MEMBERSHIP INTEREST PURCHASE AGREEMENT


 


SALE OF BERRY HILL INTEREST


 


FROM


 


BLUEROCK SPECIAL OPPORTUNITY + INCOME
FUND III, LLC


 


TO


 


BEMT BERRY HILL, LLC


 



    	 



    	 



    

 


CONTENTS


  


	Clause	 	Page


 


	Article 1.	PURCHASE OF INTEREST; CONSIDERATION; DEFINITIONS	 	1
	 	 	 	 
	1.1	Purchase of Berry Hill Interest; Consideration	 	1
	1.2	Definitions	 	1
	1.3	Descriptive Headings; Word Meaning	 	2
	 	 	 	 
	Article 2.	CLOSING	 	2
	 	 	 	 
	2.1	Seller Deliveries	 	2
	2.2	Buyer Deliveries	 	2
	2.3	Closing Statement	 	2
	 	 	 	 
	Article 3.	PRORATIONS; COSTS	 	2
	 	 	 	 
	3.1	Prorations	 	2
	3.2	Post-Closing Corrections	 	2
	3.3	Costs; Transfer Taxes	 	3
	3.4	Sales Commissions	 	3
	3.5	Excluded Obligations and Assets	 	3
	 	 	 	 
	Article 4.	REPRESENTATIONS AND WARRANTIES	 	3
	 	 	 	 
	4.1	Seller’s Representations and Warranties as to Seller	 	3
	4.2	Seller’s Representations and Warranties as to the Berry Hill Interest	 	4
	4.3	Buyer’s Representations and Warranties	 	4
	4.4	Limitations	 	6
	4.5	Survival of Representations and Warranties	 	6
	 	 	 	 
	Article 5.	INDEMNIFICATION AND LIMITATION ON LIABILITY	 	6
	 	 	 	 
	5.1	Indemnification between Seller and Buyer	 	6
	5.2	Limitation on Seller’s Liability	 	6
	5.3	Survival	 	6
	 	 	 	 
	Article 6.	MISCELLANEOUS	 	7
	 	 	 	 
	6.1	Parties Bound	 	7
	6.2	Headings; Entirety; Amendments	 	7
	6.3	Invalidity and Waiver	 	7
	6.4	Governing Law; Calculation of Time Periods; Time	 	7
	6.5	No Third Party Beneficiary	 	7
	6.6	Confidentiality	 	7
	6.7	Enforcement Expenses	 	7
	6.8	Notices	 	8
	6.9	Construction	 	8
	6.10	Execution in Counterparts	 	8
	6.11	Further Assurances	 	8
	6.12	Waiver of Jury Trial; Forum	 	8
	6.13	Mutual Execution	 	8
	6.14	Cooperation	 	8


 



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MEMBERSHIP INTEREST PURCHASE AGREEMENT


SCHEDULE OF EXHIBITS AND APPENDICES


 


	Exhibit A	-	Organizational Chart
	 	 	 
	Appendix 1.2	-	Defined Terms
	 	 	 
	Appendix 2.1(a)	-	Form of Assignment of Interest
	 	 	 
	Appendix 2.1(c)	-	Form of Venture Agreement Amendment


 



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MEMBERSHIP INTEREST PURCHASE
AGREEMENT


 


This Membership Interest
Purchase Agreement (this “Agreement”) is made as of the 17th day of December, 2012 (the “Effective
Date”) by and among BLUEROCK SPECIAL OPPORTUNITY + INCOME FUND III, LLC, a Delaware limited liability company (“Seller”),
and BEMT BERRY HILL, LLC, a Delaware limited liability company (“Buyer”).


 


RECITALS


 


A. Seller is the owner
and holder of a 29% limited liability company interest in BR Berry Hill Managing Member, LLC, a Delaware limited liability company
(“BR Berry Hill Member”).


 


B. Buyer is the manager
of, and is the owner and holder of 71% limited liability company interest in, BR Berry Hill Member.


 


C. BR Berry Hill Member
is a co-manager of, and is the owner and holder of an 82.5% limited liability company interest in, BR Stonehenge 23Hundred JV,
LLC, a Delaware limited liability company (“Berry Hill Venture”), which is the sole member of 23Hundred, LLC,
a Delaware limited liability company (the “Subsidiary”), which is the fee simple owner and holder of the Berry
Hill Property (as defined in Appendix 1.2).


 


D. BR Berry Hill Member
is an indirect owner of the Berry Hill Property, as shown in the organizational chart attached to this Agreement as Exhibit
A (the “Organizational Chart”).


