exv10w19



 






EXHIBIT 10.19



NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY
OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.




SECOND ASSIGNMENT OF LEASES AND RENTS




     THIS SECOND ASSIGNMENT OF LEASES AND RENTS (hereinafter referred to as this “Assignment”), is
made and entered into as of the _31st___ day of ___October___, 2006, by [NAME OF
ASSIGNOR], a Texas limited partnership (“Assignor”) to WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association (“Wachovia”), as Agent for itself and the other Banks from time to
time party to the Mezzanine Credit Agreement (as hereinafter defined) (Wachovia, in its capacity as
Agent, hereinafter referred to as “Agent”).



W I T N E S S E T H:




     THAT FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00) and other good and
valuable considerations, the receipt and sufficiency whereof are hereby acknowledged, and in order
to secure the Obligations as defined herein, Assignor does hereby presently, irrevocably and
unconditionally grant, transfer and assign to Agent, its successors, successors-in-title and
assigns, all of Assignor’s right, title and interest in, to and under any and all leases,
tenancies, agreements or licenses, written or oral, now existing or hereafter entered into by
Assignor as “landlord”, “lessor” or “licensor”, for the use or occupancy of all or any portion of
the property (hereinafter referred to as the “Property”) located at Bexar County, Texas, more
particularly described in Exhibit A attached hereto and by this reference made a part
hereof, including any and all extensions, renewals, amendments and modifications thereof and
guaranties of or letters of credit relating to the performance or obligations of any tenants,
lessees or licensees thereunder (such leases, tenancies, agreements and licenses are hereinafter
referred to collectively as the “Leases,” and such tenants, lessees and licensees are hereinafter
referred to collectively as “Tenants” or individually as a “Tenant” as the context requires),
together with any and all security, damage and lease deposits, all of Assignor’s right, title and
interest in and to all revenues, lease termination payments, royalties, rights or benefits of every
nature arising from the possession, use, enjoyment or operation of the Property and all rents,
issues, income and profits from the Leases and from the Property. This Assignment constitutes a
present and absolute assignment of leases and rents, subject only to Assignor’s rights under
Paragraph 1.03(a) hereof.



     TO HAVE AND TO HOLD unto Agent, its successors and assigns forever, subject to and upon the
terms and conditions set forth herein.



     This Assignment is made for the purpose of securing the full and prompt payment and
performance when due, whether by acceleration or otherwise, with such interest as may accrue
thereon, either before or after maturity thereof, of the Notes and the other Obligations, all as
defined below.



 









 





     As further security for the Obligations and the full and prompt payment and performance of any
and all duties of Assignors to Agent under the Security Documents, Assignor hereby assigns to Agent
any awards or payments which may be made in respect of Assignor’s interest in any of the Leases in
any bankruptcy, insolvency or reorganization proceedings in any state or federal court. From and
after the occurrence and during the continuance of an Event of Default, Assignor hereby appoints
Agent as its attorney-in-fact to appear in any such proceeding and/or to collect any such award or
payment.



ARTICLE I




WARRANTIES AND COVENANTS




     1.01 Representations and Warranties of Assignor. Assignor hereby represents and
warrants as follows as of the date hereof:



          (a) Assignor is the sole and absolute owner of the entire landlord’s or lessor’s interest in
the Leases and such rents, issues and profits.




          (b) Assignor has made no prior assignment of any of the Leases or with respect to any of such
rents, issues or profits, other than pursuant to the Senior Deed of Trust and the Senior Assignment
of Leases and Rents.




          (c) Assignor has neither done any act nor omitted to do any act which might prevent Agent
from, or limit Agent in, acting under any of the provisions of this Assignment.




          (d) Neither the execution and delivery of this Assignment or any of the Leases, the
performance of each and every covenant of Assignor under this Assignment and the Leases, nor the
meeting of each and every condition contained in this Assignment, conflicts with, or constitutes a
breach or default under, any agreement, indenture or other instrument to which Assignor is a party
or by which Assignor is bound, or any law, ordinance, administrative regulation or court decree
which is applicable to Assignor.




