**Exhibit 10.1**

 

*The following is a form of Agreement of Sale executed byCollege Park Investments, LLC, an indirect subsidiary of GMH Communities Trust(the “Buyer”), and a number of entities affiliated with Capstone Properties(the “Seller”), in connection with the acquisition of 13 properties. Theparties executed separate Agreements of Sale relating to each of theproperties. Subsequent to the execution of these agreements, the partiesexecuted an amendment to terminate agreements of sale relating to two of theproperties in the portfolio, each located in College Station, TX. A copy ofthat amendment has been filed by GMH Communities Trust as an exhibit to itsQuarterly Report on Form 10-Q for the three months ended June 30,2006.  Any material differences betweenthe following form agreement and the separate agreements of sale for each ofthe individual properties within the portfolio are provided on Schedule Ito this form agreement.*

 

 

AGREEMENT OF SALE

 

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[Affiliate of Capstone Properties]

 

 

And

 

 

College Park Investments, LLC, Buyer

 

 

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**TABLE OF CONTENTS**

 
| ** ** | ** **                                | **Page**                                           |
|------------|-------------------------------------------|----------------------------------------------------|
|       |                                      |                                               |
| 1.         | PROPERTY                                  | 1                                                  |
|       | 1.1                                       | Property                                           | 1 |
| 2.         | PURCHASE  PRICE                           | 2                                                  |
|       | 2.1                                       | Purchase  Price                                    | 2 |
|       | 2.2                                       | Deposit                                            | 2 |
|       | 2.3                                       | Balance                                            | 2 |
|       | 2.4                                       | Deposit  Non-Refundable                            | 3 |
| 3.         | CONDITIONS  PRECEDENT                     | 3                                                  |
|       | 3.1                                       | Conditions  to Buyer’s Obligation to Purchase | 3 |
|       | 3.2                                       | Conditions  to Seller’s Obligation to Sell    | 3 |
| 4.         | DUE  DILIGENCE                            | 3                                                  |
|       | 4.1                                       | Buyer’s  Investigation                        | 3 |
|       | 4.2                                       | Seller  Deliverables                               | 4 |
|       | 4.3                                       | Termination                                        | 4 |
|       | 4.4                                       | Survey                                             | 5 |
|       | 4.5                                       | Clearing  Title Objections                         | 5 |
|       | 4.6                                       | Termination  of Contracts                          | 6 |
| 5.         | REPRESENTATIONS  AND WARRANTIES OF SELLER | 7                                                  |
|       | 5.1                                       | Representations  and Warranties of Seller          | 7 |
|       | 5.2                                       | Effective  Date                                    | 12 |
| 6.         | REPRESENTATIONS  AND WARRANTIES OF BUYER  | 12                                                 |
|       | 6.1                                       | Representations  and Warranties of Buyer           | 12 |
|       | 6.2                                       | Effective  Date                                    | 13 |
| 7.         | INDEMNITIES                               | 13                                                 |
|       | 7.1                                       | Seller’s  Indemnities                         | 13 |
|       | 7.2                                       | Buyer’s  Indemnities                          | 13 |
| 8.         | EXCLUDED  LIABILITIES                     | 14                                                 |
|       | 8.1                                       | Excluded  Liabilities                              | 14 |
| 9.         | INTERIM  OPERATION OF THE PROPERTY        | 14                                                 |
|       | 9.1                                       | Operations                                         | 14 |
|       | 9.2                                       | Lease  Enforcement                                 | 14 |
|       | 9.3                                       | Modifications;  Agreements                         | 14 |
|       | 9.4                                       | New  Contracts                                     | 14 |
|       | 9.5                                       | No  Solicitation                                   | 14 |
|       | 9.6                                       | Leasing  Status Reports                            | 15 |
| 10.        | RISK  OF LOSS                             | 15                                                 |
|       | 10.1                                      | Risk  of Loss and Insurance Proceeds               | 15 |
|       | 10.2                                      | Notifications                                      | 15 |
| 11.        | CLOSING                                   | 15                                                 |
|       | 11.1                                      | Escrow  Instructions                               | 15 |
|       | 11.2                                      | Closing  Date                                      | 16 |
|       | 11.3                                      | Location                                           | 16 |
|       | 11.4                                      | Closing  Documents                                 | 16 |
|       | 11.5                                      | Additional  Seller Deliverables                    | 17 |
|       | 11.6                                      | Buyer  Closing Deliveries                          | 17 |

 

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| ** ** | ** **                    | **Page**                                                      |
|------------|-------------------------------|---------------------------------------------------------------|
|       |                          |                                                          |
|       | 11.7                          | Closing  by Title Insurance Company                           | 17 |
|       | 11.8                          | Additional  Title Insurance Documents                         | 18 |
|       | 11.9                          | Possession                                                    | 18 |
|       | 11.10                         | Transfer  of Licenses and Permits                             | 18 |
|       | 11.11                         | Tenant  Notices                                               | 18 |
|       | 11.12                         | Termination/Assignment  of Contracts                          | 18 |
| 12.        | PRORATIONS,  CLOSING PAYMENTS | 18                                                            |
|       | 12.1                          | Closing  Party                                                | 18 |
|       | 12.2                          | Sales  Taxes                                                  | 19 |
|       | 12.3                          | Installment  Assessments                                      | 19 |
|       | 12.4                          | Tenant  Deposits                                              | 19 |
|       | 12.5                          | Real  Estate Taxes                                            | 19 |
|       | 12.6                          | Utilities  and Contracts                                      | 19 |
|       | 12.7                          | Prorations                                                    | 19 |
|       | 12.8                          | Proration  Backup Information                                 | 20 |
|       | 12.9                          | Audit  Rights                                                 | 20 |
| 13.        | DEFAULT                       | 20                                                            |
|       | 13.1                          | Buyer’s  Default                                         | 20 |
|       | 13.2                          | Seller’s  Default                                        | 21 |
| 14.        | BROKERS                       | 21                                                            |
|       | 14.1                          | Brokers                                                       | 21 |
| 15.        | NOTICES                       | 21                                                            |
|       | 15.1                          | Notices                                                       | 21 |
| 16.        | MISCELLANEOUS                 | 22                                                            |
|       | 16.1                          | Entire  Agreement                                             | 22 |
|       | 16.2                          | Amendments                                                    | 23 |
|       | 16.3                          | Time                                                          | 23 |
|       | 16.4                          | Attorneys’  Fees                                         | 23 |
|       | 16.5                          | Assignment                                                    | 23 |
|       | 16.6                          | Counterparts                                                  | 23 |
|       | 16.7                          | Governing  Law                                                | 23 |
|       | 16.8                          | Waiver  of Trial by Jury                                      | 23 |
|       | 16.9                          | No  Third-Party Beneficiary                                   | 23 |
|       | 16.10                         | Severability                                                  | 23 |
|       | 16.11                         | Drafts  Not an Offer to Enter into a Legally Binding Contract | 24 |
|       | 16.12                         | Consents                                                      | 24 |
|       | 16.13                         | Survival                                                      | 24 |
|       | 16.14                         | No  Implied Easements                                         | 24 |
|       | 16.15                         | Joint  Undertaking                                            | 24 |
| 17.        | DEFINITIONS                   | 24                                                            |
|       | 17.1                          | Definitions                                                   | 24 |
|       | 17.2                          | Terms  Generally                                              | 26 |

 

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| Affiliate                           | 25                                                             |
|-------------------------------------|----------------------------------------------------------------|
| Agreement                           | 1,  26                                                         |
| Assignment of Contracts             | 16                                                             |
| Assignment of Leases                | 16                                                             |
| Bill of Sale                        | 16                                                             |
| Books and Records                   | 2                                                              |
| Business Day                        | 25                                                             |
| Buyer                               | 1,  26                                                         |
| Buyer Title Objections              | 6                                                              |
| Buyer’s Conditions Precedent   | 3                                                              |
| Claim                               | 25                                                             |
| Closing                             | 16                                                             |
| Closing Documents                   | 25                                                             |
| Closing Statement                   | 17                                                             |
| Closings                            | 16                                                             |
| Deed                                | 16                                                             |
| Default Schedule                    | 8                                                              |
| Deposit                             | 2                                                              |
| Deposit Date                        | 2                                                              |
| Due Diligence Period                | 4                                                              |
| Due Diligence Termination           | 5                                                              |
| Effective Date                      | 1                                                              |
| employee benefit plan               | 7                                                              |
| Escrow Agreement                    | 2                                                              |
| Existing Leases                     | 9                                                              |
| Existing Litigation                 | 8                                                              |
| General Assignment                  | 16                                                             |
| Governmental Authority              | 25                                                             |
| Hazardous Substance                 | 25                                                             |
| Improvements                        | 1                                                              |
| Insurance Policies                  | 10                                                             |
| Land                                | 1                                                              |
| Lease                               | 25                                                             |
| Lease Guaranties                    | 9                                                              |
| Licenses and Permits                | 2                                                              |
| Monetary Liens                      | 6                                                              |
| New Leases                          | 25                                                             |
| Other Agreements                    | 5                                                              |
| parties                             | 26                                                             |
| Parties                             | 26                                                             |
| Permitted Encumbrances              | 6                                                              |
| Person                              | 26                                                             |
| Personal Property                   | 1                                                              |
| Property                            | 26                                                             |
| Reallocated Deposit                 | 5                                                              |
| Remove of Record                    | 6                                                              |
| Rent                                | 9                                                              |
| Rent Rolls                          | 9                                                              |
| Reports and Plans                   | 2                                                              |
| Required Deletion Items             | 6                                                              |
| Seller                              | 26                                                             |
| Seller Default                      | 21                                                             |
| Seller Deliverables                 | 4                                                              |
| Survey                              | 5                                                              |
| Tenant Deposits                     | 9                                                              |
| Tenants                             | 9                                                              |
| Threshold Aggregate Purchase  Price | 5                                                              |
| Title Insurance Commitment          | 6                                                              |
| Title Insurance Commitments         | 6                                                              |
| Title Insurance Company             | 2                                                              |
| Title Insurance Policy              | 26                                                             |
| Title Objection Notice              | 6                                                              |
| Trade Mark                          | 2                                                              |
| Trade Name                          | 2                                                              |
| Warranties                          | 1                                                              |
|                                |                                                           |
|                                |                                                           |
| EXHIBITS                            |                                                           |
| A                                   | DEED                                                           |
| B                                   | BILL  OF SALE                                                  |
| C                                   | ASSIGNMENT  OF CONTRACTS                                       |
| C                                   | ASSIGNMENT  OF LEASES                                          |
| E                                   | REAFFIRMATION  OF SELLER’S REPRESENTATIONS AND WARRANTIES |
| F                                   | FIRPTA  AFFIDAVIT                                              |
| G                                   | DESIGNATION  AGREEMENT                                         |
| H                                   | NOTICE  TO TENANTS                                             |
| I                                   | NOTICE  TO CONTRACTORS                                         |
|                                |                                                           |
|                                |                                                           |
| SCHEDULES                           |                                                           |
|                                |                                                           |
| 1.1.1                               | Description  of Land                                           |
| 1.1.9                               | Trademarks                                                     |
| 4.2                                 | Seller  Deliverables                                           |
|                                     |                                                                |  |  |

 

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| 5.1.2  | Existing  Litigation          |
|--------|-------------------------------|
| 5.1.10 | Employees                     |
| RIDER  |                          |
|   |                          |
| I      | Deposit  and Escrow Agreement |
|        |                               |  |  |

 

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AGREEMENT OF SALE

 

ThisAgreement of Sale (“Agreement”) is entered into as of June 12, 2006(“Effective Date”), by and between                    (“Seller”), and College Park Investments, LLC, a Delaware limitedliability company (“Buyer”).  Inconsideration of the mutual agreements herein set forth, and other valuableconsideration, the parties hereto, intending to be legally bound, agree asfollows.

 

1.    PROPERTY

 

1.1           Property.  For the Purchase Price and subject to theterms and conditions hereof, Seller agrees to sell to Buyer, and Buyer agreesto purchase, all Seller’s right, title and interest in and to all and singularthe following (hereinafter referred to as the “Property”):

 

1.1.1        Land.  Theparcel or parcels of land described in Exhibit “A” to the form of deedthat is attached hereto as Exhibit “A” (collectively, the “Land”),being all the land owned by Seller at the location identified in such Exhibit “A”**]**, together with all buildings,improvements, structures and fixtures located thereon (collectively, “Improvements”),and together with the tenements, hereditaments, appurtenances, rights of way,strips, gores, easements, licenses, rights and privileges in any way pertainingor beneficial to the Land or the Improvements (including without limitation anyrights of the Seller as a declarant), the land lying in the bed of any street,road, highway, avenue or alley, opened or unopened, adjoining the Land, subjectto the Permitted Encumbrances (as hereinafter defined), and all damages,awards, claims and causes of action now or hereafter payable or assertable withrespect to any of the foregoing by reason of any exercise of the power ofeminent domain, any change of grade of any street, road, highway, avenue oralley, or any damage, destruction, loss or removal of any of the foregoing (theLand, Improvements and all of the other property, right, title and interestreferred to in this Section being sometimes collectively referred to asthe “Real Property”);

 

1.1.2        Personal Property.  All tangible and intangible personal propertylocated in, or attached to, or used in connection with the Real Property, andall replacements thereof and additions thereto between the Effective Date andthe Closing Date, including without limitation all computers, software,electronic and paper files and records, machinery, equipment, furniture,furnishings, appliances and signs, excluding only personal property owned byany Tenant (collectively, “Personal Property”);

 

1.1.3        Leases.  Seller’sinterest, as landlord, owner or licensor (as applicable) in all (a) Leases,(b) Tenant Deposits and (c) Lease Guaranties;

 

1.1.4        Contracts.  Thosecertain Contracts that Buyer elects to assume pursuant to Section 4.6;

 

1.1.5        Warranties. Warranties and guaranties made by or received from any person withrespect to any building, building component, structure, fixture, machinery,equipment or material constituting part of the Property (collectively, “Warranties”);

 

1.1.6        Reports and Plans.  (a) Preliminary, final and proposedbuilding plans and specifications (including “as-built” plans and drawings) andtenant improvement plans and 

 

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specificationsfor the Improvements, (b) surveys, grading plans, topographical maps,architectural and structural drawings and engineering, soils, seismic,environmental, geologic and architectural reports, studies and tests relatingto the Real Property and (c) lock combinations, keys, operating manualsand technical data relating to the Real Property or Personal Property ((a), (b) and(c) collectively, “Reports and Plans”);

 

1.1.7        Licenses and Permits.  (a) Licenses, permits, buildinginspection approvals, certificates of occupancy, approvals, subdivision mapsand entitlements issued, approved or granted by Governmental Authorities inconnection with the Property, (b) development rights, covenants,conditions and restrictions, reciprocal easement agreements and rights, areaeasement agreements and rights and other common or planned developmentagreements and rights benefiting the Property and (c) other licenses,consents and approvals relating to the Real Property or Personal Property ((a),(b) and (c) collectively, “Licenses and Permits”);

 

1.1.8        Trade Name.  Thetrade name “[Name of Property]” (“Trade Name”) and the trade mark (“TradeMark”) identified on Schedule 1.1.8 hereto; provided, however,that Buyer’s use of the Trade Name and the Trade Mark shall be limited solelyand exclusively to the Real Property, and Buyer may not use the Trade Name orthe Trade Mark at any location whatsoever other than the Real Property; and

 

1.1.9        Books and Records.  Books and records pertaining to theContracts, Leases, Warranties, Licenses and Permits, or the operation of theReal Property (collectively, “Books and Records”).

