EX-10.5






Loan No.: 50-2860302 Walker Ranch Apartments



ASSIGNMENT OF WARRANTIES AND OTHER CONTRACT RIGHTS




THIS ASSIGNMENT OF WARRANTIES AND OTHER CONTRACT RIGHTS (as the same may be hereafter amended,
restated or modified, this “Assignment”), made as of April 12, 2007, by Apartment REIT Walker
Ranch, LP, a Texas limited partnership (“Borrower”), having an address at c/o Triple Net
Properties, LLC, 1551 North Tustin Avenue, Suite 200, Santa Ana, California 92705, in favor of
Wachovia Bank, National Association, a national banking association (together with its successors
and assigns, “Lender”), whose address is Commercial Real Estate Services, 8739 Research Drive
URP - 4, NC 1075, Charlotte, North Carolina 28262.



W I T N E S S E T H:




THAT, WHEREAS, Borrower has executed and delivered to Lender a Promissory Note dated of even
date herewith (the “Note”), payable to the order of Lender, which Note evidences a loan made by
Lender to Borrower; and



WHEREAS, the Note is secured by that certain Deed of Trust, Security Agreement and Fixture
Filing dated of even date herewith (as the same may from time to time be amended, consolidated,
renewed or replaced, the “Security Instrument”), from Borrower, as mortgagor, to Lender, as
mortgagee, encumbering that certain real property situated at 14500 Blanco Road, San Antonio, and
County of Bexar, State of Texas, as more particularly described on Exhibit “A” attached
hereto and by this reference incorporated herein (the “Real Estate”); and



WHEREAS, Borrower is desirous of further securing to Lender the repayment of the indebtedness
evidenced by the Note and the performance of the other terms, covenants and agreements contained
herein and in the Note, the Security Instrument and each other document evidencing, securing,
guaranteeing and/or relating to the indebtedness evidenced by the Note (the Note, the Security
Instrument and such other documents, as each of the foregoing may from time to time be amended or
replaced, are herein sometimes collectively referred to as the “Loan Documents”).



NOW, THEREFORE, in consideration of the making of the loan evidenced by the Note by Lender to
Borrower and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower hereby irrevocably, absolutely and unconditionally assigns and
transfers to Lender, its successors and assigns, all of Borrower’s right, title and interest in and
to:



(A) any and all contracts and agreements with management agents, leasing agents, sales agents,
service and maintenance agents, contractors and other third parties (collectively, the “Contracting
Parties”, or, singularly, a “Contracting Party”), whether now existing or hereafter arising,
relating to the management, operation, leasing, sale, maintenance and repair of the Real Estate
and/or the apartment complex containing a total of 364 units and other improvements located on the
Real Estate (the “Improvements”) (the Real Estate and the Improvements are sometimes hereinafter
collectively referred to as the “Property”), including, without limitation, management agreements,
equipment leases and personal property leases (collectively, the “Contracts” or, singularly, a
“Contract”); and



(B) any and all warranties and guaranties relating to the Property or any fixtures, equipment
or personal property owned by Borrower and located on and/or used in connection with the Property,
whether now existing or hereafter arising; and



(C) any and all permits, licenses, certificates of use and occupancy (or their equivalent) and
applications and approvals issued by any governmental authority or agency relating to the
construction, ownership, operation and/or use of the Property, whether now existing or hereafter
arising.



(The Contracts, together with the items referred to in subparagraphs (B) and (C) above, are
sometimes herein collectively referred to as the “General Intangibles”.)



This Assignment is made upon the following terms and conditions:



1. Borrower represents, warrants and covenants to and with Lender that: (a) Borrower shall not
make any changes in or amendments to any of the General Intangibles without the prior written
consent of Lender, which consent shall not be unreasonably withheld, provided, however, that
notwithstanding the foregoing, Lender’s consent shall not be required with respect to changes in or
amendments to any Contract (i) which does not relate to the overall management or operation of the
Property, (ii) which is terminable without cause and without payment of any penalty or termination
fee on thirty (30) days’ notice, and (iii) under which the Contractor does not have any right, by
reason of applicable law or otherwise, to assert a lien against the Property which is superior to
the lien of the Security Instrument; (b) Borrower shall not tender or accept a surrender or
cancellation of any of the General Intangibles without the prior written consent of Lender where
such surrender or cancellation would materially or adversely affect the Property or Lender’s
interest therein or Lender’s security or where such surrender or cancellation would violate the
terms of any Loan Document; (c) Borrower shall promptly provide to Lender copies of all changes in
or amendments to the Contract whether or not Lender’s consent thereto is required pursuant to
clause (a) above and Borrower shall promptly notify Lender in writing of any surrender or
cancellation of a Contract whether or not Lender’s consent thereto is required pursuant to clause
(b) above; (d) except as otherwise expressly permitted by the terms of the Security Instrument,
Borrower has not assigned or granted and will not assign or grant a security interest in any of the
General Intangibles to anyone other than Lender; (e) Borrower’s interest in the General Intangibles
is not subject to any claim, setoff, lien, deduction or encumbrance of any nature (other than the
encumbrance created hereby, the encumbrance created by the Security Instrument and those
subordinate encumbrances, if any, created in connection with any junior encumbrances on the Real
Estate expressly permitted by the terms of the Security Instrument); (f) Borrower has full power
and authority to make this Assignment; (g) Borrower shall make all required payments and otherwise
perform its obligations under the General Intangibles; and (h) Borrower shall give immediate notice
to Lender of any notice of default served upon Borrower with respect to its obligations under any
of the General Intangibles and, at the sole cost and expense of Borrower, shall enforce or secure
the performance of each and every material obligation of the Contracting Parties to be kept or
performed under the Contracts.



2. Neither this Assignment nor any action or actions on the part of Lender (including, without
limitation, any assumption by Lender of the rights and obligations under the General Intangibles
pursuant to the provisions of Paragraph 3 hereof) shall relieve Borrower of any obligation under
the General Intangibles and Borrower shall continue to be primarily liable for all obligations
thereunder, Borrower hereby agreeing to perform each and all of its obligations under the General
Intangibles. Borrower hereby protects, defends, indemnifies and holds Lender free and harmless
from and against any and all loss, cost, liability or expense (including, but not limited to,
attorneys’ fees and accountants’ fees) resulting from any failure of Borrower to so perform under
the General Intangibles.



3. It shall be an Event of Default hereunder upon any failure by Borrower in the performance
or observance of any covenant or condition hereof and the continuance of such failure for thirty
(30) days (or such shorter period of time provided under any other Loan Document) after notice of
such default from Lender (provided that no such notice shall be required if not required under any
other Loan Document) within which to cure the same. Upon an Event of Default hereunder or under
any of the other Loan Documents, Lender may, but shall not be obligated to, assume any or all of
the obligations of Borrower under any or all of the Contracts and/or exercise the rights, benefits
and privileges of Borrower under any or all of the General Intangibles.



4. Upon the occurrence of an Event of Default hereunder or under any of the other Loan
Documents, Lender may give notice to any or all of the Contracting Parties, either requiring the
Contracting Party to continue performance under its Contract or, alternatively, terminating the
Contract. This Assignment shall constitute a direction to and full authority to the Contracting
Parties under the Contracts to act at Lender’s written direction and otherwise perform on Lender’s
behalf under the Contracts, without proof of the event of default relied upon. The Contracting
Parties shall be entitled to rely upon written notice from Lender that Lender has assumed all of
the rights and obligations of Borrower under the applicable Contract without any inquiry into
whether Borrower is in default hereunder or under any of the other Loan Documents. Such assumption
of a Contract by Lender shall be evidenced by written notice from Lender to the applicable
Contracting Party. Under no circumstances shall Lender be deemed by any party to have assumed
Borrower’s rights and obligations under a Contract unless and until such written notice is
delivered to the Contracting Party in accordance with the foregoing provision.



5. Lender shall have the right at any time, but shall have no obligation, to take in its name
or in the name of Borrower, or otherwise, such action as Lender may at any time or from time to
time determine to be reasonably necessary to cure any default under the General Intangibles or to
protect the rights of Borrower or Lender thereunder. Lender shall incur no liability to Borrower
if any action taken by Lender or in Lender’s behalf in good faith pursuant to this Assignment shall
prove to be in whole or in part inadequate or invalid. Borrower hereby protects, defends,
indemnifies and holds Lender and its affiliated entities, free and harmless from and against any
and all loss, cost, liability or expense (including, but not limited to, attorneys’ fees and
accountants’ fees) to which Lender may be exposed, or that Lender may incur, in exercising any of
its rights under this Assignment, unless caused by the intentional misconduct or gross negligence
of Lender.



6. Borrower hereby irrevocably constitutes and appoints Lender its true and lawful
attorney-in-fact in Borrower’s name or in Lender’s name, or otherwise, to, from and after the
occurrence of an Event of Default by Borrower hereunder or under any of the other Loan Documents to
enforce all of the rights of Borrower under the General Intangibles. It is hereby recognized that
the power of attorney herein granted is coupled with an interest and shall not be revocable so long
as any sums are outstanding under the loan evidenced by the Note.



