Arbours of Hermitage - Contract (Trade Street Capital)



Exhibit
10.157

PURCHASE
AND SALE CONTRACT

BETWEEN

CCP
IV ARBOURS OF HERMITAGE, LLC,
a Delaware limited liability company

AS
SELLER

AND

TRADE
STREET CAPITAL,
a Florida limited liability company

AS
PURCHASER

 

 

 

THE
ARBOURS OF HERMITAGE

6001
Hickory Boulevard

Hermitage,
Tennessee 37221

 




TABLE OF CONTENTS

Page

 

	
 
	
ARTICLE
I
	
DEFINED
TERMS
	
1

	
 
	
ARTICLE
II
	
PURCHASE
AND SALE, PURCHASE PRICE & DEPOSIT
	
1

	
 
	
2.1
	
Purchase
and Sale
	
1

	
 
	
2.2
	
Purchase
Price and Deposit
	
1

	
 
	
2.3
	
Escrow
Provisions Regarding Deposit
	
2

	
 
	
ARTICLE
III
	
FEASIBILITY
PERIOD
	
3

	
 
	
3.1
	
Feasibility
Period
	
3

	
 
	
3.2
	
Expiration
of Feasibility Period
	
3

	
 
	
3.3
	
Conduct
of Investigation
	
3

	
 
	
3.4
	
Purchaser
Indemnification
	
4

	
 
	
3.5
	
Property
Materials
	
4

	
 
	
3.6
	
Property
Contracts
	
5

	
 
	
ARTICLE
IV
	
TITLE
	
6

	
 
	
4.1
	
Title
Documents
	
6

	
 
	
4.2
	
Survey
	
6

	
 
	
4.3
	
Objection
and Response Process
	
6

	
 
	
4.4
	
Permitted
Exceptions
	
7

	
 
	
4.5
	
Existing
Deed of Trust
	
7

	
 
	
4.6
	
Subsequently
Disclosed Exceptions
	
7

	
 
	
4.7
	
Purchaser
Financing
	
8

	
 
	
ARTICLE
V
	
CLOSING
	
8

	
 
	
5.1
	
Closing
Date
	
8

	
 
	
5.2
	
Seller
Closing Deliveries
	
8

	
 
	
5.3
	
Purchaser
Closing Deliveries
	
9

	
 
	
5.4
	
Closing
Prorations and Adjustments
	
10

	
 
	
5.5
	
Post
Closing Adjustments
	
12

	
 
	
ARTICLE
VI
	
REPRESENTATIONS
AND WARRANTIES OF SELLER AND
	
 

	
 
	
 
	
PURCHASER
	
13

	
 
	
6.1
	
Seller’s
Representations
	
13

	
 
	
6.2
	
AS-IS
	
14

	
 
	
6.3
	
Survival
of Seller’s Representations
	
15

	
 
	
6.4
	
Definition
of Seller’s Knowledge
	
15

	
 
	
6.5
	
Representations
and Warranties of Purchaser
	
15

	
 
	
ARTICLE
VII
	
OPERATION
OF THE PROPERTY
	
16

	
 
	
7.1
	
Leases
and Property Contracts
	
16

	
 
	
7.2
	
General
Operation of Property
	
17

	
 
	
7.3
	
Liens
	
17

	
 
	
7.4
	
Fire
Damage
	
17

	
 
	
7.5
	
Tax
Appeals
	
18

	
 
	
ARTICLE VIII
	
CONDITIONS
PRECEDENT TO CLOSING
	
19

	
 
	
8.1
	
Purchaser’s
Conditions to Closing
	
19

	
 
	
8.2
	
Seller’s
Conditions to Closing
	
19

	
 
	
ARTICLE
IX
	
BROKERAGE
	
20

	
 
	
9.1
	
Indemnity
	
20

	
 
	
9.2
	
Broker
Commission
	
20

	
 
	
ARTICLE
X
	
DEFAULTS
AND REMEDIES
	
20

	
 
	
10.1
	
Purchaser
Default
	
20

	
 
	
10.2
	
Seller
Default
	
21

	
 
	
ARTICLE
XI
	
RISK
OF LOSS OR CASUALTY
	
22

	
 
	
11.1
	
Major
Damage
	
22

	
 
	
11.2
	
Minor
Damage
	
22

	
 
	
11.3
	
Closing
	
22

	
 
	
11.4
	
Repairs
	
22

	
 
	
ARTICLE
XII
	
EMINENT
DOMAIN
	
23

	
 
	
12.1
	
Eminent
Domain
	
23

	
 
	
ARTICLE
XIII
	
MISCELLANEOUS
	
23

	
 
	
13.1
	
Binding
Effect of Contract
	
23

	
 
	
13.2
	
Exhibits
and Schedules
	
23

	
 
	
13.3
	
Assignability
	
23

	
 
	
13.4
	
Captions
	
23

	
 
	
13.5
	
Number
and Gender of Words
	
24

	
 
	
13.6
	
Notices
	
24

	
 
	
13.7
	
Governing
Law and Venue
	
26

	
 
	
13.8
	
Entire
Agreement
	
26

	
 
	
13.9
	
Amendments
	
26

	
 
	
13.10
	
Severability
	
26

	
 
	
13.11
	
Multiple
Counterparts/Facsimile Signatures
	
27

	
 
	
13.12
	
Construction
	
27

	
 
	
13.13
	
Confidentiality
	
27

	
 
	
13.14
	
Time
of the Essence
	
27

	
 
	
13.15
	
Waiver
	
27

	
 
	
13.16
	
Attorneys’
Fees
	
27

	
 
	
13.17
	
Time
Zone/Time Periods
	
27

	
 
	
13.18
	
1031
Exchange
	
28

	
 
	
13.19
	
No
Personal Liability of Officers, Trustees or Directors of
	
 

	
 
	
 
	
Seller’s
Partners
	
28

	
 
	
13.20
	
ADA
Disclosure
	
28

	
 
	
13.21
	
No
Recording
	
28

	
 
	
13.22
	
Relationship
of Parties
	
29

	
 
	
13.23
	
Dispute
Resolution
	
29

	
 
	
13.24
	
AIMCO
Marks
	
29

	
 
	
13.25
	
Non-Solicitation
of Employees
	
29

	
 
	
13.26
	
Survival
	
30

	
 
	
13.27
	
Multiple
Purchasers
	
30

	
 
	
13.28
	
Waiver
of Jury Trial
	
30

	
ARTICLE
XIV
	
LEAD-BASED
PAINT DISCLOSURE
	
30

	
 
	
14.1
	
Disclosure
	
30

	
 
	
14.2
	
Consent
Agreement
	
30

								


 


EXHIBITS AND SCHEDULES

 

EXHIBITS

 

Exhibit
A                     
Legal Description

Exhibit
B                     
Form of Special Warranty Deed

Exhibit
C                     
Form of Bill of Sale

Exhibit
D                     
Form of General Assignment and Assumption

Exhibit
E                      
Form of Assignment and Assumption of Leases and Security Deposits

Exhibit
F                      
Form of Notice to Vendor Regarding Termination of Contract

Exhibit
G                     
Form of Tenant Notification

Exhibit
H                     
Form of Lead Paint Disclosure

 

 

SCHEDULES

 

Schedule
1                  
Defined Terms

Schedule
2                  
List of Excluded Fixtures and Tangible Personal Property

 

 




PURCHASE AND SALE CONTRACT

THIS
PURCHASE AND SALE CONTRACT (this “Contract”) is entered
into as of the 27th day of September, 2010 (the “Effective
Date”), by and between CCP IV ARBOURS OF HERMITAGE, LLC, a Delaware
limited liability company, having an address at 4582 South Ulster Street
Parkway, Suite 1100, Denver, Colorado 80237 (“Seller”), and
TRADE STREET CAPITAL, a Florida limited liability company, having a
principal address at 19950 W. Country Club Drive, Suite 801, Aventura, Florida
33180 (“Purchaser”).

NOW,
THEREFORE, in consideration of mutual covenants set forth herein, Seller and
Purchaser hereby agree as follows:

RECITALS

A.                
Seller owns the real estate located in Davidson County, Tennessee, as
more particularly described in Exhibit A attached hereto and made a part
hereof, and the improvements thereon, commonly known as The Arbours of Hermitage
Apartments.

B.                
Purchaser desires to purchase, and Seller desires to sell, such land,
improvements and certain associated property, on the terms and conditions set
forth below.

ARTICLE I
DEFINED
TERMS

Unless
otherwise defined herein, any term with its initial letter capitalized in this
Contract shall have the meaning set forth in Schedule 1 attached hereto
and made a part hereof.

ARTICLE II
PURCHASE AND
SALE, PURCHASE PRICE & DEPOSIT

2.1       Purchase and
Sale.

 
Seller agrees to sell and convey the Property to Purchaser and Purchaser agrees
to purchase the Property from Seller, all in accordance with the terms and
conditions set forth in this Contract.

2.2       Purchase Price and
Deposit.

 
The total purchase price (“Purchase Price”) for the Property shall
be an amount equal to Seventeen Million  Dollars ($17,000,000.00), payable
by Purchaser, as follows:

2.2.1    Within 2 Business Days following the
Effective Date, Purchaser shall deliver to First American Title Insurance
Company of New York (“Escrow Agent” or “Title
Insurer”) an initial deposit (the “Initial Deposit”) of
One Hundred Fifty Thousand  Dollars ($150,000.00) by wire transfer of
immediately available funds (“Good Funds”).

2.2.2    On the
first Business Day following the expiration of the Feasibility Period, Purchaser
shall deliver to Escrow Agent an additional deposit of Two Hundred Fifty
Thousand  Dollars ($250,000.00) (the “Additional Deposit”)
of  by wire transfer of Good Funds.

2.2.3    The balance of the Purchase Price for
the Property shall be paid to and received by Escrow Agent by wire transfer of
Good Funds no later than 10:00 a.m. on the Closing Date.

2.3       Escrow Provisions
Regarding Deposit.

2.3.1   
Escrow Agent shall hold the Deposit and make delivery of the Deposit to the
party entitled thereto under the terms of this Contract.  Escrow Agent
shall invest the Deposit in an FDIC-insured, interest-bearing bank account or
FDIC-insured money market fund reasonably approved by Purchaser and Seller, and
all interest and income thereon shall become part of the Deposit and shall be
remitted to the party entitled to the Deposit pursuant to this Contract.

2.3.2   
Escrow Agent shall hold and apply the Deposit in strict accordance with the
terms of this Contract.  The tax identification
numbers of the parties shall be furnished to Escrow Agent upon request.

2.3.3   
Except for the return of the Deposit to Purchaser as a result of Purchaser
exercising its termination right under Section 3.2 below (in which event Escrow
Agent shall promptly release the Deposit to Purchaser on demand), if prior to
the Closing Date either party makes a written demand upon Escrow Agent for
payment of the Deposit, Escrow Agent shall give written notice to the other
party of such demand.  If Escrow Agent does not receive a written objection
from the other party to the proposed payment within 5 Business Days after the
giving of such notice, Escrow Agent is hereby authorized to make such
payment.  If Escrow Agent does receive such written objection within such
5-Business Day period, Escrow Agent shall continue to hold such amount until
otherwise directed by written instructions from the parties to this Contract or
a final judgment or arbitrator’s decision.  However, Escrow Agent shall
have the right at any time to deliver the Deposit and interest thereon, if any,
with a court of competent jurisdiction in the state in which the Property is
located.  Escrow Agent shall give written notice of such deposit to Seller
and Purchaser.  Upon such deposit, Escrow Agent shall be relieved and
discharged of all further obligations and responsibilities hereunder.  Any
return of the Deposit to Purchaser provided for in this Contract shall be
subject to Purchaser’s obligations set forth in
Section 3.5.2.  

