-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D1lrwpLGZytlNJm31Eveai7UFXKgx7FdpoxNaM878hfEUfT4lwHTgClcuhX8OuR9 n63TLLDV5dn1gkLQgdAhkA== 0000755908-97-000002.txt : 19971104 0000755908-97-000002.hdr.sgml : 19971104 ACCESSION NUMBER: 0000755908-97-000002 CONFORMED SUBMISSION TYPE: 10QSB PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19970930 FILED AS OF DATE: 19971103 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONSOLIDATED CAPITAL PROPERTIES VI CENTRAL INDEX KEY: 0000755908 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] IRS NUMBER: 942940204 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10QSB SEC ACT: SEC FILE NUMBER: 000-14099 FILM NUMBER: 97706403 BUSINESS ADDRESS: STREET 1: ONE INSIGNIA FINANCIAL PLZ STREET 2: POST OFFICE BOX 1089 CITY: GREENVILLE STATE: SC ZIP: 29602 BUSINESS PHONE: 2147020027 MAIL ADDRESS: STREET 1: ONE INSIGNIA FINANCIAL PLAZA STREET 2: PO BOX 1089 CITY: GREENVILLE STATE: SC ZIP: 29602 10QSB 1 FORM 10-QSB.--QUARTERLY OR TRANSITIONAL REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 QUARTERLY OR TRANSITIONAL REPORT U.S. Securities and Exchange Commission Washington, D.C. 20549 FORM 10-QSB [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended September 30, 1997 [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period.........to......... Commission file number 0-14099 CONSOLIDATED CAPITAL PROPERTIES VI (Exact name of small business issuer as specified in its charter) California 94-2940204 (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) One Insignia Financial Plaza, P.O. Box 1089 Greenville, South Carolina 29602 (Address of principal executive offices) (864) 239-1000 (Issuer's telephone number) Check whether the issuer (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No PART I - FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS a) CONSOLIDATED CAPITAL PROPERTIES VI CONSOLIDATED BALANCE SHEET (Unaudited) (in thousands, except unit data) September 30, 1997 Assets Cash and cash equivalents: Unrestricted $ 1,210 Restricted -- tenant security deposits 79 Investments 302 Accounts receivable 20 Escrows for taxes and insurance 205 Restricted escrows 136 Other assets 120 Investment properties: Land $ 1,652 Buildings and personal property 15,124 16,776 Less accumulated depreciation (7,701) 9,075 $ 11,147 Liabilities and Partners' Capital Liabilities Accounts payable $ 110 Tenant security deposits 78 Accrued taxes 221 Other liabilities 210 Mortgage notes payable 9,900 Partners' (Deficit) Capital General partner $ (6) Special limited partner (56) Limited partners (181,808 units issued and 181,288 units outstanding) 690 628 $ 11,147 See Accompanying Notes to Consolidated Financial Statements b) CONSOLIDATED CAPITAL PROPERTIES VI CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited) (in thousands, except unit data)
Three Months Ended Nine Months Ended September 30, September 30, 1997 1996 1997 1996 Revenues: Rental income $ 752 $ 780 $ 2,246 $ 2,319 Other income 46 59 188 193 Total revenues 798 839 2,434 2,512 Expenses: Operating 369 294 967 898 General and administrative 42 40 122 136 Maintenance 122 175 272 397 Depreciation 187 179 552 528 Interest 137 228 623 670 Property tax 74 71 220 206 Total expenses 931 987 2,756 2,835 Net loss $ (133) $ (148) $ (322) $ (323) Net loss allocated to general partner (.2%) $ -- $ -- $ 1 $ 1 Net loss allocated to limited partners (99.8%) (133) (148) (321) (322) Net loss $ (133) $ (148) $ (322) $ (323) Net loss per limited partnership unit: $ (.73) $ (.82) $ (1.77) $(1.78) See Accompanying Notes to Consolidated Financial Statements
CONSOLIDATED CAPITAL PROPERTIES VI CONSOLIDATED STATEMENT OF CHANGES IN PARTNERS' (DEFICIT) CAPITAL (Unaudited) (in thousands, except unit data)
Limited Special Partnership General Limited Limited Units Partner Partner Partners Total Original capital contributions contributions 181,808 $ 1 $ -- $45,452 $45,453 Partners' (deficit) capital at December 31, 1996 181,288 $ (6) $ (61) $ 1,017 $ 950 Amortization of timing difference (Note D) -- -- 6 (6) -- Net loss for the nine months ended September 30, 1997 -- -- (1) (321) (322) Partners' (deficit) capital at September 30, 1997 181,288 $ (6) $ (56) $ 690 $ 628 See Accompanying Notes to Consolidated Financial Statements
d) CONSOLIDATED CAPITAL PROPERTIES VI CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited) (in thousands) Nine Months Ended September 30, 1997 1996 Cash flows from operating activities: Net loss $ (322) $ (323) Adjustments to reconcile net loss to net cash provided by operating activities: Depreciation 552 528 Amortization of loan costs and discounts 120 172 Change in accounts: Restricted cash 9 1 Accounts receivable 9 (5) Escrows for taxes and insurance (97) (59) Other assets (8) 190 Accounts payable (93) (98) Tenant security deposit liabilities (10) (1) Accrued taxes 108 97 Other liabilities (19) (68) Net cash provided by operating activities 249 434 Cash flows from investing activities: Property improvements and replacements (112) (278) Proceeds from sale of investments -- 84 Dividends received from investments 3 -- Deposits to restricted escrows (68) (72) Receipts from restricted escrows -- 163 Net cash used in investing activities (177) (103) Cash flows used in financing activities: Payments on mortgage notes payable (340) (157) Net (decrease) increase in unrestricted cash and cash equivalents (268) 174 Unrestricted cash and cash equivalents at beginning of period 1,478 1,311 Unrestricted cash and cash equivalents at end of period $1,210 $1,485 Supplemental disclosure of cash flow information: Cash paid for interest $ 531 $ 514 See Accompanying Notes to Consolidated Financial Statements e) CONSOLIDATED CAPITAL PROPERTIES VI NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) NOTE A - BASIS OF PRESENTATION The accompanying unaudited consolidated financial statements of Consolidated Capital Properties VI ("the Partnership or the "Registrant") have been prepared in accordance with generally accepted accounting principles for interim financial information and with the instructions to Form 10-QSB and Item 310(b) of Regulation S-B. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements. In the opinion of ConCap Equities, Inc. (the "General Partner"), all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the three and nine months ended September 30, 1997, are not necessarily indicative of the results that may be expected for the fiscal year ending December 31, 1997. For further information, refer to the consolidated financial statements and footnotes thereto included in the Partnership's annual report on Form 10-KSB for the fiscal year ended December 31, 1996. Certain reclassifications have been made to the 1996 balances to conform to the 1997 presentation. NOTE B - TRANSACTIONS WITH AFFILIATED PARTIES The Partnership has no employees and is dependent on the General Partner and its affiliates for the management and administration of all of the Partnership activities, as provided for in the Partnership Agreement. The Partnership has paid property management fees based upon collected gross rental revenues for property management services in each of the nine months ended September 30, 1997 and 1996. Property management fees of approximately $118,000 and $121,000 were paid to affiliates of the General Partner for the nine months ended September 30, 1997 and 1996, respectively. These property management fees are included in operating expenses. The Partnership Agreement also provides for reimbursement to the General Partner and its affiliates for costs incurred in connection with the administration of Partnership activities. Reimbursements for services of affiliates of approximately $78,000 and $88,000 were paid to the General Partner and its affiliates for the nine months ended September 30, 1997 and 1996, respectively. Included in these reimbursements is approximately $1,000 and $5,000 in construction oversight costs for the nine months ended September 30, 1997 and 1996, respectively. For the period from January 1, 1996, to August 31, 1997, the Partnership insured its properties under a master policy through an agency and insurer unaffiliated with the General Partner. An affiliate of the General Partner acquired, in the acquisition of a business, certain financial obligations from an insurance agency which was later acquired by the agent who placed the master policy. The current agent assumed the financial obligations to the affiliate of the General Partner who receives payment on these obligations from the agent. The amount of the Partnership's insurance premiums that accrued to the benefit of the affiliate of the General Partner by virtue of the agent's obligations was not significant. NOTE C - COMMITMENT The Partnership is required to maintain working capital reserves for contingencies of not less than 5% of Net Invested Capital, as defined in the Partnership Agreement. In the event expenditures are made from these reserves, operating revenue shall be allocated to such reserves to the extent necessary to maintain the foregoing level. Cash and cash equivalents, tenant security deposits and investments, totaling approximately $1,591,000 are less than the reserve requirement of approximately $2,226,000 at September 30, 1997. The Partnership intends to replenish working capital reserves from cash flow from operations after consideration of any capital improvement needs of the properties. The working capital requirement must be met prior to any consideration for distributions to the partners. NOTE D - CHANGE IN STATUS OF NON-CORPORATE GENERAL PARTNER During the year ended December 31, 1991, the Partnership Agreement was amended to convert the General Partner interests held by the non-corporate General Partner, Consolidated Capital Group II ("CCG"), to that of a special Limited Partner ("Special Limited Partner"). The Special Limited Partner does not have a vote and does not have any of the other rights of a Limited Partner except the right to inspect the Partnership's books and records; however, the Special Limited Partner will retain the economic interest in the Partnership which it previously owned as general partner. ConCap Equities, Inc. ("CEI") became the sole general partner of the Partnership effective December 31, 1991. In connection with CCG's conversion, a special allocation of gross income was made to the Special Limited Partner in order to eliminate its tax basis negative capital account. After the conversion, the various Special Limited Partners transferred portions of their interests to CEI so that CEI now holds a .2% interest in all allocable items of income, loss and distribution. The difference between the Special Limited Partner's capital accounts for financial statement and tax reporting purposes is being amortized to the Limited Partners' capital account as the components of the timing differences, which created the balance, reverse. NOTE E - SALE OF PROPERTY On October 20, 1997, the Partnership sold Celina Plaza Apartments, located in El Paso, Texas, to an unaffiliated party, The Vandenburg Organization, a Texas corporation. The sales price of the property was $6,600,000 and the sale resulted in net proceeds of approximately $6,456,000, after payment of closing costs. The net proceeds were used to pay accrued taxes and to pay-off the mortgage debt secured by this property. Excess proceeds after such payments amounted to approximately $779,000 to the Partnership. The following unaudited pro-forma information reflects the operations of the Partnership for the three and nine months ended September 30, 1997 and 1996, as if Celina Plaza Apartments had been sold January 1, 1996. Proforma Results of Operations for the Three Months Ended Nine Months Ended September 30, September 30, 1997 1996 1997 1996 Revenues 389 423 1,213 1,249 Net income (108) (84) (166) (146) Net income per Unit of Depository Receipt (.59) (.46) (.91) (.80) ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION The Partnership's investment properties consist of two apartment complexes. The following table sets forth the average occupancy of the properties for the nine months ended September 30, 1997 and 1996: 1997 1996 Celina Plaza Apartments El Paso, Texas (1) 88% 91% Colony of Springdale Apartments Springdale, Ohio (2) 89% 92% (1) The General Partner attributes the decrease in occupancy to the heavily competitive market in El Paso. Subsequent