Contract

EXHIBIT 10.8RECORDING REQUESTED BY )WHEN RECORDED MAIL TO: ) ) )Triple Net Properties, LLC )1551 N. Tustin Avenue )Suite 650 )Santa Ana, CA 92705 )Attention: Rebecca M. O’Donnell )________________________________________________________________________________ Above Space for Recorder’s Use TENANTS IN COMMON AGREEMENT This Tenants in Common Agreement (“Agreement”) is made and effective as ofthe date of recordation hereof, by and among the parties listed on Exhibit “A”attached hereto and incorporated herein (each sometimes referred to as a “Tenantin Common” or collectively as the “Tenants in Common”), with reference to thefacts set forth below. RECITALS A. The Tenants in Common will acquire real property and improvementsthereon, including a an office and technology center commonly known as”Netpark.Tampabay Office and Technology Center” located in Tampa, Florida, asmore particularly described in Exhibit “B” attached hereto and incorporatedherein (the “Property”). B. The Tenants in Common desire to enter into this Agreement to providefor the orderly administration of the Property and to delegate authority andresponsibility for the operation and management of the Property. C. The Tenants in Common intend that the terms of this Agreement shallcomply in all material respects with the requirements for an advance ruling setforth in Revenue Procedure 2002-22, 2002-14 IRB. NOW, THEREFORE, in consideration of the mutual covenants and conditionscontained in this Agreement and for other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties agree asset forth below. 1. Nature of Relationship Between Co-Tenants. 1.1 Tenants in Common Relationship; No Partnership. The Tenants inCommon shall each own their respective interests in the Property (the”Interests”) as tenants-in-common. The Tenants in Common do not intend by thisAgreement to create a partnership or joint venture among themselves, but merelyto set forth the terms and conditions upon which each of them shall hold theirrespective Interests. In addition, the Tenants in Common do not intend to createa partnership or joint venture with the Manager (as defined in Section 2).Therefore, each Tenant in Common hereby elects to be excluded from theprovisions of Subchapter K of Chapter 1 of the Internal Revenue Code of 1986, asamended (the “Code”), with respect to the tenant in common ownership of theProperty. The exclusion elected by the Tenants in Common hereunder shallcommence with the execution of this Agreement. 1.2 Reporting as Direct Owners and Not a Partnership. Each Tenant inCommon hereby covenants and agrees to report on his federal and state income taxreturns all items of income, deduction and credits which result from hisInterests. All such reporting shall be consistent with the exclusion of theTenants in Common from Subchapter K of Chapter 1 of the Code, commencing withthe first taxable year following the execution of thisAgreement. Further, each Tenant in Common covenants and agrees not to notify theCommissioner of Internal Revenue that he desires that Subchapter K of Chapter 1of the Code apply to the Tenants in Common. Each Tenant in Common hereby agreesto indemnify, protect, defend and hold the other Tenants in Common free andharmless from all costs, liabilities, tax consequences and expenses (forexample, taxes, interest and penalties), including, without limitation,attorneys’ fees and costs, which may result from any Tenant in Common sonotifying the Commissioner in violation of this Agreement or otherwise taking acontrary position on any tax return, report or other document. 1.3 Voting – General. The Tenants in Common must unanimously approvethe following: (i) hiring the Property Manager (as defined in Section 2), or anysubstitute property manager, the Management Agreement (as defined in Section 2)and all amendments and renewals thereof, and the negotiation of any othermanagement agreements; (ii) all leases and amendments thereof in accordance withSection 2.6 of the Management Agreement; (iii) all financings and refinancing ofthe Property; and (iv) sale of the Property (other than a sale pursuant to thePurchase Option described in Section 11). All other decisions regarding theProperty will be made only with the approval of the Tenants in Common who ownmore than 50% of the Property. 1.4 Voting – Property Manager and Affiliates. The Property Managerand any affiliates who own Interests will not participate in any vote toterminate the Management Agreement. 1.5 No Agency. No Tenant in Common is authorized to act as agentfor, to act on behalf of, or to do any act that will bind, any other Tenant inCommon, or to incur any obligations with respect to the Property. 