 

2.    PURCHASE PRICE

 

2.1           Purchase Price.  The purchase price for the Property is                  (“Purchase Price).  The partiesshall allocate the Purchase Price:

 

Land -$                 

Improvements- $                

PersonalProperty - $              

 

2.2           Deposit.  On or before the fifth (5th) Business Dayfollowing the Effective Date (“Deposit Date”), Buyer shall deposit inescrow             (“Deposit”) with Commonwealth Land Title Insurance Company (“TitleInsurance Company”), to be held in escrow and disbursed by the TitleInsurance Company pursuant to the provisions of that certain Deposit and EscrowAgreement (“Escrow Agreement”) of even date herewith among the Sellersunder and as defined in the Other Agreements (below defined in Section 4.3),Buyer and the Title Insurance Company, in the form attached hereto as Rider “I”.   As used herein, the term “Deposit”shall be deemed to include all interest earned on such funds held in escrow.

 

2.3           Balance.** **Subjectto the conditions of this Agreement, including the prorations and adjustmentsherein provided for, the balance of the Purchase Price (i.e., after applicationof the Deposit and any Reallocated Deposit pursuant to Section 4.3(E) hereof)shall be payable at the Closing.

 

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2.4           Deposit Non-Refundable.  If (i) Buyer does not elect to terminatethis Agreement at the end of the Due Diligence Period as below provided or (ii) Buyerprovides written notice to Seller waiving its right to terminate thisAgreement, then, on the first Business Day following the end of the DueDiligence Period, the Deposit shall continue to be held by the Title InsuranceCompany, but shall not be refundable to Buyer, except in the case of a SellerDefault (below defined) hereunder or as otherwise provided for herein.

 

3.    CONDITIONS PRECEDENT

 

3.1           Conditions to Buyer’sObligation to Purchase.  Withoutlimitation to other conditions or agreements stated herein, the performance byBuyer of all agreements and obligations under this Agreement, including,without limitation Buyer’s obligation to complete Closing, is conditioned uponthe complete satisfaction (or Buyer’s written waiver) on or prior to theClosing Date of all of the following conditions (“Buyer’s ConditionsPrecedent”):

 

3.1.1        Seller’s Representations and Warranties.  The representations and warranties of Sellerherein contained shall be materially true and correct at all times.  Seller shall have delivered to Buyer suchdocuments and other materials as Buyer reasonably may deem necessary to confirmfully the truth and accuracy of such representations and warranties.

 

3.1.2        Seller’s Performance.  Seller shall have performed, observed andcomplied with all agreements and obligations required by this Agreement to beperformed, observed and complied with on its part hereunder.  Seller shall have delivered to Buyer suchdocuments and other materials as Buyer reasonably may deem necessary to confirmfully such performance, observance and compliance.

 

3.2           Conditions to Seller’sObligation to Sell.  Without limitation to otherconditions or agreements stated herein, the performance by Seller of allagreements and obligations under this Agreement, including, without limitationSeller’s obligation to complete Closing, is conditioned upon the completesatisfaction (or Seller’s written waiver) on or prior to the Closing Date ofall of the following conditions (“Seller’s Conditions Precedent”):

 

3.2.1        Buyer’s Representations and Warranties.  The representations and warranties of Buyerherein contained shall be materially true and correct at all times.  Buyer shall have delivered to Seller suchdocuments and other materials as Seller reasonably may deem necessary toconfirm fully the truth and accuracy of such representations and warranties.

 

3.2.2        Buyer’s Performance.  Buyer shall have performed, observed andcomplied with all agreements and obligations required by this Agreement to beperformed, observed and complied with on its part hereunder.  Buyer shall have delivered to Seller suchdocuments and other materials as Seller reasonably may deem necessary toconfirm fully such performance, observance and compliance.

 

4.    DUE DILIGENCE

 

4.1           Buyer’s Investigation.  (A)  Buyer, from time to time prior toClosing and at Buyer’s sole cost and expense, shall have the right to inspectand investigate each and every aspect of the Property, audit and copy the Booksand Records, perform surveys, dig test holes, 

 

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makeengineering studies, environmental studies and perform whatever other tests andevaluations of the Property as Buyer may elect, all either independently orthrough agents, representatives or contractors of Buyer’s choosing.  Such investigation by Buyer may include,without limitation: (i)  matters relating to governmental and other legalrequirements with respect to the Property, including without limitation taxes,assessments, zoning, use permit requirements and building codes; (ii) compliance with zoning, land use, building, environmental and other statutes,rules, or regulations applicable to the Property; (iii)  the physicalcondition of the Property, including, without limitation, the interior, theexterior, the square footage of the Improvements and of each tenant spacetherein, the structure, the roof, the paving, the utilities, and all otherphysical and functional aspects of the Property; and (iv) all mattersrelating to the income and operating or capital expenses of the Property andall related financial matters.  Sellershall reasonably cooperate with Buyer’s due diligence of the Property, andshall provide Buyer with all documents, files and data reasonably requested byBuyer relating to the Property.

 

(B)           In connection with any entry by Buyer or any ofits agents, employees or contractors onto the Property, Buyer shall give Sellerreasonable advance notice of such entry and shall conduct such entry and anyinspections during normal business hours. Notwithstanding anything contained in this Section 4.1 to thecontrary, Buyer acknowledges and agrees that its entry and inspection rightsare subject to the privacy rights of all Tenants, and that any such inspectionor entry shall be performed so as to reasonably minimize interference withTenants.  Buyer shall maintain, or shallcause its contractors to maintain, public liability and property damageinsurance insuring Buyer against any liability arising out of any entry or inspectionsof the Property pursuant to the provisions hereof.  Such insurance shall be in the minimum amountof $1,000,000 combined single limit for injury to or death of one or morepersons in an occurrence.  Buyer shallindemnify and hold Seller harmless from and against any Claims and reasonableattorneys’ fees incurred by Seller arising out of or relating to any entry onthe Real Property by Buyer or any of its agents, employees or contractors inthe course of performing any inspections, testings or inquiries.

 

4.2           Seller Deliverables.  On or before the fifth (5th)Business Day following the Effective Date, Seller shall deliver to Buyer, alldocuments, records and other information listed in Schedule 4.2 aswell as the Default Schedule called for by Section 5.1.4 hereof(collectively, “Seller Deliverables”).

 

4.3           Termination.  (A) Subject to the next sentence, at anytime prior to the expiration of the later of: (a) the forty-fifth (45) dayfollowing the Effective Date, (b) the fifth (5th) Business Day followingBuyer’s receipt of all Seller Deliverables, the Title Commitment (ashereinafter defined) and the Survey (as hereinafter defined), or (c) thelast Business Day on which Buyer may terminate this Agreement under Section 4.5(D) becauseSeller has opted not to Remove of Record the Buyer Title Objections (suchperiod, the “Due Diligence Period”), Buyer may, in its sole and absolutediscretion, and for any or no reason whatsoever, terminate this Agreement bywritten notice to Seller.  Anytermination of this Agreement by Buyer pursuant to this Section 4.3(A) isherein referred to as a “Due Diligence Termination”.

 

(B)           Contemporaneously herewith, Buyer and certainAffiliates of Seller have entered into twelve (12) other Agreements of Sale, asidentified in Schedule 4.3(B) hereto (“Other Agreements”).  Notwithstanding the foregoing provisions of Section 4.3(A),Buyer shall 

 

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nothave the right to effectuate a Due Diligence Termination of this Agreementunless (i) Buyer effectuates Due Diligence Termination of all OtherAgreements or (ii) Buyer effectuates Due Diligence Terminations of one ormore Other Agreements under Section 4.3(A) thereof, and the aggregateof the Purchase Prices under and as defined in the Other Agreements that havenot been so terminated equals or exceeds the Threshold Aggregate PurchasePrice.  “Threshold Aggregate PurchasePrice” means Two Hundred Twenty Two Million Three Hundred Thousand Dollars($222,300,000), minus the Purchase Price under and as defined in each OtherAgreement that has been terminated because of a Seller Default thereunder orpursuant to Section 10.1 thereof.

 

(C)           If, during the Due Diligence Period, Buyerterminates this Agreement and all Other Agreements in each instance as a DueDiligence Termination, then Seller’s Portion of the Deposit (identified in theEscrow Agreement) and all interest earned thereon shall be paid to Seller, andBuyer’s Portion of the Deposit (identified in the Escrow Agreement) and allinterest earned thereon shall be paid to Buyer, within two (2) BusinessDays after the Title Insurance Company receives written notice of suchtermination from either party.

 

(D)          If Buyer terminates this Agreement because of aSeller Default hereunder or pursuant to Section 10.1 hereof, then theentire Deposit shall be paid to Buyer within two (2) Business Days afterthe Title Insurance Company receives notice of such termination from eitherparty.

 

(E)           If, during the Due Diligence Period, Buyereffectuates a Due Diligence Termination of this Agreement, but does noteffectuate Due Diligence Terminations of all the Other Agreements, then theDeposit hereunder shall be reallocated (“Reallocated Deposit”) to theDeposits under all Other Agreements remaining in effect, in the same proportionas the Deposit under each remaining Other Agreement bears to the aggregateamounts of all Deposits under all remaining Other Agreements.

 

(F)           Notwithstanding any contrary provision of thisAgreement or the Escrow Agreement, in the event of a dispute between theparties as to whether Seller’s Portion of the Deposit is payable to Sellerhereunder, the Title Company shall pay to Buyer Buyer’s Portion of the Depositpursuant to the foregoing.

 

4.4           Survey.  Buyer shall provide Seller with a copy of anysurvey of the Real Property (“Survey”) obtained by Buyer in order forSeller to review any Buyer Title Objections (as hereinafter defined).

 

4.5           Clearing TitleObjections.  (A)  Buyer shall, withintwenty (20) Business Days following the Effective Date, cause the TitleInsurance Company to issue and shall deliver to Seller a commitment to issue aTitle Insurance Policy covering the Property (“Title Insurance Commitment”)in order for Seller to review any Buyer Title Objections.

 

(B)           Buyer shall notify Seller (“Title ObjectionNotice”) what, if any, matters disclosed by the Title Insurance Commitmentor Survey are objectionable to Buyer (collectively, “Buyer Title Objections”)within five (5) Business Days following Buyer’s provision of the TitleInsurance Commitment and Survey to Seller. If Buyer shall fail to give Seller a Title Objection 

 

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Noticewithin such period, then Buyer shall be deemed to have approved all suchmatters, and, at Closing, shall take title to the Property subject to allencumbrances, exceptions and other matters disclosed by the Title InsuranceCommitment and Survey, other than mortgages, deeds of trust, judgments,security interests, mechanics’ liens and other monetary liens (collectively, “MonetaryLiens”) which Seller shall be obligated to Remove of Record at or prior tothe Closing (“Remove of Record” means causing the Title InsuranceCompany to remove a matter disclosed by the Title Insurance Commitment as anexception from coverage under the Title Insurance Policy or, as applicable,causing the surveyor to remove a matter from the Survey).

 

(C)           Within five (5) Business Days after Seller’sreceipt of the Title Objection Notice, Seller shall notify Buyer of those BuyerTitle Objections (other than Monetary Liens) that Seller shall not be obligatedto Remove of Record at or prior to Closing (the Buyer Title Objections that areduly identified in Seller’s responsive notice as matters that Seller will notbe obligated to Remove of Record, together with title encumbrances that Buyerdoes not identify as Buyer Title Objections, are herein collectively referredto as “Permitted Encumbrances”; “Required Deletion Items” meansall Monetary Liens and all Buyer Title Objections that do not become PermittedEncumbrances).  Seller shall not beobligated to Remove of Record any Permitted Encumbrances.  Seller shall Remove of Record, at or prior toClosing, all Required Deletion Items, and, prior to Closing, Exhibit “B”to the form of Deed attached hereto as Exhibit “A” shall be modified bythe parties to reflect the Permitted Encumbrances.

 

(D)          If Seller does not give such a responsive noticewithin such five (5) Business Day period, then (i) Seller shall beobligated to Remove of Record all Buyer Title Objections and (ii) Buyershall cause the Title Insurance Company, within five (5) Business Daysthereafter, to revise and reissue the Title Insurance Commitment, calling forthe removal of all Required Deletion Items and obligating the Title InsuranceCompany to issue the Title Insurance Policy under and subject only to thePermitted Encumbrances listed in the Title Insurance Commitment.  If Seller timely gives such a responsivenotice to the effect that Seller will not Remove of Record certain Buyer TitleObjections then, within the five (5) Business Day period following Buyer’sreceipt of such notice from Seller, Buyer shall have the right to terminatethis Agreement by notifying Seller, whereupon the Deposit shall be refunded toBuyer promptly, and neither party shall have any further rights, duties,liabilities, or obligations under this Agreement, except as otherwise expresslyset forth herein.  If Buyer fails to soterminate this Agreement, then Buyer shall take title to the Property at Closingsubject to the Buyer Title Objections identified in Seller’s responsive notice.

 

(E)           If at Closing there are any Required DeletionItems that have not been Removed of Record, then, without limitation to anyother right or remedy of Buyer, Buyer may: (a) use any portion of thePurchase Price otherwise payable to Seller to Remove of Record such RequiredDeletion Items or (b) by notice to Seller, adjourn the Closing one or moretimes for an aggregate period not to exceed thirty (30) days in order to giveSeller more time to Remove of Record such Required Deletion Items.

 

4.6           Termination ofContracts.  Buyer shall review the Contractsduring the Due Diligence Period and notify Seller in writing no later than ten (10) BusinessDays following Buyer’s receipt of true, correct and complete copies of theContracts which Contracts Buyer wishes to assume and which Contracts Buyerwishes for Seller to terminate.  Withinfive (5)

 

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BusinessDays following receipt of Buyer’s notice as aforesaid, Seller shall notifyBuyer in writing which, if any, Contracts designated by Buyer for terminationSeller refuses or is unable to terminate, whereupon Buyer shall have the optionto proceed to Closing and accept an assignment of such Contracts or terminatethis Agreement and receive a refund of the Deposit.  Seller, at its expense, shall terminate, withrespect to the Property, effective on the Closing Date, all Contracts whichSeller has agreed to terminate as aforesaid. All Contracts not agreed to be terminated by Seller as aforesaid shallbe assigned to Buyer at the Closing, if Buyer has not terminated this Agreementas aforesaid, pursuant to the Assignments of Contracts, and Seller shall obtainany and all consents necessary to effectuate such assignment.

