EX-10.12






FIRST AMENDED AND RESTATED PLEDGE AGREEMENT

(MEMBERSHIP AND PARTNERSHIP INTERESTS)




THIS FIRST AMENDED AND RESTATED PLEDGE AGREEMENT (MEMBERSHIP AND PARTNERSHIP INTERESTS) (as
amended, modified, replaced, renewed, restated or extended from time to time, this “Agreement”),
dated as of the 21st day of December, 2007, by and between WACHOVIA BANK, N.A., a
national banking association (“Lender”), and GRUBB & ELLIS APARTMENT REIT HOLDINGS, L.P., a
Virginia limited partnership (formerly known as NNN Apartment REIT Holdings, L.P.) (“Pledgor”).



RECITALS




WHEREAS: Pursuant to that certain Loan Agreement dated as of November 1, 2007 by and between
GRUBB & ELLIS APARTMENT REIT, INC. (formerly known as NNN Apartment REIT, Inc.), a Maryland
corporation (“Borrower”) and Lender (as the same has been amended, modified, renewed, restated,
extended or replaced from time to time, the “Existing Loan Agreement”), Lender agreed to extend
credit to Borrower on the terms and subject to the conditions set forth therein; and



WHEREAS: Pledgor owns one hundred percent (100%) of (i) the limited partnership interests in
each of APARTMENT REIT WALKER RANCH, L.P., a Texas limited partnership (“Walker Ranch”), APARTMENT
REIT HIDDEN LAKES, L.P., a Texas limited partnership (“Hidden Lakes”), APARTMENT REIT PARK AT NORTH
GATE, L.P., a Texas limited partnership (“North Gate”) and APARTMENT REIT TOWNE CROSSING, L.P., a
Texas limited partnership (“Towne Crossing”) (collectively, the “Owned LP’s”), and (ii) the
membership interests in each of Apartment REIT Walker Ranch GP, LLC, a Delaware limited liability
company, Apartment REIT Hidden Lakes GP, LLC, a Delaware limited liability company, Apartment REIT
Park at North Gate GP, LLC, a Delaware limited liability company and Apartment REIT Towne Crossing
GP, LLC, a Delaware limited liability company (collectively, the “Property Owner GP’s”), each of
which Property Owner GP’s is the sole general partner of the respective Owned LP; and



WHEREAS: As consideration for the credit facilities made available to Borrower pursuant to
the Existing Loan Agreement, Pledgor agreed, as required pursuant to Paragraph 3 of the Existing
Loan Agreement, to pledge as security for Borrower’s obligations under the Existing Loan Agreement
certain of the Partnership Interests Pledgor owns in the Owned LP’s; and



WHEREAS: Pledgor has agreed not to sell, convey, transfer or encumber in any way any of the
general or limited partnership interests, or membership interests, as applicable, owned by Pledgor
in any of the Property Owner GP’s or the Owned LP’s, so long as the Existing Loan Agreement
remained in effect; and



WHEREAS, in furtherance of the above-referenced agreements of Pledgor, Pledgor executed that
certain Pledge Agreement (Partnership Interests) dated as of November 1, 2007 between Pledgor and
Lender (as the same has been amended, modified, renewed, restated, extended or replaced from time
to time, the “Existing Pledge Agreement”), pursuant to which Pledgor granted a security interest in
favor of Lender, in certain of the Partnership Interests Pledgor owns in the Owned LP’s; and



WHEREAS, Pledgor has acquired one hundred percent (100%) of the membership interests in each
of G & E APARTMENT REIT THE HEIGHTS AT OLDE TOWNE, LLC, a Delaware limited liability company (“The
Heights”) and G & E APARTMENT REIT THE MYRTLES AT OLDE TOWNE, LLC, a Delaware limited liability
company (“The Myrtles”) (collectively, the “Owned LLC’s” and, together with the Owned LP’s, the
“Owned Companies” and each an “Owned Company”); and



