Exhibits

PURCHASE AND SALE AGREEMENT

This PURCHASE AND SALE AGREEMENT, dated as of February 26, 2013, is entered into by and among CB-Campus Crest, LLC, a Delaware limited liability company (“CBTC Buyer”), CB-Campus Crest PA, LLC, a Delaware limited liability company (“CBTC PA Buyer” and, together with CBTC Buyer, the “Buyers”), Campus Crest Communities, Inc., a Maryland corporation (“CCG” and, together with Buyers, the “Buyer Parties”), Copper Beech Townhome Communities, LLC, a Delaware limited liability company (“CBTC”), Copper Beech Townhome Communities (PA), LLC], a Delaware limited liability company (“CBTC PA” and, together with CBTC, the “Acquired Companies”) and the members of the Acquired Companies listed on the signature pages hereto under the heading “Sellers” (collectively, the “Sellers”). The Buyer Parties, the Acquired Companies and the Sellers are sometimes referred to herein as the “Parties” and each, a “Party.”

WHEREAS, the Sellers are, collectively, the record and beneficial owner of the membership interests in the Copper Beech Entities and, upon completion of the Restructuring defined below, will be the record and beneficial owner of the membership interests in CBTC and CBTC PA respectively set forth opposite each such Seller’s name on Exhibit A attached hereto (the “CBTC Membership Interests” and the “CBTC PA Membership Interests,” respectively and, collectively, the “Membership Interests”), which membership interests constitute all of the membership interests in CBTC and CBTC PA, respectively;

WHEREAS, (i) the Sellers desire to transfer and sell to CBTC Buyer, and CBTC Buyer desires to acquire and purchase from the Sellers, all of the CBTC Membership Interests of CBTC owned by the Sellers and (ii) the Sellers desire to transfer and sell to CBTC PA Buyer, and CBTC PA Buyer desires to acquire and purchase from the Sellers, all of the CBTC PA Membership Interests of CBTC PA owned by the Sellers for the Initial Purchase Price and upon the terms and conditions hereinafter set forth (collectively, the “Transaction”);

WHEREAS, immediately prior to, or concurrently with, the consummation of the Transaction, the Sellers will consummate a restructuring transaction (the “Restructuring”) pursuant to which (i) each of the Sellers will transfer and contribute to CBTC a portion of their respective interests in the partnerships, limited liability companies and/or other entities described on Exhibit B-1 attached hereto (collectively, the “Non- Pennsylvania Copper Beech Entities”) for which no consent or third party approval is required for the transfer and contribution, which are engaged in the business of owning, managing, developing, marketing, leasing and operating a portfolio of student housing properties described on Exhibit B-1 (the “Non-Pennsylvania Properties”), in exchange for their CBTC Membership Interests, (ii) each of the Sellers will transfer and contribute to CBTC PA a portion of their respective interests in the partnerships, limited liability companies and/or other entities described on Exhibit B-2 attached hereto (collectively, the “Pennsylvania Copper Beech Entities” and, together with the Non-Pennsylvania Copper Beech Entities, the “Copper Beech Entities”) for which no consent or third party approval is required for the transfer and contribution, which are engaged in the business of owning, managing, developing, marketing, leasing and operating a portfolio of student housing properties described on Exhibit B-2 (the “Pennsylvania Properties” and, together with the Non-Pennsylvania Properties, the “Properties”), in exchange for their CBTC PA Membership Interests, and (iii) following such Restructuring, (A) CBTC will hold a forty-eight percent (48%) interest in each of the Non-Pennsylvania Copper Beech Entities for which no consent or third party approval is required for the Restructuring and (B) CBTC PA will hold a forty-eight percent (48%) interest in each of the Pennsylvania Copper Beech Entities for which no consent or third party approval is required for the Restructuring; provided , however, that in the event certain members of the Non-Pennsylvania Copper Beech Entities who are not, and will not become, members of CBTC (the “Former Pennsylvania Members”) and certain members of the Pennsylvania Copper Beech Entities who are not, and will not become, members of CBTC (the “Former Pennsylvania Members”) have consented to the Transactions contemplated by this Agreement and have entered into an agreement with any of the Buyer Parties for the sale, assignment and transfer of their interests in each of the Non-Pennsylvania Copper Beech Entities and the Pennsylvania Copper Beech Entities, following the Restructuring, (x) CBTC will hold a 36.335% interest in each of the Non-Pennsylvania Copper Beech Entities for which no consent or third party approval is required for the Restructuring and (B) CBTC PA will hold a 36.335% interest in each of the Pennsylvania Copper Beech Entities for which no consent or third party approval is required for the Restructuring;

WHEREAS, after the Initial Closing, each of the Sellers intend to seek any and all remaining consents and approvals required to allow each of the Sellers (i) to sell, assign and transfer to CBTC a forty-eight percent (48%) interest in each of the remaining Non-Pennsylvania Copper Beech Entities and (ii) to sell, assign and transfer to CBTC PA a forty-eight percent (48%) interest in each of the remaining Pennsylvania Copper Beech Entities; provided , however, that in the event the Former Pennsylvania Members and the Former Pennsylvania Members have consented to the Transaction and have entered into an agreement with any of the Buyer Parties for the sale, assignment and transfer of their interests in each of the Non-Pennsylvania Copper Beech Entities and the Pennsylvania Copper Beech Entities, each of the Sellers shall (x) sell, assign and transfer to CBTC a 36.335% in each of the Non-Pennsylvania Copper Beech Entities and (y) sell, assign and transfer to CBT a 36.335% in each of the Pennsylvania Copper Beech Entities;

WHEREAS, after the Final Closing, each of the Sellers intend to transfer and contribute to CBTC the remaining membership interests that they hold in the Non-Pennsylvania Copper Beech Entities and to transfer and contribute to CBTC PA no more than eight-eight and nine-tenths percent (88.9%) in the aggregate of the remaining membership interests that they hold in the Pennsylvania Copper Beech Entities;

WHEREAS, in connection with the execution of this Agreement, the Sellers have granted to the Buyers an option to acquire additional interests in each of the Acquired Companies and their Subsidiaries for a specified period of time following each of the first, second and third anniversaries of the Initial Closing Date (collectively, the “Purchase Options” and each, a “Purchase Option”);

WHEREAS, in connection with and as a condition to closing in this Agreement, (i) CBTC expects to enter into an agreement to acquire all of the equity interests in the Non-Pennsylvania Copper Beech Entities held by the Former Non-Pennsylvania Members and (ii) CBTC PA expects to enter into an agreement to acquire all of the equity interests in the Pennsylvania Copper Beech Entities held by the Former Pennsylvania Members; and

WHEREAS, the Parties agree that when and if the equity interests of the Former Non-Pennsylvania Members and the Former Pennsylvania Members are acquired, the Membership Interests of the Sellers purchased by the Buyer Parties at the Initial Closing shall be reduced so that, taking into consideration the equity interests of the Former Non-Pennsylvania Members and the Former Pennsylvania Members, upon the completion of the Final Closing, CBTC will hold a forty-eight percent (48%) interest in each of the Non-Pennsylvania Copper Beech Entities and CBTC PA will hold a forty-eight percent (48%) interest in each of the Pennsylvania Copper Beech Entities.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound hereby, agree as follows:

Article I
DEFINITIONS

1.1              Certain Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1:

“3-14 Financial Statements” has the meaning set forth in Section 4.7(a).

“Acquired Companies” has the meaning set forth in the Preamble.

“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

“Agreement” means this Purchase and Sale Agreement, as amended, restated or supplemented from time to time.

“Alternative Transaction” has the meaning set forth in Section 6.4.

“Amended and Restated Holding Company Operating Agreements” means the amended and restated operating agreement of each of CBTC and CBTC PA, substantially in the forms included in Attachment II.

“Amended and Restated Subsidiary Operating Agreement” has the meaning set forth in Section 2.5(l).

“Balance Sheet” has the meaning set forth in Section 4.7(b).

“Balance Sheet Date” has the meaning set forth in Section 4.7(b).

“Basket” has the meaning set forth in Section 8.4(a).

“Business Day” means any day of the year on which national banking institutions in New York are open to the public for conducting business and are not required or authorized to close.

“Buyers” has the meaning set forth in the Preamble.

“Buyer Indemnified Parties” has the meaning set forth in Section 8.2(a).

“Buyer Material Adverse Effect” means any circumstance, event, occurrence, change or effect that would reasonably be expected to materially adversely affect the ability of the Buyer Parties to timely perform their obligations under this Agreement or to consummate the Transaction in accordance with the terms set forth herein and in the Transaction Documents in a timely manner.

“Buyer Parties” has the meaning set forth in the Preamble.

“Cap” has the meaning set forth in Section 8.4(a).

“Capitalization Spreadsheet” has the meaning set forth in Section 2.1.

“CBTC” has the meaning set forth in the Preamble.

“CBTC Buyer” has the meaning set forth in the Preamble.

“CBTC First Purchase Option” has the meaning set forth in Section 2.12(a)(i).

“CBTC Membership Interests” has the meaning set forth in the Recitals.

“CBTC Second Purchase Option” has the meaning set forth in Section 2.12(a)(ii).

“CBTC Third Purchase Option” has the meaning set forth in Section 2.12(a)(iii).

“CBTC PA” has the meaning set forth in the Preamble.

“CBTC PA Buyer” has the meaning set forth in the Preamble.

“CBTC PA First Purchase Option” has the meaning set forth in Section 2.12(b)(i).

“CBTC PA Membership Interests” has the meaning set forth in the Recitals.

“CBTC PA Second Purchase Option” has the meaning set forth in Section 2.12(b)(ii).

“CBTC PA Third Purchase Option” has the meaning set forth in Section 2.12(b)(iii).

“CCG” has the meaning set forth in the Preamble.

“Claims” means all demands, claims, actions or causes of action, assessments, complaints, directives, citations, information requests issued by a Governmental Entity, orders, notices of potential responsibility, losses, damages (including diminution in value), liabilities, sanctions, costs and expenses, including interest, penalties and attorneys’ and experts’ fees and disbursements.

“Closing” means the Initial Closing, a Subsequent Closing or the Final Closing, as applicable.

“Closing Date” means the Initial Closing Date, a Subsequent Closing Date or the Final Closing Date, as applicable.

“Code” means the Internal Revenue Code of 1986, as amended.

“Company Permit” has the meaning set forth in Section 4.19(b).

“Company Plans” has the meaning set forth in Section 4.16(a).

“Consolidated Tax Group” has the meaning set forth in Section 4.10(j).

“Consulting Agreements” has the meaning set forth in Section 2.5(l).

“Contract” means any contract, agreement, indenture, note, bond, mortgage, loan, instrument, lease, license, commitment or other arrangement, understanding, undertaking, commitment or obligation, whether written or oral.

“Copper Beech Entities” has the meaning set forth in the Recitals.

“Disclosure Schedule” means the disclosure schedule delivered by the Sellers to the Buyer Parties concurrently with the execution and delivery of this Agreement and attached hereto.

“DOL” means the United States Department of Labor.

“Employee” means any current employee, consultant, independent contractor or manager of any of the Acquired Companies or any of their Subsidiaries.

“Environmental Claims” means all Claims pursuant to Environmental Laws.

“Environmental Laws” means any Law (including the Comprehensive Environmental Response, Compensation, and Liability Act), for the protection of the environment, public health and welfare, or natural resources relating to the Remediation, generation, production, use, storage, treatment, transportation, Release, threatened Release, or disposal of Hazardous Materials, or noise control.

“Environmental Permits” means any permits, licenses, certificates and approvals required under any Environmental Law.

“Equity Offering” means the underwritten public offering of shares of common stock of CCG with net proceeds in an amount equal to at least Two Hundred Sixty Four Million Dollars ($264,000,000).

“ERISA” means the Employment Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means any other entity (whether or not incorporated) that, together with such entity, would be treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.

“Escrow Agent” means Bradley Arant Boult Cummings LLP.

“Escrow Agreement” means an escrow agreement, in a form to be agreed to by the Parities, to be entered into at the Initial Closing by and among the Buyers, the Sellers’ Representative and the Escrow Agent.

“Escrow Amount” means the Loan Payment Escrow Amount plus the Subsequent Closing Escrow Amount.

“Existing Loan Documents” has the meaning set forth in Section 4.21.

“Existing Loans” has the meaning set forth in Section 4.21.

“Existing Title Insurance Policy” or “Existing Title Insurance Policies” means, with respect to each Property, the most recent title insurance policy, commitment, or pro forma, whether owner’s or lender’s, if any, in the possession of any of the Acquired Companies or any of their Subsidiaries.

“Existing Survey” means, with respect to each Property, the most recent title survey, if any, in the possession of any of the Acquired Companies or any of their Subsidiaries.

“Final Closing” means the last closing by which, pursuant to the terms of this Agreement, Subsidiary Equity Interests are sold, conveyed and transferred from the Sellers to the Buyers.

“Final Closing Date” means the date of the Final Closing.

“Financial Statements” has the meaning set forth in Section 4.7(b).

“Former Non-Pennsylvania Members” has the meaning set forth in the Recitals.

“Former Pennsylvania Members” has the meaning set forth in the Recitals.

“Fundamental Representations” has the meaning set forth in Section 8.1(a).

“GAAP” means generally accepted accounting principles in the United States.

“Governmental Entity” means any government or governmental or regulatory body thereof, or political subdivision thereof, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), whether federal, state, local or foreign, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private).

“Ground Leases” has the meaning set forth in Section 4.12(h).

“Hazardous Materials” means any wastes, substances, radiation, or materials (whether solids, liquids or gases): (i) which are defined as “pollutants”, “contaminants”, “hazardous materials”, “hazardous wastes”, “hazardous substances”, “chemical substances”, “radioactive materials”, “solid wastes” or are otherwise subject to regulation as hazardous or toxic under any of the Environmental Laws; (ii) which contain without limitation polychlorinated biphenyls (PCBs), mold, methyl-tertiary butyl ether (MTBE), asbestos or asbestos-containing materials, lead-based paints, urea-formaldehyde foam insulation, or petroleum or petroleum products (including crude oil or any fraction thereof); or (iii) which pose a hazard to human health, safety, natural resources, employees, or the environment.

“Improvements” means all of the buildings, structures, fixtures, facilities, installations and other improvements, of every kind and description now or hereafter located on the Properties, including any and all plumbing, air conditioning, heating, ventilating, mechanical, electrical and other utility systems, parking lots and facilities, landscaping, roadways, sidewalks, security devices, signs and light fixtures.

“Income Taxes” (or “Income Tax” as the context may require) means U.S. federal, state, local, and non-U.S. income, franchise or similar Taxes.

“Indebtedness” of any Person means, without duplication, (i) the principal, accreted value, accrued and unpaid interest, prepayment and redemption premiums or penalties (if any), unpaid fees or expenses and other monetary obligations in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable; (ii) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding trade accounts payable and other accrued current liabilities arising in the Ordinary Course of Business (other than the current liability portion of any indebtedness for borrowed money)); (iii) all obligations of such Person under leases required to be capitalized in accordance with GAAP; (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction; (v) all obligations of such Person under interest rate or currency swap transactions (valued at the termination value thereof); (vi) the liquidation value, accrued and unpaid dividends, prepayment or redemption premiums and penalties (if any), unpaid fees or expenses and other monetary obligations in respect of any redeemable preferred stock of such Person; (vii) all obligations of the type referred to in clauses (i) through (vi) of any Persons for the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations; and (viii) all obligations of the type referred to in clauses (i) through (vii) of other Persons secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien (other than Permitted Liens) on any property or asset of such Person (whether or not such obligation is assumed by such Person).

“Indemnifiable Loss” has the meaning set forth in Section 8.2(a).

“Indemnified Party” has the meaning set forth in Section 8.1.

“Indemnifying Party” has the meaning set forth in Section 8.1.

“Initial Closing” has the meaning set forth in Section 2.4.

“Initial Closing Cash Payment” has the meaning set forth in Section 2.3(a).

“Initial Closing Date” has the meaning set forth in Section 2.4.

“Initial Purchase Price” has the meaning set forth in Section 2.2.

“Intellectual Property” means all franchises, patents, patent applications, trademarks, service marks and trade names, whether registered or not, logos, brands, private labels, copyrights, computer software, industrial designs and drawings and general intangibles of a like nature, confidential and proprietary information (including any information that of any of the Acquired Companies or any of their Subsidiaries treats as confidential information), trade secrets and know-how (including processes, schematics, databases, formulae, prototypes, models and customer lists), licenses, and rights with respect to the foregoing, and all reissues, extensions and renewals of any patents and patent applications.

“IRS” means the Internal Revenue Service.

“Knowledge of the Sellers” means the actual knowledge of John R. McWhirter, Jeanette McWhirter, Chris Summers, Robert Heiser and Mark McWhirter.

“Law” means any foreign, federal, state or local law (including common law), statute, code, ordinance, rule, regulation, Order or other requirement.

“Leases” mean all leases, tenancy and occupancy agreements with respect to any of the Properties or any portion thereof.

“Legal Proceeding” means any judicial, administrative or arbitral actions, suits, mediation, investigation, inquiry, or proceedings brought by or before a Governmental Entity.

“Liability” means any debt, loss, damage, adverse claim, fines, penalties, liability or obligation (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, determined or determinable, liquidated or unliquidated, or due or to become due, and whether in contract, tort, strict liability or otherwise), and including all costs and expenses relating thereto (including all fees, disbursements and expenses of legal counsel, experts, engineers and consultants and costs of investigation).

“Licensed Intellectual Property” has the meaning set forth in Section 4.14(b).

“Lien” means any lien, pledge, mortgage, deed of trust, security interest, claim, lease, charge, community or other marital property interest, equitable interest, conditional sales agreement or other title retention agreement, option, right of first refusal, easement, servitude, proxy, voting trust or agreement, transfer restriction under any shareholder or similar agreement, encumbrance or any other restriction or limitation whatsoever.

“Loan Payment Escrow Amount” means an amount equal to One Hundred Six Million Seven Hundred Thousand Dollars ($106,700,000) minus the Pay-Off Indebtedness Amount.

“Losses” means losses, Taxes, liabilities, Claims, obligations, deficiencies, demands, judgments, damages, interest, fines, penalties, suits, actions, causes of action, assessments, awards, settlement payments, costs and expenses (including costs of investigation and defense and appeal and attorneys’ and other professionals’ fees), or any diminution in value; provided, that “Losses” shall not include any special or punitive damages (except in connection with a Third Party Claim).

“Material Contracts” has the meaning set forth in Section 4.15(a).

“Membership Interests” has the meaning set forth in the Recitals.

“Multiemployer Plan” has the meaning set forth in Section 4.16(c).

“Non-Pennsylvania Copper Beech Entities” has the meaning set forth in the Recitals.

“Non-Pennsylvania Properties” has the meaning set forth in the Recitals.

“Non-Pennsylvania Subsidiary Equity Interests” means those membership or other equity interests in each Non-Pennsylvania Copper Beech Entity to be sold, assigned and transferred to CBTC on any Subsequent Closing Date.

“Non-Residential Lease” has the meaning set forth in Section 4.12(f)

“Order” means any order, injunction, judgment, doctrine, decree, ruling, writ, assessment or arbitration award of a Governmental Entity.

“Ordinary Course of Business” means the ordinary and usual course of day-to-day operations of the business of the Acquired Companies and their Subsidiaries through the date hereof consistent with past practice.

“Organizational Documents” shall mean as to any Person, its (i) certificate or articles of incorporation, or similar corporate charter or other instruments of organization; (ii) articles of association, by-laws or other similar instruments; and (iii) shareholder agreements, limited partnership agreements, limited liability company agreements or operating agreements and other similar governing corporate documents.

“Outside Date” has the meaning set forth in Section 9.1(b).

“Participating Percentage” means with respect to each member of CBTC or CBTC PA, as applicable, the percentage obtained by dividing the number of units representing CBTC Membership Interests or units representing CBTC PA Membership Interests, as applicable, held by such member by the total number of units representing CBTC Membership Interests or CBTC PA Membership Interests, as applicable, then issued and outstanding.

“Party” or “Parties” has the meaning set forth in the Preamble.

“Pay-Off Indebtedness Amount” means the aggregate of the amounts payable by the Buyers on behalf of the Acquired Companies and their Subsidiaries pursuant to the Pay-Off Letters.

“Pay-Off Letters” means customary pay-off letters on terms and conditions reasonably satisfactory to the Buyer Parties from the applicable creditors of the Acquired Companies’ Subsidiaries identified in Exhibit C attached hereto setting forth in detail all of the applicable Subsidiary’s Indebtedness and any default by such Subsidiary prior to the Initial Closing or in connection with the transactions contemplated by this Agreement or the Transaction Documents or the prepayment or other termination of the loans relating to such Indebtedness.

“Pennsylvania Copper Beech Entities” has the meaning set forth in the Recitals.

“Pennsylvania Properties” has the meaning set forth in the Recitals.

“Pennsylvania Subsidiary Equity Interests” means those membership or other equity interests in each Pennsylvania Copper Beech Entity to be sold, assigned and transferred to CBTC PA on any Subsequent Closing Date.

“Permits” means any approvals, authorizations, consents, licenses, permits or certificates, variances and similar rights obtained, or required by Law or any Governmental Entity to be obtained, from Governmental Entities.

“Permitted Liens” means (i) statutory liens securing payments not yet delinquent; (ii) Liens that will be discharged at Closing; (iii) liens for real estate taxes that are not yet due and payable; (iv) the Existing Loan Documents or any other documents securing the Existing Loans; and (iv) (A) covenants, conditions, and restrictions of record and (B) building liens and requirements, that, in the case of (A) or (B), individually or in the aggregate, do not and could not reasonably be expected to materially affect the use of the properties or assets of any of the Acquired Companies or any of their Subsidiaries or otherwise materially impair business operations of any of the Acquired Companies or any of their Subsidiaries as presently conducted.

“Person” means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Entity or other entity.

“Pledged Subsidiary” means any Subsidiary named on Exhibit E attached hereto.

“Policies” has the meaning set forth in Section 4.20.

“Pre-Closing Tax Period” means any Tax period which ends on or prior to the applicable Closing Date.

“Pre-Closing Tax Returns” has the meaning set forth in Section 6.7(a).

“Pre-Closing Straddle Taxes” has the meaning set forth in Section 6.7(a).

“Privilege Period” has the meaning set forth in Section 6.7(b).

“Promissory Notes” has the meaning set forth in Section 2.5(j).

“Property” or “Properties” has the meaning set forth in the Recitals.

“Purchase Option” or “Purchase Options” has the meaning set forth in the Recitals.

“Purchase Rights” has the meaning set forth in Section 4.23.

“REIT” means a real estate investment trust as defined in Section 856 of the Code.

“Registered Intellectual Property” has the meaning set forth in Section 4.14(a).

“Release” means any emission, spill, seepage, leak, escape, leaching, discharge, injection, pumping, pouring, emptying, dumping, disposal, migration, or release of Hazardous Materials into or upon the environment.

“Remediation” means any abatement, clean-up, removal action, remedial action, restoration, repair, response action, corrective action, including any associated monitoring, sampling and analysis, reclamation, closure, or post-closure activities conducted in connection with the threatened or actual Release of Hazardous Materials.

“Representatives” means, with respect to a Person, each of such Person’s respective directors, officers, attorneys, accountants, employees, advisors, agents, consultants or managers.

“Restricted Customer” has the meaning set forth in Section 6.6(b)(ii).

“Restricted Employees” has the meaning set forth in Section 6.6(b)(i).

“Restricted Period” has the meaning set forth in Section 6.6(a)(i).

“Restructuring” has the meaning set forth in the Recitals.

“Securities Act” means the Securities Act of 1933, as amended.

“Seller Indemnified Parties” has the meaning set forth in Section 8.2(b).

“Seller Intellectual Property” has the meaning set forth in Section 4.14(a).

“Seller Material Adverse Effect” means any circumstance, event, occurrence, effect or change that is or would be materially adverse to (i) the business, assets, properties, results of operations of either of the Acquired Companies or their Subsidiaries, taken as a whole, or (ii) the ability of any Party to consummate timely the transactions contemplated hereby or perform its obligations hereunder; provided that none of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been a Seller Material Adverse Effect: (A) any adverse change, event, development, or effect (whether short-term or long-term) arising from or relating to (1) general business or economic conditions, including such conditions related to the business of the Acquired Companies and their Subsidiaries, to the extent such changes do not adversely affect the Acquired Companies or their Subsidiaries in a disproportionate manner relative to other participants in the industries in which the Acquired Companies and its Subsidiaries operate, (2) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attacks upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (3) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (4) changes in United States generally accepted accounting principles, (5) changes in laws, rules, regulations, orders, or other binding directives issued by any governmental entity or (6) taking of any action contemplated by this Agreement or the Transaction Documents, (b) any failure to meet a forecast (whether internal or published) or revenue, earnings, cash flow, or other data for any period or any change in such a forecast, and (c) any adverse change in or effect on the business of the Acquired Companies and their Subsidiaries that is cured by the Sellers before the earlier of (1) the Closing Date and (2) the date on which this Agreement is terminated pursuant to Section 9.1 hereof.

“Sellers” has the meaning set forth in the Preamble.

“Sellers’ Representative” has the meaning set forth in Section 9.2(a).

“Space Leases” has the meaning set forth in Section 4.12(i).

“Straddle Period” means any Tax period which begins before and end after the Closing Date.

“Subsequent Closing” has the meaning set forth in Section 2.9.

“Subsequent Closing Cash Payment” has the meaning set forth in Section 2.8(a).

“Subsequent Closing Date” has the meaning set forth in Section 2.9.

“Subsequent Closing Escrow Amount” means an amount equal to the product of Seventy Five Million Nine Hundred Thousand Dollars ($75,900,000) multiplied by a fraction, the numerator of which is the aggregate of the agreed values of each Subsidiary as set forth in Exhibit F which is not included in the Restructuring and the denominator of which is Four Hundred Four Million Two Hundred Thousand One Hundred Two Dollars ($404,200,102).

“Subsidiary” means any Person of which (i) at least thirty-six percent (36%) of the outstanding share capital, voting securities or other equity interests are owned, or will be owned prior to the Closing, directly or indirectly, by one of the Acquired Companies or (ii) one of the Acquired Companies is entitled, directly or indirectly, to appoint a majority of the board of directors, board of managers or comparable body of such Person. For the avoidance of doubt, (i) each of the Non-Pennsylvania Copper Beech Entities and its Subsidiaries shall be considered a Subsidiary of CBTC and (ii) each of the Pennsylvania Copper Beech Entities and its Subsidiaries shall be considered a Subsidiary of CBTC PA for the purposes of this Agreement.

“Subsidiary Equity Interests” means the Non-Pennsylvania Subsidiary Equity Interests and the Pennsylvania Subsidiary Equity Interests.

