Contract

EXHIBIT 4.4 FORM OF ESCROW AGREEMENT This ESCROW AGREEMENT (this “Agreement”), effective on ___________ __,2006, by and among NNN HEALTHCARE/OFFICE REIT, INC., a Maryland corporation(“Company”), NNN CAPITAL CORP., a California corporation (“Dealer Manager”), andTRUST COMPANY OF AMERICA, a Colorado state bank (“Escrow Agent”). W I T N E S S E T H: WHEREAS, Company proposes to offer to the public (the “Public Offering”)shares of its common stock, par value $0.01 per share (the “Shares”), pursuantto the terms of and at the prices set forth in Company’s prospectus contained inthe registration statement filed with the Securities and Exchange Commission, asamended (the “Registration Statement”); WHEREAS, it is anticipated that investors will subscribe for the Sharesand will provide Dealer Manager with subscription payments for such Shares (the”Subscription Payments”), which subscriptions will be contingent upon (i) theirrespective acceptances by Company and (ii) Company’s acceptance of subscriptionsaggregating at least $2,000,000 in subscription proceeds from investors who arenot affiliates of Company (the “Minimum Subscription”); and WHEREAS, Escrow Agent has agreed to receive and hold in escrow allSubscription Payments until the earlier of (i) such time as subscriptions forthe Minimum Subscription have been received and accepted by Company or (ii) theclose of business on the date exactly one year after the original effective dateof the Registration Statement (the “Minimum Subscription Termination Date”), andto hold and distribute such Subscription Payments in accordance with the termsand conditions herein set forth. NOW, THEREFORE, in consideration of the premises and the mutualcovenants and agreements hereinafter set forth, and for other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged, theparties hereto agree as follows:1. APPOINTMENT OF ESCROW AGENT. Company and Dealer Manager hereby appoint EscrowAgent to serve as escrow agent, and Escrow Agent hereby accepts suchappointment, each in accordance with the terms of this Agreement. Company andDealer Manager hereby acknowledge that the status of Escrow Agent is that ofagent only for the limited purposes set forth herein, and hereby agree that theywill not represent that Escrow Agent has investigated the desirability oradvisability of investment in the Shares or has approved, endorsed or passedupon the merits of the investment therein. Company and Dealer Manager furtheragree that the name of Escrow Agent shall not be used in any manner inconnection with the offer or sale of the Shares other than to state that EscrowAgent has agreed to serve as escrow agent for the limited purposes set forthherein.2. DEPOSIT INTO ESCROW. 1 (a) Prior to the date that subscriptions have been received for theMinimum Subscription, investors will be instructed by Dealer Manager or anysoliciting dealers to remit the purchase price in the form of checks payable tothe order of, or funds wired in favor of, “Trust Company of America, as escrowagent for NNN H/O REIT.” Any instruments of payment made payable to a partyother than Escrow Agent shall be returned to Dealer Manager. (b) Until such time as investors have subscribed for the MinimumSubscription and, thereafter, whenever Dealer Manager receives an instrument ofpayment made payable to Escrow Agent, Dealer Manager will (i) send to EscrowAgent, or cause to be sent to Escrow Agent, each Subscription Payment receivedby it, accompanied by each investor’s name, social security number or taxidentification number, address (and any other information required forwithholding purposes), number of Shares subscribed for and amounts paid by suchinvestor, and (ii) allow such Subscription Payments to remain in escrow withEscrow Agent and not withdraw such Subscription Payments from Escrow Agentexcept as herein provided. Notwithstanding the foregoing, if any investor shallexercise any right provided by law to rescind his or her subscription, EscrowAgent shall, upon notice from Company or Dealer Manager, return to such investorall Subscription Payments pertaining to such subscription, together with anyearnings thereon during the period that such Subscription Payments were held byEscrow Agent under this Agreement. (c) All Subscription Payments delivered to Escrow Agent by DealerManager pursuant hereto shall be deposited immediately by Escrow Agent in aseparate account designated as the “Escrow Account for the Benefit ofSubscribers for Common Stock of NNN Healthcare/Office REIT, Inc.” (the “EscrowAccount”). The Escrow Account shall be created and maintained subject to theterms of this Agreement and the customary rules and regulations of Escrow Agentpertaining to such accounts. (d) If any of the investors’ instruments of payment are dishonored orreturned to Escrow Agent for nonpayment prior to receipt of the MinimumSubscription, Escrow Agent shall promptly notify Dealer Manager in writing ofsuch nonpayment and return such instruments of payment to Dealer Manager. In anysuch instance, Escrow Agent is authorized to debit the Escrow Account in theamount of such return