2. Management. The Tenants in Common hereby unanimously consent to thisAgreement and the Management Agreement (“Management Agreement”) with Triple NetProperties Realty, Inc., a California corporation (“Property Manager”), and theProperty Manager’s standard lease form. Pursuant to and as set forth in theManagement Agreement, the Property Manager shall be the sole and exclusivemanager of the Property to act on behalf of the Tenants in Common with respectto the management, operation, maintenance and leasing of the Property, subjectto the right of each Tenant in Common to terminate the Management Agreement onan annual basis as set forth in Section 10.1 thereof. All of the terms,covenants and conditions of the Management Agreement are hereby incorporated asif set forth in full herein. Neither (a) the death, retirement, removal,withdrawal, termination or resignation of the Property Manager, (b) anyassignment for the benefit of creditors by or the adjudication of bankruptcy orincompetency of the Property Manager, nor (c) the termination of the ManagementAgreement shall cause the termination of this Agreement and this Agreement shallremain in full force and effect notwithstanding any such events. 3. Income and Liabilities. Except as otherwise provided herein and in theManagement Agreement, each of the Tenants in Common shall be entitled to allbenefits and obligations of ownership of the Property in accordance with theirInterests. Accordingly, each of the Tenants in Common shall (a) be entitled toall benefits of ownership of the Property, on a gross and not a net basis,including, without limitation, all items of income and proceeds from sale orrefinance or condemnation, in proportion to their respective Interests, and (b)bear, and shall be liable for, payment of all expenses of ownership of theProperty, on a gross and not a net basis, including by way of illustration, butnot limitation, all operating expenses and expenses of sale or refinancing orcondemnation, in proportion to their respective Interests, except for suchamounts as may be reasonably determined by the Manager to be retained forreserves or improvements in accordance with the Management Agreement. TheProperty Manager shall disburse to each of the Tenants in Common his pro ratashare of the revenue from the Property, after payment of all operating expenses,debt service and such amounts as may be determined by the Property Manager to beretained for reserves or improvements, within three (3) months from the date ofreceipt by the Property Manager. 4. Co-Tenant’s Obligations. The Tenants in Common each agree to performsuch acts as may be reasonably necessary to carry out the terms and conditionsof this Agreement, including, without limitation: 4.1 Documents. Executing documents required in connection with asale or refinancing of the Property in accordance with Section 5 below and suchadditional documents as may be required under this Agreement or may bereasonably required to effect the intent of the Tenants in Common with respectto the Property or any loans encumbering the Property, provided that suchactions have been properly approved by the Tenants in Common in accordance withSection 1.3. 2 4.2 Additional Funds. Each Tenant in Common will be responsible fora pro rata share (based on each Tenant in Common’s respective Interests) of anyfuture cash needed in connection with the ownership, operation, management andmaintenance of the Property as determined by the Property Manager pursuant tothe Management Agreement. Without limiting the foregoing, each Tenant in Commonagrees that in the event any loan for the Property provides for recourseliability to NNN Netpark, LLC, a Delaware limited liability company (the”Company”), or any affiliate, and non-recourse liability to one or more of theother Tenants in Common, and if the Company or any affiliate pays more than itspro rata share of the liability related to the loan (as compared to itsownership interest) as a result of such recourse liability (“Excess Payment”),each of the Tenants in Common agree to reimburse the Company or any affiliatefor the Tenants in Common’s pro rata share of such Excess Payment. To the extentany Tenant in Common fails to pay any such funds within fifteen (15) days afterthe Property Manager or Company delivers notice that such additional funds arerequired, the Property Manager is hereby authorized and directed to withhold anyand all sums from such nonpaying Tenant(s) in Common until such funds have beenreserved or paid in full. Alternatively, in the Property Manager’s discretion,any other Tenant(s) in Common may advance such funds to the nonpaying Tenant(s)in Common, who shall be liable on a fully recourse basis to repay the payingTenant(s) in Common the amount of any such advance plus interest thereon at therate of twelve percent (12%) per annum (but not more than the maximum