“Survival Period” has the meaning set forth in Section 8.1(b).

“Tax” means any federal, state, local or non-U.S. income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimates, or other tax of any kind whatsoever, whether computed on a separate or consolidated, unitary or combined basis or in any other manner, including any interest, penalty or addition thereto, whether disputed or not.

“Tax Dispute” means any dispute, audit, request for information, investigation, examination, claim, litigation, proceeding, controversy, assessment, or collection relating to Taxes or any Tax Return.

“Tax Protection Agreement” means any agreement (whether written or otherwise) to which any of the Acquired Companies or any of their Subsidiaries is a party or otherwise subject pursuant to which: (a) any of the Acquired Companies or any of their Subsidiaries have agreed to (i) maintain a minimum level of debt or continue a particular debt or allocate a certain amount of debt to a particular partner; (ii) make available any debt to be guaranteed or indemnified, whether directly or indirectly; (iii) retain or not dispose of assets for a period of time that has not since expired; (iv) make or refrain from making Tax elections; and/or (v) only dispose of assets in a particular manner.

“Tax Return” means any return, statement, declaration, form, report, claim for refund or credit, or information return or other documentation (including any additional or supporting material and any amendments or supplements) filed or maintained, or required to be filed or maintained, by any of the Acquired Companies or any of their Subsidiaries with respect to or in connection with the calculation, determination, assessment or collection of any Taxes.

“Tax Sharing Agreement” means any agreement or arrangement (whether written or otherwise) relating to the apportionment, sharing, indemnification, assignment, assumption, or allocation of any Taxes.

“Third Party Claim” has the meaning set forth in Section 8.3(b).

“Title IV Plan” has the meaning set forth in Section 4.16(b).

“Transaction” has the meaning set forth in the Recitals.

“Transaction Documents” means this Agreement, the Promissory Notes, the Amended and Restated Subsidiary Operating Agreements, the Amended and Restated Holding Company Operating Agreements, the Escrow Agreement, the Consulting Agreements and any other written agreement signed by the Parties that is expressly identified as a “Transaction Document”, and any exhibits or attachments to any of the foregoing

“Transaction Expenses” means any expenses incurred by or on behalf of the Acquired Companies on or before the Closing Date and payable by the Acquired Companies to third parties in connection with the preparation or execution of this Agreement or the Transaction Documents or consummation of the transactions contemplated by this Agreement or the Transaction Documents and/or any related or alternative transactions (including fees and disbursements of financial advisors, investment bankers, attorneys, accountants and other representatives or agents of the Acquired Companies), but excluding such expenses, if any, for which the Buyers are obligated to pay or reimburse Sellers pursuant to the terms of this Agreement.

“Transfer Taxes” has the meaning set forth in Section 6.7(d).

“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of the Treasury.

“Unaudited Financial Statements” has the meaning set forth in Section 4.7(b).

“WARN” means the Worker Adjustment and Retraining Notification Act of 1988, as amended.

1.2              Other Definitional and Interpretive Matters.

(a)                Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:

(i)                 Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day.

(ii)               Exhibits/Schedules. The Exhibits and Schedules to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.

(iii)             Gender and Number. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.

(iv)             Headings. The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any “Section” are to the corresponding Section of this Agreement unless otherwise specified.

(v)               Herein. The words such as “herein”, “hereinafter”, “hereof” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.

(vi)             Including. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

(b)               The Parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

Article II
PURCHASE AND SALE OF MEMBERSHIP INTERESTS; INITIAL PURCHASE PRICE; CLOSING

2.1              Initial Purchase and Sale of Membership Interests. Subject to and upon the terms and conditions contained in this Agreement, at the Initial Closing, each Seller agrees (a) to sell, assign and transfer to CBTC Buyer, free and clear of any and all Liens, and CBTC Buyer agrees to acquire and purchase from each Seller, all of such Seller’s right, title and interest in the CBTC Membership Interests to be owned by such Seller after the Restructuring set forth opposite such Seller’s name on Exhibit A hereto (such Exhibit A, the “Capitalization Spreadsheet”) and (b) to sell, assign and transfer to CBTC PA Buyer, free and clear of any and all Liens, and CBTC PA Buyer agrees to acquire and purchase from each Seller, all of such Seller’s right, title and interest in the CBTC PA Membership Interests to be owned by such Seller after the Restructuring set forth opposite such Seller’s name the Capitalization Spreadsheet.

2.2              Initial Purchase Price. The Initial Purchase Price to be paid by the Buyers for the Membership Interests shall be an amount in cash equal to One Hundred Eighty Two Million Six Hundred Thousand Dollars ($182,600,000) (the “Initial Purchase Price”).

2.3              Payment of Initial Closing Cash Payment and Indebtedness.

(a)                On the Initial Closing Date, the Buyers shall pay to the Sellers the Initial Purchase Price, minus (ii) the Pay-Off Indebtedness Amount, minus (iii) the Escrow Amount, minus (iv) the amount, if any, of the unpaid Transaction Expenses (such amount payable to the Sellers on the Initial Closing Date, the “Initial Closing Cash Payment”). The Initial Closing Cash Payment shall be deliverable at the Initial Closing by wire transfer of immediately available funds into an account or accounts designated in writing by the Sellers’ Representative not less than three (3) Business Days prior to the Initial Closing Date. The Initial Closing Cash Payment shall be payable to each of the Sellers in proportion to each such Seller’s ownership of the Membership Interests, in each case as set forth on the Capitalization Spreadsheet. The Sellers (x) acknowledge and agree that the payments to be made by the Buyers pursuant to this Section 2.3(a) constitute payment in full of the Initial Purchase Price and that the Buyers shall have no liability with respect to the distribution of the Initial Purchase Price among the Sellers so long as such distribution is in accordance with the instructions provided by the Sellers’ Representative, (y) acknowledge and agree that the Sellers are entitled to no further payments in respect of the Membership Interests and (z) hereby waive any rights they may have under any of the Acquired Companies’ Organizational Documents.

(b)               At least two (2) Business Days prior to the Initial Closing Date, the Sellers shall deliver to the Buyers: (i) Pay-Off Letters reasonably satisfactory to the Buyers, together with wire instructions and any other information or instruments as may be necessary to effect payment of the Pay-Off Indebtedness Amount to a third party. Simultaneously with the Initial Closing, the Buyers shall pay on behalf of the Acquired Companies all of the Pay-Off Indebtedness.

(c)                By virtue of this Agreement, at the Initial Closing, the Buyers will deposit with the Escrow Agent the Escrow Amount, in accordance with the terms of this Agreement and the Escrow Agreement.

2.4              Initial Closing Date. The consummation of the sale and purchase of the Membership Interests provided for in Section 2.1 (the “Initial Closing”) shall take place at the offices of Hogan Lovells US LLP, 555 Thirteenth Street, NW, Washington, District of Columbia 20004 on the date that is two (2) Business Days following the date on which the last of the conditions precedent to the Initial Closing (except for such conditions that can only be satisfied at the Initial Closing) set forth in Article VII of this Agreement has been satisfied or waived by the Party for whose benefit such conditions precedent exist, or such other date as the Parties may mutually agree (the “Initial Closing Date”) (it being understood that the Initial Closing may be effected by the delivery of documents via e-mail, facsimile and/or overnight courier). Such Initial Closing shall be effective as of 12:01 a.m. EST on the Initial Closing Date. For the avoidance of doubt, except for purposes of Article VIII herein, after the Initial Closing, the definition of “Buyers” and “Buyer Parties” set forth in the Preamble shall be deemed to include each of CBTC and CBTC PA

2.5              Deliveries on the Initial Closing Date by the Acquired Companies and Sellers. At the Initial Closing, the Sellers shall deliver or cause the Acquired Companies and/or the Sellers’ Representative to deliver, as applicable, to the Buyers:

(a)                all right, title and interest in and to the initial closing Membership Interests, free and clear of all Liens (other than Permitted Liens), pursuant to one or more assignment instruments reasonably acceptable to the Buyers, representing the transfer of the Membership Interests in form acceptable for transfer of such Membership Interests on the books of the Acquired Companies;

(b)               a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Acquired Company certifying that (i) attached thereto are true, correct and complete copies of such Acquired Company’s Organizational Documents, in each case as amended through the Initial Closing Date, (ii) attached thereto are true, correct and complete copies of all resolutions adopted by the managers of such Acquired Company (and, if applicable or required, the Sellers) authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, (iii) all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby and (iv) the names and signatures of the officers of such Acquired Company authorized to sign this Agreement and the Transaction Documents;

(c)                a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller that is not a natural person certifying that (i) attached thereto are true, correct and complete copies of such Seller’s Organizational Documents, in each case as amended through the Initial Closing Date, (ii) attached thereto are true, correct and complete copies of all resolutions adopted by the managers of such Seller authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, (iii) all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby and (iv) the names and signatures of the officers of such Seller authorized to sign this Agreement and the Transaction Documents;

(d)               a certificate confirming the good standing of each Seller that is not a natural person from the Secretary of State or similar office, as applicable, of their respective jurisdictions of organization;

(e)                a certificate confirming the good standing of each Acquired Company and each of their Subsidiaries, dated not more than five (5) Business Days prior to the Initial Closing Date, from the Secretary of State or similar office, as applicable, of their respective jurisdictions of organization; provided that no such certificate shall be required for jurisdictions that do not recognize the concept of good standing or that do not provide certificates of good standing;

(f)                the certificates required of the Sellers and the Acquired Companies by Section 7.2(a);

(g)                all corporate books and records, to the extent there are any, including any minute books, membership interest ledgers and transfer records, the corporate seal and other materials related to the corporate administration of the Acquired Companies;

(h)               a written statement from each of the Sellers, dated as of the Initial Closing Date, in form and substance reasonably acceptable to the Buyers and consistent with Treasury Regulations section 1.1445-2(b)(2), certifying that such Seller is not a “foreign person” as defined in Section 1445 of the Code and Treasury Regulations section 1.1445-2(b)(2);

(i)                 the Pay-Off Letters, and evidence reasonably satisfactory to the Buyers (including recordable form mortgage and lien releases, canceled notes and other documents reasonably requested by the Buyers) to confirm that all Liens (other than Permitted Liens) on the assets or properties of the Acquired Companies and each of their Subsidiaries specified in Exhibit C attached hereto shall be, assuming that the Pay-Off Indebtedness Amount is paid at or prior to the Initial Closing, satisfied, terminated and discharged on or prior to the Initial Closing Date;

(j)                 promissory notes in favor of CBTC Buyer, substantially in the form of Attachment I hereto, executed by each of the Sellers in an initial face amount equal to the amount set forth opposite such Seller’s name on Exhibit D hereto (the “Promissory Notes”) and certificates evidencing all of the interests of the Sellers in the Pledged Subsidiaries, duly endorsed to CBTC Buyer;

(k)               copies of the amended and restated operating agreement of each of the Acquired Companies’ Subsidiaries included in the Restructuring, in a form substantially consistent with the form of Amended and Restated Holding Company Operating Agreements, executed by each of the Sellers of the applicable Subsidiary (the “Amended and Restated Subsidiary Operating Agreements”);

(l)                 consulting agreements, substantially in the form of Attachment III hereto, executed by each of John R. McWhirter, Jeannette McWhirter, Robert Heiser, Molly Shoemaker, Chris Summers, Frederick Brenner, Eric Porter and Thomas Foley (the “Consulting Agreements”);

(m)             an executed Escrow Agreement; and

(n)               such other agreements, consents, documents, instruments and writing as are reasonably required to be delivered by the Sellers or any Acquired Company at or prior to the Initial Closing Date pursuant to this Agreement or otherwise reasonably required in connection herewith, including all such other instruments as the Buyer Parties or their counsel may reasonably request in connection with the transactions contemplated by this Agreement.

2.6              Deliveries on the Initial Closing Date by the Buyer Parties. At the Initial Closing, the Buyer Parties shall deliver to the Acquired Companies, the Sellers’ Representative and/or the Sellers, as applicable:

(a)                the Initial Closing Cash Payment, payable in accordance with Section 2.3(a);

(b)               the Pay-Off Indebtedness Amount, payable in accordance with Section 2.3(b);

(c)                a secretary’s certificate of each Buyer Party certifying (i) true, correct and complete copies of such Buyer Party’s Organizational Documents as such documents may have theretofore been amended, (ii) resolutions duly adopted by the managers, the board of directors or an equivalent governing body of such Buyer Party and by the members or partners of such Buyer Party authorizing the execution of this Agreement and the execution, performance and delivery of all Transaction Documents and other agreements, documents and transactions contemplated hereby; and (iii) the incumbency of the officers or other representatives of the individuals executing this Agreement and the other agreements, documents and certificates delivered by such Buyer Party;

(d)               the officer’s certificates required of the Buyer Parties by Section 7.3(a);

(e)                executed Consulting Agreements;

(f)                an executed Escrow Agreement and delivery of the Escrow Amount; and

(g)                such other agreements, consents, documents, instruments and writing as are reasonably required to be delivered by the Buyer Parties at or prior to the Initial Closing Date pursuant to this Agreement or otherwise reasonably required in connection herewith, including all such other instruments as the Sellers or their counsel may reasonably request in connection with the transactions contemplated by this Agreement.

2.7              Purchase and Sale of Remaining Subsidiary Equity Interests Relating to Initial Closing.

(a)                At least five (5) Business Days prior to each Subsequent Closing Date, the Buyers shall provide notice to the Sellers of their intent to effectuate a Subsequent Closing with respect to the remaining Subsidiary Equity Interests for which all consents and approvals to transfer have been received. The Buyers may effectuate as many Subsequent Closings as necessary to purchase all Subsidiary Equity Interests not included in the Restructuring.

(b)               Subject to and upon the terms and conditions contained in this Agreement, at the applicable Subsequent Closing, each Seller agrees (a) to sell, assign and transfer to CBTC, free and clear of any and all Liens, and CBTC agrees to acquire and purchase from each Seller, all of such Seller’s right, title and interest in the Non-Pennsylvania Subsidiary Equity Interests to be sold, assigned and transferred by such Seller on the applicable Subsequent Closing Date and (b) to sell, assign and transfer to CBTC PA, free and clear of any and all Liens, and CBTC PA agrees to acquire and purchase from each Seller, all of such Seller’s right, title and interest in the Pennsylvania Subsidiary Equity Interests to be sold, assigned and transferred by such Seller on the applicable Subsequent Closing Date.

2.8              Payment of Subsequent Closing Cash Payment and Indebtedness.

(a)                At least two (2) Business Days prior to each Subsequent Closing Date, the Buyers shall instruct the Escrow Agent to pay, on such Subsequent Closing Date, (i) to the Sellers from the Subsequent Closing Escrow Amount an amount equal to the product of Seventy Five Million Nine Hundred Thousand Dollars ($75,900,000) multiplied by a fraction, the numerator of which is the aggregate of the agreed values of each Subsidiary set forth on Exhibit F to be sold, conveyed and transferred on such Subsequent Closing Date and the denominator of which is Four Hundred Four Million Two Hundred Thousand One Hundred Two Dollars ($404,200,102) (the “Subsequent Closing Cash Payment”) and (ii) to the applicable third parties from the Loan Escrow Amount, the Subsequent Closing Pay-Off Indebtedness. Each Subsequent Closing Cash Payment shall be deliverable at the applicable Subsequent Closing by wire transfer of immediately available funds into an account or accounts designated in writing by the Sellers’ Representative. The applicable Subsequent Closing Cash Payment shall be payable to each of the Sellers in proportion to each such Seller’s ownership of the applicable Subsidiary Equity Interests, in each case as set forth on the Capitalization Spreadsheet. The Sellers (x) acknowledge and agree that the payments to be made by the Buyers pursuant to this Section 2.8(a) constitute payment in full for the applicable Subsidiary Equity Interests and that the Buyers shall have no liability with respect to the distribution of the applicable Subsequent Closing Cash Payment among the Sellers so long as such distribution is in accordance with the instructions provided by the Sellers’ Representative, (y) acknowledge and agree that the Sellers are entitled to no further payments in respect of the Subsidiary Equity Interests and (z) hereby waive any rights they may have under any of the applicable Subsidiaries’ Organizational Documents.

(b)               At least two (2) Business Days prior to the applicable Subsequent Closing Date, the Sellers shall deliver to the Buyers: (i) Pay-Off Letters reasonably satisfactory to the Buyers, together with wire instructions and any other information or instruments as may be necessary to effect payment of the Subsequent Closing Pay-Off Indebtedness Amount to a third party. The Buyers shall instruct the Escrow Agent to pay from the Loan Payment Escrow Amount, simultaneously with the applicable Subsequent Closing, on behalf of the Sellers the applicable Subsequent Closing Pay-Off Indebtedness.

2.9              Subsequent Closing Date. The consummation of the sale and purchase of the applicable Subsidiary Equity Interests provided for in Section 2.7 (each, a “Subsequent Closing”) shall take place at the offices of Hogan Lovells US LLP, 555 Thirteenth Street, NW, Washington, District of Columbia 20004 on the date that is two (2) Business Days following the date on which the last of the conditions precedent to a Subsequent Closing applicable to the Subsidiary Equity Interests (except for such conditions that can only be satisfied at such Subsequent Closing) set forth in Article VII of this Agreement has been satisfied or waived by the Party for whose benefit such conditions precedent exist, or such other date as the Parties may mutually agree (each, a “Subsequent Closing Date”) (it being understood that such Subsequent Closing may be effected by the delivery of documents via e-mail, facsimile and/or overnight courier). Such Initial Closing shall be effective as of 12:01 a.m. EST on the Initial Closing Date.

2.10          Deliveries on each Subsequent Closing Date by the Sellers. At each Subsequent Closing, the Sellers shall deliver or cause the Sellers’ Representative to deliver, as applicable, to the Buyers:

(a)                all right, title and interest in and to the applicable Subsidiary Equity Interests, free and clear of all Liens (other than Permitted Liens), pursuant to one or more assignment instruments reasonably acceptable to the Buyers, representing the transfer of such Subsidiary Equity Interests in form acceptable for transfer of such Subsidiary Equity Interests on the books of the applicable Subsidiaries;

(b)               a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each applicable Subsidiary certifying that (i) attached thereto are true, correct and complete copies of such Subsidiary’s Organizational Documents, in each case as amended through the Subsequent Closing Date, (ii) attached thereto are true, correct and complete copies of all resolutions adopted by the managers of such Subsidiary (and, if applicable or required, the Sellers) authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, (iii) all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby and (iv) the names and signatures of the officers of such Acquired Company authorized to sign this Agreement and the Transaction Documents;

(c)                a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Seller that is not a natural person certifying that (i) attached thereto are true, correct and complete copies of such Seller’s Organizational Documents, in each case as amended through the Subsequent Closing Date, (ii) attached thereto are true, correct and complete copies of all resolutions adopted by the managers of such Seller authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, (iii) all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby and (iv) the names and signatures of the officers of such Seller authorized to sign this Agreement and the Transaction Documents;

(d)               a certificate confirming the good standing of each Seller that is not a natural person from the Secretary of State or similar office, as applicable, of their respective jurisdictions of organization;

(e)                a certificate confirming the good standing of each applicable Subsidiary, dated not more than five (5) Business Days prior to the Subsequent Closing Date, from the Secretary of State or similar office, as applicable, of their respective jurisdictions of organization; provided that no such certificate shall be required for jurisdictions that do not recognize the concept of good standing or that do not provide certificates of good standing;

(f)                the certificates required of the Sellers by Section 7.2(a);

(g)                all corporate books and records, to the extent there are any, including any minute books, membership interest ledgers and transfer records, the corporate seal and other materials related to the corporate administration of the applicable Subsidiaries;

(h)               a written statement from each of the Sellers, dated as of the Subsequent Closing Date, in form and substance reasonably acceptable to the Buyers and consistent with Treasury Regulations section 1.1445-2(b)(2), certifying that such Seller is not a “foreign person” as defined in Section 1445 of the Code and Treasury Regulations section 1.1445-2(b)(2);

(i)                 the Pay-Off Letters, and evidence reasonably satisfactory to the Buyers (including recordable form mortgage and lien releases, canceled notes and other documents reasonably requested by the Buyers) to confirm that all Liens (other than Permitted Liens) on the assets or properties of the applicable Subsidiaries specified in Exhibit C attached hereto shall be, assuming that the Subsequent Closing Pay-Off Indebtedness Amount is paid at or prior to the Initial Closing, satisfied, terminated and discharged on or prior to the Initial Closing Date;

(j)                 copies of the Amended and Restated Subsidiary Operating Agreement of each of the applicable Subsidiaries;

(k)               an executed assignment agreement, in a form reasonably satisfactory to the Buyers, necessary to assign any of the Sellers’ interests in the Ground Leases specified in Section 4.12(g) of the Disclosure Schedule to a Subsidiary of either Acquired Company; and

(l)                 such other agreements, consents, documents, instruments and writing as are reasonably required to be delivered by the Sellers or any applicable Subsidiary at or prior to the Subsequent Closing Date pursuant to this Agreement or otherwise reasonably required in connection herewith, including all such other instruments as the Buyer Parties or their counsel may reasonably request in connection with the transactions contemplated by this Agreement.

2.11          Deliveries on each Subsequent Closing Date by the Buyer Parties. At each Subsequent Closing, the Buyer Parties shall deliver to the Sellers’ Representative and/or the Sellers, as applicable:

(a)                a secretary’s certificate of each Buyer Party certifying (i) true, correct and complete copies of such Buyer Party’s Organizational Documents as such documents may have theretofore been amended, (ii) resolutions duly adopted by the managers, the board of directors or an equivalent governing body of such Buyer Party and by the members or partners of such Buyer Party authorizing the execution of this Agreement and the execution, performance and delivery of all Transaction Documents and other agreements, documents and transactions contemplated hereby; and (iii) the incumbency of the officers or other representatives of the individuals executing this Agreement and the other agreements, documents and certificates delivered by such Buyer Party;

(b)               the officer’s certificates required of the Buyer Parties by Section 7.3(a); and

(c)                such other agreements, consents, documents, instruments and writing as are reasonably required to be delivered by the Buyer Parties at or prior to the Subsequent Closing Date pursuant to this Agreement or otherwise reasonably required in connection herewith, including all such other instruments as the Sellers or their counsel may reasonably request in connection with the transactions contemplated by this Agreement.

2.12          Option to Purchase Additional Interests. The Parties hereby agree that the Amended and Restated Holding Company Operating Agreements shall contain the following provisions relating to the Purchase Options:

(a)                Amended and Restated Holding Company Operating Agreement of CBTC:

(i)                 CBTC First Purchase Option. CBTC hereby grants to CBTC Buyer the option to increase its Participating Percentage in CBTC by twenty-seven percent (27%) or more (resulting in an aggregate Participating Percentage of seventy-five percent (75%)) on the terms and conditions set forth in this Section 2.12(a)(i) (the “CBTC First Purchase Option”).

(A)              The CBTC First Purchase Option shall be exercisable by CBTC Buyer by giving notice to CBTC, with a copy to all of the other members of CBTC, on or promptly after the date twelve (12) months after the Initial Closing Date, but in no event later than the date fourteen (14) months after the Initial Closing Date.

(B)              Within fifteen (15) days after exercise of the CBTC First Purchase Option, (A), CBTC Buyer shall make an aggregate capital contribution of Ninety Five Million Three Hundred Thousand Dollars ($95,300,000) to CBTC in exchange for the issuance by CBTC of a number of units representing CBTC Membership Interests with a Participating Percentage equal to twenty-seven percent (27%) (determined prior to the issuance of such CBTC Membership Interests ).

(C)              Immediately following the receipt of the capital contribution from CBTC Buyer, CBTC shall redeem from the members of CBTC other than CBTC Buyer an aggregate number of CBTC Membership Interests equal to the number of CBTC Membership Interests issued to CBTC Buyer in exchange for its capital contribution, which CBTC Membership Interests shall be redeemed from the members of CBTC ratably in accordance with their respective Participating Percentages, in exchange for an aggregate payment of Eighty Million Eight Hundred Thousand Dollars ($80,800,000). Any fractional CBTC Membership Interests resulting from such redemption shall be rounded down to the nearest whole CBTC Membership Interest.

(D)              CBTC shall apply the remaining Fourteen Million Five Hundred Thousand Dollars ($14,500,000) contributed by CBTC Buyer to repayment of property-level indebtedness of its Subsidiaries that matures in 2014.

(ii)               CBTC Second Purchase Option. CBTC hereby grants to CBTC Buyer the option to increase its Participating Percentage in CBTC by thirteen and nine-tenths percent (13.9%) (resulting in an aggregate Participating Percentage of eighty-eight and nine-tenths percent (88.9%)) on the terms and conditions set forth in this Section 2.12(a)(ii) (the “CBTC Second Purchase Option”).

(A)              The CBTC Second Purchase Option shall be exercisable by CBTC Buyer by giving notice to CBTC, with a copy to all of the other members of CBTC, on or promptly after the date twenty-four (24) months after the Initial Closing Date, but in no event later than the date twenty-six (26) months after the Initial Closing Date.

(B)              Within fifteen (15) days after exercise of the CBTC Second Purchase Option, CBTC Buyer shall make an aggregate capital contribution of Sixty Five Million Nine Hundred Thousand Dollars ($65,900,000) to CBTC in exchange for the issuance by CBTC of a number of units representing CBTC Membership Interests with a Participating Percentage equal to thirteen and nine-tenths percent (13.9%) (determined prior to the issuance of such CBTC Membership Interests).

(C)              Immediately following the receipt of the capital contribution from CBTC Buyer, CBTC shall redeem from the members of CBTC other than CBTC Buyer an aggregate number of CBTC Membership Interests equal to the number of units representing CBTC Membership Interests issued to CBTC Buyer in exchange for its capital contribution, which units representing CBTC Membership Interests shall be redeemed from the members of CBTC ratably in accordance with their respective Participating Percentages, in exchange for an aggregate payment of Sixty Five Million Nine Hundred Thousand Dollars ($65,900,000). Any fractional units representing CBTC Membership Interests resulting from such redemption shall be rounded down to the nearest whole unit representing CBTC Membership Interests.

(iii)             CBTC Third Purchase Option. CBTC hereby grants to CBTC Buyer the option to increase its Participating Percentage in CBTC by eleven and one-tenth percent (11.1%) (resulting in an aggregate Participating Percentage of one hundred percent (100%)) on the terms and conditions set forth in this Section 2.12(a)(iii) (the “CBTC Third Purchase Option”).

(A)              The CBTC Third Purchase Option shall be exercisable by CBTC Buyer by giving notice to CBTC, with a copy to all of the other members of CBTC, on or promptly after the date thirty-six (36) months after the Initial Closing Date, but in no event later than the date thirty-eight (38) months after the Initial Closing Date.

