obligated and liable hereunder. Mortgagee may release, compromise, modify or
settle with any of Mortgagor, in whole or in part, without impairing, lessening or affecting the
obligations and liabilities of the others of Mortgagor hereunder or under the Note. Any of the
acts mentioned aforesaid may be done without the approval or consent of, or notice to, any of
Mortgagor.



Section 10.10 Rules of Construction.



The words “hereof,” “herein,” “hereunder,” “hereto,” and other words of similar import refer
to this Mortgage in its entirety. The terms “agree” and “agreements” mean and include “covenant”
and “covenants.” The words “include” and “including” shall be interpreted as if followed by the
words “without limitation.” The headings of this Mortgage are for convenience of reference only and
shall not be considered a part hereof and are not in any way intended to define, limit or enlarge
the terms hereof. All references (a) made in the neuter, masculine or feminine gender shall be
deemed to have been made in all such genders, (b) made in the singular or plural number shall be
deemed to have been made, respectively, in the plural or singular number as well, (c) to the Loan
Documents are to the same as extended, amended, restated, supplemented or otherwise modified from
time to time unless expressly indicated otherwise, (d) to the Land, Improvements, Personalty, Real
Property or Property shall mean all or any portion of each of the foregoing, respectively, and
(e) to Articles or Sections are to the respective Articles or Sections contained in this Mortgage
unless expressly indicated otherwise. Any term used or defined in the Uniform Commercial Code of
the State, as in effect from time to time, which is not defined in this Mortgage shall have the
meaning ascribed to that term in the Uniform Commercial Code of the State. If a term is defined in
Article 9 of the Uniform Commercial Code of the State differently than in another Article of the
Uniform Commercial Code of the State, the term shall have the meaning specified in Article 9.



Section 10.11 Governing Law.



This Mortgage shall be construed, governed and enforced in accordance with the Laws in effect
from time to time in the State (without regard to its conflicts of law principles).



Section 10.12 Entire Agreement.



The Loan Documents constitute the entire understanding and agreement between Mortgagor and
Mortgagee with respect to the transactions arising in connection with the Loan, and supersede all
prior written or oral understandings and agreements between Mortgagor and Mortgagee with respect to
the matters addressed in the Loan Documents. In particular, and without limitation, the terms of
any commitment by Mortgagee to make the Loan are merged into the Loan Documents. Except as
incorporated in writing into the Loan Documents, there are no representations, understandings,
stipulations, agreements or promises, oral or written, with respect to the matters addressed in the
Loan Documents.



Section 10.13 OPEN-END MORTGAGE.



MORTGAGOR, AND BY ACCEPTANCE AND RECORDING OF THIS MORTGAGE, MORTGAGEE, INTEND, STATE,
ACKNOWLEDGE AND AGREE THAT THIS MORTGAGE IS INTENDED AND AGREED TO BE AN “OPEN-END MORTGAGE” IN
ACCORDANCE WITH THE PROVISIONS SECTION 5301.232 OF THE OHIO REVISED CODE AND THAT THIS MORTGAGE
SHALL SECURE THE MAXIMUM AMOUNT OF THE UNPAID LOAN INDEBTEDNESS, BEING FOURTEEN MILLION FIVE
HUNDRED THOUSAND DOLLARS ($14,500,000), EXCLUSIVE OF INTEREST THEREON, WHICH MAY BE OUTSTANDING AT
ANY TIME.



Section 10.14 Protective Advances.



Mortgagee shall have the right, but not the obligation, to make protective advances with
respect to the Real Property for the payment of taxes, assessments, insurance premiums, repairs,
maintenance and other costs incurred in or for the protection of the Real Property, as contemplated
by Section 5301.233 of the Ohio Revised Code, and such protective advances, together with interest
thereon at the Default Rate from the date of each such advance until it is repaid in full, shall be
secured by this Mortgage to the fullest extent and with the highest priority contemplated by such
Section 5301.233.