rateallowed by law) within thirty-one (31) days of funding the advance. If thenonpaying Tenant in Common is a single member limited liability company, theowner of the limited liability company will be personally liable to repay suchadvance. In addition, the Property Manager is hereby authorized and directed topay the Tenant(s) in Common entitled to be repaid the sums loaned (with interestthereon as provided above) out of future cash from operations or from sale orrefinancing of the Property or other distributions due the nonpaying Tenant(s)in Common. The remedies against a nonpaying Tenant in Common provided for hereinare in addition to any other remedies that may otherwise be available, includingby way of illustration, but not limitation, the right to obtain a lien againstthe Interests of the nonpaying Tenant(s) in Common to the extent allowed by law.By executing this Agreement, each Tenant in Common agrees (i) that any suchshort-term advance will be made on a fully recourse basis, (ii) if such Tenantin Common is a single member limited liability company, such advance shall berecourse to the single member of the limited liability company, and (iii) torepay such advance within thirty-one (31) days of funding. 5. Sale or Encumbrance of Property. 5.1 Sale. In accordance with the Management Agreement, the PropertyManager shall be entitled to seek and negotiate the terms of financing for theProperty, including loans secured by the Property, and the sale of the Property(or portions thereof) to third-party purchasers. In accordance with Section 1.3hereof, any loan encumbering the Property and any sale of the Property shall besubject to unanimous approval by the Tenants in Common, which approval shall becommunicated to the Property Manager by written response to a written request bythe Property Manager for approval. Any such written request of the PropertyManager shall be accompanied by summary thereof setting forth the material termsof the proposed loan or sale. By their execution hereof, the Tenants in Commonconfirm their approval of that certain loan made (or to be made immediatelyafter the execution of this Agreement) to acquire the Property by the lenderselected by the Manager (together with its successor and/or assigns to make aloan secured by, among other things, a deed of trust on the Property. 5.2 Distribution of Loan or Sales Proceeds. Notwithstanding anyother provisions of this Agreement, proceeds of a loan or sale shall bedistributed at the closing of the loan or the sale as follows: 5.2.1 To the extent necessary, the proceeds shall first beused to pay in full any loans encumbering title to the Property. 5.2.2 To the extent necessary, the proceeds shall next be usedto pay in full any unsecured loans made to the Tenants in Common with respect tothe Property. 5.2.3 The proceeds shall next be used to pay all outstandingcosts and expenses incurred in connection with the holding, marketing and saleof the Property. 5.2.4 The proceeds shall next be used to pay all outstandingfees and costs as set forth in the Management Agreement. 3 5.2.5 Any proceeds remaining shall be paid to each Tenant inCommon in accordance with their respective Interests as provided in Section 3above. 6. Possession. The Tenants in Common intend to lease the Property at alltimes. Accordingly, no Tenant in Common shall have the right to occupy or usethe Property at any time during the term of this Agreement. 7. Transfer or Encumbrance. Subject to compliance with the specific termsof this Agreement, applicable securities laws and compliance with the terms ofany loan (and associated loan agreement and documents) secured by the Property,each Tenant in Common may sell, transfer, convey, pledge, encumber orhypothecate the Interests (or any part thereof). Any such transferee shall takesuch Interests subject to this Agreement and the transferor and transferee shallexecute and cause to be recorded an assignment and assumption agreement whereby(i) transferor assigns to transferee all of his right, title and interest in andto this Agreement and the Management Agreement; and (ii) transferee assumes andagrees to perform faithfully and to be bound by all of the terms, covenants,conditions, provisions and agreements of this Agreement and the ManagementAgreement with respect to the Interests to be transferred. Upon execution andrecordation of such assumption agreement, the transferee shall become a party tothis Agreement without further action by the other Tenants in Common. 8. Right of Partition. 