(B)              Within fifteen (15) days after exercise of the CBTC Third Purchase Option, CBTC Buyer shall make an aggregate capital contribution of Thirty Five Million Six Hundred Thousand Dollars ($35,600,000) to CBTC in exchange for the issuance by CBTC of a number of units representing CBTC Membership Interests with a Participating Percentage equal to eleven and one-tenth percent (11.1%) (determined prior to the issuance of such units representing CBTC Membership Interests).

(C)              Immediately following the receipt of the capital contribution from CBTC Buyer, CBTC shall redeem from the members of CBTC other than CBTC Buyer all of their remaining units representing CBTC Membership Interests in exchange for an aggregate payment of Thirty Five Million Six Hundred Thousand Dollars ($35,600,000).

(b)               Amended and Restated Holding Company Operating Agreement of CBTC PA:

(i)                 CBTC PA First Purchase Option. CBTC PA hereby grants to CBTC PA Buyer the option to increase its Participating Percentage in CBTC PA by twenty-seven percent (27%) or more (resulting in an aggregate Participating Percentage of seventy-five (75%)) on the terms and conditions set forth in this Section 2.12(b)(i) (the “CBTC PA First Purchase Option”).

(A)              The CBTC PA First Purchase Option shall be exercisable by CBTC PA Buyer by giving notice to CBTC PA, with a copy to all of the other members of CBTC PA, on or promptly after the date twelve (12) months after the Initial Closing Date, but in no event later than the date fourteen (14) months after the Initial Closing Date.

(B)              Within fifteen (15) days after exercise of the CBTC PA First Purchase Option, (A), Campus shall make an aggregate capital contribution of Thirty Six Million One Hundred Thousand Dollars ($36,100,000) to CBTC PA in exchange for the issuance by CBTC PA of a number of units representing CBTC PA Membership Interests with a Participating Percentage equal to twenty-seven percent (27%) (determined prior to the issuance of such units representing CBTC PA Membership Interests).

(C)              Immediately following the receipt of the capital contribution from CBTC PA Buyer, CBTC PA shall redeem from the members of CBTC PA other than CBTC PA Buyer an aggregate number of units representing CBTC PA Membership Interests equal to the number of CBTC PA Membership Interests issued to CBTC PA Buyer in exchange for its capital contribution, which CBTC PA Membership Interests shall be redeemed from the members of CBTC PA ratably in accordance with their respective Participating Percentages, in exchange for an aggregate payment of Twenty Nine Million Six Hundred Thousand Dollars ($29,600,000). Any fractional units representing CBTC PA Membership Interests resulting from such redemption shall be rounded down to the nearest whole unit representing CBTC PA Membership Interests.

(D)              CBTC PA shall apply the remaining Six Million Five Hundred Thousand Dollars ($6,500,000) contributed by CBTC PA Buyer to repayment of property-level indebtedness of its Subsidiaries that matures in 2014.

(ii)               CBTC PA Second Purchase Option. CBTC PA hereby grants to CBTC PA Buyer the option to increase its Participating Percentage in CBTC PA by thirteen and nine-tenths percent (13.9%) (resulting in an aggregate Participating Percentage of eighty-eight and nine-tenths percent (88.9%)) on the terms and conditions set forth in this Section 2.12(b)(ii) (the “CBTC PA Second Purchase Option”).

(A)              The CBTC PA Second Purchase Option shall be exercisable by CBTC PA Buyer by giving notice to CBTC PA, with a copy to all of the other members of CBTC PA, on or promptly after the date twenty-four (24) months after the Initial Closing Date, but in no event later than the date twenty-six (26) months after the Initial Closing Date.

(B)              Within fifteen (15) days after exercise of the CBTC PA Second Purchase Option, CBTC PA Buyer shall make an aggregate capital contribution of Forty Three Million One Hundred Thousand Dollars ($43,100,000) to CBTC PA in exchange for the issuance by CBTC PA of a number of units representing CBTC PA Membership Interests with a Participating Percentage equal to thirteen and nine-tenths percent (13.9%) (determined prior to the issuance of such units representing CBTC PA Membership Interests).

(C)              Immediately following the receipt of the capital contribution from CBTC PA Buyer, CBTC PA shall redeem from the members of CBTC PA other than CBTC PA Buyer an aggregate number of units representing CBTC PA Membership Interests equal to the number of CBTC PA Membership Interests issued to CBTC PA Buyer in exchange for its capital contribution, which units representing CBTC PA Membership Interests shall be redeemed from the members of CBTC PA ratably in accordance with their respective Participating Percentages, in exchange for an aggregate payment of Twenty Four Million One Hundred Thousand Dollars ($24,100,000). Any fractional units representing CBTC PA Membership Interests resulting from such redemption shall be rounded down to the nearest whole unit representing CBTC PA Membership Interests.

(D)              CBTC PA shall apply the remaining Nineteen Million Dollars ($19,000,000) contributed by CBTC PA Buyer to repayment of property-level indebtedness of its Subsidiaries that matures in 2015.

(iii)             CBTC PA Third Purchase Option. CBTC PA hereby grants to CBTC PA Buyer the option to increase its Participating Percentage in CBTC PA by eleven and one-tenth percent (11.1%) (resulting in an aggregate Participating Percentage of 100%) on the terms and conditions set forth in this Section 2.12(b)(iii) (the “CBTC PA Third Purchase Option”).

(A)              The CBTC PA Third Purchase Option shall be exercisable by CBTC PA Buyer by giving notice to CBTC PA, with a copy to all of the other members of CBTC PA, on or promptly after the date thirty-six (36) months after the Initial Closing Date, but in no event later than the date thirty-eight (38) months after the Initial Closing Date.

(B)              Within fifteen (15) days after exercise of the CBTC PA Third Purchase Option, CBTC PA Buyer shall make an aggregate capital contribution of Thirteen Million One Hundred Thousand Dollars ($13,100,000) to CBTC PA in exchange for the issuance by CBTC PA Buyer of a number of units representing CBTC PA Membership Interests with a Participating Percentage equal to eleven and one-tenth percent (11.1%) (determined prior to the issuance of such units representing CBTC PA Membership Interests).

(C)              Immediately following the receipt of the capital contribution from CBTC PA Buyer, CBTC PA shall redeem from the members of CBTC PA other than CBTC PA Buyer all of their remaining units representing CBTC PA Membership Interests in exchange for an aggregate payment of Thirteen Million One Hundred Thousand Dollars ($13,100,000).

2.13          Provisions Applicable if Purchase Options Not Exercised. The Parties hereby agree that each of the Amended and Restated Holding Company Operating Agreements shall contain the following provisions relating to distributions in the event any of the Purchase Options is not exercised.

(a)                If CBTC Buyer does not exercise the CBTC First Purchase Option on or before the date fourteen (14) months after the Closing Date and make the capital contribution required in connection therewith in accordance with Section 18.1(a), CBTC Buyer shall no longer be entitled to any preference payment with respect to distributions from CBTC and all such distributions shall be made to the members of CBTC in accordance with their respective Participating Percentages in CBTC; provided, however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, CBTC Buyer’s Participating Percentage in CBTC shall be increased to 55.84%.  In addition, in the event of any sale of CBTC or any of its assets, proceeds from such sale shall be distributed 55% to the Sellers and 45% to CBTC Buyer; provided, however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, such proceeds shall be distributed 47.16% to the Sellers and 52.84% to  CBTC Buyer.  If CBTC PA Buyer does not exercise the CBTC PA First Purchase Option on or before the date fifteen (15) months after the Closing Date and make the capital contribution required in connection therewith in accordance with Section 18.1(a), CBTC PA Buyer shall no longer be entitled to any preference payment with respect to distributions from CBTC PA and all such distributions shall be made to the members of CBTC PA in accordance with their respective Participating Percentages in CBTC PA; provided, however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, CBTC PA Buyer’s Participating Percentage in CBTC PA shall be increased to 55.84%. In addition, in the event of any sale of CBTC PA or any of its assets, proceeds from such sale shall be distributed fifty-five percent (55%) to the Sellers and forty-five percent (45%) to CBTC PA Buyer; provided , however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, such proceeds shall be distributed 47.16% to the Sellers and 52.84% to CBTC PA Buyer.

(b)               If CBTC Buyer does not exercise the CBTC Second Purchase Option on or before the date twenty-six (26) months after the Closing Date and make the capital contribution required in connection therewith in accordance with Section 18.1(a), all distributions shall be made to the members of CBTC in accordance with their respective Participating Percentages in CBTC; provided, however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, CBTC Buyer’s Participating Percentage in CBTC shall be increased to 78.83%.  In addition, in the event of any sale of CBTC or any of its assets, proceeds from such sale shall be distributed thirty percent (30%) to the Sellers and seventy percent (70%) to CBTC Buyer; provided, however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, such proceeds shall be distributed 26.17% to the Sellers and 73.83% to  CBTC Buyer.  If CBTC PA Buyer does not exercise the CBTC PA Second Purchase Option on or before the date twenty-seven (27) months after the Closing Date and make the capital contribution required in connection therewith in accordance with Section 18.1(a), all distributions shall be made to the members of CBTC PA in accordance with their respective Participating Percentages in CBTC PA; provided, however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, CBTC PA Buyer’s Participating Percentage in CBTC PA shall be increased to 78.83%.  In addition, in the event of any sale of CBTC PA or any of its assets, proceeds from such sale shall be distributed thirty percent (30%) to the Sellers and seventy percent (70%) to CBTC PA Buyer; provided , however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, such proceeds shall be distributed 26.17% to the Sellers and 73.83% to  CBTC PA Buyer.

(c)                If CBTC Buyer does not exercise the CBTC Third Purchase Option on or before the date thirty-eight (38) months after the Closing Date and make the capital contribution required in connection therewith in accordance with Section 18.1(a), all distributions, including distributions of the proceeds of any sale of CBTC or any of its assets, shall be made to the members of CBTC in accordance with their respective Participating Percentages in CBTC; provided, however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, CBTC Buyer’s Participating Percentage in CBTC shall be increased to 90.09%.  If CBTC PA Buyer does not exercise the CBTC PA Third Purchase Option on or before the date thirty-nine (39) months after the Closing Date and make the capital contribution required in connection therewith in accordance with Section 18.1(a), all distributions, including distributions of the proceeds of any sale of CBTC or any of its assets, shall be made to the members of CBTC PA in accordance with their respective Participating Percentages in CBTC PA; provided, however, that in the event the Sellers elect to repay the outstanding principal amount plus accrued and unpaid interest on the Promissory Notes in kind pursuant to Section 2(d)(ii) of the Promissory Note, CBTC PA Buyer’s Participating Percentage in CBTC shall be increased to 90.09%.

2.14          Withholding. Notwithstanding anything to the contrary herein or elsewhere, the Buyer Parties and their Affiliates shall be entitled to deduct, withhold, and pay to a Governmental Entity from consideration otherwise payable pursuant to this Agreement to any Seller or other Person such amounts as are required to be deducted and withheld under applicable Law with respect to the making of such payment. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

2.15          Allocation of the Initial Purchase Price. The Parties hereby agree that the Initial Purchase Price and the price paid upon exercise of the Purchase Options, and other relevant consideration, shall be allocated among the assets of each of the Acquired Companies as set forth in Exhibit G attached hereto (such schedule, the “Allocation Schedule”); provided, however, that such agreement shall not be a condition to the exercise of any such Purchase Option or the effecting of a transaction described in Section 2.13. No Party shall take any position inconsistent with the Allocation Schedule for income Tax reporting purposes (such as, for instance, for purposes of reporting income under Code Section 751). In the event that the allocation as determined hereunder is disputed by any taxing authority, the Party receiving notice of such dispute shall promptly notify and consult with the other Party and keep the other Party apprised of material developments concerning resolution of such dispute. Upon the request of CCG, CCG and the Seller Representative shall, prior to or after the applicable Closing and from time to time, use good faith efforts to agree upon the fair market value of the assets of the relevant Copper Beech Entities.

Article III
REPRESENTATIONS AND WARRANTIES RELATING TO THE SELLERS

Except as specifically set forth in the Disclosure Schedule, which are numbered to correspond to the Section numbers of this Agreement, each Seller hereby severally, and not jointly and severally, represents and warrants to the Buyers as of the date hereof and as of the applicable Closing Date, as follows (it being understood that any information set forth in a particular section of the Disclosure Schedule shall be deemed to be disclosed in each other section of the Disclosure Schedule to the extent the relevance of such information is reasonably apparent from such disclosure):

3.1              Organization and Good Standing. Such Seller that is not a natural Person is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation. Such Seller has all requisite corporate, company or other power and authority to enable it to operate, own, lease or otherwise hold its properties and assets and to carry on its business as presently conducted.

3.2              Authorization, Execution and Enforceability of Transactions. Such Seller has the requisite power, authority and legal capacity to execute and deliver this Agreement and each of the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by such Seller of this Agreement and each of the Transactions Documents to which it is a party, and the consummation by such Seller of the transactions contemplated hereby and thereby, have been duly authorized and approved by all required action on the part of such Seller and no other proceedings, actions or authorization on the part of such Seller or, in the event such Seller is not a natural person, any holders of interests in such Seller are necessary to authorize the execution and delivery by such Seller of any Transaction Document to which it is a party or the consummation by such Seller of the transactions contemplated thereby. This Agreement and each of the Transaction Documents to which such Seller is a party has been duly executed and delivered by such Seller, or will at the applicable Closing be duly executed and delivered by such Seller, and constitutes, or will constitute at applicable Closing, the legal, valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general equitable principles. Upon execution and delivery of the Promissory Note to which such Seller is a party and delivery of the duly endorsed certificates evidencing the membership interests in the Pledged Subsidiaries owned by such Seller, CBTC Buyer shall have a perfected first priority security interest in all of the membership interests of such Seller in the Pledged Subsidiaries.

3.3              Consents and Approvals; No Violations.

(a)                Except as set forth in Section 3.3 of the Disclosure Schedule, the execution, delivery and performance by such Seller of this Agreement and each Transaction Document to which it is a party, the consummation by such Seller of the transactions contemplated hereby or thereby, and compliance by such Seller with any of the provisions hereof or thereof, do not and will not (with or without notice or lapse of time, or both) conflict with, or result in any violation or breach of, default under, or give rise to a remedy, penalty, right of termination, cancellation or acceleration of any obligation, loss of a material benefit under, or give rise to any obligation of such Seller or any of the Acquired Companies to make any payment under, or to the increased, additional, accelerated or guaranteed rights or entitlements of any Person under, or result in the creation of any Liens (other than Permitted Liens) upon any of the properties or assets of such Seller, any of the Acquired Companies or any of their respective Subsidiaries under, any provision of (i) the Organizational Documents of such Seller (in the event such Seller is not a natural person), or of any of the Acquired Companies or any of their respective Subsidiaries; (ii) any Contract, or Permit to which such Seller, any of the Acquired Companies or any of their respective Subsidiaries is a party or to which any of the properties or assets of such Seller, any of the Acquired Companies or any of their respective Subsidiaries are subject; (iii) any Order applicable to such Seller, any of the Acquired Companies or any of their respective Subsidiaries or to which any of the properties or assets of such Seller, any of the Acquired Companies or any of their respective Subsidiaries are subject; or (iv) any applicable Law.

(b)               No consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Entity is required on the part of such Seller in connection with the execution and delivery of this Agreement, the other Transactions Documents to which it is a party, the compliance by such Seller with any of the provisions hereof or thereof, or the consummation of the transactions contemplated hereby or thereby.

3.4              Ownership and Transfer of Membership Interests.

(a)                On the Initial Closing Date such Seller will be the record and beneficial owner of the Membership Interests indicated as being owned by such Seller on the Capitalization Spreadsheet, free and clear of any and all Liens, and will not own any other equity interest in the Acquired Companies. On the Initial Closing Date, such Seller will have the power and authority to sell, transfer, assign and deliver the Membership Interests as provided in this Agreement, and such delivery will convey to the Buyers good and marketable title to such Membership Interests, free and clear of any and all Liens. Such Seller is not a party to any Contract, agreement or understanding providing for the sale (contingent or otherwise) of any Membership Interests or any interest therein or any calls, commitments or Claims of any other character relating to the sale of any Membership Interests or relating to the voting, registration or other similar rights in respect of the Membership Interests.

(b)               On the applicable Subsequent Closing Date such Seller will be the record and beneficial owner of the applicable Subsidiary Equity Interests indicated as being owned by such Seller on the Capitalization Spreadsheet, free and clear of any and all Liens, and will not own any other equity interest in the applicable Subsidiaries. On the applicable Subsequent Closing Date, such Seller will have the power and authority to sell, transfer, assign and deliver the applicable Subsidiary Equity Interests as provided in this Agreement, and such delivery will convey to the Buyers good and marketable title to such Subsidiary Equity Interests, free and clear of any and all Liens. Such Seller is not a party to any Contract, agreement or understanding providing for the sale (contingent or otherwise) of any Subsidiary Equity Interests or any interest therein or any calls, commitments or Claims of any other character relating to the sale of any Subsidiary Equity Interests or relating to the voting, registration or other similar rights in respect of the Subsidiary Equity Interests (other than this Agreement with respect to the Restructuring).

3.5              Litigation. Except as set forth in Section 3.5 of the Disclosure Schedule, there are no Legal Proceedings pending against nor, to the knowledge of such Seller, threatened against such Seller or to which such Seller is otherwise a party relating to this Agreement, the other Transaction Documents to which it is a party or the transactions contemplated hereby or thereby.

3.6              Tax. No Seller is a “foreign person” within the meaning of Section 1445(f)(3) of the Code. No amount is required to be withheld by the Buyers or any of their Affiliates in respect of consideration payable pursuant to this Agreement.

3.7              Financial Advisors. Except as set forth on Section 3.7 of the Disclosure Schedule, no Person has acted, directly or indirectly, as a broker, finder or financial advisor for such Seller in connection with the transactions contemplated by this Agreement and no Person is or will be entitled to any fee or commission or like payment in respect thereof.

Article IV
REPRESENTATIONS AND WARRANTIES RELATING TO THE ACQUIRED COMPANIES

Except as specifically set forth in the Disclosure Schedule, which are numbered to correspond to the Section numbers of this Agreement, each Seller hereby severally, and not jointly and severally, represents and warrants to the Buyers (i) with respect to the Acquired Companies, as of the date hereof and as of the Initial Closing Date and (ii) with respect to each of the Subsidiaries, as of the date hereof and as of the applicable Subsequent Closing Date, as follows (it being understood that any information set forth in a particular section of the Disclosure Schedule shall be deemed to be disclosed in each other section of the Disclosure Schedule to the extent the relevance of such information is reasonably apparent from such disclosure):

4.1              Organization and Good Standing.

(a)                Each Acquired Company and each of their respective Subsidiaries is a limited liability company or other legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation. Each Acquired Company and each of their respective Subsidiaries have all requisite corporate, company or other power and authority to enable it to operate, own, lease or otherwise hold its properties and assets and to carry on its business as presently conducted and is qualified to do business in every jurisdiction in which its ownership of property or the conduct of business as presently conducted requires it to qualify except for such failures to qualify that would not have a Seller Material Adverse Effect. Section 4.1 of the Disclosure Schedule contains a true, correct and complete list of the jurisdiction in which each Acquired Company and each of their Subsidiaries is organized.

(b)               True, correct and complete copies of (i) the Organizational Documents, including all supplements and amendments thereto with respect to each Acquired Company and each of their Subsidiaries, and (ii) records of ownership and transfer or ownership interests have been made available to the Buyer Parties and are true, correct and complete.

4.2              Authorization; Execution and Enforceability of Transactions. Each Acquired Company has all requisite power, authority and legal capacity to execute and deliver this Agreement and each of the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and each of the Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized and approved by all required action on the part of such Acquired Company and no other proceedings, actions or authorizations on the part of such Acquired Company or any holders of interests in such Acquired Company are necessary to authorize the execution and delivery by such Acquired Company of any Transaction Document to which it is a party or the consummation by such Acquired Company of the transactions contemplated thereby. This Agreement and each of the Transaction Documents to which any Acquired Company is a party have been duly executed and delivered by such Acquired Company, or will at the Initial Closing be duly executed and delivered by such Acquired Company, and constitute, or will constitute at the Initial Closing, the legal, valid and binding obligation of such Acquired Company, enforceable against such Acquired Company in accordance with their respective terms, except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general equitable principles. Neither of the Acquired Companies is in default under or in violation of any provision of its respective Organizational Documents.

4.3              Consents and Approvals; No Violations. Except as set forth on Section 4.3 of the Disclosure Schedule:

(a)                At least two (2) Business Days prior to each Subsequent Closing Date, the Buyers shall instruct the Escrow Agent to pay, on such Subsequent Closing Date, (i) to the Sellers from the Subsequent Closing Escrow Amount an amount equal to the product of Seventy Five Million Nine Hundred Thousand Dollars ($75,900,000) multiplied by a fraction, the numerator of which is the aggregate of the agreed values of each Subsidiary set forth on Exhibit F to be sold, conveyed and transferred on such Subsequent Closing Date and the denominator of which is Four Hundred Four Million Two Hundred Thousand One Hundred Two Dollars ($404,200,102) (the “Subsequent Closing Cash Payment”) and (ii) to the applicable third parties from the Loan Escrow Amount, the Subsequent Closing Pay-Off Indebtedness. Each Subsequent Closing Cash Payment shall be deliverable at the applicable Subsequent Closing by wire transfer of immediately available funds into an account or accounts designated in writing by the Sellers’ Representative. The applicable Subsequent Closing Cash Payment shall be payable to each of the Sellers in proportion to each such Seller’s ownership of the applicable Subsidiary Equity Interests, in each case as set forth on the Capitalization Spreadsheet. The Sellers (x) acknowledge and agree that the payments to be made by the Buyers pursuant to this Section 2.8(a) constitute payment in full for the applicable Subsidiary Equity Interests and that the Buyers shall have no liability with respect to the distribution of the applicable Subsequent Closing Cash Payment among the Sellers so long as such distribution is in accordance with the instructions provided by the Sellers’ Representative, (y) acknowledge and agree that the Sellers are entitled to no further payments in respect of the Subsidiary Equity Interests and (z) hereby waive any rights they may have under any of the applicable Subsidiaries’ Organizational Documents.

(b)               No consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Entity is required on the part of any Acquired Company in connection with (i) the execution and delivery of this Agreement or the other Transaction Documents to which it is a party, the compliance by such Acquired Company with any of the provisions hereof or thereof, or the consummation of the transactions contemplated hereby or thereby, or (ii) the continuing validity and effectiveness immediately following the Closing of any Permit or Contract of any of the Acquired Companies or any of their Subsidiaries.

4.4              Capitalization.

(a)                Section 4.4(a) of the Disclosure Schedule sets forth, for each Acquired Company and each of its Subsidiaries, its jurisdiction of formation, the amount, as of the date hereof and as of the applicable Closing Date, of its outstanding equity interests and the record owner(s) of its outstanding equity interests as of the date hereof and as of the applicable Closing Date. Except as set forth in Section 4.4(a) of the Disclosure Schedule, as of the date hereof and as of the applicable Closing Date, there are no equity interests in any Acquired Company or any of their Subsidiaries. Except as set forth in Section 4.4(a) of the Disclosure Schedule, the Membership Interests and other equity interests of each Acquired Company and each of their Subsidiaries have, to the extent applicable, been duly authorized and validly issued, are fully paid and non-assessable, and are owned beneficially and of record by the Sellers and the other record owners set forth in Section 4.4(a) of the Disclosure Schedule, free and clear of any Liens (other than Permitted Liens), and were not (i) issued in violation of, and are not subject to, the preemptive rights of any Person, (ii) issued in violation of, and are not subject to, any agreement or contract (including any right of first offer or right of first refusal) or (iii) issued in violation of any applicable Laws or Orders of any Governmental Entity. The Sellers have full voting power over the Membership Interests, subject to no proxy, shareholders’ or similar agreement, voting trust or other agreement relating to the voting of any of the Membership Interests, and except as set forth in Section 4.4(a) of the Disclosure Schedule and the Membership Interests, there are no outstanding securities or other instruments of any Acquired Company giving the owner or holder thereof the right to vote on any matters on which such Acquired Company’s equity holders may vote. Except as set forth in Section 4.4(a) of the Disclosure Schedule and as contemplated by this Agreement or any other Transaction Document, none of the Acquired Companies or any of their Subsidiaries has outstanding, or is bound by, any subscription, option, warrant, or other right, call or commitment to issue, sell, pledge, transfer or otherwise dispose of, or any obligation or commitment to purchase or otherwise acquire, any of its equity interests or any securities convertible into or exchangeable for any of its equity interests.

(b)               Except as set forth in Section 4.4(b) of the Disclosure Schedule, as of the applicable Closing Date, there will be no dividends, distributions or similar rights against any Acquired Company or any of their Subsidiaries that have accrued or been declared but are unpaid on the Membership Interests of either Acquired Company or equity interests of any of their Subsidiaries. There are no outstanding or authorized stock appreciation, phantom stock, stock plans or similar rights with respect to either Acquired Company or any of their Subsidiaries.

(c)                Except as set forth on Section 4.4(c) of the Disclosure Schedule, none of the Acquired Companies or any of their Subsidiaries owns or holds the right to acquire any stock, partnership interest or other equity ownership interest in any other Person.

(d)               The Sellers will transfer and deliver to the Buyers at the Initial Closing good and marketable title to the Membership Interests free and clear of any Liens.

(e)                The Sellers will transfer and deliver to the Buyers at the applicable Subsequent Closing good and marketable title to the applicable Subsidiary Equity Interests free and clear of any Liens.

4.5              Environmental.

(a)                Each of the Acquired Companies and each of their Subsidiaries have complied, and are in compliance, in all material respects, with all applicable Environmental Laws.

(b)               (i) Except as set forth in Section 4.5(b)(i) of the Disclosure Schedule, to the Knowledge of the Sellers, none of the Acquired Companies or any of their Subsidiaries has any liability under any Environmental Law, nor is any Acquired Company or any of their Subsidiaries responsible for any such liability of any other Person under any Environmental Law, whether by contract, by operation of law or otherwise. (ii) Except as set forth in Section 4.5(b)(ii) of the Disclosure Schedule, to the Knowledge of the Sellers, there are no facts, circumstances, or conditions existing, initiated or occurring prior to the applicable Closing Date, which have or will result in liability to any of the Acquired Companies or any of their Subsidiaries under Environmental Law. (iii) Except as set forth on Section 4.5(b)(iii) of the Disclosure Schedule, there are no pending or, to the Knowledge of the Sellers, threatened Environmental Claims.