          (e) No action has been brought or, so far as is known to Assignor, is threatened, which would
interfere in any way with the right of Assignor to execute this Assignment and perform all of
Assignor’s obligations contained in this Assignment and in the Leases.




          (f) All Leases existing as of the date of this Assignment are listed and described on the rent
roll delivered by Assignor to Agent on or about the date hereof (the “Rent Roll”). No Tenant under
any Lease is entitled to any free rent, partial rent, rebate of rent payments, credit, offset or
deduction in rent, including, without limitation, lease support payments or lease buy-outs, except
as reflected in the Rent Roll. No property other than the Property which is the subject of the
applicable Lease is necessary to comply with the requirements (including, without limitation,
parking requirements) contained in such Lease. The Leases represent the entire agreement between
Assignor and the Tenants with respect to the Leased Premises.




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          (g) The Leases existing as of the date of this Assignment and listed and described on the Rent
Roll were, to the knowledge of Assignor, duly executed and delivered by each Tenant pursuant to
authority legally adequate therefor, are now in full force and effect, and are the legal, valid and
binding obligations of such Assignor, and to the knowledge of Assignor, the Tenants, enforceable in
accordance with their terms, and, except as disclosed in writing to Agent, no condition exists,
which with the passage of time or the giving of notice, or both, could give rise to any right or
option by any Tenant to terminate its Lease.




          (h) Except as set forth on the Rent Roll, no default exists on the part of Assignor in the
fulfillment, performance or observance of any of the terms, conditions or covenants of landlord or
lessor contained in any of the Leases, and, to the best of Assignor’s knowledge, except as set
forth on the Rent Roll, no default exists on the part of any Tenant in the fulfillment, performance
or observance of any of the terms, conditions or covenants of tenant or lessee contained in any of
the Leases.




          (i) Except as set forth on the Rent Roll, nothing contained in any Lease violates any other
Lease or any other agreement, covenant or, to the knowledge of Assignor, any governmental
requirement affecting the Property.




     1.02 Covenants of Assignor. Assignor hereby covenants and agrees as follows:



          (a) Except as permitted in the Mezzanine Credit Agreement or the Security Instrument, Assignor
shall (i) fulfill, perform and observe each and every material term, condition and covenant of
landlord or lessor contained in each of the Leases; (ii) at no cost or expense to Agent, enforce,
short of termination, the performance and observance of each and every material term, condition and
covenant of each of the Leases to be performed or observed by the Tenant thereunder; and (iii)
appear in and defend any action arising out of, or in any manner connected with, any of the Leases,
or the obligations or liabilities of such Assignor as the landlord or lessor thereunder, or of the
Tenant or any guarantor thereunder.




          (b) Assignor shall not, without the prior written consent of Agent, (i) permit the prepayment
of any rents under any of the Leases for more than one (1) month prior to the accrual thereof; or
(ii) assign its interest in, to or under any of the Leases or the rents, issues, income and profits
from any of the Leases or from the Property to any person or entity other than Agent.




          (c) Except as otherwise permitted in the Mezzanine Credit Agreement, Assignor shall not,
without the prior written consent of Agent (i) enter into any new Lease of all or any part of the
Property; (ii) amend or modify any Lease; (iii) terminate the term or accept the surrender of any
of the Leases; (iv) waive or release the Tenant from the performance or observation by the Tenant
of any material obligation or condition of any of the Leases; (v) agree to subordinate any of the
Leases to any mortgage or other encumbrance; or (vi) in the event any bankruptcy, insolvency or
other debtor relief proceeding shall be instituted by or against any Tenant, settle any claims
which Assignor may have against such Tenant.




