PURCHASE AND SALE CONTRACT

Exhibit 10VV

PURCHASE AND SALE CONTRACT

BETWEEN

THE NEW FAIRWAYS, L.P.,

a Delaware limited partnership

AS SELLER

AND

RRM - I, LLC,

a Louisiana limited liability company

AS PURCHASER

fairway apartments, plano, tx

Table of Contents

PURCHASE AND SALE CONTRACT

THIS PURCHASE AND SALE CONTRACT (this “ Contract ”) is entered into as of the 5 ^th day of May, 2009 (the “ Effective Date ”), by and between THE NEW FAIRWAYS, L.P. , a Delaware limited partnership, having an address at 4582 South Ulster Street Parkway, Suite 1100, Denver, Colorado 80237 (“ Seller ”), and RRM – I, LLC, a Louisiana limited liability company, having a principal address at 9456 Jefferson Highway, Suite A, Baton Rouge, Louisiana 70809 (“ 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 Collin County, Texas, as more particularly described in Exhibit A attached hereto and made a part hereof, and the improvements thereon, commonly known as Fairway 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 $12,100,000.00 , 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, 633 Third Avenue, New York, New York 10017, Attention:  Linda J. Isaacson, Phone: (212) 850-0664, Fax: (212) 331-1467, Email:  Lisaacson@firstam.com (“ Escrow Agent ” or “ Title Insurer ”) a deposit (the “ Deposit ”) of $2,910,000 by wire transfer of immediately available funds (“ Good Funds ”).  Seller and Purchaser agree that the amount of One Hundred and No/100 Dollars ($100.00) of the Deposit has been paid by Purchaser to Seller as consideration for Seller’s execution and delivery of this Contract and that such consideration is independent of any other consideration or payment provided for in this Contract and, notwithstanding anything to the contrary herein, is non-refundable in all events.

2.2.2         [Intentionally Omitted].

2.2.3         At the Closing, subject to the occurrence of the Loan Assumption and Release, Purchaser shall receive a credit against the Purchase Price in the amount of the outstanding principal balance of the Note, together with all accrued but unpaid interest (if any) thereon, as of the Closing Date (the “ Loan Balance ”).

2.2.4         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 such short-term, high-grade securities, interest-bearing bank accounts, money market funds or accounts, bank certificates of deposit or bank repurchase contracts as Escrow Agent, in its discretion, deems suitable, 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 the Deposit until the earlier occurrence of (i) the Closing Date, at which time the Deposit shall be applied against the Purchase Price, or released to Seller pursuant to Section 10.1 , or (ii) the date on which Escrow Agent shall be authorized to disburse the Deposit as set forth in Section 2.3.3 .  The tax identification numbers of the parties shall be furnished to Escrow Agent upon request.

2.3.3         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 to return the Materials to Seller as 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 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 the date which is 45 days after the Effective Date (the “ Feasibility Period ”), Purchaser, and its agents, contractors, engineers, surveyors, attorneys, and employees (collectively, “ Consultants ”) shall, at no cost or expense to Seller other than Seller’s reasonable expenses incurred in connection with providing the Materials, 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. 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 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, 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 on the Property without Seller’s prior written consent, which consent may be withheld in Seller’s sole discretion.  Further, Seller shall have the right, without limitation, to disapprove any and all entries, surveys, tests (including, without limitation, a Phase II environmental study of the Property), investigations and other matters that in Seller’s reasonable judgment could result in any injury to the Property or breach of any contract, or expose Seller to any Losses or violation of applicable law, or otherwise adversely affect the Property or Seller’s interest therein.  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 exist and are in Seller’s possession or reasonable control (subject to Section 3.5.2 ), Seller agrees to make the documents set forth on Schedule 3.5 (together with any other documents or information provided by Seller or its agents to Purchaser with respect to the Property, the “ Materials ”) available at the Property for review and copying by Purchaser at Purchaser’s sole cost and expense.  In the alternative, at Seller’s option and within the foregoing time period, Seller may deliver some or all of the Materials to Purchaser, or make the same available to Purchaser on a secure web site (Purchaser agrees that any item to be delivered by Seller under this Contract shall be deemed delivered to the extent available to Purchaser on such secured web site).  To the extent that Purchaser determines that any of the Materials have not been made available or delivered to Purchaser pursuant to this Section 3.5.1 , Purchaser shall notify Seller and Seller shall use commercially reasonable efforts to deliver the same to Purchaser within 5 Business Days after such notification is received by Seller; provided, however, that under no circumstances will the Feasibility Period be extended and Purchaser’s sole remedy will be to terminate this Contract pursuant to Section 3.2 .

