**Exhibit 10.3**

 

SECOND AMENDMENTOF AGREEMENTS OF SALE

 

This Second Amendment ofAgreements of Sale (“Amendment”) is entered into as of August 4,2006, by and among College Park Investments, LLC (“Buyer”) and each of University Commons-East Lansing, Ltd., CapstoneCommons-Athens, Ltd., UniversityCommons-Baton Rouge, Ltd., University Commons-Bloomington, IN., Ltd.,University Commons-Columbia, S.C., L.P., University Commons-Eugene, OR., Ltd.,University Commons-Lexington, KY., Ltd., University Commons-Ohio, Ltd.,University Commons-Starkville, Ltd., University Commons-Tuscaloosa, Ltd.,University Commons-Urbana, IL., Ltd. (collectively, “Sellers”,and each a “Seller”).

 

In consideration of themutual agreements herein set forth, the parties hereto, intending to be legallybound and to bind their successors and assigns, agree as follows.

 

1.             Background.  Sellers and Buyer entered into eleven (11)separate Agreements of Sale, each dated June 5, 2006, each of which wasamended by a certain First Amendment of Agreements of Sale and Deposit and EscrowAgreement, dated as of July 27, 2006 (collectively, “AgreementsofSale”) with respect to certain Properties identified in Exhibit “A”hereto, each of which Property is more particularly described in each Agreementof Sale.  Capitalized terms used but notdefined herein have the meanings set forth in the Agreements of Sale.

 

2.             Amendment.  (A)  Each Agreement of Sale is herebyamended as follows:

 

(i)            Section 11.2of each Agreement of Sale is hereby deleted in its entirety and replaced withthe following:  “Closing shall be held at10:00 A.M. prevailing local time on the date (the “Closing Date”)which shall be October 2, 2006, or such date as is mutually agreed upon bythe parties.”

 

(ii)           Section 4.5of those certain Agreements of Sale that are identified in Exhibit “B”hereto are hereby amended by adding thereto the relevant Section 4.5 (F) fromExhibit “B”.

 

3.             Ratification.  As hereby amended, the Agreements of Sale arehereby ratified and confirmed by the parties. In the case of any inconsistencies between the terms and conditionscontained in the Agreements of Sale and the terms and conditions contained inthis Amendment, the terms and conditions contained in this Amendment shallcontrol.

 

4.             Counterparts.  This Amendment may be executed by the partiesin separate counterparts, which, when delivered by the parties, shallconstitute one instrument.

 

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IN WITNESSWHEREOF, Buyer and Sellers have caused this Amendment to be executed anddelivered as of the date first above written.

 
|   | BUYER:                                                                      |
|--------|-----------------------------------------------------------------------------|
|   |                                                                        |
|   | College Park  Investments, LLC, a Delaware limited   liability company      |
|   |                                                                        |   |
|   |                                                                        |   |
|   | By:                                                                         | /s/ John Ferer |   |
|   |                                                                        | Name: John Ferer |
|   |                                                                        | Title: Assistant Vice  President |   |
|   |                                                                        |   |   |
|   |                                                                        |   |   |
|   | SELLERS:                                                                    |
|   |                                                                        |
|   | Capstone Commons-Athens, Ltd., an Alabama limited   partnership             |
|   |                                                                        |
|   | By:                                                                         | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                        |   |
|   |                                                                        | By: | /s/ Rob Howland |   |
|   |                                                                        |   | Name: Rob Howland |
|   |                                                                        |   | Title: Senior Vice  President |   |
|   |                                                                        |
|   | University Commons-Baton  Rouge, Ltd., an Alabama   limited partnership     |
|   |                                                                        |
|   | By:                                                                         | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                        |   |
|   |                                                                        | By: | /s/ Rob Howland |   |
|   |                                                                        |   | Name: Rob Howland |
|   |                                                                        |   | Title: Senior Vice  President |   |
|   |                                                                        |   |   |   |
|   | University Commons-Bloomington, IN., Ltd., an   Alabama limited partnership |
|   |                                                                        |
|   | By:                                                                         | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                        |   |
|   |                                                                        | By: | /s/ Rob Howland |   |
|   |                                                                        |   | Name: Rob Howland |
|   |                                                                        |   | Title: Senior Vice  President |   |
|        |                                                                             |  |  |  |  |  |  |  |  |

 