WHEREAS, Borrower and Lender have agreed to amend the Existing Loan Agreement pursuant to that
certain First Amendment to and Waiver of Loan Agreement of even date herewith between Borrower and
Lender (the “First Amendment,” and the Existing Loan Agreement, as amended by the First Amendment,
and as the same may be further amended, modified, renewed, restated, extended or replaced from time
to time, the “Loan Agreement”); and



WHEREAS, as consideration for the credit facilities continuing to be made available to
Borrower pursuant to the Loan Agreement, Pledgor has agreed, as required pursuant to Paragraph 3 of
the Loan Agreement, to pledge as security for Borrower’s obligations under the Loan Agreement
certain of the Membership Interests Pledgor owns in the Owned LLC’s; and



WHEREAS, Pledgor has agreed not to sell, convey, transfer or encumber in any way any of the
membership interest owned by Pledgor in any of the Owned LLC’s so long as the Loan Agreement
remains in effect; and



WHEREAS, in connection with the amendment of the Existing Loan Agreement pursuant to the First
Amendment, Pledgor and Lender have agreed to amend and restate the Existing Pledge Agreement
pursuant to this Agreement. The parties hereto agree that from and after the date hereof, this
Agreement shall supersede the Existing Pledge Agreement in all respects and shall constitute the
entire agreement among the parties hereto with respect to the subject matter contained therein;



WHEREAS, one hundred percent (100%) of the general partnership interests in Pledgor are owned
by Borrower, and one hundred percent (100%) of the limited partnership interests in Pledgor are
owned by NNN Apartment REIT Advisor, LLC, a limited liability company which is under common
ownership with Borrower, and Pledgor will derive benefit from the credit facilities to be made
available to Borrower by Lender pursuant to the Loan Agreement;



NOW, THEREFORE, in consideration of the credit facilities continuing to be made available
pursuant to the Loan Agreement and other good and valuable consideration, the receipt of which is
hereby acknowledged by the parties hereto, the parties do hereby agree as follows:



1. Definitions. All capitalized undefined terms used herein shall have the respective
meanings assigned thereto in the Loan Agreement. In addition, the following terms, when used
herein, shall have the following meanings:



“Collateral” means, collectively, (i) with respect to each of the Owned LLC’s one hundred
percent (100%) of those Membership Interests of Pledgor in such Owned LLC which are designated as
“Class B Interests” in the operating agreement of such Owned LLC, whether now owned or hereafter
acquired, (ii) with respect to each of Walker Ranch, Hidden Lakes and Towne Crossing, forty-nine
percent (49%) of the Partnership Interests of Pledgor in such Owned LP, whether now owned or
hereafter acquired, (iii) with respect to North Gate, one hundred percent (100%) of the Partnership
Interests of Pledgor in such Owned LP, whether now owned or hereafter acquired, and (iv) all
proceeds of the property described in each of items (i), (ii) and (iii) above, including, without
limitation, proceeds from any permitted sale or other disposition thereof (including without
limitation all payment intangibles relating thereto).



“Membership Interests” means the entire membership interests of Pledgor in each of the Owned
LLC’s, including, without limitation, Pledgor’s capital account, its interest as a member in the
net cash flow, net profit and net loss, and items of income, gain, loss, deduction and credit of
each of the Owned LLC’s, its interest in all distributions made or to be made by any of the Owned
LLC’s to Pledgor and all of the other rights, titles and interests of Pledgor as a member of each
of the Owned LLC’s, whether set forth in the operating agreement of such Owned LLC, by separate
agreement or otherwise.



“Partnership Interests” means the entire limited partnership interests of Pledgor in each of
the Owned LP’s, including, without limitation, Pledgor’s capital account, its interest as a limited
partner in the net cash flow, net profit and net loss, and items of income, gain, loss, deduction
and credit of each of the Owned LP’s, its interest in all distributions made or to be made by any
of the Owned LP’s to Pledgor and all of the other rights, titles and interests of Pledgor as a
limited partner of each of the Owned LP’s, whether set forth in the partnership agreement of such
Owned LP, by separate agreement or otherwise.