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          (d) Assignor shall take no action which will cause or permit the estate of the Tenant under
any of the Leases to merge with the interest of Assignor in the Property or any portion thereof.




          (e) Assignor does hereby authorize and empower Agent, upon the occurrence and during the
continuance of an Event of Default, to collect all rents, issues, income and profits arising or
accruing under the Leases or from the Property as they become due, whether or not the Agent shall
have made entry or become a mortgagee-in-possession pursuant to the Security Instrument, and upon
the occurrence and during the continuance of an Event of Default does hereby irrevocably authorize
and direct, each and every present and future Tenant of the whole or any part of the Property, upon
receipt of written notice from Agent, to pay all rents, issues, income and profits thereafter
arising or accruing under the Leases or from the Property to Agent and to continue to do so until
otherwise notified by Agent, and Assignor agrees that each and every Tenant shall have the right to
rely upon such notice by Agent without any obligation or right to inquire as to whether any Event
of Default exists and notwithstanding any notice or claim of Assignor to the contrary, and that
Assignor shall have no right or claim against any Tenant for any rents or other amounts paid by
such Tenant to Agent following receipt of such notice.




          (f) Assignor will permit any officer designated by Agent, at Assignor’s expense, to visit and
inspect any of the properties of Assignor, to examine the records and books of account from time to
time as requested but only during normal business hours of Assignor (and to make copies thereof and
extracts therefrom) and to discuss the affairs, finances and accounts of Assignor with, and to be
advised as to the same by, its officers, all at such reasonable times and intervals Agent may
reasonably request. Agent shall use good faith efforts to coordinate such visits and inspections
so as to minimize the interference with and disruption to the normal business operations of
Assignor. From and after the occurrence of an Event of Default which is continuing, Assignor shall
bear the costs and expenses incurred by Agent or its representatives in conducting such visits or
inspections.




     1.03 Covenants of Agent. Agent hereby covenants and agrees with Assignor as follows:



          (a) This Assignment constitutes a present, current and absolute assignment of all Leases and
all rents, issues, income and profits from the Property, provided, that so long as no Event
of Default has occurred, Agent shall not demand that such rents, issues, income and profits be paid
directly to Agent, and Assignor shall have a license (revocable upon the occurrence of an Event of
Default) to collect, but no more than one (1) month prior to accrual, all such rents, issues,
income and profits from the Property (including, but not by way of limitation, all rents payable
under the Leases), further provided, however, that Assignor shall collect and receive all
such rents, issues, income and profits from the Property for the account of Agent, and shall apply
such rents, issues, income and profits so collected to the Obligations, to the extent then due and
payable, then to the payment of normal and customary operating expenses of the Property then due
and payable, with the balance, so long as no Event of Default has occurred, to the account of
Assignor.




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          (b) Except as otherwise provided in the Mezzanine Credit Agreement, upon the payment in full
of the Obligations, as evidenced by the recording or filing of an instrument of satisfaction or
full release of the Security Instrument without the recording of another security instrument in
favor of Agent affecting the Property, this Assignment shall be terminated and released in fact and
of record by Agent and shall thereupon be of no further force or effect.




          (c) Assignor and Agent are each represented by competent counsel and are aware of the legal
effects of this Assignment. This Assignment is intended by Assignor and Agent to create, and shall
be construed to create, an absolute assignment to Agent and not an assignment as security for the
performance of the obligation evidenced by the Security Documents or any other indebtedness of
Assignor. It is further the intent of Assignor and Agent hereunder that the rents hereby
absolutely assigned are no longer, during the term of this Assignment, property of Assignor or
property of any estate of Assignor as defined by 11 U.S.C. Section 541, and shall not constitute
collateral, cash or otherwise, of Assignor. The term “rents” as used herein shall mean the gross
capital rents without deduction or offset of any kind.