to September 30, 1997, Celina Plaza Apartments was sold (See "Note E"). (2) The decline in occupancy at the Colony of Springdale Apartments property is attributable to increasing qualifying standards for residents. The Partnership realized a net loss of approximately $133,000 and $322,000 for the three and nine months ended September 30, 1997, respectively, compared to net losses of approximately $148,000 and approximately $323,000 for the three and nine months ended September 30, 1996, respectively. Although the net loss remained relatively stable for the nine months ended September 30, 1997, compared to the corresponding period of 1996, both total revenues and total expenses decreased in the three and nine months ended September 30, 1997, compared to the same periods in 1996. The decrease in revenues primarily resulted from decreased rental income due to decreased occupancy at the investment properties, as discussed above. Maintenance expense decreased due to various interior and exterior projects being completed at both investment properties in 1996. Also, increased cleaning, interior painting and contract repair costs were incurred in 1996 due to increased move-outs. Partially offsetting the decreased maintenance expenses for the three and nine months ended September 30, 1997, were increased operating costs primarily at the Colony of Springdale Apartments due to higher concessions being offered in an effort to increase occupancy. Also, maintenance salaries increased, which are included in operating expenses, due to additional personnel. Interest expense decreased as a result of reduced interest requirements on the wrap note secured by Celina Plaza Apartments. Interest payments are based on cash flow, which decreased in the first nine months of 1997, compared to the corresponding period in 1996. Included in maintenance expenses for the nine months ended September 30, 1997, is approximately $14,000 of major repairs and maintenance comprised primarily of window coverings and repairs to one unit at Celina Plaza Apartments due to minor fire damage, which was not covered by insurance. For the nine months ended September 30, 1996, approximately $47,000 of repairs and maintenance comprised primarily of major landscaping, swimming pool repairs, window coverings and exterior building improvements are included in maintenance expense. At September 30, 1997, the Partnership held unrestricted cash and cash equivalents of approximately $1,210,000 compared to approximately $1,485,000 at September 30, 1996. Net cash provided by operating activities decreased primarily due to an increase in other assets, which resulted from increases in prepaid insurance due to the down-payment that was required at the policy renewal in May 1997. This decrease was partially offset by a lesser decrease in other liabilities due to the timing of payments. Net cash used in investing activities increased due primarily to decreases in receipts from restricted escrows and due to no investment sales in 1997. These decreases in cash proceeds were partially offset by a decrease in property improvements and replacements. Net cash used in financing activities increased primarily due to an increase in payments of principal on mortgage notes. Additional principal payments totaling approximately $170,000 were paid on the mortgage note secured by Celina Plaza Apartments in order to obtain extensions on the indebtedness, which matured on July 1997 (See discussion below). As part of the ongoing business plan of the Partnership, the General Partner monitors the rental market environment of each of its investment properties to assess the feasibility of increasing rents, maintaining or increasing occupancy levels and protecting the Partnership from increases in expenses. As part of this plan, the General Partner attempts to protect the Partnership from the burden of inflation-related increases in expenses by increasing rents and maintaining a high overall occupancy level. However, due to changing market conditions, which can result in the use of rental concessions and rental reductions to offset softening market conditions, there is no guarantee that the General Partner will be able to sustain such a plan. The sufficiency of existing liquid assets to meet future liquidity and capital expenditure requirements is directly related to the level of capital expenditures required at the properties to adequately maintain the physical assets and other operating needs of the Partnership. Such assets are currently thought to be sufficient for any near-term needs of the Partnership. The mortgage indebtedness of approximately $9,900,000, net of discount, has maturity dates ranging from July 1997 to May 2001, at which time the properties will either be sold or the mortgages refinanced. The mortgage indebtedness of approximately $5,476,000, net of discount, secured by Celina Plaza Apartments, matured in July 1997. The General Partner initially obtained a sixty day extension, with the Partnership making a required payment of $113,000 towards the principal balance on this note. In addition to the sixty day extension which expired September 30, 1997, the Partnership exercised the first of two thirty day options offered, extending the note until October 30, 1997. Pursuant to the requirement of the thirty day option, the Partnership paid an additional principal payment of $57,000. Subsequent to September 30, 1997, the Partnership successfully closed on the sale of Celina Plaza Apartments. The property was sold for $6,600,000 and the sale resulted in net proceeds of approximately $6,456,000, after payment of closing costs (See "Note E"). No cash distributions were declared or paid during the first nine months of 1997 or 1996. Future cash distributions will depend on the levels of cash generated from operations, capital expenditure requirements, property sales and the availability of cash reserves. PART II - OTHER INFORMATION ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a)Exhibits. Exhibit 27, Financial Data Schedule is filed as an exhibit to this report. (b)Reports on Form 8-K. None filed during the three months ended September 30, 1997. Exhibit 10.19 Contract to Purchase and Sell Property made and entered into as of August 13, 1997, but effective October 20, 1997, by and between Consolidated Capital Properties VI, a California limited partnership, and The Vandenburg Organization, a Texas corporation regarding Celina Plaza Apartments. Exhibit 10.20 Assignment and assumption of Leases dated October 13, 1997, by and between Consolidated Capital Properties VI, a California limited partnership and The Vandenburg Organization, a Texas corporation, regarding Celina Plaza Apartments. Exhibit 10.21 Blanket Conveyance, Bill of Sale and Assignment dated October 13, 1997, by and between Consolidated Capital Properties VI, a California limited partnership and The Vandenburg Organization, a Texas corporation, regarding Celina Plaza Apartments. SIGNATURES In accordance with the requirements of the Exchange Act, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. CONSOLIDATED CAPITAL PROPERTIES VI By: CONCAP EQUITIES, INC. General Partner By: /s/William H. Jarrard, Jr. William H. Jarrard, Jr. President By: /s/Ronald Uretta Ronald Uretta Vice President/Treasurer Date: November 3, 1997 EX-27 2
5 This schedule contains summary financial information extracted from Consolidated Capital Properties VI 1997 Third Quarter 10-QSB and is qualified in its entirety by reference to such 10-QSB filing. 0000755908 CONSOLIDATED CAPITAL PROPERTIES VI 1,000 9-MOS DEC-31-1997 SEP-30-1997 1,210 0 20 0 0 0 16,776 7,701 11,147 0 9,900 0 0 0 628 11,147 0 2,434 0 0 2,756 0 623 (322) 0 (322) 0 0 0 (322) (1.77) 0 Registrant has an unclassified balance sheet. Multiplier is 1.
EX-10.19 3 CONTRACT TO PURCHASE AND SELL PROPERTY This Contract to Purchase and Sell Property ("Contract") is made and entered into as of August 18, 1997 ("Effective Date'), by and between CONSOLIDATED CAPITAL PROPERTIES VI, a California limited partnership ('Seller'), THE VANDENBURG ORGANIZATION, a Texas corporation d/b/a TVO Realty Partners ("Purchaser") and CHICAGO TITLE INSURANCE COMPANY ("Escrow Agent"). Purchaser desires to purchase and Seller desires to sell certain real property pursuant to the terms of this Contract. In consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I SALE OF THE PROPERTY SECTION 1.1 PROPERTY. Subject to the terms of this Contract, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, Seller's respective rights, titles and interests in and to all of the following described property (collectively, the "property"): (a) The land ("Land") located in El Paso, Texas more particularly described on Exhibit A hereto commonly known as Celina Plaza Apartments, together with all improvements and fixtures located on the Land ("Improvements"), and all rights, titles and interests of Seller appurtenant to the Land and Improvements, including, without limitation, all appurtenant easements, adjacent roads, highways and rights-of-way; (b) All tangible personal property of any kind ("Personalty") owned by Seller and attached to or located on the Land or Improvements; provided, however, the Personalty does not include computer software owned or leased by Seller's property manager; (c) Any leases or other agreements demising space in or providing for the use or occupancy of the Improvements or Land ("Tenant Leases"), and all unapplied deposits, whether security or otherwise ("Deposits"), paid by tenants ("Tenants") under the Tenant Leases, together with all collateral therefor, all guarantees by third parties of the agreements and obligations thereunder of Tenants and, except to the extent otherwise set forth in SECTION 8.6, all rentals, advance rentals, receivables, reimbursements and other items payable by Tenants; (d) All service contracts, warranties, guaranties and bonds in effect at Closing relating to the Land, the Improvements or the Personalty, to the extent the same are assignable ("Service Contracts"); (e) All certificates, permits, licenses, franchises, authorizations and approvals relating to the Property and/or the Personalty or the ownership, use, access, occupancy or operation thereof, running to or in favor of Seller or the Property and/or the Personalty, and which Purchaser hereafter elects to accept; and (f) All drawings, plans and specifications covering the Property and in Seller's possession; all rights to the name "Celina Plaza Apartments" with respect to the Property or any other project in the El Paso, Texas area, and all trademarks, trade names, service marks, registrations, logos, good will and other rights associated therewith (including the right to sue for past and present infringements thereof); all other intellectual property used in connection with the ownership and operation of the Property; all telephone numbers; all tenant files; all operating and maintenance files; and all books, records and other files which are used in connection with the ownership and operation of the Property and the conduct of the business of Seller relating to the Property. ARTICLE II PURCHASE PRICE SECTION 2.1 PURCHASE PRICE The total Purchase Price ("Purchase Price") to be paid by Purchaser to Seller for the Property shall be Six Million Six Hundred Thousand Dollars ($6,600,000). The Purchase Price shall be payable at the Closing in Current Funds (as defined in SECTION 3.1). ARTICLE III EARNEST MONEY DEPOSIT SECTION 3.1 AMOUNT AND TIMING. (a) Within three (3) business days after the Effective Date, Purchaser shall deliver to Chris Haynes, Esq. ("Haynes") $33,000 in cash or Current Funds (such deposit and all interest earned thereon shall be referred to as "Initial Earnest Money Deposit") to be held and disbursed in accordance with the terms, conditions and provisions of this Contract. Immediately upon receipt by Haynes of the Earnest Money Deposit, Haynes shall deliver written notice to Seller of such receipt via telefax in accordance with SECTION 13.1 of this Contract. If Purchaser fails to deposit the Initial Earnest Money Deposit with Haynes as herein provided, then this Contract shall automatically terminate and neither Seller nor Purchaser shall have any further obligations hereunder except that the provisions of SECTIONS 5.1.5 and 11.1 of this Contract shall survive the termination of this Contract. "Current Funds" shall mean wire