8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) January 26, 2011

HCW PENSION REAL ESTATE FUND LIMITED PARTNERSHIP

(Exact name of Registrant as specified in its charter)

Massachusetts	0-14578	04-2825863
(State or other jurisdiction	(Commission	(I.R.S. Employer
of incorporation or	File Number)	Identification Number)
organization)

55 Beattie Place

Post Office Box 1089

Greenville, South Carolina 29602

(Address of principal executive offices)

(864) 239-1000

(Issuer's telephone number)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:

[ ]   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[ ]   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[ ]   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[ ]   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01   Entry into a Material Definitive Agreement.

HCW Pension Real Estate Fund Limited Partnership, a Massachusetts limited partnership (the “Partnership”), owns Lewis Park Apartments (the “Property”), a 269-unit apartment complex located in Carbondale, Illinois. On January 26, 2011 (the “Effective Date”), the Partnership entered into a Purchase and Sale Contract (the “Purchase Agreement”) with a third party, CH 18, LLC, a Delaware limited liability company (the “Purchaser”), to sell the Property to the Purchaser for a total sales price of $9,400,000.

The following is a summary of the terms and conditions of the Purchase Agreement, which summary is qualified in its entirety by reference to the Purchase Agreement, a copy of which is attached as an exhibit.

PURCHASE PRICE.  The total purchase price is $9,400,000, subject to certain prorations and adjustments at the closing.  The Purchaser agreed to deliver an initial deposit of $250,000 to the escrow agent within two business days following the Effective Date.  On or before the end of the feasibility period on February 25, 2011, the Purchaser is required to deliver to the escrow agent an additional deposit of $50,000.  If the Purchaser fails to notify the Partnership in writing of its intent to terminate the Purchase Agreement prior to February 25, 2011, the initial deposit will become non-refundable. 

CLOSING.  The Purchaser has until April 8, 2011 to obtain financing for the purchase, with the approved financing terms as specified in the Purchase Agreement. The Purchaser is permitted up to two consecutive 15 day extensions of the deadline to obtain financing by delivering written notice to the Partnership prior to expiration of the financing deadline, along with payment of an additional deposit of $25,000 with each extension. The Purchaser has the right to terminate the Purchase Agreement by delivering written notice to the Partnership on or before the deadline to obtain financing. The Partnership may also terminate the Purchase Agreement by delivering written notice to the Purchaser and escrow agent if the approved financing received by the Purchaser does not also include a reduction, as specified in the Purchase Agreement, of the prepayment penalty to be paid by the Partnership in connection with its payment of the existing mortgage encumbering the Property. The Partnership shall then return the deposit and reimburse the Purchaser for out-of-pocket expenses and costs up to $50,000. The expected closing date of the transaction is 10 business days after Purchaser’s deadline to obtain financing. The Partnership has the right to extend the closing to the last business day of the month in which the closing date otherwise would occur. The closing is also subject to customary closing conditions and deliveries.

COSTS AND FEES.  The Partnership agreed to pay the base premium with respect to the title policy, the cost of recording any instruments required to discharge any liens or encumbrances against the Property, Illinois and county property transfer taxes and one-half of the customary closing costs of the escrow agent.  The Purchaser agreed to pay any city or local transfer taxes, mortgage assumption, sales, use, gross receipts or similar taxes, any premiums or fees required with respect to the title policy and one-half of the customary closing costs of the escrow agent.

REPRESENTATIONS AND WARRANTIES.  The Partnership and the Purchaser each made limited representations and warranties to the other.

RISK OF LOSS. The risk of loss or damage to the Property by reason of any insured or uninsured casualty during the period through and including the closing date equal to or less than $500,000 will be borne by the Partnership. The Partnership must maintain in full force and effect until the closing date all existing insurance coverage on the Property.

ASSIGNMENT.  With the exception of an assignment to an affiliate of the Purchaser, the Purchase Agreement is not assignable by the Purchaser without first obtaining the prior written approval of the Partnership.

DEFAULTS AND REMEDIES. If the Purchaser defaults on its obligations to deliver, when required, any required deposits, the purchase price or any other specified deliveries, then the Purchaser will forfeit its deposits to the Partnership, and neither party will be obligated to proceed with the purchase and sale. The Partnership expressly waived the remedies of specific performance and additional damages for any such defaults by the Purchaser.

If the Partnership, prior to the closing, defaults in its representations, warranties, covenants, or obligations, then the Purchaser has the option of (i) terminating the Purchase Agreement, receiving a return of its deposits, and recovering, as its sole recoverable damages its documented direct and actual out-of-pocket expenses and costs up to $50,000 or (ii), subject to certain conditions, seeking specific performance of the Partnership’s obligation to deliver the deed pursuant to the Purchase Agreement.

Item 9.01   Financial Statements and Exhibits

(c)   Exhibits

10.6        Purchase and Sale Contract between HCW Pension Real Estate Fund Limited Partnership, a Massachusetts limited partnership and CH 18, LLC, a Delaware limited liability company, dated January 26, 2011.*

*Schedules and supplemental materials to the exhibits have been omitted but will be provided to the Securities and Exchange Commission upon request.