ARTICLE II




DEFAULT




     2.01 Event of Default. Upon the occurrence and during the continuance of an Event of
Default, Agent may exercise any and all remedies provided in Paragraph 2.02 of this Assignment,
under the Security Instrument, under the Mezzanine Credit Agreement and under any and all other
instruments and documents providing security for the Obligations, or any other remedies available
under applicable law or any one or more of such remedies.



     2.02 Remedies. Upon the occurrence and during the continuance of any Event of
Default, Agent may at its option, with or without notice or demand of any kind (except as may be
provided herein or in any of the Security Documents), and without waiving such Event of Default,
exercise any or all of the following rights and remedies.



          (a) Declare any part or all of the Obligations to be immediately due and payable, whereupon
the same shall be become immediately due and payable.




          (b) Either with or without entry or taking possession of the Property, give or require
Assignor to give notice to any or all Tenants under the Leases authorizing and directing such
Tenants under the Leases to pay all rents, issues, income and profits and any other sums due under
their Leases directly to Agent, whether or not Agent shall have made entry or become a mortgagee in
possession pursuant to the Security Instrument, and collect and receive all rents, issues, income
and profits and other sums due under the Leases with respect to which such notice is given.
Assignor hereby irrevocably appoints Agent as its true and lawful agent and attorney-in-fact for
the purpose of endorsing notes, drafts, money orders and other evidence of payment of rents,
issues, income and profits and any other sums due under the Leases, which power of attorney is
irrevocable and coupled with an interest.




          (c) Either with or without entry or taking possession of the Property, perform any and all
obligations of Assignor under any or all of the Leases or this Assignment and




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exercise any and all rights of Assignor herein or therein as fully as Assignor itself could
do, including, without limiting the generality of the foregoing, enforcing, modifying, extending or
terminating any or all of the Leases, collecting, modifying, compromising, waiving or increasing
any or all of the rents payable thereunder, and obtaining new Tenants and entering into new Leases
on the Property on any terms and conditions deemed desirable by Agent, and, to the extent Agent
shall incur any costs in connection with the performance of any such obligations of Assignor,
including reasonable attorneys’ fees and costs of litigation, then all such reasonable costs shall
become a part of the Obligations, shall bear interest from the incurring thereof at the
Post-Default Rate (but in no event shall the interest payable exceed the maximum amount allowed by
law), and shall be due and payable on demand.




          (d) Either with or without entry or taking possession of the Property, in Assignor’s or
Agent’s name, institute any legal or equitable action which Agent in its sole discretion deems
desirable to collect and receive any or all of the rents, issues, income and profits assigned
herein or to evict or remove any Tenants.




          (e) Enter upon, take possession of, and use and operate all or any portion of the Property
which Agent in its sole discretion deems desirable to effectuate any or all of the foregoing
remedies, with full power to make alterations, renovations, repairs or replacements thereto.



Agent shall have the full right to exercise any or all of the foregoing remedies and rights and
without regard to the adequacy of security for any or all of the Obligations, and with or without
the commencement of any legal or equitable action or the appointment of any receiver or trustee.




     2.03 Application of Rents. All rents, issues, income and profits and any other sums
due under the Leases and with respect to the Property which are collected by Agent shall be applied
by Agent in such order as Agent in its sole discretion may elect against: (i) all reasonable costs
and expenses, including reasonable attorneys’ fees, incurred in connection with the operation of
the Property, the performance of Assignor’s obligations under the Leases or the collection of the
rents thereunder; (ii) all reasonable costs and expenses, including reasonable attorneys’ fees,
incurred in the collection of any or all of the Obligations, including all costs, expenses and
attorneys’ fees incurred in seeking to realize on or to protect or preserve Agent’s interest in any
other collateral securing any or all of the Obligations; and (iii) any or all unpaid principal of,
and interest on, the Obligations; with any remainder to Assignor.