transfers, certified funds or a cashier's check in a form acceptable to Escrow Agent which would permit Escrow Agent to immediately disburse such funds. (b) If Purchaser does not terminate this Contract pursuant to SECTION 5.2 of this Contract, then within one (1) business day following the end of the Inspection Period, Purchaser shall deliver to Escrow Agent $33,000 in cash or Current Funds (as defined in SECTION 3.1(A)) (such deposit and all interest earned thereon shall be referred to as "Additional Earnest Money Deposit") to be held and disbursed in accordance with the terms, conditions and provisions of this Contract. If Purchaser fails to deliver the Additional Earnest Money Deposit as herein provided, then such failure shall constitute a default of this Contract by Purchaser. (c) If Purchaser does not terminate this Contract pursuant to SECTION 5.2 of this Contract, then within one (1) business day following the end of the Inspection Period, Haynes shall deliver to Escrow Agent the Initial Earnest Money Deposit to be held by Escrow Agent in escrow, invested in an interest bearing account through a bank or financial institution approved by Purchaser, and to be applied or disposed of by Escrow Agent as provided in this Contract. If Haynes fails to deliver the Initial Earnest Money Deposit as herein provided, then such failure shall constitute a default of this Contract by Purchaser. (d) The Initial Earnest Money Deposit and Additional Earnest Money Deposit shall be hereafter referred to as the "Earnest Money Deposit". SECTION 3.2 APPLICATION AND INTEREST. If the purchase and sale contemplated hereunder is consummated, then the Earnest Money Deposit shall be applied to the Purchase Price at Closing. In all other events, the Earnest Money Deposit shall be disposed of by Escrow Agent as provided in this Contract. The Earnest Money Deposit shall be invested by Escrow Agent in a manner reasonably acceptable to Purchaser and Seller. All interest earned on the Earnest Money Deposit is part of the Earnest Money Deposit, to be applied or disposed of in the same manner as the Earnest Money Deposit under this Contract. ARTICLE IV TITLE AND SURVEY SECTION 4.1 TITLE COMMITMENT. Within five (5) business days following the Effective Date, Seller shall deliver to Purchaser a copy of the existing title insurance policy in Seller's possession. Not later than ten (10) days after the Effective Date, Purchaser shall obtain a current ALTA Commitment for Title Insurance ("Title Commitment") from a title company of Purchaser's choice ("Title Company"). The Title Commitment shall set forth the state of title to the Property, including a list of conditions or exceptions to title affecting the Property that would appear in an Owner's Policy of Title Insurance, if one were issued. Purchaser shall pay all costs associated with obtaining the Commitment and the Owner's Policy. SECTION 4.2 SURVEY. Within five (5) business days following the Effective Date, Seller shall deliver to Purchaser a copy of the most complete survey of the Land and Improvements in Seller's possession. Not later than ten (10) days after the Effective Date, Purchaser shall have the option to obtain an updated Survey (any such updated or new survey hereinafter referred to as the "Survey"). Purchaser shall pay all costs associated with updating and recertifying the existing Survey . SECTION 4.3 REVIEW OF TITLE AND SURVEY. Purchaser shall have until the end of the Inspection Period to notify Seller in writing of any objections Purchaser has to any matters affecting title to the Property, including any matters shown or referred to in the Title Commitment or on the Survey. Any title encumbrances, exceptions or other matters to which Purchaser does not object in writing within the aforementioned period shall be deemed to be permitted exceptions to the status of Seller's title (such encumbrances, exceptions or other matters, together with such other matters permitted pursuant to other provisions of this Contract, shall be referred to as the "Permitted Exceptions"). SECTION 4.4 OBJECTIONS TO STATUS OF TITLE AND SURVEY. Subject to the terms hereof, Seller shall be obligated to deliver marketable title to Purchaser. If Purchaser objects to any matter affecting title to the Property within the time set forth in SECTION 4.3, then Seller shall have fifteen (15) days to notify Purchaser whether or not Seller will cure, prior to Closing, any such title objection. If Seller notifies Purchaser that it elects not to cure any such objection, then Purchaser may, at its option exercisable in writing within seven (7) days following the date of receipt by Purchaser of written notice from Seller stating that Seller is unable or unwilling to cure such objections, either (a) accept such title as Seller can deliver, in which case all exceptions to title which Seller has stated it will not cure shall be deemed to be Permitted Exceptions, or (b) terminate this Contract by notice in writing to Seller in which event, subject to the provisions of SECTION 10.1 of this Contract, Escrow Agent shall Return the Earnest Money Deposit. If Purchaser fails to notify Seller, within such seven (7) day period, that Purchaser has elected to proceed under either subpart (a) or (b) of the immediately preceding sentence, then Purchaser shall be deemed to have elected to proceed under subpart (a), and this Contract shall remain in full force and effect. If Seller notifies Purchaser that it elects to cure any such objections but is unable to cure such objections by Closing or if Seller fails to notify Purchaser of its intentions with respect to such objections and fails to cure such objections by Closing, then Purchaser may, at its option, either (x) accept such title as Seller can deliver in which case the parties shall proceed with Closing and all exceptions to title which are not removed shall be deemed to be Permitted Exceptions, or (y) terminate this Contract by notice in writing to Seller at Closing, in which event Escrow Agent shall Return the Earnest Money Deposit. -Return the Earnest Money Deposit" shall mean Escrow Agent shall return the Earnest Money to Purchaser and neither party shall have any further rights, duties or obligations hereunder except as otherwise provided in SECTIONS 5.1.5 and 11.1 hereof. SECTION 4.5 OTHER PERMITTED EXCEPTIONS. The Permitted Exceptions shall include those matters which become Permitted Exceptions pursuant to SECTIONS 4.3 and 4.4 above and, in addition, the following: (a) the Tenant Leases; (b) taxes and assessments for the year in which the Closing occurs and subsequent years; (c) liens and encumbrances arising after the date hereof to which Purchaser consents in writing; and (d) any liens or encumbrances of a definite or ascertainable amount and caused by Seller, provided that Seller causes such liens or encumbrances to be cured or discharged from the public record at closing, or to be insured over by the Title Company, so that such liens or encumbrances do not appear as an exception in the Owner's Policy of Title Insurance issued to Purchaser pursuant to the Title Commitment (the "Owner's Policy"). ARTICLE V INSPECTION BY PURCHASER SECTION 5.1 INSPECTION PERIOD. 5.1.1Purchaser shall have a period of time commencing on the Effective Date and expiring at 5:00 p.m., El Paso, Texas time on the twenty first (21st) day thereafter (the "Inspection Period") within which to examine the Property. During the Inspection Period, Seller shall allow Purchaser and Purchaser's agents access to the Property during normal business hours to (i) conduct soil and engineering, hazardous waste (including asbestos and formaldehyde), marketing, feasibility, zoning and other studies or tests and to otherwise determine the feasibility of the Property for Purchaser's intended use and (ii) review and/or photocopy at Property Manager's office during normal business hours, all currently effective Tenant leases, lease amendments, improvement agreements, and any other currently effective agreements relating to the use or occupancy of the Property, which documents Property Manager will make available to Purchaser for this purpose. Notwithstanding the foregoing, (a) the costs and expenses of Purchaser's investigation shall be borne solely by Purchaser, (b) prior to the expiration of the Inspection Period, Purchaser shall restore any damage to the Property caused by Purchaser or its agents to the condition which existed prior to Purchaser's entry thereon and investigation thereof, (c) Purchaser shall not unreasonably interfere with, interrupt or disrupt the operation of Seller's business on the Property, and such access by Purchaser and/or its agents shall be subject to the rights of Tenants under Tenant Leases, (d) Purchaser shall not permit any mechanic's or materialman'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 its agents in connection with any studies or tests conducted pursuant to this Section 5.1, (e) Purchaser shall have the right to enter vacant units and, with the consent of the respective tenants, leased units, provided that Purchaser shall give notice to Seller forty-eight (48) hours prior to entry onto the Property and shall permit Seller to have a representative present during all investigations and inspections conducted with respect to the Property, (f) Seller agrees Property Manager and maintenance supervisor will be available to answer questions which Purchaser may reasonably ask concerning the Property, and (g) Purchaser shall take all reasonable actions and implement all reasonable protections necessary to ensure that all actions taken in connection with the investigations and inspections of the Property, and all equipment, materials and substances generated, used or brought onto the Property in the course of such investigations and inspections pose no material threat to the safety of persons or the environment and cause no damage to the Property or other property of Seller or other persons. 5.1.2If following the effective date of the Title Commitment (a) any additional title encumbrances (other than as caused by Purchaser) become effective against the Property, which Seller does not cause to be cured or insured over so that such matters do not appear as an exception in the Owner's Policy or (b) a survey update reveals any new adverse matters which Seller does not cure by Closing, then Purchaser may terminate this Contract by delivery of written notice to Seller given in accordance with the provisions of SECTION 13.1, in which event, subject to the provisions of SECTION 10.1, Escrow Agent shall Return the Earnest Money Deposit. Seller shall cause any such encumbrance of a monetary nature to be satisfied or discharged from the public record at Closing. 5.1.3All information made available by Seller to Purchaser in accordance with this Contract or obtained by Purchaser in the course of its investigations shall be treated as confidential information by Purchaser (except to the extent Purchaser is required by law or legal process to disclose such information, or reasonably needs to disclose such information in order to give information to private investors for the transaction contemplated herein). Prior to Closing, Purchaser shall use reasonable efforts to prevent its agents and employees from divulging such information to any third parties except as reasonably necessary to third parties engaged by Purchaser for the limited purpose of analyzing and investigating such information for the purpose of consummating the transaction contemplated by this Contract, including Purchaser's attorneys and representatives, prospective lenders, investors and engineers. 5.1.4Purchaser shall have the right to reject any Service Contracts (except the laundry contract, which is hereby deemed accepted by Purchaser) during the Inspection Period. Any and all Service Contracts not rejected by Purchaser before the end of the Inspection Period shall be deemed accepted by Purchaser, except for the Management Agreement which shall be terminated at Closing without penalty to Purchaser. Any and all Service Contracts accepted or deemed accepted by Purchaser shall be assumed by Purchaser at Closing. 