 

5.    REPRESENTATIONS AND WARRANTIESOF SELLER

 

5.1           Representations andWarranties of Seller.  In order toinduce Buyer to enter into this Agreement and to complete Closing, Sellerrepresents, warrants and agrees with Buyer as follows:

 

5.1.1        Seller Subsistence; Power; Authority.  (a)  Seller is the entity identified inthe first paragraph of this Agreement, and is duly organized, validlysubsisting and in good standing under the laws of the State of Alabama, andduly qualified and with full power and authority generally to do business inthe state where the Property is located, with all legal power and authority toundertake, observe and perform all of Seller’s agreements and obligationshereunder and under the Closing Documents.

 

(b)           Seller’s entry into this Agreement, and theobservance and performance of Seller’s agreements and obligations hereunder,have been duly approved by all necessary action of the directors, shareholders,members and/or partners (as applicable) in Seller. This Agreement constitutesand the Closing Documents will, when executed and delivered, constitute thevalid and binding obligations of Seller, enforceable in accordance with theirterms.

 

(c)           None of the Property is an asset, and none of thefunds used by Seller to acquire the Property were assets, of any “employeebenefit plan” within the meaning of the Employee Retirement Income Security Actof 1974, as amended, or of any entity the underlying assets of which constitute“plan assets” of one or more of such plans under applicable U.S. Department ofLabor regulations.

 

(d)           Seller is not a foreign person within the meaningof Section 1445 of the Internal Revenue Code of 1986, as amended.

 

(e)           All the persons who have any legal or equitableinterest in the Property, or whose joinder in any Closing Document would benecessary to convey to Buyer title to all the Property, as required by thisAgreement, are named above as “Seller”.

 

(f)            Seller’s execution anddelivery of this Agreement and the Closing Documents and Seller’s compliancewith the provisions thereof will not conflict with or constitute a breach of,or a default under, any of the provisions of any applicable law, rule,regulation or order of any court, administrative agency, bureau, board, commission,office, authority, department or other governmental entity.

 

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(g)           Seller is not a party to or bound by anyagreement or obligation or subject to any restriction or to any applicable law,rule, regulation or order of any court, administrative agency, bureau, board,commission, office, authority, department or other governmental entity, whichmight result in a material impairment of the rights or abilities of Seller toperform its obligations hereunder or under the Closing Documents.

 

5.1.2        Litigation.  Thereare no judgments, orders, suits, actions, garnishments, attachments orproceedings of any nature by or before any court, commission, board or othergovernmental body pending, or to the knowledge of Seller threatened, whichinvolve or affect, or could involve or affect: (a) the Property, or anypart thereof, except for that certain ongoing litigation described in Schedule 5.1.2(“Existing Litigation”), (b) the validity or enforceability of thisAgreement or the Closing Documents, (c) any risk of any judgment orliability being imposed upon Seller which could materially adversely affect thefinancial condition of Seller or Seller’s ability to observe or perform fullyits agreements and obligations hereunder or under the Closing Documents.

 

5.1.3        Bankruptcy Matters.  The consummation of the transactionscontemplated hereby will not render Seller insolvent or constitute a fraudulentconveyance or fraudulent transfer under any applicable law.  Seller has not made any general assignmentfor the benefit of  Seller’screditors.  No proceeding seeking (a) relieffor Seller under any bankruptcy or insolvency law, (b) the rearrangementor readjustment of Seller’s debt, (c) the appointment of a receiver,custodian, liquidator or trustee to take possession of substantially all of theassets of Seller, or (d) the liquidation of Seller, has been commenced oris planned by Seller or has been threatened by any other Person.

 

5.1.4        No Default.  (A) Except as will be disclosed in a schedule which Seller shall deliver toBuyer as part of the Seller Deliverables (“Default Schedule”), Sellerhas not received written notice, nor is Seller (to its knowledge) aware, of anydefault under any License or Permit, Lease, Lease Guaranty or Contract, or anyother agreement or instrument relating to the Property to which Seller is aparty or by which Seller or Property is bound. Except as will be disclosed in the Default Schedule, to Seller’sknowledge, there exists no condition or state of facts which, but for thegiving of notice or the expiration of time (or both), would constitute such adefault.  The observance and performanceof Seller’s obligations hereunder and under the Closing Documents will notconflict with or result in the breach of any License or Permit, Lease, LeaseGuaranty, Contract or other such agreement or other instrument.

 

5.1.5        Environmental.  (A) Inaccordance with Section 4.2 hereof, Seller will provide Buyer with true,complete and correct copies of all environmental assessments, reports, permitsand other written material relating to the environmental condition of theProperty and the presence of Hazardous Substances, if any, to the extent inSeller’s possession or control.

 

(B)           In accordance with Section 4.2 hereof,Seller will provide Buyer with true, complete and correct copies of all noticesand information received by Seller from any Person, if any, relating to thepresence of Hazardous Substances on the Property or in the vicinity of theProperty.

 

(C)           To Seller’s knowledge, Seller has not receivedany complaint, order, 

 

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summons,citation, notice of violation, directive letter or other communication from anyGovernmental Authority with regard to air emissions, water discharges, noiseemissions or Hazardous Substances, or any other environmental, health or safetymatters affecting the Real Property, or any portion thereof.  Seller has complied with all federal, stateor local environmental laws affecting the Real Property, including notificationrequirements relating to the release of Hazardous Substances.

 

(D)          Seller has not knowingly undertaken, permitted,authorized or suffered the presence, or suspected presence, use, manufacture,handling, generation, storage, treatment, discharge, release, burial ordisposal on, under or about the Real Property of any Hazardous Substances,except in compliance with all federal, state or local environmental laws, orthe transportation to or from the Real Property, of any Hazardous Substances inviolation of any federal, state or local environmental laws.

 

(E)           Seller has not removed, or caused to be removed,any underground storage tanks from the Real Property and, to the best of Seller’sknowledge, there are no underground storage tanks located on the Real Property.

 

5.1.6        Leases.  (a)            The rent rolls (“RentRolls”) with respect to the Property that Seller delivers to Buyer as partof the Seller Deliverables shall accurately state, with respect to eachexisting written or oral lease, license, concession or other agreement(collectively, “Existing Leases”) that permits any person (collectively,“Tenants”) to use or occupy all or any part of the Property, among otherthings, the name of the Tenant, the lease term (including all renewal options),the leased premises (including all expansion or surrender options), all rent,additional rent, fees and other sums payable by the Tenant (collectively, “Rent”),any security deposit, tax or operating expense escrow, and other accounts in whichthe Tenant has an interest, including all accrued interest payable to theTenant (collectively, “Tenant Deposits”).  Any and all Rent prepaid by Tenants inadvance of the current month for which they are due shall be specified in theRent Roll.  Seller represents andwarrants to Buyer that there are no tenant improvement allowances, or anycommission payable (including commissions payable upon renewals) in connectionwith the Existing Leases.

 

(b)           Buyer will have access, at the Property, to true,complete and correct copies of all Leases and all guaranties and sureties withrespect to such Existing Leases (“Lease Guaranties”), including allamendments and modifications thereto.

 

(c)           Except as specified in the Rent Roll or on Schedule 5.1.4attached hereto and made a part hereof, (i) to Seller’s knowledge, eachLease and Lease Guaranty is in full force and effect and is binding andenforceable against each of the parties thereto, (ii) to Seller’sknowledge, no party is in default of any of its agreements or obligationsunder, and has not made any claim against another party, under a Lease or LeaseGuaranty, (iii) Seller has not given or received any written notice ofdefault or claim under any Lease or Guaranty, (iv) to Seller’s knowledge,each Tenant is in actual possession of its demised premises in the normalcourse under its Lease, (v) all tenant improvements, capital improvements,repairs, remodeling, furnishing and other work required by each Lease has beenfully completed and accepted by the relevant Tenant, and (vi) there is nolitigation, arbitration or similar proceeding pending or, to Seller’sknowledge, threatened with respect to any Lease or Lease Guaranty.

 

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(d)           Except as set forth on the Rent Roll, no Tenantis entitled to any concession, allowance, rebate or refund with respect to anyrent payable or paid under any Lease. Except as set forth on Schedule 5.1.6 hereto, no Tenant hasprepaid, and if a Tenant hereafter tenders prepayment, Seller shall accept, anyRent payable under its Lease for more than the month in advance.

 

(e)           None of the Leases or Lease Guaranties and noneof the Rents payable under the Leases is subject to any assignment, pledge orother encumbrance, except with respect to the existing financing of Seller,which Seller shall cause to be released at the Closing.

 

(f)            No brokerage or leasingcommissions or other compensation is or will be due or payable to any person,firm, corporation or other entity with respect to or on account of any of theLeases or any extensions or renewals thereof, except as specified in the RentRoll.

 

5.1.7        Mechanics’ Liens.  No work has been or will be performed at, andno materials have been or will be furnished to, the Property, or any partthereof, which might give rise to any mechanics’, materialmen’s or other lienagainst the Property, or any part thereof, except for certain repairs ofsheetrock and the installation of attic access panels, which work shall becompleted and paid for by Seller prior to Closing.  If any lien for such work is filed, Sellershall discharge the same promptly and in any event prior to Closing.

 

5.1.8        Insurance.  As partof the Seller Deliverables, Seller shall provide Buyer with a true, completeand correct copy of Seller’s certificate of insurance demonstrating allcoverages applicable to the Property (“Insurance Policies”).  All premiums due under the Insurance Policieshave been paid, and the Insurance Policies are valid and enforceable.  No insurer of any Property has imposed anyrequirement with respect to any Property which is unfulfilled, or has calledattention to the need for any work, repair or installation in connection withsuch Property, or, to Seller’s knowledge, has threatened to withdraw, cancel,reduce or adversely affect the insurance protection with respect to suchProperty, or to increase materially the premiums thereof.  Seller has not assigned, mortgaged or pledgedthe Insurance Policies or the proceeds thereof, except with respect to theexisting financing of Seller, which Seller shall cause to be released at theClosing.

 

5.1.9        Contracts.  Exceptfor the Contracts, there is no management, service, equipment, supply,maintenance or other agreement of any kind or nature with respect to oraffecting any Property.  As part of theSeller Deliverables, Seller shall deliver to Buyer true, correct and completecopies of all the Contracts, including all supplements, amendments andmodifications thereto.  Seller has fullauthority, right and title to assign the Contracts to Buyer. Seller has notpreviously sold, assigned, transferred, mortgaged or pledged the Contracts,except with respect to the existing financing of Seller, which Seller shallcause to be released at the Closing. Each of the Contracts is fully enforceable in accordance with its terms,is in full force and effect, and has not been amended, modified orsupplemented. Seller has not received written notice, nor is Seller (to itsknowledge) aware, of any default of any of its obligations under any of theContracts. Seller has not given any other party to a Contract a notice ofdefault which remains uncured, and no default has occurred under any Contract,and, to Seller’s knowledge, no event has occurred or condition exists which,with the passage of time or the giving of notice, or 

 

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both,would constitute such a default.  TheAssignment of Contracts shall assign to Buyer at Closing all Seller’s right,title and interest in and to the Contracts.

 

5.1.10      Employees.  Sellerdoes not employ any persons at the Property other than the persons listed on Schedule 5.1.10.  Buyer shall have no obligation to hire any ofthe present employees of Seller engaged in connection with the Property, butBuyer shall be free to do so if Buyer so elects.

 

5.1.11      Personal Property.  Except for the Personal Property that will betransferred to Buyer pursuant to the Bill of Sale, there is no personalproperty of any nature or description on or in the Property other than personalproperty owned by Tenants.

 

5.1.12      Compliance with Laws.  No notice or communication of any kind hasbeen issued by any public authority relating to the Property, or any businessor activity conducted thereon, including, but not limited to, notice of violationunder zoning, building, health, or fire codes. Seller shall be responsible for all such notices and communications, andfor the cost of all work, repairs, construction and installations which may berequired or called attention to by any such notice or communication issued toSeller prior to Closing.  If any suchnotice or communication is received by Seller after the date of this Agreement,Seller shall promptly notify Buyer in writing, and Seller, if Buyer sorequests, shall give Buyer full opportunity, with the cooperation of Seller, tocontest such governmental action and to initiate or participate in suchproceedings as Buyer may deem necessary or desirable to protect Buyer’sinterests.  In the event Buyer takes anysuch actions, such actions taken by Buyer shall be at Buyer’s sole cost andexpense.

 

5.1.13      Financial Information.  All the operating statements and otherfinancial data which shall have been delivered by Seller to Buyer with respectto the Property, are true and current and accurately reflect the revenue,expenses and operations of the Property in all material respects.

 

5.1.14      Condemnation.  As ofthe Effective Date, Seller has not received any written notice of any pendingor threatened condemnation of all or any portion of the Property.

 

5.1.15      Quality of Title.  (a)    Seller now has,and at Closing will have, full legal and equitable fee simple absolute title tothe Property, subject to the Permitted Encumbrances, of the quality andinsurability called for by this Agreement.

 

(b)           There is no existing agreement, commitment, rightof first refusal, right of first offer, option or right with, in or to anyperson to acquire the Property or any interest therein.

 

(c)           Seller has not received written notice, nor isSeller (to its knowledge) aware, of any default or breach under any recordedeasement, covenant, agreement or restriction affecting the Property.

 

5.1.16      Accuracy of Information.  All Seller Deliverables prepared by Seller orits employees including, without limitation, the Rent Roll and, to Seller’sknowledge, all other information, materials, copies of documents and othermaterials (including, without limitation, financial data, copies of Leases,Contracts, Books and Records, Licenses and Permits, Insurance 

 

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Policies,Warranties, municipal approvals, architect’s certificates, plans, surveys,estoppel certificates and subordination agreements) prepared by third partiesheretofore or hereafter submitted by Seller, or anyone on Seller’s behalf, toBuyer with respect to the Property or this Agreement shall be accurate,complete, true and correct, and no fact or circumstance has occurred or existssince the time of such submissions which in any way materially affects same.  Such submissions are not misleading and donot omit facts or circumstances having a material bearing on Seller’s abilityto observe or perform its agreements or obligations hereunder or under theClosing Documents.  No representation,statement or warranty by Seller contained in this Agreement or in any schedule orexhibit attached hereto or in any Seller Deliverables or any Closing Documentor other document to be executed in connection herewith contains or willcontain any untrue statement or omits or will omit a material fact necessary tomake the statement of fact therein recited not misleading.

 

5.2           Effective Date.  Each of the representations and warranties ofSeller contained in this Agreement:  (a) ismade as of the Effective Date, and (b) shall be deemed remade by Seller,and shall be true and correct in all respects, as of the Closing Date.  If, after the execution of this Agreement,any event occurs or condition exists which renders any of Seller’srepresentations or warranties untrue or misleading, then Seller shall promptlynotify Buyer.

 

6.    REPRESENTATIONS AND WARRANTIESOF BUYER

 

6.1           Representations andWarranties of Buyer.  Buyer herebymakes the following representations and warranties:

 

(a)           Buyer is a limited liability company dulyorganized and validly existing and in good standing under the laws of the Stateof Delaware.  This Agreement and alldocuments executed by Buyer that are to be delivered to Seller at Closing (i) are,or at the time of Closing will be, duly authorized, executed and delivered byBuyer, (ii) do not, and at the time of Closing will not, violate anyprovision of any agreement or judicial order to which Buyer is a party and (iii) constitute(or in the case of Closing Documents will constitute) a valid and legallybinding obligations of Buyer, enforceable in accordance with their terms.

