exhibit103thirdamendment






                                                                  EXHIBIT 10.3             THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT         This Third Amendment to Purchase and Sale Agreement (this “Amendment”) dated as of  the Effective Date (as hereinafter defined) is by and between ABP IL (UNIVERSITY PARK) LLC,  a Delaware limited liability company (“Seller”), and BIG ACQUISITIONS LLC, an Illinois limited  liability company (“Buyer”).                                     RECITALS:   A.    Seller and Buyer are parties to that certain Purchase and Sale Agreement dated as of March       19, 2019, as amended by that certain First Amendment to Purchase and Sale Agreement       dated April 29, 2019 and that certain Second Amendment to Purchase and Sale Agreement       dated April 30, 2019 pertaining to the proposed sale by Seller to Buyer of certain real       property more particularly described therein (collectively, the “Agreement”).  B.    The parties desire to amend certain provisions of the Agreement regarding the pre-closing       inspection of the Property and the Lease.                               OPERATIVE TERMS:         NOW, THEREFORE, for and in consideration of the foregoing recitals, the mutual  covenants set forth in the Agreement and in this Amendment, Ten Dollars ($10.00) and other good  and valuable consideration in hand paid, the receipt and sufficiency of which are hereby  acknowledged, Seller and Buyer hereby agree as follows:         1.    Recitals; Defined Terms.  The foregoing recitals are true and correct in all material respects.  Capitalized terms and phrases used but not otherwise defined in this Amendment shall  have the meanings ascribed to such terms and phrases in the Agreement.  Unless the context clearly  indicates otherwise, all references to “this Agreement” in the Agreement and in this Amendment  shall hereinafter be deemed to refer to the Agreement, as amended hereby.  As used in this  Amendment (but not for purposes of the Agreement, in which context the definition of the term  “Effective Date” shall remain unchanged), “Effective Date” shall mean the date on which Seller or  Buyer shall have executed this Amendment, as indicated under their respective signatures, whichever  is the later to do so.         2.    Waiver of Due Diligence Termination Right.  Buyer acknowledges that Buyer has completed all Due Diligence Buyer has deemed necessary or appropriate, and, subject to the Seller’s  Warranties, Buyer has confirmed to its satisfaction all information that it considers material to its  purchase of the Property or the Transaction.  Accordingly, Buyer waives any right it may have had  to Terminate the Agreement pursuant to Paragraph 4.3 or 4.5 thereof, which waiver is in part based  on the modifications to the Agreement set forth in this Amendment.         3.    Closing Deadline. The definition of “Closing Deadline” in Schedule A to the Agreement is hereby deleted in its entirety and replaced with the following definition: “‘Closing  Deadline’ shall mean May 16, 2019.”  





 






       4.    Municipal Inspections.  Paragraph 5.3 of the Agreement is hereby deleted in its   entirety and replaced with the following:   “5.3   Municipal Inspections. Prior to the Closing Date, Seller shall arrange, at Seller’s sole cost  and expense, for any and all municipal inspections of the Property that are required to consummate  this transaction (including any municipal inspections required as a condition to the issuance of  transfer stamps).  To the extent any such inspections require repairs to the Property as a condition to  the sale of the Property or the issuance of transfer stamps, prior to or following Closing, Seller shall  complete such repairs at Seller’s sole cost and expense within any time frame required pursuant to  such inspections; provided, however, that if the cost to complete any such repairs is reasonably  estimated by Seller to be equal to or greater than Three Hundred Fifty Thousand and No/100  Dollars ($350,000.00), then Seller shall have the right to Terminate this Agreement by written notice  delivered to Buyer, in which event Buyer shall receive a refund of the Deposit and neither party shall  have any further obligation to the other under this Agreement (except for those obligations which  expressly survive the termination hereof). To the extent that the Village of University Park requires  the deposit of funds (the “Repair Deposit”) to secure the completion of any such repairs, Seller shall  cause the Repair Deposit to be deposited with the Village of University Park at or prior to Closing.   Notwithstanding that Buyer may be a party to the escrow agreement with the Village of University  Park with respect to the Repair Deposit, subject to the terms of the escrow agreement, the Repair  Deposit shall remain the property of Seller and shall be released to Seller upon completion of any  required repairs. In addition, Seller shall deposit an amount (the “Additional Deposit”) equal to the  Repair Deposit with the Title Company.  The Additional Deposit shall be held by the Title Company  pursuant to an escrow agreement between Seller, Purchaser, Purchaser’s lender and the Title  Company, which provides, among other things, that such amount of the Additional Deposit shall be  released to Purchaser or Purchaser’s lender to as is necessary to for Purchaser, or Purchaser’s lender,  as applicable, to pay any costs actually incurred in connection with completion the required repairs in  the event Seller fails to complete the same, and any remaining amount of the Additional Deposit shall  be released to Seller contemporaneously with release of the Repair Deposit from the Village of  University Park.”          5.    Lease Amendment regarding Compliance with Laws.  Paragraph 5.02(b)(i) of the   Lease is deleted and replaced with the following:          “(i)  all laws, ordinances and regulations and other governmental rules, orders and         determinations presently in effect or hereafter enacted, made or issued, whether or not         presently contemplated (collectively, “Legal Requirements”), as applied to the Premises or         the ownership, operation, use or possession thereof, including maintaining an adequate         number of vehicular parking spaces; in connection therewith, Tenant agrees that it shall, at         Tenant’s sole cost and expense, as soon as is reasonably practicable following the         Commencement Date, but in no event later than the date that is one hundred eighty (180)         days following the Commencement Date, (A) with respect to parking compliance at the         Premises, either (1) provide to Landlord written confirmation from the Village of University         Park (the “Municipality”) that the available vehicular parking at the Premises as of the         Commencement Date is in compliance with applicable zoning requirements or constitutes a         legal, nonconforming condition, or (2) or take such actions as are necessary to cause the         available vehicular parking at the Premises to comply with then-applicable zoning         requirements of the Municipality (the “Zoning Code”), which may include, but shall not be         limited to, obtaining a variance and/or providing additional spaces as may be required by the  





