Current Report — Form 8-K Filing Table of Contents
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1: 8-K Current Report HTML 41K
2: EX-10.1 Material Contract HTML 166K
3: EX-10.2 Material Contract HTML 14K
4: EX-10.3 Material Contract HTML 110K
5: EX-10.4 Material Contract HTML 40K
6: EX-10.5 Material Contract HTML 22K
7: EX-10.6 Material Contract HTML 12K
8: EX-10.7 Material Contract HTML 70K
9: EX-10.8 Material Contract HTML 47K
10: EX-10.9 Material Contract HTML 180K
11: EX-99.1 Miscellaneous Exhibit HTML 14K
FOR VALUE RECEIVED NNN Eastern Wisconsin Medical Portfolio, LLC, a Delaware limited liability
company (“Borrower”), having its principal place of business at c/o Triple Net Properties,
1551 N. Tustin Avenue, Suite 300, Santa Ana, California92705 promises to pay to the order of PNC
Bank, National Association (“Lender”), at the following address: 10851 Mastin, Suite 300,
Overland Park, Kansas66210, or such other place as the holder hereof may from time to time
designate in writing, the principal sum of Thirty Two Million Three Hundred Thousand and No/100
Dollars ($32,300,000.00) in lawful money of the United States of America, with interest thereon to
be computed from the date of disbursement under this Promissory Note (the “Note”) at the
Applicable Interest Rate (hereinafter defined), and to be paid in installments as follows:
A.
A payment, on the date of disbursement, representing interest from the date of
disbursement through the last day of the calendar month in which such disbursement is
made;
B.
An interest-only payment, representing interest for the immediately preceding
calendar month, on the first day of February, 2008 and on the first day of each
calendar month thereafter up to and including the first day of January, 2013;
C.
A constant payment of $203,309.03 (based upon an amortization schedule assuming
a 360 day year consisting of 12 months of 30 days each) on the first day of February,
2013 and on the first day of each calendar month thereafter up to and including the
first day of December, 2017; and
D.
The balance of said principal sum, all unpaid interest thereon and all other
amounts owed pursuant to this Note, the Security Instrument (hereinafter defined), the
Other Security Documents (hereinafter defined), or otherwise in connection with the
loan evidenced by this Note shall be due and payable on the first day of January, 2018
(the “Maturity Date”).
All payments to be made by Borrower to Lender shall be deemed received by Lender only upon Lender’s
actual receipt of same.
1. Applicable Interest Rate. Interest accruing on the principal sum of this Note
shall be calculated based upon a per annum interest rate divided by 360 days resulting in a per
diem interest amount that will accrue for each calendar day in a year of 365 days (366 days in a
leap year). The term “Applicable Interest Rate” as used in this Note shall mean, from the
date of this Note through and including the Maturity Date, a rate of six and forty-six hundredths
percent (6.46%) per annum.
2. Application. All payments on this Note shall be applied at any time and from time
to time in the following order: (i) the payment or reimbursement of any expenses (including but
not limited to late charges), costs or obligations (other than the principal hereof and interest
hereon) for which Borrower shall be obligated or Lender entitled pursuant to the provisions hereof
or of the Security Instrument or the Other Security Documents, (ii) the payment of accrued but
unpaid interest thereon, (iii)
the payment of unpaid escrow amounts required herein, in the Security Instrument or in the
Other Security Documents, and (iv) the payment of all or any portion of the principal balance then
outstanding hereunder, in either the direct or inverse order of maturity, at Lender’s option.
3. Late Charge. If any part of the Debt (hereinafter defined) is not actually
received by Lender by close of business on the fifth (5th) day after the date on which it was due,
Borrower shall pay to Lender an amount (the “Late Charge”) equal to the lesser of five
percent (5%) of such unpaid portion of the missed payment or the maximum amount permitted by
applicable law, to defray the expenses incurred by Lender in handling and processing such
delinquent payment and to compensate Lender for the loss of the use of such delinquent payment.
All such Late Charges shall be automatically due and payable without notice or demand and shall be
secured by the Security Instrument and the Other Security Documents.
4. Security; Defined Terms; Incorporation by Reference. This Note is secured by the
Security Instrument and the Other Security Documents. The term “Security Instrument” as used in
this Note shall mean either the Mortgage, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, or the Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, executed and delivered by Borrower contemporaneously with this Note and which
secures the Debt. The term “Other Security Documents” means all documents other than this
Note or the Security Instrument now or hereafter executed and/or delivered by Borrower and/or
others and to or in favor of Lender, which wholly or partially secure, evidence or guarantee
payment of the Debt, provide for any indemnity in favor of or payment to Lender related to the
Debt, this Note or the Mortgaged Property (as defined in the Security Instrument), provide for any
escrow/holdback arrangements or for any actions to be completed by Borrower subsequent to the date
hereof, or are otherwise related to the loan evidenced by this Note. All amounts due and payable
under this Note, together with all sums due under the Security Instrument and the Other Security
Documents, including any applicable Prepayment Consideration (hereinafter defined) and all
applicable attorney fees and costs, are collectively referred to herein as the “Debt.”