The agreements included as exhibits to this Form 8-K contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:

·should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;

·have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;

·may apply standards of materiality in a way that is different from what may be viewed as material to an investor; and

·were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.

Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. The Registrant acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in this Form 8-K not misleading. Additional information about the Registrant may be found elsewhere in this Form 8-K and the Registrant’s other public filings, which are available without charge through the SEC’s website at http://www.sec.gov.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

HCW PENSION REAL ESTATE FUND LIMITED PARTNERSHIP

                              By:  HCW General Partner, Ltd.,

                                   General Partner

                               By:  IH, Inc.,

                                    Managing General Partner

By:  /s/Stephen B. Waters

Stephen B. Waters

Senior Director of Partnership Accounting

Date: February 1, 2011

EX-10.6

Exhibit 10.6

PURCHASE AND SALE CONTRACT

BETWEEN

HCW PENSION REAL ESTATE FUND LIMITED PARTNERSHIP,

a Massachusetts limited partnership

AS SELLER

AND

CH 18, LLC,

a Delaware limited liability company

AS PURCHASER

LEWIS PARK APARTMENTS

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		3
	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		7
	4.4	Permitted Exceptions		7
	4.5	Existing Deed of Trust and Mechanic’s Liens		7
	4.6	Subsequently Disclosed Exceptions		7
	4.7	Purchaser Financing		8
Article V			CLOSING	11
	5.1	Closing Date		11
	5.2	Seller Closing Deliveries		12
	5.3	Purchaser Closing Deliveries		13
	5.4	Closing Prorations and Adjustments		13
	5.5	Post Closing Adjustments		16
Article VI			REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER	17
	6.1	Seller's Representations		17
	6.2	AS-IS		18
	6.3	Survival of Seller's Representations		19
	6.4	Definition of Seller's Knowledge		19
	6.5	Representations and Warranties of Purchaser		19
Article VII			OPERATION OF THE PROPERTY	20
	7.1	Leases and Property Contracts		20
	7.2	General Operation of Property		21
	7.3	Liens		21
Article VIII			CONDITIONS PRECEDENT TO CLOSING	22
	8.1	Purchaser's Conditions to Closing		22
	8.2	Seller's Conditions to Closing		22
Article IX			BROKERAGE	23
	9.1	Indemnity		23
	9.2	Broker Commission		23
Article X			DEFAULTS AND REMEDIES	24
	10.1	Purchaser Default		24
	10.2	Seller Default		24
Article XI			RISK OF LOSS OR CASUALTY	25
	11.1	Major Damage		25
	11.2	Minor Damage		25
	11.3	Closing		26
	11.4	Repairs		26
Article XII			EMINENT DOMAIN	26
	12.1	Eminent Domain		26
Article XIII			MISCELLANEOUS	26
	13.1	Binding Effect of Contract		26
	13.2	Exhibits and Schedules		27
	13.3	Assignability		27
	13.4	Captions		27
	13.5	Number and Gender of Words		27
	13.6	Notices		27
	13.7	Governing Law and Venue		29
	13.8	Entire Agreement		29
	13.9	Amendments		29
	13.10	Severability		29
	13.11	Multiple Counterparts/Facsimile Signatures		30
	13.12	Construction		30
	13.13	Confidentiality		30
	13.14	Time of the Essence		30
	13.15	Waiver		30
	13.16	Attorneys' Fees		30
	13.17	Time Zone/Time Periods		30
	13.18	1031 Exchange		31
	13.19	No Personal Liability of Officers, Trustees or Directors		31
	13.20	ADA Disclosure		31
	13.21	No Recording		31
	13.22	Relationship of Parties		32
	13.23	AIMCO Marks		32
	13.24	Non-Solicitation of Employees		32
	13.25	Survival		32
	13.26	Multiple Purchasers		32
	13.27	WAIVER OF JURY TRIAL		32
Article XIV			LEAD–BASED PAINT DISCLOSURE	32
	14.1	Disclosure		32
	14.2	Consent Agreement		33

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

Exhibit I            Form of Bulk Sales Indemnity

SCHEDULES

Schedule 1       Defined Terms

PURCHASE AND SALE CONTRACT

THIS PURCHASE AND SALE CONTRACT (this “Contract”) is entered into as of the 26^th day of January, 2011 (the “Effective Date”), by and between HCW Pension Real Estate Fund Limited Partnership, a Massachusetts limited partnership, having an address at 4582 South Ulster Street Parkway, Suite 1100, Denver, Colorado 80237 (“Seller”), and CH 18, LLC, a Delaware limited liability company, having a principal address at 145 Madison Ave., 6^th Floor, New York, New York  10016 (“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 Jackson County, Illinois, as more particularly described in Exhibit A attached hereto and made a part hereof, and the improvements thereon, commonly known as LEWIS PARK 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

2.1Purchase 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.