“UCC” means the North Carolina Uniform Commercial Code, or as to any matter governed by the
Uniform Commercial Code of another jurisdiction, the Uniform Commercial Code of such other
jurisdiction.



2. Pledge and Security Interest. As collateral security for the due and punctual
payment and performance by Borrower of all of its obligations under the Loan Agreement and the
other Loan Documents (collectively, the “Obligations”), Pledgor hereby pledges and assigns to
Lender a continuing first priority security interest in and to the Collateral.



3. Pledgor Remains Liable. Anything herein to the contrary notwithstanding, (a)
Pledgor shall remain liable to perform all of its duties and obligations as a member of each of the
Owned LLC’s, and all of its duties and obligations as a limited partner of each of the Owned LP’s,
to the same extent as if this Agreement had not been executed, (b) the exercise by Lender of any of
its rights hereunder shall not release Pledgor from any of its duties or obligations as a member or
limited partner, as applicable, of any Owned Company, and (c) Lender shall not have any obligation
or liability as a member or limited partner, as applicable, of any Owned Company by reason of this
Agreement.



4. Representations and Warranties. Pledgor represents and warrants that:



(a) Pledgor owns one hundred percent (100%) of the membership interests in, and is the sole
member of, each of the Owned LLC’s.



(b) Pledgor (i) owns one hundred percent (100%) of the limited partnership interests in, and
is the sole limited partner of, each of the Owned LP’s, and (ii) owns one hundred percent (100%) of
the membership interests in, and is the sole member of, each of the Property Owner GP’s, each of
which owns one hundred percent (100%) of the general partnership interests in, and is the sole
general partner of, the respective Owned LP.



(c) Pledgor is the legal and beneficial owner of the Collateral free and clear of all liens
and encumbrances.



(d) The jurisdiction in which Pledgor is located for purposes of Section 9-307 of the UCC is
the State of Virginia.



(e) Pledgor conducts business only under the name “GRUBB & ELLIS APARTMENT REIT HOLDINGS,
L.P.,” and does not use and has not used any trade name, fictitious name or similar name.



(f) Properly completed financing or other statements have been filed in all necessary
jurisdictions with respect to the Collateral, and certificates representing the Collateral have
been delivered as may be required, so that the pledge and security interest granted pursuant to
this Agreement constitutes a valid, continuing and perfected security interest in and lien on the
Collateral under the UCC.



(g) Pledgor has full power and authority to execute this Agreement and to perform its
obligations hereunder, and the execution and delivery of this Agreement, and the performance of
Pledgor’s obligations hereunder, have been duly authorized by all necessary corporate or other
action of Pledgor.



(h) The execution, delivery and performance by Pledgor of this Agreement does not conflict
with, or result in a breach or violation of, (i) any law, regulation or court order applicable to
Pledgor or its property, (ii) any document or instrument to which Pledgor is a party or by which
its assets may be bound, (iii) the operating agreement of any of the Owned LLC’s, (iv) the
partnership agreement of any of the Owned LP’s, or (v) any document, instrument or agreement
evidencing or relating to any credit facility or loan to which any of the Owned Companies is a
party.



(i) No authorization, approval or other action by, and no notice to or filing with, any
governmental authority (other than as set forth in Section 4(f) above) is required (i) for the
execution, delivery and performance of this Agreement by Pledgor, or (ii) for the exercise by the
Lender of any rights or remedies in respect of the Collateral hereunder.