     2.04 No Liability of Agent. Agent shall not be obligated to perform or discharge, nor
does Agent hereby undertake to perform or discharge, any obligation, duty or liability of Assignor
under any of the Leases or under or by reason of this Assignment, except those arising after Agent
takes possession of the Property after an Event of Default. Prior to Agent’s taking possession of
the Property after an Event of Default, this Assignment shall not operate to place upon Agent
responsibility for the control, care, management or repair of the Property, nor for the carrying
out of any of the terms and conditions of any of the Leases, nor shall it operate to make Agent
responsible or liable for any waste committed on the Property, for any dangerous or defective
condition of the Property, or for any negligence in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any person. Agent shall not be liable for any
loss sustained by Assignor resulting from Agent’s failure to let the Property after



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taking possession of the Property after an Event of Default, unless such loss is caused by the
willful misconduct or gross negligence of Agent.



     2.05 Indemnification. Assignor shall and does hereby agree to indemnify and to hold
Agent and the Banks harmless from and against any and all costs, expenses, claims, demands,
liability, loss or damage (including all costs, expenses, and attorneys’ fees incurred in the
defense thereof) actually asserted against, imposed on or incurred by Agent or the Banks in
connection with or as a result of this Assignment or the exercise of any rights or remedies under
this Assignment or under any of the Leases or by reason of any alleged obligations or undertakings
of Agent or the Banks to perform or discharge any of the terms, covenants or agreements contained
in any of the Leases; provided, however, that nothing herein shall be construed to obligate
Assignor to indemnify and hold Agent or the Banks harmless from and against any and all costs,
expenses, claims, demands, liability, loss or damage asserted against, imposed on or incurred by
Agent or the Banks by reason of Agent’s or such Bank’s willful misconduct or gross negligence.
Should Agent or a Bank incur any such costs, expenses, liabilities, loss or damage for which it is
to be indemnified by Assignor as aforesaid, the amount thereof shall be added to the Obligations,
shall bear interest at the interest rate for overdue amounts stated in the Mezzanine Credit
Agreement from the date incurred until paid (but in no event shall the interest payable exceed the
maximum amount allowed by law), shall be secured by this Assignment, the Security Instrument and
the other Security Documents, and shall be payable immediately upon demand. ASSIGNOR AGREES THAT
THE INDEMNIFICATION OF AGENT BY ASSIGNOR SET FORTH IN THIS PARAGRAPH 2.05 INCLUDES INDEMNIFICATION
IN THE EVENT OF ORDINARY NEGLIGENCE ON THE PART OF AGENT BUT DOES NOT INCLUDE INDEMNIFICATION OF
AGENT FOR AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.



ARTICLE III




DEFINITIONS




     Terms used herein and not defined herein shall have the meanings as set forth in the Mezzanine
Credit Agreement.



     The following terms as used herein shall have the following meanings:



     “Agent” shall mean Wachovia Bank, National Association and its successors and assigns,
as Agent for itself and the other lenders from time to time party to the Mezzanine Credit
Agreement.



     “Assignment” shall mean this Second Assignment of Leases and Rents between Assignor
and Agent.



     “Mezzanine Credit Agreement” shall mean the Mezzanine Credit Agreement dated as of
                    , 2006, by and among NNN Apartment REIT Holdings, L.P., a Virginia limited partnership
(the “Borrower”), Agent, Wachovia, the other lenders which are parties thereto, and such other
lenders as may from time to time become parties thereto, as originally executed, or if



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varied, extended, supplemented, consolidated, amended or restated from time to time as so
varied, extended, supplemented, consolidated, amended or restated.



     “Default” shall mean any event which, with the giving of notice or the lapse of time,
or both, would become an Event of Default.



     “Event of Default” shall mean (a) any “Event of Default” under and as defined in the
Security Instrument or the Mezzanine Credit Agreement, or (b) any default in the performance of the
obligations of Assignor hereunder which is not cured within thirty (30) days following receipt by
Assignor of written notice of such default, or (c) any representation or warranty of Assignor in
this Assignment proving to have been false or incorrect in any material respect upon the date when
made or deemed to be made or repeated, or (d) any default in the performance of the obligations of
Assignor under any of the Security Documents beyond the expiration of any applicable notice and
cure period.