2.2Purchase Price and Deposit.  The total purchase price (“Purchase Price”) for the Property shall be an amount equal to $9,400,000.00, payable by Purchaser, as follows:

2.2.1Within 2 Business Days following the Effective Date, Purchaser shall deliver to First American Title Insurance Company, 633 Third Avenue, 16th Floor, New York, New York 10017, Attention: Terry L. Outz, Telephone (212) 850-0665, Facsimile (212) 331-1485, E-mail teoutz@firstam.com (“Escrow Agent” or “Title Insurer”) an initial deposit (the “Initial Deposit”) of $250,000.00 by wire transfer of immediately available funds (“Good Funds”). 

2.2.2On or before the day that the Feasibility Period expires, Purchaser shall deliver to Escrow Agent an additional deposit (the "Additional Deposit") of $50,000.00 by wire transfer of Good Funds.

2.2.3The 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.

2.3Escrow Provisions Regarding Deposit.

2.3.1Escrow 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.

2.3.2Escrow 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.

2.3.3Except 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.

2.3.4The 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.

2.3.5The 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.

2.3.6Escrow 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

3.1Feasibility 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 30 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, 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”).

3.2Expiration of Feasibility Period.  If any of the matters in Section 3.1 or any 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 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.

3.3Conduct 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. 

3.4Purchaser Indemnification.

3.4.1Purchaser 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”) to the extent 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.

3.4.2Notwithstanding 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 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, 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, at Purchaser's sole cost and expense, and in accordance with all applicable environmental laws, dispose of any 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 or cause Campus Habitat, LLC or Pilot Real Estate Group (whichever of them enters onto the Property) and their 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.

3.5Property Materials.

3.5.1Within 3 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, including without limitation any environmental and engineering documents, reports or studies, that are in Seller's possession or reasonable control, other than such documents and information that Seller deems to be confidential or proprietary (collectively, the “Materials”).

3.5.2Except 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 either be returned to Seller or destroyed by Purchaser (with such destruction being evidenced by Purchaser’s e-mail to Seller certifying the same) if this Contract is terminated for any reason.

3.5.3Not later than 3 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) 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 6.1.6.

3.5.4Not later than 3 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 6.1.7. 

3.6Property 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, and 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 failure to obtain such consents.

Article IV
TITLE

4.1Title Documents.  Within 5 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 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.

4.2Survey.  Subject to Section 3.5.2, within 2 Business Days after the Effective Date, Seller shall deliver to Purchaser that certain survey of the Property dated as of March 10, 2008 and prepared by Millman Surveyors (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”). 

4.3Objection 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, 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.

4.4Permitted Exceptions.  The Deed delivered pursuant to this Contract shall be subject to the following, all of which shall be deemed “Permitted Exceptions”:

4.4.1All 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, (c) taxes due and payable with respect to the period preceding Closing, (d) 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 (e) the standard exception pertaining to taxes and assessments, which shall be limited to taxes and assessments not yet due and payable as of the Closing Date;

4.4.2All Leases;

4.4.3Applicable zoning and governmental regulations and ordinances;

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

4.5Existing Deed of Trust and Mechanic’s Liens.  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 Note shall not be deemed Permitted Exceptions, whether Purchaser gives further written notice of such or not, and shall be paid off, satisfied, discharged and/or cured from proceeds of the Purchase Price at Closing.  Further, it is understood and agreed that, whether or not Purchaser gives an Objection Notice with respect thereto, any mechanic’s liens (except those arising by, through or under Purchaser) shall not be deemed Permitted Encumbrances, whether Purchaser gives further written notice of such or not, and shall be paid off, satisfied, discharged and/or cured from the proceeds of the Purchase Price at Closing or, at Seller’s option and sole cost, otherwise removed from the Title Policy through an indemnity and/or bond for the benefit of the Title Company or otherwise.

4.6Subsequently 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 or the Existing Survey 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.

4.7Financing Period.

4.7.1Subject to the terms and conditions of this Section 4.7, Purchaser shall use good faith, diligent efforts to obtain mortgage financing for Purchaser’s purchase of the Property on terms which are commercially reasonable and which are market standard (including standard or customary reserves, guarantees and capital expenditure requirements and for a loan amount of no less than $5,640,000.00 and an interest rate of no greater than 6% per annum), on or prior to the date which is sixty (60) days after the Loan Application Deadline (as the same may be extended in accordance with Purchaser’s rights under Section 4.7.1.7) (such period, the “Financing Period”).  Purchaser further agrees to first and primarily pursue mortgage financing with the Federal Home Loan Mortgage Corporation (“Freddie Mac”) through Freddie Mac’s Capital Markets Execution (“CME”) program in accordance with the following:

4.7.1.1Purchaser, at its sole cost and expense and within 10 Business Days after the Effective Date (the “Loan Application Deadline”), shall submit an application for terms which Purchaser believes in good faith to be complete to Freddie Mac for mortgage financing through the CME program using Freddie Mac’s standard forms and templates, together with all documents and information required in connection therewith (the “Application for Terms”).  Simultaneously with Purchaser’s delivery of the Application for Terms to Freddie Mac, Purchaser agrees to provide Seller with a copy of the Application for Terms (which copy may be redacted to omit any confidential information of Purchaser).  Purchaser acknowledges and agrees that Purchaser is solely responsible for the preparation and submittal of the Application for Terms, including the collection of all materials, documents, certificates, financials, signatures, and other items required to be submitted to Freddie Mac in connection with the Application for Terms.