(j) None of the Partnership Interests in North Gate, Towne Crossing or Walker Ranch, and none
of the Membership Interests in either of the Owned LLC’s, are dealt in or traded on securities
markets, and neither the terms of the respective partnership agreements governing the Partnership
Interests in North Gate, Towne Crossing and Walker Ranch nor the terms of the respective operating
agreements governing the Membership Interests in the Owned LLC’s, provide that such interests are
securities governed by Article 8 of the UCC. None of the Partnership Interests in North Gate,
Towne Crossing or Walker Ranch, and none of the Membership Interests in either of the Owned LLC’s,
is evidenced by a certificate of ownership.



(j) None of the Partnership Interests in Hidden Lakes are dealt in or traded on securities
markets; however, the terms of the partnership agreement governing the Partnership Interests in
Hidden Lakes provide that such interests are securities governed by Article 8 of the UCC. The
Partnership Interests in Hidden Lakes are evidenced by a certificate of ownership.



5. Protection of Security Interest. Pledgor covenants that:



(a) Pledgor will, at all times the Loan Agreement remains in full force and effect, remain
the legal and beneficial owner of the Collateral free and clear of all liens and encumbrances
except for liens and encumbrances in favor of Lender. In furtherance of the foregoing, Pledgor
will not sell, convey, transfer, assign or encumber in any way, all or any portion of the
Collateral.



(b) Pledgor will, at all times the Loan Agreement remains in full force and effect, remain the
legal and beneficial owner of (i) all Membership Interests in each Owned LLC, (ii) all Partnership
Interests in each Owned LP, and (iii) all membership interests in each Property Owner GP, each of
which in turn will remain the beneficial owner of all general partnership interests in the
respective Owned LP, in each case free and clear of all liens and encumbrances except for, as to
the Collateral, liens and encumbrances in favor of Lender. In furtherance of the foregoing,
Pledgor will not sell, convey, transfer, assign or encumber in any way, all or any portion of any
Membership Interests, any Partnership Interests, or any membership interests in the Property Owner
GP’s, and will not permit the sale, conveyance, transfer, assignment or encumbrance, in any way, of
any general partnership interests owned by any Property Owner GP in any Owned LP, in each case
except in favor of Lender.



(c) Except upon thirty (30) days prior written notice to the Lender, Pledgor will not (i)
change its name, identity, or corporate structure or jurisdiction of incorporation so as to make
any financing or other statement filed as provided herein become seriously misleading, (ii) with
respect to Hidden Lakes, opt out of Article 8 for purposes of classifying the Partnership Interests
therein as securities or (iii) with respect to any Owned LLC or any Owned LP other than Hidden
Lakes, opt into Article 8 for purposes of classifying the Membership Interests or Partnership
Interests therein as securities.



(d) Pledgor will, upon request of Lender, prepare and deliver such financing statements,
notices of lien, notices of assignment and continuations or amendments to any of the foregoing, and
other documents (and pay the costs of filing or recording the same in all public offices deemed
necessary by Lender) and do such other acts and things, all as Lender may from time to time request
to establish and maintain a valid perfected first priority pledge and security interest in the
Collateral to secure the payment of the Obligations. Pledgor hereby constitutes and appoints
Lender (and any of its officers) as its attorney-in-fact with full power and authority to execute
and deliver all documents necessary to perfect and keep perfected the security interests created
hereby. This power of attorney hereby granted is a special power of attorney coupled with an
interest and shall be irrevocable by Pledgor.



(e) Pledgor will pay or cause to be paid, prior to delinquency, all taxes, charges, liens and
assessments against the Collateral, except to the extent and so long as (i) the same are being
contested in good faith by appropriate proceedings, and (ii) the effect of any lien, charge or
encumbrance is stayed pending final resolution.



(f) Pledgor will pay promptly on demand by Lender all advances, charges, costs and expenses,
including reasonable attorneys’ fees, incurred or paid by Lender in protecting and preserving the
Collateral or in exercising any right, power or remedy conferred by this Agreement.