3.5.2         In providing the Materials to Purchaser, other than Seller’s Representations, Seller makes no representation or warranty, 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, together with all Third-Party Reports, shall be returned by Purchaser to Seller (or the destruction thereof shall be certified in writing by Purchaser to Seller) as a condition to return of the Deposit to Purchaser if this Contract is terminated for any reason.  Recognizing that the Materials delivered or made available by Seller pursuant to this Contract may not be complete or constitute all of such documents which are in Seller’s possession or control, but are those that are readily and reasonably available to Seller, Purchaser shall not in any way be entitled to rely upon the completeness or accuracy of the Materials other than the Seller’s Representations 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.

3.5.3         In addition to the items set forth on Schedule 3.5 , no later than 5 Business Days after the Effective Date, 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 listing the move-in date, monthly base rent payable, lease expiration date and unapplied security deposit for each Lease (the “ Rent Roll ”).  Seller makes no representations or warranties regarding the Rent Roll other than the express representation set forth in Section 6.1.6 .

3.5.4         In addition to the items set forth on Schedule 3.5 , no later than 5 Business Days after the Effective Date, 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 6.1.7 .

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, 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 simultaneously therewith, Purchaser shall deliver to Seller 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 ”).  Seller shall sign the Vendor Terminations prepared by Purchaser, and deliver them to all applicable vendors.  To the extent that any Property Contract to be assigned to Purchaser requires vendor consent, then, prior to the Closing, Purchaser may 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 Purchaser’s failure to obtain any Required Assignment Consent.

Article IV
TITLE

4.1               Title Documents .  Within 10 days after the Effective Date, Seller shall cause to be delivered to Purchaser a standard form commitment or preliminary title report (“ Title Commitment ”) to provide an American Land Title Association owner’s title insurance policy for the Property in the form promulgated by the Texas Department of Insurance (Form T-1), 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 basic 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 .  Subject to Section 3.5.2 , within 3 Business Days after the Effective Date, Seller shall deliver to Purchaser or make available at the Property any existing survey of the Property (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 the date which is 20 days after the Effective Date (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 25 days after the Effective Date (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.  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 limited to those parties in possession pursuant to the Leases, and (d) the standard exception pertaining to taxes, which shall be limited to taxes and assessments payable in the year in which the Closing occurs and subsequent taxes and assessments;

4.4.2         All Leases;

4.4.3         The Assumed Encumbrances;

4.4.4         Applicable zoning and governmental regulations and ordinances;

4.4.5         Any defects in or objections to title to the Property, or title exceptions or encumbrances, arising by, through or under Purchaser; and

4.4.6         The terms and conditions of this Contract.

4.5               Assumed Encumbrances .

4.5.1         Purchaser recognizes and agrees that, in connection with (A) a loan (the “ FHLMC Loan ”) made to Seller by the Federal Home Loan Mortgage Corporation (the “ FHLMC Lender ”), the Property presently is encumbered by a deed of trust dated June 30, 2008 and recorded July 2, 2008 (the “ FHLMC Assumed Deed of Trust ”) and certain other security and related documents in connection therewith (collectively, the “ FHLMC Assumed Encumbrances ”); and (B) a loan (the “ Wells Fargo Loan ”, and collectively with the FHLMC Loan, the “ Loan ”) made to Seller by the Wells Fargo Bank (the “ Wells Fargo Lender ”, and collectively with the FHLMC Lender, the “ Lender ”), the Property presently is encumbered by a deed of trust dated June 30, 2008 and recorded July 2, 2008, assigned to Federal Home Loan Mortgage Corporation (the “ Wells Fargo Assumed Deed of Trust ”) and certain other security and related documents in connection therewith (collectively, the “ Wells Fargo Assumed Encumbrances ” and collectively with the FHLMC Assumed Encumbrances, the “ Assumed Encumbrances ”).  The FHLMC Loan is evidenced by that certain promissory note dated March 31, 2008 in the stated principal amount of $5,119,062.00 (the “ FHLMC Note ”) and the Wells Fargo Loan is evidenced by that certain promissory note dated March 31, 2008 in the stated principal amount of $3,900,000.00 (the “ Wells Fargo Note ”, and collectively with the FHLMC Note, the “ Note ,” and together with the Assumed Deed of Trust, the Assumed Encumbrances and any other documents executed by Seller in connection with the Loan, the “ Assumed Loan Documents ”), each executed by Seller and payable to the order of the applicable Lender.  Within 10 days after the Effective Date, Seller agrees that it will make available to Purchaser (in the same manner in which Seller is permitted to make the Materials available to Purchaser under Section 3.5.1 ) copies of the Assumed Loan Documents which are in Seller’s possession or reasonable control (subject to Section 3.5.2 ).  Seller shall reasonably cooperate with and assist Purchaser, at no cost to Seller, in obtaining all Assumed Loan Documents not in Seller’s possession or reasonable control.

