EX-10.5






ENVIRONMENTAL INDEMNITY AGREEMENT




This Environmental Indemnity Agreement (this “Agreement”), which is dated as of
September 27, 2007, is executed by NNN HEALTHCARE/OFFICE REIT MARKET EXCHANGE, LLC, a Delaware
limited liability company (“Borrower”), and NNN HEALTHCARE/OFFICE REIT, INC., a Maryland
corporation (“Indemnitor”), as a condition of, and to induce WACHOVIA FINANCIAL SERVICES,
INC., a North Carolina corporation (“Lender”), to make, a loan (the “Loan”) to
Borrower evidenced or to be evidenced by a Promissory Note of even date herewith, made by Borrower
payable to the order of Lender in the face principal amount of $14,500,000.00 (the “Note”).
The Loan is secured or to be secured by an Open-End Mortgage, Assignment, Security Agreement and
Fixture Filing (the “Mortgage”) of even date herewith, encumbering certain real and
personal property as therein described (collectively, the “Property”), including the land
described in Exhibit A which is attached hereto and made a part hereof.



1. Certain Definitions. As used in this Agreement:



"Claim” means any controversy or claim between one or more Obligors and Lender,
whether arising in contract or tort or by statute, that arises out of or relates to this Agreement,
including any renewals, extensions or modifications hereof.



"Cut-Off Date” means the earlier of the following two dates: (a) the date on which
the indebtedness and obligations secured by the Mortgage have been paid and performed in full and
the Mortgage has been released; or (b) the date on which the lien of the Mortgage is fully and
finally foreclosed or a conveyance by deed in lieu of such foreclosure is fully and finally
effective and possession of the Property has been given to and accepted by the purchaser or grantee
free of occupancy and claims to occupancy by Obligors and their heirs, devisees, representatives,
successors and assigns; provided, however, that if such payment, performance, release, foreclosure
or conveyance is challenged in proceedings under any Debtor Relief Law or otherwise, the Cut-Off
Date shall be deemed not to have occurred until such challenge is validly released, dismissed with
prejudice or otherwise barred by law from further assertion.



"Debtor Relief Law” means any federal, state or local law, domestic or foreign, as now
or hereafter in effect relating to bankruptcy, insolvency, liquidation, receivership,
reorganization, arrangement, composition, extension or adjustment of debts, or any similar law
affecting the rights of creditors.



"Default” has the meaning ascribed to such term in the Mortgage and includes any
breach of any covenant, representation or warranty and any other default under this Agreement,
subject to any applicable notice and cure period.



"Default Rate” has the meaning ascribed to such term in the Note.



"Environmental Assessment” means a report (including all drafts thereof) of an
environmental assessment of the Property of such scope as may be requested by Lender or another
Indemnified Party, including the taking of soil borings and air and groundwater samples and other
above- and below-ground testing, by a consulting firm acceptable to such Indemnified Party and made
in accordance with the established guidelines of such Indemnified Party.



"Environmental Claim” means any investigative, enforcement, cleanup, removal,
containment, remedial or other private or governmental or regulatory action at any time threatened,
instituted or completed pursuant to any applicable Environmental Requirement, against Borrower or
any Obligor, against or with respect to the Property or any condition, use or activity on the
Property (including any such action against any Indemnified Party), and any claim at any time
threatened or made by any person against any Obligor or against or with respect to the Property or
any condition, use or activity on the Property (including any such claim against any Indemnified
Party), relating to damage, contribution, cost recovery, compensation, loss or injury resulting
from or in any way arising in connection with any Hazardous Material or any Environmental
Requirement.



"Environmental Damages” means all claims, demands, liabilities (including strict
liability), losses, damages (including consequential damages), causes of action, judgments,
penalties, fines, reasonable costs and expenses (including fees, costs and expenses of attorneys,
consultants, contractors, experts and laboratories), of any and every kind and character,
contingent or otherwise, matured or unmatured, known or unknown, foreseeable or unforeseeable,
made, incurred, suffered, brought, or imposed at any time and from time to time, and arising in
whole or in part from any of the following matters, regardless of whether caused by an Obligor or a
tenant or subtenant, or a prior owner of the Property or its tenant or subtenant, or any third
party:




(a) The presence of any Hazardous Material on the Property, or any escape, seepage,
leakage, spillage, emission, release, discharge or disposal of any Hazardous Material on or
from the Property, or the migration or release or threatened migration or release of any
Hazardous Material to, from or through the Property, on or before the Cut-Off Date; or




(b) Any act, omission, event or circumstance existing or occurring in connection with
the handling, treatment, containment, removal, storage, decontamination, cleanup, transport
or disposal of any Hazardous Material which is or was present on the Property on or before
the Cut-Off Date; or




(c) The breach of any representation, warranty, covenant or agreement contained in this
Agreement because of any event or condition occurring or existing on or before the Cut-Off
Date; or




(d) Any violation relating to the Property on or before the Cut-Off Date, of any
Environmental Requirement in effect on or before the Cut-Off Date, regardless of whether any
act, omission, event or circumstance giving rise to the violation constituted a violation at
the time of the occurrence or inception of such act, omission, event or circumstance; or




(e) Any Environmental Claim, or the filing or imposition of any environmental lien
against the Property, because of, resulting from, in connection with, or arising out of any
of the matters referred to in the preceding clauses (a) through (d).