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|   | University Commons,  Columbia, S.C., L.P., an   Alabama limited partnership |
|--------|-----------------------------------------------------------------------------|
|   |                                                                        |
|   | By:                                                                         | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                        |   |
|   |                                                                        | By: | /s/ Rob Howland |   |
|   |                                                                        |   | Name: Rob Howland |
|   |                                                                        |   | Title: Senior Vice President |   |
|   |                                                                        |   |   |   |
|   |                                                                        |   |   |   |
|   | University Commons-East Lansing, Ltd., an Alabama   limited partnership     |
|   |                                                                        |
|   | By:                                                                         | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                        |   |
|   |                                                                        | By: | /s/ Rob Howland |   |
|   |                                                                        |   | Name: Rob Howland |
|   |                                                                        |   | Title: Senior Vice  President |   |
|   |                                                                        |   |   |   |
|   |                                                                        |   |   |   |
|   | University Commons-Eugene, OR., Ltd., an Alabama   limited partnership      |
|   |                                                                        |
|   | By:                                                                         | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                        |   |
|   |                                                                        | By: | /s/ Rob Howland |   |
|   |                                                                        |   | Name: Rob Howland |
|   |                                                                        |   | Title: Senior Vice  President |   |
|   |                                                                        |   |   |   |
|   |                                                                        |   |   |   |
|   | University Commons-Lexington, KY., Ltd., an  Alabama limited partnership    |
|   |                                                                        |
|   | By:                                                                         | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                        |   |
|   |                                                                        | By: | /s/ Rob Howland |   |
|   |                                                                        |   | Name: Rob Howland |
|   |                                                                        |   | Title: Senior Vice  President |   |
|        |                                                                             |  |  |  |  |  |  |  |

 

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|   | University Commons-Ohio, Ltd., an Alabama limited   partnership        |
|--------|------------------------------------------------------------------------|
|   |                                                                   |
|   | By:                                                                    | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                   |   |
|   |                                                                   | By: | /s/ Rob Howland |   |
|   |                                                                   |   | Name: Rob Howland |
|   |                                                                   |   | Title: Senior Vice  President |   |
|   |                                                                   |   |   |   |
|   |                                                                   |   |   |   |
|   | University Commons-Starkville, Ltd., an Alabama   limited partnership  |
|   |                                                                   |
|   | By:                                                                    | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                   |   |
|   |                                                                   | By: | /s/ Rob Howland |   |
|   |                                                                   |   | Name: Rob Howland |
|   |                                                                   |   | Title: Senior Vice  President |   |
|   |                                                                   |   |   |   |
|   |                                                                   |   |   |   |
|   | University Commons-Tuscaloosa, Ltd., an Alabama   limited partnership  |
|   |                                                                   |
|   | By:                                                                    | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                   |   |
|   |                                                                   | By: | /s/ Rob Howland |   |
|   |                                                                   |   | Name: Rob Howland |
|   |                                                                   |   | Title: Senior Vice  President |   |
|   |                                                                   |   |   |   |
|   |                                                                   |   |   |   |
|   | University Commons-Urbana, IL., Ltd., an Alabama   limited partnership |
|   |                                                                   |
|   | By:                                                                    | Capstone Development  Corp., an Alabama  corporation, its sole general partner |
|   |                                                                   |   |
|   |                                                                   | By: | /s/ Rob Howland |   |
|   |                                                                   |   | Name: Rob Howland |
|   |                                                                   |   | Title: Senior Vice  President |   |
|        |                                                                        |  |  |  |  |  |  |

 

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Exhibit “A”

 
| **Property**                                                                    | ** ** | **Seller**                                |
|---------------------------------------------------------------------------------|------------|-------------------------------------------|
| ** **                                                                      | ** ** | ** **                                |
| Capstone Commons Apartments   2501 Abbott Road East   Lansing, MI 48823-1415    |       | University Commons-East Lansing, Ltd.     |
|                                                                            |       |                                      |
| University Commons Athens   1000 Lakeside Drive   Athens, GA 30605              |       | Capstone Commons-Athens, Ltd              |
|                                                                            |       |                                      |
| University Commons Baton Rouge   4600 Burbank Drive   Baton Rouge, LA 70820     |       | University Commons-Baton Rouge, Ltd.      |
|                                                                            |       |                                      |
| University Commons Bloomington   1150 Clarizz Boulevard   Bloomington, IN 47401 |       | University Commons-Bloomington, IN., Ltd. |
|                                                                            |       |                                      |
| University Commons Columbia   800 Alexander Road   Cayce, SC 29033              |       | University Commons-Columbia, S.C., L.P.   |
|                                                                            |       |                                      |
| University Commons Eugene   90 Commons Drive   Eugene, OR 97401                 |       | University Commons-Eugene, OR., Ltd.      |
|                                                                            |       |                                      |
| University Commons Lexington   845 Red Mile Road   Lexington, KY 40504          |       | University Commons-Lexington, KY., Ltd.   |
|                                                                            |       |                                      |
| University Commons Oxford   5262 Brown Road   Oxford, OH 45056                  |       | University Commons-Ohio, Ltd.             |
|                                                                            |       |                                      |
| University Commons Starkville   1000 Campus View Drive   Starkville, MS 39759   |       | University Commons-Starkville, Ltd.       |
|                                                                            |       |                                      |
| University Commons Tuscaloosa   301 Helen Keller Blvd.   Tuscaloosa, AL 35404   |       | University Commons-Tuscaloosa, Ltd.       |
|                                                                            |       |                                      |
| University Commons Urbana   1321 Lincoln Ave.   Urbana, IL 61801                |       | University Commons-Urbana, IL., Ltd.      |