4.5.2         Purchaser agrees that, at the Closing, (a) Purchaser shall assume Seller’s obligations under the Note and all of the other Assumed Loan Documents and accept title to the Property subject to the Deed of Trust and the Assumed Encumbrances, and (b) the Lender shall release Seller, as well as any guarantors and other obligated parties under the Assumed Loan Documents, from all obligations under the Assumed Loan Documents (and any related guarantees or letters of credit), including, without limitation, any obligation to make payments of principal and interest under the Note (collectively, the foregoing (a) and (b) referred to herein as the “ Loan Assumption and Release ”).  Purchaser acknowledges and agrees that (x) certain of the provisions of the Assumed Loan Documents may have been negotiated for the exclusive benefit of Seller, AIMCO or their respective affiliates (the “ Specific AIMCO Provisions ”), and (y) unless Lender otherwise agrees in Lender’s sole and arbitrary discretion, Purchaser will not be permitted to assume the benefit of the Specific AIMCO Provisions and the same shall be of no further force or effect from and after the Closing Date.

4.5.3         Purchaser further acknowledges that the Assumed Loan Documents require the satisfaction by Purchaser of certain requirements as set forth therein to allow for the Loan Assumption and Release.  Accordingly, Purchaser, at its sole cost and expense and within 10 days after the Effective Date (the “ Loan Assumption Application Submittal Deadline ”), shall satisfy the requirements set forth in the Assumed Loan Documents to allow for the Loan Assumption and Release, including, without limitation, submitting a complete application to Lender for assumption of the Loan together with all documents and information required in connection therewith (the “ Loan Assumption Application ”).  Purchaser agrees to provide Seller with a copy of the Loan Assumption Application no later than 2 Business Days prior to the Loan Assumption Application Submittal Deadline and shall provide evidence of its submission to Lender on or before the Loan Assumption Application Submittal Deadline.  Purchaser acknowledges and agrees that Purchaser is solely responsible for the preparation and submittal of the Loan Assumption Application, including the collection of all materials, documents, certificates, financials, signatures, and other items required to be submitted to Lender in connection with the Loan Assumption Application.

4.5.4         Purchaser shall comply with Lender’s assumption guidelines in connection with the Loan Assumption and Release.  Purchaser shall be responsible at its sole cost and expense for correcting and re-submitting any deficiencies noted by Lender in connection with the Loan Assumption Application in a timely manner.  Purchaser acknowledges that Lender’s assumption guidelines may not be consistent with the provisions of the Assumed Loan Documents concerning the Loan Assumption and Release.  Purchaser shall coordinate with the Lender to comply with the appropriate provisions of both the Assumed Loan Documents and Lender assumption guidelines in order to allow for the Loan Assumption and Release.

4.5.5         Purchaser shall pay all fees and expenses (including, without limitation, all servicing fees and charges, transfer fees, assumption fees, title fees, endorsement fees, and other fees to release Seller of all liability under the Loan) imposed or charged by the Lender or its counsel (such fees and expenses collectively being referred to as the “ Lender Fees ”), in connection with the Loan Assumption Application and the Loan Assumption and Release.

4.5.6         Additionally, Purchaser shall be responsible for (a) replacing (and increasing to the extent required by Lender) all reserves, impounds and other accounts required to be maintained in connection with the Loan, and (b) funding any additional reserves, impounds or accounts required by Lender to be maintained by Purchaser in connection with the Loan after the Loan Assumption and Release (the foregoing amounts in (a) and (b) collectively referred to herein as the “ Required Loan Fund Amounts ”).  Any existing reserves, impounds and other accounts required to be replaced by Purchaser pursuant to the foregoing sentence shall be released in Good Funds to Seller at the Closing.

4.5.7         Purchaser agrees promptly to deliver to the Lender all documents and information required by the Assumed Loan Documents, and such other information or documentation as the Lender reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor.  Seller agrees that it will cooperate with Purchaser and Lender, at no cost or expense to Seller, in connection with Purchaser’s application to Lender for approval of the Loan Assumption and Release.

4.5.8         No later than 10 days after the Effective Date, Purchaser shall order a Phase I Environmental study (prepared by an environmental engineer reasonably acceptable to Seller and Lender), and covenants that such Phase I Environmental study shall be delivered to Seller and Lender no later than 10 days prior to the Closing Date in connection with and as a precondition to the Loan Assumption and Release.