Without limiting the generality of the foregoing, “Environmental Damages” includes:
(i) the investigation or remediation of any such Hazardous Material or violation of any such
Environmental Requirement, including the preparation of any feasibility studies or reports and the
performance of any cleanup, remediation, removal, response, abatement, containment, closure,
restoration, monitoring or similar work required by any Environmental Requirement or necessary to
have full use and benefit of the Property as contemplated by the Loan Documents (including any of
the same in connection with any foreclosure action or transfer in lieu thereof); (ii) injury or
damage to any person, property or natural resource occurring on or off the Property, including the
cost of demolition and rebuilding of any improvements on real property; (iii) all liability to pay
or indemnify any person or governmental authority for costs expended in connection with any of the
matters included within this definition of Environmental Damages; (iv) the investigation and
defense of any claim, whether or not such claim is ultimately defeated; and (v) the settlement of
any claim or judgment.



"Environmental Law” means any federal, state or local law, statute, ordinance, code,
rule, regulation, license, authorization, decision, order, injunction, decree, or rule of common
law, and any judicial interpretation of any of the foregoing, which pertains to health or safety
(as they relate to natural resources or the environment), any Hazardous Material, or the
environment (including ground or air or water or noise pollution or contamination, and underground
or aboveground tanks) and shall include the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq.; the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601
et seq. (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act of 1986
(“SARA”); the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.;
the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Safe Drinking Water Act, 42 U.S.C.
§ 300f et seq.; and any other state or federal environmental statutes, and all rules, regulations,
orders and decrees now or hereafter promulgated under any of the foregoing, as any of the foregoing
now exist or may be changed or amended or come into effect in the future.



"Environmental Requirement” means any Environmental Law, agreement or restriction, as
the same now exists or may be changed or amended or come into effect in the future, which pertains
to health or safety (as they relate to natural resources or the environment), any Hazardous
Material, or the environment, including ground, air, water or noise pollution or contamination, and
underground or aboveground tanks.



"Hazardous Material” means any substance, whether solid, liquid or gaseous: (a) which
is listed, defined or regulated as a “hazardous substance”, “hazardous waste” or “solid waste”, or
otherwise classified as hazardous or toxic, in or pursuant to any Environmental Requirement; or
(b) which is or which contains asbestos, radon, any polychlorinated biphenyl, urea formaldehyde
foam insulation, explosive or radioactive material, or motor fuel or other petroleum hydrocarbons;
or (c) which causes or poses a threat to cause a contamination or nuisance on the Property or any
adjacent property or a hazard to the environment or to the health or safety of persons on the
Property.



"Indemnified Party” means each of the following persons and entities: (a) Lender or
any subsequent holder of the Note; (b) any persons or entities owned or controlled by, owning or
controlling, or under common control or affiliated with, Lender, and/or any subsequent holder of
the Note; (c) any participants and co-lenders in the Loan; (d) the directors, officers, partners,
employees, attorneys and agents of each of the foregoing persons and entities; and (e) the heirs,
personal representatives, successors and assigns of each of the foregoing persons and entities.



"Loan Documents” has the meaning ascribed to such term in the Mortgage.



"Obligor” means any individual Borrower or Indemnitor and “Obligors” means
some or all of the persons and entities comprising Borrower and/or Indemnitor, collectively.



"On” or “on”, when used with respect to the Property or any property adjacent
to the Property, means “on, in, under, above or about.”



2. Representations and Warranties. Each Obligor hereby represents and warrants to,
and covenants with, Lender, that, except as disclosed in that certain Phase 1 Environmental Site
Assessment Report provided to Lender in connection with the closing of the Loan, as of the date of
recordation of the Mortgage:



(a) During the period of Borrower’s ownership of the Property, the Property has not been used
for industrial or manufacturing purposes, for landfill, dumping or other waste disposal activities
or operations, for generation, storage, use, sale, treatment, processing, recycling or disposal of
any Hazardous Material, for underground or aboveground storage tanks, or for any other use that
could give rise to the release of any Hazardous Material on the Property; to the best of Obligors’
knowledge, no such use of the Property occurred at any time prior to the period of Borrower’s
ownership of the Property; and to the best of Obligors’ knowledge, no such use on any adjacent
property occurred at any time prior to the date hereof;