     “Notes” shall collectively mean (i) those certain Notes made or to be made by the
Borrower to the Banks in the aggregate principal amount of up to Fifteen Million and No/100 Dollars
($15,000,000.00), and (ii) each other note as may be issued under the Mezzanine Credit Agreement,
each as originally executed or if varied, extended, supplemented, consolidated, amended, replaced,
renewed, modified or restated from time to time as so varied, extended, supplemented, consolidated,
amended, replaced, renewed, modified or restated.



     “Obligations” shall mean:



          (a) The debt evidenced by the Notes together with interest as therein provided;




          (b) The full and prompt payment and performance by Borrower of all of the provisions,
agreements, covenants and obligations contained in the Mezzanine Credit Agreement;




          (c) The full and prompt payment and performance by Guarantors of all of the provisions,
agreements, covenants and obligations contained in the Guaranty;




          (d) The full and prompt payment and performance of all of the provisions, agreements,
covenants and obligations herein contained and contained in any other of the Loan Documents or the
Security Documents, and the payment of all other sums therein covenanted to be paid; and




          (e) Any and all additional advances made by Agent as provided in the Security Instrument.




     “Security Documents” shall mean the Security Instrument (as hereinafter defined), this
Assignment, the Mezzanine Credit Agreement, the Guaranty and the UCC-1 financing statements
executed and delivered with respect to the Property and any and all other documents or instruments
now or hereafter securing the Obligations.



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     “Security Instrument” shall mean the Second Deed of Trust, Security Agreement and
Fixture Filing dated as of ___October 31_, 2006_, executed by Assignor to ___John M. Nolan_, as
trustee, for the benefit of Agent pursuant to which Assignor has conveyed the Property as security
for the Obligations.



     “Senior Assignment of Leases and Rents” shall mean the Assignment of Leases and Rents
dated _October 31_, 2006, executed by the Assignor, for the benefit of Wachovia, in its capacity as
agent for itself and the other “Lenders” referred to therein.



     “Senior Deed of Trust” shall have the meaning assigned to that term in the Security
Instruments.



ARTICLE IV




GENERAL PROVISIONS




     4.01 Successors and Assigns. This Assignment shall inure to the benefit of and be
binding upon Assignor and Agent and their respective heirs, executors, legal representatives,
successor and assigns to the extent only permitted under the Mezzanine Credit Agreement (but in the
case of assigns of Assignor, only if and to the extent that Agent has consented in writing to
Assignor’s assignment of its rights or obligations hereunder to such assigns). Whenever a
reference is made in this Assignment to “Assignor” or “Agent”, such reference shall be deemed to
include a reference to the heirs, executors, legal representatives, successors and assigns of
Assignor or Agent.



     4.02 Agent’s Rights of Assignment; Rights of Assignees. Agent may assign to any
subsequent holder of the Notes or the Security Instrument, or to any person acquiring title to the
Property, all of Agent’s right, title and interest in any of the Leases and rents, issues, income
and profits from the Property. No such assignee shall have any liability for any obligation which
accrued under any of the Leases prior to the assignment to such assignee nor shall any such
assignee have any obligation to account to Assignor for any rental payments which accrued prior to
such assignment unless actually received by such assignee. After Assignor’s right, title and
interest in the Property has been foreclosed or otherwise terminated, no assignee of Assignor’s
interest in the Leases shall be liable to account to Assignor for any rents, issues, income or
profits thereafter accruing.



     4.03 Terminology. All personal pronouns used in this Assignment, whether used in the
masculine, feminine or neuter gender, shall include all other genders, and the singular shall
include the plural, and vice versa. Titles of Articles are for convenience only and neither limit
nor amplify the provisions of this Assignment.