7. Borrower shall deliver to Lender a true, correct and complete copy of each Contract
promptly after it has been executed and delivered by the parties thereto.



8. Notwithstanding anything to the contrary contained herein, Lender shall have no right under
this Assignment to assume any Contract or to exercise any rights, benefits or privileges of
Borrower under any of the other General Intangibles until Borrower shall be in default under the
terms of this Assignment or the terms of any of the other Loan Documents and such default shall not
have been cured within any applicable grace or cure period.



9. Borrower shall promptly obtain and deliver to Lender consents to the terms of this
Assignment, in forms reasonably acceptable to Lender, from such Contracting Parties as Lender may
request from time to time.



10. This Assignment and the agreements and undertakings of Borrower hereunder shall be binding
upon Borrower, their successors and assigns and any subsequent owner of the Property, and shall
inure to the benefit of Lender and its successors and assigns and any purchaser of any interest of
Lender in the Note, the Security Instrument and the other Loan Documents.



11. Borrower covenants and agrees to make, execute and deliver all such further or additional
instruments as may be necessary to satisfy the intents and purposes hereof and to perfect the
assignment made hereby.



12. This Assignment shall be construed under and governed by the laws of the State in which
the Property is located, except to the extent that any of such laws may now or hereafter be
preempted by Federal law, in which case such Federal law shall so govern and be controlling. In any
action brought under or arising out of this Assignment or the other Loan Documents, Borrower hereby
consents to the jurisdiction of any competent court within the State in which the Property is
located and consents to service of process by any means authorized by the law of the State in which
the Property is located.



13. All notices, demands, requests or other communication to be sent by one party to any other
hereunder or required by law shall be in writing and shall be deemed to have been validly given or
served by delivery of the same in person to the intended addressee, or by depositing the same with
Federal Express or another reputable private courier service for next business day delivery to the
intended addressee at its address set forth on the first page of this Assignment or at such other
address as may be designated by such party as herein provided, or by depositing the same in the
United States mail, postage prepaid, registered or certified mail, return receipt requested,
addressed to the intended addressee at its address set forth on the first page of this Assignment
or at such other address as may be designated by such party as herein provided. All notices,
demands and requests shall be effective upon such personal delivery, or one (1) business day after
being deposited with the private courier service, or two (2) business days after being deposited in
the United States mail as required above. Rejection or other refusal to accept or the inability to
deliver because of changed address of which notice was given as herein required shall be deemed to
be receipt of the notice, demand or request sent. By giving to any other party hereto at least
fifteen (15) days’ prior written notice thereof in accordance with the provisions hereof, the
parties hereto shall have the right from time to time to change their respective addresses and each
shall have the right to specify as its address any other address within the United States of
America.



14. In case of a conflict between any provision of this Assignment and any provision of the
other Loan Documents, the provisions of the Note or the Security Instrument, if they shall be the
conflicting other Loan Document, shall prevail and be controlling.



15. This Assignment may be executed in any number of counterparts, each of which shall be
effective upon delivery and thereafter shall be deemed an original, and all of which shall be taken
to be one and the same instrument, for the same effect as if all parties hereto had signed the same
signature page. Any signature page of this Assignment may be detached from any counterpart of this
Assignment without impairing the legal effect of any signatures thereon and may be attached to
another counterpart of this Assignment identical in form hereto but having attached to it one or
more additional signature pages.



16. Notwithstanding anything to the contrary contained in this Assignment, the liability of
Borrower and its officers, directors, general partners, managers, members and principals for the
indebtedness issued hereby and for the performance of the other agreements, covenants and
obligations contained herein and in the Loan Documents shall be limited as set forth in Section 2.6
of the Note.



17. If any provision under this Assignment or the application thereof to any entity, person or
circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this
Assignment and the application of the provisions hereof to other entities, persons or circumstances
shall not be affected thereby and shall be enforced to the fullest extent permitted by law.



18. This Assignment may not be amended, modified or otherwise changed except by a written
instrument duly executed by Borrower and Lender.



[THE BALANCE OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]




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




BORROWER:




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: /s/ Andrea R. Biller

	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 

	 
	 	 	 	 	 	 	 	 
	
 
	 	 	 	 	 	Name:
	 	Andrea R. Biller
	
 
	 	 	 	 	 	 	 	 






Title: Secretary




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