(c)                (i) Except as set forth in Section 4.5(c)(i) of the Disclosure Schedule, to the Knowledge of the Sellers, each of the Acquired Companies and each of their Subsidiaries have been duly issued and maintain all Environmental Permits necessary to operate the business of any of the Acquired Companies and their Subsidiaries as currently operated other than those the failure of which to possess is immaterial. (ii) A true and complete list of all such Environmental Permits, all of which, to the Knowledge of the Sellers, are valid and in full force and effect, is set out in Section 4.5(c)(ii) of the Disclosure Schedule. (iii) Except as set forth in Section 4.5(c)(iii) of the Disclosure Schedule, to the Knowledge of the Sellers, each of the Acquired Companies and each of its Subsidiaries have timely filed applications for all such Environmental Permits other than those where the failure to so timely apply is immaterial.

4.6              Corporate Records. The Acquired Companies have made available to the Buyer Parties true, correct and complete copies of the Organizational Documents of each of the Acquired Companies, in each case as amended and in effect on the date hereof, including all amendments thereto.

4.7              Financial Statements.

(a)                The audited financial statements prepared in accordance with Section 3-14 of Regulation S-X (the “3-14 Financial Statements”) are attached as Section 4.7(a) of the Disclosure Schedule.

(b)               The unaudited combined balance sheet of the Acquired Companies’ Subsidiaries as of December 31, 2011, and December 31, 2012, and the related combined statement of income of the Acquired Companies’ Subsidiaries for the twelve (12) month periods then ended, are attached as Section 4.7(a) of the Disclosure Schedule (such audited statements, including the related notes and schedules thereto, are referred to herein as the “Unaudited Financial Statements” and, together with the 3-14 Financial Statements, the “Financial Statements”). Each of the Financial Statements is complete and correct in all material respects, and presents fairly in all material respects the financial position and the results of operations of the Acquired Companies’ Subsidiaries as at the dates and for the periods indicated therein, subject to the absence of footnotes and year-end adjustments (that, if presented, would not individually or in the aggregate reasonably be expected to have a Seller Material Adverse Effect). The unaudited combined balance sheet of the Acquired Companies’ Subsidiaries is referred to herein as the “Balance Sheet” and December 31, 2012 is referred to herein as the “Balance Sheet Date.” The Financial Statements were prepared from, and are consistent with, the books and records of the Acquired Companies and their Subsidiaries.

(c)                All books, records and accounts (electronic or written) that exist for each Acquired Company and each of their Subsidiaries are accurate and complete and are maintained in all material respects in accordance with all applicable Laws.

(d)               There are no “off balance sheet arrangements” (within the meaning of Item 303 of Regulation S-K promulgated by the Securities and Exchange Commission) with respect to the Acquired Companies or their Subsidiaries.

4.8              No Undisclosed Liabilities. None of the Acquired Companies or any of their Subsidiaries has any Indebtedness, Liabilities or obligations of any nature (whether known or unknown, whether absolute, accrued, contingent or otherwise, whether liquidated or unliquidated, whether due or to become due and whether or not required under GAAP to be reflected on a balance sheet or the notes thereto) other than those (a) specifically reflected on and fully reserved against in the Balance Sheet and (b) current Liabilities incurred in the Ordinary Course of Business since the Balance Sheet Date that are not, individually or in the aggregate, material to the Acquired Companies and their Subsidiaries.

4.9              Absence of Certain Developments. Except as expressly contemplated by this Agreement or as set forth on Section 4.9 of the Disclosure Schedule, since the Balance Sheet Date:

(a)                there has not been any effect, event, change, occurrence or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Seller Material Adverse Effect, and

(b)               each Acquired Company and each of their Subsidiaries:

(i)                 have conducted their respective businesses only in the Ordinary Course of Business consistent with past practice;

(ii)               have not repurchased, redeemed or otherwise acquired any outstanding securities of, or other ownership interests in, any Acquired Company or any of their Subsidiaries;

(iii)             have not (A) except in the Ordinary Course of Business, increased the salary or other compensation of any manager, officer or Employee, (B) granted any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any manager, officer, Employee or consultant, (C) increased the coverage or benefits available under any (or created any new) severance pay, termination pay, vacation pay, awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the managers, officers, Employees, agents or representatives of any Acquired Company or any of their Subsidiaries or otherwise modified or amended or terminated any such plan or arrangement or (D) entered into any employment, deferred compensation, severance, special pay, consulting, non-competition or similar agreement or arrangement with any managers or officers of any Acquired Company or any of their Subsidiaries (or amended any such agreement to which any Acquired Company or any of their Subsidiaries is a party);

(iv)             have not issued, created, incurred, assumed, guaranteed, endorsed or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness in an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) or modified the terms of any Indebtedness or other Liability;

(v)               except for Permitted Liens, have not permitted, allowed or suffered to be encumbered, any of the properties or assets (whether tangible or intangible) of, or used by, any Acquired Company or any of their Subsidiaries;

(vi)             have not cancelled or compromised any debt or claim or waived or released any material right of any Acquired Company or any of their Subsidiaries, except in the Ordinary Course of Business;

(vii)           have not terminated, amended, restated, supplemented or waived any rights under any (A) Material Contract (other than in the Ordinary Course of Business) or (B) Permit;

(viii)         have not failed to promptly pay and discharge current liabilities except where disputed in good faith by appropriate proceedings; and

(ix)             have not agreed (whether in writing or otherwise) to do or cause to be done any of the actions set forth in clauses (ii) – (viii) above.

4.10          Taxes and Tax Matters.

(a)                The Acquired Companies and all of their Subsidiaries have timely (taking into account extensions) filed, had filed on its behalf, or joined in the filing of all Income Tax Returns and all other material Tax Returns required to have been filed with respect to (or taking into account) any Acquired Company and their Subsidiaries, and have paid all Income Taxes shown thereon as owing.

(b)               All Taxes shown as due and owing on any Tax Return by or with respect to each Acquired Company and each of their Subsidiaries have been timely paid.

(c)                The Sellers have made available to the Buyers true, correct and complete copies of all U.S. federal, state, and non-U.S. Income Tax Returns filed by or with respect to each Acquired Company and its Subsidiaries for Tax periods ending on or after December 31, 2010.

(d)               None of the Acquired Companies or any of their Subsidiaries is currently the beneficiary of any extension of time within which to file any Tax Returns or has a request for any such extension pending.

(e)                To the Knowledge of the Sellers, there are no ongoing, pending, or threatened, Tax Disputes of or with respect to any of the Acquired Companies or any of their Subsidiaries.

(f)                There are no Liens for any Taxes (other than Liens described in clause (iii) of the definition of Permitted Liens) against any interest in or any asset of any Acquired Company or their Subsidiaries.

(g)                None of the Acquired Companies or any of their Subsidiaries has executed or filed with any Governmental Entity any agreement extending the period for assessment or collection of any Taxes that is still open.

(h)               No written claim has been received asserting that any of the Acquired Companies or any of their Subsidiaries is or may be subject to taxation in any jurisdiction where any of the Acquired Companies or any such Subsidiary, as the case may be, has not filed, for the relevant Tax period, Tax Returns except for such claims that would not result in a Seller Material Adverse Effect.

(i)                 None of the Acquired Companies or any of their Subsidiaries is or has been a party or otherwise bound by or subject to any Tax Sharing Agreement or Tax Protection Agreement.

(j)                 None of the Acquired Companies or any of their Subsidiaries is or has been a member of an affiliated, consolidated, combined or unitary group for Tax purposes (whether for U.S. federal, state, local, or non-U.S.) (together, a “Consolidated Tax Group”). None of the Acquired Companies or any of their Subsidiaries could have any liability for Taxes of a Person other than itself, whether by Law, as a successor, by contract, or otherwise.

(k)               There is no request pending with respect to a private letter ruling or technical advice memorandum from the IRS or comparable ruling or advice from any other Governmental Entity, in each case with respect to any of the Acquired Companies or any of their Subsidiaries. There is no outstanding “closing agreement” as described in Section 7121 of the Code (or any state, local or non-U.S. analogue), or any request therefore, with respect to any of the Acquired Companies or any of their Subsidiaries.

(l)                 None of the Acquired Companies or any of their Subsidiaries is or has been a party to any “listed transaction” as defined in Code §6707A(c)(2) and Reg. § 1.6011-4(b)(2) or has been a “material advisor” as defined in Section 6111(b) of the Code (or any state, local, or non-U.S. analogue).

(m)             Section 4.10(m) of the Disclosure Schedule lists all outstanding powers of attorney issued by, or otherwise relating to, any of the Acquired Companies or any of their Subsidiaries that relate to Taxes or Tax matters.

(n)               Section 4.10(n) of the Disclosure Schedule sets forth a full and accurate description of any reserves of any Person or Consolidated Tax Group for any Taxes, including as required by “FIN 48 (ASC 470)” or “FAS 5 (ASC 450)” or to be set forth on “Schedule UTP” or on the Financial Statements, in each case for which any of the Acquired Companies or any of their Subsidiaries could be legally liable as a result of being a member at any time of a Consolidated Tax Group.

(o)               Section 4.10(o) of the Disclosure Schedule lists all state, local, and non-U.S. jurisdictions in which any of the Acquired Companies or any of their Subsidiaries is required by Law to file a Tax Return, or is otherwise subject to Tax by virtue of having a nexus or permanent establishment or other place of business in that jurisdiction.

(p)               Section 4.10(p) of the Disclosure Schedule sets forth the adjusted basis (as determined for U.S. federal income tax purposes) of each asset owned by the Acquired Companies and their Subsidiaries.

(q)               No less than ninety percent (90%) of the fair market value of the assets of each Subsidiary is comprised of land and/or improvements on land.

(r)                 None of the Acquired Companies or any of their Subsidiaries (i) has ever been treated or otherwise taxable as other than a partnership or disregarded entity for U.S. federal income tax purposes, and (ii) has ever elected or taken the position (on any Tax Return otherwise) that it is or was taxable as other than a partnership or disregarded entity for U.S. federal income tax purposes.

(s)                To the Knowledge of the Sellers, any and all transactions between or among any of the Acquired Companies, their Subsidiaries, the Sellers, and/or Affiliates of the foregoing, have occurred on arm’s length terms, and each of the Acquired Companies and their Subsidiaries have complied with any and all Tax-related requirements that the arm’s-length nature of the terms of such transactions be documented.

For purposes of this Section 4.10, references to the Acquired Companies and their Subsidiaries including an entity with respect to which any of the Acquired Companies or any of their Subsidiaries is a successor, whether pursuant to Section 381 of the Code or by operation of Law.

4.11          Title to Properties. Each of the Acquired Companies and each of their Subsidiaries (a) have good, valid and marketable title to all properties and other assets that are reflected on the Financial Statements as being owned by any of the Acquired Companies or any of their Subsidiaries (or that are acquired after the date thereof) and that are, individually or in the aggregate, material to the business or financial condition of the Acquired Companies and their Subsidiaries (except properties sold or otherwise disposed of since the date thereof in the Ordinary Course of Business), free and clear of all Liens except Permitted Liens and (b) are the lessees or sublessees of all leasehold estates and leasehold interests reflected in the Financial Statements (or acquired after the date thereof). Each of the Acquired Companies’ and each of their Subsidiaries’ tangible personal property and equipment is in good repair and condition (subject to normal wear and tear) and constitutes all of the tangible personal property and equipment used in connection with the operation or conduct of the respective businesses of the Acquired Companies and their Subsidiaries as currently conducted. As of the date hereof, the tangible personal property owned and leased by the Acquired Companies and their Subsidiaries is sufficient to conduct the business of the Acquired Companies and their Subsidiaries at the Properties.

4.12          Real Property.

(a)                Each Subsidiary owns or leases, as the case may be, the Properties set forth opposite its name on Section 4.12(a) of the Disclosure Schedule. The Subsidiaries do not own any real property other than the Properties that are shown on Section 4.12(a) of the Disclosure Schedule.

(b)               Except as set forth in Section 4.12(b) of the Disclosure Schedule, and except with respect to the Existing Loan Documents or any other documents securing the Existing Loans, none of the Properties is subject to any restriction on the sale or other disposition thereof or on the financing or release of financing thereon.

(c)                The Sellers have made available to the Buyer Parties copies that are true, correct and complete in all material respects of all Existing Title Insurance Policies and Existing Surveys as of the date hereof.

(d)               To the Knowledge of the Sellers, the Existing Title Insurance Policies, on the date hereof, are in full force and effect and no material claim has been made against any such policy.

(e)                There is no pending bankruptcy proceedings involving any of the Acquired Companies or any of their Subsidiaries in which such Acquired Company or such Subsidiary is a debtor.

(f)                Section 4.12(f) of the Disclosure Schedule sets forth each non-residential Lease pursuant to which any Subsidiary is the landlord (each, a “Non-Residential Lease”). The Sellers have made available to the Buyer Parties copies of all Non-Residential Leases and any amendments, modifications, supplements, renewals, extensions and guarantees related thereto. Such copies are true, correct and complete in all material respects. No Subsidiary that is a landlord under a Non-Residential Lease is in default thereunder, and, to the Knowledge of the Sellers, no tenant under a Non-Residential Lease is in default under any material obligations thereunder.

(g)                Except as set forth in Section 4.12(g) of the Disclosure Schedule, there are no Properties under development.

(h)               Section 4.12(h) of the Disclosure Schedule sets forth all ground leases (“Ground Leases”) pursuant to which any Subsidiary is a tenant. Copies of the Ground Leases that are true, correct and complete in all respects have been made available to the Buyer Parties by the Sellers. The Ground Leases are the valid, legal and binding obligations of the Subsidiaries named therein and are enforceable in accordance with their respective terms against such Subsidiaries and, to the Knowledge of the Sellers, the other parties thereto. Except as set forth on Section 4.12(h) of the Disclosure Schedule, no breach or default by a Subsidiary and, to the Knowledge of the Sellers, by a third party, has occurred and is continuing under the Ground Leases, and no event has occurred which, with notice or lapse of time, or both, would constitute a material breach or default under any of the Ground Leases by a Subsidiary or, to the Knowledge of the Sellers, by a third party. No Subsidiary is a tenant under any ground lease other than the Ground Leases.

(i)                 Section 4.12(i) of the Disclosure Schedule sets forth all office space leases as to which the rent payable by a Subsidiary under any such lease will exceed Forty Thousand Dollars ($40,000) per annum following the applicable Closing Date (“Space Leases”). Copies of the Space Leases that are true, correct and complete in all respects have been made available to the Buyer Parties by the Sellers. The Space Leases are the valid, legal, and binding obligations of the Subsidiaries named therein and are enforceable in accordance with their respective terms against such Subsidiaries. Except as set forth on Section 4.12(i) of the Disclosure Schedule, no breach or default by a Subsidiary has occurred and is continuing under the Space Leases. No Subsidiary is a tenant under any office space lease as to which the rent will exceed Forty Thousand Dollars ($40,000) per annum following the applicable Closing Date, other than the Space Leases.

4.13          No Condemnation. As of the date hereof, except as set forth in Section 4.13 of the Disclosure Schedule, (i) there are no pending or, to the Knowledge of the Sellers, threatened condemnation, expropriation, requisition or similar proceedings against any of Property or any portion thereof that would reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect, (ii) none of the Acquired Companies or any of their Subsidiaries has received written notice that any such proceeding is contemplated. Section 4.13 of the Disclosure Schedule lists all pending or, to the Knowledge of the Sellers, threatened condemnation, expropriation, requisition or similar proceedings against any Property or any portion thereof.

4.14          Intellectual Property.

(a)                Section 4.14(a) of the Disclosure Schedule sets forth a true, correct and complete list of (i) all Intellectual Property owned by any of the Acquired Companies or any of their Subsidiaries that is registered, or for which an application to register has been filed with the appropriate government body for granting such registration and is pending, in any jurisdiction (the “Registered Intellectual Property”) and (ii) all unregistered Intellectual Property used by the Acquired Companies or any of their Subsidiaries that is material to the operation of the business that is owned by any of the Acquired Companies or any of their Subsidiaries (collectively with the Registered Intellectual Property, the “Seller Intellectual Property”). The Seller Intellectual property is free and clear of all Liens, other than Permitted Liens.

(b)               Section 4.14(b) of the Disclosure Schedule sets forth a true, correct and complete list of all licenses to Intellectual Property granted to any of the Acquired Companies or any of their Subsidiaries (the “Licensed Intellectual Property”) (other than off-the-shelf software programs that are commercially available on a general basis) that is material to the operation of the business of the Acquired Companies and their Subsidiaries. To the Knowledge of the Sellers, the Acquired Companies and their Subsidiaries possess adequate and valid rights to use all of the Licensed Intellectual Property listed in Section 4.14(b) of the Disclosure Schedule under the terms and conditions set forth in the license(s) included in the Licensed Intellectual Property.

(c)                To the Knowledge of the Sellers, except as set forth on Section 4.14(c) of the Disclosure Schedule, all Intellectual Property material to the operation of the business of the Acquired Companies and their Subsidiaries is included within the Seller Intellectual Property or the Licensed Intellectual Property. None of the Seller Intellectual Property or the Licensed Intellectual Property used by any of the Acquired Companies or any of their Subsidiaries, nor the validity of the Acquired Companies’ or their Subsidiaries’ rights to use such Intellectual Property is being contested in any litigation to which any of the Acquired Companies or any of their Subsidiaries is a party, nor, to the Knowledge of the Sellers, has any such litigation been threatened. None of the Acquired Companies or any of their Subsidiaries have given or received any written correspondence with respect to any actual, alleged or potential infringement of any Seller Intellectual Property or Licensed Intellectual Property, in each case, except for such infringement that would not materially interfere with the conduct of the business of the Acquired Companies and their Subsidiaries, taken as a whole.

(d)               The Sellers, the Acquired Companies and their Subsidiaries have entered into confidentiality agreements with Persons with access to the Seller Intellectual Property and the Licensed Intellectual Property (except for such Seller Intellectual Property and the Licensed Intellectual Property whose value would be unimpaired by disclosure) in regard to the content of Seller Intellectual Property and Licensed Intellectual Property. Such confidentiality agreements are either contained in the employment agreements or independent contractor agreements of such Persons or in separate confidentiality agreements.

4.15          Material Contracts.

(a)                Section 4.15(a) of the Disclosure Schedule sets forth, by reference to the applicable subsection of this Section 4.15(a), all of the following Contracts to which any of the Acquired Companies or any of their Subsidiaries is a party or by which any of them or their assets or properties are bound (collectively, all Contracts listed or required to be listed on Section 4.15(a) of the Disclosure Schedule and together with the Leases, the “Material Contracts”):

(i)                 Contracts that contain “change in control” or similar provisions that would be triggered by entry into this Agreement or any of the Transaction Documents or that would be triggered by the consummation of the transactions contemplated hereby or thereby;

(ii)               Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of the capital stock or other equity interests of any of the Acquired Companies or any Subsidiary;

(iii)             Contracts with any Seller or Affiliate thereof or any current or former officer, manager, member or Affiliate of the Acquired Companies and their Subsidiaries;

(iv)             Contracts relating to construction, capital expenditures or purchases of material, supplies, equipment or other assets or properties (other than purchase orders for such items in the Ordinary Course of Business) in each case requiring aggregate payments by any of the Acquired Companies or any of their Subsidiaries in excess of Five Hundred Thousand Dollars ($500,000);

(v)               Contracts with any labor union or association representing any Employee of any Acquired Company or any of their Subsidiaries;

(vi)             any management, service, consulting, financial advisory or any other similar type of Contract and any Contracts with any investment or commercial bank, in each case involving aggregate payments or obligations by any of the Acquired Companies or any of their Subsidiaries in excess of One Hundred Thousand Dollars ($100,000);

(vii)           Contracts for the sale or attempted sale of the Membership Interests or any material portion of the assets of the Acquired Companies or their Subsidiaries or for the grant to any Person of any preferential rights to purchase any of the Membership Interests or assets (including any rights of first or last refusal, options or similar provisions);

(viii)         Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement, except for the Organizational Documents;

(ix)             Contracts that limit or purport to limit the ability of any of the Acquired Companies or any of their Subsidiaries (A) to compete in any line of business or with any Person or in any geographic area or during any period of time, (B) to solicit or hire any Person, (C) to acquire any product or other asset or any services from any other Person or (D) to transact business with any other Person;

(x)               Contracts containing non-disclosure or confidentiality covenants with Employees or third parties;

(xi)             Contracts and executed letters of intent relating to the future acquisition or disposition of assets or Properties, or any merger, consolidation or similar business combination transaction, whether or not enforceable;

(xii)           Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the assets of any of the Acquired Companies or any of their Subsidiaries, including indentures, guarantees, loan or credit agreements, promissory notes, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;

(xiii)         Contracts involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which has not been fully performed, in each case providing for aggregate payments under each such Contract by any of the Acquired Companies or any of their Subsidiaries in excess of Two Hundred Fifty Thousand Dollars ($250,000), other than any such Contracts concerning the routine collection of debts entered into in the Ordinary Course of Business;

(xiv)         all management agreements to which any of the Acquired Companies or any of their Subsidiaries is a party as manager;

(xv)           Contracts under which any of the Acquired Companies or any of their Subsidiaries has made advances or loans to any other Person;

(xvi)         Contracts providing for severance, retention, change in control or other similar payments;

(xvii)       Contracts for the employment of any individual on a full-time, part-time or consulting or other basis;

(xviii)     outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by any of the Acquired Companies or any of their Subsidiaries;

(xix)         Contracts (or group of related Contracts) which involve the expenditure of more than One Hundred Thousand Dollars ($100,000) annually or Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate or require performance by any party more than one year from the date hereof;

(xx)           Contracts providing for indemnification and similar arrangements of any Person or the assumption of any Tax, environmental or other Liability of any Person;

(xxi)         all agreements relating to material transactions involving any of the Acquired Companies or any of their Subsidiaries and (A) any member, manager or officer of any of the Acquired Companies or any of their Subsidiaries or (B) any other Affiliate of the Acquired Companies and their Subsidiaries, and any agreements pertaining to the foregoing, which are not reflected in the items heretofore listed;

(xxii)       agreements relating to voting of membership interests, pre-emptive rights, restrictive share transfers or similar matters;

(xxiii)     Contracts or plans providing for or requiring the issuance of equity securities (or securities or other instruments convertible into or exchangeable for equity securities) by any of the Acquired Companies or any of their Subsidiaries;

(xxiv)     all Contracts the breach or termination of which would be reasonably likely to result in a Seller Material Adverse Effect; and

(xxv)       all Contracts entered into outside of the Ordinary Course of Business (including any leases and subleases to which any of the Acquired Companies or any of their Subsidiaries is party as lessor or tenant outside of the Ordinary Course of Business), involving payments or obligations in excess of Two Hundred Fifty Thousand Dollars ($250,000) which have a remaining stated term in excess of one (1) year or are not terminable by the applicable Acquired Company or the applicable Subsidiary without penalty or premium within one (1) year from the date hereof.

(b)               Each of the Material Contracts is in full force and effect and is the legal, valid and binding obligation of the Acquired Company or Subsidiary which is party thereto, and, to the Knowledge of the Sellers, the other parties thereto, enforceable against each such party in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles, and, upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty, termination or material modification of terms. None of the Acquired Companies or any of their Subsidiaries is in default under any Material Contract, nor, to the Knowledge of the Sellers, is any other party to any Material Contract in breach of or default thereunder, and no event has occurred, and upon receipt of the consents set forth in Section 4.15(b) of the Disclosure Schedule, no event will have occurred as of the applicable Closing, that with the lapse of time or the giving of notice or both would constitute a breach or default by any of the Acquired Companies or any of their Subsidiaries or, to the Knowledge of the Sellers, any other party thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no party has given notice of any significant dispute with respect to any Material Contract. The Sellers have delivered to the Buyer Parties true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto.

4.16          Employee Benefits Plans.

(a)                Section 4.16(a) of the Disclosure Schedule sets forth a correct and complete list of: all “employee benefit plans” (as defined in Section 3(3) of ERISA), all other employee benefit plans, policies, agreements or arrangements, and all payroll practices, including but not limited to, employment, consulting or other compensation agreements, or bonus or other incentive compensation, stock purchase, equity or equity-based compensation, deferred compensation, change in control, severance, sick leave, vacation, loans, salary continuation, health, life insurance and educational assistance plan, policies, agreements or arrangements with respect to which any of the Acquired Companies or any of their Subsidiaries has any obligation or liability, contingent or otherwise, for current or former Employees, consultants or managers of such Acquired Company or such Subsidiary (collectively, the “Company Plans”).

(b)               No Company Plan is subject to Title IV of ERISA or is otherwise a Defined Benefit Plan as defined in Section 3(35) of ERISA (a “Title IV Plan”) and neither of the Acquired Companies nor any of their ERISA Affiliates has ever sponsored, maintained or contributed to a Title IV Plan.

(c)                No Company Plan is or has been a multiemployer plan within the meaning of Section 3(37) of ERISA (a “Multiemployer Plan”). Neither of the Acquired Companies, their Subsidiaries nor any of their ERISA Affiliates has ever sponsored, maintained or contributed to a Multiemployer Plan.

(d)               None of the Company Plans provide for post-employment life or health coverage for any participant or any beneficiary of a participant, except as may be required under Part 6 of the Subtitle B of Title I of ERISA, Section 4980B of the Code or any similar state law and at the expense of the participant or the participant’s beneficiary.

(e)                No Company Plan is or has been a Voluntary Employees’ Beneficiary Association within the meaning of Section 501(c)(9) of the Code.

(f)                Correct and complete copies of the following documents with respect to each of the Company Plans have been delivered or made available to the Buyer Parties by the Acquired Companies and their Subsidiaries to the extent applicable: (i) all plan documents and related trust documents, insurance contracts or other funding arrangements, and all amendments thereto; (ii) the most recent Forms 5500 or other forms required to be filed annually with the DOL or IRS and all schedules thereto; (iii) the most recent actuarial report, if any; (iv) the most recent IRS determination or opinion letter; (v) all correspondence, rulings or opinions issued by the DOL or the IRS and all material correspondence from either of the Acquired Companies to the DOL or the IRS other than routine reports, returns or other filings within the last three (3) years; (vi) the most recent summary plan descriptions; and (vii) written summaries of all non-written Company Plans.

(g)                The Company Plans have been established and maintained in all material respects in accordance with their terms and with all applicable provisions of ERISA, the Code and other Laws.

(h)               The Company Plans intended to qualify under Section 401 or other tax-favored treatment under of Subchapter B of Chapter 1 of Subtitle A of the Code are so qualified, and any trusts intended to be exempt from federal income taxation under the Code are so exempt. Nothing has occurred with respect to the operation of the Company Plans that could cause the loss of such qualification or exemption, or the imposition of any liability, penalty or tax under ERISA or the Code. No event has occurred and no condition exists with respect to any Company Plan subject to the requirements of Code Section 401(a) that would subject any of the Acquired Companies or any of their Subsidiaries, either directly or by reason of an ERISA Affiliate of such Acquired Company or such Subsidiary, to any Tax, fine, Lien, penalty or other liability imposed by ERISA, the Code or other applicable Laws. For each Company Plan with respect to which a Form 5500 has been filed, no material adverse change has occurred with respect to the matters covered by the most recent Form 5500 since the date thereof.

