PURCHASE AND SALE AGREEMENT between RAIDER RANCH, LP, a Texas limited partnership as Seller, and CHP PARTNERS, LP as Purchaser Dated as of July 3, 2013 TABLE OF CONTENTS

EX-10.2 3 d566053dex102.htm PURCHASE AND SALE AGREEMENT Purchase and Sale Agreement

Exhibit 10.2

PURCHASE AND SALE AGREEMENT

between

RAIDER RANCH, LP, a Texas limited partnership

as Seller,

and

CHP PARTNERS, LP

as Purchaser

Dated as of July 3, 2013

TABLE OF CONTENTS


			Page
I.	DEFINITIONS			1

II.	SALE AND PURCHASE OF PROPERTY			6
	2.1	Purchase of Property		6
	2.2	Purchase Price and Terms of Payment		7
	2.3	Due Diligence Period		7
	2.4	Assumption of the Contracts		7
	2.5	Assumed Liabilities		8
	2.6	Allocation of Purchase Price		8
	2.7	Discharge of Liens		8
	2.8	Negotiation and Execution of Property Documents		8

III.	ESCROW			9
	3.1	Escrow		9
	3.2	Deposit of Funds		9

IV.	TITLE AND SURVEY			9
	4.1	Title Examination; Commitment for Title Insurance		9
	4.2	Survey		10
	4.3	Title Objections; Cure of Title Objections		10
	4.4	Conveyance of Title		11

V.	INSPECTIONS			11
	5.1	Purchaser’s Independent Inspection		11
	5.2	Access		12
	5.3	Confidential Nature of Due Diligence Materials		13
	5.4	Continuing Nature of Purchaser’s Obligations		13

VI.	PROPERTY			14
	6.1	Condition of Property		14
	6.2	Survival of Article VI		15

VII.	CLOSING			16
	7.1	Closing Date		16
	7.2	Action Prior to the Closing Date by Seller		16
	7.3	Action Prior to the Closing Date by Purchaser		18

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TABLE OF CONTENTS

(continued)


			Page
	7.4	Recording of Deed		18
	7.5	Prorations		19
	7.6	Closing Costs		20
	7.7	Possession		20
	7.8	Post-Closing Audit		20

VIII.	ADDITIONAL COVENANTS AND INDEMNITIES			21
	8.1	Purchaser’s Covenants		21
	8.2	Seller Covenants		21

IX.	REPRESENTATIONS AND WARRANTIES			22
	9.1	Purchaser’s Representations and Warranties		22
	9.2	Seller’s Representations and Warranties		23
	9.3	Seller’s Knowledge		25
	9.4	Failure of Condition But No Seller Breach		25
	9.5	No Survival Period		25

X.	CONDITIONS PRECEDENT TO CLOSING			26
	10.1	Conditions to Seller’s Obligations		26
	10.2	Conditions to Purchaser’s Obligations		26
	10.3	Failure of Conditions to Closing		27

XI.	REMEDIES FOR DEFAULTS; LIQUIDATED DAMAGES			27
	11.1	Default by Purchaser Prior to Closing		27
	11.2	Default by Seller Prior to Closing		28
	11.3	No Survival of Purchaser’s Claims		28
	11.4	Limitations on Liability		29

XII.	FINANCIAL ADVISOR			29

XIII.	NOTICES			30

XIV.	MISCELLANEOUS			31
	14.1	Governing Law		31
	14.2	Exhibits and Schedules a Part of This Agreement		31
	14.3	Executed Counterparts		31
	14.4	Assignment		31

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TABLE OF CONTENTS

(continued)


		Page
14.5	IRS—Form 1099-S		31
14.6	Successors and Assigns		31
14.7	Time is of the Essence		32
14.8	Entire Agreement		32
14.9	Further Assurances		32
14.10	Waiver		32
14.11	Headings		32
14.12	Risk of Loss		32
14.13	Construction of Agreement		33
14.14	No Public Disclosure		33
14.15	Covenants, Representations and Warranties		34
14.16	Confidentiality		35
14.17	No Third-Party Beneficiaries		35
14.18	Electronic Signatures		35
14.19	Severability		35
14.20	Cumulative Remedies		35
14.21	WAIVER OF JURY TRIAL		35

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PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is dated as of this 3rd day of July, 2013 (the “Effective Date”), and is made by and between Raider Ranch, LP, a Texas limited partnership (“Seller”), and CHP Partners, LP, a Delaware limited partnership (“Purchaser”).

RECITALS

A. Seller is the owner of that certain vacant parcel of real property located at 6548 43^rd Street, Lubbock Texas 79407 (the “Property”).

B. Purchaser desires to purchase the Property and to acquire all of Seller’s right, title and interest in and to the Property, on the terms and conditions set forth in this Agreement.

C. Seller desires to sell to Purchaser the Property and to convey to Purchaser all of its right, title and interest in the Property, on the terms and conditions set forth in this Agreement.

D. All capitalized terms used in this Agreement and not otherwise defined shall have the meanings ascribed to such terms in Article I.

AGREEMENT

NOW, THEREFORE, for valuable consideration, including the promises, covenants, representations and warranties hereinafter set forth, the receipt and adequacy of which are hereby acknowledged, the parties, intending to be legally and equitably bound, agree as follows.

DEFINITIONS

As used in this Agreement, the following terms have the meanings ascribed to them in this Article I:

“Additional Deposit.” As set forth in Section 2.2(a) hereof.

“Affiliate.” With respect to any person or entity, (i) all persons or entities that, directly or indirectly, control, are controlled by, or under common control with, such person or entity; or (ii) all persons or entities that, directly or indirectly, own, are owned by or under common ownership with, such person or entity.

“Agreement.” As set forth in the preamble hereof.

“Assignment and Assumption of Contracts.” As set forth in Section 7.2(d) hereof.

“Assignment and Assumption of Intangible Property.” As set forth in Section 7.2(c) hereof.

“Assumed Contracts.” As set forth in Section 2.4 hereof.

“Bill of Sale.” As set forth in Section 7.2(b) hereof.

“Books and Records.” All documentation, third party reports and studies, land surveys, land use applications, land use permits and approvals, operating permits and other documents in printed or electronic form (but with respect to items in electronic format, excluding software which is proprietary to Seller, its Affiliates or any third party, or is licensed from third parties by Seller or its Affiliates) that is in the possession or under the control of Seller or its Affiliates and that pertains to the use, operation, ownership or condition of the Property, including (i) all structural reviews, environmental assessments or audits, architectural drawings and engineering, geophysical, soils, seismic, geologic, environmental (including with respect to the impact of materials used in the construction or renovation of the Improvements) and architectural reports, studies and certificates pertaining to the Property, and (iii) all financial statements and other accounting, tax, financial, and other books and records relating to the use, maintenance, and operation of the Property, but excluding (x) any Excluded Documents and (y) those items that are consolidated with items from other facilities owned, leased or managed by Seller or its Affiliates and not being conveyed to Purchaser, if any.

“Business Agreements.” Any lease, rental agreement, loan agreement, mortgage, easement, covenant, restriction or other agreement or instrument affecting all or a portion of the Property other than a Contract.

“Claims.” Collectively, damages, claims (including without limitation, any claim for damage to property of others or injury to or death of any persons), penalties, obligations, liabilities, fines, losses, causes of action, fees, injuries, liens, encumbrance, proceedings, judgments, actions, rights, demands, costs and expenses (including without limitation, reasonable attorneys’ fees whether or not legal proceedings are instituted and court and litigation costs).

“Closing.” The sale and assignment of the Property to Purchaser on the Closing Date and the performance by each party of the obligations on its part then to be performed under and in accordance with this Agreement.

“Closing Date.” As set forth in Section 7.1 hereof.

“Closing Documents.” Any document or instrument (including any deed, bill of sale or assignments) executed by Seller and delivered to Purchaser at or in connection with the Closing.

“Closing Payment.” As set forth in Section 2.2(b) hereof.

“Closing Statement.” As set forth in Section 7.2(h) hereof.

“Contracts.” All contracts and all other agreements relating to the ownership of the Property, together with all related written warranties and guaranties, but excluding (a) any contracts or agreements that are with an Affiliate of Seller (which shall be terminated as of the Closing Date at the Seller’s sole cost and expense), and (b) any contracts or agreements entered into in violation of Section 8.2.

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“Cut-Off Time.” 11:59 p.m. in the jurisdiction in which the Property is located on the day immediately preceding the Closing Date.

“Deed.” As set forth in Section 7.2(a) hereof.

“Deposit.” As set forth in Section 2.2(a) hereof.

“Due Diligence Materials.” All of the documents and other materials delivered to or otherwise made available for inspection (including in a website data room) by Purchaser and its representatives during the Due Diligence Period.

“Due Diligence Period.” The period commencing on the Effective Date and ending at 5:00 p.m. (Eastern Time) on the date which is forty-five (45) days from the Effective Date.

“Eastern Time.” Eastern Standard Time or Eastern Daylight Time, as applicable.

“Effective Date.” As set forth in the preamble hereof.

“Environmental Damages.” All claims, judgments, damages, losses, penalties, fines, liabilities (including strict liability), encumbrances, liens, costs, and expenses of investigation and defense of any claim, whether or not such claim is ultimately defeated, and of any good faith settlement of judgment, of whatever kind or nature, contingent or otherwise matured or unmatured, foreseeable or unforeseeable, including without limitation reasonable attorneys’ fees and disbursements and consultants’ fees, any of which are incurred at any time as a result of the existence of Hazardous Materials upon, about or beneath the Real Property or migrating to or from the Real Property, or the existence of a violation of Environmental Requirements pertaining to the Real Property, regardless of whether the existence of such Hazardous Materials or the violation of Environmental Requirements arose prior to the present ownership or operation of the Real Property.

“Environmental Requirements” All applicable present and future statutes, regulations, rules, ordinances, codes, licenses, permits, orders, approvals, plans, authorizations, concessions, franchises, and similar items, of all governmental agencies, departments, commissions, boards, bureaus, or instrumentalities of the United States, states and political subdivisions thereof and all applicable judicial, administrative, and regulatory decrees, judgments, and orders relating to Hazardous Materials.

“Escrow.” As set forth in Section 3.1 hereof.

“Escrow Agent.” Fidelity National Title Insurance Company, 1900 West Loop South, Suite 200, Houston, TX 77027, Attention: Selina I. Parelskin, ***@***, Phone: (310) ###-###-####.

“Escrow Agreement.” As set forth in Section 3.1 hereof.

“Excluded Assets.” The Excluded Documents and balances on deposit to the credit of Seller with banking institutions, all of which shall be retained by Seller.

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“Excluded Documents.” All (a) casualty, liability, and life insurance policies owned or obtained by Seller on behalf or in connection with Seller’s business at the Property, (b) the corporate minute books and stock registers of Seller, (c) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller or its Affiliates in connection with the sale of the Property, including, without limitation, tax returns or financial statements of Seller for or in connection with its ownership or operation of the Property, (d) communications between Seller or any Affiliate and their respective attorneys, (e) employee personnel files of Seller, (f) appraisals, assessments or other valuations of the Property in the possession or control of Seller, (g) original bills, invoices, receipts and checks relating to expenses incurred prior to the Cut-Off Time (provided that Purchaser shall be entitled to copies of such items and to retain copies of all of the other Due Diligence Materials after Closing, which right shall survive the Closing), and (h) any confidential or proprietary information of Seller, however embodied.

“Existing Liens.” As set forth in Section 2.7 hereof.

“Financial Advisor.” As set forth in Article XII hereof.

“Good Funds.” A deposit of cashier’s check, certified funds, or confirmed wire transfer of funds.