 

(b)           Buyer has full and complete power and authorityto enter into this Agreement and to perform its obligations hereunder.

 

(c)           Buyer’s execution and delivery of this Agreementand the Closing Documents and Buyer’s compliance with the provisions thereofwill not conflict with or constitute a breach of, or a default under, any ofthe provisions of any applicable law, rule, regulation or order of any court,administrative agency, bureau, board, commission, office, authority, departmentor other governmental entity.

 

(d)           Buyer is not a party to or bound by any agreementor obligation or subject to any restriction or to any applicable law, rule,regulation or order of any court, administrative agency, bureau, board,commission, office, authority, department or other governmental entity, whichmight result in a material impairment of the rights or abilities of Buyer toperform its obligations hereunder or under the Closing Documents.

 

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(e)           To the best of Buyer’s knowledge, there are nojudgments, orders, suits, actions, garnishments, attachments or proceedings ofany nature by or before any court, commission, board or other governmental bodypending, or to the knowledge of Buyer threatened, which involve or affect, orcould involve or affect: (i) the validity or enforceability of thisAgreement or the Closing Documents, (ii) any risk of any judgment orliability being imposed upon Buyer which could materially adversely affect thefinancial condition of Buyer or Buyer’s ability to observe or perform fully itsagreements and obligations hereunder or under the Closing Documents.

 

(f)            The consummation of thetransactions contemplated hereby will not render Buyer insolvent.  No proceeding seeking (i) relief forBuyer under any bankruptcy or insolvency law, (ii) the rearrangement orreadjustment of Buyer’s debt, (iii) the appointment of a receiver,custodian, liquidator or trustee to take possession of substantially all of theassets of Buyer, or (iv) the liquidation of Buyer, has been commenced oris planned by Buyer or has been threatened by any other Person.

 

(g)           To Buyer’s knowledge, no representation,statement or warranty by Buyer contained in this Agreement or in any schedule orexhibit attached hereto or in any Closing Document or other document to beexecuted in connection herewith contains or will contain any untrue statementor omits or will omit a material fact necessary to make the statement of fact thereinrecited not misleading.

 

6.2           Effective Date.  Each of the representations and warranties ofBuyer contained in this Agreement (a) is made on the Effective Date and (b) shallbe deemed remade by Buyer and shall be true in all material respects as of theClosing Date.  If, after the execution ofthis Agreement, any event occurs or condition exists which renders any of Buyer’srepresentations or warranties untrue or misleading, then Buyer shall promptlynotify Seller.

 

7.    INDEMNITIES

 

7.1           Seller’s Indemnities.  Provided Closing takes place, Seller shallindemnify, protect and hold harmless Buyer against all Claims arising inconnection with any (a) breach or inaccuracy of any representation orwarranty of Seller contained herein, provided that with respect to a breach orinaccuracy of any representation or warranty, Buyer shall have given Sellernotice of such breach or inaccuracy within one (1) year following theClosing Date, except that Seller’s Representations and Warranties underSections 5.1.1, 5.1.2 and 5.1.3 shall not be limited by such notice or one-yearperiod, (b) failure by Seller to observe or perform when due any agreementor obligation contained herein or in any Closing Document, and (c) ExistingLitigation.

 

7.2           Buyer’s Indemnities.  Provided Closing takes place, Buyer shallindemnify, protect and hold harmless Seller against all Claims suffered orincurred by Seller, in connection with any (a) breach or inaccuracy of anyrepresentation or warranty of Buyer contained herein, and (b) failure byBuyer to observe or perform when due any agreement or obligation containedherein.

 

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8.    EXCLUDED LIABILITIES

 

8.1           Excluded Liabilities.  Buyer shall neither assume nor pay for nor beliable for any of Seller’s agreements, liabilities, debts, responsibilities orobligations with respect to the Property or otherwise, whether direct, fixed orcontingent, and whether existing or arising at any time prior or subsequent tothe Closing Date, except and only to the extent otherwise provided herein withrespect to Leases and Contracts expressly assumed by Buyer at Closing.

 

9.    INTERIM OPERATION OF THEPROPERTY

 

9.1           Operations.  Except as otherwise approved by Buyer inwriting, from the Effective Date until the Closing Date, Seller shall (a) operate,maintain, repair and lease the Property in the ordinary course and consistentwith sound business practices and (b) not sell, dispose of or encumber theProperty, or enter into an agreement to so do, except replacements of PersonalProperty in the ordinary course of business. Without limiting the foregoing, Seller shall, in the ordinary course: (i) enforcethe Leases in all material respects, (ii) perform in all material respectsall of landlord’s obligations under the Leases (other than Leases that havebeen or are in the process of being terminated due to the Tenant’s defaultthereunder), and (iii) pay all costs and expenses of the Property,including, without limitation, debt service and Real Estate Taxes.

 

9.2           Lease Enforcement.  Without limitation to the provisions of Section 9.1,prior to Closing, Seller shall enforce the rights and remedies of the landlordunder each existing Lease and New Lease following a default by the Tenantthereunder by legal proceedings or otherwise, provided Seller shall not applyall or any portion of any security deposits then held by Seller toward any lossor damage incurred by Seller by reason of any default by any Tenant, unless (i) writtennotice of such default and of the application of such security deposit shallhave been provided to the relevant Tenant, and such notice shall comply withthe applicable terms of such Tenant’s Lease and with all applicable laws, and (ii) theapplicable Tenant is more than sixty (60) days in default under its Lease.

 

9.3           Modifications;Agreements.  Seller shall not terminate, ormodify or amend any material term of, any Lease, Lease Guaranty, Contract,License or Permit or Warranty without, in each instance, Buyer’s prior writtenconsent, which consent (i) shall not unreasonably be withheld if suchconsent is requested prior to the expiration of the Due Diligence Period or (ii) maybe withheld in Buyer’s sole discretion if such consent is requested followingthe expiration of the Due Diligence Period.

 

9.4           New Contracts.  Seller shall not enter into any new lease(other than residential leases on market terms), contract, agreement orunderstanding with respect to the Property unless: (a) by its expressterms, it is terminable by Seller by no more than thirty (30) days notice,without premium or penalty, and (b) a copy is provided to Buyer prior toits effectiveness.

 

9.5           No Solicitation.  Seller shall not solicit offers for theProperty, or submit or accept or discuss proposals or solicitations for thesale or other disposition of, or investment in, the Property.

 

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9.6           Leasing Status Reports.  Upon request by Buyer, Seller shall promptlydeliver to Buyer, with respect to the Property, updated certified rent rolls(including rent concession information) and pre-leasing reports and such otherinformation as may reasonably be requested by Buyer.

 

10.    RISK OF LOSS

 

10.1         Risk of Loss andInsurance Proceeds.  (A) Seller shall bear therisk of loss with respect to the Property in the manner provided herein.  If, on or after the Effective date, (a) theProperty is contaminated or damaged or destroyed by fire or other casualty, andBuyer’s estimated cost of repair exceeds one percent (1%) of the Purchase Price,or (b) the Property is condemned, then Buyer shall have the right toterminate this Agreement upon notice to Seller. If Buyer elects to terminate this Agreement, the Deposit shall berefunded to Buyer promptly.  If Buyerdoes not elect to terminate this Agreement, at the Closing, there shall becredited against the Purchase Price an amount equal to the gross amount of anyinsurance proceeds collected by Seller as a result of such damage ordestruction, plus the gross amount of any insurance policy deductible, or asapplicable, the gross amount of the condemnation award collected bySeller.  To the extent any such proceedsor awards have not been collected as of the Closing, then such proceeds orawards shall be unconditionally and absolutely assigned to Buyer at Closing, inform reasonably satisfactory to Buyer. Notwithstanding anything herein to the contrary, no proceeds from acasualty or condemnation shall be payable to Buyer hereunder unless the Deposithas become non-refundable in accordance with the provisions of Section 2.4hereof and Buyer has agreed to proceed to Closing.

 

(B)           Seller shall not settle, compromise or otherwisestipulate any award or recovery in connection with any such damage, destructionor condemnation without the prior written approval of Buyer, which approvalshall not be unreasonably withheld if Buyer has the right to terminate thisAgreement in accordance with Section 10.1 (A) above, and Buyer shallhave the right to participate in any such settlement and other proceedings.

 

10.2         Notifications.  Between the Effective Date and the Closing,Seller shall promptly notify Buyer of any Material Damage (as hereinafterdefined) to the Property, any condemnation, environmental, zoning or otherland-use regulation proceedings relating to the Property of which Sellerbecomes aware, any notices of violations of any legal requirements relating tothe Property received by Seller, and any litigation of which Seller receiveswritten notice that relates to the Property or Seller’s ability to perform itsagreements and obligations hereunder.  Asused herein, “Material Damage” shall mean damage which, in Seller’scommercially reasonable judgment, will cost in excess of Five Thousand Dollars($5,000) to repair or replace.

 

11.    CLOSING

 

11.1         Escrow Instructions.  Upon execution of this Agreement, the partieshereto shall deposit an executed counterpart of this Agreement with the TitleInsurance Company, and this Agreement, as well as the Deposit Escrow Agreement,shall serve as the instructions to the Title Insurance Company as escrow holderfor consummation of the purchase and sale contemplated hereby (the “Closing”).  Seller and Buyer agree to execute suchreasonable additional escrow instructions as may be appropriate to enable theTitle Insurance Company to comply with the 

 

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termsof this Agreement, provided, however, that in the event of any conflict betweenor among the provisions of this Agreement, the Deposit Escrow Agreement and/orany supplementary escrow instructions, the terms of this Agreement shallcontrol.

 

11.2         Closing Date.  Closing shall be held at 10:00 A.M.prevailing local time on the date (the “Closing Date”) which shall be nomore than thirty (30) days following the expiration of the Due Diligence Period(as extended, if applicable) on such date as is mutually agreed upon by theparties.

 

11.3         Location.  The parties shall use their best efforts toconduct the Closing through the Title Insurance Company pursuant to the escrowinstructions provided herein.  If aClosing shall require in-person attendance by the parties, then such in-personClosing shall be held commencing at 10:00 a.m. prevailing local time onthe Closing Date at a location mutually acceptable to the parties,

 

11.4         Closing Documents.  At least one (1) Business Day prior tothe Closing Date, Seller shall execute and deposit into escrow with the TitleInsurance Company the following:

 

(a)           a special warranty deed (“Deed”)substantially in the form attached hereto as Exhibit “A”,sufficient to vest in Buyer title to the Real Property in accordance with thisAgreement.  The Deed shall describe theLand in accordance with the Survey and, if necessary, the legal description ofthe Land that appears in Exhibit “A” to the form of Deed attached heretoas “Exhibit “A” shall be revised by the parties prior to Closing toreflect the legal description in the Survey;

 

(b)           a Bill of Sale (“Bill of Sale”),substantially in the form attached hereto as Exhibit “B”;

 

(c)           an Assignment and Assumption of Contracts (“Assignmentof Contracts”), substantially in the form attached hereto as Exhibit “C”;

 

(d)           an Assignment and Assumption of Leases (“Assignmentof Leases”),  substantially in theform attached hereto as Exhibit “D”;

 

(e)           a General Assignment (“General Assignment”),substantially in the form attached hereto as Exhibit “E”;

 

(f)            a FIRPTA Affidavit,substantially in the form attached hereto as Exhibit “F”;

 

(g)           a duly executed counterpart of an agreementdesignating the Title Insurance Company as the “Reporting Person” for thetransaction contemplated hereby pursuant to Section 6045(e) of theInternal Revenue Code and the regulations promulgated thereunder, substantiallyin the form attached hereto as Exhibit “G”;

 

(h)           all documents required by the Title InsuranceCompany which are reasonably necessary in order for the Title Insurance Companyto issue the Title Insurance Policy 

 

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toBuyer in accordance with this Agreement, including without limitation theseller’s affidavit prepared by the Title Insurance Company;

 

(i)            a termination ofmanagement agreement between Seller and the manager or managers of the Propertyin form reasonably satisfactory to Buyer; and

 

(j)            (j)            a duly executed counterpartof such certificates, disclosures and reports as are required by applicablestate and local law in connection with the conveyance of the Property.

 

11.5         Additional SellerDeliverables.  (A) At Closing, Sellershall deliver to Buyer the complete, original counterparts, to the extentoriginals of such documents are in the possession or available to Seller, ofthe Leases, Lease Guaranties, Contracts, Licenses and Permits, Books andRecords and Warranties, all certified as true and correct by Seller.

 

(B)           At Closing Seller shall deliver to Buyeroriginals of all tenant correspondence files for the Property, and originals ofall other files and items in Seller’s possession relating to the use,ownership, operation, maintenance, leasing, repair, alteration, management ordevelopment of the Property.

 

11.6         Buyer ClosingDeliveries.  At least one (1) BusinessDay prior to the Closing Date, Buyer shall execute and deposit into escrow withthe Title Insurance Company the following:

 

(i)            a duly executed counterpartof the Assignment of Leases;

 

(ii)           a duly executed counterpart of the Assignment ofContracts; and

 

(iii)          a duly executed counterpart of the DesignationAgreement.

 

11.7         Closing by TitleInsurance Company.  At least one (1) BusinessDay prior to the Closing Date, Seller and Buyer shall approve a closingstatement in the Title Insurance Company’s customary form (the “ClosingStatement”) and shall detail: (i) the disposition of the Deposit andthe Purchase Price, (ii) the proration amounts allocable to each of theparties pursuant to Article 12, (iii) the closing costs allocable toeach of the parties pursuant to Article 12, (iv) all fees, costs andexpenses payable to any third party, including the Title Insurance Company, and(vi) all necessary wiring instructions. On the Closing Date, Buyer shall effect a wire transfer of immediatelyavailable federal funds to the Title Insurance Company’s escrow account in theamount set forth in the Closing Statement and Seller and Buyer shall depositwith the Title Insurance Company the documents required by this Agreement andsuch other instruments as are reasonably required by the Title InsuranceCompany or otherwise required to close the escrow and consummate the purchaseand sale of the Property in accordance with the terms hereof.  Upon receipt of the documents and funds inaccordance with the terms of this Agreement and the Closing Statement, and atsuch time as the Title Insurance Company has issued the Title Insurance Policycalled for by the Title Insurance Commitment, without exception for RequiredDeletion Items, and subject only to the Permitted Encumbrances, the TitleInsurance Company shall: (i) record the Deed and deliver copies to bothSeller and Buyer, (ii) disburse funds to persons entitled thereto, asexpressly stated in the Closing Statement, (iii) 

 

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deliver:(A) to Seller: (1) two originals of all documents deposited with theTitle Insurance Company (other than the Deed and the FIRPTA Affidavit), (2) oneconformed copy of each document recorded pursuant to the terms hereof, and (3) acounterpart of the Title Insurance Commitment marked to conform to the issuanceto Buyer of the Title Insurance Policy; and (B) to Buyer: (1) twooriginals of all documents deposited into escrow (other than the Deed and theFIRPTA Affidavit), (2) the original FIRPTA Affidavit, (3) oneconformed copy of each document recorded pursuant to the terms hereof, and (4) theTitle Insurance Policy.