 


E. Seller desires to
sell, and Buyer desires to purchase from Seller, all of Seller’s right, title and interest in a 6.253% limited liability
company interest in BR Berry Hill Member (the “Berry Hill Interest”), which equates to an additional 5.158%
indirect interest in the Berry Hill Property.


 


NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:


 


ARTICLE 1. PURCHASE OF INTEREST; CONSIDERATION;
DEFINITIONS 


 


1.1 Purchase
of Berry Hill Interest; Consideration. In accordance with the Recitals set forth above, which Recitals are incorporated
into this Agreement and made a part thereof, Seller agrees to sell and convey, and Buyer agrees to purchase, the Berry Hill Interest
on the terms and conditions set forth herein. As consideration for Seller’s agreement to sell the Berry Hill Interest to
Buyer, Buyer has committed to fund a $369,034 capital contribution to BR Berry Hill Member for the benefit of Seller (the “Consideration”).
Buyer agrees to fund the Consideration at such times and in such increments as shall be necessary to satisfy the current and future
capital contribution obligations of Seller to BR Berry Hill Member, pursuant to the terms of the Venture Agreement, as amended
by the Venture Agreement Amendment (as defined below), until Buyer has contributed an aggregate amount equal to the Consideration
to BR Berry Hill Member on behalf of Seller. To the extent that any obligation of Buyer to fund the Consideration remains at the
time that Seller no longer holds an interest in BR Berry Hill Member, then the parties shall perform a true-up reconciliation of
the Consideration payable to Seller (the “Reconciliation”) within sixty (60) days of the date Seller ceases
to hold an interest, with any payment to be made to Seller made in cash within thirty (30) days following the finalization of the
Reconciliation. Notwithstanding the foregoing or any provision to the contrary contained herein or in the Venture Agreement, the
payment of the Consideration as contemplated in this Section 1.1 shall not be subject to or invoke the provisions of Section
5.2(b) of the Venture Agreement.


 


1.2 Definitions.
Certain terms, capitalized but not defined in the body of this Agreement shall have the meanings ascribed to them on Appendix
1.2 attached hereto.


 



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1.3 Descriptive
Headings; Word Meaning. The descriptive headings of the paragraphs of this Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any provisions of this Agreement. Words such as “herein,”
“hereinafter,” “hereof” and “hereunder” when used in reference to this Agreement, refer to
this Agreement as a whole and not merely to a subdivision in which such words appear, unless the context otherwise requires. The
singular shall include the plural and the masculine gender shall include the feminine and neuter, and vice versa, unless the context
otherwise requires. The word “including” shall not be restrictive and shall be interpreted as if followed by the words
“without limitation.”


 


ARTICLE 2. CLOSING


 


The transaction described
herein shall be closed upon (i) the consummation of the purchase and sale of the Berry Hill Interest as contemplated in this Agreement,
and (ii) the execution and delivery of the documents set forth in this Article 2.


 


2.1 Seller Deliveries.
Seller shall deliver or cause to be delivered to Buyer the following, each such document being duly executed and, where appropriate,
in recordable form and notarized:


 


(a) Assignment of
Interest. An assignment of the Berry Hill Interest, in the form attached hereto as Appendix 2.1(a), executed by Seller
(the “Assignment of Interest”);


 


(b) Authority.
Evidence of the existence, organization and authority of Seller and of the authority of the Persons executing documents on behalf
of Seller reasonably satisfactory to Buyer;


 


(c)First Amendment
to Venture Agreement. An amendment to the Venture Agreement, in the form attached hereto as Appendix 2.1(c), duly executed
by Seller and reflecting the consummation of the purchase and sale of the Berry Hill Interest as contemplated herein (the “Venture
Agreement Amendment”);


 


(d) Other Deliveries.
Such other documents, certificates and instruments reasonably necessary in order to effectuate the transactions described herein,
including without limitation, transfer tax declarations, broker lien waivers, and any other Closing deliveries required to be made
by or on behalf of Seller.


 


2.2 Buyer Deliveries.
Buyer shall deliver or cause to be delivered to Seller the following, each such document being duly executed and, where appropriate,
in recordable form and notarized:


 


(a) Authority.
Evidence of the existence, organization and authority of Buyer and of the authority of the Persons executing documents on behalf
of Buyer reasonably satisfactory to Seller;


 


(b) Venture Agreement
Amendment. The Venture Agreement Amendment, duly executed by Buyer; and


 


(c) Other Deliveries.
Such other documents, certificates and instruments reasonably necessary in order to effectuate the transactions described herein,
including without limitation, transfer tax declarations, broker lien waivers, and any other Closing deliveries required to be made
by or on behalf of Buyer.