8.1 General. The Tenants in Common agree generally that any Tenantin Common (and any of his successors-in-interest) shall have the right, whilethis Agreement remains in effect, to file a complaint or institute anyproceeding at law or in equity to have the Property partitioned in accordancewith and to the extent provided by applicable law. The Tenants in Commonacknowledge and agree that partition of the Property may result in a forced saleby all of the Tenants in Common. To avoid the inequity of a forced sale and thepotential adverse effect on the investment by the other Tenants in Common, theTenants in Common agree that, as a condition precedent to filing a partitionaction, the Tenant in Common filing such action shall follow the buy-sellprocedure set forth in Section 10. 8.2 Lender Mandate. Notwithstanding the general provisions ofSection 8.1, if required by a lender as a condition of making a loan to theTenants in Common to acquire the Property or refinance any loan secured by theProperty, the Tenants in Common shall be deemed to have waived their right tofile a complaint or institute any proceeding at law or in equity to have theProperty partitioned in accordance with local law. 9. Bankruptcy. The Tenants in Common agree that the following shallconstitute an Event of Bankruptcy with respect to any Tenant in Common and hisSuccessors (as defined in Section 12.1): (a) if a receiver, liquidator ortrustee is appointed for any Tenant in Common; (b) if any Tenant in Commonbecomes insolvent, makes an assignment for the benefit of creditors or admits inwriting its inability to pay its debts generally as they become due; (c) if anypetition for bankruptcy, reorganization, liquidation or arrangement pursuant tofederal bankruptcy law, or similar federal or state law shall be filed by oragainst, consented to, or acquiesced in by, any Tenant in Common; provided,however, if such appointment, adjudication, petition or proceeding wasinvoluntary and not consented to by such Tenant in Common then, upon the samenot being discharged, stayed or dismissed within thirty (30) days thereof. Toavoid the inequity of a forced sale and the potential adverse effect on theinvestment of the other Tenants in Common, the Tenants in Common agree that, asa condition precedent to entering into this Agreement, the Tenant in Commoncausing such Event of Bankruptcy shall follow the buy-sell procedure set forthin Section 10. 10. Buy-Sell Procedure. Upon the filing of a partition action inaccordance with Section 8.1 (to the extent such right has not been waived asprovided in Section 8.2) or the occurrence of an Event of Bankruptcy inaccordance with Section 9, the other Tenants in Common shall have the right topurchase the interests of the Tenant in Common filing such action or the subjectof the Event of Bankruptcy (hereinafter, “Seller”). Seller shall make a writtenoffer (“Offer”) to sell its Interests to the other Tenants in Common at a priceequal to (a) the Fair Market Value (as defined below) of the Seller’s Interestsminus (b) (i) Seller’s proportionate share of any fee or other amount that wouldbe payable to the Property Manager or any affiliates (including any real estatecommission) under the Management Agreement upon the sale of the Property at aprice equal to the Fair Market Value and (ii) selling, prepayment or other coststhat would apply in the event the Property was sold on the date of the offer.The other 4Tenants in Common shall be entitled to purchase a portion of the selling Tenantin Common’s interest in proportion to their undivided interest in the Property.In the event any Tenant in Common elects not to purchase its share of theselling Tenant in Common’s interest, the other Tenants in Common shall beentitled to purchase additional interests based on their undivided interest inthe Property. “Fair Market Value” shall mean the fair market value of Seller’sundivided interest in the Property on the date the Offer is made as determinedin accordance with the procedures set forth below. The other Tenants in Commonshall have twenty (20) days after delivery of the Offer to accept the Offer. Ifany or all of the other Tenants in Common (“Purchaser”) accept the Offer, Sellerand Purchaser shall commence negotiation of the Fair Market Value within fifteen(15) days after the Offer is accepted. If the parties do not agree, after goodfaith negotiations, within ten (10) days, then each party shall submit to theother a proposal containing the Fair Market Value the submitting party believesto be correct (“Proposal”). If either party fails to timely submit a Proposal,the other party’s submitted proposal shall determine the Fair Market Value. Ifboth parties timely submit Proposals, then the Fair Market Value shall bedetermined by final and binding arbitration in accordance with the proceduresset forth below. The parties shall meet within seven (7) days after delivery ofthe last Proposal and make a good faith attempt to mutually appoint a MAIcertified real estate appraiser who shall have been active full-time