(b) To the best of Obligors’ knowledge, there is no Hazardous Material, storage tank (or
similar vessel) whether underground or otherwise, sump or well currently on the Property;



(c) Obligors have received no written notice and have no knowledge of any Environmental Claim
or any completed, pending or proposed or threatened investigation or inquiry concerning the
presence or release of any Hazardous Material on the Property or any adjacent property or
concerning whether any condition, use or activity on the Property or any adjacent property is in
violation of any existing Environmental Requirement;



(d) To the best of Obligors’ knowledge, the present conditions, uses and activities of and on
the Property do not violate any existing Environmental Requirement and the use of the Property
which Borrower (and each tenant and subtenant, if any) makes and intends to make of the Property
complies and will comply with all applicable existing Environmental Requirements;



(e) The Property does not appear on and to the best of Obligors’ knowledge has never been on
the National Priorities List, any federal or state “superfund” or “superlien” list,
or any other list or database of properties maintained by any local, state or federal agency or
department showing properties which are known to contain or which are suspected of containing a
Hazardous Material;



(f) To the best of Obligors’ knowledge, no action has been taken to designate the Property as
a hazardous waste property or border zone property or otherwise to restrict the land use of the
Property (including through a moratorium on new land uses), nor does any Obligor know of any basis
for such designation or other restriction;



(g) Obligors have never applied for and been denied environmental impairment liability
insurance coverage relating to the Property; and



(h) No Obligor, and to Obligors’ knowledge no tenant or subtenant, has obtained or is required
to obtain any permit or authorization to construct, occupy, operate, use or conduct any activity on
any of the Property by reason of any existing Environmental Requirement.



3. Violations. Prior to the Cut-Off Date, Obligors will not cause, commit, permit or
allow to continue any violation of any Environmental Requirement (a) by any person or entity,
including any Obligor, or (b) by or with respect to the Property or any use of or activity on the
Property. In addition, Obligors will not cause, permit or allow to continue the attachment of any
environmental lien to the Property. Obligors will not place, install, dispose of or release, or
cause, permit, or allow the placing, installation, disposal, spilling, leaking, dumping or release
of, any Hazardous Material or storage tank (or similar vessel) on the Property and will keep the
Property free of Hazardous Material. Notwithstanding the foregoing provisions of this
Section 3, Obligors shall not be in Default under this Section 3 should Obligors
store minimal quantities of substances on the Property which technically could be considered
Hazardous Material; provided that such substances are of a type and are held only in a quantity
normally used in connection with the construction, occupancy or operation of comparable buildings
(such as cleaning fluids and supplies normally used in the day-to-day operation of business
offices), and such substances are being held, stored and used in compliance with all applicable
Environmental Requirements. The indemnity in Section 6 of this Agreement shall always
apply to such substances, and it shall be and continue to be the responsibility of Obligors to take
all remedial actions required under and in accordance with Section 5 of this Agreement in
the event of any unlawful release of any such substance.



4. Notice to Lender. Obligors shall promptly deliver to Lender a copy of each report
pertaining to the Property or to any Obligor prepared by or on behalf of any Obligor pursuant to
any Environmental Requirement. Obligors shall promptly advise Lender in writing of any
Environmental Claim or of the discovery of any Hazardous Material on the Property as soon as any
Obligor first obtains knowledge thereof, including a full description of the nature and extent of
the Environmental Claim and/or Hazardous Material and all relevant circumstances.



5. Remedial Actions.



(a) Except as permitted under Section 3 above, if any Hazardous Material is discovered
on the Property at any time, prior to the Cut-Off Date, and regardless of the cause, Obligors shall
promptly at Obligors’ sole risk and expense and solely under the names of Obligors or any of them:
(i) remove, treat, and dispose of the Hazardous Material in compliance with all applicable
Environmental Requirements, or if such removal is prohibited by any Environmental Requirement, take
whatever action as is required by any Environmental Requirement; and (ii) take such other action as
is necessary to have the full use and benefit of the Property as contemplated by the Loan
Documents. Obligors at their sole expense shall provide Lender with satisfactory evidence of the
actions taken as required in this clause (a). Obligors shall provide to Lender within thirty (30)
days of Lender’s request a bond, letter of credit or other financial assurance evidencing to
Lender’s satisfaction that all necessary funds are readily available to pay the costs and expenses
of the actions required by this clause (a) and to discharge any assessments or liens established
against the Property as a result of the presence of the Hazardous Material on the Property.