2.3.4   
The parties acknowledge that Escrow Agent is acting solely as a stakeholder at
their request and for their convenience, and that Escrow Agent shall not be
deemed to be the agent of either of the parties and shall not be liable for any
act or omission on its part unless taken or suffered in bad faith in willful
disregard of this Contract or involving gross negligence.  Seller and
Purchaser jointly and severally shall indemnify and hold Escrow Agent harmless
from and against all costs, claims and expenses, including reasonable attorney’s
fees, incurred in connection with the performance of Escrow Agent’s duties
hereunder, except with respect to actions or omissions taken or suffered by
Escrow Agent in bad faith, in willful disregard of this Contract or involving
gross negligence on the part of the Escrow Agent.

2.3.5    The parties shall deliver to Escrow
Agent an executed copy of this Contract.  Escrow Agent shall execute the
signature page for Escrow Agent attached hereto which shall confirm Escrow
Agent’s agreement to comply with the terms of Seller’s closing instruction
letter delivered at Closing and the provisions of this
Section 2.3.

2.3.6    Escrow Agent, as the person
responsible for closing the transaction within the meaning of
Section 6045(e)(2)(A) of the Internal Revenue Code of 1986, as amended (the
“Code”), shall file all necessary information, reports, returns,
and statements regarding the transaction required by the Code including, but not
limited to, the tax reports required pursuant to Section 6045 of the
Code.  Further, Escrow Agent agrees to indemnify and hold Purchaser,
Seller, and their respective attorneys and brokers harmless from and against any
Losses resulting from Escrow Agent’s failure to file the reports Escrow Agent is
required to file pursuant to this section.

ARTICLE III
FEASIBILITY
PERIOD

3.1       Feasibility
Period.

 
Subject to the terms of Sections 3.3 and 3.4 and
the rights of Tenants under the Leases, from the Effective Date to and including
October 27, 2010 (the “Feasibility Period”), Purchaser, and its
agents, contractors, engineers, surveyors, attorneys, and employees
(collectively, “Consultants”) shall, at no cost or expense to
Seller, have the right from time to time to enter onto the Property to conduct
and make any and all customary studies, tests, examinations, inquiries,
inspections and investigations of or concerning the Property, review the
Materials and otherwise confirm any and all matters which Purchaser may
reasonably desire to confirm with respect to the Property and Purchaser’s
intended use thereof (collectively, the “Inspections”).

3.2       Expiration of
Feasibility Period.

 
If any of the matters in Section 3.1 or any other title or
survey matters are unsatisfactory to Purchaser for any reason, or for no reason
whatsoever, in Purchaser’s sole and absolute discretion, then Purchaser shall
have the right to terminate this Contract by giving written notice to that
effect to Seller and Escrow Agent no later than 5:00 p.m. (Eastern Time) on or
before the date of expiration of the Feasibility Period.  If Purchaser
provides such notice, this Contract shall terminate and be of no further force
and effect subject to and except for the Survival Provisions, and Escrow Agent
shall return the Initial Deposit to Purchaser.  If Purchaser fails to
provide Seller with written notice of termination prior to the expiration of the
Feasibility Period, Purchaser’s right to terminate under this
Section 3.2 shall be permanently waived and this Contract
shall remain in full force and effect, the Deposit shall be non-refundable
except as otherwise expressly set forth in this Contract, and Purchaser’s
obligation to purchase the Property shall be conditional only as provided in
Section 8.1.

3.3       Conduct of
Investigation.

 
Purchaser shall not permit any mechanics’ or materialmen’s liens or any other
liens to attach to the Property by reason of the performance of any work or the
purchase of any materials by Purchaser or any other party in connection with any
Inspections conducted by or for Purchaser.  Purchaser shall give reasonable
advance notice to Seller prior to any entry onto the Property and shall permit
Seller to have a representative present during all Inspections conducted at the
Property.  Purchaser shall take all reasonable actions
and implement all protections necessary to ensure that all actions taken in
connection with the Inspections, and all equipment, materials and substances
generated, used or brought onto the Property pose no material threat to the
safety of persons, property or the environment.

3.4       Purchaser
Indemnification.

3.4.1    Purchaser shall indemnify, hold
harmless and, if requested by Seller (in Seller’s sole discretion), defend (with
counsel approved by Seller) Seller, together with Seller’s affiliates, parent
and subsidiary entities, successors, assigns, partners, managers, members,
employees, officers, directors, trustees, shareholders, counsel,
representatives, agents, Property Manager, Regional Property Manager, and AIMCO
(collectively, including Seller, “Seller’s Indemnified Parties”),
from and against any and all damages, mechanics’ liens, materialmen’s liens,
liabilities, penalties, interest, losses, demands, actions, causes of action,
claims, costs and expenses (including reasonable attorneys’ fees, including the
cost of in-house counsel and appeals) (collectively, “Losses”)
arising from or related to Purchaser’s or its Consultants’ entry onto the
Property, and any Inspections or other acts by Purchaser or Purchaser’s
Consultants with respect to the Property during the Feasibility Period or
otherwise.

3.4.2    Notwithstanding anything in this
Contract to the contrary, Purchaser shall not be permitted to perform any
invasive tests (including, without limitation, a Phase II environmental study)
on the Property without Seller’s prior written consent, which consent shall not
be unreasonably withheld, conditioned or delayed.  If Purchaser desires to
perform any invasive tests, Purchaser shall give prior written notice thereof to
Seller, which notice shall be accompanied by a detailed description and plan of
the invasive tests Purchaser desires to perform.  Further, Seller shall
have the right, without limitation, to disapprove any and all entries, tests,
investigations and other matters that in Seller’s reasonable judgment could
result in any physical injury to the Property or breach of any contract, or
expose Seller to any Losses or violation of applicable law.  Purchaser
shall, at Purchaser’s sole cost and expense and in accordance with all
applicable environmental laws, dispose of all hazardous materials which have
been specifically removed from or at the Property by Purchaser or its agents,
representatives, employees or designees in connection with Purchaser’s
environmental studies.  Purchaser shall use reasonable efforts to minimize
disruption to Tenants in connection with Purchaser’s or its Consultants’
activities pursuant to this Section.  No consent by Seller to any such
activity shall be deemed to constitute a waiver by Seller or assumption of
liability or risk by Seller.  Purchaser hereby agrees to restore, at
Purchaser’s sole cost and expense, the Property to the same condition existing
immediately prior to Purchaser’s exercise of its rights pursuant to this
Article III.  Purchaser shall maintain and cause its third party
consultants to maintain (a) casualty insurance and commercial general liability
insurance with coverages of not less than $1,000,000.00 for injury or death to
any one person and $3,000,000.00 for injury or death to more than one person and
$1,000,000.00 with respect to property damage, and (b) worker’s compensation
insurance for all of their respective employees in accordance with the law of
the state in which the Property is located.  Purchaser shall deliver proof
of the insurance coverage required pursuant to this
Section 3.4.2 to Seller (in the form of a certificate
of insurance) prior to the earlier to occur of (i)
Purchaser’s or Purchaser’s Consultants’ entry onto the Property, or (ii) the
expiration of 5 days after the Effective Date.

3.5       Property
Materials.

3.5.1    Within 5 Business Days after the
Effective Date, and to the extent the same have not already been provided by
Seller to Purchaser, Seller agrees to use reasonable efforts to deliver to
Purchaser, or at Seller’s option make available at the Property, copies of such
documents and information concerning the Property that are in Seller’s
possession or reasonable control, other than such documents and information that
Seller reasonably determines are confidential, proprietary or immaterial
(collectively, the “Materials”).  

3.5.2    Except as expressly set forth in
Seller’s Representations, Seller makes no representations or warranties,
express, written, oral, statutory, or implied, and all such representations and
warranties are hereby expressly excluded and disclaimed.  All Materials are
provided for informational purposes only, and Purchaser shall not in any way be
entitled to rely upon the completeness or accuracy of the Materials, and will
instead in all instances rely exclusively on its own Inspections and Consultants
with respect to all matters which it deems relevant to its decision to acquire,
own and operate the Property.  All Materials and Third-Party Reports shall
be returned to Seller or destroyed by Purchaser if this Contract is terminated
for any reason.

3.5.3    Not later than 5 Business Days after
the Effective Date, and to the extent same has not already been provided by
Seller to Purchaser, Seller shall deliver to Purchaser (or otherwise make
available to Purchaser as provided under Section 3.5.1)
the most recent rent roll for the Property, which is the rent roll Seller uses
in the ordinary course of operating the Property (the “Rent
Roll”).  Seller makes no representations or warranties regarding
the Rent Roll other than the express representation set forth in
Section 6.1.5.

3.5.4    Not later than 5 Business Days after
the Effective Date, and to the extent the same has not already been provided by
Seller to Purchaser, Seller shall deliver to Purchaser (or otherwise make
available to Purchaser as provided under Section 3.5.1)
a list of all current Property Contracts (the “Property Contracts
List”).  Seller makes no representations or warranties regarding
the Property Contracts List other than the express representations set forth in
Section 6.1.6.

3.6       Property
Contracts.

 
On or before the expiration of the Feasibility Period, Purchaser may deliver
written notice to Seller (the “Property Contracts Notice”)
specifying any Property Contracts which Purchaser desires to terminate at the
Closing (the “Terminated Contracts”); provided that (a) the
effective date of such termination on or after Closing shall be subject to the
express terms of such Terminated Contracts, (b) if any such Property Contract
cannot by its terms be terminated at Closing, it shall be assumed by Purchaser
and not be a Terminated Contract, and (c) to the extent that any such Terminated
Contract requires payment of a penalty, premium, or damages, including
liquidated damages, for cancellation, Purchaser shall be solely responsible for
the payment of any such cancellation fees, penalties, or damages, including liquidated damages.  If Purchaser fails to
deliver the Property Contracts Notice on or before the expiration of the
Feasibility Period, then there shall be no Terminated Contracts and Purchaser
shall assume all Property Contracts at the Closing.  If Purchaser delivers
the Property Contracts Notice to Seller on or before the expiration of the
Feasibility Period, then Seller shall execute and deliver, on or before Closing,
a vendor termination notice (in the form attached hereto as Exhibit F) for
each Terminated Contract informing the vendor(s) of the termination of such
Terminated Contract as of the Closing Date (subject to any delay in the
effectiveness of such termination pursuant to the express terms of each
applicable Terminated Contract) (the “Vendor Terminations”). 
To the extent that any Property Contract to be assigned to Purchaser requires
vendor consent, then, prior to the Closing, Purchaser and Seller shall attempt
to obtain from each applicable vendor a consent (each a “Required
Assignment Consent”) to such assignment.  Purchaser shall
indemnify, hold harmless and, if requested by Seller (in Seller’s sole
discretion), defend (with counsel approved by Seller) Seller’s Indemnified
Parties from and against any and all Losses arising from or related to a
Purchaser’s failure to obtain any Required Assignment Consent.