 

11.8         Additional Title InsuranceDocuments.  Buyer and Seller shall eachexecute and deposit in escrow with the Title Insurance Company such otherinstruments as are reasonably required by the Title Insurance Company orotherwise required to close the escrow and consummate the purchase and sale ofthe Property in accordance with the terms hereof.

 

11.9         Possession.  At Closing, Seller shall deliver to Buyeractual possession of the Property, vacant and free of all leases and rights ofpossession, use or occupancy, excepting only the Leases.

 

11.10       Transfer of Licenses and Permits.   Seller shall cooperate with Buyer in Buyer’sefforts to obtain from all public authorities (a) the transfer or thereissuance, as applicable, to Buyer of all Licenses and Permits, and (b) suchsite plan, land use plan, land development plan approvals and other approvals,building, construction and other permits, certificates, agreements,authorizations, zoning variances and special exceptions as may be required ordesired by Buyer in connection with its intended use and/or development of theProperty.  Seller shall execute promptlyall documents necessary or reasonably required by Buyer with respect thereto.

 

11.11       Tenant Notices.  AtClosing, Seller shall execute and deliver to Buyer, for delivery by Buyer toeach Tenant, a notice to each Tenant of the assignment of the Tenant’s lease toBuyer, in conformity with each Lease and with applicable law.  Such notices shall be substantially in theform of Exhibit “H”.

 

11.12       Termination/Assignment of Contracts.  All Contracts not designated by Buyer fortermination, as above provided, shall be assigned to Buyer pursuant to theAssignment of Contracts, and at Closing, Seller shall notify each counterpartto each Assigned Contract of such assignment, which notices shall besubstantially in the form of  “Exhibit I.”  At Closing, Seller shall provide Buyer withcopies of all such termination and assignment notices.

 

12.           PRORATIONS, CLOSINGPAYMENTS

 

12.1         Closing Party.  At Closing, the Parties shall pay thefollowing closing expenses:

 
| **Expense**                                                         | ** ** | **Paying  Party** |
|---------------------------------------------------------------------|------------|-------------------|
| ** **                                                          | ** ** | ** **        |
| Title  Insurance Commitment and Owner’s Title Insurance Policy |       | Buyer             |
|                                                                |       |              |
| Survey                                                              |       | Buyer             |

 

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| Title  Insurance Company Closing and Escrow Fees    |   | Seller |
|-----------------------------------------------------|--------|--------|
|                                                |   |   |
| Transfer  Taxes on Deed                             |   | Seller |
|                                                |   |   |
| Recording  Cost for Deed and Monetary Lien Releases |   | Buyer  |

 

12.2         Sales Taxes.  At Closing, any and all sales taxes, duties,levies or imposts payable by reason of the sale of the Property shall be paidby Seller to the extent such taxes are then due and payable.

 

12.3         Installment Assessments.  If, at the time of Closing, the Property isaffected by any assessment which is or may become payable in annualinstallments, then for the purpose of this Agreement, all the unpaidinstallments of any such assessment, including without limitation those whichare to become due and payable after Closing, shall be deemed liens on theProperty and shall be paid and discharged by Seller at or prior to Closing.

 

12.4         Tenant Deposits.  At the Closing, Seller shall pay to Buyer allTenant Deposits for the Property.

 

12.5         Real Estate Taxes.  At Closing, all real estate taxes generalassessments and municipal water and sewer rents assessed against the Propertyfor the tax year in which Closing occurs shall be apportioned between Sellerand Buyer as of the Closing Date.   Suchapportionment shall be based on the respective tax years for which such taxesare assessed, and on the most recent assessment of the Property and the thenapplicable tax rates.  Any “roll back”taxes payable in relation to any period tax abatement or relief or preferentialassessment with respect to the Property prior to the Closing Date shall be paidin full by Seller, whenever billed by the relevant taxing authority.

 

12.6         Utilities and Contracts.  Payments under the Contracts assumed by Buyerand charges for the supply of telephone, heat, steam, electric power, gas,lighting and any other utility service consumed at the Property for the month,or other relevant billing period, in which Closing takes place, shall beprorated between the parties as of the Closing Date.  Where possible, Seller shall obtain cutoffreadings for all utilities as of the Closing Date.  To the extent they are not available, thecost of such utilities shall be apportioned between the parties on the basis ofthe latest actual (not estimated) bill for such service and adjusted by theparties as necessary post-Closing.  Buyershall receive a credit for any of the foregoing items to the extent the sameare accrued but unpaid as of the Closing Date (whether or not due, owing ordelinquent as of the Closing Date), and Seller shall receive a credit to theextent any of the foregoing items shall have been paid prior to the ClosingDate to the extent the payment thereof specifically relates to any period oftime after the Closing Date.

 

12.7         Prorations.  (A)  Current Rents, fees and anyadditional charges and expenses payable under the Leases, all as and whenactually collected (whether such collection occurs prior to, on or after theClosing Date), water, sewer and utility charges and amounts payable under anyContract that is assigned to Buyer at Closing, and real estate taxes payablefor, or 

 

19

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leviedor assessed with respect to, the calendar year in which the Closing Dateoccurs, shall all be prorated as of 12:01 a.m. prevailing time on theClosing Date, on the basis of a 365-day year, with Buyer deemed the owner ofthe Property on the Closing Date.

 

(B)           Any delinquent rents or expense reimbursementsunder any current Lease collected by Seller or Buyer after the Closing shall bethe property of Buyer.

 

(C)           If any of the aforesaid prorations cannot becalculated accurately on the relevant Closing Date, either party owing theother party a sum of money based on proration(s) calculated after a ClosingDate shall promptly pay said sum to the other party, together with interestthereon at the rate of ten percent (10%) per annum from the date the invoice isdelivered to the date of payment, if payment is not made within thirty (30)days after delivery of a bill therefor.

 

12.8         Proration BackupInformation.  Seller shall calculate theadjustments and prorations called for by this Article and shall deliversuch calculations and all relevant back-up information to Buyer no less thanfive (5) Business Days prior to the Closing Date.  If all such information is not so delivered,then Buyer shall have the right, without limitation to Buyer’s other rights andremedies hereunder, to postpone the Closing until the fifth (5th) Business Dayafter Buyer’s receipt from Seller of all such information.

 

12.9         Audit Rights.  (A) Buyer or an independent auditordesignated by Buyer shall have the right to inspect and audit Seller’s booksand records related to the Property for calendar years 2004 through 2006.  Such rights shall be available to Buyer priorto Closing and for a period of two (2) years following Closing.  Such inspection and audit may be conducted byBuyer at any time during normal business hours upon prior written notice fromBuyer to Seller and shall not result in an unreasonable disruption of thebusiness of Seller.  If requested bySeller, the party performing such audit shall enter into a commerciallyreasonable confidentiality agreement regarding the disclosure of informationobtained during such audit, the terms of which agreement shall permitdisclosure of such information if required by law or in connection with legalprocess.

 

(B)           Buyer shall reimburse Seller for all reasonable costsincurred by Seller in participating in any such audit and in any audit orinvestigation of this transaction by the United States Securities and ExchangeCommission.

 

13.    DEFAULT

 

13.1         Buyer’s Default.  (A) If Seller complies with all of itsobligations under this Agreement, and any time after the Deposit has becomenon-refundable in accordance with Section 2.4 hereof, Buyer defaults inits obligation to complete Closing hereunder, then Seller shall have the rightat Closing to terminate this Agreement and to be paid the Deposit as liquidateddamages for such breach.  The partieshave agreed that Seller’s actual damages, in the event of a failure toconsummate this sale due to Buyer’s default, would be extremely difficult orimpossible to determine.  Afternegotiation, the parties have agreed that, considering all the circumstancesexisting on the date of this Agreement, the amount of the Deposit is areasonable estimate of the damages that Seller would incur in such event. Uponsuch termination, Seller and Buyer shall be released from all further liabilityand obligations hereunder, it being understood 

 

20

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thatSeller’s right to terminate this Agreement and to be paid the Deposit shall bethe sole remedy available to Seller in the event of any default by Buyerhereunder, Seller hereby waiving all other rights and remedies.

 

(B)           If this Agreement is terminated by Sellerpursuant to the foregoing provisions of Section 13.1, then any ReallocatedDeposit under a terminated Other Agreement that shall have been applied to theDeposit hereunder pursuant to Section 2.4(E) of such Other Agreement (i) shallbe refunded to Buyer if the aggregate Purchase Prices under and as defined inall Other Agreements under which Closing (as defined thereunder) shall haveoccurred, equals or exceeds the Threshold Aggregate Purchase Price, or (ii) shallbe paid to Seller if the aggregate Purchase Price under and as defined in allOther Agreements under which Closing (as defined thereunder) shall haveoccurred is less than the Threshold Aggregate Purchase Price.

 

13.2         Seller’s Default.  If Buyer complies with all of its obligationsunder this Agreement, and if on the date of this Agreement or at the time ofClosing title to the Property is not as required by this Agreement, or if, atany time, Seller fails to complete Closing or otherwise defaults in theobservance or performance of any of its other material agreements orobligations hereunder, or if any of Seller’s representations and warrantieshereunder is untrue or incorrect (each, a “Seller Default”), then, inany such case, Buyer shall have the right, in addition to all its other rightsand remedies at law or in equity or as set forth herein, including withoutlimitation the right of specific performance of this Agreement (in which eventBuyer shall have the right to collect all attorneys fees and costs and allother costs and expenses incurred in connection with any such specificperformance action), to terminate its obligations hereunder.  If Buyer so elects to terminate itsobligations hereunder, then the Deposit shall be refunded promptly to Buyer,and Seller, upon demand of Buyer, shall reimburse Buyer for all costs andexpenses incurred by Buyer in connection with this transaction including,without limitation, costs and expenses incurred for legal counsel, surveys,engineering tests, environmental studies, feasibility studies, due diligence,permit applications and title searches provided that Buyer delivers to Sellerall reasonable supporting documentation evidencing such costs andexpenses.  If the remedy of specificperformance is not available, Buyer shall have the right to seek damages(including, without limitation, all attorneys fees and costs and all othercosts and expenses incurred in connection with any cause of action) againstSeller.  Notwithstanding anything hereinto the contrary, Seller’s obligation to reimburse Buyer for, and Buyer’s rightto recover, damages against Seller hereunder shall be limited to the amount of$287,020.50

 

14.    BROKERS

 

14.1         Brokers.  Seller and Buyer hereby represent and warrantto the other that they have not engaged the services of any agent, broker orsimilar party in connection with this transaction.  Seller and Buyer each hereby agree toindemnify one another for any claim for brokerage commissions or the likeasserted by any person or entity claiming to have been engaged by the partyagainst whom indemnity is sought.

 

15.    NOTICES

 

15.1         Notices.  Any notices required or permitted to be givenhereunder shall be given in writing and shall be delivered (a) in person, (b) bycertified mail, postage prepaid, return 

 

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receiptrequested, (c) by a commercial overnight courier that guarantees next daydelivery and provides to the sender a delivery receipt or (d) by legiblefacsimile (followed by hard copy delivered in accordance with precedingsubsections (a)-(c)). Any notice shall be effective only upon receipt (orrefusal by the intended recipient to accept delivery).  Such notices shall be addressed as follows:

 
| Seller:                   |   |                                                                                                                                                                               |   |
|---------------------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
|                      |   | c/o  Capstone Properties                                                                                                                                                           |
|                      |   | 431  Office Park Drive                                                                                                                                                             |
|                      |   | Birmingham,  AL 35223                                                                                                                                                              |
|                      |   | Attention:  Rob Howland                                                                                                                                                            |
|                      |   | Fax:  205-414-6455                                                                                                                                                                 |
|                      |   |                                                                                                                                                                               |
| With  a required copy to: |
|                      |   |                                                                                                                                                                               |
|                      |   | Hand  Arendall, L.L.C.                                                                                                                                                             |
|                      |   | 107  St. Francis Street                                                                                                                                                            |
|                      |   | 3000  AmSouth Bank Building                                                                                                                                                        |
|                      |   | Mobile,  AL 36602                                                                                                                                                                  |
|                      |   | Attention:  Christopher M. Gill                                                                                                                                                    |
|                      |   | Fax:  251-544-1615                                                                                                                                                                 |
|                      |   |                                                                                                                                                                               |
| Buyer:                    |   | College  Park Investments, LLC                                                                                                                                                     |
|                      |   | c/o  GMH Communities Trust                                                                                                                                                         |
|                      |   | 10  Campus Boulevard                                                                                                                                                               |
|                      |   | Newtown  Square, PA 19073                                                                                                                                                          |
|                      |   | Attention:  Joseph M. Macchione                                                                                                                                                    |
|                      |   | Fax:  610-359-0572                                                                                                                                                                 |
|                      |   |                                                                                                                                                                               |
| With  a required copy to: |
|                      |   |                                                                                                                                                                               |
|                      |   | Morgan,  Lewis & Bockius LLP1701  Market StreetPhiladelphia,  PA 19103-2921Attention:  Richard  J. Sabat, EsquireTelephone:  (215) 963-5357Fax: (877)  432-9652 |

 

or tosuch other address as either party may from time to time specify in writing tothe other party.

 

16.    MISCELLANEOUS

 

16.1         Entire Agreement.  This Agreement sets forth all of theagreements, representations, warranties and conditions of the parties heretowith respect to the subject matter hereof, and supersedes all prior orcontemporaneous letters of intent, agreements, representations, warranties andconditions. This Agreement, together with the Exhibits, 

 

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Schedulesand Rider hereto contain all representations, warranties and covenants made byBuyer and Seller and constitutes the entire understanding between the partieshereto with respect to the subject matter hereof. Any correspondence, memorandaor agreements between the parties are not binding on or enforceable against anyparty, and are superseded and replaced in total by this Agreement together withthe Exhibits, Schedules and Rider attached hereto.

 

16.2         Amendments.  This Agreement may be amended or modifiedonly by a written instrument signed by Buyer and Seller.

 

16.3         Time.  Time is of the essence in the performance ofeach of the parties’ respective agreements and obligations contained herein.

 

16.4         Attorneys’ Fees.  If either party hereto fails to perform anyof its obligations under this Agreement or if any dispute arises between theparties hereto concerning the meaning or interpretation of any provision ofthis Agreement, then the defaulting party or the party not prevailing in suchdispute, as the case may be, shall pay any and all costs and expenses incurredby the other party on account of such default and/or in enforcing orestablishing its rights hereunder, including, without limitation, court costs(including costs of any trial or appeal therefrom) and reasonable attorneys’fees and disbursements.

 

16.5         Assignment.  Buyer may assign to any Affiliate of Buyerall of Buyer’s rights and obligations under this Agreement without Seller’sapproval; provided, however, that Buyer shall not be released or dischargedfrom all obligations and liabilities hereunder. Buyer shall not assign Buyer’s rights and obligations under thisAgreement to any person or entity that is not an Affiliate of Buyer withoutSeller’s prior written consent, which consent may be withheld in Seller’s solediscretion.

 

16.6         Counterparts.  This Agreement may be executed in separatecounterparts, all of which taken together shall constitute one and the sameinstrument.