 


2.3 Closing Statement.
Seller and Buyer shall execute a closing statement consistent with this Agreement.


 


ARTICLE 3. PRORATIONS; COSTS


 


3.1 Prorations.
Buyer and Seller agree to use customary commercially reasonable practices to determine all prorations and adjustments to be made
between Buyer and Seller at Closing.


 


3.2 Post-Closing
Corrections. Either party shall be entitled to a post-Closing adjustment for any incorrect proration or adjustment, provided
such adjustment is claimed by such party within twelve (12) months after Closing. The provisions of this Section 3.2 shall
survive the Closing.


 



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3.3 Costs; Transfer
Taxes. Buyer shall pay any Transfer Taxes due and payable with respect to the conveyance of the Berry Hill Interest. Seller
shall pay the cost of removing any Encumbrances on the Berry Hill Interest. Except as provided in Section 5.1 and Section
6.7 of this Agreement, or in any document or instrument executed pursuant to this Agreement, each party shall be responsible
for their own attorneys’ and other professional fees. Seller and Buyer shall execute any required city, county and state
transfer tax or other declarations, if applicable.


 


3.4 Sales Commissions.
Seller and Buyer represent and warrant each to the other that they have not dealt with any real estate broker or salesperson in
connection with this transaction. In the event of any claim for broker’s or finder’s fees or commissions in connection
with the negotiation, execution or consummation of this Agreement or the transaction contemplated hereby, each party shall indemnify,
defend and hold harmless the other party from and against any such claim based upon any actual or alleged statement, representation
or agreement of the indemnifying party. This provision shall survive the Closing and any termination of this Agreement.


 


3.5 Excluded
Obligations and Assets.


 


(a) Seller Obligations.
Neither Buyer nor any of its direct or indirect owners is assuming any liabilities related to the Berry Hill Interest.


 


(b) Survival.
The provisions of this Section 3.5 shall survive Closing indefinitely and shall not be subject to the limitations set forth
in Section 4.5 or Article 5.


 


ARTICLE 4. REPRESENTATIONS AND WARRANTIES


 


4.1 Seller’s
Representations and Warranties as to Seller. As a material inducement to Buyer to execute this Agreement and consummate
the Closing, Seller represents and warrants to Buyer that:


 


(a) Seller has been
duly formed or organized as a limited liability company, is validly existing and is in good standing in the State of Delaware,
and is authorized to exercise all its powers, rights and privileges.


 


(b) Seller has the
power and authority, under its Charter Documents, to own and operate its assets, to carry on its business as now conducted, and
to enter into and perform its obligations under this Agreement.


 


(c) All manager, member,
or other action on the part of Seller and the BR Berry Hill Member necessary for Seller’s authorization, execution and delivery
of this Agreement, and the performance of all obligations of Seller hereunder and the completion of the Closing pursuant hereto
has been taken or will be taken prior to the Closing. This Agreement constitutes a legally binding and valid obligation of Seller,
enforceable against Seller in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or other
similar Laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is
sought in a proceeding at law or in equity).


 


(d) The execution and
delivery of this Agreement by Seller and the performance by Seller of its obligations pursuant hereto will not result in any violation
of, be in conflict with, or constitute a default under, with or without the passage of time or the giving of notice: (x) any provision
of Seller’s Charter Documents as such documents exist immediately prior to the Closing; (y) any provision of any judgment,
decree or order to which Seller is a party or by which its properties or assets are bound; or (z) any Laws applicable to Seller
or its properties or assets.


 


(e) The execution and
delivery of this Agreement by Seller and the performance by Seller of its obligations pursuant hereto will not result in any violation
of, be in conflict with, or constitute a default under, with or without the passage of time or the giving of notice any material
contract or agreement to which Seller is a party.


 



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(f) The execution,
delivery and performance by Seller of this Agreement does not require the consent, approval, notice, clearance, waiver, order or
authorization of any Person or Governmental Authority that has not been obtained or given.


 


(g) There is no action,
suit, proceeding or investigation pending or, to the knowledge of Seller, threatened in writing against Seller that challenges
the validity of this Agreement or the right of Seller to enter into this Agreement, or that might result, either individually or
in the aggregate, in Seller’s inability to perform its obligations under this Agreement. There is no material judgment, decree
or order of any court, arbitrator, tribunal or governmental or similar authority in effect against Seller, nor is Seller in material
default with respect to any order or any court, arbitrator, tribunal or governmental or similar authority binding upon Seller,
by which it or its respective properties or assets are bound, which would prevent Seller from performing its obligations under
this Agreement.