 

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EXHIBIT “B”

 

1.             Newsection 4.5(F) is hereby added to Agreement of Sale between Buyer andUniversity Commons - East Lansing, Ltd.:

 

4.5(F) Through the ClosingDate, Seller shall use reasonable commercial efforts to:

 

(i) obtain anestoppel, in the form previously circulated, from Arbor Glen (adjacent propertyowner) certifying to Seller and Buyer, among other things, that Seller is incompliance with a certain ingress/egress easement agreement to which Arbor Glenis a party and that all monetary obligations under such agreement; if any, havebeen satisfied;

 

(ii) obtain andrecord a partial release of a certain power company easement, in form reasonablyacceptable to Buyer, so that the building on the east side of the Property nolonger encroaches into the easement area; and

 

(iii) cause theTitle Insurance Company to remove as an exception from the Title InsuranceCommitment the use restriction listed as item 3 to Schedule B to the TitleInsurance Commitment.

 

2.             Newsection 4.5 (F) is hereby added to Agreement of Sale between Buyerand University Commons -Athens, Ltd.:

 

4.5(F) On or before the Closing Date, Sellershall provide the appropriate written notice to Charter Communications, asrequired by the Service Distribution Easement and Maintenance Agreement filed February 4,2002, recorded at Deed Book 2148, page 225.

 

3.             Newsection 4.5 (F) is hereby added to Agreement of Sale between Buyerand University Commons-Columbia, S.C. is hereby added, Ltd.:

 

4.5(F)(aa) Through the ClosingDate, Seller shall use reasonable commercial efforts to:

 

(i) obtainand deliver to Buyer, in form reasonably acceptable to Buyer, an estoppel fromIndigo Associates, certifying to Seller, Buyer and Buyer’s lender(s), amongother things, that Seller is in compliance with that certain Easement Grantrecorded in Book 2780, page 252 and that all maintenance and monetaryobligations thereunder have been satisfied as of Closing;

 

(ii) providewritten confirmation that the Property is currently in compliance with thebuilding restrictions identified in Item 47 of Schedule B - Section 2of the Title Insurance Commitment, cause a “no violation of restrictions”endorsement to be attached to Buyer’s Title Insurance Policy, and cause theTitle Company to add the standard endorsement that the policy insuresrestrictions with respect to race, gender, disability, etc.;

 

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(iii) withrespect to Alexander Road, a private drive: (aa) provide information, in formreasonably acceptable to Buyer as to what other properties share such drive, ifany, and who is responsible for maintaining such drive, and (bb) record anaccess easement, in form and substance reasonably satisfactory to Buyer, givingBuyer and its successors and assigns the right to use the portions of suchdrive not covered by the existing appurtenant access easement;

 

(iv) causeItems 10, 46 and 48(b) (easement described in Book 1247, page 12) of Schedule B– Section 2 of the Title Insurance Commitment to be removed, as anexception to coverage, from Buyer’s title insurance policy (these items do notaffect the Property according to the Survey);

 

(v) either(aa) obtain and deliver to Buyer, in form reasonably acceptable to Buyer,written confirmation from the City of Cayce that the building encroachmentsinto waterline easement areas (Items 16 and 33 of Schedule B – Section 2of the Title Insurance Commitment) are acceptable to the City of Cayce, or (bb)remove such encroachments; and

 

(vi) either (aa) obtain and deliver to Buyer, inform reasonably acceptable to Buyer, written confirmation from the adjacentproperty owner(s) that the University Commons sign encroachment is acceptable tosuch party(ies), or (bb) remove such encroachment.