4.7.1.2Purchaser shall promptly, at its sole cost and expense, correct and re-submit any deficiencies noted by Freddie Mac in connection with the Application for Terms after notification from Freddie Mac of such deficiency.  Purchaser shall comply with Freddie Mac’s CME loan application guidelines in connection with obtaining CME mortgage financing and Purchaser shall promptly deliver to Freddie Mac all documents and information required by Freddie Mac, and such other information or documentation as Freddie Mac reasonably may request, including, without limitation, financial statements, income tax returns and other financial information for Purchaser and any required guarantor. 

4.7.1.3Upon Seller’s written request, Purchaser shall provide Seller with a copy of any material correspondence from Freddie Mac with respect to the status of the Application for Terms (which may be redacted to omit any confidential information of Purchaser) no later than 2 Business Days after receipt of Seller’s written request.  Purchaser acknowledges that Freddie Mac’s loan guidelines may not be consistent with the provisions of the loan documents for the existing financing on the Property. 

4.7.1.4Purchaser shall be responsible for and shall pay all fees and expenses (including, without limitation, all servicing fees and charges, transfer fees, assumption fees, title fees and endorsement fees) imposed or charged by Freddie Mac, any other lender or its counsel (such fees and expenses collectively being referred to as the “Lender Fees”), in connection with the Application for Terms and any financing for Purchaser’s financing of its purchase of the Property.

4.7.1.5Purchaser and Seller acknowledge and agree that if Freddie Mac provides the Financing Commitment for Purchaser’s purchase of the Property and, in connection with such new financing, provides a discount to any prepayment penalty applicable to the Loan Payoff (the “Payoff Discount”), then Seller shall receive the full benefit of any such Payoff Discount.  Seller may, in its sole and absolute discretion, terminate this Contract by written notice to Purchaser and Escrow Agent if, either (i) the Payoff Discount specified in Freddie Mac’s first initial written estimate of the same is less than 35% of the prepayment penalty, or (ii) the final Payoff Discount granted by Freddie Mac as of Closing is less than 25% of the prepayment penalty.  Seller shall have until ten (10) days after Seller’s receipt of Freddie Mac’s first initial written estimate of the Payoff Discount to terminate pursuant to clause (i) of the preceding sentence.  If Seller timely provides such notice, this Contract shall terminate and be of no further force and effect subject to and except for the Survival Provisions, Escrow Agent shall return the Deposit to Purchaser and Seller shall reimburse Purchaser for Purchaser’s actual, out-of-pocket expenses and costs (documented by paid invoices to third parties), which expenses and costs shall not exceed $50,000 in the aggregate.  Seller’s obligation to reimburse Purchaser for actual out-of-pocket expenses and costs as set forth in the preceding sentence shall survive the termination of this Contract.  If Purchaser obtains financing for the transaction contemplated hereunder from any lender or loan program other than Freddie Mac’s CME program, then Purchaser shall pay to Freddie Mac at Closing a portion of the prepayment penalty due in connection with the Loan Payoff equal to 35% of the total prepayment penalty.

4.7.1.6Purchaser shall be in default hereunder if Purchaser fails to submit the Application for Terms (in a form which Purchaser believes in good faith to be complete) by the Loan Application Deadline, in which event Seller may terminate this Contract and the Deposit shall be immediately released by the Escrow Agent to Seller.

4.7.1.7Provided that (a) Purchaser is not in default of the terms of this Contract, and (b) Purchaser has used diligent, good faith efforts to obtain the Financing Commitment but has failed to do so as of the expiration of the Financing Period, Purchaser shall be permitted up to two consecutive 15-day extensions of the Financing Period each exercisable by (i) delivering to Seller written notice of each such extension on or prior to then-current expiration of the Financing Period, and (ii) simultaneously with such notice to Seller, delivering to Escrow Agent the amount of $25,000.00 by wire transfer of Good Funds in accordance with Seller’s wiring instructions (each such amount, a “Financing Period Extension Fee”).  The Financing Period Extension Fee(s) shall be deemed part of the Deposit and shall be credited, held and/or disbursed as part of the Deposit in accordance with the terms of this Contract.