Where appropriate, the singular number shall include the plural, the plural shall include the
singular, and the words “Lender” and “Borrower” shall include their respective
successors, assigns, heirs, personal representatives, executors and administrators.
5. Prepayment/Defeasance.
(a) When Permitted. Prior to November 1, 2017 (the “Early Payment Date”),
Borrower shall not have the right to prepay all or any portion of the Debt at any time during the
term of this Note (except for any prepayment permitted under the Security Instrument in the event
of a casualty or condemnation). No Prepayment Consideration (hereinafter defined) will be due from
any prepayment of this Note (in whole but not in part) on or after the Early Payment Date.
Notwithstanding the foregoing or anything else to the contrary herein, upon the completion of a
defeasance as set forth below, Borrower shall have no further right to prepay all or any portion of
the Debt. In the event of a prepayment on or after such date, Borrower shall pay, together with
the amount of such prepayment, an amount equal to (i) all accrued and unpaid interest, and (ii) any
other sums due under this Note, the Security Instrument or any Other Security Document.
Additionally, any such prepayment not actually received by Lender before 5:00 p.m., Central Time,
on the 5th day of any calendar month must also include the interest which would have accrued on the
amount of such prepayment during the entire calendar month in which the prepayment is made.
(b) Notice. Borrower may give written notice to Lender specifying the date, which
date must be on or after the Early Payment Date, on which a full prepayment of the Debt is to be
made (the date of any prepayment hereunder, whether pursuant to such notice or not, and whether
voluntary or involuntary, being herein called the “Prepayment Date”). Lender shall receive
this notice not more than sixty (60) days and not less than thirty (30) days prior to the
Prepayment Date. If any such notice of prepayment is
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given, the entire Debt, including any applicable Prepayment Consideration (as defined below),
shall be due and payable on the Prepayment Date.
(c) Prepayment After Event of Default. If following the occurrence of any Event of
Default, Borrower shall tender payment of an amount sufficient to satisfy the Debt at any time
prior to or after a sale of the Mortgaged Property, either through foreclosure or the exercise of
the other remedies available to Lender under the Security Instrument or the Other Security
Documents, such tender by Borrower shall be deemed to be a voluntary prepayment under this Note in
the amount tendered and in such case Borrower shall also pay to Lender, with respect to the amount
tendered, the applicable Prepayment Consideration set forth in this Note, which Prepayment
Consideration shall be immediately due and payable. Lender shall not be obligated to accept any
such prepayment of this Note unless it is accompanied by an amount (the “Prepayment
Consideration”) equal to the greater of: (x) one percent (1%) of the outstanding principal
balance of this Note at the time of prepayment; or (y) the Yield Maintenance Amount (hereinafter
defined).
Lender shall not be obligated to accept any such tender unless it is accompanied by all
Prepayment Consideration due in connection therewith. Borrower acknowledges that the Prepayment
Consideration is a bargained for consideration to Lender for the privilege of prepaying the Debt
prior to maturity, and not a penalty, and Borrower recognizes that Lender would incur substantial
additional costs and expenses in the event of a prepayment of the Debt and that the Prepayment
Consideration compensates Lender for such costs and expenses (including without limitation, the
loss of Lender’s investment opportunity during the period from the date such tender is accepted
until the Maturity Date). Borrower agrees that Lender shall not, as a condition to receiving the
Prepayment Consideration, be obligated to actually reinvest the amount prepaid in any treasury
obligation or in any other manner whatsoever. Except as otherwise set forth in the Security
Instrument, no Prepayment Consideration will be due for involuntary prepayments resulting from any
Casualty (as defined in the Security Instrument) or Condemnation (as defined in the Security
Instrument).
Yield Maintenance Amount. The “Yield Maintenance Amount” shall mean the
present value, as of the Prepayment Date, of the remaining scheduled payments of principal and
interest from the Prepayment Date through the Maturity Date (including any balloon payment)
determined by discounting such payments at the Discount Rate (hereinafter defined), less the amount
of principal being prepaid. The term “Discount Rate” shall mean the rate which, when
compounded monthly, is equivalent to the Treasury Rate (hereinafter defined) when compounded
semi-annually. The term “Treasury Rate” shall mean the yield calculated by the linear
interpolation of the yields, as reported in Federal Reserve Statistical Release H.15-Selected
Interest Rates under the heading U.S. Government Securities/Treasury Constant Maturities for the
week ending prior to the Prepayment Date, of U.S. Treasury constant maturities with maturity dates
(one longer and one shorter) most nearly approximating the Maturity Date. (In the event Release
H.15 is no longer published, Lender shall select a comparable publication to determine the Treasury
Rate.) Lender shall notify Borrower of the amount and the basis of determination of the required
Prepayment Consideration.