over theprevious five (5) years in the appraisal of comparable properties located in theCounty or City in which the Property is located to act as the arbitrator. If theparties are unable to agree upon a single arbitrator, then the parties eachshall, within five (5) days after the meeting, each select an arbitrator thatmeets the foregoing qualifications. The two (2) arbitrators so appointed shall,within fifteen (15) days after their appointment, appoint a third arbitratormeeting the foregoing qualifications. The determination of the arbitrator(s)shall be limited solely to the issue of whether Seller’s or Purchaser’s Proposalmost closely approximates the fair market value. The decision of the singlearbitrator or of the arbitrator(s) shall be made within thirty (30) days afterthe appointment of a single arbitrator or the third arbitrator, as applicable.The arbitrator(s) shall have no authority to create an independent structure offair market value or prescribe or change any or several of the components or thestructure thereof; the sole decision to be made shall be which of the parties’Proposals most closely corresponds to the fair market value of the Property. Thedecision of the single arbitrator or majority of the three (3) arbitrators shallbe binding upon the parties. If either party fails to appoint an arbitratorwithin the time period specified above, the arbitrator appointed by one of themshall reach a decision which shall be binding upon the parties. The cost of thearbitrators shall be paid equally by Seller and Purchaser. The arbitration shallbe conducted in Orange County, California, in accordance with California Code ofCivil Procedure sections 1280 et seq., as modified by this Agreement. Theparties agree that Federal Arbitration Act, Title 9 of the United States Codeshall not apply to any arbitration hereunder. The parties shall have nodiscovery rights in connection with the arbitration. The decision of thearbitrator(s) may be submitted to any court of competent jurisdiction by theparty designated in the decision. Such party shall submit to the superior courta form of judgment incorporating the decision of the arbitrator(s), and suchjudgment, when signed by a judge of the superior court, shall become final forall purposes and shall be entered by the clerk of the court on the judgment rollof the court. If one party refuses to arbitrate an arbitrable dispute and theparty demanding arbitration obtains a court order directing the other party toarbitrate, the party demanding arbitration shall be entitled to all of itsreasonable attorneys’ fees and costs in obtaining such order, regardless ofwhich party ultimately prevails in the matter. BY EXECUTING THIS AGREEMENT YOUARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THEARBITRATION OF DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BYCALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THEDISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT YOU AREGIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMITTO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TOARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOURAGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. 11. Purchase Option. The Manager or its affiliates have the option topurchase all or any portion of the Property at the Appraised Value (as definedbelow) from one or more of the Tenants in Common (the “Purchase Option”) (a)beginning thirty-six (36) months after the date of this Agreement, or (b) at anytime, upon the failure of any Tenant in Common to renew the Management Agreementin accordance with Section 10.1 thereof. If the Manager or its affiliates desireto exercise the Purchase Option, the Manager or its affiliates (hereinafter, the”Buyer”) shall determine the fair market value of the Property, which shall becomputed (the “Appraised Value”) in the manner described below by computing thenet proceeds that would have been distributable to the selling Tenants in Commonhad the Property been sold for its Appraised Value and reducing this amount bythe sum of (x) one percent (1%) for imputed costs of sale that ordinarily wouldbe associated with the sale of the Property to a third 5party and (y) the Selling Commission (as defined in the Management Agreement).The Buyer, in its sole discretion, will select an MAI certified appraiser withat least five (5) years of experience in the city or county where the Propertyis located to perform an MAI appraisal of the Property (the “QualifiedAppraiser”). The Qualified Appraiser shall not be an affiliate of the Buyer, theManager or any Tenant in Common, and will be paid by the Buyer. The QualifiedAppraiser shall notify the Buyer of its determination of the fair market valueof the entire Property without a discount for the tenant in common