4.5.9         Unless Purchaser has terminated this Contract in accordance with Section 4.5.10 below, Purchaser shall be in default hereunder if (i) Purchaser fails to submit a complete Loan Assumption Application by the Loan Assumption Application Submittal Deadline, or (ii) Purchaser fails to obtain the Loan Assumption and Release prior to the Closing Date, in either of which events Seller may terminate this Contract and the Deposit shall be immediately released by the Escrow Agent to Seller.

4.5.10     Provided that (a) Purchaser fully complies with its obligations under this Contract (including this Section 4.5 ) and the requirements of the Assumed Deed of Trust in connection with obtaining the Loan Assumption and Release, (b) Purchaser uses its best efforts to obtain the Loan Assumption and Release, and (c) Purchaser does not obtain the consent of the Lender to the Loan Assumption and Release on terms and conditions that are commercially reasonable and do not impose new material adverse conditions on Purchaser within 45 days after the Effective Date (the “ Loan Approval Period ”), then Purchaser shall have the right to give Escrow Agent notice terminating this Contract based solely on the fact that the Loan Assumption and Release has not been approved by the Lender (the “ Loan Approval Termination ”) on or before the expiration of the Loan Approval Period, in which event this Contract shall be of no further force and effect, subject to and except for Purchaser’s liability pursuant to Section 3.4 and any other provision of this Contract which survives such termination, and Escrow Agent shall forthwith return the Deposit to Purchaser.  If Purchaser fails to provide Seller with written notice of termination prior to the expiration of the Loan Approval Period in strict accordance with the notice provisions of this Contract, Purchaser’s right to terminate under this Section 4.5.4 shall be permanently waived, this Contract shall remain in full force and effect, the Deposit shall be non-refundable, and Purchaser’s obligation to obtain the Lender’s approval of the Loan Assumption and Release and to purchase the Property shall be non-contingent and unconditional except only for satisfaction of the conditions expressly stated in Section 8.1 .  Purchaser recognizes and agrees that if the Loan Approval Period expires and Purchaser does not terminate this Contract, the Loan Assumption and Release shall not be a condition to Purchaser’s obligation to close, and, if the Loan Assumption and Release is not obtained and the Closing has not occurred on or before the Closing Date, Purchaser shall be in default under this Contract, entitling the Seller to terminate this Contract, in which event the Deposit shall be immediately released to Seller by the Escrow Agent and this Contract shall be of no further force and effect, subject to and except for Purchaser’s liability pursuant to Section 3.4 and any other provision of this Contract which survives such termination.

4.5.11     Provided that (a) Purchaser fully complies with its obligations under this Contract (including those set forth under Section 4.5 ) and the requirements of the Assumed Loan Documents and with obtaining the Loan Assumption and Release, (b) Purchaser has and is using best efforts to obtain the Loan Assumption and Release, (c) Purchaser is not in default under the terms of this Contract, and (d) Purchaser does not obtain the consent of the Lender to the Loan Assumption and Release on terms and conditions that are commercially reasonable and do not impose new material adverse conditions on Purchaser or before Loan Approval Period, Purchaser shall be permitted one 15-day extension of the Loan Approval Period for the sole purpose of obtaining Lender’s approval of the Loan Assumption and Release.  In order to exercise such 15-day extension, Purchaser must deliver written notice of such extension of the Loan Approval Period to Seller no later than 10 days prior to the expiration of the original Loan Approval Period. 

4.5.12     Under no circumstances shall Seller be required to cause, or permit, the pay-off of the Loan at the Closing.  In no event shall Purchaser pay off or cause the pay off of the Loan at Closing.

4.6               Subsequently Disclosed Exceptions .  If at any time after the expiration of the Feasibility Period, any update to the Title Commitment 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.  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 30 days following the expiration of the Feasibility Period at the time set forth in Section 2.2.4 (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 the Loan Assumption and Release.  

5.2               Seller Closing Deliveries .  No later than 1 Business Day prior to the Closing Date, Seller shall deliver to Escrow Agent, each of the following items:

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 ”).

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 closing statement.

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     Tenant Notice Letters countersigned by Seller in the form attached hereto as Exhibit G .  Seller will send copies of the fully executed Tenant Notice Letters to the tenants upon Closing and Purchaser shall cooperate with Seller in sending such notices.

5.3               Purchaser Closing Deliveries .  No later than 1 Business Day prior to the Closing Date (except for the balance of the Purchase Price which is to be delivered at the time specified in Section 2.2.3 ), Purchaser shall deliver to the Escrow Agent (for disbursement to Seller upon the Closing) the following items:

5.3.1         The full Purchase Price (with credit for the Deposit and, if applicable, the Loan Balance), plus or minus the adjustments or prorations required by this Contract.

5.3.2         [Intentionally Omitted]

5.3.3         Any declaration or other statement which