(d) Defeasance. Any provision hereof to the contrary notwithstanding, at any time
during the Defeasance Period (as defined below), Borrower may obtain a release of the Mortgaged
Property from the lien of the Security Instrument only upon the satisfaction of the following
conditions:
(i) not less than thirty (30) days prior written notice shall be given to Lender
specifying a date (the “Defeasance Date”) on which the Defeasance Collateral (as
defined below) is to be delivered, such date being the first day of the month;
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(ii) all accrued and unpaid interest and all other sums due under this Note, the
Security Instrument and the Other Security Documents up to the Defeasance Date, including,
without limitation, all reasonable costs and expenses incurred by Lender or its agents in
connection with such defeasance, including, without limitation, any legal fees and expenses
incurred in connection with obtaining and reviewing the Defeasance Collateral, the
preparation of the Defeasance Security Agreement (as defined below) and related
documentation, accountant fees, and investment advisor fees, all of which shall be paid in
full on or prior to the Defeasance Date;
(iii) no Event of Default, and no event or condition that, with the giving of notice or
passage of time or both, would constitute an Event of Default, shall exist either at the
time Borrower gives notice of the Defeasance Date to Lender or on the Defeasance Date;
(iv) Borrower shall deliver to Lender on or before the Defeasance Date direct,
non-callable obligations of the United States of America in such form and amount that
provide for the payments prior, but as close as possible, to all successive regularly
scheduled monthly payment dates, including the Maturity Date, with such payments being equal
to or greater than the amount of the corresponding monthly payment required to be paid under
this Note (hereafter, “Scheduled Defeasance Payments”) for the balance of the term
hereof and the amount required to be paid on the Maturity Date (such obligations are
collectively and singularly referred to herein as “Defeasance Collateral”) each of
which shall be duly endorsed by the holder thereof as directed by Lender or accompanied by a
written instrument of transfer in form and substance wholly satisfactory to Lender
(including, without limitation, such instrument as may be required by the depository
institution holding such securities or the issuer thereof, as the case may be, to effectuate
book-entry transfers and pledges through the book-entry facilities of such institution) in
order to perfect a first priority security interest in such Defeasance Collateral in favor
of Lender. The Defeasance Collateral may be purchased by Lender on Borrower’s behalf, in
which case Borrower shall deposit with Lender at least three days before the Defeasance Date
a sum sufficient, in Lender’s sole and absolute discretion, to purchase the Defeasance
Collateral. Any sums in excess of the amount necessary to purchase the Defeasance
Collateral shall be remitted to Borrower upon release of the Mortgaged Property.
(v) Borrower shall deliver the following to Lender, at Borrower’s cost, on or prior to
the Defeasance Date:
(A) a pledge and security agreement, in form and substance satisfactory to
Lender in its sole discretion, creating a first priority security interest in favor
of Lender in the Defeasance Collateral (the “Defeasance Security
Agreement”);
(B) a certificate of Borrower certifying that all of the requirements hereunder
for a defeasance have been satisfied;
(C) an opinion of counsel in form and substance and delivered by counsel
satisfactory to Lender in its sole discretion stating, among other things, (x) that
Lender has a perfected first priority security interest in the Defeasance
Collateral, (y) that the Defeasance Security Agreement is enforceable against
Borrower in accordance with its terms and (z) that the defeasance will not cause the
entity which holds this Note to fail to qualify as a “real estate mortgage
investment conduit” (a “REMIC”), within the meaning of Section 860D of the
Internal Revenue Code of 1986, as amended from time to time or any successor statute
(the “Code”);
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(D) an opinion of an independent certified public accountant acceptable to
Lender representing and warranting to Lender that the Defeasance Collateral will
generate monthly amounts equal to or greater than the Scheduled Defeasance Payments
including the amount required to be paid on the Maturity Date of this Note, and such
other approvals required by Lender;
(E) evidence in writing from each of the Rating Agencies to the effect that
such release will not result in a qualification, downgrade or withdrawal of any
rating in effect immediately prior to the Defeasance Date for any securities or
“Pass-Through Certificates” issued pursuant to the terms of a trust and servicing
agreement in the event that this Note or any interest therein is included in a REMIC
or other securitization vehicle;
(F) such other certificates, opinions, documents or instruments as Lender may
reasonably require; and
(G) upon approval by Lender of the schedule of Defeasance Collateral to be
delivered to Lender, Borrower shall (i) pay Lender a nonrefundable fee, in an amount
reasonably determined by Lender, as compensation for the review, analysis and
processing of the defeasance request; and (ii) if required by Lender, deposit with
Lender an amount estimated by Lender to be sufficient to fund all other fees, costs
and expenses related to the defeasance, including Lender’s reasonable attorneys’
fees and expenses and rating agency fees, if any and expenses together with all
expenses and costs associated with the release of the lien on the Mortgaged
Property. Borrower shall be responsible for all fees, costs and expenses associated
with the defeasance which, if not covered by the above deposit, shall be paid to
Lender no later than the Defeasance Date.