“Hazardous Materials.” Any substance (i) the presence of which requires investigation or remediation under any federal, state or local statute, regulation, ordinance or policy; or (ii) which is defined as a “hazardous waste” or “hazardous substance” under any federal, state or local statute, regulation or ordinance, including without limitation the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) and the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) and amendments thereto and regulations promulgated thereunder; or (iii) which is toxic, explosive, corrosive, infectious or otherwise hazardous or is regulated by any federal, state or local governmental authority; or (iv) without limitation which contains polychlorinated biphenyls (PCBs), asbestos or urea formaldehyde other than cleaning supplies, solvents and other substances typically used at the Property and other comparable properties held and used in commercially reasonable amounts and methods and in accordance with Environmental Requirements.

“Improvements.” Any structures, fixtures, and other permanent improvements located on the Land, including, without limitation, electrical distribution systems, walkways, driveways, parking lots, plumbing, lighting, and mechanical equipment and fixtures installed thereon, and all rights, benefits and privileges appurtenant thereto.

“Initial Deposit.” As set forth in Section 2.2(a) hereof.

“Intangible Property.” All (a) certificates, licenses, permits (including the Permits) and warranties now in effect with respect to the Property permitted to be transferred pursuant to the applicable Legal Requirements and at no cost to Seller, (b) all general intangibles relating to design, development, operation and use of the Property, all rights and work product under construction, service, consulting, engineering, architectural, design and construction agreements (including any warranties contained therein) and other Assumed Contracts, plans and specifications of any portion of the Property, and all development rights and goodwill related to any portion of the Property, and (c) all other intangible property used by Seller exclusively in connection with the ownership and operation of the Property, but excluding the Excluded Assets.

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“Land.” The land, as more particularly described on Exhibit “A” attached hereto, including all easements, rights-of-way, rights of ingress and egress, strips, zones, licenses, transferable hereditaments, privileges, tenements and appurtenances in any way belonging to or appertaining to the same, and any right or interest in any open or proposed highways, streets, roads, avenues, alleys, easements, strips, gores and rights-of-way in, across, in front of, contiguous to, abutting or adjoining the Land, and other rights and benefits running with the Land and/or the owner of the Land.

“Leases.” All leases, subleases, licenses, service agreements, concessions or other agreements granting an interest to any Person for the use and occupancy of a portion of the Property, which are in effect or executed as of the date of this Agreement or which become effective or executed between the date of this Agreement and the Closing Date, together with all security deposits thereunder.

“Legal Requirement.” Any applicable federal, state, local or municipal constitution, law, ordinance, rule, order, regulation or statute of any governmental authority bearing on the construction, alteration, rehabilitation, maintenance, use, operation, sale, transfer or any other aspect of all or any portion of the Property, including the Environmental Requirements.

“Manager” shall mean Integrated Senior Living LLC, a Texas limited liability company, which is an Affiliate of Seller.

“Material Contract.” Any Contract that has a value, or involves payment by (or to) Seller or its Affiliates, of at least Five Thousand and NO/100 Dollars ($5,000.00) during any twelve (12) month period.

“Non-Foreign Affidavit.” As set forth in Section 7.2(e) hereof.

“Notice.” As set forth in Article XIII hereof.

“Official Records.” The office of the recorder of deeds and other real estate records in the jurisdiction in which the Property is located.

“Permits.” The licenses and permits, approvals, entitlements, and other governmental authorizations issued by a governmental or administrative agency or authority (whether federal, state or local) in Seller’s possession or control in connection with the ownership, operation, planning, development, constructions, use, or maintenance of the Property.

“Permitted Exceptions.” As set forth in Section 4.4 hereof.

“Personal Property.” The Books and Records and all other personal property which Seller is the owner thereof and which is used by Seller exclusively in connection with the ownership, maintenance, and operation of the Real Property; but excluding, however, (i) the Excluded Assets and (ii) all tax and utilities and other deposits.

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“Property.” As set forth in Recital A, with the Property comprised of the Land, the Improvements, the Personal Property, the Contracts, and the Intangible Property owned or entered into, as applicable, by Seller.

“Property Documents.” As set forth in Section 2.8 hereof.

“Proprietary Information.” As set forth in Section 14.16 hereof.

“Purchaser.” As set forth in the preamble hereof.

“Purchase Price.” As set forth in Section 2.2 hereof.

“Raider Ranch PSA.” As set forth in Section 7.1 hereof.

“Real Property.” The Land and the Improvements.

“Rejected Contracts.” As set forth in Section 2.4 hereof.

“Resident Agreements.” Those leases, occupancy, residency and similar written agreements entered into with residents, and all amendments, modifications, supplements, renewals and extensions thereof.

“Retained Liabilities.” As set forth in Section 2.6 hereof.

“Required Deletion Items.” As set forth in Section 4.3 hereof.

“Seller.” As set forth in the preamble hereof.

“Survey.” As set forth in Section 4.2 hereof.

“Termination Notice.” As set forth in Section 2.3 hereof.

“Texas Tech Contract.” License Agreement dated as of July 9, 2007 to be effective as of August 9, 2006 by and between Texas Tech Alumni Association, as licensor, and Seller.

“Title Commitment.” As set forth in Section 4.1 hereof.

“Title Objection Date.” As set forth in Section 4.3 hereof.

“Utility Deposits.” All deposits made by Seller in connection with providing water, sewer, gas, electricity, telephone and other public utilities to the Real Property.

II.

SALE AND PURCHASE OF PROPERTY

2.1 Purchase of Property. On the Closing Date, and subject to the terms and conditions of this Agreement, Seller shall sell, assign, convey, transfer and deliver to Purchaser, and Purchaser shall purchase and acquire from Seller, Seller’s right, title, and interest in and to

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the Land and Improvements, good and marketable title in the Personal Property, and all of Seller’s right, title and interest in and to the Assumed Contracts and the Intangible Property, free and clear of all monetary liens and encumbrances (other than the Assumed Contracts and the Permitted Exceptions), as further described in Section 2.7 hereof, at the purchase price provided in Section 2.2 hereof.

2.2 Purchase Price and Terms of Payment. The purchase price for the Property (“Purchase Price”) shall be Three Million and NO/100 Dollars ($3,000,000.00), and shall consist of and be payable as follows:

(a) Within one (1) business day after the Effective Date, Purchaser shall deliver to Escrow Agent, in Good Funds, as an additional deposit, the sum of Fifteen Thousand and NO/100 Dollars ($15,000.00) (together with all interest accrued thereon, the “Initial Deposit”). If this Agreement is not terminated pursuant to Section 2.3, within one (1) business day after the expiration of the Due Diligence Period, Purchaser shall deliver to Escrow Agent, in Good Funds, the sum of Fifteen Thousand and NO/100 Dollars ($15,000.00) (together with all interest accrued thereon, the “Additional Deposit”; the Initial Deposit together with the Additional Deposit shall hereinafter individually and collectively be referred to as the “Deposit”). The Deposit shall be non-refundable to Purchaser, except (i) if a condition precedent to Purchaser’s obligations as set forth in Section 10.2 below is not satisfied or cured as of the Closing Date and such failure is not due to a default by Purchaser, or (ii) as specifically provided in Section 2.3, Section 4.3, Section 9.4, Section 10.3 or Section 11.2 below, and in any such event Purchaser’s right to such refund will survive any termination of this Agreement. The Deposit shall be applied to the Purchase Price on the Closing Date.

(b) Not later than 1:00 p.m. (Eastern Time) on the Closing Date, Purchaser shall deposit with Escrow Agent, in Good Funds, the balance of the Purchase Price, reduced or increased by such amounts as are required to take into account any prorations, credits, costs or other adjustments which are required by this Agreement and which can be computed and determined as of the time for the required deposit hereunder. The amount to be paid under this Section 2.2(b) is referred to in this Agreement as the “Closing Payment.”

2.3 Due Diligence Period. At any time prior to the expiration of the Due Diligence Period, Purchaser shall be free, in its sole and absolute discretion, and for any or no reason whatsoever to terminate this Agreement by written notice to Seller (the “Termination Notice”) delivered on or prior to the expiration of the Due Diligence Period. Upon delivery of the Termination Notice prior to the expiration of the Due Diligence Period, Purchaser shall receive a return of the Deposit (to the extent previously deposited) and the parties shall equally share the cancellation charges, if any, of Escrow Agent. If the Termination Notice is not delivered on or prior to the expiration of the Due Diligence Period, Purchaser shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 2.3.

2.4 Assumption of the Contracts. As additional consideration, Purchaser shall, on and as of the Closing Date, at its sole cost and expense, assume and agree to pay all sums and perform, fulfill and comply with all other covenants and obligations which are to be paid,

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performed and complied with by Seller under the Assumed Contracts which first arise or accrue on and after the Closing Date. Prior to the expiration of the Due Diligence Period, Purchaser shall notify Seller in writing of the identity of all Material Contracts that Purchaser elects to terminate (collectively, the “Rejected Contracts”). Any Material Contracts existing as of the Effective Date that Purchaser does not notify Seller that Purchaser elects to terminate prior to the expiration of the Due Diligence Period, together with those Contracts that do not meet the definition of “Material Contracts” but are terminable without fee or penalty upon no more than sixty (60) days’ notice shall be “Assumed Contracts.” Notwithstanding anything to the contrary set forth herein, Purchaser shall be responsible for payment of (i) all fees due for the period after Closing through the termination date of each Rejected Contract (other than the Texas Tech Contract) and (ii) all termination fees associated with the termination of each Rejected Contract (other than the Texas Tech Contract). For avoidance of doubt, in no event will the Texas Tech Contract constitute an Assumed Contract and Seller will be responsible for all fees due under and associated with the Texas Tech Contract (including the termination thereof).

2.5 Assumed Liabilities. Except as expressly set forth herein, Purchaser shall not assume, in connection with the transactions contemplated hereby, any liability or obligation of Seller whatsoever, and, to this end, Seller shall retain responsibility for all liabilities and obligations accrued or incurred from its operations prior to Closing and all liabilities and obligations arising from its operations prior to Closing, whether or not accrued and whether or not disclosed (the “Retained Liabilities”). The terms of this Section 2.5 shall survive Closing.

2.6 Allocation of Purchase Price. Within five (5) days before the end of the Due Diligence Period, the parties shall use their commercially reasonable efforts to agree on an allocation of the Purchase Price among the Real Property and the various items of Personal Property and Intangible Property. Each party agrees to file federal, state and local tax returns consistent with such allocations agreed upon between the parties. If Seller and Purchaser do not agree on how the Purchase Price shall be allocated among the Real Property and the various items of Personal Property and Intangible Property, each party shall file federal, state and local tax returns based on each party’s own determination of the proper allocations, each bearing its own consequences of any discrepancies.

2.7 Discharge of Liens. Seller shall cause all bond financing, mortgages, deeds of trust, and monetary liens (including liens for delinquent taxes and mechanics’ and judgment liens properly charged to Seller) affecting the Property and all indebtedness secured thereby (the “Existing Liens”) to be fully satisfied, released, and discharged of record on the Closing Date with the use of the Closing Payment, so that Purchaser shall take title to the Property free of the same. All costs related to the discharge of the Existing Liens shall be borne by Seller. Seller acknowledges that such satisfaction, release, and discharge may involve prepayment penalties or premiums and other costs or expenses, all of which shall be paid by Seller at its sole cost and expense in connection with the Closing (and the Closing Payment shall be used for such purpose).