5.1.5Purchaser shall indemnify, defend and hold harmless Seller and its general and limited partners and each of their affiliates and their respective affiliates' officers, directors, employees, agents and representatives from and against any claims, liabilities, causes of action, damages, liens, losses, fines, fees and expenses (including, without limitation, attorneys' fees and expenses) incident to, resulting from or in any way arising out of any intentional, reckless or negligent infliction of injury or distress to persons or damage to property caused by Purchaser or its agents on the Property. The agreements contained in this SECTION 5.1.5 shall survive the Closing forever (subject to any applicable statutes of limitation) and shall not be merged therein and shall also survive any termination of this Contract. SECTION 5.2 APPROVAL OF INSPECTIONS. If Purchaser determines at any time prior to the end of the Inspection Period that any aspect of the Property (except for the Permitted Exceptions) is not satisfactory to Purchaser, then Purchaser may terminate this Contract by delivery of written notice to Seller within the Inspection Period given in accordance with the provisions of SECTION 13.1, in which event, subject to the provisions of SECTION 10.1 of this Contract, Escrow Agent shall Return the Earnest Money Deposit. If Purchaser does not timely deliver to Seller written notice of termination within the Inspection Period, the conditions of this SECTION 5.2 shall be deemed satisfied, and Purchaser may not thereafter terminate this Contract pursuant to this SECTION 5.2. SECTION 5.3 MATTERS TO BE DELIVERED BY SELLER. No later than five (5) business days from the Effective Date, Seller shall deliver to Purchaser the following items (collectively, the "Submission Matters"): (a) A copy of the form used for Tenant Leases with respect to the Property; (b) An inventory of all Personalty current to within thirty (30) days prior to the Effective Date; (c) Copies of any and all Service Contracts in Seller's possession relating to the ownership and operation of the Property, as identified on SCHEDULE 5.3(C); (d) Copies of all warranties and guarantees in Seller's possession relating to the Property, or any part thereof, or to the Personalty owned by Seller and located on or used in connection with the Property; (e) Copies of all plans and specifications in Seller's possession with respect to the Property and copies of all licenses and permits in Seller's possession or control with respect to the ownership and operation of the Property, including building permits and certificates of occupancy; (f) A certificate of hazard, liability and other insurance policies held by Seller with respect to the Property; and (g) Copies of the most recent real estate and personal property tax statements in Seller's possession applicable to the Property (including, if applicable, any rental tax and special assessment statements). (h) The Rent Roll to be attached hereto as SCHEDULE 6.2(E). (i) A copy of the most recent Phase 1 Environmental Site Assessment in Seller's possession ("Existing Phase 1"). ARTICLE VI REPRESENTATIONS AND WARRANTIES; DISCLAIMERS AND WAIVERS SECTION 6.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and warrants to Seller as of the date hereof (and Purchaser shall reassert in writing to Seller as of the Closing Date) as follows, which representations and warranties shall survive the Closing as provided herein: (1) Purchaser is a corporation, duly authorized and validly existing under the laws of the State of Texas; (2) Purchaser has full right and authority to enter into this Contract and to consummate the transactions contemplated herein; (3) each of the persons executing this Contract on behalf of Purchaser is authorized to do so; and (4) this Contract constitutes a valid and legally binding obligation of Purchaser, enforceable in accordance with its terms. Provided, each of the representations and warranties of Purchaser set forth in this SECTION 6.1(A) shall survive the Closing for only nine (9) months except as to any such representation or warranty as to which Seller has within such nine (9) month period asserted with a reasonable basis a claim against Purchaser. SECTION 6.2 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to Purchaser as of the date hereof as follows, provided, Seller shall also certify to Purchaser at Closing that there has been no material change in any of the following representations and warranties, and each of the representations and warranties of Seller below shall survive the Closing for only nine (9) months except as to any such representation or warranty as to which Purchaser has within such nine (9) month period asserted with reasonable basis a claim against Seller: (a) Seller (i) is a duly organized and validly existing limited partnership under the laws of the State of California; (ii) is duly bound by the actions and execution hereof by the general partner of Seller who executed this Contract; (iii) has the authority and power to enter into this Contract and to consummate (including the execution of all necessary documents and contracts) the transaction provided for herein; (iv) is the owner of the landlord's interest in the Tenant Leases; and (v) to the extent required to own, operate and sell the Property, is authorized to own and transfer real estate under the laws of the State of Texas and to otherwise transact and conduct business in the State of Texas. (b) The execution and delivery by Seller of, and the performance and compliance by Seller with the terms and provisions of this Contract do not violate any of the terms, conditions or provisions of (i) any judgment, order, injunction, decree, regulation or ruling of any court or other governmental authority to which Seller is subject, or (ii) any agreement or contract listed on any Schedule to this Contract or any other agreement or contract to which Seller is a party or to which it or the Property is subject (except for the agreements listed on any Schedule to this Contract, as the terms of such agreements speak for themselves). (c) Seller is the sole owner of, and has title to, the Property free and clear of all liens, encumbrances, claims and demands, other than the Permitted Exceptions. Seller has not entered into any agreement to sell, mortgage, lease (other than to residential tenants for personal occupancy) or otherwise encumber or dispose of its interest in the Property or any part thereof, except for the Permitted Exceptions and this Contract. (d) (I) As of the date of this Contract, Seller has not received any notice of (nor to its knowledge are) any actions, suits, proceedings or claims pending or threatened against or affecting Seller (in respect of the Property), at law or equity or before or by any governmental authority. Provided, if Seller is unable to restate this representation at Closing because such a matter has arisen affecting Seller (but which is not a lien against the Property), then such inability to restate shall not constitute a breach of this Contract or a failure of an obligation hereunder so long as Seller is able, despite such action, suit, proceeding or claim to convey good and marketable title to the Property to Purchaser. (II) As of the date of this Contract, Seller has not received any notice of (nor to its knowledge are there) any actions, suits, proceedings or claims which constitute a lien or encumbrance on the Property. (e) All of the information contained in the Rent Roll, including, without limitation the tenants and occupants of the Property as of the date of the "Rent Roll" to be attached hereto as SCHEDULE 6.2(E), the space leased, the Lease expiration dates, the security deposits, arrearages, the rentals and the concessions, if any, granted to the tenants is substantially true and complete. (f) Seller is not aware of any existing landlord defaults under the Tenant Leases. (g) To the actual knowledge of Seller, without independent investigation or inquiry, and except for such matters as are disclosed in the Existing Phase I or as may be disclosed by the environmental report to be performed by Purchaser or its agents during the Inspection Period, (i) no Hazardous Substances exist on the Property and no leak, spill, release or discharge of Hazardous Substances has occurred on the Property, and (ii) neither the Property nor any land adjacent to the Property is in violation or subject to any existing investigation by any governmental authority under any applicable federal, state or local law, regulation or ordinance pertaining to Hazardous Substances or other environmental matters. "Hazardous Substances" means all chemical substances, asbestos, oil, petroleum products, formaldehyde, PCB's, toxic, carcinogenic, radioactive or hazardous waste or materials, existing in such concentrations or amounts as would require removal or remediation under applicable federal, state or local laws, regulations or ordinances, and also shall include any underground storage tanks. Simultaneously herewith, Seller and Purchaser shall complete and execute a "Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards", the form of which is attached hereto as Schedule 6.2(g). SECTION 6.3 NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF SELLER. Except as expressly specified in this Contract or the special warranty deed or other documents to be delivered at closing, Seller has not made, and Seller hereby specifically disclaims, any warranty, guaranty or representation, oral or written, past, present or future, of, as to, or concerning, (a) the nature and condition of the Property, including, without limitation, the water, soil and geology, and the suitability thereof and of the Property for any and all activities and uses which Purchaser may elect to conduct thereon; (b) the existence, nature and extent of any right-of-way, lease, right to possession or use, lien, encumbrance, license, reservation, condition or other matter affecting title to the Property; and (c) whether the use or operation of the Property complies with any and all laws, ordinances or regulations of any government or other regulatory body. Except as expressly specified in this Contract or the special warranty deed or other documents to be delivered at Closing, PURCHASER AGREES TO ACCEPT THE PROPERTY, AND ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE BY SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS. EXCEPT AS EXPRESSLY SPECIFIED IN THIS CONTRACT OR THE SPECIAL WARRANTY DEED OR OTHER DOCUMENTS TO BE DELIVERED AT CLOSING, PURCHASER EXPRESSLY ACKNOWLEDGES THAT SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET FORTH IN THE SPECIAL WARRANTY DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY (EXCEPT TO THE EXTENT SET FORTH IN SECTION 6.2(e)) OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PREMISES WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SPECIFIED IN ANY WRITTEN INSTRUMENT DELIVERED BY SELLER TO PURCHASER INCLUDING, WITHOUT LIMITATION, THIS CONTRACT, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW REGARDING OR WITH RESPECT TO ANY SUCH INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED OR TO BE PROVIDED BY SELLER REGARDING THE PROPERTY. Further, and without in any way limiting any other provision of this Contract, except as expressly specified in this Contract, Seller has made and makes no representation, warranty or guaranty, and hereby specifically disclaims any warranty, guaranty or representation, oral or written, past, present or future, with respect to the presence or disposal on or beneath the Property (or any parcel in proximity thereto) of Hazardous Substances and shall have no liability to Purchaser therefor (except for a breach of Seller's representations or warranties set forth in SECTION 6.2(I). Without limitation of the preceding sentence, except as expressly specified in this Contract, Seller specifically disclaims any representation, warranty or guaranty regarding the accuracy of any environmental reports which may be included within the Submission Matters. By acceptance of this Contract and the special warranty deed to be delivered by Seller at the Closing, Purchaser acknowledges that Purchaser's opportunity for inspection and investigation of the Property (and other parcels in proximity thereto) will be adequate to enable Purchaser to make Purchaser's own determination with respect to the presence or disposal on or beneath the Property (and other parcels in proximity thereto) of Hazardous Substances. SECTION 6.4 NO RELIANCE ON DOCUMENTS. Except as expressly stated herein, Seller makes no representation or warranty as to the