Upon compliance with the foregoing requirements relating to the delivery of the Defeasance
Collateral, the Mortgaged Property shall be released from the lien of the Security Instrument and
the Defeasance Collateral shall constitute collateral which shall secure this Note and the Debt.
The “Defeasance Period” shall mean the period of time: (1) commencing on the date
which is the later to occur of: (A) two (2) years after the “start-up day,” within the meaning of
Section 860(G)(a)(9) of the Code, of the REMIC that holds this Note; and (B) three (3) years after
the date of the first regularly scheduled monthly payment due hereunder, and (2) ending on the
Early Payment Date. The “Rating Agencies” shall mean, collectively, Standard & Poor’s
Ratings Services, Moody’s Investors Service, Inc., Fitch IBCA, Inc., and their respective
successors and assigns, to the extent each of the foregoing performed credit rating services for
the REMIC or other securitization vehicle which owns this Note.
(e) Successor Borrower. In connection with a defeasance under this Section, Borrower
shall establish or designate a successor entity (the “Successor Borrower”) which shall be a
single purpose entity approved by Lender in its sole discretion. Borrower shall transfer and
assign all obligations, rights and duties under and to this Note together with the Defeasance
Collateral to such Successor Borrower. Such Successor Borrower shall assume the obligations under
this Note and the Security Instrument and Borrower shall be relieved of its obligations under such
documents except for any such representations that specifically survive the defeasance. Borrower
shall pay $1,000 to any such Successor Borrower as consideration for assuming the obligations under
this Note and the Security Instrument. Borrower shall pay all costs and expenses incurred by
Lender, including Lender’s attorneys’ fees and expenses, incurred in connection with establishment
of the Successor Borrower.
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(f) Defeasance Collateral Account. All cash from interest and principal payments paid
on the Defeasance Collateral shall be paid over to Lender for each Scheduled Defeasance Payment and
applied first to accrued and unpaid interest and then to principal. Any cash from interest and
principal paid on the Defeasance Collateral not needed to pay accrued and unpaid interest or
principal shall be retained in a designated account established by Borrower or Successor Borrower
as the case may be, (the “Defeasance Collateral Account”) which shall constitute additional
collateral for the loan evidenced hereby. The Defeasance Collateral Account shall contain only
cash from interest and principal paid on the Defeasance Collateral. Borrower or Successor
Borrower, as applicable, shall be the owner of the Defeasance Collateral Account and shall report
all income accrued thereon for federal, state and local income tax purposes and shall pay all costs
and expenses associated with opening and maintaining the account and may pay all costs and expenses
associated with maintaining the Successor Borrower from such account. Lender shall have no
responsibility to fund any Scheduled Defeasance Payments and shall not be liable in any way by
reason of any insufficiency in the Defeasance Collateral Account. Upon an assumption by Successor
Borrower acceptable to Lender, Borrower shall be relieved of its obligations under this Note and
the Defeasance Security Agreement and, to the extent such documents relate to the Mortgaged
Property, the Other Security Documents.
(g) Release of Security Instrument Following Defeasance. Upon compliance with the
requirements hereunder for a defeasance, the Mortgaged Property shall be released from the lien of
the Security Instrument and the Other Security Documents, and the Defeasance Collateral shall
constitute collateral securing this Note. Lender will, at Borrower’s expense, execute and deliver
any agreements reasonably requested by Borrower to release the lien of the Security Instrument from
the Mortgaged Property.
(h) Purchase of Defeasance Collateral. In the event of purchase by Lender of the
Defeasance Collateral, such purchase may, in Lender’s sole and absolute discretion be through an
affiliate of Lender or a third party entity. Borrower shall be responsible for the payment of any
brokerage or other transaction fees in connection with such purchase.
6. Default. An “Event of Default” shall occur if:
(a) Borrower fails to make the full and punctual payment of any amount payable hereunder or
under the Security Instrument or Other Security Documents, which failure is not cured on or before
the fifth (5th) day after the date of written notice from Lender to Borrower of such failure;
(b) Borrower fails to pay the entire outstanding principal balance hereunder, together with
all accrued and unpaid interest, on the date when due, whether on the Maturity Date, upon
acceleration or prepayment or otherwise; or
(c) an Event of Default (as defined in the Security Instrument or any of the Other Security
Documents) has occurred under the Security Instrument and/or Other Security Documents.