ownershiparrangement. The Tenants in Common by unanimous vote shall have the right to approve orreject the Appraised Value within thirty (30) days of receiving the notificationof Appraised Value. If they reject the Appraised Value within 30 days ofreceiving the notification, the selling Tenants in Common shall have the rightto select their own Qualified Appraiser who shall be required to satisfy thesame requirements as described above. The average of the two appraisals shallthen be deemed the Appraised Value unless there is more than a five percent (5%)difference between the highest and lowest Appraised Value, in which case a thirdQualified Appraiser (with the qualification described above) shall be selectedby mutual agreement of the first two appraisers and the average of the threeappraisals shall be deemed the Appraised Value. The Appraised Value will not beless than ninety percent (90%) of the original purchase price for the Property,unless otherwise approved by the Tenants in Common as provided above. The Manager shall pay for the first appraisal and, if applicable, half ofthe third appraisal. The Company and the Tenants in Common, on a pro rata basisin accordance with their ownership of the Property, shall pay for the secondappraisal and, if applicable, half of the third appraisal. If the Buyer is acquiring a portion of the Property, the purchase priceshall be the pro rata amount of the Appraised Value for the portion of theProperty being purchased. The Appraised Value as determined above shall be finaland binding on the parties if the Buyer elects, in its sole discretion, to closethe purchase. Once the Appraised Value has been determined, the Buyer shall have up toninety (90) days in which to purchase the Property for all cash or such otherterms as may be approved by the selling Tenants in Common as described above. Atthe closing pursuant to the Purchase Option, each of the parties shall beartheir share of all ordinary closing costs and expenses in accordance with localreal estate practice. If the Buyer does not complete the purchase of theProperty within the ninety (90) day period described above, that option shalllapse unless extended by the parties as described above. If the Manager or anaffiliate elects to exercise the Purchase Option in the future, they shall berequired to begin again the process of selecting the Qualified Appraiser todetermine the Appraised Value. There are no limits on the number of times theManager or its affiliates may seek to exercise the Purchase Option. The Managerwill be entitled to the Selling Commission upon a sale pursuant to the PurchaseOption. The Buyer shall cooperate, at no cost or expense, with any of the sellingTenants in Common who wish to structure the sale of their Interests as atax-deferred exchange pursuant to Section 1031 of the Code. The Buyer shall,upon direction of the Tenants in Common electing to exchange, consent to theassignment of their interests in the Purchase Option to a qualified intermediaryof their choosing and the payment of their net proceeds into customary exchangeescrow accounts. 12. General Provisions. 12.1 Mutuality; Reciprocity; Runs With the Land. All provisions,conditions, covenants, restrictions, obligations and agreements contained hereinor in the Management Agreement are made for the direct, mutual and reciprocalbenefit of each and every part of the Property; shall be binding upon and shallinure to the benefit of each of the Tenants in Common and their respectiveheirs, executors, administrators, successors, assigns, devisees,representatives, lessees and all other persons acquiring any undivided interestin the Property or any portion thereof whether by operation of law or any mannerwhatsoever (collectively, “Successors”); shall create mutual, equitableservitudes and burdens upon the undivided interest in the Property of eachTenant in Common in favor of the interest of every other Tenant in Common; shallcreate reciprocal rights and obligations between the respective Tenants inCommon, their interests in the Property, and their Successors; and shall, as toeach of the Tenants in Common and their Successors operate as covenants runningwith the land, for the benefit of the other Tenants in Common pursuant toapplicable law, including, but not limited to, the laws of the State of Florida.It is expressly agreed that each covenant contained herein or in the ManagementAgreement (a) is for the benefit of and 6is a burden upon the undivided interests in the Property of each of the Tenantsin Common, (b) runs with the undivided interest in the Property of each Tenantin Common and (c) benefits and is binding upon each Successor owner during itsownership of any undivided interest in the Property, and each owner having anyinterest therein derived