 

16.7         Governing Law.  This Agreement and all issues arisinghereunder shall be governed by the laws of the state in which the Property islocated, except that the Escrow Agreement and all issues arising thereundershall be governed by the laws of the Commonwealth of Pennsylvania.

 

16.8         Waiver of Trial by Jury.  EACH PARTY HEREBY WAIVES, IRREVOCABLY ANDUNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OFOR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED INCONNECTION HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFFOR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.

 

16.9         No Third-PartyBeneficiary.  The provisions of this Agreementare not intended to benefit any Person who is not a party to this Agreement.

 

16.10       Severability.  If anyprovision of this Agreement, or the application thereof to any person, place orcircumstance, shall be held by a court of competent jurisdiction to be invalid,

 

23

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unenforceableor void, the remainder of this Agreement and such provisions as applied toother persons, places and circumstances shall remain in full force and effect.

 

16.11       Drafts Not an Offer to Enter into a LegallyBinding Contract.  The parties hereto agree thatthe submission of a draft of this Agreement by one party to another is notintended by either party to be an offer to enter into a legally bindingcontract with respect to the purchase and sale of the Property.  The parties shall be legally bound withrespect to the purchase and sale of the Property pursuant to the terms of thisAgreement only if and when the parties have been able to negotiate all of theterms and provisions of this Agreement in a manner acceptable to each of theparties in their respective sole discretion, including, without limitation, allof the Exhibits and Schedules and the Rider hereto, and Seller and Buyer havefully executed and delivered to each other a counterpart of this Agreement,including, without limitation, all Exhibits and Schedules and the Rider hereto.

 

16.12       Consents.  Anyconsent, determination, election or approval required to be obtained, orpermitted to be given, by or of any party hereunder, shall be granted, withheldor made (as the case may be) by such party in the exercise of such party’s soleand absolute discretion, except as otherwise set forth herein.

 

16.13       Survival. Notwithstanding any presumption to the contrary, all agreements,covenants and conditions contained in this Agreement which, by their nature,impliedly or expressly involve observance or performance in any respect afterthe Closing, or which cannot be ascertained to have been fully observed orperformed until after Closing, and all representations and warranties of Sellercontained in this Agreement, shall survive Closing and shall not merge with anyClosing Document or with the conveyance of the Property.

 

16.14       No Implied Easements.  Nothing shown on any subdivision plan now orhereafter recorded, on any plan referred to in this Agreement or in the Deed,or on any other plan, shall create or constitute an additional covenant,representation or agreement of Buyer or create a lien, easement, right of wayor encumbrance with respect to the Property.

 

16.15       Joint Undertaking.  In addition to the obligations expresslyrequired to be performed hereunder by Seller and Buyer, each party agrees tocooperate with the other and to perform such other acts and to execute,acknowledge and deliver, before and after the Closing, such other instruments,documents and materials as a party may reasonably request and as shall benecessary in order to effect the consummation of the transactions contemplatedhereby and to vest title to the Property in Buyer or its assignees or nominees;provided that no such other instrument, document or material shall eitherextend or enlarge the obligations of the non-requesting party beyond theexpress undertakings of this Agreement or shall require or could require thenon-requesting party to make any payment or expend any funds which are notexpressly provided for herein.

 

17.    DEFINITIONS

 

17.1         Definitions.  As used in this Agreement, the followingterms shall have the meanings set forth below, which meanings shall beapplicable equally to the singular and plural of the terms defined:

 

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“Affiliate”shall mean with respect to any Person (i) any other Person that directlyor indirectly through one or more intermediaries controls or is controlled byor is under common control with such Person, (ii) any other Person owningor controlling ten percent (10%) or more of the outstanding voting securitiesof or other ownership interests in such Person, (iii) any officer,director or partner of such Person, or (iv) if such Person is an officer,director or partner, any other company for which such Person acts in any suchcapacity.

 

“BusinessDay” shall mean any day other than a Saturday, a Sunday, or a federalholiday recognized by the Federal Reserve Bank of New York.

 

“Claim”or “Claims” shall mean any and all suits, actions, proceedings,investigations, demands, claims, liabilities, fines, penalties, liens,judgments, losses, injuries and damages.

 

“ClosingDocuments” shall mean all the documents to be executed and delivered by theparties at each Closing.

 

“GovernmentalAuthority” shall mean any federal, state, county or municipal government, orpolitical subdivision thereof, any governmental agency, authority, board,bureau, commission, department, instrumentality, or public body, or any courtor administrative tribunal.

 

“HazardousSubstance” shall mean materials, wastes or substances that are (A) includedwithin the definition of any one or more of the terms “hazardous substances,” “hazardousmaterials,” “toxic substances,” “toxic pollutants” and “hazardous waste” in theComprehensive Environmental Response, Compensation and Liability Act of 1980,as amended (42 U.S.C. Section 9601, et seq.), the Resource Conservationand Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.), the CleanWater Act (33 U.S.C. Section 1251, et seq.), the Safe Drinking Water Act(14 U.S.C. Section 1401, et seq.), the Hazardous Materials TransportationAct (49 U.S.C. Section 1801, et seq.), and the Toxic Substance Control Act(15 U.S.C. Section 2601, et seq.) and the regulations promulgated pursuantto such laws, (B) regulated or classified as hazardous or toxic, underfederal, state or local environmental laws or regulations, (C) petroleum, (D) asbestosor asbestos-containing materials, (E) polychlorinated biphenyls, (F) flammableexplosives or (G) radioactive materials.

 

“Lease”or “Leases” shall mean all or any of the Existing Leases and New Leases,collectively.

 

“NewLeases” shall mean those leases, license agreements and occupancyagreements with respect to the Property which are entered into after theEffective Date in accordance with the terms of this Agreement, as the same maybe amended or modified from time to time in accordance with the terms of thisAgreement.

 

“Parties”shall mean Seller and Buyer and their respective successors and assigns.

 

“Person”shall mean any individual, partnership, corporation, limited liability company,trust or other legal entity and any governmental authority, agency or body.

 

“TitleInsurance Policy” shall mean a standard 1992 ALTA owner’s policy of title 

 

25

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insurancewith respect to the Property, in the form customary in the county in which theProperty is located, showing title to the Property to be vested in Buyer,subject only to the Permitted Encumbrances, with affirmative insurance as tocontiguity of lots and the absence of any gaps and gores (if the Propertyincludes more than one lot), with additional coverage to the effect that nofinancing statements or other personal property liens or encumbrances shallhave been filed or recorded against those portions of the Property thatconstitute personal property under applicable law, and with a coverage amountequal to the Purchase Price.

 

17.2         Terms Generally.  For all purposes of this Agreement, except asotherwise expressly provided or unless the context otherwise requires, thewords “herein,” “hereof” and “hereunder” and other words of similar importrefer to this Agreement as a whole and not to any particular Article, Section orother subdivision, the words “including” and “include” and other words ofsimilar import shall be deemed to be followed by the phrase “withoutlimitation,” “Property” includes each portion of the Property and eachestate and interest therein, “Agreement” includes these presents assupplemented or amended from time to time by written agreement(s) entered intoby Seller and Buyer, “Seller” includes each Seller’s successors andassigns,  “Buyer” includes Buyer’ssuccessors and assigns and “parties” means Buyer and Seller.  Whenever the context may require, any pronounused herein shall include the corresponding masculine, feminine or neuterforms, and the singular form of pronouns or nouns shall include the plural andvice versa.  The captions of the sectionsof this Agreement are for convenience only and have no meaning with respect tothis Agreement or the rights or obligations of the parties hereto.

 

[Execution Pages Follow]

 

26

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INWITNESS WHEREOF, the parties have executed this Agreement the date and yearfirst above written.

 

 
|   | [Affiliate  of Capstone Properties]                                    |
|--------|------------------------------------------------------------------------|
|   |                                                                   |   |
|   | By:                                                                    |   |   |
|   |                                                                   |   |   |
|   |                                                                   | By: |   |   |
|   |                                                                   |   | Name:  Rob Howland |
|   |                                                                   |   | Title:  Senior Vice President |
|   |                                                                   |   |
|   | College  Park Investments, LLC, a Delaware   limited liability company |
|   |                                                                   |
|   |                                                                   |
|   | By:                                                                    |   |   |
|   |                                                                   | Name:  Joseph M. Macchione |   |
|   |                                                                   | Title:  Vice President |   |
|        |                                                                        |  |  |  |  |

 

27

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Exhibit A

 

[Special Warranty Deed for each property to be attached]

 

----

 

EXHIBIT “A”

 

Land

 

----

 

EXHIBIT “B”

 

Permitted Encumbrances

 

----

 

Exhibit B

 

BILL OF SALE

 

On               ,2006,                           (“Seller”), in consideration of Ten Dollars ($10.00) and other valuableconsideration received from College Park Investments, LLC, a Delaware limitedliability company (“Buyer”), receipt of which is hereby acknowledged,hereby grants, bargains, sells and delivers to Buyer, its successors andassigns, all Seller’s right, title and interest in and to Warranties, Reportsand Plans, Books and Records, Licenses and Permits, Trade Name, Trademarks andthe Personal Property (as those terms are defined in a certain Agreement ofSale between Seller and Buyer, dated June 12, 2006), including withoutlimitation the personal property described in Exhibit “A” attachedhereto and made a part hereof (collectively, “Property”), to have and tohold the Property unto the Buyer, its successors and assigns, forever.  Notwithstanding the foregoing, Buyer, by itsacceptance of this instrument, acknowledges and agrees that any use of theTrade Name shall be made strictly in accordance with the terms and conditionsof the Agreement of Sale.

 

Seller,for itself, its successors and assigns, hereby represents, warrants andcovenants to Buyer, its successors and assigns, that Seller is the lawful ownerof all the Property, that the Property is free from all pledges, securityinterests, mortgages, liens and encumbrances, and that Seller, its successorsand assigns, shall forever warrant and defend good and clear title to theProperty against all claims and demands of all persons whatsoever.

 

Inwitness whereof, Seller has executed and delivered this Bill of Sale as of thedate first above written.

 

 
|   | [Affiliate  of Capstone Properties] |
|--------|-------------------------------------|
|   |                                |   |
|   | By:                                 |   |   |
|   |                                |   |   |
|   |                                | By: |   |   |
|   |                                |   | Name:  Rob Howland |   |
|   |                                |   | Title:  Senior Vice President |   |

 

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EXHIBIT “A”

 

2

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Exhibit C

 

ASSIGNMENT OF CONTRACTS

 

ThisAssignment of Contracts (“Assignment”) is entered into as of           ,2006 by                            ,with offices at 431 Office Park Drive, Birmingham, Alabama 35223 (“Seller”),and College Park Investments, LLC, a Delaware limited liability company, withoffices at 10 Campus Boulevard, Newtown Square, Pennsylvania 19073 (“Buyer”).  For valuable consideration, the partieshereto, each intending to be legally bound and to bind their respectivesuccessors and assigns, hereby covenant and agree as follows.

 

1.  Seller hereby assigns, transfers and setsover unto Buyer, and Buyer hereby accepts and assumes, all Seller’s rights,title and interest in and to those certain contracts, copies of which areattached hereto as Exhibit “A” and made a part hereof (“Contracts”),which Contracts pertain to certain real property located at                            ,which Seller has contemporaneously herewith conveyed unto Buyer.

 

2.  Seller represents and warrants to Buyer that:(a) the Contracts have not been assigned previously and are not subject toany lien or encumbrance, (b) all sums required to be paid as of the datehereof under the Contracts have been paid or will be paid by Seller, and (c) toSeller’s knowledge, the copies of the Contracts which are attached hereto aretrue correct and complete and constitute the entire agreement between Sellerand the respective contractors under the Contracts.

 

3.  Buyer hereby assumes and agrees to performall agreements and obligations of Seller with respect to the Contracts arisingon and after the date hereof.  Sellershall be responsible for the observance and performance of all its agreementsand obligations under the Contracts arising prior to the date hereof.

 

4.  Seller shall defend, protect, indemnify andsave harmless Buyer from and against any and all liabilities, suits, actions,losses, damages, costs and expenses, including without limitation counsel fees,suffered or incurred by Buyer resulting from or relating to any failure bySeller to observe or perform any of its agreements or obligations under theContracts prior to the date hereof.

 

5.  Buyer shall defend, protect, indemnify andsave harmless Seller from and against any and all liabilities, suits, actions,losses, damages, costs and expenses, including without limitation counsel fees,suffered or incurred by Seller resulting from or relating to any failure byBuyer to observe or perform any of its agreements or obligations under theContracts on or after the date hereof.

 

6.  This Assignment may be executed in any numberof counterparts, each of which shall be deemed to be an original and all ofwhich shall constitute one and the same agreement.

 

[Execution pages follow.]

 

----

 

INWITNESS WHEREOF, Seller and Buyer have executed this Assignment as of the datefirst above written.

 
|   | [Affiliate  of Capstone Properties]                                    |
|--------|------------------------------------------------------------------------|
|   |                                                                   |   |
|   | By:                                                                    |   |   |
|   |                                                                   |   |   |
|   |                                                                   | By: |   |   |
|   |                                                                   |   | Name:  Rob Howland |   |
|   |                                                                   |   | Title:  Senior Vice President |   |
|   |                                                                   |   |
|   |                                                                   |
|   | College  Park Investments, LLC, a Delaware   limited liability company |
|   |                                                                   |   |
|   |                                                                   |   |
|   | By:                                                                    |   |   |
|   |                                                                   | Name: |   |
|   |                                                                   | Title: |   |
|        |                                                                        |  |  |  |  |  |

 

2

----

 

EXHIBIT “A”

 

3

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Exhibit D

 

ASSIGNMENT AND ASSUMPTION OF LEASES

 

ThisAssignment and Assumption of Leases (“Assignment”) is entered into as of               ,2006, by                                 ,with offices at 431 Office Park Drive, Birmingham, Alabama 35223 (“Seller”),and College Park Investments, LLC, a Delaware limited liability company, withoffices at 10 Campus Boulevard, Newtown Square, Pennsylvania 19073 (“Buyer”).  For valuable consideration, the partieshereto, each intending to be legally bound and to bind their respectivesuccessors and assigns, hereby covenant and agree as follows.

 

1.  Seller hereby assigns, transfers and setsover unto Buyer, and Buyer hereby accepts, all Seller’s rights, title andinterest in and to those certain leases, a schedule of which is attachedhereto as Exhibit “A” and made a part hereof (“Leases”),which Leases pertain to various portions of that certain real property locatedat                               ,which Seller has contemporaneously herewith conveyed unto Buyer. ThisAssignment includes (i) all sureties and guaranties of the leases, (ii) theright to collect from all tenants under the Leases (collectively, “Tenants”)all rents and other payments whether heretofore or hereafter payable, (iii) theright to enforce all obligations of the Tenants under the Leases and allsureties and guaranties, and (iv) all security deposits paid by thetenants under the Leases.

 

2.  Seller represents and warrants to Buyer thatSeller is the landlord under the Leases, and the Leases, except with respect toSeller’s former financing facilities, the liens of which are being releasedcontemporaneous herewith, have not been assigned previously and are not subjectto any lien or encumbrance.