 


(h) Seller is not and
is not acting on behalf of (i) an “employee benefit plan” within the meaning of Section 3(3) of ERISA), (ii) a “plan”
within the meaning of Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” within the meaning of
29 C.F.R. §2510.3-101 of any such employee benefit plan or plans.


 


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


 


(j) Seller is not insolvent
and will not become insolvent by executing or performing its obligations under this Agreement or the documents to be executed in
connection herewith.


 


4.2 Seller’s
Representations and Warranties as to the Berry Hill Interest. As a material inducement to Buyer to execute this Agreement
and consummate the Closing, Seller represents and warrants to Buyer with respect to the Berry Hill Interest, BR Berry Hill Member,
Berry Hill Venture and the Subsidiary that:


 


(a) Seller is the owner
and holder of 29% of the limited liability company interests in BR Berry Hill Member. The Berry Hill Interest is free and clear
of any Encumbrances, subject only to restrictions on transfer imposed under applicable U.S. federal and state securities Laws,
the Venture Agreement and the Loan Documents. The Berry Hill Interest has been duly and validly issued and, except as contemplated
by this Agreement or the Venture Agreement, there exists no agreement, arrangement or obligation (actual or contingent) to issue,
transfer, redeem, repay or repurchase the Berry Hill Interest or any portion thereof.


 


(b) Other than as provided
in the limited liability company agreement of Berry Hill Venture or the Subsidiary or the Venture Agreement, there are no options,
warrants, stock appreciation rights, calls, pre-emptive rights, subscriptions, contribution rights, convertible securities, or
other rights or other agreements or commitments of any character whatsoever which are an obligation of Seller to issue, transfer
or sell any securities exercisable for, or otherwise evidencing a right to acquire, any interests of any kind in any of BR Berry
Hill Member, Berry Hill Venture or the Subsidiary (except the rights of Buyer under this Agreement).


 


(c) The Organizational
Chart is correct and correctly shows Berry Hill Venture and the Subsidiary and the percentage ownership interest of BR Berry Hill
Member in Berry Hill Venture, and indirectly in the Subsidiary, immediately prior to the Closing hereunder.


 


4.3 Buyer’s
Representations and Warranties. As a material inducement to Seller to execute this Agreement and consummate the Closing,
Buyer represents and warrants to Seller that:


 



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(a) Buyer has been
duly formed or organized as a limited liability company, is validly existing and, is in good standing in the state of its organization,
and is authorized to exercise all of its powers, rights and privileges.


 


(b) Buyer has the power
and authority, under its Charter Documents, to own and operate its properties, to carry on its business as now conducted, and to
enter into and perform its obligations under this Agreement.


 


(c) All action on the
part of Buyer and its members, managers, and officers necessary for the authorization, execution and delivery of this Agreement,
the performance of all obligations of Buyer hereunder and completion of the transactions hereunder, has been taken or will be taken
prior to the Closing. This Agreement constitutes a legally binding and valid obligation of Buyer enforceable in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights
and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).


 


(d) The execution and
delivery of this Agreement by Buyer and the performance by Buyer of its obligations pursuant hereto will not result in any violation
of, be in conflict with, or constitute a default under, with or without the passage of time or the giving of notice: (x) any provision
of Buyer’s Charter Documents; (y) any provision of any judgment, decree or order to which Buyer is a party or by which it
or its property or assets are bound; or (z) any Laws applicable to Buyer or its property or assets.


 


(e) The execution and
delivery of this Agreement by Buyer and the performance by Buyer of its obligations pursuant hereto will not result in any violation
of, be in conflict with, or constitute a default under, with or without the passage of time or the giving of notice, any material
contract or agreement to which Buyer is a party.


 


(f) There is no action,
suit, proceeding or investigation pending or, to the knowledge of Buyer, threatened in writing against Buyer that challenges the
validity of this Agreement or the right of Buyer to enter into this Agreement, or that might result, either individually or in
the aggregate, in Buyer’s inability to perform its obligations under this Agreement. There is no judgment, decree or order
of any court, arbitrator, tribunal or governmental or similar authority in effect against Buyer, and Buyer is not in default with
respect to any order of any court, arbitrator, tribunal or governmental or similar authority binding upon Buyer or by which it
or its property or assets are bound that would prevent Buyer from performing its obligations under this Agreement.


 


(g) Buyer is not acting,
directly or indirectly for, or on behalf of, any Person, group, entity or nation named by any Executive Order (including the September
24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism) or the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person, or
other banned or blocked Person, group, entity, or nation pursuant to any Law that is enforced or administered by the Office of
Foreign Assets Control, and is not engaging in the transactions described herein, directly or indirectly, on behalf of, or instigating
or facilitating the transactions described herein, directly or indirectly, on behalf of, any such Person, group, entity or nation.