ARTICLE IV
TITLE

4.1       Title
Documents.

 
Purchaser acknowledges that prior to the Effective Date Purchaser has received
from Title Insurer and has reviewed, a commitment for owner’s title insurance
(file no. 3020-385501TN2) with regard to the Property ("Title
Commitment") to provide a standard American Land Title Association
owner's title insurance policy for the Land and Improvements, using the current
policy jacket customarily provided by the Title Insurer, in an amount equal to
the Purchase Price (the "Title Policy"), together with copies of
all instruments identified as exceptions therein (together with the Title
Commitment, referred to herein as the "Title Documents"). 
Seller shall be responsible only for payment of the base premium for the Title
Policy.  Purchaser shall be solely responsible for payment of all other
costs relating to procurement of the Title Commitment, the Title Policy, and any
requested endorsements.

 

4.2       Survey.

 
Purchaser acknowledges that, prior to the Effective Date, Purchaser has received
from Seller the existing survey of the Property dated August 31, 2005 and
prepared by Barge Waggoner Sumner & Cannon, Inc. (the “Existing
Survey”).  Purchaser may, at its sole cost and expense, order a new
or updated survey of the Property either before or after the Effective Date
(such new or updated survey together with the Existing Survey, is referred to
herein as the “Survey”).

 

4.3       Objection and
Response Process.

 
On or before October 18, 2010 (the “Objection Deadline”),
Purchaser shall give written notice (the “Objection Notice”) to
the attorneys for Seller of any matter set forth in the Title Documents and the
Survey to which Purchaser objects (the “Objections”).  If
Purchaser fails to tender an Objection Notice on or before the Objection
Deadline, Purchaser shall be deemed to have approved and irrevocably waived any
objections to any matters covered by the Title Documents and the Survey. 
On or before October 22, 2010 (the “Response Deadline”), Seller
may, in Seller’s sole discretion, give Purchaser notice (the “Response
Notice”) of those Objections which Seller is willing to cure, if
any.  Seller shall be entitled to reasonable adjournments of the Closing
Date to cure  the Objections, not to exceed 30 days
in the aggregate.  If Seller fails to deliver a Response Notice by the
Response Deadline, Seller shall be deemed to have elected not to cure or
otherwise resolve any matter set forth in the Objection Notice.  If
Purchaser is dissatisfied with the Response Notice or the lack of Response
Notice, Purchaser may, as its exclusive remedy, exercise its right to terminate
this Contract prior to the expiration of the Feasibility Period in accordance
with the provisions of Section 3.2.  If Purchaser fails to
timely exercise such right, Purchaser shall be deemed to accept the Title
Documents and Survey with resolution, if any, of the Objections set forth in the
Response Notice (or if no Response Notice is tendered, without any resolution of
the Objections) and without any reduction or abatement of the Purchase
Price.

4.4       Permitted
Exceptions.

 
The Deed delivered pursuant to this Contract shall be subject to the following,
all of which shall be deemed “Permitted Exceptions”:

4.4.1   
All matters shown in the Title Documents and the Survey, other than (a) those
Objections, if any, which Seller has agreed to cure pursuant to the Response
Notice under Section 4.3, (b) mechanics’ liens and taxes due
and payable with respect to the period preceding Closing, (c) the standard
exception regarding the rights of parties in possession, which shall be modified
to be limited to those parties in possession pursuant to the Leases, and (d) the
standard exception pertaining to taxes and assessments, which shall be modified
to be limited to taxes and assessments not yet due and payable as of the Closing
Date;

4.4.2   
All Leases;

4.4.3   
Applicable zoning and governmental regulations and ordinances; and

4.4.4   
Any defects in or objections to title to the Property, or title exceptions or
encumbrances, arising by, through or under Purchaser.

4.5       Existing Deed of
Trust.

 
It is understood and agreed that, whether or not Purchaser gives an Objection
Notice with respect thereto, any deeds of trust and/or mortgages which secure
the loan(s) encumbering the Property (collectively, the “Deed of
Trust”) shall not be deemed Permitted Exceptions and shall be paid off
from proceeds of the Purchase Price at Closing.  

4.6       Subsequently
Disclosed Exceptions.

 
If at any time after the expiration of the Feasibility Period, any update to the
Title Commitment or Existing Survey discloses any additional item that
materially adversely affects title to the Property which was not disclosed on
any version of or update to the Title Commitment delivered to Purchaser during
the Feasibility Period (the “New Exception”), Purchaser shall have
a period of 5 days from the date of its receipt of such update (the “New
Exception Review Period”) to review and notify Seller in writing of
Purchaser’s approval or disapproval of the New Exception.  If Purchaser
disapproves of the New Exception, Seller may, in Seller’s sole discretion,
notify Purchaser as to whether it is willing to cure the New Exception.  If
Seller elects to cure the New Exception, Seller shall be entitled to reasonable
adjournments of the Closing Date to cure the New Exception, not to exceed 30
days in the aggregate.  If Seller fails to deliver a notice to Purchaser
within 3 days after the expiration of the New Exception Review Period, Seller
shall be deemed to have elected not to cure the New
Exception.  If Purchaser is dissatisfied with Seller’s response, or lack
thereof, Purchaser may, as its exclusive remedy elect either:  (i) to
terminate this Contract, in which event the Deposit shall be promptly returned
to Purchaser or (ii) to waive the New Exception and proceed with the
transactions contemplated by this Contract, in which event Purchaser shall be
deemed to have approved the New Exception.  If Purchaser fails to notify
Seller of its election to terminate this Contract in accordance with the
foregoing sentence within 6 days after the expiration of the New Exception
Review Period, Purchaser shall be deemed to have elected to approve and
irrevocably waive any objections to the New Exception.

4.7       Purchaser
Financing.

 
Purchaser assumes full responsibility to obtain the funds required for
settlement, and Purchaser’s acquisition of such funds shall not be a contingency
to the Closing.

ARTICLE V
CLOSING

5.1       Closing
Date.

 
The Closing shall occur on November 16, 2010 (the “Closing Date”)
through an escrow with Escrow Agent, whereby Seller, Purchaser and their
attorneys need not be physically present at the Closing and may deliver
documents by overnight air courier or other means.  Notwithstanding the
foregoing to the contrary, Seller shall have the option, by delivering written
notice to Purchaser, to extend the Closing Date to the last Business Day of the
month in which the Closing Date otherwise would occur pursuant to the preceding
sentence, in connection with Seller’s payment in full of the loan(s) secured by
the Deed of Trust (the “Loan Payoff”).  

5.2       Seller Closing
Deliveries.

 
Except for the closing statement (which shall be delivered on or before the
Closing Date), Seller shall deliver to Escrow Agent, each of the following items
no later than 1 Business Day prior to the Closing Date:

5.2.1    Special Warranty Deed (the
“Deed”) in the form attached as Exhibit B to
Purchaser, subject to the Permitted Exceptions.

5.2.2   
A Bill of Sale in the form attached as Exhibit C.

5.2.3    A General Assignment in the form
attached as Exhibit D (the “General Assignment”), which
General Assignment shall include the assignment of all Repair Work Contracts to
the extent required under Section 7.4 below.

5.2.4    An Assignment of Leases and Security
Deposits in the form attached as Exhibit E (the “Leases
Assignment”).

5.2.5   
Seller’s counterpart signature to the closing statement prepared by Title
Insurer.

5.2.6   
A title affidavit or an indemnity form reasonably acceptable to Seller, which is
sufficient to enable Title Insurer to delete the standard pre-printed exceptions
to the title insurance policy to be issued pursuant to the Title
Commitment.

5.2.7    A certification of Seller’s
non-foreign status pursuant to Section 1445 of the Internal Revenue Code of
1986, as amended.

5.2.8   
Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Seller’s
authority to consummate this transaction.

5.2.9    An updated Rent Roll effective as of
a date no more than 3 Business Days prior to the Closing Date; provided,
however, that the content of such updated Rent Roll shall in no event expand or
modify the conditions to Purchaser’s obligation to close as specified under
Section 8.1.

5.2.10  An updated Property Contracts List effective as
of a date no more than 3 Business Days prior to the Closing Date; provided,
however, that the content of such updated Property Contracts List shall in no
event expand or modify the conditions to Purchaser’s obligation to close as
specified under Section 8.1.

5.2.11 
In connection with the Damaged Property, and to the extent required under
Section 7.4, an Assignment of Insurance Claims and Proceeds in form reasonably
acceptable to Seller, Purchaser and the insurance company (the “Insurance
Assignment”).

5.2.12 
Such notices, transfer disclosures, affidavits or other similar documents that
are required by applicable law to be executed by Seller or otherwise reasonably
necessary in order to consummate the transactions contemplated under terms of
the Contract.

5.3       Purchaser Closing
Deliveries.

 
Except for (i) the closing statement (which shall be delivered on or before the
Closing Date) and (ii) the balance of the Purchase Price which is to be
delivered at the time specified in Section 2.2.3, Purchaser shall deliver to
Escrow Agent, each of the following items no later than 1 Business Day prior to
the Closing Date:

5.3.1    The full Purchase Price (with credit
for the Deposit), plus or minus the adjustments or prorations required by this
Contract (it being understood that the balance of the Purchase Price shall be
delivered at the time specified in Section 2.2.3 and not 1 Business Day prior to
the Closing Date).

5.3.2   
Purchaser’s counterpart signature to the closing statement prepared by Title
Insurer.

5.3.3   
A countersigned counterpart of the General Assignment.

5.3.4   
A countersigned counterpart of the Leases Assignment.

5.3.5   
To the extent required under Section 7.4 below, a countersigned counterpart of
the Insurance Assignment.

5.3.6    Notification letters to all Tenants
prepared and executed by Purchaser in the form attached hereto as Exhibit
G, which shall be delivered to all Tenants by Purchaser immediately after
Closing. 

5.3.7   
Any cancellation fees or penalties due to any vendor under any Terminated
Contract as a result of the termination thereof.

5.3.8   
Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Purchaser’s
authority to consummate this transaction.

5.3.9   
Such notices, transfer disclosures, affidavits or other similar documents that
are required by applicable law to be executed by Purchaser or otherwise
reasonably necessary in order to consummate the transactions contemplated under
this Contract.

5.4       Closing Prorations
and Adjustments.

5.4.1    General.  All
normal and customarily proratable items, including, without limitation,
collected rents, operating expenses, personal property taxes, other operating
expenses and fees, shall be prorated as of the Closing Date, Seller being
charged or credited, as appropriate, for all of same attributable to the period
up to the Closing Date (and credited for any amounts paid by Seller attributable
to the period on or after the Closing Date, if assumed by Purchaser) and
Purchaser being responsible for, and credited or charged, as the case may be,
for all of the same attributable to the period on and after the Closing
Date.  Seller shall prepare a proration schedule (the "Proration
Schedule") of the adjustments described in this Section 5.4 prior
to Closing and shall use good faith efforts to deliver such Proration Schedule 2
days prior to Closing.  

5.4.2    Operating
Expenses.  All of the operating, maintenance, taxes (other than
real estate taxes), and other expenses incurred in operating the Property that
Seller customarily pays, and any other costs incurred in the ordinary course of
business for the management and operation of the Property, shall be prorated on
an accrual basis.  Seller shall pay all such expenses that accrue prior to
the Closing Date and Purchaser shall pay all such expenses that accrue from and
after the Closing Date.