7. Acceleration. The whole of the Debt, including without limitation, the principal
sum of this Note, all accrued interest and all other sums due under this Note, the Security
Instrument and the Other Security Documents, together with any applicable Prepayment Consideration,
shall become immediately due and payable at the option of Lender, without notice, at any time
following the occurrence of an Event of Default.
8. Default Interest. Upon the occurrence of an Event of Default (including without
limitation, the failure of Borrower to pay the Debt in full on the Maturity Date), Lender shall be
entitled to receive and Borrower shall pay interest on the entire unpaid principal balance at the
rate (the “Default
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Rate”) equal to the greater of: (a) four percent (4%) above the Applicable Interest
Rate; or (b) four percent (4%) above the Prime Rate (hereinafter defined) in effect at the time of
the occurrence of the Event of Default; provided, however, that notwithstanding the
foregoing, in no event shall the Default Rate exceed the Maximum Rate (hereinafter defined). The
term “Prime Rate” shall mean the prime rate reported in the Money Rates section of The Wall
Street Journal for the date (the “Default Rate Calculation Date”) upon which the Event of
Default occurred, or if no publication occurs upon such date, then the date of publication
immediately preceding the date of the Event of Default. In the event that The Wall Street Journal
should cease or temporarily interrupt publication, the term “Prime Rate” shall mean the daily
average prime rate published upon the Default Rate Calculation Date in another business newspaper,
or business section of a newspaper, of national standing chosen by Lender. In the event that a
prime rate is no longer generally published or is limited, regulated or administered by a
governmental or quasi-governmental body, then Lender shall select a comparable interest rate index
which is readily available and verifiable to Borrower but is beyond Lender’s control. The Default
Rate shall be computed from the occurrence of the Event of Default until the actual payment in full
of the Debt. This charge shall be added to the Debt, and shall be deemed secured by the Security
Instrument. This clause, however, shall not be construed as an agreement or privilege to extend
the Maturity Date, nor as a waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default.
9. Attorney Fees. In the event that Lender employs attorney(s) to collect the Debt,
to enforce the provisions of this Note or to protect or foreclose the security herefor, Borrower
agrees to pay Lender’s attorney fees and disbursements, whether or not suit be brought. Such fees
shall be immediately due and payable. As used herein, “Lender’s attorney fees and disbursements,”“attorney fees and costs,” and similar words and phrases shall include, but not be limited to,
litigation preparation costs and expenses, paraprofessional fees, secretarial overtime,
depositions, electronic research, postage, travel, communications and related costs and expenses,
and expenses of preparing the Mortgaged Property for sale, including, without limitation, all costs
and expenses of environmental testing, investigation, reporting, remediation and clean-up.
10. Limit of Validity. This Note is subject to the express condition that at no time
shall Borrower be obligated or required to pay interest or other charges on the Debt at a rate
which may subject Lender to civil or criminal liability as a result of such rate exceeding the
maximum interest rate which Borrower is permitted to pay by applicable law (the “Maximum Rate”).
If by the terms of this Note, Borrower is at any time required or obligated to pay interest or
other charges on the Debt at a rate in excess of the Maximum Rate, the rate of interest due under
this Note shall be deemed to be immediately reduced to the Maximum Rate and any previous payments
in excess of the Maximum Rate shall be deemed to have been payments in reduction of principal and
not on account of the interest due hereunder.
11. No Oral Amendments. This Note may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or
Lender, but only by an agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is sought.
12. Exculpation. Subject to the provisions of this Section, Borrower’s liability
under this Note, the Security Instrument or the Other Security Documents shall only extend to the
Mortgaged Property and other collateral given to secure the Debt, and Lender shall not enforce such
liability against any other asset, property or funds of Borrower; provided, however, the foregoing
shall not:
(a) impair the right of Lender to bring suit and obtain personal, recourse judgments against
any person or entity (including Borrower) relating to any losses (including attorney’s fees and
court costs) sustained by Lender in connection with any fraud, intentional misrepresentation,
waste, or
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misappropriation of tenant security deposits or rents collected more than one (1) month in
advance by Borrower;
(b) impair the right of Lender to name, and obtain a judgment against any person or entity
(including Borrower) to the extent required by law to either obtain a judgment of specific
performance with respect to any of the provisions of this Note, the Security Instrument or any of
the Other Security Documents, or to foreclose the Security Instrument and obtain title to the
Mortgaged Property and other collateral given to secure the Debt;
(c) affect the validity or enforceability of, or impair the right of Lender to bring suit and
obtain personal, recourse judgments against any person or entity (including Borrower) to enforce
any guaranty, indemnity or release of liability made by such person or entity (whether made in this
Note, the Security Instrument, any of the Other Security Documents or in any other separate
agreement);
(d) impair the right of Lender to obtain the appointment of a receiver;
(e) impair the enforcement of the Assignment of Leases and Rents executed in connection
herewith; or
(f) affect the validity or enforceability of, or impair the right of Lender to bring suit and
obtain personal, recourse judgments against any person or entity (including Borrower) relating to
any losses sustained by Lender in connection with any of the provisions of this Note, the Security
Instrument or any of the Other Security Documents requiring that: (i) any person or entity maintain
any insurance over any of the Mortgaged Property, or (ii) any insurance proceeds or condemnation
awards be paid to Lender; or
(g) impair the right of Lender to bring suit and obtain personal, recourse judgments against
any person or entity (including Borrower) for the full amount of the Debt if the Mortgaged Property
or any part thereof shall become an asset in: (i) a voluntary bankruptcy or insolvency proceeding,
or (ii) an involuntary bankruptcy or insolvency proceeding: (A) which is commenced by any person or
entity controlling, controlled by or under common control with Borrower (the “Borrowing
Group”) or (B) in which any member of the Borrowing Group objects to a motion by Lender for
relief from any stay or injunction from the foreclosure of the Security Instrument or any other
remedial action permitted under this Note, the Security Instrument or any of the Other Security
Documents.