 


(h) Buyer is acquiring
the Berry Hill Interest for its own account, for investment purposes only and not with a view to the distribution (as such term
is used in Section 2(11) of the Securities Act of 1933, as amended (the “Securities Act”)) thereof. Buyer understands
that the Berry Hill Interest has not been registered under the Securities Act and cannot be sold unless subsequently registered
under the Securities Act or an exemption from such registration is available.


 



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4.4 Limitations.
Except for the representations and warranties contained in Sections 4.1 and 4.2, or any documents delivered to Buyer
at Closing in connection with this Agreement (collectively, “Seller’s Reps”), neither Seller nor any other
Person (including, for the avoidance of doubt, any equity holder of Seller) makes any other express or implied representation or
warranty in respect of the Berry Hill Interest, BR Berry Hill Member, Berry Hill Venture, the Subsidiary, the Berry Hill Property
or the transaction contemplated hereby, and Seller disclaims all other representations or warranties, whether made by BR Berry
Hill Member, Berry Hill Venture, the Subsidiary or any of their respective Affiliates, officers, directors, employees, agents or
representatives. Except for Seller’s Reps, Seller hereby disclaims all liability and responsibility for any representation,
warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Buyer or its
Affiliates or representatives (including any opinion, information, projection or advice that may have been or may be provided to
Buyer by any director, officer, employee, agent, consultant or representative of BR Berry Hill Member, Berry Hill Venture, the
Subsidiary or any of their respective Affiliates). EXCEPT FOR AND SUBJECT ONLY TO SELLER’S REPS, SELLER MAKES NO REPRESENTATIONS
OR WARRANTIES WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE BERRY HILL INTEREST, BR BERRY HILL MEMBER, BERRY HILL
VENTURE, THE SUBSIDIARY, THE BERRY HILL PROPERTY OR ANY PORTION THEREOF, OR THE CONDITION OF OR MATERIALS RELATING TO THE BERRY
HILL INTEREST, BR BERRY HILL MEMBER, BERRY HILL VENTURE, THE SUBSIDIARY OR THE BERRY HILL PROPERTY, IN WHOLE OR IN PART, OR ANY
OTHER MATTER, ALL SUCH REPRESENTATIONS AND WARRANTIES BEING HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND SUBJECT ONLY TO SELLER’S REPS, BUYER IS PURCHASING THE
BERRY HILL INTEREST “AS IS” AND “WITH ALL FAULTS.” The disclaimer expressed in this Section
4.4 shall survive Closing.


 


4.5 Survival
of Representations and Warranties. The representations and warranties set forth in this Article 4 are made as of
the Effective Date. Such representations and warranties shall not be deemed to be merged into or waived by the instruments of Closing,
but shall survive the Closing for a period of twelve (12) months (the “Limitation Period”); provided
that (a) the representations and warranties set forth in Sections 4.1(a), (b), (c) and (d) and Section 4.2, (the
“Warranties”) shall survive the Closing indefinitely. Seller and Buyer shall have the right to bring
an action for breach of such representations and warranties if they give the other party written notice of the circumstances giving
rise to the alleged breach within the survival period specified therefor in this Section 4.5.


 


ARTICLE 5. INDEMNIFICATION AND LIMITATION
ON LIABILITY


 


5.1 Indemnification
between Seller and Buyer. Seller, on the one hand, and Buyer, on the other hand (for purposes of this Section 5.1,
each an “indemnitor”), shall indemnify, defend and hold the other (for purposes of this Section 5.1,
the “indemnified party”) harmless from any liability, claim, demand, loss, expense or damage that is: (a) suffered
by, or asserted by any third party against the indemnified party arising from any act or omission of the indemnitor, its agents,
employees or contractors or otherwise arising out of the ownership of the Berry Hill Interest first arising or occurring prior
to the Closing (with respect to Seller as indemnitor) or from and after the Closing (with respect to Buyer as the indemnitor);
(b) arising out of the breach or inaccuracy of any of the indemnitor’s representations and warranties set forth herein; or
(c) arising out of any failure by Seller or Buyer to perform any covenant or obligation of Seller or Buyer, as applicable, set
out in this Agreement.