 






      Municipality in order to comply with the Zoning Code, and (B) if required by the        Municipality in connection with the transfer of the Premises from Tenant to Title Holder        simultaneously with this Lease, obtain a new certificate of occupancy for the Premises from        the Municipality in the customary form issued by the Municipality permitted the use of an        improvements located on the Premises, in each case, existing as of the Commencement        Date; provided, however that if any repair work to the Premises is required as a condition to        the issuance of any required certificate of occupancy, Tenant shall make or cause to be made        such repair work and if such repair work  cannot reasonably be completed within one        hundred eighty (180) days following the Commencement Date, so long has Tenant has        commenced and  diligently and continuously pursues completion of such repair work and        Extension Conditions (defined below) are satisfied, Tenant shall have such additional time as        is reasonably necessary to complete the repair work and obtain the certificate of occupancy.        For avoidance of doubt, any funds escrowed by Tenant with the Municipality with respect to        any repairs required as a condition to the issuance of a new certificate of occupancy for the        Premises shall remain the property of Tenant and shall be released by the Municipality to        Tenant. As used herein “Extension Conditions” shall mean that Tenant has delivered to        Landlord evidence reasonably acceptable to Landlord that (i) the failure to make the repairs        will not result in a material adverse effect on the marketability or use and enjoyment of the        Premises, (ii) the repairs do not relate to the functionality of fire prevention or suppression        systems in the Premises and failure to complete the applicable repairs will not result in an        imminent threat to persons or property or the continued use and operation of the Premises        (iii) the insurance policies required to be maintained hereunder shall continue in full force        and effect and (iv) the failure to complete the repairs and/or obtain the certificate of        occupancy will not result in any enforcement action by the Municipality.           6.    Lease Amendment regarding Rail Service.  The following shall be appended to  Paragraph 5.01(b) of the Lease:         “Tenant acknowledges and agrees that the loss of use of the existing rail spur servicing the        Premises resulting from any loss of rights to use the track existing between the main railroad        line adjacent to the Premises and the sidetrack servicing the Premises will not in and of itself        be deemed a default by Landlord under this Lease or otherwise constitute grounds for        termination of this Lease.”                7.    Headings.  The headings to sections of this Amendment are for convenient reference  only and shall not be used in interpreting this Amendment.         8.    Entire Agreement.  This Amendment contains the entire agreement and  understanding between the parties concerning the subject matter of this Amendment and supersedes  all prior agreements, terms, understandings, conditions, representations and warranties, whether  written or oral, concerning the matters that are the subject of this Amendment.           9.    Force and Effect.  Except as otherwise expressly modified by this Amendment, the  Agreement shall remain in full force and effect.  Seller and Buyer hereby ratify and confirm their  respective rights and obligations under the Agreement, as amended by this Amendment.          10.   Counterparts.  This Amendment may be executed in counterparts, and all such  counterparts shall when taken together, constitute one and the same instrument.  





 






      11.   Electronic Execution.  This Amendment may be executed and delivered by  electronic transmission, with the same force and effect as a fully-executed or counterpart original  document.                                                             [Remainder of this page has been intentionally left blank.                          Signatures appear on the following page.]                            





 






      IN  WITNESS  WHEREOF,  Seller  and  Buyer  have  executed  this  Amendment  as  of  the  Effective Date.                                SELLER:                                                              ABP IL (UNIVERSITY PARK) LLC,                                a Delaware limited liability company                                                                                             By:   /s/ Justin B. Heineman                                                   Justin B. Heineman                                     Vice President and Corporate Secretary                                                              Date signed:  May 1, 2019                                                                                             BUYER:                                                               BIG ACQUISITIONS LLC,                                an Illinois limited liability company                                                                                              By:   /s/ Michael W. Brennan                                             Name:  Michael W. Brennan                               Title:  Manager                                                              Date signed:  May 1, 2019