 

3.  Buyer hereby assumes and agrees to performall agreements and obligations of the landlord with respect to the Leasesarising on and after the date hereof. Seller, and not Buyer, shall be responsible for the observance andperformance of all agreements and obligations of the landlord with respect tothe Leases arising prior to the date hereof. Buyer, and not Seller, shall be responsible for the observance andperformance of all agreements and obligations of the landlord with respect to theLeases arising on or after the date hereof.

 

4.  Seller shall defend, protect, indemnify andsave harmless Buyer from and against any and all liabilities, suits, actions,losses, damages, costs and expenses, including without limitation counsel fees,suffered or incurred by Buyer resulting from or relating to any failure bySeller to observe or perform any of its agreements or obligations hereunder orunder the Leases prior to the date hereof.

 

5.  Buyer shall defend, protect, indemnify andsave harmless Seller from and against any and all liabilities, suits, actions,losses, damages, costs and expenses, including, without limitation counselfees, suffered or incurred by Seller resulting from or relating to any failureby Buyer to observe or perform any of its agreements or obligations hereunderor under the Leases on or after the date hereof.

 

6.  This Assignment may be executed in any numberof counterparts, each of which shall be 

 

----

 

deemedto be an original and all of which shall constitute one and the same agreement.

 

2

----

 

INWITNESS WHEREOF, Seller and Buyer have executed this Assignment as of the datefirst above written.

 
|   | [Affiliate  of Capstone Properties]                                    |
|--------|------------------------------------------------------------------------|
|   |                                                                   |   |
|   | By:                                                                    |   |   |
|   |                                                                   |   |   |
|   |                                                                   | By: |   |   |
|   |                                                                   |   | Name:  Rob Howland |   |
|   |                                                                   |   | Title:  Senior Vice President |
|   |                                                                   |
|   |                                                                   |
|   | College  Park Investments, LLC, a Delaware   limited liability company |
|   |                                                                   |
|   |                                                                   |
|   | By:                                                                    |   |   |
|   |                                                                   | Name: |   |
|   |                                                                   | Title: |   |
|        |                                                                        |  |  |  |  |

 

3

----

 

EXHIBIT “A”

 

4

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Exhibit E

 

GENERAL ASSIGNMENT

 

Effective                 ,2006,                   (“Seller”), in consideration of Ten Dollars ($10.00), and other valuableconsideration, the receipt of which is hereby acknowledged, intending to belegally bound and to bind its successors and assigns, hereby sells, assigns,transfers and sets over to College Park Investments, LLC, a Delaware limitedliability company (“Buyer”), its successors and assigns, all of Seller’sright, title and interest of, in and to                                                                                                                             .

 

Seller,for itself, its successors and assigns, hereby covenants and warrants to Buyer,its successors and assigns, that Seller is the lawful owner of all the                                                      ,that the                                                  is free from all pledges, security interests and encumbrances, and that Seller,shall forever warrant and defend the good and clear title to the                                                against all claims and demands of all persons whatsoever.

 

INWITNESS WHEREOF, Seller has executed and delivered this Assignment as of thedate first above written.

 

 
|   | [Affiliate  of Capstone Properties] |
|--------|-------------------------------------|
|   |                                |   |
|   | By:                                 |   |   |
|   |                                |   |   |
|   |                                | By: |   |   |
|   |                                |   | Name:  Rob Howland |
|   |                                |   | Title:  Senior Vice President |
|        |                                     |  |  |  |  |

 

----

 

Exhibit F

 

Internal Revenue Code

Section 1445(b)(2)

Nonforeign Affidavit

(FIRPTA)

 

              ,2006

 

Forpurposes of Section 1445(b)(2) of the Internal Revenue Code, asamended, the undersigned, as Senior Vice President of Capstone DevelopmentCorp., an Alabama corporation, which is a general partner of                                 (“Transferor”), hereby certifies, under penalty of perjury, to CollegePark Investments, LLC, a Delaware limited liability company, that (i) Transferor’sUnited States taxpayer identification number is 63-1057148, (ii) Transferor’saddress is 431 Office Park Drive, Birmingham, Alabama 35223, and (iii) Transferoris not a “foreign person”, within the meaning of said Section 1445(b)(2),as amended.  Transferor understands thatthis Affidavit may be disclosed to the Internal Revenue Service, and that anyfalse statement made herein could be punished by fine, imprisonment or both.

 

 
|   | [Affiliate  of Capstone Properties] |
|--------|-------------------------------------|
|   |                                |   |
|   | By:                                 |   |   |
|   |                                |   |   |
|   |                                | By: |   |   |
|   |                                |   | Name:  Rob Howland |   |
|   |                                |   | Title:  Senior Vice President |   |
|        |                                     |  |  |  |  |  |

 

 

Swornto and subscribed

beforeme this         day

of                ,      .

 

 
|                    |   |
|-------------------------|--------|
| Notary  Public          |
| My  Commission Expires: |

 

----

 

Exhibit G

 

**DESIGNATION AGREEMENT**

 

THISDESIGNATION AGREEMENT (the “Agreement”) is entered into as of                      ,2006, by and between                              (“Seller”), College Park Investments, LLC, a Delaware limited liabilitycompany (“Buyer”) and Commonwealth Land Title Insurance Company (“TitleInsurance Company”).

 

**1.  RECITALS**

 

a.   Pursuant to that certain Agreement of Sale,dated June 12, 2006 (“Agreement”), Seller has agreed to sell to Buyer, andBuyer has agreed to buy from Seller (“Transaction”), that certain propertylocated at                                       (“Property”).

 

b.   Section 6045(e) of the UnitedStates Internal Revenue Code and the regulations promulgated thereunder(collectively, the “Reporting Requirements”) require an information returnto be made to the United States Internal Revenue Service, and a statement to befurnished to Seller, in connection with the Transaction.

 

c.   Pursuant to Section 2.2(b)(i) ofthe Agreement, an escrow has been opened with Title Insurance Company [Escrow No.                            **]** through which the Transaction will be oris being accomplished.  Title InsuranceCompany is either (i) person responsible for closing the Transaction (asdescribed in the Reporting Requirements) or (ii) the disbursing title orescrow company that is most significant in terms of gross proceeds disbursed inconnection with the Transaction (as described in the Reporting Requirements).

 

d.   Seller, Buyer and Title Insurance Companydesire to designate Title Insurance Company as the “Reporting Person” (asdefined in the Reporting Requirements) with respect to the Transaction.

 

**2.     AGREEMENT**

 

NOW,THEREFORE, for good and valuable consideration, the receipt and adequacy ofwhich are hereby acknowledged, Seller, Buyer and Title Insurance Company agreeas follows:

 

a.   Title Insurance Company is hereby designatedas the Reporting Person for the Transaction. Title Insurance Company shall perform all duties that are required bythe Reporting Requirements to be performed by the Reporting Person for theTransaction.

 

b.   Seller and Buyer shall furnish to TitleInsurance Company, in a timely manner, any information requested by TitleInsurance Company, and necessary, for Title Insurance Company, to perform itsduties as Reporting Person for the transaction.

 

c.   Seller hereby certifies to Title InsuranceCompany, under penalties of perjury, that Seller’s correct taxpayeridentification number is                       .

 

----

 

d.    The correct names and addresses of theparties hereto are as set forth above.

 

e.   Each of the parties hereto shall retain thisAgreement for a period of four (4) years following the calendar yearduring which the date of closing of the Transaction occurs.

 

f.   This Agreement may be executed in any numberof counterparts, each of which shall be deemed to be an original and all ofwhich shall constitute one and the same agreement.

 

g.   This Agreement shall be governed by andconstrued in accordance with the laws of the state in which the Property islocated.

 

INWITNESS WHEREOF, the parties have entered into this Agreement as of the dateand year first above written.

 

 
|   | [Affiliate  of Capstone Properties]                                    |
|--------|------------------------------------------------------------------------|
|   |                                                                   |
|   | By:                                                                    |   |   |
|   |                                                                   |   |   |
|   |                                                                   | By: |   |   |
|   |                                                                   |   | Name:  Rob Howland |
|   |                                                                   |   | Title:  Senior Vice President |
|   |                                                                   |
|   |                                                                   |
|   | College  Park Investments, LLC, a Delaware   limited liability company |
|   |                                                                   |   |
|   |                                                                   |   |
|   | By:                                                                    |   |   |
|   |                                                                   | Name: |   |
|   |                                                                   | Title: |   |
|   |                                                                   |
|   |                                                                   |
|   | Commonwealth  Land Title Insurance   Company                           |
|   |                                                                   |
|   |                                                                   |
|   | By:                                                                    |   |   |
|   |                                                                   | Name: |   |
|   |                                                                   | Title: |   |
|        |                                                                        |  |  |  |  |  |

 

2

----

 

Exhibit H

 

[Affiliate of Capstone Properties]

431 Office Park Drive

Birmingham, Alabama 35223

 

                   ,2006

 

Re:                               Lease, dated                  ,between                                       and                    (“Lease”)

 

DearSirs/Madams:

 

Wehave sold the property, of which your leased premises are a part, and haveassigned your Lease to College Park Investments, LLC.

 

Fromand after the date of this notice, all rent payments should be made to theorder of                                      and transmitted to:

 

 
|   | [Affiliate  of Capstone Properties]                                    |
|--------|------------------------------------------------------------------------|
|   |                                                                   |   |
|   | By:                                                                    |   |   |
|   |                                                                   |   |   |
|   |                                                                   | By: |   |   |
|   |                                                                   |   | Name:  Rob Howland |   |
|   |                                                                   |   | Title:  Senior Vice President |   |
|   |                                                                   |   |
|   |                                                                   |   |
|   | College  Park Investments, LLC, a Delaware   limited liability company |
|   |                                                                   |   |
|   |                                                                   |   |
|   | By:                                                                    |   |   |
|   |                                                                   | Name: |   |
|   |                                                                   | Title: |   |
|        |                                                                        |  |  |  |  |  |

 

----

 

Exhibit I

 

[Affiliate of Capstone Properties]

431 Office Park Drive

Birmingham, Alabama 35223

 

            ,2006

 

Re:                                         ,dated                  ,between                    and                     (“Contract”)

 

DearSirs/Madams:

 

Wehave sold the property, to which your Contract applies, and have assigned yourContract to                                                .

 
|   | [Affiliate  of Capstone Properties]                                    |
|--------|------------------------------------------------------------------------|
|   |                                                                   |
|   | By:                                                                    |   |   |
|   |                                                                   |   |   |
|   |                                                                   | By: |   |   |
|   |                                                                   |   | Name:  Rob Howland |
|   |                                                                   |   | Title:  Senior Vice President |
|   |                                                                   |
|   |                                                                   |
|   | College  Park Investments, LLC, a Delaware   limited liability company |
|   |                                                                   |
|   |                                                                   |
|   | By:                                                                    |   |   |
|   |                                                                   | Name: |
|   |                                                                   | Title: |
|        |                                                                        |  |  |  |  |  |

 

----

 

Schedule 1.1.8

 

Trademark

 

 

----

 

Schedule 4.2

 

Seller Deliverables

 

1.                                       **Bankruptcy/Default/WorkoutHistory**– A detailed narrative of any bankruptcy filings, foreclosure proceedings orsignificant loan modifications involving Seller.  If no such events have occurred, pleaseprovide a statement to that effect.

 

2.                                       **FinancialInformation** – Current, audited (if available) financial statements for Seller.

 

3.                                       **PropertyLevel Information** – Originals or legible copies of the following property levelinformation:

 

a.                                       A title report for eachparcel comprising the Property issued by a national title insurance company,together with complete legible copies of all documents reference therein.

b.                                      ALTA as-built surveysand legal descriptions of each parcel comprising the Property in insurableform.

c.                                       Real estate tax billsfor each parcel comprising the Property for the three most recently ended taxyears and, the extent available, for the current tax year.  Also, the most recent tax assessment for eachparcel comprising the Property, any current or threatened bettermentassessments, and complete files on any pending tax appeal proceedings.

d.                                      A detailed listing ofall capital expenditures on the Property made during the last three years.

e.                                       All existing andproposed leases, lease proposals and standard lease forms.

f.                                         All service contracts,management agreements, leasing agreements, reciprocal easement and/or operatingagreements, common area maintenance agreements, option agreements, landpurchase agreements and other agreements relating to the Property, includingall amendments thereto.

g.                                      Any environmental,asbestos, lead paint, engineering and other physical reports of the Property inSeller’s possession or obtainable by Seller.

h.                                      Any appraisals of theProperty completed within the past three years.

i.                                          Operating statementsfor the Property for the two most recently ended calendar years, and operatingstatements for the Property through the most recently ended calendar month ofthe current calendar year.  Auditedfinancial statements for the Property (if available) for the three mostrecently ended calendar years.

j.                                          Rent-rolls for theProperty for the past three months, identifying any rental concessionscurrently in effect.

k.                                       A schedule of alllicenses, permits (including grading, building and other permits for any workcurrently in progress), certificates of occupancy, etc. for the Propertycurrently in effect together with copies thereof and of all amendments thereto.

 

----

 

l.                                          Zoning complianceletters of governmental authorities and/or similar evidence that the Propertyis in compliance with zoning, subdivision and other land use requirements.

m.                                    Utility bills for theProperty for the past twenty-four months, which will be made available on site.

n.                                      An inventory of allpersonal property at the Property.

o.                                      Complete files anddetails on any pending or threatened litigation at or affecting the Property.

p.                                      The current year’s operating,leasing and capital budget for the Property and a proposed operating, leasingand capital budget for the first 12 months after closing.

q.                                      As-built plans andspecifications for the Property together with a full set of soil reports.

r.                                         An incident report forthe Property for the past twenty-four months.

s.                                       A list of names of allarchitects and engineers and all major subcontractors, materialmen andsuppliers used in construction and development of the Property, to the best ofSeller’s capability.

 

t.                                         Loss runs for any andall insurance claims for the history of the Property.