(b) All remedial actions shall be conducted (i) in a diligent and timely fashion by licensed
contractors acting under the supervision of a consultant or consulting environmental engineer, and
(ii) in accordance with all Environmental Requirements and all other applicable governmental
requirements. The selection of the contractors and consultant or consulting environmental engineer
for the remedial actions, the contracts entered into with such parties, any disclosures to or
agreements with any public or private agencies or parties relating to the remedial actions and any
written plan for the remedial actions (and any changes thereto) shall each, at the option of
Lender, be subject to the prior written approval of Lender, which approval shall not be
unreasonably withheld, conditioned or delayed. Within fifteen (15) days after completion of such
remedial actions, Obligors shall obtain and deliver to Lender an Environmental Assessment of the
Property made after such completion which shall confirm to Lender’s satisfaction that all required
remedial action as stated above has been taken and successfully completed and that there is no
evidence or suspicion of any contamination or risk of contamination on the Property or any adjacent
property or of violation of any Environmental Requirement with respect to any such Hazardous
Material.



(c) After the occurrence and during the continuance of a Default, Lender may, but shall never
be obligated to, remove or cause the removal of any Hazardous Material from the Property (or if
removal is prohibited by any Environmental Requirement, take or cause the taking of such other
action as is required by any Environmental Requirement) if Obligors fail to promptly commence such
remedial actions following discovery and thereafter diligently prosecute the same to the
satisfaction of Lender (without limitation of Lender’s rights to declare a Default under any of the
Loan Documents and to exercise all rights and remedies available by reason thereof). After the
occurrence and during the continuance of a Default, Lender and its designees are hereby granted
access to the Property at any time or times, upon reasonable notice (which may be written or oral),
and a license which is coupled with an interest and irrevocable, to remove or cause such removal or
to take or cause the taking of any such other action.



6. Indemnity. Obligors hereby agree to protect, indemnify, defend and hold
Indemnified Parties and each of them harmless from and against, and, if and to the extent paid, to
reimburse them on demand for, any and all Environmental Damages. Without limitation, the foregoing
indemnity shall apply to each Indemnified Party with respect to Environmental Damages which in
whole or in part are caused by or arise out of the negligence of such (and/or any other)
Indemnified Party. However, such indemnity shall not apply to (a) a particular Indemnified Party
to the extent that the subject of the indemnification is caused by or arises out of the gross
negligence or willful misconduct of that particular Indemnified Party, or (b) Environmental Damages
created or arising solely from events or conditions first existing after a foreclosure sale under
the Mortgage (or a deed in lieu thereof), but only if a party other than Obligors or an affiliate
of any Obligor acquires title to the Property, provided that any such Environmental Damages do not
directly or indirectly arise from or relate to any release of or exposure to any Hazardous
Materials (including personal injury or damage to property), noncompliance with any Environmental
Laws, or remediation existing prior to the event described above. In any dispute between Obligors
and Lender as to whether Obligors are released from liability pursuant to the immediately preceding
sentence, Obligors shall bear the burden of proof with respect to whether they have been released
from liability. Upon demand by any Indemnified Party, Obligors shall diligently defend any
Environmental Claim which affects the Property or which is made or commenced against such
Indemnified Party, whether alone or together with Obligors or any other person, all at Obligors’
own cost and expense and by counsel to be approved by such Indemnified Party in the exercise of its
reasonable judgment. In the alternative, at any time any Indemnified Party may elect to conduct
its own defense through counsel selected by such Indemnified Party and at the cost and expense of
Obligors.



7. Binding Obligations; Survival. The representations, warranties, covenants and
agreements in this Agreement shall be binding upon Obligors and their successors, assigns and legal
representatives and shall inure to the benefit of Indemnified Parties and each of them; provided,
however, that Obligors may not assign this Agreement, or assign or delegate any of their rights or
obligations under this Agreement, without the prior written consent of Lender in each instance.
The representations, warranties, covenants and agreements in this Agreement shall not terminate on
the Cut-Off Date or upon the release, foreclosure or other termination of the Mortgage, but will
survive the Cut-Off Date, the payment in full of the indebtedness secured by the Mortgage,
foreclosure of the Mortgage or conveyance in lieu of foreclosure, the release or termination of the
Mortgage and any and all of the other Loan Documents, any investigation by or on behalf of any
Indemnified Party, any proceeding under any Debtor Relief Law, and any other event whatsoever.
Without limiting the generality of the foregoing, the obligations of Obligors to indemnify
Indemnified Parties under Section 6 after the Cut-Off Date shall be presumed, unless shown
by a preponderance of evidence to the contrary.