truth, accuracy or completeness of any materials, data or information (including, without limitation, the Submission Matters) delivered by Seller, or its general partner or their respective affiliates or representatives to Purchaser in connection with the transaction contemplated hereby. Except as expressly stated herein, Purchaser acknowledges and agrees that all materials, data and information (including, without limitation, the Submission Matters) delivered by Seller, its general partner or their respective affiliates or representatives to Purchaser in connection with the transaction contemplated hereby are provided to Purchaser as a convenience only and that any reliance on or use of such materials, data or information by Purchaser shall be at the sole risk of Purchaser. SECTION 6.5 EFFECT AND SURVIVAL OF DISCLAIMERS. Seller and Purchaser agree that the provisions of SECTIONS 6.3 and 6.4 shall survive Closing and the termination of this Contract forever. ARTICLE VII CONDITIONS PRECEDENT TO PURCHASER'S AND SELLER'S PERFORMANCE SECTION 7.1 CONDITIONS TO PURCHASER'S OBLIGATIONS. Purchaser's obligation under this Agreement to purchase the Property is subject to the fulfillment of each of the following conditions (any or all of which may be waived by Purchaser): (a) Seller shall be ready, willing and able to deliver title to the Property in accordance with the terms and conditions of this Contract; (b) The representations and warranties of Seller contained herein shall be true, accurate and correct as of the Closing Date; and (c) Seller shall have delivered all the documents and other items required pursuant to SECTION 8.2(A), and shall have performed, in all material respects, all other covenants, undertakings and obligations, and complied with all conditions required by this Contract to be performed or complied with by Seller at or prior to the Closing. If any of the above conditions are not satisfied by Closing, then Purchaser may terminate this Contract in accordance with SECTION 5.2(B). SECTION 7.2 CONDITIONS TO SELLER'S OBLIGATIONS. Seller's obligation under this Contract to sell the Property to Purchaser is subject to the fulfillment of each of the following conditions (all or any of which may be waived by Seller): (a) the representations and warranties of Purchaser contained herein shall be true, accurate and correct as of the Closing Date; (b) Purchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in SECTION 8.2(B), and shall have performed, in all material respects, all other covenants, undertakings and obligations, and complied with all conditions required by this Contract to be performed or complied with by Purchaser at or prior to the Closing, time being of the essence for all purposes; and (c) Purchaser shall have delivered all the documents and other items required pursuant to SECTION 8.2(B), and shall have performed, in all material respects, all other covenants, undertakings and obligations, and complied with all conditions required by this Contract to be performed or complied with by Purchaser at or prior to the Closing ARTICLE VIII CLOSING SECTION 8.1 TIME AND PLACE. The consummation of the purchase and sale of the Property ("Closing") shall take place at Escrow Agent's office in El Paso, Texas on the date which is no later than thirty (30) days following the end of the Inspection Period. Notwithstanding the above, each party will reasonably cooperate with the other party in accomplishing the Closing by mail using appropriate escrows, if either party so requests. SECTION 8.2 ITEMS TO BE DELIVERED AT THE CLOSING. (a) SELLER. At the Closing, Seller shall deliver, or cause to be delivered, to Purchaser each of the following items: (i) A Special Warranty Deed duly executed and acknowledged by Seller in the form attached hereto as Exhibit B. (ii) An Assignment and Assumption of Leases ("Assignment of Leases") duly executed and acknowledged by Seller in the form attached hereto as Exhibit C. (iii) A Blanket Conveyance, Bill of Sale and Assignment ("Bill of Sale") duly executed by Seller in the form attached hereto as Exhibit D. (iv) All keys and master keys to all locks located on the Property that are in Seller's possession. (v) All original Tenant Leases that are in Seller's possession. (vi) An executed form letter to the Tenants regarding the sale of the Property ("Notice Letters") in the form attached hereto as Exhibit F. (vii)All original Service Contracts relating to the Property that are in Seller's possession. (viii)A Non-Foreign Affidavit in the form attached hereto as Exhibit E. (ix) Such resolutions and certificates of Seller or its partners reasonably required by the Title Company as to the authority of the persons signing on behalf of Seller to consummate this Contract. (x) A rent roll prepared with respect to the Property in the form attached hereto as SCHEDULE 6.2(E) which shall be certified, to Seller's knowledge, as being true and correct as of a date not more than three (3) days prior to Closing. (xi) At the Property, all tenant files and other files which are used in connection with the ownership and operation of the Property or any part thereof and the conduct of the business of Seller relating to the Property or any part thereof. (xii)Duly executed closing statement. (xiii)Seller's duly executed certificate of reaffirmation and remaking dated as of the Closing Date, confirming that the warranties and representations of Seller as made herein are materially true and correct as of the Closing Date. (xiv)A credit on the closing statement to Purchaser in the amount of all unapplied deposits held and all advance rentals received under Tenant Leases, together with a certified list of each Tenant who has made such a deposit or advance rental and the amount thereof. (xv) A certificate from the Manager to the effect that the Management Agreement has been terminated and that the Manager has no claim whatsoever against Purchaser and the Property or any part thereof under or in connection with the Management Agreement, the agreements and obligations thereunder or otherwise. (b) PURCHASER. At the Closing, Purchaser shall deliver to Seller each of the following items: (i) The cash portion of the Purchase Price in Current Funds. (ii) The Assignment of Leases, duly executed and acknowledged by Purchaser. (iii)Such additional funds in cash or Current Funds, as may be necessary to cover Purchaser's share of the closing costs and prorations hereunder. (iv) Evidence satisfactory to the Title Company that the person or persons executing this Contract and the closing documents on behalf of Purchaser have full right, power and authority to do so. (v) The Notice Letters duly executed by Purchaser. SECTION 8.3 COSTS OF CLOSING. The costs of the escrow fees of Escrow Agent (if any) shall be shared equally by Purchaser and Seller. Purchaser shall pay for the Title Policy, an updated Survey, and the costs of recording the Special Warranty Deed. All other expenses incurred by Seller and Purchaser with respect to the Closing, including, but not limited to, the attorneys' fees and costs and expenses incurred in connection with negotiating, preparing and closing the transaction contemplated by this Contract, shall be borne and paid exclusively by the party incurring such expense. SECTION 8.4 PRORATIONS. 8.4.1All normal and customarily proratable items, including, without limitation, rents, operating expenses and other expenses and fees, and payments relating to any agreements affecting the Property which survive the Closing, shall be prorated as of the Closing Date, Seller being charged and credited for all of same attributable to the period up to, and including, the day prior to the Closing Date (and credited for any amounts paid by Seller attributable to the period thereafter) and Purchaser being responsible for, and credited or charged, as the case may be, for all of same attributable to the period on and after the Closing Date. 8.4.2All unapplied Deposits under Tenant Leases in the possession of Seller, if any, shall be transferred (or credited) by Seller to Purchaser at the Closing. There shall be no application of security deposits to unpaid rent unless the tenant has vacated without paying Rent. 8.4.3Any real estate ad valorem or similar taxes for the Property, or any installment of assessments payable in installments which installment is payable in the year of Closing and those which are attributable to the calendar year in which the Closing occurs (due and payable in a succeeding calendar year), shall be prorated to the date of Closing, based upon actual days involved. In connection with the proration of real property taxes or installments of assessments, such proration shall be based upon the assessed valuation and tax rate figures for the year in which the Closing occurs to the extent the same are available; provided, if 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, then the proration shall be based upon the amounts from the preceding year. In such event, the parties shall reprorate such amounts within thirty (30) days after the actual bills are received by Purchaser. The proration shall be final and unadjustable except as provided in the following paragraph. If the Property has been assessed for property tax purposes at such rates as would result in "roll back" taxes upon the changes in land usage or ownership of the Property, then Seller shall pay all such taxes and hereby indemnifies, holds harmless and agrees to defend Purchaser from and against any and all causes of action, expenses, fines and liabilities for or relating to such taxes. 8.4.4Prorations should be governed by the following additional provisions: (a) Utilities, if any, payable by Seller, shall be prorated. Seller shall obtain meter readings on the Closing Date or the day immediately preceding the Closing Date ("Proration Date"), and if such readings are obtained, there shall be no proration of such items and Seller shall pay the bills therefor for the period through the Proration Date, and Purchaser shall pay the bills therefor for the period subsequent to the Proration Date as and when rendered. If Seller is unable to obtain meter readings as of the Proration Date, utilities shall be prorated at the Proration Date based upon the most recent utility bills, adjusted for seasonality (such adjustment being reasonably acceptable to both parties), and reprorated upon issuance of the actual bills. In addition, if there are any utility charges submetered to Tenants and payable by them directly to Seller, Seller shall use reasonable efforts to obtain readings thereof at the Closing Date, and such items shall be prorated in mode and manner as with respect to rents. Provided, however, Seller may have utility service at the Property terminated in accordance with SECTION 8.5. (b) Prepaid and unpaid expenses and charges respecting utilities and all other expenses incurred in the operation of the Property shall be prorated at and as of the Closing Date. (c) In the case of any charges payable by Tenants to Seller applicable to periods of time ending before the Closing Date but to become payable thereafter when bills are rendered (such as service charges, supply charges and utility charges), Seller shall after settlement prepare and promptly deliver to Purchaser the information necessary to prepare the bills to the tenants. Seller warrants and represents that such information will be true, complete and correct. All such charges shall be paid to Purchaser and adjusted in the same manner as provided herein. Except as otherwise provided herein, prorations shall be made as of the end of business on the day prior to the Closing Date. The provisions of this SECTION 8.4 shall survive the Closing and the termination of this Contract forever. Except for those items for which this Contract specifically provides for reprorations, all prorations shall be considered final and absolute as of Closing. Those items which specifically require reproration in accordance with the terms hereof, upon the tendering from the "owing" party to the "owed" party of the amounts due, shall be considered final and absolute. SECTION 8.5 POSSESSION AND CLOSING. Possession of the Property shall be delivered to Purchaser by Seller at the Closing, subject to the Permitted Exceptions and the rights of the Tenants. Purchaser shall make its own arrangements for the provision of public utilities to the Property