2.8 Negotiation and Execution of Property Documents. On or before the Effective Date, and continuing throughout the Due Diligence Period, Seller, Manager, South Bay Partners, Ltd. and Purchaser shall negotiate in good faith to enter into definitive, binding documents (which documents shall be held in escrow and released upon Closing) with respect to (i) the

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entering into of a development agreement and related ancillary documentation with South Bay Partners, Ltd. and/or or their Affiliates with respect to the development of the Property, and (ii) the entering into of management arrangements regarding the management of the project(s) to be constructed on the Property (collectively, the “Property Documents”). The terms of the Property Documents shall be substantially in accordance with the terms set forth in that certain letter of intent dated June 4, 2013 among Seller, South Bay Partners, Ltd, Manager and Purchaser with such other terms as the parties thereto may negotiate. If the parties thereto have not entered into the Property Documents by the date of expiration of the Due Diligence Period, then either Seller or Purchaser shall have the right to terminate this Agreement by giving written notice to the other, by not later than three (3) business days after the expiration of the Due Diligence Period. Upon any such termination, Purchaser shall receive a return of the Deposit (to the extent previously deposited) and the parties shall equally share the cancellation charges, if any, of Escrow Agent.

III.

ESCROW

3.1 Escrow. Purchaser and Seller have established or will establish an escrow (“Escrow”) with Escrow Agent by depositing with Escrow Agent the Deposit and having three (3) copies of the Escrow Agreement in the form attached hereto as Exhibit “B” duly executed (in counterparts or otherwise) by Seller, Purchaser and Escrow Agent (the “Escrow Agreement”). The Deposit shall be held by Escrow Agent in accordance with the terms of the Escrow Agreement. In the event of any conflict between this Agreement and the Escrow Agreement, the terms of this Agreement shall control.

3.2 Deposit of Funds. Except as otherwise provided in this Agreement, all funds deposited into the Escrow by Purchaser shall be immediately deposited by Escrow Agent into an interest bearing account, subject to the control of Escrow Agent in a bank or savings and loan association, or such other institution approved by Purchaser, or such other investment as may be approved by Purchaser; provided, however, that such funds must be readily available as necessary to comply with the terms of this Agreement and the Escrow Agreement, and for the Escrow to close within the time specified in Section 7.1 of this Agreement. Except as may be otherwise specifically provided herein, interest on amounts placed by Escrow Agent in any such investments or interest bearing accounts shall accrue to the benefit of Purchaser, and Purchaser shall promptly provide to Escrow Agent Purchaser’s Tax Identification Number.

IV.

TITLE AND SURVEY

4.1 Title Examination; Commitment for Title Insurance. Prior to or on the Effective Date, Seller has obtained from Escrow Agent and delivered to Purchaser, at Seller’s sole cost and expense, a current commitment for the Texas equivalent of an A.L.T.A. Owner’s Policy of Title Insurance 2006 Form (the “Title Commitment”) covering the Real Property and a copy of each document referenced in the Title Commitment as an exception to title.

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4.2 Survey. Prior to or on the Effective Date, Seller has delivered to Purchaser, at Seller’s sole cost and expense, the existing survey for the Real Property (the “Survey”), to the extent in its possession or control. In the event that Purchaser elects to have a new or updated Survey of the Real Property performed, it shall deliver a copy thereof to Seller within five (5) days of receipt of any such Survey.

4.3 Title Objections; Cure of Title Objections. Purchaser shall have until fifteen (15) days prior to the expiration of the Due Diligence Period (the “Title Objection Date”) to provide Notice to Seller, in writing, of such objections as Purchaser may have to any item contained in the Title Commitment and any matter shown on the Survey (or any update thereto received prior to the Title Objection Date). Any item contained in the Title Commitment or any matter shown on the Survey to which Purchaser does not object prior to the Title Objection Date shall be deemed a Permitted Exception. In the event Purchaser provides Notice to Seller of objections to any items contained in the Title Commitment or any matters shown on the Survey prior to the Title Objection Date, Seller shall have the right, but not the obligation (except as otherwise provided below), to cure such objections. Within five (5) days after receipt of Purchaser’s notice of objections, Seller shall notify Purchaser in writing as to whether Seller elects to attempt to cure such objections. Any failure by Seller to respond within five (5) days after receipt of Purchaser’s notice of objections shall be deemed a refusal by Seller to cure any objections to which a response was not delivered. If Purchaser does not terminate this Agreement prior to the expiration of the Due Diligence Period pursuant to Section 2.3, all items contained in the Title Commitment or matters shown on the Survey, other than the Required Deletion Items and those items or matters with respect to which Purchaser has objected and Seller has affirmatively elected to cure, shall be deemed Permitted Exceptions. The Permitted Exceptions shall, inter alia, include (and Purchaser shall not be permitted to object to) any exceptions relating to liens for all real estate taxes and assessments, water rates, water meter charges, sewer rates, sewer charges and similar matters imposed by any governmental authority and not yet due and payable as of the Closing Date, including special assessments and special improvement district or local improvement district bonds, any and all present and future laws, ordinances, restrictions, requirements, resolutions, orders, rules and regulations of any governmental authority, as now or hereafter existing or enforced (including those related to zoning and land use), and any exceptions caused by Purchaser, its agents, representatives or employees. If Seller elects to attempt to cure, and provided that Purchaser shall not have terminated this Agreement in accordance with Section 2.3 hereof, Seller shall have until the Closing Date to attempt to remove, satisfy or cure the same and for this purpose Seller shall be entitled to a reasonable adjournment of the Closing if additional time is required, but in no event shall the adjournment exceed thirty (30) days after the Closing Date. If Seller is unable to effect a cure prior to the Closing Date (or any date to which the Closing has been adjourned) then Purchaser shall have the option, in its sole discretion, to (a) accept a conveyance of the Real Property subject to the Permitted Exceptions and any matter objected to by Purchaser that Seller is unable to cure, and without reduction of the Purchase Price, or (b) terminate this Agreement by sending written notice thereof to Seller, and upon delivery of such notice of termination, this Agreement shall terminate and the Deposit shall be returned to Purchaser. Following any termination of this Agreement in accordance with subsection (b) of the previous sentence, neither party hereto shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. Except as provided in the next sentence, Seller shall have no obligation to bring any action or

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proceeding or otherwise to incur any expense to correct, discharge or otherwise remove title exceptions or defects with respect to any Property or to remove, remedy or comply with any other grounds for Purchaser’s refusing to approve title. Seller shall, however, be obligated to remove or discharge, or otherwise cause the Escrow Agent to omit as an exception to title or to insure against collection thereof from or against the Property, (y) any Existing Liens and (z) any liens and encumbrances created by through or under Seller after the Effective Date, that are not Permitted Exceptions (collectively, the “Required Deletion Items”). If, on the Closing Date, there are any Required Deletion Items, Seller may use any portion of its pro rata share of the Closing Payment to satisfy same, provided the Escrow Agent shall omit such lien or encumbrance as an exception to title. If Seller shall fail to authorize the Escrow Agent to use the Closing Payment to satisfy a Required Deletion Item, and such Required Deletion Item therefore is not omitted as an exception to title, such failure shall be deemed to be a default by Seller, and Purchaser shall have the remedies set forth in Section 11.2.

4.4 Conveyance of Title. At the Closing, Seller shall deliver to Purchaser, in escrow through Escrow Agent, the Deed, subject to no exceptions other than the Permitted Exceptions. The acceptance by Purchaser of the Deed shall be deemed to be a full performance and discharge of every obligation on the part of Seller to be performed under this Agreement with respect to the Property, other than those that are specifically stated herein or in any Closing Document to survive the Closing.

INSPECTIONS

5.1 Purchaser’s Independent Inspection.

(a) Purchaser, for itself and any successors or assigns, acknowledges and agrees that it is being given the full opportunity during the Due Diligence Period to inspect and investigate each and every aspect of the Property, either independently or through agents, representatives or experts of Purchaser’s choosing, as Purchaser considers necessary or appropriate. Such independent investigation by Purchaser may include:

(i) all matters relating to title to the Property;

(ii) all matters relating to Legal Requirements with respect to the Property, such as taxes, assessments, zoning, use permit requirements and building codes;

(iii) all zoning, land use, building, environmental and other statutes, rules, or regulations applicable to the Real Property;

(iv) the physical condition of the Real Property, including the paving, the utilities, and all other physical, structural and functional aspects of the Real Property;

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(v) reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the Real Property and the compliance of the Real Property with all Environmental Requirements, including environmental assessment reports;

(vi) any easements and/or access rights affecting the Real Property;

(vii) the Material Contracts affecting the Property;

(viii) all matters that would be revealed by a Survey, a physical inspection or an environmental site assessment of the Real Property; and

(ix) all financial matters.

(b) Except as expressly provided herein or in any Closing Documents, Seller make no representations or warranties as to the truth, accuracy or completeness of any materials, data or other information, if any, supplied to Purchaser in connection with Purchaser’s inspection of the Property (e.g., that such materials are complete, accurate or the final version thereof, or that all such materials are in Seller’s possession). Except for Purchaser’s reliance on any representation and warranties expressly provided herein, it is the parties’ express understanding and agreement that any such materials are to be provided only for Purchaser’s convenience in making its own examination and determination as to whether it wishes to purchase the Property, and, in doing so, Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of the Property and not on any materials supplied by Seller. Except for Purchaser’s reliance on any representation and warranties expressly provided herein or in any Closing Documents with respect to any such materials, Purchaser expressly disclaims any intent to rely on any such materials provided to it by Seller in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information.

(c) Purchaser acknowledges and agrees that (i) on or prior to the expiration of the Due Diligence Period it will have completed its independent inspection and investigation of the Property and the Due Diligence Materials, and (ii) it shall have no right after the expiration of the Due Diligence Period to terminate this Agreement based on any further investigations of the Property or the Due Diligence Materials. The failure of Purchaser to send a Termination Notice prior to the expiration of the Due Diligence Period shall conclusively constitute Purchaser’s approval of each and every aspect of the Property, subject to the terms and conditions of this Agreement.

5.2 Access.

(a) Seller shall cooperate and provide Purchaser with reasonable access to the Real Property upon commercially reasonable Notice to Seller for the purpose of Purchaser’s inspection (provided, however, that Purchaser shall not perform any invasive testing of the Real Property without Seller’s prior written consent in each instance, which may be granted or withheld in Seller’s sole and absolute discretion). Seller shall have the right to have a representative of Seller present during all inspections or examinations of

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the Real Property by Purchaser. Prior to any entry by Purchaser or any of Purchaser’s designees onto the Property, Purchaser shall: (i) if Purchaser does not then have such a policy in force, procure a policy of commercial general liability insurance, issued by an insurer reasonably satisfactory to Seller, covering all of Purchaser’s activities, with a single limit of liability (per occurrence and aggregate) of not less than Two Million and NO/100 Dollars ($2,000,000.00); and (ii) deliver to Seller a Certificate of Insurance, evidencing that such insurance is in force and effect, and evidencing that Seller has been named as an additional insured thereunder with respect to any of Purchaser’s activities. Such insurance shall be written on an “occurrence” basis, and shall be maintained in force until the earlier of (x) the termination of this Agreement and the conclusion of all of Purchaser’s activities on the Property, or (y) the Closing Date.

(b) Purchaser, at all times, will conduct all inspections and reviews in compliance with all Legal Requirements, and in a manner so as to not cause damage, loss, cost or expense to Seller or the Property. Prior to Closing, the results of or any other information acquired pursuant to Purchaser’s inspections shall be subject to the terms and conditions of Section 14.16 below. Purchaser will promptly restore any damage to any Property caused by Purchaser’s inspection to substantially the same condition immediately preceding such inspections and examinations and will keep the Property free and clear of any mechanic’s liens or materialmen’s liens caused by Purchaser or its representatives in connection with such inspections and examinations.