8. Environmental Assessments. If any Indemnified Party shall ever have reason to
believe that any Hazardous Material affects the Property, or if any Environmental Claim is made or
threatened, or if a Default shall have occurred, or upon the occurrence of the Cut-Off Date if
requested by any Indemnified Party, Obligors shall at their expense provide to such Indemnified
Party from time to time, in each case within thirty (30) days after request by such Indemnified
Party, an Environmental Assessment made after the date of such request. Obligors will cooperate
with each consulting firm making any such Environmental Assessment and will supply to the
consulting firm, from time to time and promptly on request, all information available to Obligors
to facilitate the completion of the Environmental Assessment. If Obligors fail to furnish any
Indemnified Party within ten (10) days after such Indemnified Party’s request with a copy of an
agreement with an acceptable environmental consulting firm to provide such Environmental
Assessment, or if Obligors fail to furnish to any Indemnified Party such Environmental Assessment
within thirty (30) days after request by such Indemnified Party, the Indemnified Party may cause
any such Environmental Assessment to be made at Obligors’ expense and risk. Indemnified Parties
and their designees are hereby granted access to the Property at any time or times, upon reasonable
notice (which may be written or oral), and a license which is coupled with an interest and
irrevocable, to make or cause to be made such Environmental Assessments. Without limiting the
generality of the foregoing, Obligors agree that Indemnified Parties will have all rights, powers
and authority to enter and inspect the Property as is granted to the secured lender under
applicable law, and that any Indemnified Party will have the right to appoint a receiver to enter
and inspect the Property to the extent such authority is provided under applicable law. All
reasonable costs and expenses incurred by any Indemnified Party in connection with any
Environmental Assessment conducted in accordance with this Section 8 shall be paid by
Obligors. Indemnified Parties shall be under no duty to make any Environmental Assessment of the
Property, and in no event shall any such Environmental Assessment by any Indemnified Party be or
give rise to a representation that any Hazardous Material is or is not present on the Property, or
that there has been or shall be compliance with any Environmental Requirement, nor shall Obligors
or any other person be entitled to rely on any Environmental Assessment made by or at the request
of any Indemnified Party. Indemnified Parties owe no duty of care to protect Obligors or any other
person against, or to inform them of, any Hazardous Material or other adverse condition affecting
the Property.



9. Information. The results of all investigations conducted and/or Environmental
Assessments prepared by or for any Indemnified Party shall be and at all times remain the property
of the Indemnified Party and under no circumstances shall any Indemnified Party have any obligation
whatsoever to disclose or otherwise make available to Obligors or any other party such results or
any other information obtained by any Indemnified Party in connection with such investigations and
reports. Notwithstanding the foregoing, Indemnified Parties hereby reserve the right, and Obligors
hereby expressly authorize any Indemnified Party, to make available to any party (including any
governmental agency or authority and any prospective bidder at any foreclosure sale of the
Property) any and all Environmental Assessments that any Indemnified Party may have with respect to
the Property. Obligors consent to Indemnified Parties notifying any party (either as part of a
notice of sale or otherwise) of the availability of any or all of the Environmental Assessments and
the information contained therein. Obligors acknowledge that Indemnified Parties cannot control or
otherwise assure the truthfulness or accuracy of the Environmental Assessments, and further
acknowledge that the release of the Environmental Assessments, or any information contained
therein, to prospective bidders at any foreclosure sale of the Property may have a material and
adverse effect upon the amount that a party may bid at such sale. Obligors agree that Indemnified
Parties shall have no liability whatsoever as a result of delivering any or all of the
Environmental Assessments or any information contained therein to any third party, and Obligors
hereby release and forever discharge Indemnified Parties from any and all claims, damages, or
causes of action, arising out of, connected with or incidental to the Environmental Assessments or
the delivery thereof.



10. Cross-Default with Loan Documents. Any Default under this Agreement shall
constitute a Default under the Loan Documents. In addition, any Default under any of the Loan
Documents shall constitute a Default hereunder.



11. Payable on Demand; Remedies. Any amounts to be paid under this Agreement by
Obligors (or any of them) from time to time shall be payable by Obligors within ten (10) business
days after demand by Lender or any other Indemnified Party. In addition to any other rights or
remedies Lender may have under this Agreement, at law or in equity, upon the occurrence of a
Default under this Agreement, Lender may (a) pursue any remedies available to it under applicable
law, and/or (b) subject to the terms and conditions of this Agreement, do or cause to be done
whatever is necessary to cause the Property to comply with all Environmental Requirements, and the
cost thereof shall become immediately due and payable upon demand by Lender, and if not paid when
due shall accrue interest at the Default Rate until paid. Without limiting any other rights or
remedies of Lender, Obligors acknowledge and agree that Obligors’ failure to comply with the terms
of this Agreement shall be a breach of contract such that Lender shall have the remedies provided
under applicable law for the recovery of damages and for the enforcement thereof. Lender’s action
for the recovery of damages or enforcement of this Agreement shall not constitute an action or
constitute a money judgment for a deficiency or a deficiency judgment.