Items (a) through (g) above are collectively the “Non-Recourse Exceptions.” To the extent
Borrower is a general partnership and Lender is required under applicable law to pursue its
remedies against the persons or entities constituting Borrower, each reference to the phrase
“(including Borrower)” in the Non-Recourse Exceptions shall be deemed to read “(including Borrower
or any person or entity constituting Borrower).” Borrower’s liability under the Non-Recourse
Exceptions, excepting item (g), shall be limited to the amount of any losses or damages sustained
by Lender in connection with such Non-Recourse Exceptions. Nothing herein shall be deemed to be a
waiver of any right which Lender may have under Sections 506(a), 506(b), 1111(b) or any other
provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt secured by
the Security Instrument or to require that all of the Mortgaged Property and other collateral given
to secure the Debt shall continue to secure all of the Debt.
13. Assignment. Lender, and its successors, endorsees and assigns, may freely transfer
and assign this Note. Borrower’s right to transfer its rights and obligations with respect to the
Debt, and to be released from liability under this Note, shall be governed by the Security
Instrument.
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14. Applicable Law; Jurisdiction. This Note shall be governed and construed in
accordance with the laws of the state in which the real property encumbered by the Security
Instrument is located. Borrower hereby submits to personal jurisdiction in the state courts
located in said state and the federal courts of the United States of America located in said state
for the enforcement of Borrower’s obligations hereunder and waives any and all personal rights
under the law of any other state to object to jurisdiction within such state for the purposes of
any action, suit, proceeding or litigation to enforce such obligations of Borrower.
15. Joint and Several Liability. If Borrower consists of more than one person or
entity, the obligations and liabilities of each such person or entity shall be joint and several.
16. Waiver of Presentment, Etc. Borrower and all others who may become liable for the
payment of all or any part of the Debt do hereby severally waive relief from valuation and
appraisement laws, presentment and demand for payment, notice of dishonor, protest, notice of
protest, and notice of intent to accelerate the maturity hereof (and of such acceleration), except
to the extent that specific notices are required by this Note, the Security Instrument or the Other
Security Documents.
17. No Waiver. Any failure by Lender to insist upon strict performance by Borrower of
any of the provisions of this Note, the Security Instrument or the Other Security Documents shall
not be deemed to be a waiver of any of the terms or provisions of this Note, the Security
Instrument or the Other Security Documents, and Lender shall have the right thereafter to insist
upon strict performance by Borrower of any and all of the terms and provisions of this Note, the
Security Instrument or the Other Security Documents.
18. Notices. Except as otherwise specified herein, any notice, consent, request or
other communication required or permitted to be given hereunder shall be in writing, addressed to
the other party as set forth below (or to such other address or person as either party or person
entitled to notice may by notice to the other party specify), and shall be: (a) personally
delivered; (b) delivered by Federal Express or other comparable overnight delivery service; or (c)
transmitted by United States certified mail, return receipt requested with postage prepaid; to:
Unless otherwise specified, all notices and other communications shall be deemed to have been
duly given on the first to occur of actual receipt of the same or: (i) the date of delivery if
personally delivered; (ii) one (1) business day after depositing the same with the delivery service
if by overnight delivery service; and (iii) three (3) days following posting if transmitted by
mail. Borrower must prominently display Lender’s Loan Number (as set forth on page 1 of this Note)
on all notices or communications to Lender.
19. Severability. If any term, covenant or condition of this Note is held to be
invalid, illegal or unenforceable in any respect, this Note shall be construed without such
provision.
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20. Time of the Essence. Time shall be of the essence in the performance of all
obligations of Borrower hereunder.