 

(bb)         Seller and Buyer shall use commerciallyreasonable efforts to obtain the underlying documents listed as Items 11, 12and 48(c) of Schedule B – Section 2 of the Title InsuranceCommitment, which shall be in form reasonably acceptable to Buyer.  Notwithstanding any contrary provisions inany Agreement of Sale, in the event said documents are not produced or are objectionableto Buyer’s lender or impose a material financial obligation on Buyer, Buyer shallhave the right, exercisable by giving notice to Seller within five (5) BusinessDays after receipt of such documents, to object, and Seller shall have a periodof five (5) Business Days to respond to such objection.  If Seller and Buyer are unable to resolvesuch item(s) within five (5) Business Days thereafter, Buyer may elect to terminatethis Agreement, whereupon the Deposit shall be refunded to Buyer within one (1) BusinessDay after such notice.

 

4.             Newsection 4.5 (F) is hereby added to Agreement of Sale between Buyerand University Commons-Eugene, OR, Ltd.:

 

4.5(F)(aa) Through theClosing Date, Seller shall use commercially reasonable efforts to:

 

(i) provide Buyerwith an amendment to the easement referred to in Item 10 of the Title InsuranceCommitment confirming that the Eugene Water and Electric Board waives its rightto realign or relocate the easement, which shall be in form reasonablyacceptable to Buyer;

 

(ii) provide Buyerwith confirmation that the agreement referred to in Item 13 of the TitleInsurance Commitment has expired and cause the Title Insurance Company toremove the item of record;

 

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(iii) provide Buyerwith confirmation that the agreement referred to in Item 15 of the Title InsuranceCommitment has been terminated and cause the Title Insurance Company to removethe item of record; and

 

(iv) provide Buyerwith confirmation that the agreement referred to in Item 16 of the TitleInsurance Commitment has been terminated and cause the Title Insurance Companyto remove the item of record.

 

(bb)(i) As promptlyas practicable, Seller shall provide Buyer with a copy of the SettlementAgreement referred in Item 8 of the Title Insurance Commitment, which shall bein form reasonably acceptable to Buyer.  Notwithstandingany contrary provisions in any Agreement of Sale, in the event said Agreementis objectionable to Buyer’s lender or impose a material financial obligation onBuyer, Buyer shall have the right, exercisable by giving notice to Sellerwithin five (5) Business Days after receipt of such Agreement, to object,and Seller shall have a period of five (5) Business Days to respond tosuch objection.  If Seller and Buyer areunable to resolve such item(s) within five (5) Business Days thereafter,Buyer may elect to terminate this Agreement, whereupon the Deposit shall berefunded to Buyer within one (1) Business Day after such notice.

 

(ii) As promptly aspracticable, Seller shall provide Buyer with a copy of the Planned UnitDevelopment Agreement referred to in Item 7 of the Title Insurance Commitment,which shall be in form reasonably acceptable to Buyer.  Notwithstanding any contrary provisions inany Agreement of Sale, in the event said Agreement is objectionable to Buyer’slender or impose a material financial obligation on Buyer, Buyer shall have theright, exercisable by giving notice to Seller within five (5) BusinessDays after receipt of such Agreement, to object, and Seller shall have a periodof five (5) Business Days to respond to such objection.  If Seller and Buyer are unable to resolvesuch item(s) within five (5) Business Days thereafter, Buyer may elect to terminatethis Agreement, whereupon the Deposit shall be refunded to Buyer within one (1) BusinessDay after such notice.

 

5.             Newsection 4.5 (F) is hereby added to Agreement of Sale between Buyerand University Commons – Ohio, LTD:

 

4.5(F)(aa) Through theClosing Date, Seller shall use commercially reasonable efforts to:

 

(i) obtain anddeliver to Buyer, in form reasonably acceptable to Buyer, an estoppel from theCity of Oxford, certifying to Seller, Buyer and Buyer’s lender(s), among otherthings, that Seller is in compliance with a certain Development Agreement, allwork has been completed in accordance with such agreement and that there are nooutstanding maintenance or monetary obligations with respect to such agreement;

 

(ii) cause to beremoved as an exception from the Title Insurance Commitment the rights of theEastern Shawnee Tribe of Oklahoma; and

 

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(iii) either (aa)obtain and deliver to Buyer, in form reasonably acceptable to Buyer, writtenconfirmation from the holder of water and utility easements that the buildingencroachments into waterline and utility easement areas are acceptable to suchholders, or (bb) remove such encroachments.