and Seller shall terminate its Contracts with such utility companies that provide services to the Property as of the end of business on the Closing Date. SECTION 8.6 DELINQUENT RENT. (a) APPLICATION OF DELINQUENT RENT. If on the Closing Date any Tenant is in arrears in the payment of any rent under any Tenant Lease (the "Delinquent Rent") payable by it, any Delinquent Rent received by Purchaser and Seller from such Tenant after the Closing shall be applied to amounts due and payable by such Tenant during the following periods in the following order of priority: (A) first, to reimburse the party who made the collection effort for attorneys' fees and costs and expenses expended in connection with the collection thereof and to the Delinquent Rent due such party; and (B) second, to the Delinquent Rent owed to the other party. The provisions of this SECTION 8.6(A) shall survive the Closing and the termination of this Contract forever. (b) COLLECTION OF DELINQUENT RENT. Purchaser shall have no obligation to collect past due rentals and other amounts from Tenants after the Proration Date. Seller retains its rights in and to such past due rentals, but shall not disturb or otherwise interfere with any Tenant in its occupancy and use and enjoyment of its demised premises. ARTICLE IX CONDEMNATION OR CASUALTY SECTION 9.1 CONDEMNATION. (a) If all or any Significant Portion (as defined in SECTION 9.1(B)) of the Property is condemned or taken by eminent domain or conveyed by deed in lieu thereof, or if any condemnation proceeding is commenced for all or any Significant Portion of the Property, prior to Closing, then Purchaser may elect to terminate this Contract by written notice thereof to Seller within fifteen (15) days after Purchaser receives notification of the condemnation, taking or deed in lieu or institution of such condemnation proceeding (which notice Seller shall deliver to Purchaser within ten (10) days of Seller's receipt thereof). If Purchaser does not terminate this Contract pursuant to this SECTION 9.1(A), then both parties shall proceed to close the transaction contemplated herein pursuant to the terms hereof, in which event Seller shall, except as limited in SECTION 9.1(B) hereof, deliver to Purchaser at the Closing any proceeds actually received by Seller attributable to the Property from such condemnation, eminent domain proceeding or deed in lieu thereof (except for proceeds previously used to restore or repair the Property ) and assign its interest in and to any such proceeds, and there shall be no reduction in the Purchase Price. (b) For purposes of SECTION 9.1(A), "Significant Portion" of the Property shall be deemed to be any portion of the Property with either a fair market value or replacement cost in an amount equal to or greater than $150,000. Notwithstanding anything to the contrary contained in SECTION 9.1(A), if Purchaser has not timely elected to terminate in accordance with SECTION 9.1(A), and if the proceeds payable with respect to the Property as a result of condemnation exceed the Purchase Price for the Property, then the portion of such proceeds in excess of the Purchase Price shall be paid to Purchaser at the Closing. The foregoing provision shall survive the Closing and the termination of this Contract forever. (c) If less than a Significant Portion of the Property is condemned, taken by eminent domain, conveyed by deed in lieu thereof or is the subject of a condemnation proceeding, then neither party shall have the right to terminate this Contract pursuant to this SECTION 9.1, but Seller shall deliver to Purchaser at Closing any proceeds actually received by Seller attributable to the Property from such condemnation or eminent domain proceeding or deed in lieu thereof, and assign its interest in and to such proceeds to Purchaser, and there shall be no reduction of the Purchase Price. SECTION 9.2 CASUALTY. (a) If all or any Substantial Portion (as defined in SECTION 9.2(B)) of the Property shall be damaged or destroyed by fire or other casualty prior to Closing, then Purchaser may terminate this Contract by written notice thereof to Seller within fifteen (15) days after Purchaser receives notification of the casualty (which notice Seller shall deliver to Purchaser within ten (10) days of Seller's receipt thereof). If Purchaser does not terminate this Contract as aforesaid, then both parties shall proceed to close the transaction contemplated herein pursuant to the terms hereof, in which event Seller shall, except as limited in SECTION 9.2(B) hereof, deliver to Purchaser at the Closing any insurance proceeds actually received by Seller attributable to the Property from such casualty (except for proceeds previously used to repair the Property or held by or paid to the lender) and assign to Purchaser all of Seller's right, title and interest in and to any claims which Seller may have under the insurance policies covering the Property, and Purchaser shall receive a proration credit at Closing in the aggregate amount of any deductible or self-insurance and there shall be no reduction in the Purchase Price. In addition, Seller shall deliver to Purchaser at Closing any proceeds from its loss of rents insurance policy which are attributable to the time period after Closing and Seller shall assign its rights to receive any such loss of rents insurance proceeds after Closing. Provided, however, if the payment of such proceeds by the company writing the loss of rents insurance policy is contingent upon continuation of the payment of premiums after Closing, then Purchaser shall be responsible for such payments. Seller shall also assign to Purchaser at Closing any construction contracts for the repair of such damage to which Seller is a party. If less than a Substantial Portion of the Property shall be damaged or destroyed by fire or other casualty prior to Closing, then the parties shall proceed in accordance with the second sentence in this SECTION 9.2(A). (b) For the purposes of SECTION 9.2(A), a "Substantial Portion" of the Property shall be deemed to be any portion of the Property with either a fair market value or replacement cost in an amount equal to or greater than $150,000. Notwithstanding anything in SECTION 9.2(A) to the contrary, if Purchaser has not timely elected to terminate in accordance with SECTION 9.2(A), and if the proceeds payable with respect to the Property as a result of casualty exceed the Purchase Price for the Property, then the portion of such proceeds in excess of the Purchase Price shall be paid to Purchaser at the Closing. The foregoing provision shall survive the Closing and the termination of this Contract forever. ARTICLE X DEFAULTS AND REMEDIES SECTION 10.1 DEFAULT BY PURCHASER. If Seller is not in default hereunder and Purchaser refuses or fails to consummate the Closing under this Contract for reasons other than as expressly set forth in SECTION 4.4, SECTION 5.2, or ARTICLE IX hereof or other than due to a failure of a condition precedent to Purchaser's obligation to close as set forth in ARTICLE VII hereof, then Seller may terminate this Contract in which event neither party shall have any further rights, duties, or obligations hereunder except as provided in SECTIONS 5.1.5 and 11.1 hereof, and, as its sole and exclusive remedy for Purchaser's failure to close, Seller shall be entitled to receive and retain the Earnest Money Deposit as liquidated damages (Seller and Purchaser hereby acknowledging that the amount of damages in the event of Purchaser's default is difficult or impossible to ascertain but that such amount is a fair estimate of such damage). Notwithstanding the above provisions contained in this SECTION 10.1, if Purchaser breaches its representations set forth in SECTIONS 5.1.6, 5.1.7, 6.1(A) or (B) and if the Closing does not occur for any reason, other than Seller's default, then Seller shall be entitled to receive and retain the Earnest Money Deposit as liquidated damages (Seller and Purchaser hereby acknowledging that the amount of damages in the event of Purchaser's default is difficult or impossible to ascertain but that such amount is a fair estimate of such damage). SECTION 10.2 DEFAULT BY SELLER. If Purchaser shall not be in default hereunder and if Seller refuses or fails to consummate the Closing under this Contract other than due to a termination by Seller permitted hereunder or a failure of a condition precedent to Seller's obligation to close as set forth in ARTICLE VII, then Purchaser may, at Purchaser's sole option, as its sole and exclusive remedy, either (a) terminate this Contract whereupon Escrow Agent shall Return the Earnest Money Deposit; or (b) enforce specific performance of this Contract against Seller. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages or damages for loss of opportunity or lost profit. SECTION 10.3 COSTS OF ENFORCEMENT. If it shall be necessary for either Purchaser or Seller to employ an attorney to enforce its rights pursuant to this Contract, the non-prevailing party shall reimburse the prevailing party for the prevailing party's reasonable attorneys' fees and other reasonable out-of-pocket expenses incurred by the prevailing party in pursuit of such enforcement. ARTICLE XI BROKERAGE COMMISSIONS SECTION 11.1 BROKERAGE COMMISSION. Seller and Purchaser each represent to the other that each has no agreement with any broker, finder or other party requiring payment of a commission with respect to the sale or purchase of the Property, except that Seller may reimburse the costs and expenses of Insignia Capital Advisors, Inc. Seller agrees to indemnify and defend Purchaser and its officers, directors, trustees, shareholders, representatives and agents and hold each of them harmless from any loss, liability, damage, cost or expense (including, without limitation, reasonable attorneys' fees and expenses) arising out of or paid or incurred by Purchaser by reason of any claim to any broker's, finder's or other fee in connection with this transaction by any party claiming by, through or under Seller. Purchaser agrees to indemnify and defend Seller and its general partner and their respective affiliates and their and their affiliates' officers, directors, employees, agents and representatives, and hold each of them harmless from any and all loss, liability, damage, claim, cause of action, fine, fee, lien, cost or expense (including, without limitation, reasonable attorneys' fees and expenses ) arising out of or paid or incurred by any of them by reason of any claim to any broker's, finder's or other fee in connection with this transaction by any party claiming by, through or under Purchaser or its affiliates. Notwithstanding anything to the contrary contained herein, the indemnities set forth in this ARTICLE XI shall survive the Closing and the termination of this Contract forever. ARTICLE XII OPERATION OF THE PROPERTY PRIOR TO THE CLOSING SECTION 12.1 OPERATION OF THE PROPERTY PRIOR TO THE CLOSING. During the term of this Contract: (a) Seller shall not voluntarily create or permit to be created, any liens, encumbrances, defects in title, restrictions or easements affecting the Property (except for mechanic's and materialmen's liens arising in the normal course of Seller's business of operating the Property, and which will be paid by Seller in the normal course of business and to the extent not paid by Closing, Seller will cause to be discharged or insured over on or before the Closing in accordance with SECTION 5.1.2 or accounted for as a proration credit to Purchaser). (b) Seller shall operate and maintain the Property in substantially the same manner as operated and maintained prior to the Effective Date. (c) Without Purchaser's prior written consent, Seller shall not settle any protest or appeal of the real estate tax assessment for the Property for the current tax year or for any prior tax year if the settlement would increase, or compromise Purchaser's ability to challenge, the assessment for the current tax year or any future tax year. (d) Seller shall maintain all of Seller's insurance policies relating to or affecting the Property in full force and effect until Closing. (e) All available unrented apartment units shall be made "rent ready", unless such apartment unit is vacated within ten (10) days prior to Closing. 