12. Unsecured Agreement; Not a Loan Document; Cumulative Rights. This Agreement is
not secured by the Mortgage or any other Loan Document or any collateral whatsoever. This
Agreement is not one of the Loan Documents. Obligors and Lender intend for this Agreement to serve
as Lender’s written demand and Obligors’ response concerning the environmental condition of the
Property. The liability of Obligors or any other person under this Agreement shall not be limited
or impaired in any way by any provision in the Loan Documents or applicable law limiting Obligors’
or such other person’s liability or Lender’s recourse or rights to a deficiency judgment, or by any
change, extension, release, inaccuracy, breach or failure to perform by any party under the Loan
Documents, Obligors’ (and, if applicable, such other person’s) liability hereunder being direct and
primary and not as a guarantor or surety. Nothing in this Agreement or in any Loan Document shall
limit or impair any rights or remedies of Lender and/or any other Indemnified Party against any
Obligor or any other person under any Environmental Requirement or otherwise at law or in equity,
including any rights of contribution or indemnification.



13. Consideration. Obligors acknowledge that Lender has relied and will rely on the
representations, warranties, covenants and agreements herein in closing and funding the Loan and
that the execution and delivery of this Agreement is an essential condition but for which Lender
would not close or fund the Loan.



14. No Waiver. No delay or omission by any Indemnified Party to exercise any right
under this Agreement shall impair any such right nor shall it be construed to be a waiver thereof.
No waiver of any single breach or default under this Agreement shall be deemed a waiver of any
other breach or default. Any waiver, consent or approval under this Agreement must be in writing
to be effective.



15. Notices. All notices, requests, consents, demands and other communications
required or which any party desires to give hereunder shall be in writing (including, without
limitation, telecopy, telegraphic, telex, or cable communication) and shall be deemed sufficiently
given or furnished if delivered by personal delivery, by courier, or by registered or certified
United States mail, postage prepaid, addressed to the party to whom directed at the addresses
specified at the end of this Agreement (unless changed by similar notice in writing given by the
particular party whose address is to be changed) or by telegram, telex, or facsimile. Any such
notice or communication 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 telegram, telex or 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 15 shall not be
construed in any way to affect or impair any waiver of notice or demand provided in any Loan
Document or to require giving of notice or demand to or upon any person in any situation or for any
reason.



16. Invalid Provisions. A determination that any provision of this Agreement is
unenforceable or invalid shall not affect the enforceability or validity of any other provision and
a determination that the application of any provision of this Agreement to any person or
circumstance is illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.



17. Construction. Whenever in this Agreement the singular number is used, the same
shall include plural where appropriate, and vice versa; and words of any gender in this Agreement
shall include each other gender where appropriate. The headings in this Agreement are for
convenience only and shall be disregarded in the interpretation hereof. Reference to
"person” or “entity” means firms, associations, partnerships, joint ventures,
trusts, limited liability companies, corporations and other legal entities, including public or
governmental bodies, agencies or instrumentalities, as well as natural persons. The words
"include” and “including” shall be interpreted as if followed by the words
"without limitation.”



18. Joint and Several Liability and Waivers by Obligors.



(a) Each Obligor agrees that it is jointly and severally liable to Indemnified Parties for the
payment of all obligations arising under this Agreement, and that such liability is independent of
the obligations of the other Obligors. Any Indemnified Party may bring an action against any
Obligor, whether or not any action is brought against the other Obligors.



(b) Each Obligor agrees that any release which may be given by any Indemnified Party to the
other Obligors will not release such Obligor from its obligations under this Agreement.



(c) Each Obligor waives any right to assert against any Indemnified Party any defense, setoff,
counterclaim, or claims which such Obligor may have against the other Obligors or any other party
liable to Indemnified Parties or any of them for the obligations of Obligors under this Agreement.



(d) Each Obligor agrees that it is solely responsible for keeping itself informed as to the
financial condition of the other Obligors and of all circumstances which bear upon the risk of
nonpayment. Each Obligor waives any right it may have to require Indemnified Parties to disclose
to such Obligor any information which Indemnified Parties or any of them may now or hereafter
acquire concerning the financial condition of the other Obligors.



(e) Each Obligor waives all rights to notices of acceptance of this Agreement and further
waives all rights to notices of default or nonperformance by any other Obligor under this
Agreement.



(f) Each Obligor waives any right of subrogation, reimbursement, indemnification and
contribution (contractual, statutory or otherwise), including any claim or right of subrogation
under any Debtor Relief Law, which such Obligor may now or hereafter have against any other Obligor
or any other person with respect to the obligations incurred under this Agreement. Each Obligor
waives any right to enforce any remedy that any Indemnified Party now has or may hereafter have
against any other Obligor.