 

6.             New section 4.5 (F) ishereby added to Agreement of Sale between Buyer and University Commons-Starkville,Ltd.:

 

4.5(F) Through the Closing Date, Seller shall usecommercially reasonable efforts to:

 

(i)            causeitems 10 and 11 of Schedule B – Section 2 of the Title InsuranceCommitment to be removed from Schedule B – Section 2 of the TitleInsurance Commitment;

 

(ii)           uponreceipt of a revised Survey, cause any or all of items 7, 13, 14 and 15 of Schedule B– Section 2 of the Title Insurance Commitment to be removed from Schedule B– Section 2 of the Title Insurance Commitment, to the extent sucheasements do not affect the Property; and

 

(iii)          provideBuyer with information regarding the “prescriptive easements” identified initems 8, 9 and 12 of Schedule B – Section 2 of the Title InsuranceCommitment and, if any of them are not in force and effect, cause same to beremoved from Schedule B – Section 2 of the Title Insurance Commitmentprior to Closing.

 

7.             Newsection 4.5 (F) is hereby added to Agreement of Sale between Buyerand University Commons - Tuscaloosa, Ltd.:

 

4.5(F)(aa) Through theClosing Date, Seller shall use commercially reasonable efforts to:

 

(i) with respect to the building and userestrictions in favor of University Boulevard Neighborhood Associates (“UBNA”)identified in Item 11 of Schedule B – Section 2 of the TitleInsurance Commitment, either (aa) obtain and deliver to Buyer, in form reasonablyacceptable to Buyer, an estoppel from UBNA, or its constituent entities if such associationno longer exists, certifying to Seller, Buyer and Buyer’s lender(s), amongother things, that the Property is in compliance with such agreement and allwork has been completed in accordance with such agreement and obtain and recordan amendment to the agreement deleting Section 2(h) of the agreementin its entirety, or (b) cause the Title Company to provide affirmativeinsurance to Buyer and its lender, which insurance shall be acceptable to suchlender with respect to such agreement, including, without limitation, Section 2(h) relatingto the form of lease.  Seller shallprovide the Title Insurance Company with an affidavit substantially in the sameform as was provided in connection with title insurance for the neighboringcondominium property; and

 

(ii) obtainand deliver to Buyer, in form reasonably acceptable to Buyer, an estoppel from theCity of Tuscaloosa certifying to Seller, Buyer and Buyer’s lender(s), among 

 

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other things, that theProperty is in compliance with Ordinance 3307, all work has been completed inaccordance with such ordinance and that there are no outstanding obligationswith respect to such ordinance.

(bb) Buyer and Seller shall use commerciallyreasonable efforts to obtain documents described in Items 10 and 16-19of Schedule B – Section 2 of the Title Insurance Commitment.  Notwithstanding any contrary provisions inany Agreement of Sale, in the event said documents are not produced or are objectionableto Buyer’s lender or impose a material financial obligation on Buyer, Buyershall have the right, exercisable by giving notice to Seller within five (5) BusinessDays after receipt of such documents, to object, and Seller shall have a periodof five (5) Business Days to respond to such objection.  If Seller and Buyer are unable to resolvesuch item(s) within five (5) Business Days thereafter, Buyer may elect to terminatethis Agreement, whereupon the Deposit shall be refunded to Buyer within one (1) BusinessDay after such notice.

 

8.             New section 4.5 (F) ishereby added to Agreement of Salebetween Buyer and University Commons- Urbana, IL. Ltd.:

 

4.5(F)(aa) On or before the Closing Date, Sellershall:

 

(i)            completeremediation of encroachment of dumpster pad into land adjoining the northeastcorner of the Property, to Buyer’s reasonable satisfaction.

 

(bb)         Throughthe Closing Date, Seller will use commercially reasonable efforts to:

 

(i)            provideto Buyer reasonable evidence of ownership of the chain link fence thatsurrounds the Land.  If the fence is ownedby Seller, then Seller shall either (i) deliver to Buyer reasonableevidence (e.g., new easement agreements) that all encroachments of such fenceinto property not owned by Seller are permitted by the owners of such property,or (ii) relocate the encroaching portions of the fence onto the Land;

 

(ii)           provide toBuyer, in form reasonably acceptable to Buyer, a release of the easement infavor of Illinois Power Company (i.e. item 9 of Schedule B of the TitleInsurance Commitment); and

 

(iii)          providefrom utility company consent to encroachment into easement by Buildings1335/1337 (as marked on Survey), in form reasonably satisfactory to Buyer.

 

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