(i)                 All contributions required to have been made under any of the Company Plans or by Law have been timely made.

(j)                 None of the Acquired Companies, any of their Subsidiaries or any other “disqualified person” or “party in interest,” as defined in Section 4975 of the Code and Section 3(14) of ERISA, respectively, has engaged in any “prohibited transaction,” as defined in Section 4975 of the Code or Section 406 of ERISA, with respect to any Company Plan, nor have there been any fiduciary violations under ERISA which could subject any of the Acquired Companies or any of their Subsidiaries (or any officer, manager or Employee thereof) to any material penalty or tax under Section 502(i) of ERISA or Sections 4971 and 4975 of the Code.

(k)               There are no pending actions, Claims or lawsuits arising from or relating to the Company Plans (other than routine benefit Claims), nor to the Knowledge of the Sellers, are there any facts that could form the basis for any such claim or lawsuit. There are no filings, applications or other matters pending with respect to the Company Plans with the IRS, the DOL or any other Governmental Entity.

(l)                 All amendments and actions required to bring the Company Plans into conformity in all material respects with all of the applicable provisions of the Code, ERISA and other applicable Laws have been made or taken, except to the extent that such amendments or actions are not required by Law to be made or taken until a date after the applicable Closing Date.

(m)             Neither the execution and delivery of this Agreement or the Transaction Documents nor the consummation of the transactions contemplated herein or therein will result in (i) any payment becoming due to any Employee, (ii) the provision of any benefits or other rights to any Employee, (iii) the increase, acceleration or provision of any payments, benefits or other rights to any Employee, whether or not any such payment, right or benefit would constitute a “parachute payment” within the meaning of Section 280G of the Code, or (iv) require any contributions or payments to fund any obligations under any Company Plan. No amount so disclosed is an “excess parachute payment” within the meaning of Section 280G of the Code that would be non-deductible by any of the Acquired Companies or any of their Subsidiaries under Section 4999 of the Code.

4.17          Labor.

(a)                Section 4.17(a) of the Disclosure Schedule sets forth for each Employee who is employed as of the date hereof, the Employee’s name, job title, date of hire, current base salary or wage rate, bonus or commissions for 2012, target bonus or commissions for 2013, whether such Employee is exempt or non-exempt under the Fair Labor Standards Act, as amended, and whether such Employee is full-time or part-time. Section 4.17(a) of the Disclosure Schedule also sets forth, for each other individual performing services for any Acquired Company or any Subsidiary who is not an Employee, including independent contractors and consultants, the individual’s name, current compensation terms and the expiration date of the individual’s Contract or other arrangement with the applicable Acquired Company or the applicable Subsidiary.

(b)               Any individual who performs services for any of the Acquired Companies or any of their Subsidiaries (other than through a Contract with an organization other than such individual) and who is not treated as an Employee of such Acquired Company or such Subsidiary, as applicable, for federal income tax purposes by such Acquired Company or such Subsidiary is properly classified under applicable tax and other Laws and is not an Employee under such Laws.

(c)                None of the Acquired Companies or any of their Subsidiaries is a party to any labor or collective bargaining agreement and there are no labor or collective bargaining agreements which pertain to Employees of any of the Acquired Companies or any of their Subsidiaries.

(d)               No Employees are represented by any labor organization. No labor organization or group of Employees has made a pending demand for recognition, and there are no representation proceedings or petitions seeking a representation proceeding presently pending or, to the Knowledge of the Sellers, threatened to be brought or filed, with the National Labor Relations Board or other labor relations tribunal. There is no organizing activity involving any of the Acquired Companies or any of their Subsidiaries pending or, to the Knowledge of the Sellers, threatened by any labor organization or group of Employees.

(e)                There are no (i) strikes, work stoppages, slowdowns, lockouts or arbitrations or (ii) material grievances or other labor disputes pending or, to the Knowledge of the Sellers, threatened against or involving any of the Acquired Companies or any of their Subsidiaries. There are no unfair labor practice charges, grievances or complaints pending or, to the Knowledge of the Sellers threatened by or on behalf of any Employee or group of Employees.

(f)                There are no complaints, charges or Claims against any of the Acquired Companies or any of their Subsidiaries pending or, to Knowledge of the Sellers, threatened that could be brought or filed, with any Governmental Entity based on, arising out of, in connection with or otherwise relating to the employment or termination of employment of or failure to employ, any individual. Each of the Acquired Companies and each of their Subsidiaries is in compliance with all Laws relating to the employment of labor. There has been no “mass layoff” or “plant closing” (as defined by WARN) with respect to any of the Acquired Companies or any of their Subsidiaries within the six (6) months prior to the applicable Closing.

4.18          Litigation. Except as set forth in Section 4.18 of the Disclosure Schedule, there is no material Legal Proceeding (a) pending or, to the Knowledge of the Sellers, threatened against any of the Acquired Companies or any of their Subsidiaries or affecting any of the Acquired Companies’ or any of their Subsidiaries’ assets (or to the Knowledge of the Sellers, pending or threatened, against any Acquired Company or any Affiliates of the Acquired Companies or any of the Sellers relating to the Acquired Companies or any of their Subsidiaries), (b) to which any of the Acquired Companies or any of their Subsidiaries is otherwise a party before any Governmental Entity or (c) against or by any of the Acquired Companies or any of their Subsidiaries, any Seller or any Affiliate of the Acquired Companies, their Subsidiaries or any Seller that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. To the Knowledge of the Sellers, no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Legal Proceeding. None of the Acquired Companies or any of their Subsidiaries is subject to any Order, and there are no unsatisfied judgments, penalties or awards against or affecting any of the Acquired Companies or any of their Subsidiaries or any of their properties or assets (or by or against any Seller or any Affiliate of the Acquired Companies or any Seller and relating to any of the Acquired Companies or any of their Subsidiaries), and none of the Acquired Companies or any of their Subsidiaries is in breach or violation of any Order. None of the Acquired Companies or any of their Subsidiaries is engaged in any legal action to recover monies due it or for damages sustained by it.

4.19          Compliance with Laws; Permits.

(a)                Each of the Acquired Companies and each of their Subsidiaries are in compliance in all material respects with all Laws and Orders applicable to their business, operations or assets. None of the Acquired Companies or any of their Subsidiaries has received any written notice of or been charged with the violation of any Laws during the last five (5) years. To the Knowledge of the Sellers, none of the Acquired Companies or any of their Subsidiaries is under investigation with respect to the violation of any Laws and, to the Knowledge of the Sellers, there are no facts or circumstances which could form the basis for any such violation.

(b)               Section 4.19 of the Disclosure Schedule contains a list of all Permits which are required for the operation of the business of the Acquired Companies and their Subsidiaries as presently conducted (such Permits set forth, or required to be set forth, on Section 4.18 of the Disclosure Schedule, the “Company Permits”), other than those the failure of which to possess is immaterial. Each of the Acquired Companies and each of their Subsidiaries currently have all Permits which are required for the operation of their businesses as currently conducted, other than those the failure of which to possess is immaterial. None of the Acquired Companies or any of their Subsidiaries is in default or violation, and no event has occurred which, with notice or the lapse of time or both, would constitute a material default or violation, in any material respect of any term, condition or provision of any Company Permit, and to the Knowledge of the Sellers, there are no facts or circumstances which could form the basis for any such default or violation.

4.20          Insurance. Section 4.20 of the Disclosure Schedule sets forth a true, correct and complete list of all insurance policies (including information on the premiums payable in connection therewith and the scope and amount of the coverage provided thereunder) maintained by each of the Acquired Companies and each of their Subsidiaries (such insurance policies set forth, or required to be set forth, on Section 4.20 of the Disclosure Schedule, the “Policies”) as of the date hereof. The Policies (a) have been issued by insurers which, to the Knowledge of the Sellers, are reputable and financially sound, and (b) are in full force and effect. None of the Acquired Companies or any of their Subsidiaries has received any written notice disclaiming coverage under, reserving rights with respect to a particular claim under, or of cancellation or termination of, premium increase with respect to, or alteration of coverage under, any of such Policies. All premiums due on such Policies have been paid in accordance with the payment terms of each Policy. None of the Acquired Companies or any of their Subsidiaries is in material breach or default, and none of the Acquired Companies or any of their Subsidiaries has taken any action or failed to take any action which, with notice or the lapse of time or both, would constitute such a material breach or default, or permit termination or modification, of any of the Policies. The consummation of the transactions contemplated by this Agreement will not, in and of itself, cause the revocation, cancellation or termination of any Policy. To the Knowledge of the Sellers, since January 1, 2009, there have been no gaps in the insurance coverage of any of the Acquired Companies or any of their Subsidiaries. None of the Policies provides for any retrospective premium adjustment or other experience-based liability on the part of any of the Acquired Companies or any of their Subsidiaries.

4.21          Existing Loans. Section 4.21 of the Disclosure Schedule sets forth a complete list of all loans affecting the Properties and all other loans to, and debt for borrowed money of, each of the Acquired Companies and each of their Subsidiaries that will not be paid in full, cancelled and discharged at the applicable Closing (collectively, the “Existing Loans”) and sets forth the borrower, the original lender and the current holder (to the extent that a Subsidiary has received written notice of the assignment thereof), the original principal balance, the outstanding principal balance as of December 31, 2012, the interest rate, the monthly payment, the maturity date, and any balloon payment with respect to the Existing Loans. Copies of the principal loan documents in connection with the Existing Loans (“Existing Loan Documents”) previously made available to the Buyer Parties are true, correct and complete in all material respects. No material breach or default has occurred, or is continuing, under the Existing Loan Documents, and no event has occurred that, with notice or lapse of time, or both, would constitute a material breach or default under the Existing Loan Documents.

4.22          Transactions with Affiliates. Except as set forth in Section 4.22 of the Disclosure Schedule and except for the Organizational Documents of the Acquired Companies, (a) there are no Contracts, Leases, liabilities, obligations or other existing arrangements between any Seller, any of the Acquired Companies or any of their Subsidiaries, on the one hand, and either (i) any Affiliate of such Seller, or (ii) any of the Acquired Companies or any of their Subsidiaries, on the other hand and (b) none of the Acquired Companies or their Subsidiaries or any officer or director of any of the Acquired Companies or any of their Subsidiaries possesses, directly or indirectly, any financial interest in, or is a director, officer or employee of, any Person which is a client, supplier, customer, lessor, lessee, or competitor or potential competitor of any of the Acquired Companies or any of their Subsidiaries. Ownership of securities of a company whose securities are registered under the Securities Exchange Act of 1934, of two percent (2%) or less of any class of such securities shall not be deemed to be a financial interest for purposes of this Section 4.21.

4.23          Purchase Rights. Except as set forth in Section 4.23 of the Disclosure Schedule (the agreements listed therein are being referred to as the “Purchase Rights”), no Subsidiary is bound by any contract for the sale of any Property that is outstanding or any outstanding rights of first refusal, rights of first offer, buy-sell rights or options to purchase any of the Properties or any direct ownership in the Properties or portion thereof.

4.24          Certain Payments. None of the Acquired Companies, their Subsidiaries, any Seller or, to the Knowledge of the Sellers, any member, manager, officer, Employee, or other Person associated with or acting on behalf of any of them, has directly or indirectly (a) made any contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money, property, or services (i) to obtain favorable treatment in securing business for any of the Acquired Companies or any of their Subsidiaries, (ii) to pay for favorable treatment for business secured by any of the Acquired Companies or any of their Subsidiaries, (iii) to obtain special concessions or for special concessions already obtained, for or in respect of any of the Acquired Companies or any of their Subsidiaries, or (iv) in violation of any Law, or (b) established or maintained any fund or asset with respect to any of the Acquired Companies or any of their Subsidiaries that has not been recorded in the books and records of the Acquired Companies and their Subsidiaries.

4.25          Insolvency. None of the Acquired Companies or any of their Subsidiaries is the subject of any pending, rendered or, to the Knowledge of the Sellers, threatened insolvency or similar Legal Proceedings. None of the Acquired Companies or any of their Subsidiaries has made an assignment for the benefit of creditors or taken any action with a view to, or that would constitute a valid basis for, the initiation of any such insolvency or similar Legal Proceeding. None of the Acquired Companies or any of their Subsidiaries is insolvent or will become insolvent as a result of the execution, delivery and performance by any Acquired Company of this Agreement or the Transaction Documents to which it is a party or the consummation of the transactions contemplated hereby or thereby.

4.26          Financial Advisors. Except as set forth on Section 4.26 of the Disclosure Schedule, no Person has acted, directly or indirectly, as a broker, finder or financial advisor for the Sellers or the Acquired Companies in connection with the transactions contemplated by this Agreement and no Person is or will be entitled to any fee or commission or like payment in respect thereof.

4.27          Full Disclosure. To the Knowledge of the Sellers, no representation or warranty of the Acquired Companies or the Sellers contained in this Agreement or in any of the Transaction Documents (including the Disclosure Schedule) and no written statement made by or on behalf of any Acquired Company or a Seller to the Buyers or any of their Affiliates pursuant to this Agreement or any of the Transaction Documents contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading.

Article V
REPRESENTATIONS AND WARRANTIES OF BUYER PARTIES

5.1              Organization and Good Standing. Each Buyer Party is duly organized, validly existing and in good standing under the laws of the State of Delaware. Each Buyer Party has all requisite corporate or other power and authority to operate, own, lease or otherwise hold its properties and assets and to carry on its business as presently conducted and is qualified to do business in every jurisdiction in which its ownership of property or the conduct of business as presently conducted requires it to qualify.

5.2              Authorization; Execution and Enforceability of Transactions. Each Buyer Party has the requisite power, authority and legal capacity to execute and deliver this Agreement and each the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by each of the Buyer Parties of this Agreement and each of the Transactions Documents to which any Buyer Party is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized and approved by all required action on the part of the Buyer Parties and no other proceedings, actions or authorizations on the part of any Buyer Party or any holders of interests in any Buyer Party are necessary to authorize the execution and delivery by any Buyer Party of any Transaction Document to which it is a party or the consummation by such Buyer Party of the transactions contemplated thereby. This Agreement and each of the Transaction Documents to which any Buyer Party is a party have been duly executed and delivered by each Buyer Party, or will at the Initial Closing be duly executed and delivered by each Buyer Party, and constitutes, or will constitute at Initial Closing, the legal, valid and binding obligation of each Buyer Party, enforceable in each case against the Buyer Parties in accordance with its respective terms, except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general equitable principles.

5.3              Consents and Approvals; No Violations.

(a)                The execution, delivery and performance by each Buyer Party of this Agreement and each Transaction Document to which any Buyer Party is a party, the consummation by each Buyer Party of the transactions contemplated hereby or thereby and the compliance by each Buyer Party with any of the provisions hereof or thereof, do not and will not (with or without notice or lapse of time, or both) conflict with, or result in any violation or breach of, default under, or give rise a remedy, penalty, right of termination, cancellation or acceleration of any obligation, loss of a material benefit under, or give rise to any obligation of any Buyer Party to make any payment under, or to the increased, additional, accelerated or guaranteed rights or entitlements of any Person under, any provision of (i) the certificate of organization and partnership agreement of any Buyer Party; (ii) any Contract, or Permit to which any Buyer Party is a party or to which any of the properties or assets of such Buyer Party are subject; (iii) any Order applicable to any of the Buyer Parties or to which any of the properties or assets of the Buyer Parties are subject; or (iv) any applicable Law, except in the cases of clauses (i) through (iv) above, as would not reasonably be expected to prevent, impede or delay the consummation of the transactions contemplated by this Agreement.

(b)               No consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Entity is required on the part of any of the Buyer Parties in connection with the execution and delivery of this Agreement, the other Transactions Documents to which any Buyer Party is a party, the compliance by each Buyer Party with any of the provisions hereof or thereof, or the consummation of the transactions contemplated hereby or thereby.

5.4              Financial Advisors. Except as set forth on Section 5.4 of the Disclosure Schedule, no Person has acted, directly or indirectly, as a broker, finder or financial advisor for any of the Buyer Parties in connection with the transactions contemplated by this Agreement and no Person is or will be entitled to any fee or commission or like payment in respect thereof.

5.5              Investment Intention.

(a)                Each of CBTC Buyer and CBTC PA Buyer is acquiring the CBTC Membership Interests and the CBTC PA Membership Interests, respectively, for its own account, for investment purposes only and not with a view to the distribution (as such term is used in Section 2(11) of the Securities Act) thereof.

(b)               The Buyers understand that the Membership Interests have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available.

5.6              Available Funds. Assuming receipt of the proceeds from the Equity Offering, the Buyers shall have on the Initial Closing Date sufficient funds to enable the Buyers to consummate the transactions contemplated by this Agreement, including payment of the Initial Purchase Price as set forth in Article II and fees and expenses of the Buyers relating to the transactions contemplated hereby.

Article VI
COVENANTS

6.1              Conduct of Business.

(a)                Each of the Sellers covenants and agrees that, except (x) as set forth in Section 6.1(a) of the Disclosure Schedule, (y) as expressly contemplated by this Agreement or any Transaction Document, or (z) with the prior written consent of the Buyers, between the date hereof and the applicable Closing Date, each Seller shall, and shall cause each of the Acquired Companies and each of their Subsidiaries, to:

(i)                 conduct the business of each of the Acquired Companies and each of their Subsidiaries in the Ordinary Course of Business consistent with historical and customary operating practices, and operate, manage, lease and maintain the Properties in the usual, regular and ordinary course and in substantially the same manner as heretofore, subject to ordinary wear and tear and damage by fire or other casualty;

(ii)               use commercially reasonable efforts to maintain, in all material respects, each of the Acquired Companies’ and each of their Subsidiaries’ relationships with their respective employees, managers, suppliers, customers, lenders, lessors and other Persons having business dealings with them and to preserve the goodwill and ongoing businesses of each of the Acquired Companies and each of their Subsidiaries;

(iii)             maintain its books and records in accordance with the accounting principles currently utilized by it, consistently applied, and not change in any material manner any of its methods, principles or practices of accounting currently in effect, except as may be required by applicable Law or GAAP;

(iv)             duly and timely file Tax Returns (in accordance with Section 6.7(a)) and other documents required to be filed with federal, state, local and other Governmental Entities, subject to extensions permitted by Law, and pay all Taxes then due (whether or not such Taxes are shown as due on Tax Returns, reports or other documents);

(v)               keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as the policies covering the applicable Property on the date hereof;

(vi)             take such other steps as regards the management and operation of the Properties as shall be requested in writing by a Buyer and which are reasonably necessary (in the good faith determination of the Buyers) to permit the Buyers or any of their Affiliates to qualify as a REIT (taking into account the Buyers’ respective ownership of an interest in the Acquired Companies); provided, however, that such steps may include, without limitation, the formation (including before the applicable Closing) of one or more separate joint ventures between either of the Buyers (or one of their Affiliates), on the one hand, and one or more Sellers, on the other hand, and to which certain assets and/or the conduct of certain activities (including shuttle bus and other transportation activities conducted at one or more the Properties) currently held or conducted by any of the Acquired Companies or any of their Subsidiaries, or any of the Cooper Beech Entities, would be transferred at or prior to the applicable Closing; provided further, that the economic interests in such joint venture would be consistent with the direct and indirect economic interests of the Buyer Parties and the Seller Parties in the relevant Copper Beech Entities; and

(vii)           comply in all material respects with all applicable Laws wherever the business of the Acquired Companies and their Subsidiaries is conducted.

(b)               Without limiting the generality of Section 6.1(a), and in furtherance thereof, between the date hereof and the applicable Closing Date, except (u) as set forth in Section 6.1(b) of the Disclosure Schedule, (w) as required under applicable Law, (x) as expressly contemplated by this Agreement or any other Transaction Document, (y) except for matters denoted in clause (x) below, pursuant to existing Contracts or otherwise in the Ordinary Course of Business and consistent with past practice, or (z) with the prior written consent of the Buyers, each Seller shall, and shall cause each of the Acquired Companies and each of their Subsidiaries to not, directly or indirectly, do any of the following:

(i)                 acquire or sell or ground lease, or enter into any option or agreement to acquire or sell or ground lease, or exercise an option or contract to acquire, sell or ground lease any of the Properties or any additional real property or any part thereof or interest therein, other than with respect to the Restructuring, the Transaction and the Purchase Rights;

(ii)               make any loans or advances to any other Person, except advances to employees in the Ordinary Course of Business;

(iii)             encumber or subject to any Lien any of the Properties other than Permitted Liens, or take or omit to take any action that results in a Lien, other than a Permitted Lien, being imposed on any of the Properties;

(iv)             encumber or subject to any Lien any of the Membership Interests, or take or omit to take any action that results in a Lien being imposed on any of the Membership Interests;

(v)               terminate or assign any Material Contract, the Existing Loan Documents, the Space Leases or the Ground Leases or modify any of the foregoing in a manner that would materially increase the post-Closing monetary or performance obligations of the Buyers;

(vi)             transfer, sell or assign, or enter into any option or agreement to transfer, sell or assign, or exercise an option or contract to transfer, sell or assign, the Membership Interests or the Properties;

(vii)           enter into any Material Contract, Ground Lease, Non-Residential Lease or Space Lease other than in the Ordinary Course of Business;

(viii)         amend any of the Organizational Documents of any of the Acquired Companies or any of their Subsidiaries;

(ix)             incur, create or assume any Indebtedness except Indebtedness (x) incurred in the Ordinary Course of Business that does not individually exceed Two Hundred Fifty Thousand Dollars ($250,000), or (y) that shall be satisfied and discharged prior to the applicable Closing Date;

(x)               (A) make or change any Tax election, or change any method of, or period for, Tax accounting; (B) file any amended Tax Return; (C) modify, enter into, or commence negotiations regarding, any material closing, settlement, or other agreement relating to Taxes; (D) agree to extend or waive any period of adjustment, assessment, or collection of Taxes, or issue a power of attorney with respect to Taxes; (E) apply for, request or enter into any ruling, technical advice memoranda, or closing agreement (or comparable version of the foregoing) from any Governmental Entity; (F) surrender or limit any right to claim a refund of Taxes; (G) take any action outside the ordinary course of its business that would have the effect of limiting any material tax attribute of any of the Acquired Companies; or (H) file any Tax Return except in a manner consistent with past practice and applicable Law;

(xi)             enter into, adopt, amend or terminate any Company Plan, increase in any manner the compensation (including, but not limited to, wages, salaries, bonuses or any other remuneration) or benefits of any director, officer, employee or consultant or pay or otherwise grant any benefit not required by any Company Plan, or enter into any contract to do any of the foregoing, except to the extent required by applicable Law, and other than increases of wages and salaries and payment of bonuses and other remuneration scheduled to occur in the Ordinary Course of Business;

(xii)           enter into or offer to enter into or amend, terminate or waive any right under any employment or consulting arrangement with any Person or any group of Persons, except to the extent the same is done in the Ordinary Course of Business with respect to any employment or consulting arrangement of property level employees and consultants;

(xiii)         cancel any debts or waive any claims or rights of substantial value outside of the Ordinary Course of Business;

(xiv)         enter into any Contract with any of their respective officers, directors or Affiliates, other than in the Ordinary Course of Business consistent with past practices, or in connection with Contracts that are terminable upon 30-days’ notice without penalty or premium or which would be satisfied and fully discharged at or prior to the applicable Closing;

(xv)           authorize the issuance, issuing, selling or delivering of (A) any capital stock of, or other equity or voting interest in, any of the Acquired Companies or any of their Subsidiaries or (B) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire either (1) any shares of capital stock of, or other equity or voting interest in, any of the Acquired Company or any of their Subsidiaries, or (2) any securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire, any shares of the capital stock of, or other equity or voting interest in, any of the Acquired Companies or any of their Subsidiaries, except in connection with the Restructuring;

(xvi)         split, combine, redeem, reclassify, purchase or otherwise acquire, directly or indirectly, any shares of capital stock of, or other equity or voting interest in, any of the Acquired Companies or any of their Subsidiaries, or make any other change in the capital structure of any of the Acquired Companies or any of their Subsidiaries, unless obligated to do so pursuant to the Organizational Documents of the Acquired Companies or their Subsidiaries;

(xvii)       except as provided for in its Organizational Documents or as set forth in Section 4.4(b) of the Disclosure Schedule, or as contemplated hereby, declare, set aside, make or pay any dividend or other distribution in respect of the capital stock, or other ownership interests in, any of the Acquired Companies or any of their Subsidiaries;

(xviii)     compromise or settle any liability insurance claims or other litigation relating to the business of the Acquired Companies and their Subsidiaries, this Agreement or the Transactions contemplated hereby, other than any settlements that do not require any payments following the applicable Closing Date and do not impose any material obligations or liabilities on any of the Acquired Companies or any of their Subsidiaries following the applicable Closing Date;

(xix)         make or commit to make any capital expenditures or capital commitments other than those capital expenditures or capital commitments included in the 2012/2013 lease year budget for the Copper Beech Entities;

(xx)           enter into any commitments or agreements with any Governmental Entity affecting any Property or commence any rezoning proceedings, other than commitments, agreements or proceedings entered into or commenced in the Ordinary Course of Business and that do not impose any material economic burden in each case on such Property or do not involve settlement of any Environmental Claims;

(xxi)         make any changes to the accounting methods, principles or principles or practices of the Acquired Companies or any of their Subsidiaries, except as required by GAAP;

(xxii)       accelerate, beyond the normal collection cycle, collection of any material accounts receivable;

(xxiii)     terminate the coverage of any material policies of title, liability, fire, workers’ compensation, property or any other form of insurance maintained by or for the benefit of any of the Acquired Companies or any of their Subsidiaries, except where such terminated coverage is replaced by comparable coverage; or

(xxiv)     agree, or otherwise commit to take, any of the foregoing actions.

6.2              Reasonable Efforts. Subject to the terms and conditions set forth in this Agreement, the Buyer Parties and the Sellers will use commercially reasonable efforts to promptly take, or cause to be taken, as applicable, all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, permits and approvals from Governmental Entities and the making of all necessary registrations as to which such consent, approval or waiver relates and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) subject to the terms of Article VIII, the defending of themselves in any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (v) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.