4.7.2  Purchaser shall notify Seller of Purchaser’s receipt of a binding commitment for mortgage financing on commercially reasonable terms to Purchaser, with a minimum loan amount of $5,640,000.00 and an interest rate of no greater than 6% per annum, (the “Financing Commitment”) promptly (in no event more than one (1) Business Day) after Purchaser’s receipt of the Financing Commitment.  Upon Purchaser’s receipt of the Financing Commitment, the Deposit shall be non-refundable, except as expressly provided otherwise in this Contract.  If Purchaser has not obtained the Financing Commitment on or prior to the expiration of the Financing Period (and for no other reason), then Purchaser shall have the right to terminate this Contract by giving written notice to that effect to Seller and Escrow Agent on or before 5:00 p.m. (Central Time) on the date of expiration of the Financing Period.  If Purchaser exercises such right to terminate, this Contract shall terminate and be of no further force and effect subject to and except for the Survival Provisions, and Escrow Agent shall promptly return the Deposit to Purchaser (subject to Purchaser’s obligation under Section 3.5.2 to return or certify the destruction of all Third-Party Reports and information and Materials provided to Purchaser as a pre-condition to the return of the Deposit).  If Purchaser fails to provide Seller with written notice of termination prior to the expiration of the Financing Period in strict accordance with the notice provisions of this Contract, Purchaser’s right to terminate under this Section 4.7.2 shall be permanently waived, the Deposit shall be non-refundable, except as expressly provided otherwise in this Contract, and this Contract shall remain in full force and effect. 

Article V
CLOSING

5.1Closing Date.  The Closing shall occur on the date which is 10 Business Days after receipt of the Financing Commitment (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; provided, however, that Purchaser shall have the one-time right to extend the Closing Date by up to 10 Business Days upon written notice to Seller delivered no later than 5 days prior to the initial Closing Date.  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 if Freddie Mac permits prepayment only on the last Business Day of the month (except with the payment of additional interest, fees or costs).

5.2Seller 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, executed by Seller as appropriate, no later than 1 Business Day prior to the Closing Date:

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

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

5.2.3A General Assignment in the form attached as Exhibit D (the “General Assignment”).

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

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

5.2.6A 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.

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

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

5.2.9An 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.

5.2.10An 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.

5.2.11A completed Real Estate Transfer Declaration (on Form P-Tax 203 or such other form required by the Real Estate Transfer Act of the State of Illinois) and such other state, county or local real property tax transfer forms as required by Applicable Law.

5.2.12An indemnity, in the form of Exhibit I attached hereto and incorporated herein by this reference (“Bulk Sales Indemnity”), executed by Seller, pursuant to which Seller agrees to indemnify, defend and hold harmless Purchaser from and against liability incurred by Purchaser as result of any amounts which may be payable (a) by Seller to the Illinois Department of Revenue pursuant to Section 9-902(d) of the Illinois Income Tax Act (35 ILCS 5/902(d)) or 35 ILCS 120/5j, or (b) by Purchaser as a result of Seller’s failure to make the payments required under clause (a).

5.2.13Such notices, transfer disclosures, affidavits or other similar documents that are required by applicable laws to be executed by Seller or otherwise reasonably necessary in order to consummate the transactions contemplated under terms of the Contract.

5.3Purchaser 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 (with credit for the Deposit), plus or minus the adjustments or prorations required by this Contract, 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, executed by Purchaser as appropriate, no later than 1 Business Day prior to the Closing Date:

5.3.1Intentionally omitted.

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

5.3.3A countersigned counterpart of the General Assignment.

5.3.4A countersigned counterpart of the Leases Assignment.

5.3.5A notification letter to all Tenants prepared and executed by Purchaser in the form attached hereto as Exhibit G, which shall be dated as of the Closing Date and delivered by Purchaser to all Tenants immediately after Closing.

5.3.6Any cancellation fees or penalties due to any vendor under any Terminated Contract as a result of the termination thereof.

5.3.7Resolutions, certificates of good standing, and such other organizational documents as Title Insurer shall reasonably require evidencing Purchaser's authority to consummate this transaction.

5.3.8Countersigned counterparts to the completed Real Estate Transfer Declaration (on Form P-Tax 203 or such other form required by the Real Estate Transfer Act of the State of Illinois) and such other state, county or local real property tax transfer forms as required by Applicable Law.

5.3.9A countersigned counterpart to the Bulk Sales Indemnity.

5.3.10Such 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.

5.4Closing Prorations and Adjustments.

5.4.1General.  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 (but not including) 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. 

5.4.2Operating 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.

5.4.3Utilities.  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.

5.4.4Real Estate Taxes.  Any real estate ad valorem or similar taxes for the Property, or any installment of assessments payable in installments which installment is applicable to, as opposed to 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 103% of the most recent assessed valuation and tax rate figures (assuming payment at the earliest time to allow for the maximum possible discount); 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. 

5.4.5Property Contracts.  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.

5.4.6Leases.

5.4.6.1All 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.  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 pursuant to the provisions of this Section 5.4.6.1.  For a period of 90 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 Purchaser’s reasonable third-party costs of such collection; second, towards rent due and owing under the Leases for the month in which Closing occurs; third, to rents due and owing under the Leases for periods after the month in which Closing occurs; and fourth, 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.