Section 10.15 Mortgagee’s Rights Under Mechanics’ Lien Laws.



Mortgagee is hereby authorized and empowered, at its option, to do, as Mortgagee, all things
provided to be done by a mortgagee under the mechanics’ lien laws of Ohio, including, without
limitation, Section 1311.14 of the Ohio Revised Code, and all amendments and supplements thereto.



Section 10.16 Maturity Date.



The Loan’s maturity date is September 30, 2010, as such date made be extended pursuant to
Section 2.4 of the Loan Agreement.



Section 10.17 Prior Instrument Reference.



Mortgagor claims title to the Real Property under those certain instruments recorded at
Instrument Nos. 200708150144400 and 200708150144401 in the Recorder’s Office of Franklin County,
Ohio.



Section 10.18 Attorneys’ Fees.



As provided in Ohio Revised Code 1301.21, this is a Contract of Indebtedness and the Mortgagor
has committed to pay attorneys’ fees.



Section 10.19 Merger.



No merger shall occur as a result of Mortgagee’s acquiring any other estate in or any other
lien on the Property unless Mortgagee consents to a merger in writing. If both the lessor’s and
lessee’s estate under any lease or any portion thereof which constitutes a part of the Property,
including but not limited to the Ground Lease, shall at any time become vested in one owner, this
Mortgage and the lien created hereby shall not be destroyed or terminated by application of the
doctrine of merger unless Mortgagee so elects as evidenced by recording a written declaration
executed by Mortgagee so stating, and, unless and until Mortgagee so elects, Mortgagee shall
continue to have and enjoy all of the rights and privileges of Mortgagee as to the separate
estates. In addition, upon the foreclosure of the lien created by this Mortgage on the Property
pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any
portion of the Property, including but not limited to the Ground Lease, shall not be destroyed or
terminated by application of the law of merger or as a matter of law or as a result of such
foreclosure unless Mortgagee or any purchaser at such foreclosure sale shall so elect. No act by
or on behalf of Mortgagee or any such purchaser shall constitute a termination of any lease or
sublease unless Mortgagee or such purchaser shall give written notice thereof to such tenant or
subtenant. The parties hereto intend and agree that, upon Mortgagee’s election, in the event
Mortgagor acquires fee title to the Land, or any other interest in the Real Property not currently
held by Mortgagor, this Mortgage shall automatically encumber such interests in the Real Property
in a first lien position (except to the extent such interest is already encumbered by a lien in
favor of Mortgagee, in which case the Mortgage shall be in a second lien position), if and when
acquired by Mortgagor, without the necessity of any further documents or action. Notwithstanding
the foregoing, Mortgagor, as a condition to acquiring any such interest, shall execute such
documents and take such actions as may be requested by Mortgagee to evidence that the lien of the
Mortgage encumbers such interest in the Real Property.



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IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be executed as of the day and
year first written above.



	 
	MORTGAGOR:

	NNN HEALTHCARE/OFFICE REIT MARKET EXCHANGE, LLC, a Delaware limited liability

company

By: /s/ Shannon K S Johnson

Name: Shannon K S Johnson

Title: Authorized Signatory







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ACKNOWLEDGEMENT




	 	 	 	 	 
	STATE OF CALIFORNIA
	 	 	)	 
	 
	 	)  SS.
	COUNTY OF ORANGE
	 	 	)	 






On September 27, 2007, before me, P.C. Han, 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 in her authorized capacity, and that by her
signature on the instrument the person, or the entity upon behalf of which person acted, executed
the instrument.



WITNESS my hand and official seal.



/s/ Phil C. Han


(Signature of Notary)



[Seal] P.C. Han


[Seal] Commission # 1753200


[Seal] Notary Public – California


[Seal] Orange County


[Seal] My Comm. Expires Jun 25, 2011



My Commission Expires:


June 25, 2001




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