 


5.2 Limitation
on Seller’s Liability. Notwithstanding any other provision of this Article 5 to the contrary, (a) Seller shall
not have any indemnification obligations for claims under Section 5.1 unless and until the aggregate amount of such claims
exceeds $30,000 (provided that, once the amount of such claims exceeds $30,000, Seller shall pay damages from the first dollar
of damages) and (b) in no event shall Seller’s aggregate liability for claims under Section 5.1 of this Agreement
exceed $369,034 ; provided, however, that the limitations on liability set forth in this Section 5.2 shall
not apply to any loss or liability arising from any breach of any of Seller’s Warranties, or to Seller’s obligations
with respect to reprorations under Section 3.2, which liability and obligations shall not be credited against the foregoing
cap. The provisions of this Article 5 shall be the sole and exclusive remedy of Buyer with respect to matters which are
subject to indemnification by Seller under Section 5.1 of this Agreement, all other remedies with respect to such matters
being hereby waived.


 


5.3 Survival.
The provisions of this Article 5 shall survive the Closing; provided that claims under clause (a) or (b) of Section 5.1
shall be subject to the Limitation Period. Any claim for indemnification under Section 5.1(a) or (b) not made on or prior
to the expiration of the Limitation Period set forth in Section 4.5 shall be irrevocably and unconditionally waived and
released.


 



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ARTICLE 6. MISCELLANEOUS


 


6.1 Parties Bound.
No party may assign this Agreement without the prior written consent of the other party, and any such prohibited assignment shall
be void. This Agreement shall be binding upon and inure to the benefit of the respective legal representatives, successors, permitted
assigns, heirs, and devises of the parties.


 


6.2 Headings;
Entirety; Amendments. The article and paragraph headings of this Agreement are for convenience only and in
no way limit or enlarge the scope or meaning of the language hereof. All exhibits and appendices attached to this Agreement are
incorporated herein as if fully set forth in this Agreement and shall be deemed to be a part of this Agreement. This Agreement
embodies the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Berry
Hill Interest, BR Berry Hill Member, Berry Hill Venture, the Subsidiary or the Berry Hill Property (other than the Charter Documents
of BR Berry Hill Member, Berry Hill Venture and the Subsidiary). This Agreement may be amended or supplemented (except as noted
in the preceding sentence) only by an instrument in writing executed by the party against whom enforcement is sought.


 


6.3 Invalidity
and Waiver. If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible
the remainder of this Agreement shall be deemed valid and operative, and, to the greatest extent legally possible, effect shall
be given to the intent manifested by the portion held invalid or inoperative. The failure by a party to enforce against another
party any term or provision of this Agreement shall not be deemed to be a waiver of such party’s right to enforce against
the other party the same or any other such term or provision in the future.


 


6.4 Governing
Law; Calculation of Time Periods; Time. This Agreement shall, in all respects, be governed and enforced in accordance with
the laws of the State of New York. Unless otherwise specified, in computing any period of time described herein, the day of the
act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed
is to be included, unless such last day is a Saturday, Sunday or legal holiday for national banks in New York, New York, in which
event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday. The last day of
any period of time described herein shall be deemed to end at 5:30 p.m. New York, New York time. Time is of the essence in the
performance of this Agreement.


 


6.5 No Third
Party Beneficiary. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, actions,
or remedies to any Person as a third party beneficiary, decree, or otherwise, other than the indemnified parties referenced in
Section 5.1 pursuant to and for purposes of Section 5.1, who shall be express third party beneficiaries hereof solely
for purposes of Section 5.1.


 


6.6 Confidentiality.
No party shall make a public announcement or other disclosure of this Agreement or any information related to this Agreement to
outside brokers or third parties, before or after the Closing, without the prior written specific consent of the other, which consent
may not be unreasonably conditioned, delayed or withheld so long as such public disclosure is otherwise in compliance with this
Agreement; provided, however, that without the consent of the other party, a party may make (i) any public disclosure it reasonably
believes is required by applicable Laws (in which event such party shall use reasonable efforts to advise the other party prior
to the making of such disclosure); (ii) such disclosure as may be reasonably necessary to enforce any provision of this Agreement;
(iii) any disclosure to any lender or prospective lender, creditor, officer, employee, agent, current or prospective investor and
their advisors, current or prospective financial partner, or Affiliate as necessary to perform its obligations under this Agreement
or (iv) any public disclosure that is deemed advisable by such party or its counsel to be disclosed in connection with financial
reporting, securities disclosures or other legal, tax or financial requirements or guidelines applicable to such party or any Affiliate
thereof, including any disclosures to the Securities and Exchange Commission and any press release required by the Securities and
Exchange Commission in connection therewith.