payment as well as any earnings on the investmentrepresented by such payment.3. INVESTMENT OF THE FUNDS IN THE ESCROW ACCOUNT. Escrow Agent shall hold fundsdelivered to it under the terms of this Agreement and shall from time to timeinvest and reinvest the funds held in the Escrow Account, as and when instructedpursuant to joint written instructions by Company and Dealer Manager, in any oneor more of the following: (a) obligations of the United States of America; (b) obligations guaranteed or collateralized by the United States of America; (c) money market accounts of any national banks or state banks insured by the Federal Deposit Insurance Corporation, including Escrow Agent; and 2 (d) certificates of deposit of any national banks or state banks insured by the Federal Deposit Insurance Corporation, including Escrow Agent. No investment shall be made in any instrument or security that has amaturity of greater than three (3) months. If no joint written instructions arereceived by Escrow Agent as provided above, Escrow Agent may invest amounts heldin the Escrow Account in money market funds of the type described insubparagraph (c) above. Any income or interest realized from the investmentsmade by Escrow Agent pursuant hereto shall be reinvested by Escrow Agent untildirected otherwise under the terms of this Agreement. Dealer Manager or Companymay examine any and all documentation regarding the investment of the EscrowAccount during normal business hours at the offices of Escrow Agent.4. DISBURSEMENTS FROM ESCROW ACCOUNT. (a) Rejected Subscriptions. No later than five (5) business days afterreceipt by Escrow Agent of notice from Company or Dealer Manager that Companyintends to reject an investor’s subscription, Escrow Agent shall pay, bycertified or bank check and by first-class mail, the amount of the SubscriptionPayment paid by such investor (together with all earnings thereon) or EscrowAgent shall return the instruments of payment delivered to Escrow Agent withrespect to any Subscription Payment if such instruments have not been processedfor collection prior to such time directly to such investor. (b) Termination of Public Offering. In the event that on the MinimumSubscription Termination Date, Escrow Agent is not in receipt of evidence ofsubscriptions accepted on or before such date, and Subscription Payments datednot later than that date (or actual wired funds) at least equal to the MinimumSubscription, Escrow Agent shall promptly notify Company and Dealer Manager, andEscrow Agent shall promptly return all funds received in full directly to theinvestors, together with their pro rata share of any interest earned thereon,pursuant to instructions made by Company or Dealer Manager, upon which EscrowAgent may conclusively rely. (c) Receipt of Minimum Subscription Payments. Subject to the provisionsof Section 2 and Section 4(a) and (b) hereof, Escrow Agent shall hold allSubscription Payments deposited with Escrow Agent in the Escrow Account underthe terms of this Agreement until such date (the “Minimum SubscriptionSatisfaction Date”) as Escrow Agent determines that the Escrow Account is equalto or greater than the Minimum Subscription and has given written notice toCompany and Dealer Manager of such occurrence (the “Minimum SubscriptionNotice”). After receipt of the Minimum Subscription Notice, Company or DealerManager shall deliver to Escrow Agent a written instruction regarding thedelivery of all Subscription Payments in the Escrow Account to Company (the”Disbursement Instruction”). Escrow Agent shall deliver all SubscriptionPayments in the Escrow Account and all earnings thereon to Company in themanner, amounts and to the bank accounts set forth in the DisbursementInstruction. After Escrow Agent has delivered the Minimum Subscription Notice,Dealer Manager shall send Subscription Payments to Escrow Agent made payable toEscrow Agent, and Escrow Agent will deposit the Subscription Payments into theEscrow Account, as described herein and deliver the 3Subscription Payments and any interest thereon in the Escrow Account to theCompany as directed.5. ESCROW AGENT COMPENSATION. Escrow Agent shall be entitled to receivecompensation for its services as Escrow Agent hereunder as set forth on theschedule attached hereto and made a part hereof as Exhibit A, which compensationshall be paid by Company. Notwithstanding anything contained in this Agreementto the contrary, in no event shall any fee, reimbursement for costs andexpenses, indemnification for any damages incurred by Escrow Agent, or monieswhatsoever be paid out of or chargeable to the income or assets in the EscrowAccount held by Escrow Agent.6. RESIGNATION AND REMOVAL OF ESCROW AGENT. Escrow Agent may resign at any timefrom its obligations under this Agreement by providing written notice to Companyand Dealer Manager. Such resignation shall be effective on the date specified insuch notice, which shall be not earlier than thirty (30) days after such writtennotice has been given. In addition, Company and Dealer Manager may jointlyremove Escrow Agent as the escrow agent at any time, with