     4.04 Severability. If any provision of this Assignment or the application thereof to
any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this
Assignment and the application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.



     4.05 Applicable Law. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
LAWS OF THE STATE OF TEXAS.



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     4.06 No Third Party Beneficiaries. This Assignment is made solely for the benefit of
Agent and its assigns. No Tenant under any of the Leases nor any other person shall have standing
to bring any action against Agent as the result of this Assignment, or to assume that Agent will
exercise any remedies provided herein, and no person other than Agent shall under any circumstances
be deemed to be a beneficiary of any provision of this Assignment.



     4.07 No Oral Modifications. Neither this Assignment nor any provisions hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or termination is sought.



     4.08 Cumulative Remedies. The remedies herein provided shall be in addition to and
not in substitution for the rights and remedies vested in Agent in any of the Security Documents or
at law or in equity, all of which rights and remedies are specifically reserved by Agent. The
remedies herein provided or otherwise available to Agent shall be cumulative and may be exercised
concurrently. The failure to exercise any of the remedies herein provided shall not constitute a
waiver thereof, nor shall use of any of the remedies herein provided prevent the subsequent or
concurrent resort to any other remedy or remedies. It is intended that this clause shall be
broadly construed so that all remedies herein provided or otherwise available to Agent shall
continue and be each and all available to Agent until the Obligations shall have been paid in full.



     4.09 Cross-Default. An Event of Default by Assignor under this Assignment shall
constitute an “Event of Default” under the Security Documents.



     4.10 Counterparts. This Assignment may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any of the parties or
signatories hereto may execute this Assignment by signing any such counterpart.



     4.11 Further Assurance. At any time and from time to time, upon request by Agent,
Assignor will make, execute and deliver, or cause to be made, executed and delivered, to Agent and,
where appropriate, cause to be recorded and/or filed and from time to time thereafter to be
re-recorded and/or refiled at such time and in such offices and places as shall be deemed desirable
by Agent in its reasonable judgment, any and all such other and further assignments, deeds to
secure debt, mortgages, deeds of trust, security agreements, financing statements, continuation
statements, instruments of further assurance, certificates and other documents as may, in the
reasonable opinion of Agent, be necessary in order to effectuate, complete, or perfect, or to
continue and preserve (a) the obligations of Assignor under this Assignment and (b) the security
interest created by this Assignment as a first and prior security interest upon the Leases and the
rents, issues, income and profits from the Property, subject to the prior lien of the Senior Deed
of Trust and the Senior Assignment of Leases and Rents. Upon any failure by Assignor so to do,
Agent may make, execute, record, file, re-record and/or refile any and all such assignments, deeds
to secure debt, mortgages, deeds of trust, security agreements, instruments, certificates, and
documents for and in the name of Assignor, and Assignor hereby irrevocably appoints Agent the agent
and attorney-in-fact of Assignor so to do.



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     4.12 Notices. Except for any statutory notices required prior to exercise of the
remedies provided herein, which must be delivered in accordance with such statutes, all notices,
requests and other communications hereunder shall be made and delivered in the manner provided in
the Security Instrument.