(g) Without the prior written consent of the Lender, the Pledgor will not (i) vote to enable,
or take any other action to permit, any Owned Company to issue any additional Membership Interests
or Partnership Interests, as applicable, except for such additional Membership Interests or
Partnership Interests that will be subject to the security interest granted herein in favor of the
Lender or (ii) vote to enable, or take any other action to permit, any Owned LLC to recharacterize
its Membership Interests into classes other than those existing as of the date hereof, or
discontinue any classes existing as of the date hereof, or transfer Membership Interests among
classes, or (iii) enter into any agreement or undertaking restricting the right or ability of the
Pledgor or the Lender to sell, assign or transfer any Collateral. The Pledgor will defend the
right, title and interest of the Lender in and to the Collateral against the claims and demands of
all Persons whomsoever.



(h) The Pledgor will deliver to the Lender all Partnership Interests or Membership Interests
evidenced by a certificate (including, without limitation, certificates evidencing the Partnership
Interests in Hidden Lakes), together with such effective endorsements and assignments as may be
required. If the Pledgor shall become entitled to receive or shall receive (i) any certificate
evidencing any Collateral, whether in addition to, in substitution of, or as a conversion of, or in
exchange for, any Collateral, or otherwise in respect thereof or (ii) any sums paid upon or in
respect of any Collateral upon the liquidation or dissolution of any Owned Company, the Pledgor
shall accept the same as the agent for the Lender, hold the same in trust for the Lender,
segregated from other funds of the Pledgor, and promptly deliver the same to the Lender in
accordance with the terms hereof.



6. Events of Default. The occurrence of an “Event of Default” (as defined in the Loan
Agreement) which has not been cured during the applicable cure period, if any, provided for
therein, shall constitute an event of default (an “Event of Default”) hereunder.



7. Lender’s Rights and Remedies Upon Default. Upon the occurrence of any Event of
Default, Lender shall be entitled, at its option, to exercise all such rights and remedies with
respect to the Collateral as (i) are available under the UCC and (ii) are otherwise available at
law or in equity. Without limiting the foregoing, the Lender shall have the right to receive any
and all cash dividends, payments or distributions made in respect of any Membership Interests
and/or Partnership Interests or other proceeds paid in respect of any Membership Interests and/or
Partnership Interests, and any or all of any Membership Interests and/or Partnership Interests
shall be registered in the name of the Lender or its nominee, and the Lender or its nominee may
thereafter exercise (A) all voting, corporate and other rights pertaining to such Membership
Interests and/or Partnership Interests at any meeting of partners or members, as applicable, of the
relevant Owned Companies and (B) any and all rights of conversion, exchange and subscription and
any other rights, privileges or options pertaining to such Membership Interests and/or Partnership
Interests as if it were the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Membership Interests and/or Partnership Interests
upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the
limited liability company or partnership structure of any Owned Company or upon the exercise by the
Pledgor or the Lender of any right, privilege or option pertaining to such Membership Interests
and/or Partnership Interests, and in connection therewith, the right to deposit and deliver any and
all of the Membership Interests and/or Partnership Interests with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and conditions as the Lender
may determine), all without liability except to account for property actually received by it; but
the Lender shall have no duty to the Pledgor to exercise any such right, privilege or option and
the Lender shall not be responsible for any failure to do so or delay in so doing. In furtherance
thereof, the Pledgor hereby authorizes and instructs each Owned Company to (i) comply with any
instruction received by it from the Lender in writing that (A) states that an Event of Default has
occurred and is continuing and (B) is otherwise in accordance with the terms of this Agreement,
without any other or further instructions from the Pledgor, and the Pledgor agrees that each Owned
Company shall be fully protected in so complying following receipt of such notice and prior to
notice that such Event of Default is no longer continuing, and (ii) except as otherwise expressly
permitted hereby, pay any dividends, distributions or other payments with respect to any Membership
Interests and/or Partnership Interests directly to the Lender.



