GUARANTY
(Securities Laws)
THIS GUARANTY (“
Guaranty ”) is made as of this 2 nd
day of January, 2007 in favor of LASALLE BANK NATIONAL ASSOCIATION,
a national banking association, having an address at 135 South
LaSalle Street, Suite 3410, Chicago, Illinois 60603 (together
with its successors and assigns, “ Lender
”) by NNN REALTY ADVISORS, INC., a Virginia corporation,
having an address at 1551 North Tustin Avenue, Ste. 300, Santa Ana,
California 92705 (“ Guarantor ”).
BACKGROUND
A. Lender has agreed to loan the
principal amount of Twelve Million and No/100 Dollars
($12,000,000.00) (“ Loan ”) to NNN Lenox
Medical, LLC, a Delaware limited liability company, (“
Borrower ”). The Loan also will be evidenced by
Borrower’s promissory note to Lender of even date herewith
(“ Note ”) and secured by, among other
things, a mortgage, deed of trust, deed to secure debt or similar
security instrument made by Borrower to Lender also of even date
herewith (“ Security Instrument ”) which grants
to Lender, among other things, a first lien on the property
described therein.
B. Guarantor will derive
substantial benefit from Lender’s making of the Loan.
C. Lender requires as a
condition to making the Loan that Guarantor execute this
Guaranty.
NOW, THEREFORE, to induce Lender to
make the Loan, and in consideration of the substantial benefit
Guarantor will derive from the Loan, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, Guarantor
hereby agrees as follows:
ARTICLE
1
DEFINED
TERMS
Section 1.01 Defined
Terms . Capitalized terms used in this Guaranty and not
specifically defined in this Guaranty have the meaning provided in
the Security Instrument.
ARTICLE
2
OBLIGATION
GUARANTEED
Section 2.01 Guaranty .
Guarantor irrevocably and unconditionally guarantees to Lender the
prompt payment of all losses, expenses, and other liabilities
arising out of or attributable to (i) the violation of any
applicable law governing the sale of securities in connection with
the structure, organization, sale or syndication of membership
interests in NNN Lenox Medical, LLC, or in the sale or syndication
of tenant in common ownership interests in the Property, and
(ii) the Securities Liabilities (as hereinafter defined) and
any legal or other expenses reasonably incurred by Lender, in
investigating or defending the Securities Liabilities, to the
extent such Securities Liabilities relate to any Securities and
Exchange Commission investigation, inquiry or proceeding relating
to Triple Net Properties, LLC or any of its affiliates
(collectively, the “Guaranteed Obligations”). As used
herein, the term “Securities Liabilities” shall mean
any liability, obligation or other remedy (including, without
limitation, any right of rescission in favor of any Borrower or any
member of any Borrower) arising from or related to that certain
investigation by the Securities and Exchange Commission (the
“SEC”) captioned “In the matter of Triple Net
Properties, LLC” (as well as any subsequent related
investigation involving any affiliate of Triple Net Properties,
LLC) pursuant to which the SEC has requested information, including
financial information, from Triple Net Properties, LLC relating to
disclosure in public and private securities offerings sponsored by
Triple Net Properties and its affiliates.
Section 2.02 Continuing
Obligation . This Guaranty is a continuing guaranty and in full
force and effect and will be discharged only if and when the Loan
has been paid in full, and all obligations under the Security
Instrument and other Loan Documents have been fully performed;
provided , however , that notwithstanding any of the
foregoing to the contrary, this Guaranty shall remain in full force
and effect for so long as any payment hereunder may be voided in
bankruptcy proceedings as a preference or for any other reason.
Section 2.03 Direct Action
Against Guarantor . Guarantor’s liability under this
Guaranty is a guaranty of payment and performance and not of
collection. Lender has the right to require Guarantor to pay,
comply with and satisfy its obligations and liabilities under this
Guaranty, and shall have the right to proceed immediately against
Guarantor with respect thereto, without being required to attempt
recovery first from Borrower or any other party, without first
suing on the Note or any other Loan Document and without
demonstrating that the collateral for the Loan is inadequate
security or that Lender has exercised (to any degree) or exhausted
any of Lender’s other rights and remedies with respect to
Borrower or any collateral for the Loan.