19. Indemnitor Waivers. Indemnitor waives:



(a) All statutes of limitations as a defense to any action or proceeding brought against
Indemnitor by any Indemnified Party, to the fullest extent permitted by law;



(b) Any right it may have to require Indemnified Party to proceed against Borrower, proceed
against or exhaust any security held from Borrower, or pursue any other remedy in any Indemnified
Party’s power to pursue;



(c) Any defense based on any claim that Indemnitor’s obligations exceed or are more burdensome
than those of Borrower;



(d) Any defense based on: (i) any legal disability of Borrower, (ii) any release, discharge,
modification, impairment or limitation of the liability of Borrower to any Indemnified Party from
any cause, whether consented to by any Indemnified Party or arising by operation of law or from any
bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the adjustment of
debtor-creditor relationships (“Insolvency Proceeding”) and (iii) any rejection or
disaffirmance of the Loan, or any part of it, or any security held for it, in any such Insolvency
Proceeding;



(e) Any defense based on any action taken or omitted by any Indemnified Party in any
Insolvency Proceeding involving Borrower, including any election to have any Indemnified Party’s
claim allowed as being secured, partially secured or unsecured, any extension of credit by any
Indemnified Party to Borrower in any Insolvency Proceeding, and the taking and holding by any
Indemnified Party of any security for any such extension of credit;



(f) All presentments, demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, notices of acceptance of this Agreement and of the existence,
creation, or incurring of new or additional indebtedness, and demands and notices of every kind;
and



(g) Any defense based on or arising out of any defense that Borrower may have to the payment
or performance of the Loan or any part of it.



20. Waivers of Subrogation and Other Rights.



(a) Upon a default by Borrower, Lender in its sole discretion, without prior notice to or
consent of Indemnitor, may elect to: (i) foreclose either judicially or nonjudicially against any
real or personal property security it may hold for the Loan, (ii) accept a transfer of any such
security in lieu of foreclosure, (iii) compromise or adjust the Loan or any part of it or make any
other accommodation with Borrower or Indemnitor, or (iv) exercise any other remedy against Borrower
or any security. No such action by Lender shall release or limit the liability of Indemnitor, each
of whom shall remain liable under this Agreement after the action, even if the effect of the action
is to deprive Indemnitor of any subrogation rights, rights of indemnity, or other rights to collect
reimbursement from Borrower for any sums paid to any Indemnified Party, whether contractual or
arising by operation of law or otherwise. Indemnitor expressly agrees that under no circumstances
shall it be deemed to have any right, title, interest or claim in or to any real or personal
property to be held by any Indemnified Party or any third party after any foreclosure or transfer
in lieu of foreclosure of any security for the Loan.



(b) Regardless of whether Indemnitor may have made any payments to any Indemnified Party,
Indemnitor forever waives: (i) all rights of subrogation, all rights of indemnity, and any other
rights to collect reimbursement from Borrower for any sums paid to any Indemnified Party, whether
contractual or arising by operation of law (including the United States Bankruptcy Code or any
successor or similar statute) or otherwise, (ii) all rights to enforce any remedy that any
Indemnified Party may have against Borrower, and (iii) all rights to participate in any security
now or later to be held by any Indemnified Party for the Loan.



(c) Indemnitor understands and acknowledges that if Lender forecloses judicially or
nonjudicially against any real property security for the Loan, that foreclosure could impair or
destroy any ability that Indemnitor may have to seek reimbursement, contribution or indemnification
from Borrower or others based on any right Indemnitor may have of subrogation, reimbursement,
contribution or indemnification for any amounts paid by Indemnitor under this Indemnity.
Indemnitor further understands and acknowledges that in the absence of the provisions of this
Indemnity, such potential impairment or destruction of Indemnitor’s rights, if any, may entitle
Indemnitor to assert a defense to this Indemnity. By executing this Agreement, Indemnitor freely,
irrevocably and unconditionally: (i) waives and relinquishes that defense and agrees that
Indemnitor will be fully liable under this Agreement even though Lender may foreclose judicially or
nonjudicially against any real property security for the Loan; (ii) agrees that Indemnitor will not
assert that defense in any action or proceeding which any Indemnified Party may commence to enforce
this Agreement; (iii) acknowledges and agrees that the rights and defenses waived by Indemnitor
under this Agreement include any right or defense that Indemnitor may have or be entitled to
assert; and (iv) acknowledges and agrees that Lender is relying on this waiver in making the Loan,
and that this waiver is a material part of the consideration which Lender is receiving for making
the Loan.



(d) Indemnitor waives Indemnitor’s rights of subrogation and reimbursement and any other
rights and defenses available to Indemnitor, including, without limitation, (i) any defenses
Indemnitor may have to the indemnity obligation by reason of an election of remedies by Lender and
(ii) any rights or defenses Indemnitor may have by reason of protection afforded to the Borrower
with respect to the obligation so guaranteed pursuant to the antideficiency or other laws of Ohio
limiting or discharging the Borrower’s indebtedness.