5.4.6.2At 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.

5.4.7Insurance.  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 11:59 p.m. the day prior to 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.

5.4.8Employees.  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.

5.4.9Closing Costs.  Purchaser shall pay any city or local transfer taxes, mortgage assumption, sales, use, gross receipts or similar taxes, any premiums or fees required to be paid by Purchaser with respect to the Title Policy pursuant to Section 4.1, and one-half of the customary closing costs of the Escrow Agent.  Seller shall pay the base premium for the Title Policy to the extent required by Section 4.1, the cost of recording any instruments required to discharge any liens or encumbrances against the Property not caused by Purchaser's actions, Illinois and county real property transfer taxes and one-half of the customary closing costs of the Escrow Agent. 

5.4.10Utility Contracts.  If Seller has entered into an agreement for the purchase of electricity, gas or other utility service for the Property or a group of properties (including the Property) (a “Utility Contract”), or an affiliate of Seller has entered into a Utility Contract, then Seller shall assign and Purchaser shall assume the Utility Contract with respect to the Property, and if required by the terms of such Utility Contract, Purchaser shall attempt to obtain consent to such assignment and assumption, and Purchaser shall 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 such consent.  Notwithstanding the foregoing, Seller may instead elect to receive a credit at Closing equal to the reasonably calculated costs of the Utility Contract attributable to the Property from and after the Closing, and Seller shall remain responsible for payments under the Utility Contract.

5.4.11Possession.  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 acknowledges and agrees that Seller may make copies, at Seller’s discretion and at Seller’s sole cost, of any or all of Seller’s Property-Related Files and Records prior to the Closing Date for Seller’s retention after Closing.

5.5Post 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

6.1Seller'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.

6.1.1Seller is duly organized, 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;

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

6.1.3Seller is not a Prohibited Person.

6.1.4Except 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 (i) affects the Property, or (ii) affects Seller and will adversely impact Seller’s ability to convey the Property;

6.1.5To 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;

6.1.6To Seller's knowledge, the Rent Roll (as updated pursuant to Section 5.2.9) is accurate in all material respects and, to Seller’s knowledge, there are no unrecorded leases or occupancy agreements affecting the Property except as shown on the Rent Roll (as updated pursuant to Section 5.2.9); and

6.1.7To Seller's knowledge, the Property Contracts List (as updated pursuant to Section 5.2.10) is accurate in all material respects.

6.1.8To Seller's knowledge, Seller has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property;

6.1.9No Bankruptcy/Dissolution Event (as defined herein) has occurred with respect to (i) Seller; or (ii) to Seller's knowledge, any general partner of Seller.  “Bankruptcy/Dissolution Event” means the occurrence of any of the following:  (a) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (b) the appointment of a trustee or receiver of any property interest; (c) an assignment for the benefit of creditors; (d) an attachment, execution or other judicial seizure of a substantial property interest; (e) the taking of, failure to take, or submission or any action indicating an inability to meet its financial obligations as they accrue; or (f) a dissolution or liquidation, death or incapacity;

6.1.10To Seller’s knowledge, Seller has not intentionally omitted or eliminated any items which otherwise would be required to be delivered by Seller as part of the Materials;

6.1.11To Seller's knowledge:  (a) no hazardous or toxic materials or other substances regulated by applicable federal or state environmental laws are stored by Seller on, in or under the Property in quantities which violate applicable laws governing such materials or substances, and (b) the Property is not used by Seller for the storage, treatment, generation or manufacture of any hazardous or toxic materials or other substances in a manner which would constitute a violation of applicable federal or state environmental laws;

6.1.12Except for any employment agreements which would not be binding on Purchaser after the Closing, there are no collective bargaining or other employment agreements with respect to the personnel employed by Seller in the operation and maintenance of the Property.

6.1.13To Seller’s knowledge, there are no assessed but unpaid taxes, penalties or interest for the Property or for Seller under the Illinois Income Tax Act or under the Retailer’s Occupation Tax Act.

6.2AS-IS.  Except as otherwise expressly set forth in Seller's Representations:

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

6.2.2The 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. 

6.2.3Purchaser, 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. 

6.2.4Purchaser 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. 

6.2.5Prior 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.

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

6.3Survival 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 $350,000 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 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.

6.4Definition 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 Ken Sloma who is the regional property manager handling this Property and the term “Community Manager” shall refer to Michele Pender who is the community manager handling this Property.

6.5Representations 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:

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

6.5.2Purchaser, 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.

6.5.3No 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.

6.5.4Other 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.

6.5.5The 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.

6.5.6Purchaser is not a Prohibited Person.

6.5.7To 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.

6.5.8The 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.

6.5.9The 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

7.1Leases and Property Contracts.  During the period of time from the Effective Date to 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 30 days notice without penalty.