5.3 Confidential Nature of Due Diligence Materials. Purchaser covenants and agrees that, until the Closing Date, all information and materials disclosed and/or delivered to it by Seller, or Seller’s agents, employees and representatives (including without limitation, the Due Diligence Materials), are confidential and proprietary information, and that Purchaser shall hold the same in accordance with the terms and conditions of Section 14.16 below. Purchaser also agrees that, in the event the transactions contemplated in this Agreement are not consummated as provided herein, Purchaser shall promptly return to Seller or notify Seller in writing that Purchaser has destroyed all such information and documentation and all copies thereof other than any copies required to be retained to comply with Purchaser’s internal records retention policy, which copies shall continue to be subject to the terms of Section 14.16.

5.4 Continuing Nature of Purchaser’s Obligations. The obligations of Purchaser under this Article V (including its indemnification obligations under Section 8.1) shall survive Closing or the termination of this Agreement.

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VI.

PROPERTY

6.1 Condition of Property. THE FOLLOWING PROVISIONS IN THIS SECTION 6.1 ARE SUBJECT TO THE EXPRESS REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS, AND OTHER PROVISIONS OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 9.2) AND THE CLOSING DOCUMENTS:

(a) BY ENTERING INTO THIS AGREEMENT, PURCHASER HAS AGREED TO, AND WILL, PERFORM (AND PURCHASER REPRESENTS AND WARRANTS TO SELLER THAT PURCHASER IS CAPABLE OF PERFORMING) AN INDEPENDENT INVESTIGATION, ANALYSIS AND EVALUATION OF THE PROPERTY. PURCHASER WILL CONDUCT ITS OWN THOROUGH AND INDEPENDENT INSPECTION, INVESTIGATION, ANALYSIS AND EVALUATION OF ALL INSTRUMENTS, RECORDS AND DOCUMENTS WHICH PURCHASER DETERMINES TO BE APPROPRIATE OR ADVISABLE TO REVIEW IN CONNECTION WITH PURCHASER’S ACQUISITION OF THE PROPERTY AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

(b) PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER HAS SUBSTANTIAL EXPERIENCE WITH REAL PROPERTY AND SENIOR LIVING FACILITIES AND THEIR OPERATIONS, AND THAT PURCHASER WILL ACQUIRE THE PROPERTY IN “AS IS, WHERE IS, WITH ALL FAULTS” CONDITION, AND SOLELY IN RELIANCE ON PURCHASER’S OWN INSPECTION AND EXAMINATION AND SELLER’S REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED HEREIN OR IN ANY CLOSING DOCUMENTS.

(c) EXCEPT AS TO THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE CLOSING DOCUMENTS, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT SELLER MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, NATURE OR SORT, EXPRESS OR IMPLIED, WITH RESPECT TO THE PHYSICAL CONDITION, PAST, PRESENT OR FUTURE OPERATION AND/OR PERFORMANCE, OR VALUE, OF ANY PROPERTY AND THAT SELLER CONVEYS THE PROPERTY TO PURCHASER “AS IS AND WHERE IS, WITH ALL FAULTS,” AND PURCHASER ACKNOWLEDGES THAT SELLER MAKES NO REPRESENTATIONS, GUARANTIES OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE QUALITY, CHARACTER, EXTENT, PERFORMANCE, CONDITION OR SUITABILITY OF THE PROPERTY FOR ANY PURPOSE.

(d) PURCHASER’S INSPECTION, INVESTIGATION AND SURVEY OF THE PROPERTY SHALL BE IN LIEU OF ANY NOTICE OR DISCLOSURE REQUIRED BY ANY APPLICABLE HEALTH AND SAFETY CODE, OR BY ANY OTHER PROVISION OF APPLICABLE LAW, RULE OR REGULATION, INCLUDING, WITHOUT LIMITATION, LAWS REQUIRING DISCLOSURE BY SELLER OF FLOOD, FIRE, MOLD, SEISMIC HAZARDS, LEAD PAINT, LANDSLIDE AND LIQUEFACTION, OTHER GEOLOGICAL HAZARDS, RAILROAD AND OTHER UTILITY ACCESS, SOIL CONDITIONS AND OTHER CONDITIONS WHICH MAY AFFECT THE USE OF THE REAL PROPERTY, AND PURCHASER HEREBY WAIVES ANY REQUIREMENT FOR A NOTICE

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PURSUANT TO THOSE PROVISIONS AND HEREBY ACKNOWLEDGES AND AGREES THAT IT WILL CONDUCT ITS OWN INSPECTIONS AND REVIEWS WITH RESPECT TO ALL MATTERS COVERED THEREBY, AND HEREBY RELEASES SELLER FROM LIABILITY IN CONNECTION WITH ANY SUCH MATTERS THAT ARE NOT THE SUBJECT OF ANY OF SELLER’S COVENANTS, REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN OR ANY CLOSING DOCUMENTS.

(e) PURCHASER ALSO ACKNOWLEDGES AND AGREES THAT, ALTHOUGH SELLER HAS PROVIDED TO PURCHASER THE DUE DILIGENCE MATERIALS AND THE BOOKS AND RECORDS, SELLER HAS NOT VERIFIED THE ACCURACY THEREOF AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE MATTERS SET FORTH THEREIN EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN OR ANY CLOSING DOCUMENTS, IT BEING THE RESPONSIBILITY OF PURCHASER TO VERIFY THE ACCURACY OF SUCH MATERIALS.

(f) FURTHERMORE, EXCEPT AS TO THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE CLOSING DOCUMENTS, PURCHASER ACKNOWLEDGES THAT SELLER HAS NOT AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE PRESENCE OR INTEGRATION OF HAZARDOUS MATERIALS UPON OR WITHIN ANY REAL PROPERTY. IN THAT REGARD, PURCHASER WILL CONDUCT ITS OWN INVESTIGATIONS TO DETERMINE IF ANY REAL PROPERTY CONTAINS ANY HAZARDOUS MATERIALS OR TOXIC WASTE, MATERIALS, DISCHARGE, DUMPING OR CONTAMINATION, WHETHER SOIL, GROUNDWATER OR OTHERWISE, WHICH VIOLATES ANY FEDERAL, STATE, LOCAL OR OTHER GOVERNMENTAL LAW, REGULATION OR ORDER OR REQUIRES REPORTING TO ANY GOVERNMENTAL AUTHORITY.

BY INITIALING THIS CLAUSE BELOW, PURCHASER ACKNOWLEDGES THAT THIS ARTICLE HAS BEEN READ AND FULLY UNDERSTOOD, AND THAT PURCHASER HAS HAD THE CHANCE TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS MEANING AND SIGNIFICANCE.

/s/ TBB

PURCHASER’S INITIALS

6.2 Survival of Article VI. THE PROVISIONS OF THIS ARTICLE VI SHALL SURVIVE CLOSING.

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VII.

CLOSING

7.1 Closing Date. The parties acknowledge and agree that entities affiliated with Seller and Purchaser have entered into that certain Purchase and Sale Agreement of even date herewith with respect to certain real property and improvements located in close proximity to the Property and commonly known as The Club at Raider Ranch and The Isle at Raider Ranch (the “Raider Ranch PSA”). The “Closing Date” for purposes of this Agreement shall be the same date as the Closing Date under the Raider Ranch PSA, as modified from time to time. Neither Seller nor Purchaser shall be obligated to proceed to Closing under this Agreement unless and until Closing is to occur under the Raider Ranch PSA. If the Raider Ranch PSA terminates, for any reason, this Agreement shall automatically terminate at the same time and in the same manner as the termination of the Raider Ranch PSA.

7.2 Action Prior to the Closing Date by Seller. Seller agrees that, provided Purchaser has complied with its obligations under Section 7.3 hereof, on or before 1:00 p.m. (Eastern Time) on the Closing Date, Seller will deposit with Escrow Agent such items and instruments (executed and acknowledged, if appropriate) as may be necessary in order for Escrow Agent to comply with this Agreement, including, without limitation, the following:

(a) A special warranty deed substantially in the form and content attached hereto as Exhibit “C” prepared and executed by Seller and acknowledged before a Notary Public in the manner provided under the laws of the State of Texas, reflecting the sale and transfer to Purchaser of the Real Property and the Improvements owned by Seller (the “Deed”), subject only to those Permitted Exceptions applicable to the Property.

(b) Two (2) duplicate originals of a Bill of Sale, in the form and content attached hereto as Exhibit “D”, prepared and executed by Seller assigning, conveying and transferring to Purchaser the Personal Property owned by Seller (“Bill of Sale”);

(c) Two (2) duplicate originals of an Assignment and Assumption of Intangible Property, in the form and content attached hereto as Exhibit “E”, prepared and executed by Seller assigning and conveying to Purchaser, at no cost or expense to Seller and without representation or warranty (other than as expressly set forth herein), all of Seller’s right, title and interest in the Intangible Property owned by Seller (“Assignment and Assumption of Intangible Property”);

(d) Two (2) duplicate originals of an Assignment and Assumption of Contracts, in the form and content attached hereto as Exhibit “F”, prepared and executed by Seller assigning and conveying to Purchaser, at no cost or expense to Seller and without representation or warranty (other than as expressly set forth herein), all of Seller’s right, title and interest under the Assumed Contracts owned by Seller (“Assignment and Assumption of Contracts”);

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(e) A non-foreign affidavit, in the form and content attached hereto as Exhibit “G”, prepared and executed by Seller (“Non-Foreign Affidavit”), any state tax withholding affidavits as applicable, and an IRS Form 1099;

(f) A Bringdown Certificate executed by a duly authorized officer of Seller certifying to Purchaser that, as of the Closing Date, the representations and warranties made by Seller set forth in Section 9.2 of the Agreement remain true and correct in all material respects.

(g) All transfer tax and other tax returns, if any, which Seller is required by law to execute and acknowledge and to deliver, either individually or together with Purchaser, to any governmental authority as a result of the sale, if and to the extent the same are available as of the Closing Date;

(h) All written warranties of manufacturers, suppliers and contractors, if any, in possession or control of Seller and in effect on the Closing Date;

(i) A closing statement prepared by Escrow Agent and reasonably approved by Seller and Purchaser setting forth, among other things, all payments to and from Escrow in connection with the purchase and sale of the Property (the “Closing Statement”);

(j) One (1) original of the owner’s affidavit (including a gap indemnity), in the form attached hereto as Exhibit “H”, prepared and executed by Seller.

(k) All other documents consistent with the express provisions of this Agreement and reasonably required by Escrow Agent (including without limitation, evidence reasonably satisfactory to Escrow Agent that all necessary authorizations of the transaction contemplated hereby have been obtained by Seller), each in form and substance reasonably acceptable to Seller;

(l) Any documents or certificates necessary to transfer title to, or leasehold interests in, any motor vehicles being conveyed in connection herewith, each of which will be located at the Property;

(m) To the extent not previously delivered to Purchaser and within the possession or control of Seller or its Affiliates, originals (or copies, if originals are not available) of all items within the Due Diligence Materials (including, to the extent available, originals of all Assumed Contracts and Permits), which need not be deposited with Escrow Agent but instead may be delivered to Purchaser;

(n) Any releases necessary to extinguish the Existing Liens, as required hereby;

(o) Evidence that Seller has sent termination notices with respect to any Rejected Contracts; and

(p) Such other instruments or documents as may be reasonably necessary to effect or carry out the covenants and obligations to be performed by Seller pursuant to this Agreement.