or without cause, by awritten instrument executed by both of them (which may be executed incounterparts) given to Escrow Agent, which instrument shall designate theeffective date of such removal. In the event of any such resignation or removal,a successor escrow agent, which shall be a bank or trust company organized underthe laws of the United States of America, shall be appointed by the mutualagreement of Company and Dealer Manager. Any such successor escrow agent shalldeliver to Company and Dealer Manager a written instrument accepting suchappointment, and thereupon it shall succeed to all the rights and duties ofEscrow Agent hereunder and shall be entitled to receive the Escrow Account fromEscrow Agent. Escrow Agent shall promptly pay the Subscription Payments in theEscrow Account, including interest thereon, to the successor escrow agent. If nosuccessor escrow agent is named by Company and Dealer Manager, Escrow Agent mayapply to a court of competent jurisdiction for appointment of a successor EscrowAgent.7. LIABILITY OF ESCROW AGENT. Escrow Agent shall not be liable to Company orDealer Manager for any losses, claims, damages, liabilities or expenses that itmay incur as a result of any act or omission of Escrow Agent, unless suchlosses, claims, damages, liabilities or expenses are caused by Escrow Agent’sbad faith, willful misconduct or gross negligence. Accordingly, Escrow Agentshall not incur any such liability with respect to (i) any action taken oromitted in good faith upon the advice of Escrow Agent’s counsel or counsel forany other party hereto, given with respect to any question relating to theduties and responsibilities of Escrow Agent under this Agreement or (ii) anyaction taken or omitted in reliance upon any instrument, including execution, orthe identity or authority of any person executing such instrument, its validityand effectiveness, but also as to the truth and accuracy of any informationcontained therein that Escrow Agent shall, in good faith, believe to be genuine,to have been signed by a proper person or persons and to conform to theprovisions of this Agreement.8. INDEMNIFICATION OF ESCROW AGENT. Company and Dealer Manager hereby jointlyand severally agree to indemnify and hold Escrow Agent (and its officers,directors, employees and agents) harmless from and against any and all losses,claims, damages, liabilities and expenses, including reasonable attorneys’ feesand expenses, that may be imposed on Escrow Agent or 4incurred by Escrow Agent in connection with Escrow Agent’s acceptance of itsappointment hereunder, or the performance of Escrow Agent’s duties hereunder,except where such losses, claims, damages, liabilities and expenses result fromEscrow Agent’s bad faith, gross negligence or willful misconduct.9. DISPUTES. In the event of any disagreement among any of the parties to thisAgreement, or among them or any other person resulting in adverse claims anddemands being made in connection with or from any property in the EscrowAccount, Escrow Agent shall be entitled to refuse to comply with any such claimsor demands as long as such disagreement may continue, and in so refusing, shallmake no delivery or other disposition of any property then held by it in theEscrow Account under this Agreement, and in so doing Escrow Agent shall beentitled to continue to refrain from acting until (i) the right of adverseclaimants shall have been finally settled by binding arbitration or finallyadjudicated in a court assuming and having jurisdiction of the property involvedherein or affected hereby or (ii) all differences shall have been adjusted byagreement and Escrow Agent shall have been notified in writing of such agreementsigned by the parties hereto. In the event of such disagreement (or a resignation by Escrow Agentunder the terms of this Agreement), Escrow Agent may tender into the registry orcustody of any court of competent jurisdiction all money or property in itshands under the terms of this Agreement, together with instituting any otherlegal proceeding it deems appropriate, and thereupon Escrow Agent shall bedischarged from all further duties under this Agreement. The filing of any suchlegal proceeding shall not deprive Escrow Agent of its compensation earned priorto such filing.10. IDENTIFYING INFORMATION. Company and Dealer Manager acknowledge that theidentifying information set forth on Exhibit B is being requested by EscrowAgent in connection with the USA Patriot Act, Pub.L.107-56 (the “Act”), andCompany and Dealer Manager agree to provide any additional informationreasonably requested by Escrow Agent in connection with the Act or any similarlegislation or regulation to which Escrow Agent is subject, in a timely manner.Company and Dealer Manager each represents that its respective identifyinginformation set forth on Exhibit B is true and complete on the date hereof andeach agrees to notify Escrow Agent of any change with respect thereto during theterm of this Agreement.11. NOTICES. All notices, demands or other communications to be given ordelivered under or by reason of any provision of this Agreement shall