ARTICLE
3
GENERAL TERMS AND
CONDITIONS
Section 3.01 Payments Due;
Interest on Amounts Payable Hereunder . Amounts payable to
Lender under this Guaranty shall be immediately due and payable on
Lender’s written demand and shall be paid without reduction
by set-off, defense, counterclaim or cross-claim. Amounts not paid
within ten (10) business days of Lender’s written demand
shall, at Lender’s option and without prejudice to
Lender’s rights for failure to pay, bear interest at the
Default Rate (as defined in the Note) from the date of
Lender’s demand notice until paid in full. Interest at the
lower of the Default Rate (or the maximum interest rate permitted
by applicable law) also shall accrue on any judgment obtained by
Lender in connection with the enforcement or collection of amounts
due under this Guaranty until such judgment is paid in full. If
interest paid or payable hereunder is deemed to exceed the maximum
rate permitted by law, then the amount to be paid shall be
immediately reduced to such maximum rate and thereafter computed at
such maximum rate. Lender may apply all money received by Lender in
such priority and proportions as Lender may elect.
Section 3.02 Cumulative
Remedies . Guarantor acknowledges, that following an Event of
Default with respect to the Loan, Lender shall be entitled to
accelerate the Loan and exercise all other rights and remedies as
have been provided to Lender hereunder, under the other Loan
Documents, by law or in equity including without limitation
enforcement of this Guaranty. All rights and remedies are
cumulative and may be exercised independently, concurrently or
successively in Lender’s sole discretion and as often as
occasion therefor shall arise. Lender’s delay or failure to
accelerate the Loan or exercise any other remedy upon the
occurrence of an Event of Default with respect to the Loan shall
not be deemed a waiver of such right as remedy. No partial exercise
by Lender of any right or remedy will preclude further exercise
thereof. Notice or demand given to Borrower in any instance will
not entitle Borrower to notice or demand in similar or other
circumstances nor constitute Lender’s waiver of its right to
take any future action in any circumstance without notice or demand
(except where expressly required by this Guaranty to be given).
Lender may release other security for the Loan, may release any
party liable for the Loan, may grant extensions, renewals or
forbearances with respect thereto, may accept a partial or past due
payment or grant other indulgences, or may apply any other security
held by it to payment of the Loan, in each case without prejudice
to its rights under this Guaranty and without such action being
deemed an accord and satisfaction or a reinstatement of the Loan.
Lender will not be deemed as a consequence of its delay or failure
to act, or any forbearances granted, to have waived or be estopped
from exercising any of its rights or remedies.
Section 3.03 Enforcement
Costs . Guarantor hereby agrees to pay, on written demand by
Lender, all costs incurred by Lender in collecting any amount
payable under this Guaranty or enforcing or protecting its rights
under the Guaranty in each case whether or not legal proceedings
are commenced. Such fees and expenses include, without limitation,
reasonable fees for attorneys, paralegals and other hired
professionals, a reasonable assessment of the cost of services
performed by Lender’s default management staff, court fees,
costs incurred in connection with pre-trial, trial and appellate
level proceedings (including discovery and expert witnesses), costs
incurred in post-judgment collection efforts or in any bankruptcy
proceeding. Amounts incurred by Lender shall be immediately due and
payable, and shall bear interest at the Default Rate from the date
of disbursement until paid in full, if not paid in full within ten
(10) business days after Lender’s written demand for
payment.
Section 3.04 Unimpaired
Liability . Guarantor acknowledges and agrees that all
obligations hereunder are and shall be absolute and unconditional
under any and all circumstances without regard to the validity,
regularity or enforceability of any or all of the Loan Documents or
the existence of any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor
or surety. Without limiting the foregoing, Guarantor acknowledges
and agrees that its liability hereunder shall in no way be
released, terminated, discharged, limited or impaired by reason of
any of the following (whether or not Guarantor has any knowledge or
notice thereof): (a) the irregularity, invalidity or
unenforceability, in whole or in part, of any of the Loan Documents
against Borrower or Lender; (b) Borrower’s lack of
authority or lawful right to enter into any of the Loan Documents;
(c) any modification, supplement, extension, consolidation,
restatement, waiver or consent provided by Lender with respect to
any of the Loan Documents including, without limitation, approval
of a Transfer or the grant of extensions of time for payment or
performance; (d) failure to record any Loan Document or to
perfect any security interest intended to be provided thereby or
otherwise to protect, secure or insure any collateral for the Loan;
(e) Lender’s failure to exercise, or delay in
exercising, any rights or remedies Lender may have under the Loan
Documents or under this Guaranty Agreement; (f) the release or
substitution, in whole o