5.4.3   
Utilities.  The final readings and final billings for utilities
will be made if possible as of the Closing Date, in which case Seller shall pay
all such bills as of the Closing Date and no proration shall be made at the
Closing with respect to utility bills.  Otherwise, a proration shall be
made based upon the parties’ reasonable good faith estimate.  Seller shall
be entitled to the return of any deposit(s) posted by it with any utility
company, and Seller shall notify each utility company serving the Property to
terminate Seller’s account, effective as of noon on the Closing Date. 
Seller shall have no responsibility or liability for Purchaser’s failure to
arrange utility service for the Property as of the Closing Date.  Purchaser
shall indemnify, hold harmless and, if requested by Seller (in Seller’s sole
discretion), defend (with counsel approved by Seller) Seller’s Indemnified
Parties from and against any and all Losses arising from or related to
Purchaser’s failure to arrange utility service as of the Closing Date. 

5.4.4    Real Estate
Taxes.  Any real estate ad valorem or similar taxes for the
Property, or any installment of assessments payable in installments which
installment is payable in the calendar year of Closing, shall be prorated to the
date of Closing, based upon actual days involved.  The proration of real
property taxes or installments of assessments shall be based upon the assessed
valuation and tax rate figures (assuming payment at the earliest time to allow
for the maximum possible discount) for the year in which the Closing occurs to
the extent the same are available; provided, however, that in the event that
actual figures (whether for the assessed value of the Property or for the tax
rate) for the year of Closing are not available at the Closing Date, the
proration shall be made using figures from the preceding year (assuming payment
at the earliest time to allow for the maximum possible discount).  The
proration of real property taxes or installments of assessments shall be final
and not subject to re-adjustment after Closing. 

5.4.5   
Property Contracts.  Except for those Property Contracts which are
terminated pursuant to the terms of this Contract, Purchaser shall assume at
Closing the obligations under the Property Contracts assumed by Purchaser;
however, operating expenses shall be prorated under
Section 5.4.2.

5.4.6   
Leases.

5.4.6.1 All collected rent (whether fixed monthly rentals,
additional rentals, escalation rentals, retroactive rentals, operating cost
pass-throughs or other sums and charges payable by Tenants under the Leases),
income and expenses from any portion of the Property shall be prorated as of the
Closing Date.  Purchaser shall receive all collected rent and income
attributable to dates from and after the Closing Date.  Seller shall
receive all collected rent and income attributable to dates prior to the Closing
Date.  In addition, if Purchaser elects to terminate any utility rebilling
contract associated with the Property, then Seller shall receive a credit at
Closing equal to the average of the amount of the monthly utility bill
associated with the Property for the preceding 12 months, multiplied by 3. 
Notwithstanding the foregoing, no prorations shall be made in relation to either
(a) non-delinquent rents which have not been collected as of the Closing Date,
or (b) delinquent rents existing, if any, as of the Closing Date (the foregoing
(a) and (b) referred to herein as the "Uncollected Rents"). 
In adjusting for Uncollected Rents, no adjustments shall be made in Seller's
favor for rents which have accrued and are unpaid as of the Closing, but
Purchaser shall pay Seller such accrued Uncollected Rents as and when collected
by Purchaser.  For a period of 180 days following Closing, Purchaser agrees
to bill Tenants of the Property for all Uncollected Rents and to take reasonable
actions (which shall not include an obligation to commence legal action) to
collect Uncollected Rents.  Notwithstanding the foregoing, Purchaser's
obligation to collect Uncollected Rents shall be limited to Uncollected Rents of
not more than 90 days past due, and Purchaser's collection of rents shall be
applied, first, towards current rent due and owing under the Leases, second to
Purchaser’s reasonable third-party costs of such collection, and, third, to
Uncollected Rents.  After the Closing, Seller shall continue to have the
right, but not the obligation, in its own name, to demand payment of and to
collect Uncollected Rents owed to Seller by any Tenant, which right shall include, without limitation, the right to
continue or commence legal actions or proceedings against any Tenant and the
delivery of the Leases Assignment shall not constitute a waiver by Seller of
such right; provided however, that the foregoing right of Seller shall be
limited to actions seeking monetary damages and, in no event, shall Seller seek
to evict any Tenants in any action to collect Uncollected Rents.  Purchaser
agrees to cooperate with Seller in connection with all efforts by Seller to
collect such Uncollected Rents and to take all steps, whether before or after
the Closing Date, as may be necessary to carry out the intention of the
foregoing; provided, however, that Purchaser’s obligation to cooperate with
Seller pursuant to this sentence shall not obligate Purchaser to terminate any
Tenant lease with an existing Tenant or evict any existing Tenant from the
Property.

5.4.6.2 At Closing, Purchaser shall receive a credit against
the Purchase Price in an amount equal to the received and unapplied balance of
all cash (or cash equivalent) Tenant Deposits, including, but not limited to,
security, damage, pet or other refundable deposits paid by any of the Tenants to
secure their respective obligations under the Leases, together, in all cases,
with any interest payable to the Tenants thereunder as may be required by their
respective Tenant Lease or state law (the “Tenant Security Deposit
Balance”).  Any cash (or cash equivalents) held by Seller which
constitutes the Tenant Security Deposit Balance shall be retained by Seller in
exchange for the foregoing credit against the Purchase Price and shall not be
transferred by Seller pursuant to this Contract (or any of the documents
delivered at Closing), but the obligation with respect to the Tenant Security
Deposit Balance nonetheless shall be assumed by Purchaser.  The Tenant
Security Deposit Balance shall not include any non-refundable deposits or fees
paid by Tenants to Seller, either pursuant to the Leases or otherwise.

5.4.7   
Insurance.  No proration shall be made in relation to insurance
premiums and insurance policies will not be assigned to Purchaser.  Seller
shall have the risk of loss of the Property until the completion of the closing
on the Closing Date (“Risk of Loss Transfer”), after which time
the risk of loss shall pass to Purchaser and Purchaser shall be responsible for
obtaining its own insurance thereafter.

5.4.8   
Employees.  All of Seller’s and Seller’s manager’s on-site
employees shall have their employment at the Property terminated as of the
Closing Date.

5.4.9   
Closing Costs.  Purchaser shall pay the cost of (a) any recording
fees and sales, use, gross receipts or similar taxes, (b) all recordation and
transfer taxes, documentary stamp taxes and similar charges, if any, applicable
to the transfer of the Property to Purchaser, (c) all mortgage recording fees
and taxes with respect to any mortgage loan obtained by Purchaser in connection
with its purchase of the Property, (d) any premiums or fees required to be paid
by Purchaser with respect to the Title Policy pursuant to Section 4.1,
and (d) one-half of the customary closing costs of the Escrow Agent.
 Seller shall pay (x) the base premium for the Title Policy to the extent
required by Section 4.1 and (y) one-half of the
customary closing costs of the Escrow Agent.  

5.4.10 
Possession.  Possession of the Property, subject to the Leases,
Property Contracts, other than Terminated Contracts, and Permitted Exceptions,
shall be delivered to Purchaser at the Closing upon release from escrow of all
items to be delivered by Purchaser pursuant to
Section 5.3.  To the extent reasonably available
to Seller, originals or copies of the Leases and Property Contracts, lease
files, warranties, guaranties, operating manuals, keys to the property, and
Seller’s books and records (other than proprietary information) (collectively,
“Seller’s Property-Related Files and Records”) regarding the
Property shall be made available to Purchaser at the Property after the
Closing.  Purchaser agrees, for a period of not less than three (3) years
after the Closing (the “Records Hold Period”), to (a) provide and
allow Seller reasonable access to Seller’s Property-Related Files and Records
for purposes of inspection and copying thereof, and (b) reasonably maintain and
preserve Seller’s Property-Related Files and Records.  If at any time after
the Records Hold Period, Purchaser desires to dispose of Seller’s
Property-Related Files and Records, Purchaser must first provide Seller prior
written notice (the “Records Disposal Notice”).  Seller shall
have a period of 30 days after receipt of the Records Disposal Notice to enter
the Property (or such other location where such records are then stored) and
remove or copy those of Seller’s Property-Related Files and Records that Seller
desires to retain.  

5.5       Post Closing
Adjustments.

 
Purchaser or Seller may request that Purchaser and Seller undertake to re-adjust
any item on the Proration Schedule (or any item omitted therefrom), with the
exception of real property taxes which shall be final and not subject to
readjustment, in accordance with the provisions of Section 5.4
of this Contract; provided, however, that neither party shall have any
obligation to re-adjust any items (a) after the expiration of 60 days after
Closing, or (b) subject to such 60-day period, unless such items exceed
$5,000.00 in the aggregate.

ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER AND
PURCHASER

6.1       Seller’s
Representations.

 
Except, in all cases, for any fact, information or condition disclosed in the
Title Documents, the Permitted Exceptions, the Property Contracts, or the
Materials, or which is otherwise known by Purchaser prior to the Closing, Seller
represents and warrants to Purchaser the following (collectively, the
“Seller’s Representations”) as of the Effective Date and as of the
Closing Date; provided that Purchaser’s remedies if any such Seller’s
Representations are untrue as of the Closing Date are limited to those set forth
in Section 8.1:

6.1.1   
Seller is validly existing and in good standing under the laws of the state of
its formation set forth in the initial paragraph of this Contract; and has, or
at the Closing shall have, the entity power and authority to sell and convey the
Property and to execute the documents to be executed by Seller and prior to the
Closing will have taken as applicable, all corporate, partnership, limited
liability company or equivalent entity actions required for the execution and
delivery of this Contract, and the consummation of the transactions contemplated
by this Contract.  The compliance with or fulfillment of the terms and
conditions hereof will not conflict with, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, any contract to
which Seller is a party or by which Seller is otherwise
bound, which conflict, breach or default would have a material adverse affect on
Seller’s ability to consummate the transaction contemplated by this Contract or
on the Property.  This Contract is a valid and binding agreement against
Seller in accordance with its terms;

6.1.2   
Seller is not a “foreign person,” as that term is used and defined in the
Internal Revenue Code, Section 1445, as amended;

6.1.3   
Except for (a) any actions by Seller to evict Tenants under the Leases, or (b)
any matter covered by Seller’s current insurance policy(ies), to Seller’s
knowledge, there are no material actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or threatened
in writing against the Property which will adversely impact Seller’s ability to
convey the Property;

6.1.4   
To Seller’s knowledge, Seller has not received any written notice of any
material default by Seller under any of the Property Contracts that will not be
terminated on the Closing Date;

6.1.5    To Seller’s knowledge, the Rent Roll
(as updated pursuant to Section 5.2.9) is accurate in
all material respects; and

6.1.6    To Seller’s knowledge, the Property
Contracts List (as updated pursuant to Section 5.2.10)
is accurate in all material respects.

6.2       AS-IS.

 
Except as otherwise expressly set forth in Seller’s Representations:  

6.2.1   
The Property is expressly purchased and sold “AS IS,” “WHERE IS,” and “WITH ALL
FAULTS.” 

6.2.2   
The Purchase Price and the terms and conditions set forth herein are the result
of arm’s-length bargaining between entities familiar with transactions of this
kind, and said price, terms and conditions reflect the fact that Purchaser shall
have the benefit of, but is not relying upon, any information provided by Seller
or Broker or statements, representations or warranties, express or implied, made
by or enforceable directly against Seller or Broker, including, without
limitation, any relating to the value of the Property, the physical or
environmental condition of the Property, any state, federal, county or local
law, ordinance, order or permit; or the suitability, compliance or lack of
compliance of the Property with any regulation, or any other attribute or matter
of or relating to the Property (other than any covenants of title contained in
the Deed conveying the Property and Seller’s Representations).  Purchaser
agrees that Seller shall not be responsible or liable to Purchaser for any
defects, errors or omissions in the Materials, or on account of any conditions
affecting the Property.  