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7.3 Action Prior to the Closing Date by Purchaser. Purchaser agrees that on or before 1:00 p.m. (Eastern Time) on the Closing Date, Purchaser will deposit with Escrow Agent the Closing Payment and all documents (executed and acknowledged, if appropriate) necessary to comply with the terms of this Agreement, including without limitation:

(a) To the extent that applicable law requires that the Deed, transfer tax or other tax forms, or recording forms be executed by the grantee, such instruments shall be executed by Purchaser and acknowledged in the presence of a Notary Public in accordance with the laws of the State of Texas;

(b) If applicable, pursuant to Section 14.4 below, two (2) fully executed duplicate originals of the Assignment of Purchase Contract executed by Purchaser and its assignee in the form and content attached hereto as Exhibit “I”;

(d) Two (2) duplicate originals of the Assignment and Assumption of Contracts executed by Purchaser;

(e) A Bringdown Certificate executed by a duly authorized officer of Purchaser certifying to Seller that, as of the Closing Date, the representations and warranties made by Purchaser set forth in Section 9.1 of the Agreement remain true and correct in all material respects.

(f) An executed Closing Statement; and

(g) Such other funds, instruments or documents as may be reasonably necessary to effect or carry out the covenants and obligations to be performed by Purchaser pursuant to this Agreement.

7.4 Recording of Deed. Subject to Section 10.3 below, Escrow Agent will cause the Deed to be dated as of the Closing Date and thereafter promptly recorded in the Official Records, and all other conveyance documents deposited with Escrow Agent to be dated as of the Closing Date, when (but in no event after the Closing Date) Escrow Agent (i) is prepared to issue the title insurance policy to be issued to Purchaser as contemplated in this Agreement, and (ii) holds for the account of Seller and Purchaser all items and funds (if any) to be delivered to Seller and Purchaser through the Escrow, after payment of costs, expenses, disbursements and prorations chargeable to Seller or Purchaser pursuant to the provisions of this Agreement.

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7.5 Prorations.

(a) All non-delinquent real estate and personal property general and special taxes and assessments for the Property and the Land for the current assessment year of the applicable taxing authority in which the Closing Date occurs shall be prorated as of the Closing Date. If the exact amount of taxes is not known at Closing, the proration will be based on an amount equal to one hundred five percent (105%) of the prior assessment year’s taxes and shall be adjusted directly between Seller and Purchaser once actual figures become available after Closing. Notwithstanding anything to the contrary in this Agreement, (i) Seller shall retain all right, title and interest in and to any and all property tax (both real property and personal property) refunds and claims for refunds with respect to the Property for any period prior to the Closing Date, and (ii) Seller is responsible for all taxes due and payable prior to the Closing Date in connection with the Property. Purchaser shall assume all obligations accruing from and after the Closing Date with respect to any agreements relating to the appealing of real estate taxes or real estate tax assessments, including the obligation to pay portions of amounts of real estate tax savings and costs and expenses related thereto. Seller shall be responsible for all sales, use and other transfer taxes imposed in connection with the sale and transfer of the Personal Property and the Intangible Property.

(b) Seller shall request each utility company providing utility service to the Real Property to cause all utility billings to be closed and billed as of the Closing Date in order that utility charges may be separately billed for the period prior to the Closing Date and the period on and after the Closing Date. In the event any such utility charges are not separately billed, the same shall be prorated. In connection with any such proration, it shall be presumed that utility charges were uniformly incurred during the billing period in which the Closing Date occurs. Seller shall receive a credit at Closing for any Utility Deposits that are transferred or made available to Purchaser. Purchaser shall arrange for placing all utility services and bills in its own name as of the Closing Date.

(c) All obligations, liabilities and accounts payable for the Real Property owing as of the Closing Date for services paid, incurred or ordered shall be prorated between Seller and Purchaser as of the Closing Date based on whether the services were, or are, be rendered, i.e., prior to, or on or after the Closing Date.

(d) Except as covered by the terms of Section 7.5(a) above, all water and sewer charges, taxes (other than ad valorem property taxes), and any unpaid taxes payable in arrears, shall be prorated as of the Closing Date. Seller will be credited for that portion of taxes and fees paid by Seller allocable to the period after the Closing Date.

(e) All payments and receipts, as applicable, under the Assumed Contracts shall be prorated between Purchaser and Seller as of the Closing Date. Seller shall receive a credit for all prepayments and deposits thereunder which are transferred to Purchaser.

(f) All other income derived by Seller from the Property accruing or relating to the period up to and including the Cut-Off-Time shall be paid to such Seller. All other income derived by such Seller from the Property accruing or relating to the period on and after the Cut-Off-Time shall be paid to Purchaser.

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(g) Except as otherwise expressly provided in this Agreement, all apportionments and adjustments shall be made in accordance with generally accepted accounting principles. The computation of the adjustments shall be jointly prepared by Seller and Purchaser. In the event any prorations or apportionments made under this Section 7.5 shall prove to be incorrect for any reason, then any party shall be entitled to an adjustment to correct the same in accordance with the remaining terms of this Section 7.5(g). To the extent the exact amount of any adjustment item provided for in this Section 7.5 cannot be precisely determined on the Closing Date, such prorations and apportionments shall be tentatively prorated on the basis of the best data then available and re-prorated when the information is available. Notwithstanding the foregoing, any adjustment or re-proration pursuant to the two immediately preceding sentences shall be made, if at all, within one hundred eighty (180) days after the Closing Date (except with respect to taxes and assessments, in which case such re-proration shall be made within sixty (60) days after the information necessary to perform such re-proration is available). All payments to be made as a result of the final results of the adjustments shall be paid to the party entitled to the same within thirty (30) days after the final determination thereof. Seller and Purchaser agree that the insurance policies relating to the Property will not be assigned to Purchaser (and Seller shall pay any cancellation fees or minimum earned premiums resulting from the termination of the policies) and Purchaser shall be responsible for arranging for its own insurance as of the Closing Date.

7.6 Closing Costs. With respect to the title insurance policy insuring Purchaser’s title to the Property, Seller shall bear the cost of the premium for the base property title insurance policy but Purchaser shall bear the cost of any and all endorsements to the title insurance policy requested by Purchaser or its lender. Purchaser shall bear the cost of any update to the Survey obtained by Purchaser and one-half of all escrow and closing fees relating to the sale of the Property imposed by Escrow Agent. Seller shall pay any compensation due to Financial Advisor, and one-half (1/2) of all escrow and closing fees relating to the sale of the Property (but not in connection with any financing by Purchaser, which shall be paid solely by Purchaser). Each party shall pay its own attorneys’ fees pertaining to the sale of the Property. Purchaser shall be responsible for the payment of any mortgage taxes or recording fees for the mortgage securing Purchaser’s loan. All other costs pertaining to the sale of the Property shall be allocated as is customary for real estate transactions where the Property is located

7.7 Possession. Purchaser shall be entitled to sole possession of the Property on the Closing Date, subject to the terms of the Assumed Contracts.

7.8 Post-Closing Audit. Seller acknowledges and agrees to assist the Purchaser in conducting, no later than seventy-four (74) days following the Closing Date, an audit of property-level financials for the Property as specified by Rule 3-05 of Regulation S-X of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, provided such audit shall be at the sole cost and expense of Purchaser. In connection therewith, Seller agrees to obtain and provide to the auditors, at no cost to Seller, any and all data and financial information, except for information constituting Excluded Assets, in the possession of Seller that are necessary or required by the auditors in connection with their preparation and conducting of the foregoing audit. The rights and obligations of Purchaser and Seller under this Section 7.8 shall survive Closing.

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VIII.

ADDITIONAL COVENANTS AND INDEMNITIES

8.1 Purchaser’s Covenants. Purchaser covenants and agrees to defend, indemnify, protect, defend, and hold harmless Seller, and its affiliates, owners, members, partners, employees, lenders, agents and representatives, from and against any and all Claims (i) arising from the acts and omissions of Purchaser and its agents, employees and contractors occurring in connection with or as a result of, any inspections, tests or examinations of or to the Property prior to the Closing Date, and (b) caused by or arising out of any material misrepresentation by Purchaser in connection with this Agreement. This indemnity shall survive Closing for the Survival Period.

8.2 Seller Covenants. Seller covenants to Purchaser as follows:

(a) Seller shall, during the term of this Agreement, use commercially reasonable efforts to comply in all material respects with all Legal Requirements affecting the Property and all terms, covenants and conditions of any Assumed Contracts or Business Agreements affecting the Property. Prior to the Closing Date, Seller shall maintain (or replace with policies of like amounts) all existing insurance policies insuring the Property. Seller may extend, amend, modify or terminate any of the Contracts relating to the Property as it deems appropriate to operate, service and maintain the Property consistent with normal business practices, and may enter into new Contracts; provided, however, that so long as Purchaser is not in default of any of its obligations under this Agreement beyond the expiration of any applicable notice or cure period, then Seller shall not without the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), enter into (i) any new Contract or amend or modify any existing Contract that would be binding on Purchaser or the Real Property following the Closing other than those involving payments of less than Five Thousand and NO/100 Dollars ($5,000.00) per annum or which are terminable with not more than sixty (60) days’ notice without penalty except to the extent such amendment or modification is required under the Legal Requirements, or (ii) any additional Business Agreements or amend or modify any existing Business Agreement affecting the Property that would be binding on Purchaser following Closing except to the extent such amendment or modification is required under the Legal Requirements. Other than in the ordinary course of business at the Property, no part of the Property, or any interest therein, will be sold or otherwise transferred or encumbered without Purchaser’s prior written consent, which approval shall not be unreasonably withheld or delayed.

(b) Seller shall promptly notify Purchaser to the extent Seller receives written notice from a third party or otherwise acquires knowledge of any event or occurrence that could be reasonably anticipated to have a material adverse effect on the operation or condition of the Property, including receipt of notice of condemnation or violation of any Legal Requirement or order, including without limitation, any Legal Requirement relating to health, safety, fire, environmental or zoning that could be reasonably anticipated to have a material adverse effect on the operation, leasing, or condition of the Property.

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(c) Until such time as this Agreement terminates, Seller shall not solicit or initiate any inquiries or proposals from, negotiate with, or consider the merits of any inquiries or proposals from, any person relating to any sale of the Property.

(d) As more particularly described in Schedule “9.2(g)”, Seller has received notice that Seller is in default under the Texas Tech Contract. Seller agrees to use commercially reasonable efforts to obtain, during the Due Diligence Period, a release or a conditional release (conditioned on the payment of funds at Closing) of any claims in connection with the Texas Tech Contract from the Texas Tech Alumni Association. During the Due Diligence Period, Seller further agrees to use commercially reasonable efforts to negotiate an indemnification agreement from appropriate parties in favor of Purchaser with respect to any claims related to the Texas Tech Contract, which indemnification agreement would be executed and effective as of Closing if the release or conditional release referenced in the immediately preceding sentence is not obtained at or prior to Closing.

IX.

REPRESENTATIONS AND WARRANTIES

9.1 Purchaser’s Representations and Warranties. Purchaser represents and warrants to Seller that as of the date hereof and as of the Closing Date:

(a) Purchaser (i) is a limited partnership, duly formed, validly existing, and in good standing under the laws of the State of Delaware, (ii) is, or on the Closing Date will be, duly qualified to do business in the State of Texas, and (iii) has the full power and authority to enter into this Agreement and to carry out the transactions contemplated hereby to be carried out by it.

(b) Subject only to the approval of its Board of Directors, which approval will be deemed to have been obtained prior to the end of the Due Diligence Period if Purchaser does not terminate this Agreement pursuant to Section 2.3, the performance of this Agreement and the transactions contemplated hereunder by Purchaser have been duly authorized by all necessary action on the part of Purchaser, and this Agreement is binding on and enforceable against Purchaser in accordance with its terms. Purchaser shall, on or prior to the Closing Date, furnish Seller with certified resolutions evidencing that Purchaser has been duly authorized to enter into and perform this Agreement and the transactions contemplated hereunder. No further consent of any shareholder, creditor, board of directors, governmental authority or other party to such execution, delivery and performance hereunder is required. The person(s) signing this Agreement, and any document pursuant hereto on behalf of Purchaser, has full power and authority to bind Purchaser.