 


6.7 Enforcement
Expenses. Should any party employ attorneys or arbitrators to bring an action or arbitration to enforce any of the provisions
hereof, the non-prevailing party in such action or arbitration shall pay the prevailing party all reasonable costs, charges, and
expenses, including attorneys’ fees and costs, expended or incurred in connection therewith (not to exceed, in the aggregate,
$369,034). The limitations set forth in Section 5.2 shall not apply with respect to this Section 6.7.


 



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6.8 Notices.
All notices required or permitted hereunder shall be in writing and shall be served on the following parties:


 


	If to Buyer:	c/o Bluerock Enhanced Multifamily Advisor
	 	Heron Tower
	 	70 East 55th Street
	 	9th Floor
	 	New York, NY 10002
	 	Attn:  Michael L. Konig
	 	 
	If to Seller:	c/o BR SOIF III Manager
	 	Heron Tower
	 	70 East 55th Street
	 	9th Floor
	 	New York, NY 10002
	 	Attn: Jordan B. Ruddy


 


6.9 Construction.
The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and the documents to be executed
on or prior to the Closing Date and agree that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement, the documents to be delivered on or prior
to the Closing Date or any exhibits or amendments thereto.


 


6.10 Execution
in Counterparts. This Agreement may be executed in any number of counterparts, and by each party hereto on separate counterparts,
each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement. To facilitate execution
of this Agreement, the parties may execute and exchange by telephone facsimile or email counterparts of the signature pages which
shall be deemed original signatures for all purposes.


 


6.11 Further
Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered
by either party on or prior to the Closing Date, each party agrees to perform, execute and deliver, but without any obligation
to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably
necessary to consummate the transactions contemplated hereby or to further perfect the conveyance, transfer and assignment of the
Berry Hill Interest to Buyer.


 


6.12 Waiver of
Jury Trial; Forum. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH
PARTY SHALL BRING ANY ACTION AGAINST THE OTHER IN CONNECTION WITH THIS AGREEMENT IN A FEDERAL OR STATE COURT LOCATED IN NEW YORK,
NEW YORK, CONSENTS TO THE JURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT TO HAVE ANY PROCEEDING TRANSFERRED FROM SUCH COURTS
ON THE GROUND OF IMPROPER VENUE OR INCONVENIENT FORUM.


 


6.13 Mutual Execution.
Until this Agreement has been duly executed by both parties hereto and a fully executed copy has been delivered to each party hereto
(which may occur by facsimile transmission or e-mail), this Agreement shall not be legally binding against the parties.


 


6.14 Cooperation.
Subject to the provisions of this Agreement, the parties agree to cooperate and use Commercially Reasonable Efforts to consummate
the transactions contemplated hereby.


 



    	8



    	 



    

 


IN WITNESS WHEREOF,
the parties hereto have duly executed and delivered this Agreement as of the Effective Date.


  


	 	SELLER:
	 	 
	 	BLUEROCK SPECIAL OPPORTUNITY + INCOME
	 	FUND III, LLC,
	 	a Delaware limited liability company
	 	 
	 	By:	BR SOIF III Manager, LLC,
	 	 	a Delaware limited liability company,
	 	 	its Manager


  


	 	 	By:	/s/ Jordan B. Ruddy
	 	 	Jordan B. Ruddy, President


  


	 	BUYER:
	 	 
	 	BEMT BERRY HILL, LLC,
	 	a Delaware limited liability company
	 	 
	 	By:	Bluerock Enhanced Multifamily Holdings, LP,
	 	 	a Delaware limited partnership,
	 	 	its Manager


  


	 	 	By:	Bluerock Enhanced Multifamily Trust, Inc.,
	 	 	a Maryland corporation,
	 	 	its general partner


  





	 	 	By:	/s/ Jordan B. Ruddy
	 	 	 	Jordan B. Ruddy, President
	 	 	 	and Chief Operating Officer







 



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Exhibit A


 


Organizational Chart


 


[SEE ATTACHMENT]


 



    	 



    	 



    

 


APPENDIX 1.2


 


Defined Terms


 


“Affiliate”
shall mean: (a) an entity that directly or indirectly controls, is controlled by or is under common control with the party in question;
or (b) an entity at least a majority of whose economic interest is owned by the party in question; and the term “control”
means the power to direct the management of such entity through voting rights, ownership or contractual obligations.


 


“Agreement”
shall have the meaning given to it in the preamble to this Agreement.


 


“Assignment
of Interest” shall have the meaning given to it in Section 2.1(a) hereof.


 


“Berry Hill
Interest” shall have the meaning given to it in the Recitals to this Agreement.