be inwriting and shall be deemed to have been given (i) on the date delivered inperson, (ii) on the date indicated on the return receipt if mailed postageprepaid, by certified or registered U.S. Mail, with return receipt requested,(iii) on the date transmitted by facsimile, if sent by 5:00 P.M., Pacific Timeon a business day (or the next business day if after such time or if sent on aday other than a business day), and confirmation of receipt thereof is obtained,or (iv) on the next business day after delivery (in time for and specifying nextday delivery) to Federal Express or other nationally recognized overnightcourier service or overnight express U.S. Mail, with service charges or postageprepaid. The addresses and facsimile numbers of the parties for purposes of thisAgreement are: 5If to Company: NNN Healthcare/Office REIT, Inc. 1551 N. Tustin Avenue, Suite 200 Santa Ana, California 92705 Facsimile No.: (714) 667-6860 Attention: Scott D. Peters, Chief Executive OfficerWith a copy to: NNN Healthcare/Office REIT, Inc. 1551 N. Tustin Avenue, Suite 200 Santa Ana, California 92705 Facsimile No.: (714) 667-0315 Attention: Andrea R. Biller, Esq.If to Dealer Manager: NNN Capital Corp. 4 Hutton Centre Drive, Suite 700 Santa Ana, California 92707 Facsimile No.: (714) 667-6843 Attention: Kevin K. Hull, President and CEOIf to Escrow Agent: Trust Company of America 7103 South Revere Parkway Centennial, CO 80112 Facsimile No.: (___) ___-____ Attention:or to such other address or facsimile number, or to the attention of such otherperson, as the receiving party has specified by prior written notice to thesending party pursuant to this Section 11.12. BINDING EFFECT. This Agreement shall be binding upon and inure to thebenefit of the parties hereto and their respective heirs, executors,administrators, successors and assigns.13. TERM. This Agreement shall terminate within thirty (30) days receipt ofwritten notice of termination by Company and Dealer Manager to Escrow Agent.14. AMENDMENTS. This Agreement shall not be modified, revoked, released orterminated except upon the mutual consent of Company and Dealer Manager, givenin writing and delivered to Escrow Agent. Should, at any time, any attempt bemade to modify this Agreement in a manner that would increase the duties andresponsibilities of Escrow Agent or to modify this Agreement in any manner thatEscrow Agent deems undesirable, Escrow Agent may resign by notifying Company andDealer Manager in writing, by certified mail, and until (i) acceptance by asuccessor escrow agent appointed jointly by Company and Dealer Manager or (ii)thirty (30) days following the date upon which such notice was delivered byEscrow Agent, whichever occurs sooner, Escrow Agent’s only remaining obligationshall be to perform its duties hereunder in accordance with the terms of theAgreement without regards to any such modification. 615. ASSIGNMENT. Except as otherwise provided herein, no party may, without theexpress written consent of each other party, assign or transfer this Agreementin whole or in part.16. GOVERNING LAW. This Agreement is governed by, and shall be construed andenforced in accordance with, the laws of the State of California without regardto its conflict of laws rules.17. SEVERABILITY. Whenever possible, each provision of this Agreement shall beinterpreted in such manner as to be effective and valid under California law,but if any provision shall be prohibited by or be invalid under applicable law,such provision shall be ineffective to the extent of such prohibition orinvalidity, without invalidating the remainder of such provision or theremaining provisions of this Agreement.18. HEADINGS. The headings as to contents of particular sections of thisAgreement are inserted for convenience and shall not be construed as a part ofthis Agreement or as a limitation on or expansion of the scope of any terms orprovisions of this Agreement.19. COUNTERPARTS. This Agreement may be executed in two or more counterparts,each of which shall be deemed an original, but all of which together shallconstitute one and the same instrument. It shall not be necessary for everyparty hereto to sign each counterpart but only that each party shall sign atleast one such counterpart.20. ENTIRE AGREEMENT. This Agreement contains the entire understanding betweenand among the parties hereto and supersedes any previous understandings, writtenor oral, that the parties may have reached, with respect to the subject matterof this Agreement. [Signatures on Next Page] 7 IN WITNESS WHEREOF, the parties hereto have made and entered into thisEscrow Agreement on the date first written above.COMPANY: NNN HEALTHCARE/OFFICE REIT, INC. By: ——————————– Name: Scott D. Peters Title: Chief Executive OfficerDEALER MANAGER: NNN CAPITAL CORP. By: ——————————– Name: Kevin K. Hull Title: President and CEOESCROW AGENT: TRUST COMPANY OF AMERICA By: ——————————– Name: Title: 8 Exhibit A Escrow Agent FeesOne-Time Escrow Services Fee – Payable in advance – $____ Exhibit B Identifying InformationTaxpayer Identification Numbers: Company: 20-4738467 Dealer Manager: 33-0158098