21. Additional Terms and Provisions. Certain additional and supplemental terms and
provisions of this Note are set forth in this paragraph. The terms and provisions of this
paragraph control and supersede any conflicting terms and provisions contained in this Note.
(a) Late Charge. No Late Charge will be applicable in connection with a failure to pay
the remaining outstanding principal, unpaid interest and other amounts payable on the Maturity
Date, except that the late charge will apply against the monthly payment.
(b) Defeasance.
(i) Defeasance Release. The introductory paragraph of Section 5(d) is modified
by inserting “of all but not part” between “release” and “of” in the second line.
(ii) Maturity Date in the Event a Defeasance Occurs. The two references to
“Maturity Date” in Paragraph 5(d)(iv) are amended to read “Early Payment Date,” and in the
event the loan evidenced hereby has been defeased, the Maturity Date of the Loan will be
amended to be November 1, 2017.
(iii) Defeasance Period. Notwithstanding anything in Paragraph 5, if Lender
completes a sale (a “CMBS Sale”) of loan evidenced hereby in connection with the
issuance of commercial mortgage-backed securities within 12 months following the funding
date hereof, the term “Defeasance Period” shall mean the period of time: (1) commencing on
the date which is two (2) years after the “start-up day,” within the meaning of Section
860(G)(a)(9) of the Code, of the REMIC that holds this Note, and (2) ending on the Early
Payment Date.
(iv) Defeasance Collateral. Notwithstanding anything in Paragraph 5, as used
herein, the term “U.S. Government Securities” shall mean non-redeemable securities
evidencing an obligation to timely pay principal and/or interest in a full and timely manner
that are (a) direct obligations of the United States of America for the full and timely
payment of which its full faith and credit is pledged, or (b) to the extent acceptable to an
applicable Rating Agency, other “government securities” within the meaning of Section
2(a)(16) of the Investment Company Act of 1940, as amended.
(c) Prepayment. If Lender does not complete a CMBS Sale within 12 months following
the funding date hereof, Paragraph 5 of this Note shall be of no further force and effect, and the
following prepayment provisions shall apply.
(i) When Permitted. Except as set forth in this Section, Borrower shall not
have the right to prepay all or any portion of the Debt at any time during the term of this
Note. Borrower may prepay the Debt in whole, but not in part (except for any prepayment
permitted under the Security Instrument in the event of a casualty or condemnation) if: (i)
no Event of Default (hereinafter defined) then exists; (ii) any applicable Prepayment
Consideration (hereinafter defined) is tendered with such prepayment; and (iii) the required
notice of prepayment required hereby is timely received by Lender. Notwithstanding anything
to the contrary contained herein, no prepayments will be allowed during the Lockout Period
(as defined in subparagraph (c) below). Additionally, any such prepayment not actually
received by Lender before 5:00 p.m., central time, on the 5th calendar day of any month must
also include the interest which would
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have accrued on the amount of such prepayment during the entire calendar month in which
the prepayment is made.
(ii) Notice. Borrower shall give written notice to Lender specifying the date
on which prepayment is to be made (the “Prepayment Date”). Lender shall receive
this notice not more than sixty (60) days and not less than thirty (30) days prior to the
Prepayment Date. If any such notice of prepayment is given, the entire Debt, including any
applicable Prepayment Consideration, shall be due and payable on the Prepayment Date.
(iii) Prepayment Consideration. Lender shall not be obligated to accept any
prepayment of the principal balance of this Note unless it is accompanied by all Prepayment
Consideration due in connection therewith. Except as otherwise set forth in the Security
Instrument, no Prepayment Consideration will be due for involuntary prepayments resulting
from any Casualty (as defined in the Security Instrument) or Condemnation (as defined in the
Security Instrument). The “Prepayment Consideration” shall be computed as follows:
The greater of: (i) one percent (1%) of the outstanding
principal balance of this Note at the time of prepayment; or (ii) the Yield Maintenance
Amount (hereinafter defined).
Borrower acknowledges that the Prepayment Consideration is a bargained for consideration and
not a penalty, and Borrower recognizes that Lender would incur substantial additional costs
and expenses in the event of a prepayment of the Debt and that the Prepayment Consideration
compensates Lender for such costs and expenses (including without limitation, the loss of
Lender’s investment opportunity during the period from the Prepayment Date until the
Maturity Date). Borrower agrees that Lender shall not, as a condition to receiving the
Prepayment Consideration, be obligated to actually reinvest the amount prepaid in any
treasury obligation or in any other manner whatsoever.