(c) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will violate any restriction, court order, judgment, law, regulation, charter, bylaw, instrument or agreement to which Purchaser is subject.

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(d) Purchaser has not (i) made any general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition in bankruptcy by Purchaser’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Purchaser’s assets, or (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Purchaser’s assets, (v) admitted in writing its inability to pay its debts as they come due, and has no current plans to do or undertake, any of the foregoing.

9.2 Seller’s Representations and Warranties. Subject to the provisions of Section 9.5, Section 11.3, Section 11.4, and Section 14.15, Seller represents and warrants to Purchaser that as of the date hereof and as of the Closing Date:

(a) Seller is a limited partnership, duly organized under the laws of the State of Delaware, validly existing, and in good standing under the laws of such state, qualified or registered to do business in the State of Texas, and has the full power and authority to enter into this Agreement and to carry out the transactions contemplated hereby to be carried out by it.

(b) The performance of this Agreement and the transactions contemplated hereunder by Seller have been duly authorized by all necessary action on the part of Seller, and this Agreement is binding on and enforceable against Seller in accordance with its terms. Seller shall, on or prior to the Closing Date, furnish Purchaser with certified resolutions evidencing that Seller has been duly authorized to enter into and perform this Agreement and the transactions contemplated hereunder. No further consent of any member, manager, creditor, governmental authority or other party to such execution, delivery and performance hereunder is required. The person(s) signing this Agreement, and any document pursuant hereto on behalf of Seller, has full power and authority to bind Seller.

(c) Neither the execution of this Agreement nor the consummation of the transactions contemplated herein will violate any restriction, court order, judgment, law, regulation, charter, bylaw, instrument, or agreement to which Seller or its respective Property (or any portion thereof) are subject.

(d) Seller is not a foreign seller as defined in the “Foreign Investment in Real Property Tax Act.”

(e) There are no demands, complaints, actions, suits or arbitrations pending or, to Seller’s actual knowledge, threatened nor, to Seller’s actual knowledge, are there any governmental investigations or other proceedings pending or threatened against or affecting Seller or the Property (or any portion thereof) except demands, complaints, actions, suits, arbitrations, governmental investigations or other proceedings that (i) are fully covered by insurance policies (subject to customary deductibles) or (ii) are listed on Schedule “9.2(e)” attached hereto.

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(f) Neither Seller nor any general partner of Seller has (i) made any general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition in bankruptcy by Seller’s or such general partner’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s or such general partner’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s or such general partner’s assets, or (v) admitted in writing its inability to pay its debts as they come due, and has no current plans to do or undertake any of the foregoing.

(g) Attached hereto as Schedule “9.2(g)” is a true and complete, in all material respects, list of all Material Contracts as of the Effective Date and, to Seller’s knowledge, is inclusive of all Contracts as of the Effective Date. Except as set forth on Schedule “9.2(g)” attached hereto, as of the Effective Date, Seller has not received written notice from any party to the Material Contracts of the occurrence of a material default by Seller in the performance of any of its material obligations under the Material Contracts that remains uncured as of the Effective Date. To Seller’s knowledge, except as set forth on Schedule “9.2(g),” Seller has performed in all material respects all of its obligations under each Material Contract to which it is a party and, to Seller’s knowledge, no fact or circumstance has occurred, which by itself or with the passage of time or the giving of notice or both would constitute a default by Seller under any such Material Contract. Further, to Seller’s knowledge, as of the Effective Date, except as set forth on Schedule “9.2(g),” all other parties to such Material Contracts have performed all of their obligations thereunder in all material respects and are not in default thereunder.

(h) Except as set forth on Schedule “9.2(h)”, as of the Effective Date, Seller has not received any written notice from any governmental authority nor does Seller possess any actual knowledge that all or any portion of the Property is or was at any time within the one-year period immediately prior to the Effective Date in material violation of any of the Legal Requirements, which material violation has not been cured.

(i) Seller is not and is not acting, directly or indirectly, for, or on behalf of, any person or Governmental Entity named by any Executive Order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or named by the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person,” or other banned or blocked Person or Governmental Entity pursuant to any Legal Requirement that is enforced or administered by the Office of Foreign Assets Control, and is not engaging in the transactions contemplated by this Agreement, directly or indirectly, on behalf of, or instigating or facilitating the transactions contemplated by this Agreement, directly or indirectly, on behalf of, any such person or Governmental Entity.

(j) Seller has delivered to Purchaser copies of all final environmental reports or studies prepared for Seller by third party consultants in Seller’s possession or control relating to the Real Property, which reports are listed on Schedule “9.2(j)” attached hereto. To Seller’s actual knowledge and except for any matters which are disclosed in the reports listed on Schedule “9.2(j)”, Seller is not aware that the Real Property is not in compliance with any Environmental Requirement. Seller has not received any written notice of any pending action or proceeding arising out of the environmental condition of

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the Real Property, Hazardous Materials located on the Real Property, or any alleged violation of Environmental Requirements, which either (i) has not been remediated or otherwise addressed in all material respects or (ii) would reasonably be expected to be material to the development of the Property.

(k) There are no Leases or Resident Agreements applicable to the Property.

9.3 Seller’s Knowledge. Wherever the phrase “to Seller’s actual knowledge” or any similar phrase stating or implying a limitation on the basis of knowledge appears in this Agreement, unless specifically otherwise qualified or except as otherwise provided herein, such phrase shall mean the present actual knowledge of Craig W. Spaulding or Patrick McGonigle, without any duty of inquiry, any imputation of the knowledge of another, or independent investigation of the relevant matter by any individual(s), and without any personal liability. Wherever the phrase “in Seller’s possession”, “in the possession of Seller” or similar phrase appears in this Agreement, such phrase shall be deemed to mean only to the extent the material or other item referred to by such phrase is located at the Property or in Seller’s offices in Dallas, Texas.

9.4 Failure of Condition But No Seller Breach. Notwithstanding any provision of this Agreement to the contrary (including Section 11.1 below), should any of the representations and warranties of Seller become false or inaccurate prior to the Closing Date or if Seller discovers that any representations and warranties are false or inaccurate and informs Purchaser in writing prior to the Closing Date, then Purchaser’s sole recourse shall be to either (i) to terminate this Agreement and cancel the Escrow, in which case the Deposit shall be returned to Purchaser and neither Seller nor Purchaser will have any further liability or obligation under this Agreement (except for those obligations which survive in accordance with their terms), or (ii) proceed with the closing, without reservation, in which case Purchaser shall be deemed to have waived all Claims against Seller with respect to such false or inaccurate representation and warranty. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in the event of any right by Purchaser to terminate this Agreement (including without limitation, pursuant to Sections 10.3 and 11.2 below), Seller shall first have the right, at its sole option by written Notice to Purchaser within two (2) business days of the date of Seller’s receipt of such Notice of termination by Purchaser, to elect to cure any failure of a covenant, condition or inaccurate representation or warranty, by the payment of money or otherwise (but, in all events, in a manner reasonably acceptable to Purchaser), in which case, (a) the Closing Date will be extended at Seller’s option for a period of time not to exceed ten (10) days for Seller to effectuate such cure, and (b) Purchaser and Seller shall each act reasonably and in good faith to agree on the sufficiency of such cure. If Seller is unable to cure any such failure, inaccuracy, misrepresentation, failed covenant or obligation or other condition, then Purchaser’s sole recourse shall be to either (i) to terminate this Agreement and cancel the Escrow, in which case the Deposit shall be returned to Purchaser and neither Seller nor Purchaser will have any further liability or obligation under this Agreement (except for those obligations which survive in accordance with their terms), or (ii) proceed with the closing, without reservation, in which case Purchaser shall be deemed to have waived all Claims against Seller with respect to such false or inaccurate representation and warranty.

9.5 No Survival Period. The representations and warranties of Seller and Purchaser set forth in this Agreement shall survive until Closing, whereupon they shall merge into the Deed and terminate.

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CONDITIONS PRECEDENT TO CLOSING

10.1 Conditions to Seller’s Obligations. The obligation of Seller to close the transaction contemplated hereunder shall be subject to the satisfaction or Notice of its waiver (delivered to Purchaser and Escrow Agent), in whole or in part, by Seller of each of the following conditions precedent:

(a) Except by reason of a default by Seller, Escrow Agent is in a position to and will deliver to Seller the instruments and funds accruing to Seller pursuant to the provisions of this Agreement and the Escrow Agreement; and

(b) There is no existing uncured material breach of any of the covenants, representations, warranties or obligations of Purchaser set forth in this Agreement that has not been waived by Seller.

The foregoing conditions contained in this Section 10.1 are intended solely for the benefit of Seller. Seller shall at all times have the right to waive any condition precedent, provided that such waiver is in writing and delivered to Purchaser and Escrow Agent.

10.2 Conditions to Purchaser’s Obligations. The obligations of Purchaser to close the transaction contemplated hereunder shall be subject to the satisfaction or Notice of its waiver (delivered to Seller and Escrow Agent), in whole or in part, by Purchaser of each of the following conditions precedent, and Purchaser shall have no right to terminate this Agreement or delay the Closing for any other reason:

(a) Except by reason of a default by Purchaser, Escrow Agent is in a position to and will deliver to Purchaser the instruments and funds, if any, accruing to Purchaser pursuant to the provisions of this Agreement;

(b) There is no existing uncured material breach of any of the covenants, representations, warranties or obligations of Seller set forth in this Agreement that has not been waived by Purchaser, and Seller’s representations and warranties contained in or made pursuant to this Agreement shall be true and correct in all material respects as if made again on the Closing Date, but subject to Seller’s right to cure any of the same pursuant to Section 9.4 above; and

The foregoing conditions contained in this Section 10.2 are intended solely for the benefit of Purchaser. Purchaser shall at all times have the right to waive any condition precedent, provided that such waiver is in writing and delivered to Seller and Escrow Agent.

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10.3 Failure of Conditions to Closing. Escrow Agent shall be responsible for confirming, on or before the Closing Date, that the conditions to Closing set forth in Sections 10.1 and 10.2 hereof, and as set forth elsewhere in this Agreement, have been satisfied. Purchaser and Seller hereby agree to deliver their Notices to Escrow Agent, on or before the Closing Date, of the satisfaction or waiver of all conditions to Closing hereunder, and, in the event that both Purchaser and Seller specifically notify and instruct Escrow Agent, in writing, to proceed to Closing hereunder, all such conditions to Closing hereunder that are not otherwise satisfied shall be deemed to have been waived by both Purchaser and Seller. Escrow Agent shall not proceed to Closing hereunder unless both Purchaser and Seller specifically notify and instruct Escrow Agent to do so. Seller and Purchaser shall use commercially reasonable efforts to satisfy the closing conditions set forth herein. Each party shall at any time and from time to time after the Closing execute, acknowledge where required, and deliver such further instruments and documents, and take such other action as may be reasonably requested by the other party in order to carry out the purposes of this Agreement. Except as otherwise expressly provided herein, in the event any of the conditions to closing set forth in this Agreement are not satisfied (other than as the result of a default by Purchaser or Seller under the terms of this Agreement) or waived by the applicable party by the Closing Date, then either Seller or Purchaser (as applicable) shall have the right at its option to declare this Agreement terminated and null and void, in which case the Deposit shall be immediately returned to Purchaser (and such right shall survive any termination of this Agreement) and each of the parties shall be relieved from further liability to the other.

XI.