6.3              Investigation and Evaluation. From the date of this Agreement until the applicable Closing Date, the Sellers shall, and shall cause the Acquired Companies and their Subsidiaries to (a) during reasonable hours and under reasonable circumstances, give the Buyer Parties and their employees, accountants and other Representatives access to all premises, properties, books, records, financial information, Contracts, documents, employees, personnel, agents or other Representatives of the Acquired Companies and their Subsidiaries, (b) furnish to the Buyer Parties and their Representatives such financial, operating, marketing, employee, legal, regulatory and environmental related data and other information relating to the Acquired Companies, their Subsidiaries and the Properties as the Buyer Parties reasonably may request, and (c) promptly following the request thereof by the Buyer Parties, seek to arrange such meetings and telephone conferences with employees or other Representatives of the Acquired Companies and their Subsidiaries; provided, that such meetings and telephone conferences shall be conducted in a manner that would not be expected to adversely interfere with the operations or business relationships of the Acquired Companies or the Sellers with such Persons. Without the prior written consent of the Sellers, none of the Buyer Parties or any of their respective Representatives or Affiliates may contact any vendor, suppliers, contractors or customers of the Acquired Companies or their Subsidiaries in connection with the transaction contemplated by this Agreement (for the avoidance of doubt, the Buyer Parties and their respective Representatives and Affiliates may continue to contact such vendors, suppliers, contractors and customers in the ordinary course of business and consistent with past practice). The Sellers shall, and shall cause the Acquired Companies and their Subsidiaries to, fully cooperate with the conduct of due diligence by the Buyer Parties and their Representatives.

6.4              No Alternative Transaction. The Sellers will not take or authorize or permit any Affiliate of any Seller (or authorize or permit any officer, director, employee, investment banker, financial advisor, attorney, accountant or other Person retained by or acting for or on behalf of any Seller or any such Affiliate) to take, directly or indirectly, any action to initiate, assist, solicit, receive, negotiate, participate in any discussions, facilitate, encourage or accept any offer or inquiry from any Person (a) that would reasonably be expected to lead to an Alternative Transaction; (b) to reach any agreement or understanding (whether or not such agreement or understanding is absolute, revocable, contingent or conditional) for, or otherwise attempt to consummate, any Alternative Transaction; or (c) to furnish or cause to be furnished any information with respect to the Sellers, the Acquired Companies or any of their Subsidiaries to any Person who the Sellers or such Affiliate (or any such Person acting for or on their behalf) knows or has reason to believe is in the process of considering an Alternative Transaction. As used herein, “Alternative Transaction” means any sale or other disposition of the Membership Interests, Properties or all or any substantial portion of the business of the Acquired Companies and their Subsidiaries.

6.5              Publicity. The Sellers and the Buyer Parties shall use commercially reasonable efforts to agree on the description of the transactions contemplated by this Agreement contained in the initial press releases to be issued by the Parties with respect to their execution and delivery of this Agreement. Each party will use commercially reasonable efforts to consult with the other Parties before issuing, and provide the other Parties the opportunity to review and comment upon, any press release or other written public statement that contains a description of the transactions contemplated by this Agreement (other than any such press release or public statement that contains only such description as has been previously agreed upon), and shall not issue any such press release or make any such written public statement prior to such consultation, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange.

6.6              Non-Competition; Non-Solicitation.

(a)                Agreement Not to Compete.

(i) Except for the activities of certain of the Sellers set forth in Section 6.6(a)(i) of the Disclosure Schedule, the Sellers agree that from the Final Closing Date until the date that is three (3) years after the closing of the Buyers’ final acquisition of interests in the Properties pursuant to a Purchase Option; provided, however, that if the Buyers do not exercise a Purchase Option, then from the Final Closing Date until the date that is one (1) year after the expiration of the Purchase Option not exercised (the “Restricted Period”), such Seller shall not, directly or indirectly, through an Affiliate or otherwise, either for such Seller’s own benefit or for the benefit of any other Person, without the prior written consent of the Buyers (which consent may be withheld by the Buyers in their sole discretion), compete with any of the Acquired Companies, any of the Acquired Companies’ Subsidiaries, any of the Buyer Parties or any of their respective Affiliates in any manner or capacity (e.g., through any form of ownership, lending relationship, or as an advisor, principal, agent, partner, officer, director, employee, employer, consultant, member of any association or otherwise, whether or not for compensation or gain) in any geographic area where any of the Acquired Companies or any of their Subsidiaries does business, in any aspect of the business in which the applicable Acquired Company, the applicable Subsidiary, the applicable Buyer Party or any of their respective Affiliates has engaged in the two (2) year period preceding the Initial Closing Date. Each Seller hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 6.6(a) are reasonable and are no broader than are necessary to protect the legitimate business interests of the Buyers including, the ability of the Buyers to realize the benefit of their bargain and to enjoy the goodwill of the Acquired Companies and their Subsidiaries.

(ii)               Ownership by a Seller, as a passive investment, in the aggregate of less than two percent (2%) of the outstanding shares or other equity interests of capital stock of any corporation or other entity listed on a national securities exchange or publicly traded on any nationally recognized over-the-counter market shall not constitute a breach of Section 6.6(a).

(iii)             Each Seller further agrees that during the Restricted Period it will not, directly or indirectly, assist or encourage any other Person in carrying out, directly or indirectly, any activity that would be prohibited by the foregoing provisions of this Section 6.6(a) if such activity were carried out by such Seller, either directly or indirectly. In particular, each Seller agrees that it will not, during the Restricted Period, directly or indirectly, induce any Employee of the Seller, the Acquired Companies or any of their Subsidiaries, or of any of their respective Affiliates, to carry out, directly or indirectly, any such activity.

(b)               Agreement Not to Hire or Solicit. Except for the activities of certain of the Sellers set forth in Section 6.6(b) of the Disclosure Schedule, during the Restricted Period, the Sellers shall not, without the prior written consent of the Buyers,

(i)                 hire, or directly or indirectly attempt to hire, away any then-current Employee, employee of any of the Buyers, or any of their Affiliates or any Person who was so employed by any of the Buyers, any of the Acquired Companies, any of their Subsidiaries, or any of their respective Affiliates within six (6) months prior to the Seller’s action (collectively, the “Restricted Employees”), or to persuade any such Restricted Employees to leave employment with any of the Buyers, any of the Acquired Companies, any of the Acquired Companies’ Subsidiaries, or any of their respective Affiliates or to become an employee or consultant of any individual or entity other than any of the Buyers, any of the Acquired Companies, any of the Acquired Company’s Subsidiaries or any of their respective Affiliates; or

(ii)               conduct competitive business with, directly or indirectly solicit, divert, or take away, or attempt to solicit, divert or take away, the business of any Person with whom any of the Buyers, any of the Acquired Companies, any of the Acquired Companies’ Subsidiaries, or any of their respective Affiliates has established or is actively seeking to establish a customer relationship to the extent such business relates to the business conducted by any of the Buyers, any of the Acquired Companies, any of the Acquired Companies’ Subsidiaries, or any of their respective Affiliates (a “Restricted Customer”). The Sellers agree that in the course of any activity that would be a violation of this Section 6.6(b) if taken with regard to a Restricted Customer, the Seller shall take all reasonable steps necessary to ascertain whether such entity is a Restricted Customer.

(c)                Available Remedies. The Sellers acknowledge that it would be difficult to fully compensate the Buyers or any of their Affiliates for damages resulting from any breach by them of the provisions of Section 6.6(a) or Section 6.6(b). Accordingly, in the event of any actual or threatened breach of such provisions, the Buyers and their Affiliates shall (in addition to any other remedies which it may have) be entitled to temporary and/or permanent injunctive relief to enforce such provisions and recover attorneys’ fees and costs for same, and such relief may be granted without the necessity of proving actual damages or the inadequacy of money damages, or posting bond. The Sellers further acknowledge that Section 6.6(a) and Section 6.6(b) constitute a material inducement to the Buyers to complete the transactions contemplated by this Agreement and the Buyers will be relying on the enforceability of Section 6.6(a) and Section 6.6(b) in completing such transactions contemplated by this Agreement.

(d)               Scope. The Parties agree that, if any court of competent jurisdiction determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.6 is unreasonable, arbitrary or against public policy, then a lesser period of time, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party. In the event that such a modification is not possible, then, because each obligation in this Section 6.6 is a separate and independent covenant, any unenforceable obligation shall be severed and all remaining obligations shall be enforced.

6.7              Tax Matters.

(a)                Tax Matters; Seller Tax Returns. The Sellers shall, at their expense, prepare and file, or cause to be prepared and filed, all Tax Returns (including such Tax Returns filed pursuant to any valid extension of time to file and any amendments thereto) required to be filed prior to the applicable Closing Date by or with respect to the Acquired Companies and their Subsidiaries, and for Subsequent Closings, each relevant Subsidiary and its Subsidiaries (“Pre-Closing Tax Returns”). The Sellers shall pay (or cause to be paid) and be liable for all Taxes with respect to Pre-Closing Tax Returns (and all other Taxes attributable to (i) a Pre-Closing Tax Period and (ii) the portion of the Straddle Period ending prior to the applicable Closing Date as determined in accordance with Section 6.7(b) (“Pre-Closing Straddle Taxes”) of any of the Acquired Companies or any of their Subsidiaries), and for Subsequent Closings, each relevant Subsidiary and its Subsidiaries. Pre-Closing Tax Returns shall be prepared on a basis consistent with prior practice and applicable Law, and utilizing accounting methods, elections, and conventions that do not have the effect of distorting the allocation of taxable amounts and deductions between the Tax periods covered by such Tax Returns and subsequent Tax periods; provided, however, that, to the extent relevant, any Subsidiary of an Acquired Company that is a partnership (determined for U.S. federal income tax purposes) shall use the “interim closing of the books” method for purposes of allocating tax items to the periods before and after the applicable Closing for U.S. federal income tax purposes.

(b)               Calculation of Taxes for Straddle Period Tax Returns. Pre-Closing Straddle Taxes of the Acquired Companies and their Subsidiaries shall be calculated as though the Tax period of the Acquired Companies and any relevant Subsidiary terminated as of the applicable Closing Date; provided, however, that (i) in the case of a Tax not based on income, receipts, proceeds, profits or similar items, or a specific transaction, Pre-Closing Straddle Taxes shall be equal to the amount of Tax for the entire Straddle Period, multiplied by a fraction the numerator of which is the number of days from the beginning of the Straddle Period through the applicable Closing Date and the denominator of which is the total number of days in the Straddle Period; and (ii) to the extent that any Tax is based on the greater of a Tax on income, receipts, proceeds, or profits, or similar items on the one hand, and a Tax measured by net worth or some other basis not otherwise measured by income, receipts, proceeds, or profits on the other hand, the portion of such Tax is a Pre-Closing Straddle Tax shall be deemed to be (i) if the amount of such Tax for the Straddle Period is measured by net worth or such other basis, the amount of such Tax determined as though the taxable values for the entire Straddle Period equal the respective values as of the applicable Closing Date and multiplying the amount of such Tax by a fraction the numerator of which is the number of days from the beginning of the Straddle Period through the applicable Closing Date and the denominator of which is the total number of days in the Straddle Period, or (ii) if the amount of such Tax for the Straddle Period is measured by income, receipts, proceeds, or profits, or similar items, the amount of such Tax determined as though the Straddle Period terminated at the applicable Closing Date. In the case of a Tax that is (x) paid for the privilege of doing business during a period (a “Privilege Period”) and (y) computed based on business activity occurring during an accounting period ending prior to the Privilege Period, any reference to a “Tax period,” a “tax period” or a “taxable period” means such accounting period and not the Privilege Period. For purposes of this Section 6.7(b), any exemption, deduction, credit or other item that is calculated on an annual basis (e.g., cost recovery deductions) will be taken into account in calculating Pre-Closing Straddle Taxes on a pro rata basis by multiplying the total amount of such item by a fraction, the numerator of which is the number of days from the beginning of the Straddle Period through the applicable Closing Date and the denominator of which is the total number of days in the Straddle Period. All Taxes of the Acquired Companies and its Subsidiaries that occur as a result of the Restructuring shall be Pre-Closing Straddle Taxes.

(c)                Tax Indemnity. The Sellers shall be liable for and indemnify, defend and hold harmless the Buyers and their Affiliates from, against and in respect of any and all Tax claims resulting from, arising out of or relating to: (a) any Taxes imposed on or with respect to any of the Acquired Companies or any of their Subsidiaries with respect to any Pre-Closing Tax Period, and any Pre-Closing Straddle Taxes, and any other amounts for which the Sellers are liable or required to pay pursuant to Section 6.7; (b) any breach or inaccuracy of a representation or warranty set forth in Section 4.10; (c) any breach or failure to comply with any covenant or obligation with respect to Taxes or Tax matters set forth in this Agreement; (d) all Taxes of any member of an Consolidated Tax Group of which any of the Acquired Companies or any of their Subsidiaries (or any predecessor of any of the Acquired Companies or any of their Subsidiaries) is or was a member prior to the applicable Closing, including pursuant to Treasury Regulation Section 1.1502-6 or any state, local, provincial or non-U.S. analogue; (e) any and all Taxes of any Person imposed on any of the Acquired Companies or any of their Subsidiaries, or on the Buyers or any of their Affiliates, as a transferee or successor or pursuant to any Law, in each case as a result of any event, action, relationship, omission, or transaction occurring before the applicable Closing; (f) any Taxes associated with any items of income in, or exclusions of any item of deduction or credit from, taxable income for any Tax period under (1) Section 481 or Section 482 of the Code; (2) an installment sale or “open transaction” disposition made on or prior to the applicable Closing Date; (3) a prepaid amount received, or paid, prior to the applicable Closing Date, (4) deferred income or gain arising from a transaction or event occurring prior to the applicable Closing Date, or (5) an election under Section 108(i) of the Code; and (g) for the sake of clarity, their own Taxes. Notwithstanding any provision of this Agreement to the contrary, the indemnification obligations of the Sellers pursuant to this Section 6.7(c) shall survive until six (6) months after the expiration of the longest applicable statute of limitations (including any extensions or waivers thereof).

(d)               Transfer Taxes. All transfer, documentary, sales, use, registration and any other similar Taxes and related fees (including any penalties, interest and additions thereto) (“Transfer Taxes”) arising out of or incurred in connection with this Agreement, regardless of the Party upon whom such Transfer Taxes are legally imposed, shall be paid one-half by the Sellers, on the one hand, and one-half by the Buyers, on the other hand. The Buyers shall bear sole responsibility for preparing and timely filing all necessary Tax Returns relating to any Transfer Taxes, and if required by applicable Law, the Sellers shall join in the execution of any such Tax Returns and other documentation.

(e)                Tax Treatment of the Transaction. The Parties agree and acknowledge that (i) the acquisition of the Acquired Companies and their Subsidiaries is intended to be treated for U.S. federal income tax purposes as a purchase (by CBTC Buyer and CBTC PA Buyer) and sale (by the relevant Sellers) of (A) equity interests in the Copper Beech Entity owned by each Acquired Company at the Initial Closing, and (B) the relevant Subsidiary Equity Interests at Subsequent Closings, and (ii) the Acquired Companies shall not have a taxable year that begins prior to or as a result of the applicable Closing. The Parties shall not (and shall cause their respective Affiliates not to) take any action or position inconsistent with such treatment for all relevant tax purposes.

6.8              Notification of Certain Matters. From the date of this Agreement until the Final Closing Date, the Sellers shall give prompt notice to the Buyer Parties, and the Buyer Parties shall give prompt notice to the Sellers, of any written notice or other written communication received by such Party from any Governmental Entity in connection with the transactions contemplated by this Agreement or from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement. In addition, from the date hereof to the Final Closing, each of the Buyer Parties and the Sellers shall give prompt notice to the other Party upon first becoming aware of any event, change, effect or circumstance that is reasonably likely to prevent or delay the satisfaction of the conditions to any Closing under this Agreement.

6.9              Financing Cooperation. Upon the request of the CCG, the Sellers shall, and shall cause the Acquired Companies and their Subsidiaries, to use their commercially reasonable efforts to provide such cooperation as may be reasonably requested by CCG in connection with its efforts to consummate the Equity Offering; provided that such cooperation does not unreasonably interfere with the ongoing operations of the Acquired Company and their Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by CCG, (a) making available to CCG appropriate personnel of the Acquired Companies and their Subsidiaries, (b) providing, as promptly as reasonably practicable, information relating to the Acquired Companies and their Subsidiaries to the extent reasonably requested by CCG to assist in preparation of customary offering or information documents to be used for the completion of the Equity Offering, and (c) assisting CCG in obtaining customary comfort letters and consents of the independent accountants of the Acquired Companies and their Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. CCG shall promptly, upon request by the Sellers, reimburse the Sellers for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Sellers or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 6.9, and shall indemnify and hold harmless the Sellers, the Acquired Companies and their Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the consummation of the Equity Offering and any information used in connection therewith (other than information provided by the Sellers, any of the Acquired Companies or any of their Subsidiaries) and all other actions taken by the Sellers, the Acquired Companies and their Subsidiaries and their respective Representatives pursuant to this Section 6.9.

6.10          Casualty and Condemnation.

(a)                If, prior to the applicable Closing Date, a Property is destroyed or damaged by fire or other casualty or a Subsidiary receives notice or the Sellers obtains Knowledge of condemnation or sale in lieu of condemnation of a Property, the Sellers shall notify the Buyers of that event and provide the Buyers with details of the extent of the damage or condemnation. The Buyers shall be bound to purchase the Membership Interests for the full Initial Purchase Price as required by the terms hereof without regard to the occurrence or effect of any damage to Properties or destruction of Improvements thereon or condemnation of any portion of a Property.

(b)               The Sellers will obtain the Buyer’s approval, which will not be unreasonably withheld, delayed or conditioned, concerning any restoration, repair or re-construction plans for any Property affected by a casualty or condemnation between the date hereof and the applicable Closing. Seller shall conduct all such restoration, repair and reconstruction substantially in accordance with such restoration, repair and reconstruction plans approved by the Buyers. Notwithstanding the foregoing, the Sellers will be permitted to incur or enter into an agreement to incur any amount reasonably necessary to effect emergency or necessary repairs related to preservation of the Property or health and safety matters or which are required by the terms of any lease, loan document or other agreement to which any of the Acquired Companies or any of their Subsidiaries is a party.

6.11          Funding of New Developments. The Parties hereby agree to cooperate in good faith to identify and agree upon student housing property development projects. For each of the first three (3) years following the Initial Closing, CCG shall contribute up to Twenty Million Dollars ($20,000,000) annually to the Acquired Companies to fund the development of new student housing properties to the extent such property developments are agreed upon by the Parties.

Article VII
CONDITIONS TO CLOSING

7.1              Conditions Precedent to the Parties’ Obligations. The obligations of the Buyer Parties and the Sellers to consummate each Closing are subject to the fulfillment or satisfaction (or waiver by the applicable Party), prior to or at the applicable Closing, of each of the following conditions precedent:

(a)                no effective injunction, writ, temporary restraining order, or other order issued by a Governmental Entity, shall be in effect which restrains or prohibits the consummation of the applicable Closing in accordance with this Agreement, and no lawsuit or other Legal Proceeding shall have been commenced by any Governmental Entity for the purpose of obtaining any such injunction, writ, temporary restraining order or other order, and no notice shall have been received by the Buyer Parties, the Sellers or the Acquired Companies or any of their Subsidiaries from any Governmental Entity indicating an intent to restrain, prevent, materially delay or restructure the Transaction;

(b)               all consents, approval and actions of, filings with, and notices to, any Governmental Entity required by the Buyer Parties or the Sellers with regard to the Transaction, shall have been obtained or made and remain in full force and effect;

(c)                the Sellers shall have obtained the consents of third parties set forth in Section 7.1(c) of the Disclosure Schedule;

(d)               CBTC shall have completed the acquisition of the equity interests in the applicable Non-Pennsylvania Copper Beech Entities held by the Former Non-Pennsylvania Members; and

(e)                CBTC PA shall have completed the acquisition of the equity interests in the applicable Pennsylvania Copper Beech Entities held by the Former Pennsylvania Members.

7.2              Conditions to Obligation of the Buyer Parties. The obligations of the Buyer Parties to consummate each Closing are subject to the fulfillment or satisfaction (or waiver by the Buyer Parties), prior to the applicable Closing, of each of the following additional conditions precedent:

(a)                (i) the representations and warranties of the Sellers contained in this Agreement shall be true and correct in all respects as of the applicable Closing, as if made at and as of each such date, and the Parties agree that the Sellers shall be permitted to update the Disclosure Schedules to reflect changes prior to such applicable Closing (except that those representations and warranties which by their terms are made as of a specific date shall be required to be true and correct only as of such date), except where the failure of such representations and warranties to be true and correct would not have a Seller Material Adverse Effect (without giving effect to any limitation included by the words “Seller Material Adverse Effect,” “in all material respects,” “material” or “materiality”); (ii) each of the Sellers shall have complied with and performed in all material respects its obligations hereunder required to be complied with or performed by it on or prior to the applicable Closing Date; and (iii) the Buyers shall have received a certificate to the foregoing effect from each Seller and from an authorized officer of each Acquired Company;

(b)               the Buyers shall have received the deliverables set forth in Section 2.5 or Section 2.10, as applicable;

(c)                between the date of the Agreement and the applicable Closing Date, there shall not have occurred a Seller Material Adverse Effect or any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate with all other changes, effects, events, occurrences, states of facts or developments, would reasonably be likely to result in a Seller Material Adverse Effect;

(d)               solely with respect to the Initial Closing, the Restructuring shall have been consummated; and

(e)                CCG shall have successfully completed and received the net proceeds from the Equity Offering.

7.3              Conditions to Obligation of the Sellers. The obligations of the Sellers to consummate each Closing are subject to the fulfillment or satisfaction (or waiver by the Sellers), prior to or at the applicable Closing, of the following additional conditions precedent:

(a)                (i) the representations and warranties of the Buyer Parties contained in this Agreement shall be true and correct in all respects as of the applicable Closing, as if made at and as of each such date and the Parties agree that the Buyer Parties shall be permitted to update the Disclosure Schedules to reflect changes prior to such applicable Closing (except that those representations and warranties which by their terms are made as of a specific date shall be required to be true and correct only as of such date), except where the failure of such representations and warranties to be true and correct would not have a Buyer Material Adverse Effect (without giving effect to any limitation included by the words “Buyer Material Adverse Effect,” “in all material respects,” “material” or “materiality”); (ii) each of the Buyer Parties shall have complied with and performed in all material respects its obligations hereunder required to be complied with or performed by it on or prior to the applicable Closing Date; and (iii) the Sellers shall have received a certificate to the foregoing effect from each Buyer Party;

(b)               the Sellers shall have received the deliverables set forth in Section 2.6 or Section 2.11, as applicable; and

(c)                between the date of the Agreement and the applicable Closing Date, there shall not have occurred a Buyer Material Adverse Effect or any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate with all other changes, effects, events, occurrences, states of facts or developments, would reasonably be likely to result in a Buyer Material Adverse Effect.

Article VIII
INDEMNIFICATION

8.1              Survival of Representations and Warranties. The representations and warranties of the Parties contained in this Agreement, any certificate delivered pursuant hereto or any Transaction Document shall survive the Final Closing through and until the date that is three (3) years after the Final Closing Date; provided, however, that:

(a)                the representations and warranties of the Sellers (i) set forth in Sections 3.1 (Organization), 3.2 (Authorization), 3.4 (Ownership), 4.1 (Organization), 4.2 (Authorization) and 4.4 (Capitalization) shall survive the Final Closing indefinitely and (ii) set forth in Sections 4.5 (Environmental), 4.10 (Taxes) and 4.15 (Employee Benefit Plans) shall survive the Final Closing until the date that is the later of (A) three (3) years after the Final Closing Date and (B) six (6) months after the expiration of the applicable statute of limitations (after giving effect to any extensions or waivers) (such representations and warranties described in the abovementioned clauses (i) and (ii), the “Fundamental Representations”); and

(b)               the covenants set forth in Section 6.7 shall survive the Final Closing until the date that is six (6) months after the expiration of the applicable statute of limitations (after giving effect to any extensions or waivers) (in each case, the “Survival Period”).

provided, however, that any obligations under Sections 8.2(a)(i) and 8.2(b)(i) shall not terminate with respect to any Indemnifiable Losses as to which the Person to be indemnified pursuant to this Article VIII (the “Indemnified Party”) shall have given notice to the indemnifying party pursuant to this Article VIII (the “Indemnifying Party”) before the termination of the applicable Survival Period.

Notwithstanding the foregoing, in the event the Buyers do not exercise a Purchase Option, other than the Fundamental Representations and the covenants set forth in Section 6.7, which shall survive in accordance with Sections 8.1(a) and 8.1(b) above, the representations and warranties contained in this Agreement, any certificate delivered pursuant hereto or any Transaction Document shall survive the Final Closing through and until the date that is the earlier of (x) three (3) years after the Final Closing Date or (y) one (1) year after the expiration date of a Purchase Option not exercised by the Buyers. Unless otherwise expressly provided in this Agreement, all of the covenants and agreements of the Parties contained in this Agreement shall survive until fully performed unless such covenant or agreement has an express termination date. Notwithstanding anything herein to the contrary, Claims for fraud, intentional misrepresentation or gross negligence on the part of any Party to this Agreement shall survive indefinitely.

8.2              Indemnification.

(a)                From and after the applicable Closing and subject to Sections 8.1 and 8.4 hereof, the Sellers hereby agree to severally and not jointly with respect to Article III, and jointly and severally with respect to Article IV, indemnify and hold the Buyer Parties, each Acquired Company and their respective directors, managers, officers, employees, Affiliates, shareholders, agents, attorneys, representatives, successors and permitted assigns (collectively, the “Buyer Indemnified Parties”) harmless from and against, and pay to the applicable Buyer Indemnified Parties the amount of, any and all Losses, whether or not involving a Third Party Claim (individually, an “Indemnifiable Loss” and, collectively, “Indemnifiable Losses”) based upon, attributable to or resulting from:

(i)                 the failure of any of the representations or warranties made by the Sellers in this Agreement or in any Transaction Document to be true and correct in all respects at and as of the applicable Closing;

(ii)               the breach of any covenant or other agreement on the part of any of the Sellers or the Acquired Companies or any of their Subsidiaries under this Agreement or any Transaction Document;

(iii)             any liability of Sellers under Section 6.7(d) or any breach of the covenants set forth in Section 6.7;

(iv)             any Transaction Expenses that are not paid at or prior to the Initial Closing (and not taken into account for purposes of determining the Initial Closing Cash Payment); or

(v)               any claims of brokers or finders engaged by the Sellers.

(b)               From and after the applicable Closing and subject to Sections 8.1 and 8.4, the Buyer Parties hereby agree to jointly and severally indemnify and hold the Sellers and their respective Affiliates, shareholders, members, agents, attorneys, representatives, successors and permitted assigns (collectively, the “Seller Indemnified Parties”) harmless from and against, and pay to the applicable Seller Indemnified Parties the amount of any and all Indemnifiable Losses based upon, attributable to or resulting from:

(i)                 the failure of any of the representations or warranties made by the Buyers in this Agreement or in any Transaction Document to be true and correct in all respects at and as of the applicable Closing;

(ii)               the breach of any covenant or other agreement on the part of the Buyers under this Agreement or any Transaction Document; and

(iii)             any claims of brokers or finders engaged by the Buyer Parties.