8. Miscellaneous.



(a) Lender shall have the right at all times to enforce the provisions of this Agreement in
strict accordance with the terms hereof, notwithstanding any conduct or custom on its part in
refraining from so doing at any time. No amendment or waiver of any provision of this Agreement
shall be effective unless the same shall be in writing and executed by the parties hereto (subject
to the provisions of the Loan Agreement), and no waiver or omission to act by Lender as to any
Event of Default shall operate as a waiver of any other Event of Default or of the same Event of
Default at a future time, and no single or partial exercise by Lender of any right or remedy shall
preclude any other or future exercise of that or of any other right or remedy. The provisions,
rights and remedies hereof are cumulative to and concurrent with those of all other agreements and
documents held by Lender in connection with the Obligations.



(b) This Agreement shall create a continuing security interest in the Collateral and shall
remain in full force and effect until payment in full of the Obligations.



(c) This Agreement, unless otherwise expressly set forth herein, shall be governed by, and
construed in accordance with, the laws of the State of North Carolina.



(d) TO THE EXTENT PERMITTED BY LAW, PLEDGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDER TO ENTER INTO THIS AGREEMENT AND INTO THE LOAN AGREEMENT.



(e) Any and all notices, elections or demands permitted or required to be made under this
Agreement shall be in writing, signed by the party giving such notice, election or demand and shall
be delivered personally, or sent by overnight courier or by certified mail, postage prepaid, to the
other party at the address set forth below, or at such other address within the continental United
States of America as may have theretofore been designated in writing in accordance with the terms
and conditions hereof:



	 	 	 	 	 
	PLEDGOR:
	 	Grubb & Ellis Apartment REIT Holdings, L.P.
	 
	 	c/o Grubb & Ellis Apartment REIT, Inc.
	 
	 	1551 N. Tustin Ave., Suite 200
	 
	 	Santa Ana, CA 92705
	 
	 	Attention: ________________
	LENDER:
	 	Wachovia Bank, National Association
	 
	 	One Wachovia Center, 16th Floor
	 
	 	301 South College Street
	 
	 	Charlotte, NC  28288-0172
	 
	 	Attention:  Chris Troutman






(f) In case any one or more of the provisions contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or impaired thereby.



(g) This Agreement may be executed in any number of counterparts and all the counterparts
taken together shall be deemed to constitute one and the same instrument.



(h) This Agreement constitutes the final, exclusive and complete statement of the agreement of
the parties hereto with respect to the subject matter hereof and all other prior or contemporaneous
agreements with respect to the subject matter hereof are superseded hereby.



(i) The Pledgor hereby waives and releases any rights, demands, and defenses the Pledgor may
have with respect to the Lender pursuant to any law or statute that requires that the Lender make
demand upon, assert claims against, or collect from Borrower or other persons or entities,
foreclose any security interest, sell collateral, exhaust any remedies, or take any other action
against Borrower or other persons or entities prior to making demand upon, collecting from or
taking action against the Pledgor under this Agreement, including any such rights the Pledgor might
otherwise have had under N.C.G.S. §§ 26-7, et seq. and any successor statute and any other
applicable law.



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IN WITNESS WHEREOF, Pledgor and Lender have duly executed this Agreement, or caused this
Agreement to be duly executed, as of the day and year first above written.



PLEDGOR:



GRUBB & ELLIS APARTMENT REIT



HOLDINGS, L.P. (formerly known as



NNN Apartment REIT Holdings, L.P.), a Virginia



limited partnership



By: GRUBB & ELLIS APARTMENT REIT, INC. (formerly known as NNN Apartment REIT, Inc.), a
Maryland corporation, its sole general partner



By:./s/ Gus G. Remppies

Name: Gus G. Remppies Title: Chief Investment Officer




LENDER:




WACHOVIA BANK, N.A., a national banking association



By: /s/ Bradford Chatigny Name: Bradford Chatigny

Title: Vice President





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