6.2.3   
Purchaser, its successors and assigns, and anyone claiming by, through or under
Purchaser, hereby fully releases Seller’s Indemnified Parties from, and
irrevocably waives its right to maintain, any and all claims and causes of
action that it or they may now have or hereafter acquire against Seller’s
Indemnified Parties with respect to any and all Losses
arising from or related to any defects, errors, omissions in the Materials or
other conditions affecting the Property.

6.2.4   
Purchaser represents and warrants that, as of the Closing Date, it shall have
reviewed and conducted such independent analyses, studies (including, without
limitation, environmental studies and analyses concerning the presence of lead,
asbestos, water intrusion and/or fungal growth and any resulting damage, PCBs
and radon in and about the Property), reports, investigations and inspections as
it deems appropriate in connection with the Property.  If Seller provides
or has provided any documents, summaries, opinions or work product of
consultants, surveyors, architects, engineers, title companies, governmental
authorities or any other person or entity with respect to the Property,
including, without limitation, the offering prepared by Broker, Purchaser and
Seller agree that Seller has done so or shall do so only for the convenience of
both parties, Purchaser shall not rely thereon and the reliance by Purchaser
upon any such documents, summaries, opinions or work product shall not create or
give rise to any liability of or against Seller’s Indemnified Parties. 
Purchaser acknowledges and agrees that no representation has been made and no
responsibility is assumed by Seller with respect to current and future
applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial
earning capacity or expense history of the Property, the continuation of
contracts, continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Leases or, without limiting any of the
foregoing, occupancy at Closing.  

6.2.5   
Prior to Closing, Seller shall have the right, but not the obligation, to
enforce its rights against any and all Property occupants, guests or
tenants.  Purchaser agrees that the departure or removal, prior to Closing,
of any of such guests, occupants or tenants shall not be the basis for, nor
shall it give rise to, any claim on the part of Purchaser, nor shall it affect
the obligations of Purchaser under this Contract in any manner whatsoever; and
Purchaser shall close title and accept delivery of the Deed with or without such
tenants in possession and without any allowance or reduction in the Purchase
Price under this Contract.

6.2.6   
Purchaser hereby releases Seller from any and all claims and liabilities
relating to the matters set forth in this Section.

6.3       Survival of Seller’s
Representations.

 
Seller and Purchaser agree that Seller’s Representations shall survive Closing
for a period of 9 months (the “Survival Period”).  Seller
shall have no liability after the Survival Period with respect to Seller’s
Representations contained herein except to the extent that Purchaser has
requested arbitration against Seller during the Survival Period for breach of
any of Seller’s Representations.  Under no circumstances shall Seller be
liable to Purchaser for more than $300,000 in any individual instance or in the
aggregate for all breaches of Seller’s Representations, nor shall Purchaser be
entitled to bring any claim for a breach of Seller’s Representations unless the
claim for damages (either in the aggregate or as to any individual claim) by
Purchaser exceeds $5,000.  In the event that Seller breaches any
representation contained in Section 6.1 and Purchaser had
actual knowledge of such breach prior to the Closing Date, and elected to close
regardless, Purchaser shall be deemed to have waived any
right of recovery, and Seller shall not have any liability in connection
therewith.

6.4       Definition of
Seller’s Knowledge.

 
Any representations and warranties made “to the knowledge of Seller” shall not
be deemed to imply any duty of inquiry.  For purposes of this Contract, the
term Seller’s “knowledge” shall mean and refer only to actual knowledge
of the Regional Property Manager and the Community Manager and shall not be
construed to refer to the knowledge of any other partner, officer, director,
agent, employee or representative of Seller, or any affiliate of Seller, or to
impose upon such Regional Property Manager and Community Manager any duty to
investigate the matter to which such actual knowledge or the absence thereof
pertains, or to impose upon such Regional Property Manager and Community Manager
any individual personal liability.  As used herein, the term
“Regional Property Manager” shall refer to Brian Baker who is the
regional property manager handling this Property and the term “Community
Manager” shall refer to Laura Cameron who is the community manager
handling this Property.

6.5       Representations and
Warranties of Purchaser.

 
For the purpose of inducing Seller to enter into this Contract and to consummate
the sale and purchase of the Property in accordance herewith, Purchaser
represents and warrants to Seller the following as of the Effective Date and as
of the Closing Date:

6.5.1   
Purchaser is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Florida.

6.5.2   
Purchaser, acting through any of its or their duly empowered and authorized
officers or members, has all necessary entity power and authority to own and use
its properties and to transact the business in which it is engaged, and has full
power and authority to enter into this Contract, to execute and deliver the
documents and instruments required of Purchaser herein, and to perform its
obligations hereunder; and no consent of any of Purchaser’s partners, directors,
officers or members are required to so empower or authorize Purchaser.  The
compliance with or fulfillment of the terms and conditions hereof will not
conflict with, or result in a breach of, the terms, conditions or provisions of,
or constitute a default under, any contract to which Purchaser is a party or by
which Purchaser is otherwise bound, which conflict, breach or default would have
a material adverse affect on Purchaser’s ability to consummate the transaction
contemplated by this Contract.  This Contract is a valid, binding and
enforceable agreement against Purchaser in accordance with its terms.

6.5.3   
No pending or, to the knowledge of Purchaser, threatened litigation exists which
if determined adversely would restrain the consummation of the transactions
contemplated by this Contract or would declare illegal, invalid or non-binding
any of Purchaser’s obligations or covenants to Seller.

6.5.4   
Other than Seller’s Representations, Purchaser has not relied on any
representation or warranty made by Seller or any representative of Seller
(including, without limitation, Broker) in connection with this Contract and the
acquisition of the Property.

6.5.5    The Broker and its affiliates do not,
and will not at the Closing, have any direct or indirect legal, beneficial,
economic or voting interest in Purchaser (or in an assignee of Purchaser, which
pursuant to Section 13.3, acquires the Property at the
Closing), nor has Purchaser or any affiliate of Purchaser granted (as of the
Effective Date or the Closing Date) the Broker or any of its affiliates any
right or option to acquire any direct or indirect legal, beneficial, economic or
voting interest in Purchaser.

6.5.6   
Purchaser is not a Prohibited Person.

6.5.7   
To Purchaser’s knowledge, none of its investors, affiliates or brokers or other
agents (if any), acting or benefiting in any capacity in connection with this
Contract is a Prohibited Person.

6.5.8   
The funds or other assets Purchaser will transfer to Seller under this Contract
are not the property of, or beneficially owned, directly or indirectly, by a
Prohibited Person.

6.5.9   
The funds or other assets Purchaser will transfer to Seller under this Contract
are not the proceeds of specified unlawful activity as defined by 18 U.S.C. §
1956(c)(7).

ARTICLE VII
OPERATION OF THE PROPERTY

7.1       Leases and Property
Contracts.

 
During the period commencing on the Effective Date and ending on the Closing
Date, in the ordinary course of business Seller may enter into new Property
Contracts, new Leases, renew existing Leases or modify, terminate or accept the
surrender or forfeiture of any of the Leases, modify any Property Contracts, or
institute and prosecute any available remedies for default under any Lease or
Property Contract without first obtaining the written consent of Purchaser;
provided, however, Seller agrees that, without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld, conditioned or
delayed, any new or renewed Leases shall not have a term in excess of 1 year and
any new Property Contract shall be terminable upon not more than 30 days notice
without penalty.

7.2       General Operation of
Property.

 
Except as specifically set forth in this Article VII, Seller shall
operate the Property after the Effective Date in the ordinary course of
business, and except as necessary in Seller’s sole discretion to address (a) any
life or safety issue at the Property, (b) the Repair Work and (c) any other
matter which in Seller’s reasonable discretion materially adversely affects the
use, operation or value of the Property, Seller will not make any material
alterations to the Property or remove any material Fixtures and Tangible
Personal Property without the prior written consent of Purchaser which consent
shall not be unreasonably withheld, denied or delayed.

7.3       Liens.

 
Other than utility easements and temporary construction easements granted by
Seller in the ordinary course of business, Seller covenants that it will not
voluntarily create or cause any lien or encumbrance to attach to the Property
between the Effective Date and the Closing Date (other than Leases and Property
Contracts as provided in Section 7.1) unless Purchaser approves such lien or encumbrance, which approval
shall not be unreasonably withheld, conditioned or delayed.  If Purchaser
approves any such subsequent encumbrance, the same shall be deemed a Permitted
Encumbrance for all purposes hereunder, provided, however, that any lien or
encumbrance in the nature of a mortgage, mortgage modification, mechanics lien
or any other type of monetary lien or encumbrance, in each case that is caused
by the intentional acts or omissions of Seller and that can be cured solely by
the payment of a liquidated sum without any further action by Seller, shall
either be paid by Seller at Closing or Seller shall cause the Title Insurer to
omit such monetary lien or encumbrance from the Title Policy.  

 

7.4       Fire Damage.

 
Seller and Purchaser acknowledge that a portion of the Property (the
“Damaged Property”) was damaged by a fire prior to the Effective
Date.  Seller agrees that prior to the Closing Seller shall use reasonable
efforts to commence making Repairs to the Damaged Property (the “Repair
Work”) in order to restore the Damaged Property to substantially the
same condition it was in prior the fire.  Seller shall be entitled to
receive and apply all available insurance proceeds to the portions of the Repair
Work completed or installed prior to Closing.  If for any reason the Repair
Work is not completed prior to the Closing, then the following shall apply:

i.         
the Closing shall occur in accordance with the terms of the Contract for the
full Purchase Price;

ii.         
Purchaser, at Purchaser’s sole cost and expense, shall be responsible for
completion of the Repair Work from and after Closing;

iii.        
at Closing, at Seller’s election, either (A) Seller and Purchaser shall execute
and deliver the Insurance Assignment (in a form reasonably acceptable to Seller,
Purchaser and the insurance company) whereby Seller shall assign to Purchaser
all of Seller’s rights and obligations with respect to the insurance claim
related to the Damaged Property (other than any outstanding claims for rental
loss or business interruption insurance (which Seller shall retain the right to
recover same)), and thereafter Purchaser shall receive all insurance proceeds
pertaining to such claim, less any amounts which may already have been spent by
Seller for the Repair Work (plus a credit against the Purchase Price at Closing
in the amount of any deductible payable by Seller in connection therewith) or
(B) Seller shall give a credit to Purchaser in the amount necessary to complete
the Repair Work (less any amounts which may already have been spent by Seller
for the Repair Work);

iv.        
in lieu of assigning any outstanding claims from rental loss or business
interruption insurance, at Closing Seller shall provide Purchaser with a credit
against the Purchaser Price equal to the product of (A) the number of months (or
portion thereof) between the Closing Date through January 15, 2011 and (B)
$9,031.13; and 

v.        
at Closing, by way of the General Assignment, Seller shall assign, and Purchaser
shall assume, all construction and other contracts entered into by Seller in
connection with the Repair Work.  

If, pursuant to this Section 7.4, Seller elects to give
Purchaser a credit at Closing in the amount necessary to complete the Repair
Work, then Seller shall deliver to Purchaser, at least five (5) days before the
Closing Date, an itemized account and schedule of the uncompleted Repair Work
together with the dollar cost thereof.  

