CONSENT TO
TRANSFER AND AGREEMENT
THIS CONSENT TO TRANSFER AND
AGREEMENT (this “ Agreement ”) is made and
entered into as of the 9 th day of March, 2007, by and
among NNN GALLERY MEDICAL, LLC, a Delaware limited liability
company, having its principal place of business at 1551 N. Tustin
Avenue, Suite 300, Santa Ana, California 92705 (“
Borrower ”), NNN HEALTHCARE/OFFICE REIT HOLDINGS,
L.P., a Delaware limited partnership, having an address at 1551
N. Tustin Avenue, Suite 300, Santa Ana, California 92705
(“ Assuming Member ”), NNN GALLERY MEDICAL
MEMBER, LLC , a Delaware limited liability company, having an
address at 1551 N. Tustin Avenue, Suite 300, Santa Ana,
California 92705 (“ Original Member ”), NNN
REALTY ADVISORS, INC. , a Delaware corporation, having an
address at 1551 N. Tustin Avenue, Suite 300, Santa Ana,
California 92705 (“ Guarantor ”), and LASALLE
BANK NATIONAL ASSOCIATION, a national association (“
Lender ”).
RECITALS
A. On February 5, 2007 (the
“ Closing Date ”), Lender pursuant to the Loan
Documents (as hereinafter defined) made a loan to Borrower, in the
original principal amount of $6,000,000.00 (the “ Loan
”). The Loan is evidenced and secured by the following
documents executed in favor of Lender by Borrower:
1. Promissory Note, dated as of
the Closing Date, payable by Borrower to Lender in the original
principal amount of SIX MILLION AND NO/100 DOLLARS ($6,000,000.00)
(the “ Note ”);
2. Mortgage, Security Agreement
and Fixture Filing dated as of the Closing Date, granted by
Borrower to Lender, recorded February
, 2007 as Document No.
, in the Office of the
Recorder in County, Minnesota
(“ Recorder’s Office ”) (the “
Mortgage ”) ;
3. Assignment of Leases and
Rents, dated as of the Closing Date granted by Borrower in favor of
Lender, recorded February ,
2007 as Document No. in the
Recorder’s Office;
4. UCC-1 financing statements
with Borrower as debtor and Lender as secured party, one filed with
the Recorder’s Office and one filed with the Secretary of
State of Delaware (the “ Financing Statements
”);
5. Manager’s Agreement,
Subordination and Consent to Assignment dated as of the Closing
Date by Triple Net Properties Realty, Inc. and consented to be
Borrower;
6. Hazardous Substances
Indemnity Agreement dated as of the Closing Date (the “
Hazmat Indemnity ”) by Borrower and Guarantor in favor
of Lender;
7. Assignment of Management
Agreement dated as of the Closing Date between Borrower and Lender;
and
8. Borrower’s Certificate
dated as of the Closing Date by Borrower to Lender.
The foregoing documents, together with any and all other
documents executed by Borrower in connection with the Loan, are
collectively called the “ Loan Documents .”
B. Borrower continues to be the
owner of the real property and improvements thereon described in
and encumbered by the Mortgage and the other Loan Documents (the
“ Property ”).
C. Original Member is the sole
member of Borrower.
D. Pursuant to that certain
Membership Interest Purchase and Sale Agreement dated on or about
, 2007 (the “
Purchase Agreement ”), Original Member agreed to sell
and Assuming Member agreed to purchase all of the outstanding
membership interests in Borrower.
E. Pursuant to Section 15(e) of
the Mortgage, Lender agreed not to withhold its consent to a
request from Borrower for Lender’s consent to the sale of the
membership interests in Borrower to a newly formed entity that is
owned and controlled by the real estate investment trust affiliated
with Guarantor approved by Lender in its reasonable discretion
subject to the satisfaction of certain conditions specified
therein. Borrower, Original Member and Assuming Member have
requested that Lender consent to the sale, conveyance, assignment
and transfer of membership interests in Borrower by Original Member
to Assuming Member.
F. Lender is willing to consent
to the sale, conveyance, assignment and transfer of membership
interests in Borrower by Original Member to Assuming Member,
subject to the terms and conditions set forth in this Agreement,
the Mortgage, and in the other Loan Documents.
G. The parties hereto, by their
respective executions hereof, evidence their consent to the
transfer of the membership interests in Borrower to Assuming Member
and the modification of the Loan Documents as hereinafter set
forth.
STATEMENT OF
AGREEMENT
In consideration of the mutual
covenants and agreements set forth herein, the parties hereto
hereby agree as follows:
1. Representations,
Warranties, and Covenants of Original Member .