'Rent ready' shall mean Seller's normal and customary standard for rental units prior to occupancy by new Tenants, including new painting and carpet cleaning. (f) Seller shall be required to notify Purchaser of all personnel changes which occur after the Effective Date until Closing. (g) Following the Effective Date, Seller shall be required to notify Purchaser of any changes in the market rent of units at the Property. After the end of the Inspection Period, Seller shall obtain the approval of Purchaser for any such changes. (h) Seller shall continue to pay bills from third party vendors on a thirty (30) day basis between the Effective Date and Closing. (i) One (1) day prior to Closing, the Purchaser shall be entitled to physically inspect all apartment units with a current rent delinquency. (j) One (1) day prior to Closing, Purchaser shall be allowed to inventory the Personalty to confirm that all items disclosed on the inventory of Personalty delivered pursuant to SECTION 5.3(B) are still located on the Property. (k) All actions required pursuant to this Contract which are necessary to effectuate the transaction contemplated herein will be taken promptly and in good faith by Seller and Purchaser, and each shall furnish the other with such documents or further assurances as each may reasonably require. ARTICLE XII MISCELLANEOUS SECTION 13.1 NOTICES. Any notice provided or permitted to be given under this Contract must be in writing and may be served by (a) depositing same in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (b) delivering the same in person to such party via a hand delivery service, Federal Express or any other nationally recognized courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof, or (c) facsimile transmission. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall be as follows: If to Seller: c/o Insignia Financial Group, Inc. One Insignia Financial Plaza Greenville, South Carolina 29601 Attention: Hugh Wall Facsimile No.: (803) 239-1066 Telephone No.: (803) 239-1000 With copies to: Alan G. Dexter, Esq. Parker, Poe, Adams & Bernstein L.L.P. 2500 Charlotte Plaza Charlotte, North Carolina 28244 Facsimile No.: (704) 334-4706 Telephone No.: (704) 335-9042 If to Purchaser: TVO Realty c/o Wayne Vandenburg 70 E. Lake Street Suite 600 Chicago, Illinois 60601 Telephone No.: (312) 553-1133 With copies to: Chris Haynes, Esq. 501 Executive Center Blvd. Suite 100 El Paso, TX 79902 Facsimile No.: 915-544-2619 Telephone No.: 915-544-1991 If to Escrow Agent: Chicago Title Insurance Company Attn: Janet Karr 909 Fannin, Suite 100 Houston, Texas 77010 Facsimile No.: 713-658-1029 Telephone No.: 713-659-1411 SECTION 13.2 GOVERNING LAW. THIS CONTRACT IS INTENDED TO BE PERFORMED IN THE STATE OF TEXAS, AND THE LAWS OF SUCH STATE SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS CONTRACT. SECTION 13.3 ENTIRETY AND AMENDMENTS. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, relating to the transaction described herein, and may be amended or supplemented only by an instrument in writing executed by the party against whom enforcement is sought. SECTION 13.4 PARTIES BOUND. Subject to the provisions of SECTION 13.5 hereof, this Contract shall be binding upon and inure to the benefit of Seller and Purchaser, and their respective heirs, personal representatives, successors and assigns. SECTION 13.5 ASSIGNMENT. This Contract may not be assigned in whole or in part by Purchaser without the prior written consent of Seller. Any assignment of this Contract by Purchaser without Seller's prior written consent shall, at Seller's option, be null and void and of no effect. In the event that this Contract is assigned by Purchaser, then, unless Seller expressly agrees to the contrary in writing, Purchaser shall not be released from any liability or obligations hereunder. SECTION 13.6 HEADINGS. Headings used in this Contract are used for reference purposes only and do not constitute substantive matter to be considered in construing the terms of this Contract. SECTION 13.7 SURVIVAL. Except as otherwise expressly provided herein, no representations, warranties, covenants, acknowledgments or agreements contained in this Contract shall survive the Closing of this Contract and the delivery of the Special Warranty Deed by Seller to Purchaser. SECTION 13.8 INTERPRETATION. The parties acknowledge that each party and its counsel have reviewed this Contract, and the parties hereby agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Contract or any amendments or exhibits hereto. In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and this Contract shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. When the context in which words are used in this Contract indicates that such is the intent, words in the singular number shall include the plural and vice versa, and words in the masculine gender shall include the feminine and neuter genders and vice versa. SECTION 13.9 EXHIBITS. All references to "Exhibits" or "Schedules" contained herein are references to exhibits or schedules attached hereto, all of which are hereby made a part hereof for all purposes. SECTION 13.10 TIME OF ESSENCE. It is expressly agreed by the parties hereto that time is of the essence with respect to this Contract and Closing hereunder. SECTION 13.11 MULTIPLE COUNTERPARTS. This Contract may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts shall, collectively, constitute one agreement, but, in making proof of this Contract, it shall not be necessary to produce or account for more than one such counterpart. SECTION 13.12 RISK OF LOSS. Risk of loss or damage to the Property, or any part thereof, by fire or any other casualty following Seller's delivery of the special warranty deed transferring title to the Property to the Purchaser will be on the Purchaser; the risk of loss prior to the Closing remains on Seller. SECTION 13.13 BUSINESS DAYS. All references to "business days" contained herein are references to normal working business days, i.e., Monday through Friday of each calendar week, exclusive of federal and national bank holidays. SECTION 13.14 NO RECORDATION OF CONTRACT. In no event shall this Contract or any memorandum hereof be recorded in the public records of the place in which the Property is situated, and any such recordation or attempted recordation shall constitute a breach of this Contract by the party responsible for such recordation or attempted recordation. SECTION 13.15 GENERAL. 13.15.1 Seller acknowledges that Purchaser shall not be liable to any employees of Seller for or in respect of salaries, bonuses, vacations, vacation pay and other leave programs, employee benefit plans or programs, welfare benefits plans, retirement plans, excess benefit plans, plans maintained to provide workers' compensation or unemployment benefits and pay practices which Seller has funded or been obligated to fund for its past or present employees, independent contractors or either of their beneficiaries or dependents. 13.15.2 A. Seller shall indemnify, defend and hold harmless Purchaser and any person or entity affiliated with or owning or controlling, in whole or in part, directly or indirectly, Purchaser, the joint venturers, partners, trustees, officers, directors, shareholders, employees, agents and attorneys at any time and from time to time of any of the foregoing, and the heirs, legal representatives, successors and assigns of each and all of the foregoing (collectively "Related Parties") of and from any and all claims, demands, damages, losses, injuries, liabilities, penalties, costs and expenses (including without limitation reasonable attorneys' fees), incurred or suffered by Purchaser or its Related Parties arising out of or in connection with any one or more of the following: 1. any use, occupancy, ownership or operation of any of the Property or any occurrence in, on or about the Property before the Closing; 2. any accident, injury (including death) or damage, regardless of the cause thereof to any person or property occurring in, on or about the Property before Closing. Seller's obligation to indemnify and hold Purchaser and its Related Parties harmless under this SECTION 13.15.2.A shall survive Closing or termination of this Contract. Notwithstanding anything contained herein to the contrary, Seller shall be obligated to indemnify and hold Purchaser and its Related Parties harmless under this SECTION 13.15.2.A only if Seller has the opportunity to defend any claim referred to herein for which Purchaser or its Related Parties may be liable. B. Provided, Seller shall have no obligation or liability under this Contract to indemnify, defend or hold harmless Purchaser or its Related Parties of or from any claims, demands, damages, losses, injuries, liabilities, penalties, costs, expenses (including without limitation reasonable attorneys' fees), incurred or suffered by Purchaser or its Related Parties arising out of or in connection with the threatened or actual existence of Hazardous Materials or other environmental conditions relating to the Property except to the extent that such threatened or actual existence was known by Seller as of the Effective Date or the Closing Date or is contrary to any representation or warranty made by Seller herein. C. Purchaser shall indemnify, defend and hold harmless Seller and any person or entity affiliated with or owning or controlling, in whole or in part, directly or indirectly, Seller, the joint venturers, partners, trustees, officers, directors, shareholders, employees, agents and attorneys at any time and from time to time of any of the foregoing, and the heirs, legal representatives, successors and assigns of each and all of the foregoing (collectively "Related Parties") of and from any and all claims, demands, damages, losses, injuries, liabilities, penalties, costs and expenses (including without limitation reasonable attorneys' fees), incurred or suffered by Seller or its Related Parties arising out of or in connection with any one or more of the following: 1. any use, occupancy, ownership or operation of any of the Property or any occurrence in, on or about the Property on or after the Closing; 2. any accident, injury (including death) or damage, regardless of the cause thereof to any person or property occurring in, on or about the Property on or after Closing; Purchaser's obligation to indemnify and hold Seller and its Related Parties harmless under this SECTION 13.15.2.C shall survive Closing or termination of this Contract. Notwithstanding anything contained herein to the contrary, Purchaser shall be obligated to indemnify and hold Seller and its Related Parties harmless under this SECTION 13.15.2.A only if Purchaser has the opportunity to defend any claim referred to herein for which Purchaser or its Related Parties may be liable. 