7.5       Tax Appeals.

 
If any tax reduction proceedings, tax protest proceedings or tax assessment
appeals for the Property, relating to any fiscal years through and including
fiscal year 2010, are pending at the time of Closing, Seller reserves and shall
have the right to continue to prosecute and/or settle the same without the
consent of Purchaser.  From and after the Effective Date and at any time
after the Closing Date, Seller hereby reserves and shall have the exclusive
right to institute a tax reduction proceeding, tax protest proceeding or tax
assessment appeal for the Property with respect to real estate taxes
attributable to fiscal year 2010 and Seller shall have the right to prosecute
and/or settle the same without the consent of Purchaser.  Purchaser agrees
that it shall not independently institute any tax reduction proceedings, tax
protest proceedings, or tax assessment appeals for the Property with respect to
any tax year(s) up to and including the 2010 tax year.  Purchaser shall
cooperate with Seller in connection with the prosecution and/or settlement of
any such tax reduction proceedings, tax protest proceedings or tax assessment
appeals, including executing such documents as Seller may reasonably request in
order for Seller to prosecute and/or settle any such proceedings.  Any
refunds or savings in the payment of taxes resulting from any tax reduction
proceedings, tax protest proceedings or tax assessment appeals applicable to the
period prior to the Closing Date shall belong to Seller and any refunds or
savings in the payment of taxes applicable to the period from and after the
Closing Date shall belong to Purchaser.  All attorneys’ fees and other
expenses incurred in obtaining such refunds or savings shall be apportioned
between Seller and Purchaser in proportion to the gross amount of such refunds
or savings payable to Seller and Purchaser, respectively.

 

ARTICLE VIII
CONDITIONS
PRECEDENT TO CLOSING

8.1       Purchaser’s
Conditions to Closing.

 
Purchaser’s obligation to close under this Contract shall be subject to and
conditioned upon the fulfillment of the following conditions precedent:

8.1.1    All of the documents required to be
delivered by Seller to Purchaser at the Closing pursuant to the terms and
conditions hereof shall have been delivered;

8.1.2    Each of Seller’s Representations
shall be true in all material respects as of the Closing Date;

8.1.3    Seller shall have complied with,
fulfilled and performed in all material respects each of the covenants, terms
and conditions to be complied with, fulfilled or performed by Seller hereunder;
and

8.1.4    Neither Seller nor Seller’s managing
member shall be a debtor in any bankruptcy proceeding.

Notwithstanding anything to the contrary, there are no other
conditions to Purchaser’s obligation to Close except as expressly set forth in
this Section 8.1.  If any condition set forth in this
Section 8.1 is not met, Purchaser may (a) waive any of the
foregoing conditions and proceed to Closing on the Closing Date with no offset
or deduction from the Purchase Price, (b) terminate this Contract and receive a
return of the Deposit from the Escrow Agent, or (c) if such failure
constitutes a default by Seller of its covenants hereunder, exercise any of its
remedies pursuant to Section 10.2.

8.2       Seller’s Conditions
to Closing.

 
Without limiting any of the rights of Seller elsewhere provided for in this
Contract, Seller’s obligation to close with respect to conveyance of the
Property under this Contract shall be subject to and conditioned upon the
fulfillment of the following conditions precedent:

8.2.1   
All of the documents and funds required to be delivered by Purchaser to Seller
at the Closing pursuant to the terms and conditions hereof shall have been
delivered;

8.2.2   
Each of the representations, warranties and covenants of Purchaser contained
herein shall be true in all material respects as of the Closing Date;

8.2.3   
Purchaser shall have complied with, fulfilled and performed in all material
respects each of the covenants, terms and conditions to be complied with,
fulfilled or performed by Purchaser hereunder;

8.2.4   
There shall not be any pending litigation or, to the knowledge of either
Purchaser or Seller, any litigation threatened in writing, which, if adversely
determined, would restrain the consummation of any of the transactions
contemplated by this Contract or declare illegal, invalid or nonbinding any of
the covenants or obligations of the Purchaser; and

8.2.5   
Neither Purchaser nor Purchaser’s managing member shall be a debtor in any
bankruptcy proceeding.

If
any of the foregoing conditions to Seller’s obligations to close with respect to
the conveyance of the Property under this Contract are not met, Seller may
(a) waive any of the foregoing conditions and proceed to Closing on the
Closing Date, (b) terminate this Contract, or (c) if such failure
constitutes a default by Purchaser, exercise any of its remedies pursuant to
Section 10.1.

ARTICLE IX
BROKERAGE

9.1       Indemnity.

 
Seller represents and warrants to Purchaser that it has dealt only with Jason
Nettles of HFF (“Broker”) in connection with this
Contract.  Seller and Purchaser each represents and warrants to the other
that, other than Broker, it has not dealt with or utilized the services of any
other real estate broker, sales person or finder in connection with this
Contract, and each party agrees to indemnify, hold harmless, and, if requested
in the sole and absolute discretion of the indemnitee, defend (with counsel
approved by the indemnitee) the other party from and
against all Losses relating to brokerage commissions and finder’s fees arising
from or attributable to the acts or omissions of the indemnifying party.

9.2       Broker
Commission.

 
If Closing occurs, Seller shall pay Broker a commission according to the terms
of a separate contract.  Broker shall not be deemed a party or third party
beneficiary of this Contract.  As a condition to Seller’s obligation to pay
the commission, Broker shall execute the signature page for Broker attached
hereto solely for purposes of confirming the matters set forth therein.

ARTICLE X
DEFAULTS AND
REMEDIES

10.1     Purchaser Default.

 
 If Purchaser defaults in its obligations hereunder to (a) deliver the
Initial Deposit or Additional Deposit (or any other deposit or payment required
of Purchaser hereunder), (b) deliver to Seller the deliveries specified under
Section 5.3 on the date required thereunder, or (c) deliver
the Purchase Price in accordance with Article II and close on the purchase of
the Property on the Closing Date, then, immediately and without the right to
receive notice or to cure pursuant to Section 2.3.3, Purchaser
shall forfeit the Deposit, and the Escrow Agent shall deliver the Deposit to
Seller, and neither party shall be obligated to proceed with the purchase and
sale of the Property.  If Purchaser defaults in any of its other
representations, warranties or obligations under this Contract, and such default
continues for more than 10 days after written notice from Seller, then Purchaser
shall forfeit the Deposit, and the Escrow Agent shall deliver the Deposit to
Seller, and neither party shall be obligated to proceed with the purchase and
sale of the Property.  The Deposit is liquidated damages and recourse to
the Deposit is, except for Purchaser’s indemnity and confidentiality obligations
hereunder, Seller’s sole and exclusive remedy for Purchaser’s failure to perform
its obligation to purchase the Property or breach of a representation or
warranty.  Seller expressly waives the remedies of specific performance and
additional damages for such default by Purchaser.  SELLER AND PURCHASER
ACKNOWLEDGE THAT SELLER’S DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND THAT THE
DEPOSIT IS A REASONABLE ESTIMATE OF SELLER’S DAMAGES RESULTING FROM A DEFAULT BY
PURCHASER IN ITS OBLIGATION TO PURCHASE THE PROPERTY.  SELLER AND PURCHASER
FURTHER AGREE THAT THIS SECTION 10.1 IS INTENDED TO AND DOES
LIQUIDATE THE AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER’S EXCLUSIVE
REMEDY AGAINST PURCHASER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO
A BREACH BY PURCHASER OF ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS CONTRACT, OTHER THAN WITH RESPECT TO PURCHASER’S INDEMNITY
AND CONFIDENTIALITY OBLIGATIONS HEREUNDER.

10.2     Seller
Default.

  
If (i) Seller defaults in its obligations hereunder to deliver to Escrow Agent
the deliveries specified under Section 5.2 on the date required
thereunder, or to close on the sale of the Property on the Closing Date, or (ii)
prior to the Closing, Seller defaults in its other covenants or obligations
under this Contract and such default continues for more than 10 days after
written notice from Purchaser, then, provided that Purchaser is not in default
under this Contract, at Purchaser's election and as Purchaser's exclusive
remedy, Purchaser may either (a) terminate this Contract, and all payments and
things of value, including the Deposit, provided by
Purchaser hereunder shall be returned to Purchaser and Purchaser may recover, as
its sole recoverable damages (but without limiting its right to receive a refund
of the Deposit), its direct and actual out-of-pocket expenses and costs
(documented by paid invoices to third parties) in connection with this
transaction, which damages shall not exceed $50,000 in the aggregate, or (b)
subject to the conditions below, seek specific performance of Seller’s
obligation to deliver the Deed pursuant to this Contract (but not
damages).  Purchaser may seek specific performance of Seller’s obligation
to deliver the Deed pursuant to this Contract only if, as a condition precedent
to initiating such litigation for specific performance, Purchaser shall (x) not
otherwise be in default under this Contract; and (y) file suit therefor with the
court on or before the 90th day after the Closing Date.  If Purchaser fails
to file an action for specific performance within 90 days after the scheduled
Closing Date, then Purchaser shall be deemed to have elected to terminate the
Contract in accordance with subsection (a) above, Purchaser agrees that it shall
promptly deliver to Seller an assignment of all of Purchaser’s right, title and
interest in and to (together with possession of) all plans, studies, surveys,
reports, and other materials paid for with the out-of-pocket expenses reimbursed
by Seller pursuant to the foregoing sentence. SELLER AND PURCHASER FURTHER AGREE
THAT THIS SECTION 10.2 IS INTENDED TO AND DOES LIMIT THE AMOUNT OF DAMAGES DUE
PURCHASER AND THE REMEDIES AVAILABLE TO PURCHASER, AND SHALL BE PURCHASER’S
EXCLUSIVE REMEDY AGAINST SELLER, BOTH AT LAW AND IN EQUITY ARISING FROM OR
RELATED TO A BREACH BY SELLER OF ITS COVENANTS OR ITS OBLIGATION TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT.  UNDER NO CIRCUMSTANCES MAY
PURCHASER SEEK OR BE ENTITLED TO RECOVER ANY SPECIAL, CONSEQUENTIAL, PUNITIVE,
SPECULATIVE OR INDIRECT DAMAGES, ALL OF WHICH PURCHASER SPECIFICALLY WAIVES,
FROM SELLER FOR ANY BREACH BY SELLER, OF ITS COVENANTS OR ITS OBLIGATIONS UNDER
THIS CONTRACT.  PURCHASER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS
PENDENS OR ANY LIEN AGAINST THE PROPERTY UNLESS AND UNTIL IT HAS IRREVOCABLY
ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS CONTRACT AND HAS FILED AND IS
DILIGENTLY PURSUING AN ACTION SEEKING SUCH REMEDY.

ARTICLE XI
RISK OF LOSS
OR CASUALTY

11.1     Major Damage.

 
In the event that the Property is damaged or destroyed by fire or other casualty
after the Effective Date, but prior to Risk of Loss Transfer, and the cost for
demolition, site cleaning, restoration, replacement, or other repairs
(collectively, the “Repairs”), is more than
$1,700,000.00  (a “Major Damage”), then Seller shall have no
obligation to make such Repairs, and shall notify Purchaser in writing of such
damage or destruction (the “Damage Notice”).  If there is a
Major Damage, then Purchase may elect, by delivering written notice to Seller on
or before the earlier of (x) Closing and (y) the date which is ten (10) days
after Purchaser’s receipt of the Damage Notice, to terminate this
Contract.  In such event, the Deposit shall be returned to Purchaser. 
In the event Purchaser fails to timely terminate this Contract pursuant to this
Section 11.1, this transaction shall be closed in accordance with
Section 11.3 below.