in any manner through any Tenant in Common orSuccessor. Every person or entity who now or hereafter owns or acquires anyright, title or interest in or to any portion of the Property is and shall beconclusively deemed to have consented and agreed to every restriction,provision, covenant, right and limitation contained herein or in the ManagementAgreement, whether or not such person or entity expressly assumes suchobligations or whether or not any reference to this Agreement or the ManagementAgreement is contained in the instrument conveying such interest in the Propertyto such person or entity. The Tenants in Common agree that, subject to therestrictions on transfer contained herein, any Successor shall become a party tothis Agreement and the Management Agreement upon acquisition of an undividedinterest in the Property as if such person was a Tenant in Common initiallyexecuting this Agreement. 12.2 Binding Arbitration. Any dispute, claim or controversy arisingout of or related to this Agreement, the breach hereof, the termination,enforcement, interpretation or validity hereof, or an investment in theInterests shall be settled by arbitration in Orange County, California, inaccordance with the rules of The American Arbitration Association, and judgmententered upon the award rendered may be enforced by appropriate judicial actionpursuant to the California Code of Civil Procedure. The arbitration panel shallconsist of one (1) member, which shall be the mediator if mediation has occurredor shall be a person agreed to by each party to the dispute within thirty (30)days following notice by one party that he desires that a matter be arbitrated.If there was no mediation and the parties are unable within such thirty (30) dayperiod to agree upon an arbitrator, then the panel shall be one (1) arbitratorselected by the Orange County office of The American Arbitration Association,which arbitrator shall be experienced in the area of real estate and limitedliability companies and who shall be knowledgeable with respect to the subjectmatter area of the dispute. The losing party shall bear any fees and expenses ofthe arbitrator, other tribunal fees and expenses, reasonable attorney’s fees ofboth parties, any costs of producing witnesses and any other reasonable costs orexpenses incurred by him or the prevailing party or such costs shall beallocated by the arbitrator. The arbitration panel shall render a decisionwithin thirty (30) days following the close of presentation by the parties oftheir cases and any rebuttal. The parties shall agree within thirty (30) daysfollowing selection of the arbitrator to any prehearing procedures or furtherprocedures necessary for the arbitration to proceed, including interrogatoriesor other discovery. 12.3 Attorneys’ Fees. If any arbitration, action or proceeding isinstituted between all or any of the Tenants in Common arising from or relatedto or with this Agreement, the Tenant in Common or Tenants in Common prevailingin such action or arbitration shall be entitled to recover from the other Tenantin Common or Tenants in Common all of his or their costs of action, proceedingor arbitration, including, without limitation, reasonable attorneys’ fees andcosts as fixed by the court or arbitrator therein. 12.4 Entire Agreement. This Agreement, together with the ManagementAgreement, constitutes the entire agreement between the parties heretopertaining to the subject matter hereof and all prior and contemporaneousagreements, representations, negotiations and understandings of the partieshereto, oral or written, are hereby superseded and merged herein. 12.5 Governing Law; Venue. This Agreement shall be governed by andconstrued under the internal laws of the State of Florida without regard tochoice of law rules. Any action arising out of or relating to this Agreementshall be subject to binding arbitration in Orange County, California, inaccordance with Section 12.2. 12.6 Modification. No modification, waiver, amendment, discharge orchange of this Agreement shall be valid unless the same is in writing and signedby the party against which the enforcement of such modification, waiver,amendment, discharge or change is or may be sought. 12.7 Notice and Payments. Any notice to be given or other documentor payment to be delivered by any party to any other party hereunder may bedelivered in person, or may be deposited in the United States mail, dulycertified or registered, return receipt requested, with postage prepaid, or byFederal Express or other similar overnight delivery service, and addressed tothe Tenants in Common at the addresses specified in Exhibit “A” hereto. Anyparty hereto may from time to time, by written notice to the others, designate adifferent 7address which shall be substituted for the one above specified. Unless otherwisespecifically provided for herein, all notices, payments, demands or othercommunications given hereunder shall be in writing and shall be deemed to havebeen duly given and received (a) upon personal delivery, or (b) as of the thirdbusiness day after mailing by United States registered or certified mail, returnreceipt requested, postage prepaid, addressed as set forth above, or (c) theimmediately succeeding business day after deposit with Federal Express or othersimilar overnight delivery system. 