(c)                The right to indemnification or any other remedy based on representations, warranties, covenants and agreements in this Agreement or any Transaction Documents shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the applicable Closing Date, with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any such representation or warranty, or on the performance of or compliance with any such covenant or agreements, will not affect the right to indemnification or any other remedy based on such representations, warranties, covenants and agreements.

(d)               For the sole purpose of determining Indemnifiable Losses (and not for determining whether any breach of any representation or warranty has occurred), any representations or warranties of the Seller shall not be deemed qualified by any references to materiality or to Seller Material Adverse Effect.

8.3              Indemnification Procedures.

(a)                A claim for indemnification for any matter not involving a Third Party Claim may be asserted by prompt written notice to the Indemnifying Party (or, in the event the Sellers are the Indemnifying Party, to the Sellers’ Representative on their behalf); provided, however, that failure to so notify the Indemnifying Party shall not preclude the Indemnified Party from any indemnification which it may claim in accordance with this Article VIII, except to the extent such failure has prejudiced the Indemnifying Party.

(b)               In the event that any Legal Proceedings shall be instituted or that any claim or demand shall be asserted by any third party in respect of which indemnification may be sought under Section 8.2 (a “Third Party Claim”), the Indemnified Party shall promptly cause written notice of the assertion of any Third Party Claim of which it has knowledge to be forwarded to the Indemnifying Party (or, in the event the Sellers are the Indemnifying Party, to the Sellers’ Representative on their behalf). The failure of the Indemnified Party to give reasonably prompt written notice of any Third Party Claim shall not release, waive or otherwise affect the Indemnifying Party’s obligations with respect thereto, except to the extent such failure shall have prejudiced the Indemnifying Party. Subject to the provisions of this Section 8.3, the Indemnifying Party shall have the right, at its sole expense, to be represented by counsel of its choice, which must be reasonably satisfactory to the Indemnified Party, and to defend against, negotiate, settle or otherwise deal with any Third Party Claim which relates to any Indemnifiable Losses indemnified against hereunder; provided, however, that the Indemnifying Party (or, in the event the Sellers are the Indemnifying Party, the Sellers’ Representative on their behalf) shall have acknowledged in writing to the Indemnified Party its obligation to indemnify the Indemnified Party pursuant to the terms of this Agreement. If the Indemnifying Party (or, in the event the Sellers are the Indemnifying Party, the Sellers’ Representative on their behalf) elects to defend against, negotiate, settle or otherwise deal with any Third Party Claim which relates to any Indemnifiable Losses indemnified by it hereunder, it shall within twenty (20) days of the Indemnified Party’s written notice of the assertion of such Third Party Claim (or sooner, if the nature of the Third Party Claim so requires) notify the Indemnified Party of its intent to do so. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, the election shall conclusively establish for purposes of this Agreement that the Indemnified Party is entitled to relief under this Agreement for any Loss arising from or in connection with such Third Party Claim (subject to the provisions of Section 8.4); provided, however, that such election shall not conclusively establish the nature, category or amount of such Loss arising from or in connection with such Third Party Claim. If the Indemnifying Party (or, in the event the Sellers are the Indemnifying Party, the Sellers’ Representative on their behalf) elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim which relates to any Indemnifiable Losses indemnified against hereunder, fails to notify the Indemnified Party of its election as herein provided or contests its obligation to indemnify the Indemnified Party for such Indemnifiable Losses under this Agreement, the Indemnified Party may defend against, negotiate, settle or otherwise deal with such Third Party Claim. If the Indemnified Party defends any Third Party Claim, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable expenses of defending such Third Party Claim upon submission of periodic bills. If the Indemnifying Party (or, in the event the Sellers are the Indemnifying Party, the Sellers’ Representative on their behalf) shall assume the defense of any Third Party Claim, the Indemnified Party may participate in any such defense with separate counsel with the reasonable expense of such counsel borne by the Indemnified Party. The Parties agree to provide reasonable access to the other to such non-privileged documents and information as may be reasonably requested in connection with the defense, negotiation or settlement of any such Third Party Claim. Notwithstanding the foregoing, if a Third Party Claim (i) seeks relief other than the payment of monetary damages or would result in the imposition of a consent order, injunction or decree that would materially restrict the future activity or conduct of the Indemnified Party or any of its Affiliates or would result in the imposition of a criminal penalty, (ii) seeks a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates or (iii) would result in any monetary liability of the Indemnified Party that will not be fully and promptly paid or reimbursed by the Indemnifying Party, then, in each such case, (A) the Indemnifying Party (or the Sellers’ Representative, as the case may be) shall not, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed, settle, compromise or offer to settle or compromise any Third Party Claim (and no such settlement or compromise shall include any of the matters set forth in (i) or (ii) above without Buyer’s prior written consent (which may be withheld in its sole discretion)) and (B) the Indemnified Party shall be entitled to participate in any such defense with separate counsel, with the reasonable expense of such counsel borne by the Indemnifying Party.

(c)                After any final decision, judgment or award shall have been rendered by a Governmental Entity of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have reached an agreement, in each case with respect to an indemnifiable claim hereunder, the Indemnified Party shall forward to the Indemnifying Party (or, in the event the Sellers are the Indemnifying Party, the Sellers’ Representative on their behalf), notice of any sums due and owing by the Indemnifying Party pursuant to this Agreement with respect to such matter and the Indemnifying Party shall pay all of such remaining sums so due and owing to the Indemnified Party by wire transfer of immediately available funds within five (5) Business Days after the date of such notice.

(d)               Except with respect to any claim based upon fraud or intentional misrepresentation, for which there shall be no limitations imposed by this Agreement, following the applicable Closing Date, the sole and exclusive remedy for any Indemnifiable Loss pursuant to this Article VIII by the Buyer Indemnified Parties and the Seller Indemnified Parties, or any of them, shall be indemnity pursuant to this Article VIII. Except for indemnification pursuant to this Article VII and except in the case of fraud or intentional misrepresentation, the Buyer Indemnified Parties and the Seller Indemnified Parties hereby waive and release any statutory, equitable or common law rights or remedies they may have against any Indemnifying Party relating to environmental matters, including any such matters arising under Environmental Laws or in any way related to Hazardous Materials, Environmental Claims or Environmental Permits.

8.4              Limitations on Indemnification for Breaches of Representations and Warranties.

(a)                Neither the Sellers nor the Buyer Parties shall be required to indemnify any Person under Section 8.2(a)(i) or 8.2(b)(i), (i) unless the aggregate amount of Indemnifiable Losses pursuant to Sections 8.2(a)(i) or 8.2(b)(i), as applicable, exceeds Five Hundred Thousand Dollars ($500,000) (the “Basket”), in which case, for the avoidance of doubt, the Sellers or the Buyer Parties, as applicable, shall be required to indemnify, defend and hold harmless for only those Indemnifiable Losses in excess of the Basket, or (ii) for an aggregate amount of Indemnifiable Losses exceeding Nine Million Dollars ($9,000,000) (the “Cap”), in connection with Indemnifiable Losses related to the breach or inaccuracy of any of the representations or warranties of the Sellers or the Acquired Companies in Articles III and IV or the Buyer Parties in Article V; provided that there shall be no Basket or Cap with respect to Indemnifiable Losses related to the breach or inaccuracy of any of the Fundamental Representations, for breaches of or, for the sake of clarity, any amount due under Section 6.7 or in the case of fraud or intentional misrepresentation.

(b)               The Sellers and the Buyer Parties agree that the Basket and Cap amounts agreed herein assume that the Final Closing has occurred. In the event the Final Closing shall not have occurred, and provided that the failure to consummate the Final Closing shall not have been caused by the failure of the Sellers to perform in all material respects their covenants or agreements contained in this Agreement, the Basket and Cap shall be reduced such that the Basket shall equal two tenths of one percent (0.2%) of the actual purchase price received by the Sellers (either from the Buyer Parties or through a release from the Subsequent Closing Escrow Amount), and the Cap shall equal five percent (5%) of the actual purchase price received by the Sellers (either from the Buyer Parties or through a release from the Subsequent Closing Escrow Amount).

(c)                The Sellers shall have no right of contribution or other recourse against any of the Acquired Companies or any of their Subsidiaries or their directors, officers, Employees, Affiliates, agents, attorneys, representatives, assigns or successors for any Third Party Claims asserted by Buyer Indemnified Parties, it being acknowledged and agreed that the covenants and agreements of the Acquired Companies are solely for the benefit of the Buyer Indemnified Parties.

(d)               The Sellers and the Buyer Parties agree that all indemnification payments under this Article VIII shall be paid by the Indemnifying Party net of any insurance coverage that may be available to the Indemnified Party, the Acquired Companies or any of its Subsidiaries.

(e)                The Sellers and the Buyer Parties agree to treat any indemnity payment made pursuant to this Article VIII as an adjustment to the Initial Purchase Price for U.S. federal income and all other relevant tax purposes.

(f)                For the avoidance of doubt, “Buyer Parties” shall not include CBTC or CBTC PA for purposes of this Article VIII.

Article IX
MISCELLANEOUS

9.1              Termination. This Agreement may be terminated prior to the Initial Closing or the Final Closing as follows:

(a)                by mutual written consent of the Buyers and the Sellers;

(b)               by either the Buyers or the Sellers, if the Initial Closing has not occurred on or before September 30, 2013 or the Final Closing has not occurred on or before December 31, 2013 (each an “Outside Date”); provided, however, that neither the Buyer Parties nor the Sellers may terminate this Agreement pursuant to this Section 9.1(b) if the Initial Closing or Final Closing shall not have been consummated by such date by reason of the failure of such Party or any of its Affiliates to perform in all material respects any of its or their respective covenants or agreements contained in this Agreement;

(c)                by either the Buyers or the Sellers if any event or circumstance shall occur, or the other Party shall materially breach any of its representations, warranties, covenants or agreements contained in this Agreement, where the effect of such event, circumstance or breach would be to cause the conditions to the obligation to consummate the Initial Closing of the terminating Party not to be capable of being satisfied prior to the Outside Date; provided, that prior to any such termination, the non-breaching Party shall provide notice to the breaching Party specifying the breach and if such breach is capable of cure by the Outside Date (it being understood that in the event such breach is cured prior to the Outside Date, the non-breaching Party shall not have the right to terminate this Agreement);

(d)               by either the Buyers or the Sellers if a Governmental Entity shall have issued an Order or taken any other action permanently enjoining, restraining or otherwise prohibiting the consummation of the Transaction and such Order or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(d) shall not be available to any Party that has initiated such Legal Proceeding, or that has not taken any and all actions required by this Agreement necessary to oppose, contest and resist, and to have lifted, rescinded or vacated, such order, decree or judgment before it became final and nonappealable; or

(e)                by the Buyers if CCG shall not have successfully completed the Equity Offering prior to March 31, 2013.

9.2              Effect of Termination. In the event of the termination of this Agreement pursuant to Section 9.1:

(a)                this Agreement shall forthwith become null and void and have no further force or effect (except for this Section 9.2 and Sections 9.3 (Expenses) and 9.7 (Submission to Jurisdiction; Consent to Service of Process; Waiver of Jury Trial), which shall remain in full force and effect following such termination); and

(b)               neither Party shall have any liability or obligation to the other in respect of this Agreement; provided that:

(i)                 if the Transaction fails to close as a result of a breach of this Agreement by either Party, the breaching Party shall be fully liable to the other Party for all reasonable out-of-pocket costs and expenses (including attorneys’ fees and expenses) actually incurred by such other Party in connection with the preparation of this Agreement and the carrying out of the provisions of this Agreement, so long as the Party seeking such costs and expenses is not itself in breach in any material respect of any of its representations, warranties, covenants or agreements contained in this Agreement and is ready, willing and able to close the Transaction; and

(ii)               each Party shall be fully liable to the other Party for any breach of any provisions of this Agreement that survive the termination hereof.

9.3              Expenses. Except as otherwise provided in this Agreement, the Sellers and the Buyer Parties shall each bear their own expenses incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby.

9.4              Sellers’ Representative.

(a)                Each of the Sellers irrevocably nominates, constitutes and appoints John R. McWhirter as its agent and true and lawful attorney-in-fact (the “Sellers’ Representative”), with full power of substitution, to act in the name, place and stead of such Seller with respect to the transactions contemplated by this Agreement, including the transfer of such Seller’s Membership Interests to the Buyers in accordance with the terms and provisions of this Agreement, and to act on behalf of such Seller in connection with any matters concerning, amendment of, waiver under or litigation involving this Agreement or any claim for indemnification pursuant to Article VIII and to do or refrain from doing all such further acts and things, and to execute all such documents, as such Sellers’ Representative shall deem necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement, including the power:

(i)                 to take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Sellers to consummate the transactions contemplated by this Agreement or to terminate this Agreement if the Sellers are entitled to do so;

(ii)               to negotiate, execute and deliver all ancillary agreements, statements, certificates, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement (it being understood that, upon request by the Buyers, such Seller shall execute and deliver any such documents which the Sellers’ Representative agrees to execute);

(iii)             to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with the any Claims under this Agreement; and

(iv)             to take all actions which under this Agreement may be taken by the Sellers (including under Article VIII hereof) and to do or refrain from doing any further act or deed on behalf of the Seller which the Sellers’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as such Seller could do if personally present.

(b)               John R. McWhirter hereby accepts his appointment as Sellers’ Representative.

(c)                Notwithstanding anything to the contrary contained in this Agreement or in any other agreement executed in connection with the transactions contemplated by this Agreement: (i) each Buyer Indemnified Party shall be entitled to deal exclusively with the Sellers’ Representative on all matters relating to any claim for indemnification, compensation or reimbursement pursuant to Article VIII; and (ii) each Buyer Party, each Buyer Indemnified Party and each Seller shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller by the Sellers’ Representative, and on any other action taken or purported to be taken on behalf of any Seller by the Sellers’ Representative, as fully binding upon such Seller. A decision, act, consent or instruction of the Sellers’ Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 9.8 hereof shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers; and the Buyer Parties may rely upon any such decision, act, consent or instruction of the Sellers’ Representative as being the decision, act, consent or instruction of the Sellers. The Buyer Parties are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Sellers’ Representative.

(d)               The Sellers recognize and intend that the power of attorney granted in Section 9.2(a): (i) is coupled with an interest and is irrevocable and will not be terminated by any act of any Seller or by operation of law; (ii) may be delegated by the Sellers’ Representative; and (iii) shall survive the death or incapacity of each of the Sellers.

(e)                If the Sellers’ Representative shall die, resign, become disabled or otherwise be unable to fulfill his responsibilities hereunder, the Sellers shall (by consent of those Persons holding at least a majority of the Membership Interests prior to the Initial Closing (excluding, for purposes of this calculation, any Membership Interests held by the Sellers’ Representative)), within ten (10) days after such death, disability or inability, appoint a successor to the Sellers’ Representative (who shall be reasonably satisfactory to the Buyers) and immediately thereafter notify the Buyers of the identity of such successor. If after the death, incapacity or resignation of the Sellers’ Representative, a successor Sellers’ Representative has not been appointed by Sellers within fifteen (15) days after a request by the Buyers, the Buyers may appoint a new Sellers’ Representative from among Sellers to fill the vacancy by notice to Sellers of such appointment. Any such successor shall succeed the Sellers’ Representative as Sellers’ Representative hereunder. If for any reason there is no Sellers’ Representative at any time, all references herein to the Sellers’ Representative shall be deemed to refer to the Sellers.

9.5              Specific Performance. The Sellers acknowledge and agree that a breach of this Agreement would cause irreparable damage to the Buyer Parties and that the Buyer Parties will not have an adequate remedy at law. Therefore, the obligations of the Sellers under this Agreement, including the Sellers’ obligation to sell the Membership Interests to the Buyers, shall be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith. Such remedies shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which any Party may have under this Agreement or otherwise. Each of the Sellers further agrees that, in the event of any action for specific performance in respect of such breach or violation, it will not assert the defense that a remedy at law would be adequate.

9.6              Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdictions other than the State of Delaware.

9.7              Submission to Jurisdiction; Consent to Service of Process; Waiver of Jury Trial.

(a)                Each of the Parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any court of the State of Delaware or any Federal court of the United States of America sitting in the State of Delaware and any appellate court thereof, in any action or proceeding arising out of, or relating to, this Agreement or the transactions contemplated by this Agreement or for recognition or enforcement of any judgment relating to the transactions contemplated by this Agreement, and each of the Parties hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such court of the State of Delaware or, to the extent permitted by law, in such Federal court. Subject to rights of appeal, each of the Parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

(b)               Each of the Parties hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated by this Agreement in any court of the State of Delaware or any Federal court of the United States of America sitting in the State of Delaware. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(c)                Each of the Parties hereby irrevocably and unconditionally consents to service of process in the manner provided for notices in Section 9.9. Nothing in this Agreement will affect the right of any Party to serve process in any other manner permitted by law.

(d)               THE PARTIES TO THIS AGREEMENT EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

9.8              Entire Agreement; Amendments and Waivers. This Agreement (including the Schedules, Exhibits and Attachments hereto), the other Transaction Documents and any other agreements contemplated hereby or thereby constitute the entire understanding and agreement among the Parties with respect to the subject matter hereof and can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the Party against whom enforcement of any such amendment, supplement, modification or waiver is sought. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, shall be deemed to constitute a waiver by the Party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by law.

9.9              Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), or (ii) one Business Day following the day sent by nationally recognized overnight courier (with written confirmation of receipt), in each case at the following addresses (or to such other address as a Party may have specified by notice given to the other Party pursuant to this provision):

If to the Sellers, to:

John R. McWhirter

Copper Beech Townhome Communities

2590 Park Center Boulevard

State College, PA 16801

Attention: John R. McWhirter

Phone: (814) 861-8100

With a copy (which shall not constitute notice) to:

McDermott Will & Emery LLP

500 North Capitol Street, NW

Washington, DC 20001

Attention: Thomas P. Conaghan

Phone: (202) 756-8161

If to the Buyers, to:

Campus Crest Communities Operating Partnership, LP

c/o Campus Crest Communities, Inc.

2100 Rexford Road

Suite 414

Charlotte, NC 28211

Attention: Andrew Young

Phone: (704) 496-2500

With a copy (which shall not constitute notice) to:

Hogan Lovells US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

Attention: Stuart Barr

Phone: (202) 637-6554

9.10          Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible

9.11          Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights or obligations hereunder may be made by either the Sellers or the Buyers (by operation of law or otherwise) without the prior written consent of the Buyers or the Sellers’ Representative, as applicable, and any attempted assignment without the required consents shall be void; provided, however, that the Buyers may assign this Agreement and any or all rights or obligations hereunder (including Buyer’s rights to seek indemnification hereunder), whether by operation of law or otherwise, to any Affiliate of the Buyers, upon prior written notice to Sellers’ Representative. Upon any such permitted assignment, the references in this Agreement to the Buyers shall also apply to any such assignee unless the context otherwise requires.

9.12          Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

9.13          Disclosure Schedule, Exhibits and Attachments. The Disclosure Schedule and all Exhibits and Attachments referred to herein are intended to be and hereby are specifically made a part of this Agreement.

[Signatures on following pages]

IN WITNESS WHEREOF, the Parties have duly executed this Purchase and Sale Agreement or have caused this Purchase and Sale Agreement to be duly executed by their respective authorized officers as of the date first above written.

CB-CAMPUS CREST, LLC

By: Campus Crest Communities Operating Partnership, LP, its sole member

By: Campus Crest Communities GP, LLC, its general partner

By: Campus Crest Communities, Inc., its sole member

By: /s/ Ted W. Rollins

Name: Ted W. Rollins

Title: Chief Executive Officer

CB-CAMPUS CREST PA, LLC

By: Campus Crest Communities Operating Partnership, LP, its sole member

By: Campus Crest Communities GP, LLC, its general partner

By: Campus Crest Communities, Inc., its sole member

By: /s/ Ted W. Rollins

Name: Ted W. Rollins

Title: Chief Executive Officer

The undersigned hereby acknowledges his appointment as Sellers’ Representative and his willingness to fulfill the duties of the Sellers’ Representative as contemplated by this Agreement.

Exhibit A

Capitalization Spreadsheet

EXHIBIT D

EXHIBIT G

FORM OF NON-RECOURSE PROMISSORY NOTE AND PLEDGE AGREEMENT

FOR VALUE RECEIVED, [______________] (“Maker”) hereby unconditionally promises to pay to [CB-Campus Crest, LLC], a Delaware limited liability company (“Holder”), or its permitted assigns, in lawful money of the United States of America the aggregate principal sum of [___________] Dollars ($___________]), together with interest accrued thereon, calculated and payable as set forth below in this Promissory Note and Pledge Agreement (this “Note”).

The following is a statement of the rights of Holder and the conditions to which this Note is subject, and to which Holder, by the acceptance of this Note, agrees

SECTION 1.                Definitions. Certain terms used in this Note are listed in alphabetical order and defined or referred to below (such terms as well as any other terms defined elsewhere in this Note shall be equally applicable to both the singular and plural forms of the terms defined).

“Business Day” means any day of the year on which national banking institutions in New York are open to the public for conducting business and are not required or authorized to close.

“Campus Crest Member” has the meaning set forth in the Amended and Restated Operating Agreements of CBTC and CBTC PA).

“CBTC” means Copper Beech Townhome Communities, LLC, a Delaware limited liability company.

“CBTC PA” means Copper Beech Townhome Communities (PA), LLC, a Delaware limited liability company.

“Closing Date” means the date of the first acquisition of interests in any of the Subject LLCs, CBTC or CBTC PA by Holder or any of its affiliates.

“Distribution Date” has the meaning set forth in Section 3.

“Event of Default” has the meaning set forth in Section 14.

“Holder” has the meaning set forth in the Preamble.

“Maker” has the meaning set forth in the Preamble.

“Maturity Date” has the meaning set forth in Section 3(b).

“Membership Interests” has the meaning set forth in Section 4.

“Note” has the meaning set forth in the Preamble.

“Option Purchase Price” means the aggregate amount of the cash or in kind distributions to be made to Maker by CBTC and CBTC PA to redeem a portion of Maker’s membership interests in each of CBTC and CBTC PA following the exercise of a Purchase Option by Campus Crest Member.

“Pledged Collateral” has the meaning set forth in Section 4.

“Purchase Option” means the option granted by each of CBTC and CBTC PA to Campus Crest Member to acquire additional interests in each of CBTC and CBTC PA for a specified period of time following each of the first, second and third anniversaries of the Closing Date.

“Roll-up” has the meaning set forth in the Amended and Restated Operating Agreements of CBTC and CBTC PA).

“Secured Obligations” has the meaning set forth in Section 4.

“Securities Laws” has the meaning set forth in Section 15.

“Subject LLC” means any of the entities set forth on Attachment I, CBTC, or CBTC PA, or any entity in which Maker receives an interest in exchange for its interest in any other Subject LLC.

(a)                From and after (but excluding) the date of this Note and continuing through and including the Maturity Date, interest on the unpaid principal balance of this Note outstanding from time to time shall accrue at a rate per annum equal to eight and one-half percent (8.5%). The amount of interest payable on this Note shall be computed on the basis of a 365/366-day year and shall compound daily.

(b)               Upon the occurrence, and during the continuation of an Event of Default, interest shall accrue on the outstanding principal of this Note at a rate per annum equal to fourteen and one-half percent (14.5%).

SECTION 3.                Payments of Principal and Interest.

(a)                Interest Payments.

(i)                 On or before the date that is five (5) days after the date any of the Subject LLCs pays a cash distribution to Maker, including a distribution in redemption of all or part of Maker’s interest in any Subject LLC (each such date a “Distribution Date”), Maker shall pay to Holder, in immediately available funds, an amount of accrued interest equal to, but not greater than, the aggregate amount paid to Maker by the Subject LLCs in such most recent distribution payment. In the event the aggregate amount of such cash distributions paid to Maker exceeds the amount of accrued interest as of the Distribution Date, Maker shall be entitled to retain the balance of the distributions paid by the Subject LLCs.

(ii)               On the Maturity Date, or on such earlier date on which Maker elects to prepay all or a portion of the principal balance of this Note, Maker shall pay all accrued and unpaid interest as of such date.

(iii)             All payments of interest shall be made by wire transfer to the bank account set forth on Attachment III hereto or such other account as may be designated in writing by Holder at least three (3) Business Days prior to the date on which such payment is due.

(b)               Principal Payments.

(i)                 The principal amount of this Note shall be payable by Maker in installments of the following amounts and on June 30, 2016 (the “Maturity Date”) as follows:

(A)             on the date on which each of CBTC and CBTC PA makes a payment in redemption of a portion of the Maker’s interest in such Subject LLC following the exercise of the first Purchase Option, the Option Purchase Price shall be reduced by an amount equal to $[___] of each such redemption payment;

(B)              on the date on which each of CBTC and CBTC PA makes a payment in redemption of a portion of the Maker’s interest in such Subject LLC following the exercise of the second Purchase Option, the Option Purchase Price shall be reduced by an amount equal to $[___] of each such redemption payment; and

(C)              on the date on which each of CBTC and CBTC PA makes a payment in redemption of a portion of the Maker’s interest in such Subject LLC following the exercise of the third Purchase Option, the Option Purchase Price shall be reduced by an amount equal to the remaining unpaid principal balance.

(ii)               All payments of principal hereunder to Holder may be made, at Maker’s election, in immediately available funds by wire transfer to the bank account set forth on Attachment III hereto or such other account as may be designated in writing by Holder at least three (3) Business Days prior to the date on which such payment is due.

(iii)             Following completion of the Roll-up and subject to the approval of Holder, the Maker may elect to repay the entire outstanding principal amount of this Note plus accrued and unpaid interest in kind by the assignment, transfer and conveyance of (A) a [__]% equity interest held by Maker in CBTC and (B) a [__]% equity interest held by Maker in CBTC PA to Holder.

(c)                Payments under this Note will be applied (x) first, to reduce the amount of interest payable hereunder and (y) second, to reduce the principal balance of the Note.