11.2     Minor Damage.

 
If that the Property is damaged or destroyed by fire or other casualty after the
Effective Date, but prior to Risk of Loss Transfer, and the cost of Repairs is
equal to or less than $1,700,000.00, then this transaction shall be closed in
accordance with Section 11.3, notwithstanding such
casualty.  In such event, Seller may at its election endeavor to make such
Repairs to the extent of any recovery from insurance carried on the Property, if
such Repairs can be reasonably effected before the Closing.  Regardless of
Seller’s election to commence such Repairs, or Seller’s ability to complete such
Repairs prior to Closing, this transaction shall be closed in accordance with
Section 11.3 below.

11.3     Closing.

 
If Purchaser fails to terminate this Contract following a casualty as set forth
in Section 11.1, or in the event of a casualty as set forth in
Section 11.2, then this transaction shall be closed in
accordance with the terms of the Contract, at Seller’s election, either
(i) for the full Purchase Price, notwithstanding any such casualty, in
which case Purchaser shall, at Closing, execute and deliver an assignment and
assumption (in a form reasonably required by Seller) of Seller’s rights and
obligations with respect to the insurance claim related to such casualty, and
thereafter Purchaser shall receive all insurance proceeds pertaining to such
claim, less any amounts which may already have been spent by Seller for Repairs
(plus a credit against the Purchase Price at Closing in the amount of any
deductible payable by Seller in connection therewith and not otherwise paid by
Seller with respect to the Repair Work); or (ii) for the full Purchase Price
less a credit to Purchaser in the amount necessary to complete such Repairs
(less any amounts which may already have been spent by Seller for Repairs).

11.4     Repairs.

 
If, in connection with this Article 11, Seller elects to commence any Repairs
prior to Closing, then Seller shall be entitled to receive and apply available
insurance proceeds to any portion of such Repairs completed or installed prior
to Closing, with Purchaser being responsible for completion of such Repairs
after Closing.  To the extent that any Repairs have been commenced prior to
Closing, then the Property Contracts shall include, and Purchaser shall assume
at Closing, all construction and other contracts entered into by Seller in
connection with such Repairs; provided however, that (except in the event of
emergency, as determined in Seller’s sole discretion) Seller will consult with
Purchaser prior to entering into any such contract if Purchaser will likely have
to assume such Contract.  Notwithstanding the foregoing to the contrary,
Seller retains the sole right and authority to enter into any such contract.

ARTICLE XII
EMINENT
DOMAIN

12.1    
Eminent Domain.

 
If, at the time of Closing, any material part of the Property is (or previously
has been) acquired, or is about to be acquired, by any governmental agency by
the powers of eminent domain or transfer in lieu thereof (or in the event that
at such time there is any notice of any such acquisition or intent to acquire by
any such governmental agency), Purchaser shall have the right, at Purchaser’s
option, to terminate this Contract by giving written notice within 10 days after
Purchaser’s receipt from Seller of notice of the occurrence of such event. 
If Purchaser so terminates this Contract, then Escrow Agent shall release the
Deposit to Purchaser.  If Purchaser fails to terminate this Contract within
such 10-day period, this transaction shall be closed in accordance with the
terms of this Contract for the full Purchase Price and Purchaser shall receive
the full benefit of any condemnation award.  It is expressly agreed between
the parties hereto that this section shall in no way apply
to customary dedications for public purposes which may be necessary for the
development of the Property.

ARTICLE XIII
MISCELLANEOUS

13.1    
Binding Effect of Contract.

 
This Contract shall not be binding on either party until executed by both
Purchaser and Seller.  Neither the Escrow Agent’s nor the Broker’s
execution of this Contract shall be a prerequisite to its effectiveness. 
Subject to Section 13.3, this Contract shall be binding upon
and inure to the benefit of Seller and Purchaser, and their respective
successors and permitted assigns.

13.2    
Exhibits and Schedules.

 
All Exhibits and Schedules, whether or not annexed hereto, are a part of this
Contract for all purposes.

13.3    
Assignability.

 
Except to the extent required to comply with the provisions of
Section 13.18 related to a 1031 Exchange, this Contract is not
assignable by Purchaser without first obtaining the prior written approval of
Seller.  Notwithstanding the foregoing, Purchaser may assign this Contract,
without first obtaining the prior written approval of Seller, to one or more
entities so long as (a) Purchaser is an affiliate of the purchasing entity(ies),
(b) Purchaser is not released from its liability hereunder, and (c) Purchaser
provides written notice to Seller of any proposed assignment no later than 10
days prior to the Closing Date.  As used herein, an affiliate is a person
or entity controlled by, under common control with, or controlling another
person or entity.

13.4    
Captions.

 
The captions, headings, and arrangements used in this Contract are for
convenience only and do not in any way affect, limit, amplify, or modify the
terms and provisions hereof.

13.5     Number
and Gender of Words.

 
Whenever herein the singular number is used, the same shall include the plural
where appropriate, and words of any gender shall include each other gender where
appropriate.

13.6    
Notices.

 
All notices, demands, requests and other communications required or permitted
hereunder shall be in writing, and shall be (a) personally delivered with a
written receipt of delivery; (b) sent by a nationally-recognized overnight
delivery service requiring a written acknowledgement of receipt or providing a
certification of delivery or attempted delivery; (c) sent by certified or
registered mail, return receipt requested; or (d) sent by confirmed facsimile
transmission or electronic delivery with an original copy thereof transmitted to
the recipient by one of the means described in subsections (a) through (c) no
later than 3 Business Days thereafter.  All notices shall be deemed
effective when actually delivered as documented in a delivery receipt; provided,
however, that if the notice was sent by overnight courier or mail as aforesaid
and is affirmatively refused or cannot be delivered during customary business
hours by reason of the absence of a signatory to acknowledge receipt, or by
reason of a change of address with respect to which the addressor did not have
either knowledge or written notice delivered in accordance with this paragraph,
then the first attempted delivery shall be deemed to constitute delivery. 
Each party shall be entitled to change its address for notices from time to time by delivering to the other party notice thereof
in the manner herein provided for the delivery of notices.  All notices
shall be sent to the addressee at its address set forth following its name
below:

To
Purchaser:

Trade Street Capital
19950 W. Country Club Drive

Suite
801
Aventura, Florida 33180
Attention:  Ryan
Hanks
Telephone:  786-248-5200
Facsimile: 
786-248-9619
Email:  rhanks@tradestcapital.com

 

With
a  copy to: 

Greenspoon
Marder, P.A.
Trade Centre South, Suite 700
100 West Cypress Creek
Road
Fort Lauderdale, Florida 33309-2140

Attention:
Gerald Greenspoon, Esq.
Telephone: 954-491-1120
Facsimile: 
954-771-9264
Email: gerry.greenspoon@gmlaw.com

To
Seller:

CCP IV Arbours of Hermitage, LLC

c/o
AIMCO
4582 South Ulster Street Parkway
Suite 1100
Denver,
Colorado  80237
Attention:  Mark Reoch
Telephone: 
303-691-4337 

Facsimile: 
303-300-3261 

Email: 
mark.reoch@aimco.com 

And:

CCP
IV Arbours of Hermitage, LLC

c/o
AIMCO

4582
South Ulster Street Parkway 

Suite
1100

Denver,
Colorado  80237

Attention: 
John Bezzant 

Telephone: 
303-691-4300

Facsimile: 
303-300-3261 

Email:  john.bezzant@aimco.com

with
copy to:

AIMCO
4582 South Ulster Street Parkway
Suite
1100
Denver, Colorado  80237
Attention:  John Spiegleman,
Esq.
Telephone: 303-691-4303
Facsimile:  720-200-6882
Email: 
john.spiegleman@aimco.com 

and
a copy to:



HFF

3414
Peachtree Road NE, Suite 736

Atlanta,
GA 30326
Attention:  Jason Nettles
Telephone: 
404-942-3186
Facsimile:  404-942-2181

Email: 
jnettles@hfflp.com 

and
a copy to:

Bryan Cave LLP
1290 Avenue of the Americas
New York, NY
10104
Attention:  Sandor A. Green, Esq. 
Telephone: 
212-541-2049
Facsimile: 212-541-1449
Email: 
sagreen@bryancave.com

Any
notice required hereunder to be delivered to the Escrow Agent shall be delivered
in accordance with above provisions as follows:

First
American Title Insurance Company of New York

333
Earle Ovington Blvd.

Uniondale,
NY 11553

Attention: 
Steve Rogers, Esq.

Telephone: 
516-832-3208

Email: 
sgrogers@firstam.com

 

Unless
specifically required to be delivered to the Escrow Agent pursuant to the terms
of this Contract, no notice hereunder must be delivered to the Escrow Agent in
order to be effective so long as it is delivered to the other party in
accordance with the above provisions.

13.7     Governing Law and Venue.

 
The laws of the State of Tennessee shall govern the validity, construction,
enforcement, and interpretation of this Contract, unless otherwise specified
herein except for the conflict of laws provisions thereof.  Subject to
Section 13.24, all claims, disputes and other matters in
question arising out of or relating to this Contract, or the breach thereof,
shall be decided by proceedings instituted and litigated in a court of competent
jurisdiction in the state in which the Property is situated, and the parties
hereto expressly consent to the venue and jurisdiction of such court.

13.8     Entire Agreement.

 
This Contract embodies the entire Contract between the parties hereto concerning
the subject matter hereof and supersedes all prior conversations, proposals,
negotiations, understandings and contracts, whether written or oral.

13.9    
Amendments.

 
This Contract shall not be amended, altered, changed, modified, supplemented or
rescinded in any manner except by a written contract executed by all of the
parties; provided, however, that, (a) the signature of the Escrow Agent shall
not be required as to any amendment of this Contract other than an amendment of
Section 2.3, and (b) the signature of the Broker shall not be
required as to any amendment of this Contract

13.10  
Severability.

 
In the event that any part of this Contract shall be held to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
reformed, and enforced to the maximum extent permitted by law.  If such
provision cannot be reformed, it shall be severed from this Contract and the
remaining portions of this Contract shall be valid and enforceable.

13.11   Multiple
Counterparts/Facsimile Signatures.

 
This Contract may be executed in a number of identical counterparts.  This
Contract may be executed by facsimile signatures or electronic delivery of
signatures which shall be binding on the parties hereto, with original
signatures to be delivered as soon as reasonably practical thereafter.

13.12  
Construction.

 
No provision of this Contract shall be construed in favor of, or against, any
particular party by reason of any presumption with respect to the drafting of
this Contract; both parties, being represented by counsel, having fully
participated in the negotiation of this instrument.