12.8 Successors and Assigns. All provisions of this Agreement shallinure to the benefit of and shall be binding upon the Successors of the partieshereto. 12.9 Term. This Agreement shall commence as of the date ofrecordation and shall terminate at such time as the Tenants in Common or theirsuccessors-in-interest or assigns no longer own the Property astenants-in-common. In no event shall this Agreement continue beyond December 31,2033. The bankruptcy, death, dissolution, liquidation, termination, incapacityor incompetence of a Tenant in Common shall not cause the termination of, orhave any other effect on, this Agreement. 12.10 Waivers. No act of any Tenant in Common shall be construed tobe a waiver of any provision of this Agreement, unless such waiver is in writingand signed by the Tenant in Common affected. Any Tenant in Common hereto mayspecifically waive any breach of this Agreement by any other Tenant in Common,but no such waiver shall constitute a continuing waiver of similar or otherbreaches. 12.11 Counterparts. This Agreement may be executed in counterparts,each of which, when taken together, shall be deemed one fully executed original. 12.12 Severability. If any portion of this Agreement shall becomeillegal, null or void or against public policy, for any reason, or shall be heldby any court of competent jurisdiction to be illegal, null or void or againstpublic policy, the remaining portions of this Agreement shall not be affectedthereby and shall remain in full force and effect to the fullest extentpermissible by law. 12.13 Securities Laws. THE UNDIVIDED INTERESTS IN THE PROPERTY HAVENOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, NOR APPROVED ORDISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, OR BY THESECURITIES REGULATORY AUTHORITY OF ANY STATE, NOR HAS ANY COMMISSION ORAUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY ORADEQUACY OF ANY DISCLOSURE MADE IN CONNECTION THEREWITH. ANY REPRESENTATION TOTHE CONTRARY IS A CRIMINAL OFFENSE. THE PROJECTS MAY NOT BE RESOLD WITHOUTREGISTRATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIESLAWS OR EXEMPTION THEREFROM. 12.14 Time is of the Essence. Time is of the essence of each andevery provision of this Agreement. [BALANCE OF PAGE INTENTIONALLY LEFT BLANK] 8 IN WITNESS WHEREOF, the parties have executed this Agreement as of thedate set forth above. TENANTS IN COMMON: NNN NETPARK, LLC, a Delaware limited liability company By: TRIPLE NET PROPERTIES, LLC, a Virginia limited liability company, its Manager By: ____________________________________ NNN Netpark [ ], LLC, a Delaware limited liability company By: NNN Netpark Member [ ], a Delaware limited liability company Its: Sole Member By: ___________________________ Its: Sole Member 9STATE OF CALIFORNIA ) ) ss:COUNTY OF ORANGE ) On __________________, 2003, before me, _________________________________,personally appeared _________________________________, personally known to me(or proved to me on the basis of satisfactory evidence) to be the person whosename is subscribed to the within instrument and acknowledged to me that heexecuted the same in his authorized capacity, and that by his signature on theinstrument the entity upon behalf of which the person acted, executed theinstrument. WITNESS my hand and official seal. ________________________________________ Notary PublicSTATE OF ____________________ ) ) ss:CITY/COUNTY OF ______________ ) On ____________________, 2003, before me, _______________________________,personally appeared _________________________________________, personally knownto me (or proved to me on the basis of satisfactory evidence) to be the personswhose name is subscribed to the within instrument and acknowledged to me thathe/she/they executed the same in his/her/their authorized capacity, and that byhis/her/their signature on the instrument the entity upon behalf of which theperson acted, executed the instrument. WITNESS my hand and official seal. ________________________________________ Notary Public 10 EXHIBIT “A” Tenants in Common and Percentage Interests

Tenants in Common Percentage Interest- —————– ——————- NNN Netpark, LLC __%1551 N. Tustin AvenueSuite 650Santa Ana, CA 92705Attn: Anthony W. ThompsonNNN Netpark [ ], LLC __%[address]