(iv) Yield Maintenance Amount. The “Yield Maintenance Amount” shall
mean the present value, as of the Prepayment Date, of the remaining scheduled payments of
principal and interest from the Prepayment Date through the Maturity Date (including any
balloon payment) determined by discounting such payments at the Discount Rate (hereinafter
defined), less the amount of principal being prepaid. The term “Discount Rate”
shall mean the rate which, when compounded monthly, is equivalent to the Treasury Rate
(hereinafter defined) when compounded semi annually. The term “Treasury Rate” shall
mean the yield calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15 Selected Interest Rates under the heading U.S. Government
Securities/Treasury Constant Maturities for the week ending prior to the Prepayment Date, of
U.S. Treasury constant maturities with maturity dates (one longer and one shorter) most
nearly approximating the Maturity Date. (In the event Release H.15 is no longer published,
Lender shall select a comparable publication to determine the Treasury Rate.) Lender shall
notify Borrower of the amount and the basis of determination of the required Prepayment
Consideration.
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(v) Prepayment After Event of Default. If, following the occurrence of any
Event of Default, Borrower shall tender payment of an amount sufficient to satisfy the Debt
at any time prior to or after a sale of the Mortgaged Property, either through foreclosure
or the exercise of the other remedies available to Lender under the Security Instrument or
the Other Security Documents, such tender by Borrower shall be deemed to be a voluntary
prepayment under this Note in the amount tendered and in such case Borrower shall also pay
to Lender, with respect to the amount tendered, the applicable Prepayment Consideration set
forth in this Note, if any, which Prepayment Consideration shall be immediately due and
payable. If such tendered prepayment under this Note shall occur during the Lockout Period,
Borrower also shall pay to Lender in addition to all other amounts owing, the Yield
Maintenance Amount (as defined herein except that all references to “Prepayment Date” shall
mean the date of said tendered prepayment).
(d) Exculpation.
(i) Anything in Paragraph 12 above to the contrary notwithstanding, so long as the
Mortgaged Property is owned by tenants in common, each individual tenant in common (and the
guarantor which owns or controls such tenant in common) shall only be liable to the extent
of matters committed or caused by (1) such guarantor or such tenant in common, (2) any
tenant in common which is controlled directly or indirectly by such guarantor, (3) any
tenant in common of which such guarantor is a manager, managing member, or general partner,
or (4) any tenant in common in which such guarantor owns a direct or indirect beneficial
interest.
(ii) Section 12(f) is modified to state the following: “affect the validity or
enforceability of, or impair the right of Lender to bring suit and obtain personal, recourse
judgments against any person or entity (including Borrower) relating to any losses sustained
by Lender in connection with any of the provisions of this Note, the Security Instrument or
any of the Other Security Documents requiring that: (i) any person or entity maintain any
insurance over any of the Mortgaged Property in accordance with the terms of the Loan,
unless (x) Lender is escrowing funds therefore and fails to make such payment, or (y) the
amount of rents and proceeds generated from the Mortgaged Property following application
against the Loan, taxes, and other standard operating expenses is insufficient to pay all
insurance premiums, or (ii) any insurance proceeds or condemnation awards be paid to Lender;
or”
BORROWER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY, OR
THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED ON THE LOAN EVIDENCED BY THIS NOTE OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE,
THE SECURITY INSTRUMENT OR ANY OF THE OTHER SECURITY DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF BORROWER OR LENDER IN CONNECTION WITH
THE LOAN EVIDENCED BY THIS NOTE. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER’S MAKING OF
THE LOAN SECURED BY THE SECURITY INSTRUMENT AND THE OTHER SECURITY DOCUMENTS.
(e) Attorney’s Fees. The second sentence of Paragraph 9 is replaced with
the following:
“As used herein, “Lender’s attorney fees and disbursements,”“attorney fees and costs,” and
similar words and phrases shall refer to third-party fees, costs and expenses including, but
not limited to, litigation preparation costs and expenses, paraprofessional fees,
secretarial overtime, depositions, electronic research, postage, travel, communications and
related costs and expenses,
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and expenses of preparing the Mortgaged Property for sale, including, without limitation,
all costs and expenses of environmental testing, investigation, reporting, remediation and
clean-up.”
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Borrower has duly executed this Promissory Note to be effective the day
and year first above written.
BORROWER:
NNN EASTERN WISCONSIN MEDICAL PORTFOLIO, LLC,
a Delaware limited liability company
By:
Triple Net Properties, LLC,
a Virginia limited liability company,
its Manager
On , 200_, before me, , a Notary Public in and for said
County and State, personally appeared personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
(this area for official notarial seal)
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This Endorsement forms a part of that certain Promissory Note in the stated principal amount
of Thirty-Two Million Three Hundred Thousand and No/100 Dollars ($32,300,000.00) dated December 21,2007, made by NNN Eastern Wisconsin Medical Portfolio, a Delaware limited liability company, to PNC
Bank, National Association.
Pay to the order of , without recourse.
PNC Bank, National Association
By:
Jeannette Butler, Vice President
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Dates Referenced Herein and Documents Incorporated by Reference