7.2General 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 or (b) 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.  Seller agrees to maintain its existing insurance policies (or replacement policies on comparable terms) covering the Property in full force and effect through the Closing Date.

7.3Liens.  Other than utility easements and temporary construction easements granted by Seller in the ordinary course of business that do not materially and adversely affect the operation or use of the Property, 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 lien or encumbrance, the same shall be deemed a Permitted Encumbrance for all purposes hereunder.

Article VIII
CONDITIONS PRECEDENT TO CLOSING

8.1Purchaser'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:

8.1.1All 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;

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

8.1.3Seller 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

8.1.4Neither Seller nor Seller's general partner 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.

8.2Seller'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:

8.2.1All 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;

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

8.2.3Purchaser 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;

8.2.4Neither Purchaser nor any of Purchaser's members shall be a debtor in any bankruptcy proceeding; and

8.2.5[Intentionally omitted]

8.2.6There 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.

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

9.1Indemnity.  Seller represents and warrants to Purchaser that it has dealt only with HFF, L.P., One Indiana Square, Suite 1330, Indianapolis, Indiana  46204, Attention: Brian Kelly, Telephone (317) 632-7501, Facsimile (317) 630-3190, E-mail bkelly@hfflp.com (“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. 

9.2Broker Commission.  If Closing occurs, Seller agrees to 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

10.1Purchaser Default.  If Purchaser defaults on 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 on 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.

10.2Seller Default.  If Seller (i) defaults on 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 defaults on its covenants or obligations under this Contract, and such default continues for more than 10 days after written notice from Purchaser, then, 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 close on the sale of the Property pursuant to this Contract (but not damages).  Purchaser may seek specific performance of Seller's obligation to close on the sale of the Property 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 Closing Date, then Purchaser shall be deemed to have elected to terminate the Contract in accordance with subsection (a) above.  Notwithstanding the foregoing, if Seller transfers title to the Property to a third party prior to the termination of this Contract such that Purchaser is unable to bring an action for specific performance pursuant to this Section 10.2, then the Deposit shall be returned to Purchaser and Seller shall pay Purchaser $500,000 in liquidated damages (but no additional punitive, consequential, speculative or other damages).  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 (other than Purchaser’s attorney’s work product) 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

11.1Major Damage.  In the event that the Property is damaged or destroyed by fire or other casualty prior to Risk of Loss Transfer, and the cost for demolition, site cleaning, restoration, replacement, or other repairs (collectively, the “Repairs”) is more than $500,000.00 (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 Purchaser 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 which 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.

11.2Minor Damage.  In the event that the Property is damaged or destroyed by fire or other casualty prior to Risk of Loss Transfer, and the cost of Repairs is equal to or less than $500,000.00, 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.

11.3Closing.  In the event 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); 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).

11.4Repairs.  To the extent that 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, (a) all construction and other contracts entered into by Seller in connection with such Repairs prior to expiration of the Feasibility Period, and (b) all construction and other contracts entered into by Seller in connection with such Repairs after the expiration of the Feasibility Period to the extent approved by Purchaser pursuant to this Section 11.4.  In the event that, after the expiration of the Feasibility Period, Seller desires to enter into any construction and other contracts in connection with Repairs, then Seller will notify Purchaser of any such contract(s) and Purchaser shall have the right to (i) reasonably accept such contract(s) as part of the Property Contracts to be assumed by Purchaser at Closing, or (ii) reasonably reject the same, in which event, Purchaser shall not be obligated to assume such contract(s) as part of the Property Contracts.  If Purchaser fails to reject any such contract(s) within the foregoing 5-day period, then it shall be deemed to have approved such contract(s) and will assume them at Closing as part of the Property Contracts.  Notwithstanding the foregoing to the contrary, Seller retains the sole right and authority to enter into any such contract.

Article XII
EMINENT DOMAIN

12.1Eminent Domain.  In the event that, 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, and if Purchaser so terminates this Contract, Purchaser shall recover the Deposit hereunder.  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

13.1Binding 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.

13.2Exhibits and Schedules.  All Exhibits and Schedules, whether or not annexed hereto, are a part of this Contract for all purposes.

13.3Assignability.  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, Pilot Real Estate Group or Titan, LLC, is an affiliate of or has an ownership interest in 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.

13.4Captions.  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.

13.5Number 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.

13.6Notices.  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:

CH 18, LLC

c/o Campus Habitat, LLC

145 Madison Ave., 6th Floor

New York, New York  10016

Attention: Maximus Yaney and Anthony Vulpi

Telephone:  212-419-4466

Facsimile:  866-375-8073

Email:  myaney@campushabitat.com

and

c/o Pilot Real Estate Group

10 Glenville Street

Floor 3

Greenwich, Connecticut 06831

Attention:  Justin O’Leary

Telephone:  203-531-7480

Facsimile:  203-531-8351

Email:  justin@pilotregroup.com

with a copy to:

Pircher, Nichols & Meeks

900 North Michigan Avenue

Suite 1050

Chicago, Illinois  60611

Attention:  Real Estate Notices (EJML/JDL)

Telephone:  312-915-3113

Facsimile:  312-915-3348

Email:  eleone@pircher.com and

            jlevy@pircher.com

and a copy to:

Steven Mann, Esq.