REMEDIES FOR DEFAULTS; LIQUIDATED DAMAGES

11.1 Default by Purchaser Prior to Closing. IN THE EVENT THE CLOSING AND THE CONSUMMATION OF THE TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY MATERIAL DEFAULT OF PURCHASER, PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, PURCHASER AND SELLER DO HEREBY AGREE THAT, IN THE EVENT OF SUCH DEFAULT, A REASONABLE ESTIMATE OF THE TOTAL DAMAGES THAT SELLER WOULD SUFFER IN THE EVENT THAT PURCHASER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY IS AND SHALL BE, AS SELLER’S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY), AN AMOUNT EQUAL TO THE DEPOSIT. SAID AMOUNT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE FAILURE OF PURCHASER TO CLOSE AND CONSUMMATE THE TRANSACTIONS HEREIN CONTEMPLATED. ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES IN CONNECTION WITH PURCHASER’S FAILURE TO CLOSE AND CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREIN ARE EXPRESSLY WAIVED BY SELLER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. UPON SUCH DEFAULT BY PURCHASER THAT REMAINS UNCURED AFTER THE EXPIRATION OF ANY APPLICABLE CURE PERIOD, THIS AGREEMENT SHALL BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT ANY INDEMNIFICATION OBLIGATIONS, THE RIGHTS OF SELLER AND PURCHASER

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THAT SHALL SURVIVE AS PROVIDED HEREIN, AND FOR THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM PURCHASER AND ESCROW AGENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11.1, NOTHING HEREIN SHALL LIMIT SELLER’S RECOVERY IN CONNECTION WITH ANY EXPRESS INDEMNITY BY PURCHASER PROVIDED IN THIS AGREEMENT.


		/s/ CWS		/s/ TBB
		SELLER’S INITIALS		PURCHASER’S INITIALS

11.2 Default by Seller Prior to Closing. IN THE EVENT THE CLOSING AND THE CONSUMMATION OF THE TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF SELLER, PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH PURCHASER MAY SUFFER. THEREFORE, PURCHASER AND SELLER DO HEREBY AGREE THAT, IN THE EVENT OF SUCH DEFAULT, PURCHASER MAY, AS ITS SOLE RECOURSE AND REMEDY (AT LAW OR IN EQUITY), EITHER: (a) PURSUE AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE, PROVIDED THAT SUCH ACTION IS INITIATED WITHIN NINETY (90) DAYS FOLLOWING THE CLOSING DATE SET FORTH HEREIN; OR (b) TERMINATE THIS AGREEMENT AND RECEIVE THE RETURN OF THE DEPOSIT PLUS DAMAGES FROM SELLER IN AN AMOUNT EQUAL TO PURCHASER’S THIRD-PARTY EXPENSES ACTUALLY INCURRED IN CONNECTION WITH THE TRANSACTION CONTEMPLATED HEREIN, INCLUDING WITHOUT LIMITATION THE NEGOTIATION OF THIS AGREEMENT, WHICH DAMAGES (NOT INCLUDING THE RETURN OF THE DEPOSIT) SHALL NOT EXCEED THIRTY THOUSAND DOLLARS ($30,000.00). ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES IN CONNECTION WITH SELLER’S FAILURE TO CLOSE AND CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREIN (OTHER THAN AS SPECIFIED IN (a) AND (b) HEREOF) ARE EXPRESSLY WAIVED BY PURCHASER. UPON DEFAULT BY SELLER, IF THIS AGREEMENT IS TERMINATED BY PURCHASER, NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT ANY INDEMNIFICATION OBLIGATIONS, AND THE RIGHTS OF SELLER AND PURCHASER THAT SHALL SURVIVE AS PROVIDED HEREIN.


		/s/CWS		/s/ TBB
		SELLER’S INITIALS		PURCHASER’S INITIALS

11.3 No Survival of Purchaser’s Claims. The representations and warranties, covenants and indemnities of Seller contained herein or in any Closing Document shall not survive the Closing. Any Claim that Purchaser may have at any time after the Closing against Seller for breach of any such representation, warranty, covenant or indemnity, whether known or unknown, shall not be valid or effective and the party against whom such Claim is asserted shall have no liability with respect thereto. For purposes of clarification, the terms of this Section 11.3 shall not apply to any liability of Seller to any third parties unaffiliated with Purchaser regarding the Retained Liabilities.

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11.4 Limitations on Liability. To the maximum extent permitted by applicable law, no shareholder, director, officer or employee of any party to this Agreement shall have any personal liability with respect to the liabilities or obligations of such party under this Agreement or any document executed by such party pursuant to this Agreement.

XII.

FINANCIAL ADVISOR

Seller represents and warrants to Purchaser, and Purchaser represents and warrants to Seller, that except for KeyBanc Capital Markets Inc. (“Financial Advisor”), no financial advisor, broker or commission agent has been engaged by it or their affiliates, respectively, in connection with the transaction contemplated by this Agreement or to its knowledge is in any way connected with this transaction. Purchaser shall be responsible for the payment of any commission, finder’s fee or other sum initiated by any financial advisor, broker, commission agent or other person engaged or retained by Purchaser in connection with the transaction contemplated by this Agreement. Seller shall be responsible for the payment of any compensation, commission, finder’s fee or other sum initiated by any financial advisor, broker, commission agent or other person engaged or retained by Seller in connection with the transaction contemplated by this Agreement, including without limitation, Financial Advisor. Seller and Purchaser (except with respect to the compensation which shall be paid by Seller to Financial Advisor) each agree to indemnify, protect, defend and hold the other harmless from and against any claims, actions, suits or demands for payment of any compensation, commission, finder’s fee or other sum initiated by any financial advisor, broker, commission agent or other person which such party or its representatives has engaged or retained or with which it has had discussions concerning or which shall be based upon any statement or agreement alleged to have been made by such party, in connection with the transaction contemplated by this Agreement or the sale of the Property by Seller. The provisions of this Article XII shall survive the Closing.

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XIII.

NOTICES

Except as otherwise expressly provided in this Agreement, all notices, requests, demands and other communications hereunder (“Notice”) shall be in writing and shall be deemed delivered by (i) hand delivery upon receipt, (ii) registered mail or certified mail, return receipt requested, postage prepaid, upon delivery to the address indicated in the Notice, (iii) by confirmed telecopy or facsimile transmission when sent, and (iv) overnight courier (next business day delivery) on the next business day at 12:00 noon, whichever shall occur first, as follows:

If to Seller:

c/o South Bay Partners, Ltd.

5307 E Mockingbird Lane, Ste.1010

Dallas, TX 75206

Attn: Craig W. Spaulding

Telephone: (214) ###-###-####

Facsimile: (214) ###-###-####

With a copy to:

Arent Fox LLP

1717 K Street, N.W.

Washington, D.C. 20036-5339

Attention: Kenneth S. Jacob, Esq.

Telephone: (202) ###-###-####

Facsimile: (202) ###-###-####

If to Purchaser:

CHP Partners, LP

c/o CNL Healthcare Properties, Inc.

450 South Orange Avenue, Suite 1200

Orlando, FL ###-###-####

Attention: Tracey B. Bracco Esq.

Telephone: (407) ###-###-####

Facsimile: (407) ###-###-####

Email: ***@***

With a copy to:

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 North Eola Drive

Orlando, Florida 32801

Attention: William T. Dymond, Jr., Esq.

Telephone: (407) ###-###-####

Facsimile: (407) ###-###-####

Email: ***@***

Any correctly addressed Notice that is refused, unclaimed or undelivered because of an act or omission of the party to be notified shall be considered to be effective as of the first day that the Notice was refused, unclaimed or considered undeliverable by the postal authorities, messenger or overnight delivery service. The parties hereto shall have the right from time to time, and at any time, to change their respective addresses and each shall have the right to specify as its address any other address within the United States of America, by giving to the other party at least five (5) days prior Notice thereof, in the manner prescribed herein; provided, however, that to be effective, any such change of address must be actually received (as evidenced by a return

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receipt). Telephone numbers and email addresses, if listed, are listed for convenience purposes only and not for the purposes of giving Notice pursuant to this Agreement. Any Notice that is required or permitted to be given by either party to the other under this Agreement may be given by such party or its legal counsel, who are hereby authorized to do so on the party’s behalf.

XIV.

MISCELLANEOUS

14.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. If any legal action is necessary to enforce the terms and conditions of this Agreement, the parties hereby agree that the courts in the State of Texas shall be the sole jurisdiction and venue for the bringing of the action.

14.2 Exhibits and Schedules a Part of This Agreement. The Exhibits and Schedules attached hereto are incorporated in this Agreement by reference and are hereby made a part hereof.

14.3 Executed Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. This Agreement shall become effective upon the due execution and delivery of this Agreement to the parties hereto.

14.4 Assignment. Purchaser may not assign, convey and otherwise transfer all or any part of its interest or rights herein without the prior written consent of Seller, which consent may be withheld in Seller’s sole discretion. Notwithstanding the foregoing, however, Purchaser may (without Seller’s consent but with advance written notice to Seller), by not later than one (1) business day prior to Closing, assign and transfer in whole or in part all of its rights and obligations under this Agreement to one (1) or more wholly owned subsidiary(ies) thereof, or to a one hundred percent (100%) owned affiliate(s) thereof, or to any entity controlled (directly or indirectly, through voting or equity ownership) by Purchaser in the form of the Assignment of Purchase Agreement attached hereto as Exhibit “I”; provided, however, that Purchaser shall not be released of its obligations under this Agreement as a result of any such assignment. No transfer or assignment in violation of the provisions hereof shall be valid or enforceable.

14.5 IRS—Form 1099-S. For purposes of complying with Section 6045 of the Internal Revenue Code of 1986, as amended, Escrow Agent shall be deemed the “person responsible for closing the transaction” and shall be responsible for obtaining the information necessary to file with the Internal Revenue Service Form 1099-S, “Statement for Recipients of Proceeds from Real Estate, Broker and Barter Exchange Transactions.”

14.6 Successors and Assigns. Subject to the provisions of Section 14.4 hereof, this Agreement shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.

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14.7 Time is of the Essence. Time is of the essence of this Agreement.

14.8 Entire Agreement. This Agreement, and Exhibits and Schedules and other documents and instruments attached to or referenced herein, contain the entire understanding and agreement between the parties hereto with respect to the purchase and sale of the Property, and all prior and contemporaneous understandings, letters of intent, agreements and representations, whether oral or written, are entirely superseded. Except for any of the following expressly contained in this Agreement, Seller and Purchaser each expressly disclaim any reliance on any oral or written representations, warranties, comments, statements or assurances made by Seller, Purchaser, and any of their respective affiliates, and their respective agents, employees, representatives, attorneys, financial advisors or brokers, as an inducement or otherwise, to Purchaser’s and Seller’s respective execution hereof. No amendment of this Agreement shall be binding unless in writing and executed by the parties hereto.

14.9 Further Assurances. Whenever and so often as requested by a party, the other party will promptly execute and deliver or cause to be executed and delivered all such other and further instruments, documents or assurances, and promptly do or cause to be done all such other and further things as may be necessary and reasonably required in order to further and more fully vest in such requesting party all rights, interests, powers, benefits privileges and advantages conferred or intended to be conferred upon it by this Agreement, or to effectuate the termination of this Agreement and cancellation of the Escrow (if otherwise permitted hereunder). The terms of this Section shall survive Closing and/or termination of this Agreement.