13.15.3 Purchaser on the one hand and Seller on the other hand shall use their best efforts to promptly and timely file all filings, reports, certificates and applications required to carry out the transactions contemplated by this Agreement or to consummate the transactions contemplated hereby required, if at all, by (i) the federal securities laws, (ii) the United States or any commission, department, agency, law, rule or regulation thereof, or (iii) the State of Texas or any commission, agency or department thereof. ARTICLE XIV ESCROW TERMS SECTION 14.1 ACCEPTANCE OF ESCROW. Escrow Agent hereby agrees to perform the obligations of Escrow Agent under the terms of this Contract. Escrow Agent has executed this Contract to evidence its acceptance of the terms of the escrow created hereby; provided, however, notwithstanding anything to the contrary contained herein, Escrow Agent shall not be a required party or signatory to any modification of the terms of this Contract unless such modification directly affects the obligations of Escrow Agent hereunder. Escrow Agent shall be given fully executed copies of all modifications of this Contract to which it is not a party promptly after execution thereof by Purchaser and Seller. SECTION 14.2 HOLDING FUNDS. Escrow Agent shall hold all cash portions of the Earnest Money in a separate interest bearing account at Escrow Agent's regular federally insured banking institution in Texas, or in whichever state Escrow Agent is located, and shall otherwise hold, invest and disburse the Earnest Money as provided herein. SECTIN 14.3 DISBURSEMENT OF EARNEST MONEY. Escrow Agent shall disburse the Earnest Money pursuant to the terms hereof. SECTION 14.4 LIMITED LIABILITY. In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages or expenses, except as may arise due to willful misconduct or breach of trust by Escrow Agent hereunder. Accordingly, Escrow Agent shall not incur any such liability with respect to (i) any action taken or omitted in good faith upon advice of its legal counsel relating to the responsibilities of Escrow Agent under this Contract, or (ii) any action taken or omitted in reliance on any instrument, including any written notice or instruction provided for in this Contract, not only as to the due execution and validity of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a person or persons having authority to sign or present such instrument and to conform with the provisions of this Contract. SECTION 14.5 INDEMNITY. Purchaser and Seller hereby indemnify Escrow Agent against, and hold Escrow Agent harmless from, any and all claims, actions, demands, loses, damages, expenses (including, without limitation, court costs, attorneys' fees, and accountants' fees) and liabilities that may be imposed upon performance of its duties hereunder, including, without limitation, any litigation arising from this Contract or involving the subject matter hereof, but excluding any such claims, actions, demands, losses, damages, expenses and liabilities resulting from or arising out of any willful misconduct or breach of trust by Escrow Agent hereunder. In the event of any litigation arising from this Contract or involving the subject matter hereof, and in the event Purchaser and Seller are opposing parties in such litigation, the party prevailing in such litigation shall be reimbursed promptly upon demand by the other such party in an amount equal to that amount which the prevailing party shall have paid Escrow Agent with respect to such litigation and the subject matter thereof pursuant to the indemnification agreement contained in this SECTION 14.5. The provisions of this SECTION 14.5 shall survive the Closing or any termination, cancellation' rescission or consummation of this Contract. SECTION 14.6 ESCROW FEE. Seller and Purchaser shall each pay one-half of the fees and expenses, if any, due to Escrow Agent in compensation for its services pursuant hereto and shall each reimburse Escrow Agent for one-half of the expenses incurred in discharging its duties and obligations hereunder. IN WITNESS WHEREOF, the parties hereby execute this Contract as of the date first above written. SELLER: CONSOLIDATED CAPITAL PROPERTIES VI, a California limited partnership By: CONCAP EQUITIES, INC., its general partner By: /s/ William H. Jarrard, Jr. Name: William H. Jarrard, Jr. Title: President PURCHASER: THE VANDENBURG ORGANIZATION, a Texas corporation d/b/a TVO Realty Partners By: /s/ David Vandenburg Printed Name: David Vandenburg Title: President ESCROW AGENT: CHICAGO TITLE INSURANCE COMPANY By: /s/ Janet Karr Printed Name: Janet Karr Title: Commercial Division Manager /s/ Chris Haynes Chris Haynes, Esq. EX-10.20 4 ASSIGNMENT AND ASSUMPTION OF LEASES STATE OF South Carolina KNOW ALL MEN BY THESE PRESENTS: COUNTY OF Greenville That, CONSOLIDATED CAPITAL PROPERTIES VI, a California limited partnership (Assignor"), for and in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, to Assignor in hand paid, the receipt and legal sufficiency of which are hereby acknowledged, hereby transfers, assigns and sets over unto The Vandenburg Organization, a Texas corporation d/b/a TVO Realty Partners ("Assignee"), all of the right, title and interest of Assignor in and to all leases of, and security deposits and prepaid rents relating to space in (together, the "Leases") the real property described on Exhibit A, attached hereto and made a part hereof for all purposes. TO HAVE AND TO HOLD the Leases, together with any and all of the rights and appurtenances thereto in anywise belonging to Assignor (excluding the right to receive rents paid under the Leases and which accrued before the date of this Assignment), unto Assignee and Assignee's successors and assigns forever, and Assignor does hereby bind Assignor and Assignor's legal representatives and successors, to WARRANT AND FOREVER DEFEND all and singular the Leases unto Assignee and Assignee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Assignor, but not otherwise. In consideration of the foregoing assignment, Assignee hereby assumes, and agrees to perform all of the obligations of Assignor under the Leases, including, but not limited to, the obligation to refund any security deposits delivered by Assignor to Assignee. Assignee takes the Leases subject to any existing defaults thereunder. Assignor will indemnify, defend and hold harmless Assignee and its Related Parties from and against any and all claims, demands, suits, actions, proceedings, damages, liabilities, penalties, costs, expenses and fees (including reasonable attorneys' fees) arising from the misapplication prior to the Closing Date of any security deposits received by Assignor. Assignee will indemnify, defend and hold harmless Assignor and its Related Parties from and against any and all claims, demands, suits, actions, proceedings, damages, liabilities, penalties, costs, expenses and fees (including reasonable attorneys' fees) arising from the misapplication on or after the Closing Date of any security deposits received by Assignee from Assignor. "Related Parties" shall mean any person or entity affiliated with or owning or controlling, in whole or in part, directly or indirectly, the indemnified party, the joint venturers, partners, trustees, officers, directors, shareholders, employees, agents and attorneys at any time and from time to time of any of the foregoing, and the heirs, legal representatives, successors and assigns of each of the foregoing. EXECUTED effective as of this 13th day of October, 1996 (the "Closing Date"). ASSIGNOR: CONSOLIDATED CAPITAL PROPERTIES VI, A CALIFORNIA LIMITED PARTNERSHIP By: CONCAP EQUITIES, INC., its general partner By: /s/ William H. Jarrard, Jr. Name: William H. Jarrard, Jr. Title: President ASSIGNEE: TVO CELINA PLAZA PARTNERS, L.P. By: TVO Viscount, Inc. Its General Partner By: /s/ David Vendenburg Printed Name: David Vandenburg Title: President STATE OF SOUTH CAROLINA COUNTY OF GREENVILLE Personally appeared before me, the undersigned authority in and for the said County and State, on this the 13th day of October, 1997, within my jurisdiction, the within named William H. Jarrard, Jr., who acknowledged that he/she is President of CONCAP EQUITIES, INC., its general partner of CONSOLIDATED CAPITAL PROPERTIES VI, a California limited partnership, and that for and on behalf of said limited partnership and as its act and deed he/she executed the above and foregoing instrument, after first having been duly authorized by said limited partnership so to do. /s/ Lee Ann Price Notary Public My Commission Expires: May 14, 2007 [Notary Seal] STATE OF ILLINOIS COUNTY OF COOK This 13th day of October, 1997, personally came before me David Vandenburg, who, being by me duly sworn, says that he is President of The Vandenburg Organization, a Texas corporation d/b/a TVO Realty Partners, and that the seal affixed to the foregoing instrument in writing is the corporate seal of said corporation, and that said writing was signed by him in behalf of said corporation by its authority duly given. And the President acknowledged the writing to be the act and deed of said corporation. WITNESS my hand and Notarial Seal, this the 13th day of October, 1997. /s/ Zenola H. Bradshaw Notary Public My Commission expires: July 6, 1998 [NOTARY SEAL] EX-10.21 5 BLANKET CONVEYANCE, BILL OF SALE AND ASSIGNMENT STATE OF SOUTH CAROLINA KNOW ALL MEN BY THESE PRESENTS: COUNTY OF GREENVILLE By a Special Warranty Deed (the "Deed") of even date with the date hereof, CONSOLIDATED CAPITAL PROPERTIES VI, a California limited partnership ("Seller") conveyed to The Vandenburg Organization, a Texas corporation d/b/a TVO Realty Partners ("Purchaser"), the real property (the "Real Property") described on Exhibit "A" attached hereto and made a part hereof for all purposes, together with all improvements located thereon. As consideration for (a) the conveyance of the Real Property, (b) the conveyance of the personal property described herein, and (c) the assignments contained herein, Purchaser has paid the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration to the Seller. NOW, THEREFORE, for the consideration above specified, the receipt and sufficiency of which are expressly acknowledged: 1. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER and DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER, SET- OVER and DELIVER unto the Purchaser, all of Seller's right, title and interest in and to all items of tangible personal property located on or attached to the Real Property including, without limitation, all items of personal property described on Exhibit B hereto (all of the property described in this paragraph 1 is hereinafter referred to as the "Personal Property") (the Real Property and Personal Property sometimes collectively referred to herein as the "Property"). 2. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED and ASSIGNED and by these presents does GRANT, CONVEY, SELL, TRANSFER and ASSIGN unto the Purchaser all of the Seller's right, title and interest in and to the trade name "Celina Plaza Apartments". 3. The Seller has ASSIGNED, TRANSFERRED and SET-OVER, and by these presents does ASSIGN, TRANSFER and SET-OVER unto the Purchaser (to the extent they are assignable) all of its right, title and interest in and to all service contracts, bonds, warranties and guaranties which relate to the Real Property or Personal Property and are listed on SCHEDULE 5.3(C) hereto. PURCHASER ACCEPTS THE PROPERTY DESCRIBED IN THIS DOCUMENT (THE "PROPERTY"), AND ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY TO PURCHASER IS MADE BY SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS. PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT FOR THE WARRANTY OF TITLE CONTAINED IN THE SPECIAL WARRANTY DEED DELIVERED TO PURCHASER CONTEMPORANEOUSLY HEREWITH, AND EXCEPT FOR SELLERS WARRANTIES AND REPRESENTATIONS CONTAINED IN THAT CERTAIN CONTRACT FOR SALE OF REAL ESTATE ENTERED INTO BETWEEN SELLER AND PURCHASER, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW WITH RESPECT TO THE PROPERTY REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE SET FORTH IN THE SPECIAL WARRANTY DEED DELIVERED TO PURCHASER), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. Purchaser hereby assumes and agrees to perform from the effective date hereof forward all of the covenants and obligations contained in the contracts assigned hereunder which are to be performed by Seller and hereby indemnifies and agrees to defend Seller, its general partner and their respective affiliates and their and their affiliates' officers, directors, employees, agents and representatives, and agrees to hold Seller, its general partner and their respective affiliates and their and their affiliates' officers, directors, employees, agents and representatives, harmless from and against any and all liability, cost, claim, cause of action, fine, fee, lien, loss, damage or expense, including reasonable attorneys' fees and expenses, suffered or incurred by any of them as a result of any alleged failure of Purchaser to perform such covenants or obligations. This Blanket Conveyance, Bill of Sale and Assignment is binding and shall inure to the benefit of the parties hereto, and their respective successors and assigns. TO HAVE AND TO HOLD the Property unto Purchaser, its successors and assigns forever, and Seller does hereby bind itself, its successors and assigns, to forever WARRANT AND DEFEND the title to the Property unto Purchaser, its successors and assigns, against any person whomsoever lawfully claiming, or to claim the same or any part thereof, by, through or under Seller, but not otherwise. EXECUTED effective as of the 13th day of October, 1997. SELLER: CONSOLIDATED CAPITAL PROPERTIES VI, A CALIFORNIA LIMITED PARTNERSHIP By: CONCAP EQUITIES, INC., its general partner By: /s/ William H. Jarrard, Jr. Name: William H. Jarrard, Jr. Title:President PURCHASER: TVO CELINA PLAZA PARTNERS, L.P. By: TVO Viscount, Inc. Its General Partner By: /s/ David Vandenburg Printed Name: David Vandenburg Title: President -----END PRIVACY-ENHANCED MESSAGE-----