(a) Original Member hereby
represents to Lender, as of the date hereof, that: (i)
contemporaneously with the execution and delivery hereof, it has
conveyed and transferred all of the membership interests in
Borrower to Assuming Member; (ii) it has not received a pledge
or other security interest from Assuming Member encumbering the
membership interests in Borrower to secure the payment of any sums
due Original Member or obligations to be performed by Assuming
Member; (iii) the Note has an unpaid principal balance of
$6,000,000.00 as of the date hereof; (iv) the Mortgage is a
valid first lien on the Property for the full unpaid principal
amount of the Loan and all other amounts as stated therein;
(v) there are no defaults under the provisions of the Note,
the Mortgage or the other Loan Documents; (vi) there are no
defenses, set-offs or rights of defense, set-off or counterclaim
whether legal, equitable or otherwise to the obligations evidenced
by or set forth in the Note, the Mortgage or the other Loan
Documents; (vii) all provisions of the Note, the Mortgage and
other Loan Documents are in full force and effect;
(viii) there are no subordinate liens of any kind covering or
relating to the Property nor are there any mechanics’ liens
or liens for unpaid taxes or assessments encumbering the Property,
nor has notice of a lien or notice of intent to file a lien been
received; and (ix) all conditions in Section 15(e) of the
Mortgage related to the transfer to Assuming Member are satisfied
or waived or shall be satisfied contemporaneously herewith.
(b) Original Member hereby
covenants and agrees that: (i) from and after the date hereof,
Lender may deal solely with Assuming Member, as sole member of
Borrower, in all matters relating to the Loan, the Loan Documents,
and the Property; (ii) it shall not at any time hereafter take
a pledge or other security interest from Assuming Member
encumbering the membership interests in Borrower or from the
Borrower encumbering the Property, as the case may be, to secure
any sums to be paid or obligations to be performed by Assuming
Member so long as any portion of the Loan remains unpaid;
(iii) Lender has no further duty or obligation of any nature
relating to this Loan or the Loan Documents to Original Member;
(iv) upon payment in full of the purchase price from Assuming
Member contemporaneously herewith, Assuming Member shall have no
further duty or obligation of any nature relating to the Purchase
Agreement to Original Member except for reasonable and customary
indemnifications relating to the transfer; and (v) it hereby
releases Lender, and each of its predecessors in interest, together
with any officers, directors, partners, employees and agents of
each of the foregoing, from all claims and liabilities relating to
the transaction evidenced by the Loan Documents through and
including the date hereof.
Original Member understands and intends that Lender shall rely
on the representations, warranties and covenants contained
herein.
2. Representations,
Warranties, and Covenants of Assuming Member .
(a) Assuming Member hereby
represents and warrants to Lender, as of the date hereof, that: (i)
it is a duly organized and validly existing limited partnership
formed under the laws of the State of Delaware;
(ii) simultaneously with the execution and delivery hereof, it
has purchased from Original Member all of the membership interests
in Borrower; (iii) it has not granted to Original Member a
pledge or other security interest upon the membership interests in
Borrower or the Property to secure any debt or obligations now or
hereafter owed to Original Member; (iv) its general partner is
NNN Healthcare/Office REIT, Inc., a Maryland corporation (the
“ REIT ”) which is a real estate investment
trust affiliated with Guarantor and (v) the purchase price
shall contemporaneously be paid in full to Original Member and
Assuming Member shall have no further duty or obligation of any
nature relating to the Purchase Agreement to Original Member except
for reasonable and customary indemnifications relating to the
transfer.
(b) Assuming Member hereby
covenants and agrees that: (i) it hereby acknowledges and
affirms the obligations of Borrower contained in the Loan
Documents; (ii) it shall cause Borrower to pay when and as due
all sums due under the Note and other Loan Documents as modified
hereby; and (iii) it shall cause Borrower to perform all
obligations imposed upon Borrower under the Mortgage and all other
Loan Documents, all as modified hereby. Assuming Member shall not
hereafter, without Lender’s prior consent in accordance with
the terms of the Loan Documents, encumber the membership interests
in Borrower or permit the encumbrance of the Property, or sell or
transfer the membership interests in Borrower, or permit the sale
or transfer of the Property or any interest therein, except as may
be specifically permitted in the Loan Documents. Assuming Member
has no knowledge that any of the representations and warranties
made by the Original Member herein are untrue, incomplete, or
incorrect.
Assuming Member understands and intends that Lender shall rely
on the representations, warranties and covenants contained
herein.
3. Representations,
Warranties, and Covenants of Borrower . Borrower hereby
acknowledges and affirms the Indebtedness (as defined in the
Mortgage) and all of the other obligations set forth in the Note,
the Mortgage and the other Loan Documents in accordance with their
respective terms and conditions, as the same may be modified by
this Agreement. Borrower further acknowledges that it is bound by
all of the terms of the Loan Documents, including but not limited
to, the representations, warranties, covenants, assurances and
indemnifications therein, all as though each of the Loan Documents
had been made, executed, and delivered by Borrower on the date
hereof. Borrower agrees to pay, perform, and discharge each and
every obligation of payment and performance under, pursuant to and
as set forth in the Note, the Mortgage and the other Loan Documents
at the time, in the manner and otherwise in all respects as therein
provided. Borrower hereby acknowledges, agrees and warrants that
(i) it is a duly organized and validly existing limited
liability company under the laws of the State of Delaware and is
qualified to do business and is in good standing in the State of
Minnesota; (ii) there are no rights of set-off or
counterclaim, nor any defenses of any kind, whether legal,
equitable or otherwise, which would enable Borro