(e) Indemnitor waives all rights and defenses arising out of an election of remedies by any
Indemnified Party, even though that election of remedies, such as a nonjudicial foreclosure with
respect to security for a guaranteed obligation, has destroyed any Indemnitor’s rights of
subrogation and reimbursement against the Borrower.



(f) No provision or waiver in this Indemnity shall be construed as limiting the generality of
any other waiver contained in this Indemnity.



21. Additional Waivers. Indemnitor waives all rights and defenses that Indemnitor may
have because Borrower’s debt is secured by real property. This means, among other things:



(a) Lender may collect from Indemnitor without first foreclosing on any real or personal
property collateral pledged by Borrower.



(b) If Lender forecloses on any real property collateral pledged by Borrower:




(1) The amount of the debt may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is worth more
than the sale price.




(2) Lender may collect from Indemnitor even if Lender, by foreclosing on the
real property collateral, has destroyed any right Indemnitor may have to collect
from Borrower.



This is an unconditional and irrevocable waiver of any rights and defenses Indemnitor may have
because Borrower’s debt is secured by real property.



22. Applicable Law. The laws of the State of Ohio and applicable United States
federal law shall govern the rights and duties of the parties hereto and the validity, enforcement
and interpretation hereof.



23. Lender Assigns; Disclosure of Information. Lender may, at any time, sell,
transfer, or assign the Loan and any and all servicing rights with respect thereto, or grant
participations therein or issue mortgage pass-through certificates or other securities evidencing a
beneficial interest in a rated or unrated public offering or private placement. In the event of
any such sale, transfer or assignment of the Loan or any part thereof, the rights and benefits
under this Agreement may be transferred therewith to the extent applicable to the Loan or part
thereof being sold, transferred or assigned. Obligors waive notice of any sale, transfer or
assignment of the Loan or any part thereof, and agree that failure to give notice of any such sale,
transfer or assignment will not affect the liabilities of Obligors hereunder. Lender is hereby
authorized to disseminate any information it now has or hereafter obtains pertaining to the
Property or this Agreement, including credit and/or other information on Obligors and/or any party
liable, directly or indirectly, for any part of the obligations under this Agreement, to any actual
or prospective assignee or participant with respect to the Loan, to any of Lender’s affiliates, to
any regulatory body having jurisdiction over Lender, and to any other parties as necessary or
appropriate in Lender’s reasonable judgment.



24. Execution; Modification. This Agreement may be executed in any number of
identical counterparts, each of which shall be deemed an original for all purposes and all of which
constitute, collectively, one agreement. This Agreement may be amended only by an instrument in
writing intended for that purpose executed jointly by an authorized representative of each party
hereto.



25. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OBLIGORS AND
LENDER HEREBY WAIVE TRIAL BY JURY IN RESPECT OF ANY “CLAIM” AS DEFINED IN SECTION 1. THIS
WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY OBLIGORS AND LENDER, AND OBLIGORS AND LENDER
HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY
TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT. OBLIGORS AND
LENDER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION 25 IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. EACH OBLIGOR FURTHER REPRESENTS AND WARRANTS
THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL
COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH COUNSEL.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.



EXECUTED and DELIVERED as of the day and year first written above.



	 	 	 	 	 
	BORROWER:
	 	 	 	 
	The address of Borrower is:
	 	 	 	 
	NNN Healthcare/Office REIT Market
	 	NNN HEALTHCARE/OFFICE REIT MARKET
	Exchange, LLC
	 	EXCHANGE, LLC,
	c/o Triple Net Properties, LLC
	 	a Delaware limited liability company
	1551 N. Tustin Avenue, Suite 300
	 	By: /s/ Shannon K S Johnson
	Santa Ana, California 92705
	 	Name: Shannon K S Johnson
	Attn: Shannon Johnson and Dan Prosky
	 	Title: Authorized Signatory
	INDEMNITOR:
	 	 	 	 
	The address of Indemnitor is:
	 	 	 	 
	NNN Healthcare/Office REIT, Inc.
	 	NNN HEALTHCARE/OFFICE REIT, INC., a
	c/o Triple Net Properties, LLC
	 	Maryland corporation
	1551 N. Tustin Avenue, Suite 300
	 	By: /s/ Shannon K.S. Johnson
	Santa Ana, California 92705
	 	Name: Shannon K.S. Johnson
	Attn: Shannon Johnson and Dan Prosky
	 	Title: Chief Financial Officer
	The address for providing notices to
Lender is:
	 	 	 	 
	Wachovia Financial Services, Inc.
Real Estate Financial Services
General Banking Group
Mail Code: CA 6233
15750 Alton Parkway
Irvine, California 92618
Attn: Anne McNeil
	 	 	 	 







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