Steven Mann Attorney at Law

645 5th Avenue

8th Floor

New York, New York  10022

Telephone:  212-689-6588, Ext. 214

Facsimile:  212-689-8490

Email:  Stephen.Mann@USA.NET 

To Seller:

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:

AIMCO

4582 South Ulster Street Parkway

Suite 1100

Denver, Colorado  80237

Attention:  Trent Johnson

Telephone:  303-691-4348

Facsimile:  720-200-6881

Email:  trent.johnson@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, L.P.

One Indiana Square

Suite 1330

Indianapolis , Indiana  46204

Attention:  Brian Kelly
Telephone:  317-632-7501
Facsimile:  317-630-3190

Email:  bkelly@hfflp.com

and a copy to:

Ginsberg Jacobs LLC

300 S. Wacker Drive

Suite 2450

Chicago, Illinois  60606

Attention:  Steven F. Ginsberg
Telephone:  312-660-9614
Facsimile:  312-660-9612
Email:  sginsberg@ginsbergjacobs.com

And

Attention:  Ana Acena
Telephone:  312-660-9618
Facsimile:  312-660-9612
Email:  aacena@ginsbergjacobs.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

633 Third Avenue

16th Floor

New York, New York 10017

Attention:  Terry L. Outz

Telephone:  (212) 850-0665

Facsimile:  (212) 331-1485

Email:  teoutz@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.

13.7Governing Law and Venue.  The laws of the State of Illinois shall govern the validity, construction, enforcement, and interpretation of this Contract, unless otherwise specified herein except for the conflict of laws provisions thereof.  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.

13.8Entire 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.

13.9Amendments.  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.

13.10Severability.  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.

13.11Multiple 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.

13.12Construction.  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.

13.13Confidentiality.  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, Consultants, partners and investors (either potential or actual) 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 (except to the extent already in the public domain), and any Materials provided by Seller to Purchaser hereunder (except to the extent already in the public domain), shall be confidential and Purchaser shall be prohibited from making such information public to any other person or entity other than its Consultants or as set forth above, 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.

13.14Time 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.

13.15Waiver.  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.

13.16Attorneys' Fees.  In the event either party hereto commences litigation or arbitration against the other to enforce its rights hereunder, the substantially 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.

13.17Time Zone/Time Periods.  Any reference in this Contract to a specific time shall refer to the time in the time zone where the Property is located.  (For example, a reference to 3:00 p.m. refers to 3:00 p.m. MST if the Property is located in Denver, Colorado.)  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.

13.181031 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. 

13.19No Personal Liability of Officers, Trustees or Directors.  Purchaser acknowledges that this Contract is entered into by Seller which is a Massachusetts limited partnership, and Purchaser agrees that none of 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, or AIMCO 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 Delaware 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.

13.20ADA 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.

13.21No 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.

13.22Relationship 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.

13.23AIMCO 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.

13.24Non-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.

13.25Survival.  Except for (a) all of the provisions of this Article XIII (other than Section 13.18); (b) Sections 2.3, 3.3, 3.4, 3.5, 5.4, 5.5, 6.1 (subject to the limitations on survival and liability set forth in Section 6.3), 6.2, 6.3, 6.5, 9.1, 9.2, 11.4, 13.1, 13.7, 13.27 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 or indemnity 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.

13.26Multiple Purchasers.  As used in this Contract, the term “Purchaser” includes 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. 

13.27WAIVER 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.

13.28Press Releases.  Except for any public filings or other statements or disclosures required of Seller or its affiliates by applicable laws, any press release issued with respect to the transactions contemplated by this Contract prior to Closing shall be subject to the prior approval of Purchaser.

13.29Exclusivity.  For as long as this Contract is in effect, Seller shall not negotiate, solicit or accept offers regarding the financing or purchase of all or any portion of the Property or the ownership interests in Seller.

Article XIV
LEAD–BASED PAINT DISCLOSURE

14.1Disclosure.  Seller and Purchaser hereby acknowledge delivery of the Lead Based Paint Disclosure attached as Exhibit H hereto. 

14.2Consent 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 Lead Based Paint Inspection Survey dated May 14, 2001, 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:

HCW Pension Real Estate Fund Limited Partnership, a Massachusetts limited partnership

By:       HCW GENERAL PARTNER, LIMITED PARTNERSHIP, a Texas limited partnership, its general partner

By:       IH, INC., a Delaware corporation,

its general partner

By:  /s/Trent A. Johnson

Name:  Trent A. Johnson

Title:  Vice President

Purchaser:

CH 18, LLC,

a Delaware limited liability company

By:  /s/Eric Schwartz

Eric Schwartz

Authorized Signatory