13.13  
Confidentiality.

 
Seller and Purchaser shall not disclose the terms and conditions contained in
this Contract and shall keep the same confidential, provided that each may
disclose the terms and conditions of this Contract (a) as required by law, (b)
to consummate the terms of this Contract, or any financing relating thereto, or
(c) to its lenders, attorneys and accountants.  Furthermore, Seller may
disclose the terms and conditions of this Contract as is necessary, in Seller’s
sole discretion, in order for Seller to make any public disclosures required
under federal or state securities laws or regulations.  Any information
obtained by Purchaser in the course of its inspection of the Property, and any
Materials provided by Seller to Purchaser hereunder, shall be confidential and
Purchaser shall be prohibited from making such information public to any other
person or entity other than its Consultants, without Seller’s prior written
authorization, which may be granted or denied in Seller’s sole discretion. 
In addition, each party shall use its reasonable efforts to prevent its
Consultants from divulging any such confidential information to any unrelated
third parties except for the limited purpose of analyzing and investigating such
information for the purpose of consummating the
transaction contemplated by this Contract.  Unless and until the Closing
occurs, Purchaser shall not market the Property (or any portion thereof) to any
prospective purchaser or lessee without the prior written consent of Seller,
which consent may be withheld in Seller's sole discretion.

13.14   Time of the
Essence.

 
It is expressly agreed by the parties hereto that time is of the essence with
respect to this Contract and any aspect thereof.

13.15   Waiver.

 
No delay or omission to exercise any right or power accruing upon any default,
omission, or failure of performance hereunder shall impair any right or power or
shall be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient.  No
waiver, amendment, release, or modification of this Contract shall be
established by conduct, custom, or course of dealing and all waivers must be in
writing and signed by the waiving party.

13.16   Attorneys’
Fees.

 
In the event either party hereto commences litigation or arbitration against the
other to enforce its rights hereunder, the prevailing party in such litigation
shall be entitled to recover from the other party its reasonable attorneys’ fees
and expenses incidental to such litigation and arbitration, including the cost
of in-house counsel and any appeals.

13.17   Time Zone/Time
Periods.

 
Any reference in this Contract to a specific time shall refer to the time in the
time zone in the State of Tennessee.  Should the last day of a time period
fall on a weekend or legal holiday, the next Business Day thereafter shall be
considered the end of the time period.

13.18   1031 Exchange.

 
Seller and Purchaser acknowledge and agree that the purchase and sale of the
Property may be part of a tax-free exchange for either Purchaser or Seller
pursuant to Section 1031 of the Code, the regulations promulgated
thereunder, revenue procedures, pronouncements and other guidance issued by the
Internal Revenue Service.  Each party hereby agrees to cooperate with each
other and take all reasonable steps on or before the Closing Date to facilitate
such exchange if requested by the other party, provided that (a) no party making
such accommodation shall be required to acquire any substitute property, (b)
such exchange shall not affect the representations, warranties, liabilities and
obligations of the parties to each other under this Contract, (c) no party
making such accommodation shall incur any additional cost, expense or liability
in connection with such exchange (other than expenses of reviewing and executing
documents required in connection with such exchange), and (d) no dates in this
Contract will be extended as a result thereof, except as specifically provided
herein.  Notwithstanding anything in this Section 13.18
to the contrary, Seller shall have the right to extend the Closing Date for up
to 30 days in order to facilitate a tax free exchange pursuant to this
Section 13.18, and to obtain all documentation in connection
therewith.

13.19   No Personal
Liability of Officers, Trustees or Directors of Seller’s Partners.

 
Purchaser acknowledges that this Contract is entered into by Seller which is a
Delaware limited liability company, and Purchaser agrees that none of Seller’s
Indemnified Parties shall have any personal liability under this Contract or any
document executed in connection with the transactions contemplated by this
Contract.  Seller acknowledges that this Contract is entered into by Purchaser which is a Florida limited liability
company, and Seller agrees that none of Purchaser, or Purchaser’s partners,
managers, members, employees, officers, directors, trustees, shareholders,
counsel, representatives, or agents shall have any personal liability under this
Contract or any document executed in connection with the transactions
contemplated by this Contract.

13.20   ADA Disclosure.

 
Purchaser acknowledges that the Property may be subject to the federal Americans
With Disabilities Act (the “ADA”) and the federal Fair Housing Act
(the “FHA”).  The ADA requires, among other matters, that
tenants and/or owners of “public accommodations” remove barriers in order to
make the Property accessible to disabled persons and provide auxiliary aids and
services for hearing, vision or speech impaired persons.  Seller makes no
warranty, representation or guarantee of any type or kind with respect to the
Property’s compliance with the ADA or the FHA (or any similar state or local
law), and Seller expressly disclaims any such representations.

13.21   No
Recording.

 
Purchaser shall not cause or allow this Contract or any contract or other
document related hereto, nor any memorandum or other evidence hereof, to be
recorded or become a public record without Seller’s prior written consent, which
consent may be withheld at Seller’s sole discretion.  If Purchaser records
this Contract or any other memorandum or evidence thereof, Purchaser shall be in
default of its obligations under this Contract.  Purchaser hereby appoints
Seller as Purchaser’s attorney-in-fact to prepare and record any documents
necessary to effect the nullification and release of the Contract or other
memorandum or evidence thereof from the public records.  This appointment
shall be coupled with an interest and irrevocable.

13.22   Relationship of
Parties.

 
Purchaser and Seller acknowledge and agree that the relationship established
between the parties pursuant to this Contract is only that of a seller and a
purchaser of property.  Neither Purchaser nor Seller is, nor shall either
hold itself out to be, the agent, employee, joint venturer or partner of the
other party.

13.23   Dispute Resolution.

 
Any controversy, dispute, or claim of any nature arising out of, in connection
with, or in relation to the interpretation, performance, enforcement or breach
of this Contract (and any closing document executed in connection herewith),
including any claim based on contract, tort or statute, shall be resolved at the
written request of any party to this Contract by binding arbitration.  The
arbitration shall be administered in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association.  Any matter to
be settled by arbitration shall be submitted to the American Arbitration
Association in the state in which the Property is located.  The parties
shall attempt to designate one arbitrator from the American Arbitration
Association.  If they are unable to do so within 30 days after written
demand therefor, then the American Arbitration Association shall designate an
arbitrator.  The arbitration shall be final and binding, and enforceable in
any court of competent jurisdiction.  The arbitrator shall award attorneys’
fees (including those of in-house counsel) and costs to the prevailing party and
charge the cost of arbitration to the party which is not the prevailing
party.  Notwithstanding anything herein to the contrary, this
Section 13.23 shall not prevent Purchaser or Seller from
seeking and obtaining equitable relief on a temporary or permanent basis,
including, without limitation, a temporary restraining order, a preliminary or
permanent injunction or similar equitable relief, from a court of competent
jurisdiction located in the state in which the Property is
located (to which all parties hereto consent to venue and jurisdiction) by
instituting a legal action or other court proceeding in order to protect or
enforce the rights of such party under this Contract or to prevent irreparable
harm and injury.  The court’s jurisdiction over any such equitable matter,
however, shall be expressly limited only to the temporary, preliminary, or
permanent equitable relief sought; all other claims initiated under this
Contract between the parties hereto shall be determined through final and
binding arbitration in accordance with this Section 13.23.

13.24   AIMCO
Marks.

 
Purchaser agrees that Seller, the Property Manager or AIMCO, or their respective
affiliates, are the sole owners of all right, title and interest in and to the
AIMCO Marks (or have the right to use such AIMCO Marks pursuant to license
agreements with third parties) and that no right, title or interest in or to the
AIMCO Marks is granted, transferred, assigned or conveyed as a result of this
Contract.  Purchaser further agrees that Purchaser will not use the AIMCO
Marks for any purpose.

13.25   Non-Solicitation
of Employees.

 
Prior to the expiration of the Feasibility Period, Purchaser acknowledges and
agrees that, without the express written consent of Seller, neither Purchaser
nor any of Purchaser’s employees, affiliates or agents shall solicit any of
Seller’s employees or any employees located at the Property (or any of Seller’s
affiliates’ employees located at any property owned by such affiliates) for
potential employment.

13.26   Survival.

 
Except for (a) all of the provisions of this Article XIII (other than
Sections 13.18 and 13.20); (b)
Sections 2.3, 3.3,
3.4, 3.5, 5.4, 5.5,
6.2, 6.3, 6.5, 7.5, 9.1,
11.4, and 14.2; (c) any other provisions in this Contract,
that by their express terms survive the termination of this Contract or the
Closing; and (d) any payment obligation of Purchaser under this Contract (the
foregoing (a), (b), (c) and (d) referred to herein as the “Survival
Provisions”), none of the terms and provisions of this Contract shall
survive the termination of this Contract, and if the Contract is not so
terminated, all of the terms and provisions of this Contract (other than the
Survival Provisions, which shall survive the Closing) shall be merged into the
Closing documents and shall not survive Closing.

13.27   Multiple
Purchasers.

 
As used in this Contract, the term “Purchaser” means all entities
acquiring any interest in the Property at the Closing, including, without
limitation, any assignee(s) of the original Purchaser pursuant to
Section 13.3 of this Contract.  In the event that
“Purchaser” has any obligations or makes any covenants, representations or
warranties under this Contract, the same shall be made jointly and severally by
all entities being a Purchaser hereunder.

13.28   Waiver of Jury Trial.

 
The parties hereto waive trial by jury in any action, proceeding or counterclaim
brought by any party against any other party on any matter arising out of or in
any way connected with this Contract.

ARTICLE XIV
LEAD–BASED
PAINT DISCLOSURE

14.1     Disclosure.

 
Seller and Purchaser hereby acknowledge delivery of the Lead Based Paint
Disclosure attached as Exhibit H hereto.

14.2     Consent Agreement.

  Testing (the “Testing”) has been
performed at the Property with respect to lead-based paint.  Law
Engineering and Environmental Services, Inc. performed the Testing and reported
its findings in the Multifamily: Component Type Report dated November 11, 2002,
a copy of which has been provided to Purchaser (the
“Report”).  The Report certifies the Property as lead-based
paint free.  By execution hereof, Purchaser acknowledges receipt of a copy
of the Report, the Lead-Based Paint Disclosure Statement attached hereto as
Exhibit H, and acknowledges receipt of that certain Consent Agreement
(the “Consent Agreement”) by and among the United States
Environmental Protection Agency (executed December 19, 2001), the United States
Department of Housing and Urban Development (executed January 2, 2002), and
AIMCO (executed December 18, 2001).  Because the Property has been
certified as lead-based paint free, Seller is not required under the Consent
Agreement to remediate or abate any lead-based paint condition at the Property
prior to the Closing.  Purchaser acknowledges and agrees that (1) after
Closing, Purchaser and the Property shall be subject to the Consent Agreement
and the provisions contained herein related thereto and (2) that Purchaser shall
not be deemed to be a third party beneficiary to the Consent Agreement.

[Remainder
of Page Intentionally Left Blank]


NOW, THEREFORE, the parties hereto have executed this
Contract as of the date first set forth above.

Seller:

CCP
IV ARBOURS OF HERMITAGE, LLC, a Delaware limited liability company

 

By:
CCP IV ASSOCIATES, LTD., a Texas limited partnership, its member

 

By:
CCP/IV RESIDENTIAL GP, L.L.C., a South Carolina limited liability company, its
general partner

 

By:
CONSOLIDATED CAPITAL PROPERTIES IV, LP, a Delaware limited partnership, its
manager

 

By:
CONCAP EQUITIES, INC., a Delaware corporation, its general partner

 

By: 
/s/Trent A. Johnson

Name: 
Trent A. Johnson

Title: 
Vice President

 

Purchaser:

TRADE
STREET CAPITAL,
a Florida limited liability company

By: 
/s/Michael Baumann
Name:  Michael Baumann
Title: 
Managing Member