 

2

----

 

Schedule 4.3(B)

 

Other Agreements

 
| **Property**                                                                                    | ** ** | **Seller**                                         | ** ** | **Purchase Price** | ** **    | **Deposit** |
|-------------------------------------------------------------------------------------------------|------------|----------------------------------------------------|------------|-------------------------|---------------|-------------|
| ** **                                                                                      | ** ** | ** **                                         | ** ** | ** **              | ** **    | ** **  |
| Capstone Commons Apartments2501 Abbott RoadEast Lansing, MI 48823-1415                          |       | University Commons-East  Lansing, Ltd.             |       | $                       | 22,700,000.00 |        | $ | 459,514.17 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons Athens1000 Lakeside DriveAthens, GA 30605                                    |       | Capstone Commons-Athens, Ltd                       |       | $                       | 17,950,000.00 |        | $ | 363,360.32 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons Baton Rouge4600 Burbank DriveBaton Rouge, LA 70820                           |       | University Commons-Baton  Rouge, Ltd.              |       | $                       | 18,950,000.00 |        | $ | 383,603.24 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons Bloomington1150 Clarizz BoulevardBloomington, IN 47401                       |       | University  Commons-Bloomington, IN., Ltd.         |       | $                       | 28,450,000.00 |        | $ | 575,910.93 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons College  Station –   Phase I950 Colgate DriveCollege Station, TX 77840  |       | University Commons-College  Station, Ltd.          |       | $                       | 17,700,000.00 |        | $ | 358,299.60 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons College  Station –   Phase II950 Colgate DriveCollege Station, TX 77840 |       | University Commons-College  Station Phase II, Ltd. |       | $                       | 6,350,000.00  |        | $ | 128,542.51 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons Columbia800 Alexander RoadCayce, SC 29033                                    |       | University Commons-Columbia,  S.C., L.P.           |       | $                       | 19,450,000.00 |        | $ | 393,724.70 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons Eugene90 Commons DriveEugene, OR 97401                                       |       | University Commons-Eugene,  OR., Ltd.              |       | $                       | 22,450,000.00 |        | $ | 454,453.44 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons Lexington845 Red Mile RoadLexington, KY 40504                                |       | University Commons-Lexington,  KY., Ltd.           |       | $                       | 21,450,000.00 |        | $ | 434,210.53 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons Oxford5262 Brown RoadOxford, OH 45056                                        |       | University Commons-Ohio, Ltd.                      |       | $                       | 20,500,000.00 |        | $ | 414,979.76 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons Starkville1000 Campus View DriveStarkville, MS 39759                         |       | University Commons-Starkville,  Ltd.               |       | $                       | 10,399,900.00 |        | $ | 210,524.29 |
|                                                                                            |       |                                               |       |                    |          |        |
| University Commons Tuscaloosa301 Helen Keller Blvd.Tuscaloosa, AL 35404                         |       | University Commons-Tuscaloosa,  Ltd.               |       | $                       | 19,700,100.00 |        | $ | 398,787.44 |

 

----

 
| **Property**                                                  | ** ** | **Seller**                            | ** ** | **Purchase Price** | ** **     | **Deposit** |
|---------------------------------------------------------------|------------|---------------------------------------|------------|-------------------------|----------------|-------------|
| ** **                                                    | ** ** | ** **                            | ** ** | ** **              | ** **     | ** **  |
| University  Commons Urbana1321  Lincoln Ave.Urbana,  IL 61801 |       | University Commons-Urbana,  IL., Ltd. |       | $                       | 20,950,000.00  |        | $ | 424,089.05 |
|                                                          |       |                                  |       | $                       | 247,000,000.00 |        | $ | 5,000,000.00 |

 

2

----

 

Schedule 5.1.2

Existing Litigation

 

NONE

 

----

 

Schedule 5.1.10

Employees

 

----

 

**RIDER I**

 

----

 

DEPOSIT AND ESCROW AGREEMENT

 

CommonwealthLand Title Insurance Company (“Escrowee”) hereby agrees to hold inescrow pursuant to this Deposit and Escrow Agreement, the aggregate amount ofFive Million Dollars ($5,000,000) (“Aggregate Deposit”) to be depositedby College Park Investments, LLC (“Buyer”) pursuant to thirteen (13)Agreements of Sale, dated June 12, 2006, (collectively, the “Agreements”,and each an “Agreement”), between Buyer and University Commons-EastLansing, Ltd., Capstone Commons-Athens, Ltd., University Commons-Baton Rouge,Ltd., University Commons-Bloomington, IN., Ltd., University Commons-CollegeStation, Ltd., University Commons-College Station Phase II, Ltd., UniversityCommons-Columbia, S.C., L.P., University Commons-Eugene, OR., Ltd., UniversityCommons-Lexington, KY., Ltd., University Commons-Ohio, Ltd., UniversityCommons-Starkville, Ltd., University Commons-Tuscaloosa, Ltd., UniversityCommons-Urbana, IL., Ltd. (collectively, “Sellers”, and each a “Seller”),respectively, the provisions of which (including, without limitation, thedefined terms) are hereby incorporated herein by reference.  Escrowee shall, immediately upon receipt ofthe Aggregate Deposit, deposit same in an interest bearing, money market typeescrow account with a federally insured bank or savings and loan association inPennsylvania.  The Aggregate Deposit hasbeen allocated by Buyer and Sellers to each of the Agreements as shown in Exhibit “A”hereto, each such allocated amount constituting the Deposit under, and asdefined in, each Agreement.  Escroweeshall pay each Deposit to each Seller, on account of the Purchase Price undereach Agreement, at Closing under each Agreement, or if Closing does not takeplace under any Agreement, distribute the Deposit in accordance with the termsof such Agreement.  In the event Buyerterminates all Agreements during the Due Diligence Period as Due DiligenceTerminations, then Escrowee shall pay each Seller the amount of “Seller’s Shareof Deposit” in the amount shown on Exhibit “A” hereto, and allinterest accrued thereon, and shall pay Buyer “Buyer’s Share of Deposit” in theamount shown on “Exhibit “A” hereto.

 

Sellerand Buyer agree that Escrowee is an escrow holder only and is merelyresponsible for the safekeeping of the Aggregate Deposit and interest.  Escrowee is not authorized, and shall not berequired, to determine questions of fact or law.  If Escrowee shall receive notice of a disputeas to the disposition of any Deposit, then Escrowee shall not distribute suchDeposit or interest except in accordance with written instructions signed byboth Buyer and Seller.  Pendingresolution of any such dispute, Escrowee may at its own election, and Escroweeshall at the direction of any Seller or Buyer, pay the relevant Deposit andinterest into court.  If Escrowee paysany Deposit and interest into court, it shall be discharged from all furtherobligations hereunder with respect to that Deposit.

 

ThisEscrow Agreement shall be governed by the laws of the Commonwealth ofPennsylvania.  This Escrow Agreement maybe executed in any number of counterparts, each of which shall be deemed to bean original and all of which shall constitute one and the same 

 

----

 

agreement.

 

EachSeller represents that its Federal Tax Payer Identification Number is as statedin Exhibit “B” hereto.  Buyerrepresents that its Federal Employer Identification Number is                     .

 

Escroweeagrees to hold the Closing Documents in escrow, to conduct Closing and todistribute such documents as provided in the Agreement.

 

INWITNESS WHEREOF, Buyer, Sellers and Escrowee, for valuable consideration, eachintending to be legally bound and to bind its respective heirs, administrators,executors, personal representatives, successors and assigns, have caused thisDeposit and Escrow Agreement to be executed and delivered as of June 12,2006.

 

 
|   | BUYER:                                                                 |
|--------|------------------------------------------------------------------------|
|   |                                                                   |
|   | College  Park Investments, LLC, a Delaware limited   liability company |
|   |                                                                   |
|   |                                                                   |
|   | By:                                                                    |   |   |
|   |                                                                   | Name: |   |
|   |                                                                   | Title: |   |
|   |                                                                   |   |   |
|   | ESCROWEE:                                                              |   |
|   |                                                                   |   |
|   | Commonwealth  Land Title Insurance Company                             |   |
|   |                                                                   |   |
|   |                                                                   |   |
|   | By:                                                                    |   |   |
|   |                                                                   | Name: |   |
|   |                                                                   | Title: |   |
|   |                                                                   |   |   |
|   | SELLER:                                                                |   |
|   |                                                                   |   |
|   | Capstone  Commons-Athens, Ltd., an Alabama limited   partnership       |
|   |                                                                   |
|   | By:                                                                    | Capstone  Development Corp., an Alabama  corporation, its sole general partner |
|   |                                                                   |   |
|   |                                                                   | By: |   |   |
|   |                                                                   |   | 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: |   |   |
|   |                                                                                 |   | 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: |   |   |
|   |                                                                                 |   | Name:  Rob Howland |
|   |                                                                                 |   | Title:  Senior Vice President |
|   |                                                                                 |   |   |
|   |                                                                                 |   |   |
|   | University  Commons-College Station, Ltd., an   Alabama limited partnership          |
|   |                                                                                 |   |
|   | By:                                                                                  | Capstone  Development Corp., an Alabama  corporation, its sole general partner |
|   |                                                                                 |   |   |
|   |                                                                                 | By: |   |   |
|   |                                                                                 |   | Name:  Rob Howland |
|   |                                                                                 |   | Title:  Senior Vice President |
|   |                                                                                 |   |   |   |
|   |                                                                                 |
|   | University  Commons-College Station Phase II, Ltd., an   Alabama limited partnership |
|   |                                                                                 |   |   |
|   | By:                                                                                  | Capstone  Development Corp., an Alabama  corporation, its sole general partner |
|   |                                                                                 |   |
|   |                                                                                 | By: |   |   |
|   |                                                                                 |   | Name:  Rob Howland |
|   |                                                                                 |   | Title:  Senior Vice President |
|        |                                                                                      |  |  |  |  |

 

----

 
|   | University  Commons, Columbia, S.C., L.P., an  Alabama limited partnership |
|--------|----------------------------------------------------------------------------|
|   |                                                                       |   |
|   | By:                                                                        | Capstone  Development Corp., an Alabama  corporation, its sole general partner |
|   |                                                                       |   |   |
|   |                                                                       | By: |   |   |
|   |                                                                       |   | 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: |   |   |
|   |                                                                       |   | 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: |   |   |
|   |                                                                       |   | 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: |   |   |
|   |                                                                       |   | Name:  Rob Howland |
|   |                                                                       |   | Title:  Senior Vice President |

 

----

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

 

----

 

Exhibit “A”

 
| **Property**                                                                                    | ** ** | **Seller**                                         | ** ** | **Deposit** | ** **   | **Seller’s Portion of   Deposit** | ** ** | **Buyer’s Portion of   Deposit** | ** ** |
|-------------------------------------------------------------------------------------------------|------------|----------------------------------------------------|------------|-------------|--------------|-------------------------------------------------------|------------|------------------------------------------------------|------------|
| ** **                                                                                      | ** ** | ** **                                         | ** ** | ** **  | ** **   | ** **                                            | ** ** | ** **                                           | ** ** |
| Capstone Commons Apartments2501 Abbott RoadEast Lansing, MI 48823-1415                          |       | University Commons-East  Lansing, Ltd.             |       | $           | 459,514.17   |                                                  | $          | 22,975.71                                            |       | $ | 436,538.46 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons Athens1000 Lakeside DriveAthens, GA 30605                                    |       | Capstone Commons-Athens, Ltd                       |       | $           | 363,360.32   |                                                  | $          | 18,168.01                                            |       | $ | 345,192.31 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons Baton Rouge4600 Burbank DriveBaton Rouge, LA 70820                           |       | University Commons-Baton  Rouge, Ltd.              |       | $           | 383,603.24   |                                                  | $          | 19,180.16                                            |       | $ | 364,423.08 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons Bloomington1150 Clarizz BoulevardBloomington, IN 47401                       |       | University  Commons-Bloomington, IN., Ltd.         |       | $           | 575,910.93   |                                                  | $          | 28,795.55                                            |       | $ | 547,115.38 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons College  Station –   Phase I950 Colgate DriveCollege Station, TX 77840  |       | University Commons-College  Station, Ltd.          |       | $           | 358,299.60   |                                                  | $          | 17,914.98                                            |       | $ | 340,384.62 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons College  Station –   Phase II950 Colgate DriveCollege Station, TX 77840 |       | University Commons-College  Station Phase II, Ltd. |       | $           | 128,542.51   |                                                  | $          | 6,427.12                                             |       | $ | 122,115.39 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons Columbia800 Alexander RoadCayce, SC 29033                                    |       | University Commons-Columbia,  S.C., L.P.           |       | $           | 393,724.70   |                                                  | $          | 19,686.23                                            |       | $ | 374,038.47 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons Eugene90 Commons DriveEugene, OR 97401                                       |       | University Commons-Eugene,  OR., Ltd.              |       | $           | 454,453.44   |                                                  | $          | 22,722.67                                            |       | $ | 431,730.77 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons Lexington845 Red Mile RoadLexington, KY 40504                                |       | University Commons-Lexington,  KY., Ltd.           |       | $           | 434,210.53   |                                                  | $          | 21,710.53                                            |       | $ | 412,500.00 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons Oxford5262 Brown RoadOxford, OH 45056                                        |       | University Commons-Ohio, Ltd.                      |       | $           | 414,979.76   |                                                  | $          | 20,748.99                                            |       | $ | 394,230.77 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons Starkville1000 Campus View DriveStarkville, MS 39759                         |       | University Commons-Starkville,  Ltd.               |       | $           | 210,524.29   |                                                  | $          | 10,526.22                                            |       | $ | 199,998.07 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University Commons Tuscaloosa301 Helen Keller Blvd.Tuscaloosa, AL 35404                         |       | University Commons-Tuscaloosa,  Ltd.               |       | $           | 398,787.44   |                                                  | $          | 19,939.38                                            |       | $ | 378,848.06 |   |
|                                                                                            |       |                                               |       |        |         |                                                  |       |                                                 |       |
| University  Commons Urbana1321  Lincoln Ave.Urbana,  IL 61801                                   |       | University Commons-Urbana,  IL., Ltd.              |       | $           | 424,089.05   |                                                  | $          | 21,204.45                                            |       | $ | 402,884.60 |   |
|                                                                                            |       |                                               |       | $           | 5,000,000.00 |                                                  | $          | 250,000.00                                           |       | 4,750,000.00 |   |

 

----

 

Exhibit “B”

 

Partnership Tax Payer ID Numbers:

 

----

 

SCHEDULE I

 

Theindividual purchase prices and deposits with respect to each of the propertiesis provided in Schedule 4.3(b) to this form Agreement of Sale.

 

Theresponsibilities regarding the payment of closing expenses for each of theproperties vary with respect to the individual Agreement of Sale for each suchproperty, based upon the customs of the state in which the property is located.

 

Theform of deed and closing documents attached as exhibits to this form Agreementof Sale vary with respect to the state in which each of the properties islocated.

 

Seller’sright to receive damages, as set forth in Section 12 of this formAgreement of Sale, differ with respect to each separate Agreement of Sale inproportion to the purchase price for each individual property.

 

Eachindividual Agreement of Sale contains certain immaterial modifications fromthose set forth in this form Agreement of Sale, which modifications are basedon varying state law regarding warranties and mechanics liens.

 

TheAgreement of Sale relating to the property located in Starkville, Mississippiprovides for a drainage easement and an access easement granting the seller anaccess right to the property the seller is retaining and the right to draininto one of the water-retention basins located on the property to be conveyedto the buyer.  The seller also has agreedto share in the cost of maintaining the access routes and the retention basin.This Agreement of Sale also contains a representation from the seller that theproperty the seller is retaining has been legally subdivided form the propertythe seller is conveying to the buyer.

 

TheAgreement of Sale relating to the property located in Tuscaloosa, Alabamaprovides for a drainage easement and an access easement granting the seller anaccess right to the property the seller is retaining and the right to draininto one of the water-retention basins located on the property to be conveyedto the buyer.  In addition, thisagreement contains a provision granting an easement to the seller to utilize aparking area located on the property to be conveyed to the buyer.  The seller has agrees to share in the cost ofmaintaining the access routes, parking area and retention basin.  This Agreement of Sale also contains arepresentation from the seller that the property the seller is retaining hasbeen legally subdivided from the property the seller is conveying to the buyer.

 

----