(d)               Payments in the Event a Purchase Option is Not Exercised. In the event Campus Crest Member shall not have elected to exercise a Purchase Option on or before the expiration date of such Purchase Option, Maker may elect:

(i)                 to continue to make payments of principal and interest in accordance with this Section 3; provided, however, that all payments of principal shall be made in accordance with Section 3(b)(ii) in amounts equal to the Option Purchase Price reductions set forth in Section 3(b)(i); such payments of principal shall be made on the expiration date of the applicable Purchase Option and thereafter on the date each subsequent Purchase Option would have been exercised; or

(ii)               to repay the entire outstanding principal amount of this Note plus accrued and unpaid interest in kind by the assignment, transfer and conveyance of:

(A)             a [__]% equity interest held by Maker in CBTC and a [__]% interest held by Maker in CBTC PA to Holder, in the event Campus Crest Member shall not have elected to exercise the first Purchase Option;

(B)              a [__]% equity interest held by Maker in CBTC and a [__]% interest held by Maker in CBTC PA to Holder, in the event Campus Crest Member shall not have elected to exercise the second Purchase Option; or

(C)              a [__]% equity interest held by Maker in CBTC and a [__]% interest held by Maker in CBTC PA to Holder, in the event Campus Crest Member shall not have elected to exercise the third Purchase Option; or

(iii)             to repay the entire outstanding principal amount of this Note plus accrued and unpaid interest in cash.

SECTION 4.                Pledge of Pledged Collateral.

(a)                As security for the prompt and full performance of all indebtedness, duties, liabilities and obligations of Maker under this Note (the “Secured Obligations”), Maker hereby pledges, assigns and grants to Holder a security interest in the following property of Maker, whether now existing or hereafter created or arising (collectively, the “Pledged Collateral”):

(i)                 all membership interests held by Maker in each of the entities set forth on Attachment II hereto, of which Maker is the beneficial owner (the “Membership Interests”);

(ii)               all rights, rights to subscribe, rights to distributions, dividends and other distributions (including, but not limited to, distributions in kind, cash dividends and distributions, dividends and distributions paid in equity interests, returns of capital and liquidating dividends and distributions) and all other rights, benefits, and property interests with respect to the Membership Interests;

(iii)             all other or additional (or less) equity interests or other securities or property (including, without limitation, money or instruments) which may be received, receivable, or otherwise distributed in respect of or in exchange for, or as a replacement of or a substitution for the Membership Interests by way of equity split, spin-off, split-up, reclassification, combination of equity interests or similar rearrangement or by reason of any consolidation, merger, exchange of stock, conveyance of assets, liquidation or similar reorganization, or otherwise, including the CBTC and CBTC PA Units (as defined in the Amended and Restated Operating Agreements of CBTC and CBTC PA) received by Maker in exchange for the Pledged Collateral in the Roll-up;

(iv)             all general intangibles, investment property, financial assets and security entitlements with respect to the foregoing; and

(v)               all proceeds (both cash and noncash) of the foregoing.

(b)               Maker agrees that with respect to the Pledged Collateral Holder shall have all the rights and remedies of a secured party under the Uniform Commercial Code, as well as those provided by law and/or in this Note.

SECTION 5.                Rights and Powers. Holder may, without obligation to do so, exercise one or more of the following rights and powers with respect to the Pledged Collateral:

(a)                accept in its discretion, but subject to the applicable limitations of Sections 10(a) and (c), other property of Maker in exchange for all or part of the Pledged Collateral and release Collateral to Maker to the extent necessary to effect such exchange, and in such event the money, property or securities received in the exchange shall be held by Holder as substitute security for this Note and all other indebtedness secured hereunder;

(b)               perform such acts as are necessary to preserve and protect Holder’s interest in the Pledged Collateral and the rights, powers and remedies granted with respect to such Pledged Collateral by this Note; and

(c)                transfer record ownership of the Pledged Collateral to Holder or its nominee and receive, endorse and give receipt for, or collect by legal proceedings or otherwise, dividends or other distributions made or paid with respect to the Pledged Collateral, provided and only if there exists at the time an outstanding Event of Default.

Any action by Holder pursuant to the provisions of this Section 5 may be taken without notice to Maker. Any costs or expenses (including reasonable attorneys’ fees) reasonably incurred in connection with any such action shall be payable by Maker and form part of the indebtedness secured hereunder as provided in Section 17.

So long as there exists no outstanding Event of Default, Maker may exercise all member rights and be entitled to receive any and all regular cash distributions paid on the Pledged Collateral. Accordingly, unless an Event of Default occurs and is continuing, all materials pertaining to the Pledged Collateral shall be delivered to Maker at the address set forth in Section 18(a); provided, however, if an Event of Default has occurred hereunder and is continuing, any or all Pledged Collateral may be registered, without notice, in the name of Holder or its nominee, and thereafter Holder or its nominee may exercise, without notice, all voting and limited liability company rights, any and all rights of conversion, exchange or subscription, or any other rights, privileges or options pertaining to the Pledged Collateral, all as if Holder were the absolute owner thereof.

Any cash sums that Holder may receive in the exercise of its rights under Section 5 shall be applied to the payment of this Note and any other indebtedness secured hereunder, in such order of application as Holder deems appropriate. Any remaining cash shall be paid over to Maker.

SECTION 6.                Duty to Deliver. Any new, additional or different securities that may now or hereafter become distributable with respect to the Pledged Collateral by reason of any equity split, spin-off, split-up, reclassification, combination of equity interests or similar rearrangement or by reason of any consolidation, merger, exchange of stock, conveyance of assets, liquidation or similar reorganization, or otherwise, including the CBTC and CBTC PA Units (as defined in the Amended and Restated Operating Agreements of CBTC and CBTC PA) received by Maker in exchange for the Pledged Collateral in the Roll-up, shall, upon receipt by Maker of any certificates therefor, be promptly delivered to and deposited with Holder as part of the Pledged Collateral hereunder. Such securities shall be accompanied by one or more properly endorsed stock power assignments.

SECTION 7.                Care of Collateral. Holder shall exercise reasonable care in the custody and preservation of the Pledged Collateral, but shall have no obligation to initiate any action with respect to, or otherwise inform Maker of, any conversion, call, exchange right, preemptive right, subscription right, purchase offer or other right or privilege relating to or affecting the Pledged Collateral; provided, however, that Holder will notify Maker of any such rights of Maker to protect against adverse claims or to protect the Pledged Collateral against the possibility of a decline in market value. Holder shall not be obligated to take any action with respect to the Pledged Collateral requested by Maker unless the request is made in writing and Holder determines that the requested action will not unreasonably jeopardize the value of the Pledged Collateral as security for this Note and other indebtedness secured hereunder.

Holder may at any time release and deliver all or part of the Pledged Collateral to Maker, and the receipt thereof by Maker shall constitute a complete and full acquittance for the Pledged Collateral so released and delivered. Holder shall accordingly be discharged from any further liability or responsibility for the Pledged Collateral so released and delivered, and the released Pledged Collateral shall no longer be subject to the provisions of this Note. However, any and all releases of the Pledged Collateral shall be effected in compliance with the applicable limitations of Sections 10(a) and 10(c).

SECTION 8.                Payment of Taxes and Other Charges. Maker shall pay, prior to the delinquency date, all taxes, liens, assessments and other charges against the Pledged Collateral, and in the event of Maker’s failure to do so, Holder may at its election pay any or all of such taxes and charges without contesting the validity or legality thereof. The payments so made shall become part of the indebtedness secured hereunder and until paid shall bear interest at the minimum annual rate, compounded annually, required to avoid the imputation of interest income to Holder and compensation income to Maker under U.S. federal tax laws.

SECTION 9.                Transfer of Collateral. In connection with the transfer or assignment of all or part of the indebtedness evidenced by this Note (whether by negotiation, discount or otherwise), Holder may transfer all or any part of Holder’s interest in the Pledged Collateral, and the transferee shall thereupon succeed to all the rights, powers and remedies granted Holder hereunder with respect to the Pledged Collateral so transferred. Upon such transfer, Holder shall be fully discharged from all liability and responsibility for the transferred Pledged Collateral. With respect to any Pledged Collateral not transferred, Holder shall retain all rights, powers, privileges and remedies provided herein.

SECTION 10.            Release of Collateral. Provided that (i) all indebtedness secured hereunder shall at the time have been paid in full or cancelled and (ii) there does not otherwise exist any Event of Default, the Pledged Collateral shall be released from pledge and returned to Maker in accordance with the following provisions:

(a)                Upon payment or prepayment of principal under this Note, together with payment of all accrued interest to date, the Membership Interests held as Pledged Collateral hereunder shall (subject to the applicable limitations of Sections 10(c) below) be released to Maker upon such payment or prepayment.

(b)               Any additional Pledged Collateral that may hereafter be pledged and deposited with Holder (pursuant to the requirements of Section 6) with respect to the Membership Interests pledged hereunder shall be released at the same time the particular Membership Interests to which the additional Pledged Collateral relates are to be released in accordance with the applicable provisions of this Section 10. Under no circumstances, however, shall any Membership Interests or any other Pledged Collateral be released if previously applied to the payment of any indebtedness secured hereunder.

(c)                In no event shall any Membership Interests be released pursuant to the provisions of Sections 10(a) or 10(b) if, and to the extent, the fair market value of the Membership Interests and all other Pledged Collateral that would otherwise remain in pledge hereunder after such release were effected would be less than the unpaid balance of the Note (principal and accrued interest).

SECTION 11.            Representations and Warranties. Maker represents and warrants to Holder that:

(a)                The information contained in Attachment I, which is attached to and a part of this Note, is complete and correct in all material respects.

(b)               Maker is the owner of all legal and beneficial interests in and to the Pledged Collateral, free and clear of all Liens, except for those granted to Holder.

(c)                Maker has full power and authority to execute and deliver this Note and to incur and perform the Secured Obligations provided for herein, all of which have been duly authorized by all proper and necessary action of the appropriate governing body and equity holders of Maker. No material consent or approval of any governmental authority on the part of Maker is required as a condition to the validity of this Note (other than any consent or approval which has been obtained and is in full force and effect).

(d)               This Agreement has been properly executed and delivered and constitutes the valid and legally binding obligations of Maker and is fully enforceable against Maker in accordance with its respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties, and general principles of equity regardless of whether applied in a proceeding in equity or at law.

(e)                There is no provision of any organizational documents or other similar document pertaining to the organization, power or authority of Maker, no provision of applicable laws in any material respect, no provision of any existing material agreement, mortgage, indenture or contract binding on Maker or affecting its property that, in each case, would be breached or violated by, conflict with or in any way prevent the execution, delivery or carrying out of the terms of this Note.

SECTION 12.            Covenants. Until the Secured Obligations have been paid in full, Maker covenants and agrees with Holder that:

(a)                All certificates or instruments representing or evidencing any of the Pledged Collateral shall be promptly delivered by Maker to Holder or Holder’s designee pursuant hereto at a location designated by Holder, shall be held by or on behalf of Holder pursuant to this Note, and shall be in suitable form for transfer by delivery, or shall be accompanied by executed irrevocable, blank stock powers (or other instrument of transfer or assignment in blank) for each of the certificates and instruments, all in number, form and substance reasonably satisfactory to Holder and its counsel.

(b)               At its expense, Maker will promptly upon request by Holder execute, authorize, and deliver or obtain any financing statement, continuation statement, security agreement, assignment, instruments, acknowledgments, third party waivers, filings or other document as may be reasonably necessary or beneficial, in the opinion of Holder, to perfect (by control or otherwise), preserve, provide notice of, maintain, continue, realize upon, protect and/or extend the lien granted to Holder under this Note and its priority.

(c)                Maker will do or cause to be done all things necessary to preserve and to keep in full force and effect its interests in the Pledged Collateral, and shall defend, at its sole expense, the title to the Pledged Collateral and any and all parts thereof.

(d)               Maker will not transfer any direct or indirect interest in the Pledged Collateral or create, incur, assume or suffer to exist any lien upon any of the Pledged Collateral, other than those in favor of Holder.

(e)                Maker agrees and acknowledges that Holder or an affiliate thereof is a “real estate investment trust” within the meaning of Section 856 of the Internal Revenue Code of 1986, as amend (the “Code”), and that this Note is intended to qualify as a “real estate asset” within the meaning of Code Section 856(c)(5)(B). As such, Maker shall (and shall cause its affiliates) to take such reasonable actions, including in its respective capacity as a member or investor in a Subject LLC, as requested in good faith by Holder and so as to cause assets that are “real estate” (within the meaning of Code Section 856(c)(4)) to comprise no less than 85% of the assets of such Subject LLC at the end of each quarter.

SECTION 13.            Lost or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, Maker shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to Maker.

SECTION 14.            Events of Default. Each of the following events shall constitute an event of default (an “Event of Default”) hereunder:

(a)                a default by Maker in the payment of the principal amount of or interest accrued on this Note that continues for more than five (5) days after the same becomes due and payable whether at the Maturity Date, upon acceleration or otherwise; or

(b)               the failure by Maker to perform or observe any term, covenant or agreement contained in Section 12 of this Note and the failure to cure such default (if curable) within thirty (30) days after receipt by Maker of a notice of default specifying such failure; or

(c)                the failure by Maker to perform or observe any other term, covenant or agreement contained this Note and the failure to cure such default (if curable) within sixty (60) days after receipt by Maker of a notice of default specifying such failure; or

(d)               a court having jurisdiction in the premises enters (x) a decree or order for relief in respect of Maker in an involuntary case or proceeding under any applicable bankruptcy law or (y) a decree or order adjudging Maker a bankrupt or insolvent, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of sixty (60) consecutive days; or

(e)                Maker consents to the entry of a decree or order for relief in respect of Maker in an involuntary case or proceeding under any applicable bankruptcy law or to the commencement of any bankruptcy or insolvency case or proceeding against Maker; or

(f)                Maker commences a voluntary case or proceeding under any applicable bankruptcy law or any other case or proceeding to be adjudicated a bankrupt or insolvent; or

(g)               Maker files a petition seeking reorganization or relief under any applicable bankruptcy law.

Maker shall, within five (5) days after becoming aware thereof, notify Holder of the occurrence of any Event of Default.

SECTION 15.            Remedies on Default.

(a)                If an Event of Default shall occur and be continuing, all obligations under this Note shall bear interest at the applicable default interest rate set forth in Section 2(b). If an Event of Default (other than an Event of Default specified in clauses (d), (e), (f) or (g) of Section 14) shall occur and be continuing, Holder shall, without any kind of presentment, demand, protest or any kind of notice, each of which are expressly waived by Maker, be entitled to (i) declare all unpaid principal of and accrued and unpaid interest through the date of such declaration to be immediately due and payable, (ii) reduce any claim to judgment; and/or (iii) pursue and enforce any of Holder’s rights and remedies available pursuant to any applicable law or agreement including, without limitation, foreclosing all liens and security interests securing payment thereof or any part thereof. If an Event of Default specified in clauses (d), (e), (f) or (g) of Section 14 occurs and is continuing, then this Note shall ipso facto become and be due and payable immediately in an amount equal to the principal amount of the Note, together with accrued and unpaid interest, if any, to the date this Note becomes due and payable, without any declaration or other act on the part of the Holder.

(b)               In addition to any other remedies set forth herein, upon the occurrence and during the continuance of any Event of Default:

(i)                 Holder shall have all of the rights and remedies of a secured party under the applicable Uniform Commercial Code and other applicable laws. Upon demand by Holder, the Maker shall assemble the Pledged Collateral not in Holder’s possession and make it available to Holder, at a place designated by Holder.

(ii)               Any or all Pledged Collateral may be registered, without notice, in the name of Holder or its nominee, and thereafter Holder or its nominee may exercise, without notice, all voting and limited liability company rights, any and all rights of conversion, exchange or subscription, or any other rights, privileges or options pertaining to the Pledged Collateral, all as if Holder were the absolute owner thereof.

(iii)             Any written notice of the sale, disposition or other intended action by Holder with respect to the Pledged Collateral which is sent by regular mail, postage prepaid, to Maker at the address set forth in Section 18(a), or such other address of Maker that may from time to time be shown on Holder’s records, at least ten (10) days prior to such sale, disposition or other action, shall constitute commercially reasonable notice to Maker. Holder may alternatively or additionally give such notice in any other commercially reasonable manner. Nothing in this Note shall require Holder to give any notice not required by applicable law.

(iv)             Any proceeds of sale or other disposition of the Pledged Collateral will be applied by Holder to the Secured Obligations in such order and manner of application as Holder may from time to time in its sole and absolute discretion determine.

(v)               Maker recognizes that Holder may be unable to effect a public sale of all or a part of the Pledged Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and other applicable federal and state laws (collectively, “Securities Laws”). Holder may, therefore, in its discretion, take such steps as it may deem appropriate to comply with such Securities Laws and may, for example, at any sale of the Pledged Collateral consisting of securities restrict the prospective bidders or purchasers as to their number, nature of business and investment intention, including, without limitation, a requirement that the persons making such purchases represent and agree to the satisfaction of Holder that they are purchasing such securities for their account, for investment, and not with a view to the distribution or resale of any thereof. Maker covenants and agrees to do or cause to be done promptly all such acts and things as Holder may request from time to time and as may be necessary to offer and/or sell the securities or any part thereof in a manner which is valid and binding and in conformance with all applicable Securities Laws and other laws.

(vi)             In addition to all other rights and remedies provided in this Note, Holder may (but shall be under no obligation to), without notice to Maker, and Maker hereby irrevocably appoints Holder as its attorney-in-fact, with power of substitution, in the name of Holder or in the name of Maker or otherwise, for the use and benefit of Holder, but at the cost and expense of Maker and without notice to Maker: (A) require any account debtor or other obligor on any of the Pledged Collateral to make payments thereon directly to Holder, with Holder taking control of the cash and non-cash proceeds thereof; (B) compromise, extend or renew any of the Pledged Collateral or deal with the same as it may deem advisable; (C) make exchanges, substitutions or surrenders of all or any part of the Pledged Collateral; (D) copy, transcribe, or remove from any place of business of Maker all books, records, ledger sheets, correspondence, invoices and documents, relating to or evidencing any of the Pledged Collateral or without cost or expense to Holder, make such use of Maker’s place(s) of business as may be reasonably necessary to administer, control and collect the Pledged Collateral; (E) demand, collect, receipt for and give renewals, extensions, discharges and releases of any of the Pledged Collateral; (F) institute and prosecute legal and equitable proceedings to enforce collection of, or realize upon, any of the Pledged Collateral; (G) settle, renew, extend, compromise, compound, exchange or adjust claims in respect of any of the Pledged Collateral or any legal proceedings brought in respect thereof; (H) endorse or sign the name of Maker upon any items of payment, securities, powers related to certificated securities, assignments, notices, or other writing relating to or part of the Pledged Collateral and on any proof of claim in bankruptcy against an account debtor or obligor; (I) take any other action necessary or beneficial to realize upon or dispose of the Pledged Collateral or to carry out the terms of this Note; (J) have a receiver appointed by any court of competent jurisdiction to take possession of the Pledged Collateral (Maker hereby consenting to the appointment of such a receiver and agreeing not to oppose any such appointment); or (K) without notice or demand to Maker, set off and apply against any and all of the Secured Obligations any and all deposits (general or special, time or demand, provisional or final), at any time held or owing by Holder or any of Holder’s agents or affiliates to or for the credit of the account of Maker or any guarantor or endorser of the Secured Obligations.

SECTION 16.            Non-Recourse Obligations. Maker’s payment obligations under this Note shall be non-recourse to Holder and payable only out of the Pledged Collateral and the amounts paid hereunder and out of any collateral as may hereafter be given as security for this Note, and Holder shall have no claim, remedy or right to proceed (at law or in equity) against Maker or any of Maker’s affiliates, partners or assignees, for any sum or sums owing on account of the indebtedness evidenced hereby, or for any other liability of any nature whatsoever, from any source other than the Pledged Collateral; provided, however, that nothing in this Section 16 shall be deemed to release or impair the indebtedness evidenced by this Note, Holder’s security interest in the Pledged Collateral or to preclude Holder from resorting to the Pledged Collateral in case of any default hereunder or from enforcing any of its rights under this Note or in respect of the Pledged Collateral. All rights and remedies of Holder under this Note and any other documents entered into in connection herewith or any applicable statute or rule of law shall be cumulative and are not exclusive of any rights or remedies otherwise available to Holder. Holder may exercise its rights and remedies successively or concurrently, and no single or partial exercise by Holder of any right hereunder or under any agreement or guaranty given as security for this Note or pertaining hereto, and no delay or omission on the part of Holder in exercising any right shall operate as a waiver thereof or of any other right and shall not preclude any other or further exercise of such rights or any other rights.

SECTION 17.            Costs of Enforcement. In the event of the breach by Maker of any provision of this Note or the occurrence of an Event of Default, Holder shall be entitled to proceed to protect and enforce its rights hereunder by appropriate judicial proceedings and Holder shall be entitled to exercise all other rights and remedies available at law or in equity. Maker shall reimburse Holder for all reasonable costs and expenses incurred in connection with the protection and enforcement of its rights hereunder and collection of all amounts owing hereunder plus reasonable attorneys’ fees and expenses.

SECTION 18.            Miscellaneous.

(a)                Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Note shall be in writing and shall be deemed to have been duly given if (i) delivered personally, (ii) mailed, certified or registered mail with postage prepaid, (iii) sent by next-day or overnight mail or delivery, (iv) sent by fax, or (v) delivered by email as follows:

If to Maker:

[__________]

[__________]

[__________]

Attention: [__________]

Fax No.: [__________]

Email: [__________]

with a copy to:

[__________]

[__________]

[__________]

Attention: [__________]

Fax No.: [__________]

Email: [__________]

If to Holder:

[CB-Campus Crest, LLC]

c/o Campus Crest Communities, Inc.

2100 Rexford Road

Suite 414

Charlotte, NC 28211

Attention: Andrew Young

Fax No.: (704) 631-4641

Email: andrew.young@campuscrest.com

with a copy to:

Hogan Lovells US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

Attention: Stuart Barr

Fax No.: (202) 637-5910

Email: stuart.barr@hoganlovells.com

All such notices, requests, demands, waivers and other communications shall be deemed to have been given when received (w) by personal delivery, on the day of such delivery if prior to 5:00 p.m., (x) by next-day or overnight mail or delivery, on the day delivered (y) by fax, on the Business Day on which such fax was received, and (z) by email, on the Business Day on which such email was delivered as evidenced by electronic record; provided, however, that the subject line must contain readily identifiable notice that the email is being delivered as an official notice pursuant to this Note.

(b)               Amendments; Waivers.

(i)                 Any provision of this Note may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by each of Maker and Holder, or in the case of a waiver, by the party against whom the waiver is to be effective.

(ii)               No failure or delay by either party in exercising any right, power or privilege under this Note shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as otherwise provided herein, no action taken pursuant to this Note, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained in this Note. Any term, covenant or condition of this Note may be waived at any time by the party that is entitled to the benefit thereof, but only by a written notice signed by such party expressly waiving such term or condition. The waiver by any party of a breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder.

(c)                Successors and Assigns. The provisions of this Note shall be binding upon and inure to the benefit of Maker and Holder and their respective successors and permitted assigns. Neither Maker nor Holder may assign or otherwise transfer, directly or indirectly, in whole or in part, any of his or its rights or obligations under this Note without the prior written consent of the other party, except that Holder may assign, without the prior written consent of the other party, its rights hereunder. Any attempted assignment or other transfer in violation of this Section 18(c) shall be void and of no effect.

(d)               Construction. As used in this Note, any reference to the masculine, feminine or neuter gender shall include all genders, the plural shall include the singular, and the singular shall include the plural. References in this Note to a party or other person include their respective successors and assigns. The words “include,” “includes” and “including” when used in this Note shall be deemed to be followed by the phrase “but not limited to” unless such phrase otherwise appears. Unless the context otherwise requires, references in this Note to Sections and Attachments shall be deemed references to Sections of, and Attachments to, this Note. Unless the context otherwise requires, any reference to this Note or any other agreement shall be deemed to refer to such agreement, as may be amended, restated supplemented or otherwise modified from time to time. Unless the context otherwise requires, the words “hereof,” “hereby” and “herein” and words of similar meaning when used in this Note refer to this Note in its entirety and not to any particular Section or provision hereof. Except when used together with the word “either” or otherwise for the purpose of identifying mutually exclusive alternatives, the term “or” has the inclusive meaning represented by the phrase “and/or”. With regard to each and every term and condition of this Note, the parties understand and agree that the same have or has been mutually negotiated, prepared and drafted, and that if at any time the parties desire or are required to interpret or construe any such term or condition or any agreement or instrument subject thereto, no consideration shall be given to the issue of which party actually prepared, drafted or requested any term or condition of this Note. All references in this Note to “dollars” or “$” shall mean United States dollars. Any period of time hereunder ending on a day that is not a Business Day shall be extended to the next Business Day. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.

(e)                Entire Agreement. This Note embodies the final, entire agreement among the parties hereto and supersedes any and all prior commitments, agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof and thereof and may not be contradicted or varied evidence of prior, contemporaneous, or subsequent oral agreements or discussions of the parties hereto. There are no oral agreements among the parties hereto with respect to the subject matter hereof.

(f)                Governing Law. This Note shall be governed by and construed in accordance with the domestic laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

(g)               Jurisdiction.

(i)                 Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any court of the State of Delaware or any Federal court of the United States of America sitting in the State of Delaware and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Note or for recognition or enforcement of any judgment relating this Note, and each of the parties hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such court of the State of Delaware k or, to the extent permitted by law, in such Federal court. Subject to rights of appeal, each of the parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

(ii)               Each of the parties hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Note in any court of the State of Delaware or any Federal court of the United States of America sitting in the State of Delaware. Each of the Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(iii)             Without limiting the foregoing, Maker and Holder agree that service of process upon such party at the address referred to in Section 12(a), together with written notice of such service to such party, shall be deemed effective service of process upon such party.

(iv)             EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING (INCLUDING ANY COUNTERCLAIM) ARISING OUT OF OR BASED UPON THIS NOTE.

(h)               Severability. Any provision of this Note that is prohibited or unenforceable shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Note or affecting the validity or enforceability of such provision in any other jurisdiction. The application of such invalid or unenforceable provision to Persons or circumstances other than those as to which it is held invalid or unenforceable shall be valid and be enforced to the fullest extent permitted by applicable law. To the extent any provision of this Note is determined to be prohibited or unenforceable in any jurisdiction, Maker and Holder agree to use commercially reasonable efforts to substitute one or more valid, legal and enforceable provisions that, insofar as practicable, implement the purposes and intent of the prohibited or unenforceable provision.

[Signature page follows]

IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first written above.

ATTACHMENT I

SUBJECT LLCs

ATTACHMENT II

PLEDGED COLLATERAL

ATTACHMENT III

HOLDER WIRE TRANSFER INSTRUCTIONS

Bank:

Name on Account:

Routing No.:

Account No.:

ATTACHMENT II

FORM OF AMENDED AND RESTATED

OPERATING AGREEMENT

OF

COPPER BEECH TOWNHOME COMMUNITIES, LLC

Dated as of [__], 2013

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