     4.13 Modifications, Etc. Assignor hereby consents and agrees that Agent may at any
time and from time to time, without notice to or further consent from Assignor, either with or
without consideration, surrender any property or other security of any kind or nature whatsoever
held by it or by any person, firm or corporation on its behalf or for its account, securing the
Obligations; substitute for any collateral so held by it, other collateral of like kind; agree to
modification of the terms of the Mezzanine Credit Agreement or any of the other Security Documents
or Loan Documents; extend or renew the Notes, the Mezzanine Credit Agreement or any of the other
Security Documents or Loan Documents for any period; grant releases, compromises and indulgences
with respect to the Notes, the Mezzanine Credit Agreement or any of the other Security Documents or
Loan Documents for any period; grant releases, compromises and indulgences with respect to the
Notes, the Mezzanine Credit Agreement or any of the other Security Documents or Loan Documents to
any persons or entities now or hereafter liable thereunder or hereunder; release any guarantor or
endorser of the Notes, the Security Instrument, the Mezzanine Credit Agreement, or any other
Security Documents or Loan Documents; or take or fail to take any action of any type whatsoever;
and no such action which Agent shall take or fail to take in connection with the Security Documents
or Loan Documents, or any of them, or any security for the payment of the Obligations or for the
performance of any obligations or undertakings of Assignor, nor any course of dealing with Assignor
or any other person, shall release Assignor’s obligations hereunder, affect this Assignment in any
way or afford Assignor any recourse against Agent. The provisions of this Assignment shall extend
and be applicable to all renewals, amendments, extensions, consolidations and modifications of the
Loan Documents and the Leases, and any and all references herein to the Security Documents or the
Leases shall be deemed to include any such renewals, amendments, extensions, consolidations or
modifications thereof.



     4.14 Interpretation. Any provision in the Mezzanine Credit Agreement or the Security
Instrument that pertains to this Assignment shall be deemed to be incorporated herein as if such
provision were fully set forth in this Assignment. In the event of any conflict between the terms
of this Assignment and the terms of the Mezzanine Credit Agreement, the terms of the Mezzanine
Credit Agreement shall prevail. In the event of any conflict between the terms of this Assignment
and the Security Instrument, the terms of the Security Instrument shall prevail. A provision in
this Assignment shall not be deemed to be inconsistent with the Mezzanine Credit Agreement or the
Security Instrument by reason of the fact that no provision in the Mezzanine Credit Agreement or
the Security Instrument covers such provision in this Assignment.



     4.15 Prior Assignment of Leases and Rents. This Assignment is subject and subordinate
to the Senior Assignment of Leases and Rents.



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     IN WITNESS WHEREOF, Assignor has executed this Assignment under seal as of the day and year
first above written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	ASSIGNOR:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	APARTMENT REIT WALKER RANCH, LP, a Texas limited
partnership	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	APARTMENT REIT WALKER RANCH GP, LLC, a	 	 
	 	 	 	 	Delaware limited liability company, its General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	NNN APARTMENT REIT HOLDINGS, L.P., a	 	 
	 	 	 	 	 	 	Virginia limited partnership, its Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	NNN APARTMENT REIT,
INC., a 

Maryland corporation, its General
Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:

Name:
	 	/s/ Stanley J. Olander
 

Stanley J. Olander, Jr.
	 	 
	 

	 	 	 	 	 	 	 	Title:
	 	CEO	 	 
	 
	 

	 	 	 	 	 	 	 	 	 	[CORPORATE SEAL]	 	 






[Signature
Page to Mezzanine Assignment of Leases and Rents — Wachovia/NNN
October 2006]




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STATE OF VIRGINIA               )




COUNTY OF
 [ILLEGIBLE]      )




     This
instrument was acknowledged before me on October 27, 2006, by S J Olander the CEO of NNN Apartment REIT, Inc., a Maryland corporation, on behalf
of said corporation as the General Partner of NNN Apartment REIT Holdings, L.P., a Virginia limited partnership, on behalf of such limited partnership as
the Manager of Apartment REIT Walker Ranch GP, LLC, a Delaware
limited liability company as the General Partner of APARTMENT REIT WALKER RANCH, LP, a Texas limited partnership.



	 	 	 	 	 
	 

	 	/s/ [ILLEGIBLE]
 

Notary Public, in and for
	 	 
	 
	 	 	 	 
	(SEAL)

	 	THE STATE OF VIRGINIA	 	 
	 
	 	 	 	 
	 

	 	My Commission Expires: 6/30/10	 	 





[Signature
Page to Mezzanine Assignment of Leases and Rents — Wachovia/NNN
October 2006]





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