14.10 Waiver. Failure or delay by either party to insist on the strict performance of any covenant, term, provision or condition hereunder, or to exercise any option herein contained, or to pursue any claim or right arising herefrom, shall not constitute or be construed as a waiver of such covenant, term, provision, condition, option, claim or right (except that if a party proceeds to Closing, notwithstanding the failure of a condition to its obligation to close, then such condition shall be deemed waived by virtue of the Closing). Any waiver by either party shall be effective only if in a writing delivered to the other party hereto and setting forth, with specificity, the covenant, term, provision or condition so waived. Any such waiver shall not constitute or be construed as a continuing waiver of any subsequent default.

14.11 Headings. The headings of this Agreement are for purposes of convenience only and shall not limit or define the meaning of the provisions of this Agreement.

14.12 Risk of Loss. The risk of loss shall be as follows:

(a) If, prior to the Closing Date, Seller receives notice that a material portion of a Property (or access or other material rights in connection therewith) as would materially adversely affect the development or uses of the Property is, or has been threatened in writing by a governmental authority of competent jurisdiction, to be taken by condemnation or eminent domain, Seller shall promptly notify Purchaser, and at the election of Purchaser this Agreement shall, upon the giving of Notice of such event or of the condemning authorities’ intention so to take the Property, to the extent that the taking or condemnation is reasonably anticipated to materially adversely affect the development or uses of the Property, Purchaser may terminate this Agreement. If Purchaser does not

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elect to terminate this Agreement prior to the Closing Date, on the Closing Date all of the proceeds of any award or payment made or to be made by reason of such taking shall be assigned by Seller to Purchaser, and any money theretofore received by Seller in connection with such taking shall be paid over to Purchaser, whereupon Purchaser shall pay the Purchase Price without abatement by reason of such taking. Seller shall not settle, agree to, or accept any award or payment in connection with a taking of less than all of the Property without obtaining Purchaser’s prior written consent in each case, which consent shall not be unreasonably withheld or delayed.

(b) In the event of any termination of this Agreement in its entirety by Purchaser pursuant to this Section 14.12, the Deposit shall be returned to Purchaser and neither party shall have any further liability with respect to this Agreement, except to the extent of such provisions which expressly survive such transaction.

14.13 Construction of Agreement. The parties hereto have negotiated this Agreement at length, and have had the opportunity to consult with, and be represented by, their own competent counsel. This Agreement is, therefore, deemed to have been jointly prepared. In determining the meaning of, or resolving any ambiguity with respect to, any word, phrase or provision of this Agreement, no uncertainty or ambiguity shall be construed or resolved against any party under any rule of construction, including the party primarily responsible for the drafting and preparation of this Agreement. The words “herein,” “hereof,” “hereunder” and words of similar reference shall mean this Agreement. The words “this Agreement” include the exhibits, schedules addenda and any future written modifications, unless otherwise indicated by the context. All words in this Agreement shall be deemed to include any number or gender as the context or sense of the Agreement requires. The words “will,” “shall” and “must” in this Agreement indicate a mandatory obligation. The use of the words “include,” “includes” and “including” followed by one or more examples is intended to be illustrative and is not a limitation on the scope of the description or term for which the examples are provided. All dollar amounts set forth in this Agreement are stated in United States Dollars, unless otherwise specified. The words “day” and “days” refer to calendar days unless otherwise stated. The words “business day” refers to a day other than a Saturday, Sunday or Legal Holiday (hereinafter defined). The words “month” and “months” refer to calendar months unless otherwise stated. The words “year” and “years” refer to calendar years unless otherwise stated. If any date herein set forth for the performance of any obligations by Seller or Purchaser or for the delivery of any instrument or notice as herein provided should fall on a Saturday, Sunday or Legal Holiday, the compliance with such obligations or delivery will be deemed acceptable on the next business day following such Saturday, Sunday or Legal Holiday. As used herein, the term “Legal Holiday” will mean any local or federal holiday on which post offices are closed in the State of Texas.

14.14 No Public Disclosure. The parties agree that no party shall, with respect to this Agreement and the transactions contemplated hereby, contact or conduct negotiations with public officials, make any public pronouncements, issue press releases or otherwise furnish information regarding this Agreement or the transactions contemplated hereby to any third party without the consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, except as may be required by law or securities regulations or as may be reasonably necessary, on a confidential basis, to inform any rating agencies, potential sources of financing, financial analysts, or to entities involved with a sale of a controlling interest in Seller,

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Purchaser or any of their Affiliates or to receive legal, accounting and/or tax advice; provided, however, that, if such information is required to be disclosed by law, the party so disclosing the information will use reasonable efforts to give notice to the other parties as soon as such party learns that it must make such disclosure. Notwithstanding the foregoing, if such information is required to be disclosed to any governmental authority to facilitate the issuance of Permits or obtain zoning information, the disclosing party may disclose such information without the consent of the other parties and shall promptly give written notice to the other parties of such information which was disclosed. This Section 14.14 shall be subject to the terms of the confidentiality provisions of Section 14.16.

14.15 Covenants, Representations and Warranties. By proceeding with the closing of the sale transaction, Seller and Purchaser shall be deemed to have waived, and so covenant to waive, any claims of defaults or breaches by the other party existing on or as of the Closing Date whether under this Agreement or any other document or instrument executed by the other party in connection with this transaction, of which the waiving party was made aware by Notice from the defaulting or breaching party (and, if applicable, which is described on Seller’s certification of representations and warranties to be delivered at Closing) prior to the Closing Date for which the other party shall have no liability.

14.16 Confidentiality. Other than as required or permitted by the terms of this Agreement or required by any Legal Requirements (including without limitation, any disclosures required or advisable by Seller or Purchaser under any applicable securities laws or practices), no party hereto shall release or cause or permit to be released any press notices or releases or publicity (oral or written) or advertising promotion relating to, or otherwise announce or disclose or cause or permit to be announced or disclosed, in any manner whatsoever, the terms and conditions of the purchase and sale transaction for the Property, nor shall Purchaser or its agents or representatives disclose, in any manner whatsoever, (a) the information provided to Purchaser by any Seller or its representatives, or (b) any analyses, compilations, studies or other documents or records prepared by or on behalf of Purchaser, in connection with Purchaser’s investigation of the Property, without first obtaining the written consent of Seller (collectively, “Proprietary Information”). Proprietary Information shall not include (i) publicly available information or (ii) information that becomes publicly available for reasons other than a breach of this section by Purchaser. The foregoing shall not preclude Purchaser (i) from discussing the Proprietary Information with any person who is employed by Purchaser or who, on behalf of Purchaser, is actively and directly participating in the purchase and sale of the Property, including, without limitation, to Purchaser’s shareholders, partners, members, existing or prospective lenders, attorneys, accountants and other consultants and advisors, or (ii) from complying with all laws, rules, regulations and court orders, including, without limitation, governmental regulatory, disclosure, tax and reporting requirements; provided, however, that if Purchaser is required by applicable law or legal process to disclose any Proprietary Information, Purchaser agrees to use its commercially reasonable efforts to obtain assurance that, if possible, confidential treatment will be accorded to the Proprietary Information. Purchaser shall inform its respective representatives of the confidential nature of the Proprietary Information and shall direct them to be bound by the terms of this Section. In addition to any other remedies available to Seller, Seller shall have the right to seek equitable relief, including, without limitation, injunctive relief or specific performance, against Purchaser in order to enforce the provisions of this Section. The provisions of such confidentiality agreement shall survive any termination of this Agreement.

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14.17 No Third-Party Beneficiaries. Except as otherwise expressly provided herein, Seller and Purchaser agree that there are no third parties who are intended to benefit from or who are entitled to rely on any of the provisions of this Agreement. No third party shall be entitled to assert any claims or to enforce any rights whatsoever pursuant to this Agreement. Except as otherwise expressly provided herein, the covenants and agreements provided in this Agreement are solely for the benefit of Seller and Purchaser and their permitted successors and assigns respectively.

14.18 Electronic Signatures. The execution of this Agreement and all Notices given hereunder and all amendments hereto, may be effected by portable document format (“.pdf”) signatures, all of which shall be treated as originals; provided, however, that the party receiving a document with a facsimile or .pdf signature may, by Notice to the other, require the prompt delivery of an original signature to evidence and confirm the delivery of the .pdf signature. Purchaser and Seller each intend to be bound by its respective .pdf transmitted signature, and is aware that the other party will rely thereon, and each party waives any defenses to the enforcement of the Agreement, and documents, and any Notices delivered by .pdf transmission.

14.19 Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.

14.20 Cumulative Remedies. No remedy conferred upon a party in this Agreement is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity or by statute (except as otherwise expressly herein provided).

14.21 WAIVER OF JURY TRIAL. THE PARTIES HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

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IN WITNESS WHEREOF, the parties hereto have caused this Purchase and Sale Agreement to be executed effective as of the Effective Date.


SELLER:

RAIDER RANCH, LP, a Texas limited partnership

By:	Raider Ranch GP, LLC, a Texas limited liability company, its sole general partner

	By:	/s/ Craig W. Spaulding
		Craig W. Spaulding
		Manager

[PURCHASER’S SIGNATURE FOLLOWS]

S-1


PURCHASER:

CHP PARTNERS, LP, a Delaware limited partnership

By:	CHP GP, LLC, a Delaware limited liability company, its general partner

	By:	CNL Healthcare Properties, Inc., a Maryland corporation, its sole member

		By:	/s/ Tracey B. Bracco
		Name:	Tracey B. Bracco
		Title:	Vice President

S-2

LIST OF EXHIBITS TO PURCHASE AGREEMENT


Exhibit “A”		Legal Description of Property
Exhibit “B”		Form of Escrow Agreement for Earnest Money Deposit
Exhibit “C”		Form of Deed
Exhibit “D”		Form of Bill of Sale
Exhibit “E”		Form of Assignment and Assumption of Intangible Property
Exhibit “F”		Form of Assignment and Assumption of Contracts
Exhibit “G”		Form of FIRPTA Certificate
Exhibit “H”		Form of Owner’s Affidavit
Exhibit “I”		Form of Assignment of Purchase Contract to Applicable Property

LIST OF SCHEDULES TO PURCHASE AGREEMENT


Schedule “9.2(e)”		Litigation
Schedule “9.2(g)”		Material Contracts
Schedule “9.2(h)”		Notice of Material Violation of Legal Requirements
Schedule “9.2(l)”		Environmental Reports

EXHIBIT “A”

LEGAL DESCRIPTION OF PROPERTY

(as described in vesting deed)

[Intentionally Omitted]

EXHIBIT “B”

FORM OF ESCROW AGREEMENT FOR

EARNEST MONEY DEPOSIT

[Intentionally Omitted]

EXHIBIT “C”

FORM OF DEED

SPECIAL WARRANTY DEED

[Intentionally Omitted]

EXHIBIT “D”

FORM OF BILL OF SALE

[Intentionally Omitted]

EXHIBIT “E”

FORM OF ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY

[Intentionally Omitted]

EXHIBIT “F”

FORM OF ASSIGNMENT AND ASSUMPTION OF CONTRACTS

[Intentionally Omitted]

EXHIBIT “G”

FORM OF FIRPTA CERTIFICATE

[Intentionally Omitted]

EXHIBIT “H”

FORM OF OWNER’S AFFIDAVIT

[Intentionally Omitted]

EXHIBIT “I”

FORM OF ASSIGNMENT OF PURCHASE CONTRACT

TO APPLICABLE PROPERTY

[Intentionally Omitted]

SCHEDULE “9.2(e)”

LITIGATION

[Intentionally Omitted]

SCHEDULE “9.2(g)”

MATERIAL CONTRACTS

[Intentionally Omitted]

SCHEDULE “9.2(h)”

NOTICE OF MATERIAL VIOLATION OF LEGAL REQUIREMENTS

[Intentionally Omitted]

SCHEDULE “9.2(l)”

ENVIRONMENTAL REPORTS

[Intentionally Omitted]