 


“Berry Hill
Property” shall mean that certain 266-unit multi-family development project known as 23Hundred@Berry Hill, Nashville,
Tennessee, including the Real Property, the Leases, the Rents, the Personal Property, and the Intangible Property.


 


“Berry Hill
Venture” shall have the meaning given to it in the Recitals to this Agreement.


 


“BR Berry
Hill Member” shall have the meaning given to it in the Recitals to this Agreement.


 


“Business
Day” shall mean a day other than a Saturday, Sunday or other day on which commercial banks are authorized or required
to close under applicable Laws, or are in fact closed, in New York, New York.


 


“Buyer” shall have the
meaning given to it in the preamble to this Agreement.


 


“Charter Documents”
shall mean, with respect to any entity, its articles of incorporation, declaration of trust, bylaws, partnership agreement, statement
of partnership, certificate of limited partnership, limited liability company agreement, limited liability certificate or articles,
or other charter or governing or organizational documents, and all amendments or supplements to any of the foregoing (but excluding
the Venture Agreement Amendment).


 


“Closing”
shall have the meaning given to it in Article 2 hereof.


 


“Closing Date”
shall mean the date on which the Closing occurs.


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time.


 


“Commercially
Reasonable Efforts” shall mean, whenever there is imposed on any party such standard, that such party shall be required
to exert those efforts or diligence only to the extent they are economically feasible, practicable and reasonable under the circumstances
and shall not impose upon such party material financial or other burdens or require any party to institute any legal action.


 


“Consideration”
shall have the meaning given to it in Section 1.1 hereof.


 


“Encumbrances”
shall mean any and all security interests, pledges, liens, charges, claims, purchase options or other encumbrances or restrictions
of any kind, including, without limitation, any restriction on the use, transfer, receipt of income or other exercise of any attribute
of ownership (not including applicable Laws).


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended.


 



    	 



    	 



    

 


“Governmental
Authority” shall mean any governmental authority having jurisdiction over the Berry Hill Property, Buyer, Seller, BR
Berry Hill Member, Berry Hill Venture, the Subsidiary or any of their respective Affiliates, including, without limitation, the
United States of America, the state, county and municipality where the Berry Hill Property is located, and any court, agency, department,
commission, board, bureau, utility district, flood control district, improvement district or similar district, or other instrumentality
of any of them.


 


“Improvements”
shall mean all buildings, fixtures, structures, parking areas, landscaping and other improvements located on the Land.


 


“Intangible
Property” shall mean all right, title and interest of the Subsidiary in and to all intangible personal property owned
by the Subsidiary and now or hereafter used in connection with the operation, ownership, maintenance, management, or occupancy
of the Real Property, including, without limitation, any and all trade names and trademarks associated with the Real Property;
the plans and specifications for the Improvements, including as-built plans; unexpired warranties, guarantees, indemnities and
claims against third parties; contract rights related to the construction, operation, repair, renovation, ownership or management
of the Real Property; pending permit or approval applications as well as existing permits, approvals and licenses (to the extent
assignable); insurance proceeds and condemnation awards; and books and records relating to the Real Property.


 


“Land”
shall mean the land owned by the Subsidiary, and all rights, benefits, privileges, easements, tenements, hereditaments, and appurtenances
in anywise appertaining to the Land, including any and all mineral rights, development rights, water rights and the like; and all
right, title, and interest of the Subsidiary in and to all strips and gores and any land lying in the bed of any street, road or
alley, open or proposed, adjoining the Land.


 


“Laws”
shall mean all applicable federal, state and local laws, rules, ordinances, regulations and codes, including without limitation,
all zoning, building, health and safety, environmental, land use and requirements regarding disabled Persons.


 


“Leases”
shall mean all leases, subleases or other occupancy agreements pursuant to which any Person has the right to occupy space in the
Improvements.


 


“Limitation
Period” shall have the meaning given to it in Section 4.5 hereof.


 


“Loan”
shall mean the mortgage loan encumbering the Berry Hill Property.


 


“Loan Documents”
shall mean the documents and instruments evidencing and securing the Loan.


 


“Organizational
Chart” shall have the meaning given to it in the Recitals to this Agreement.


 


“Person”
shall mean a corporation, partnership, limited liability company, business trust or individual.


 


“Personal
Property” shall mean as to the Real Property, all right, title and interest of the Subsidiary in and to all tangible
personal property now or hereafter used in connection with the operation, ownership, maintenance, management, or occupancy of the
Real Property, including, without limitation, all equipment, machinery, heating, ventilating and air conditioning units, furniture,
art work, furnishings, trade fixtures, office equipment and supplies, and, whether stored on or off-site, all tools and maintenance
equipment, supplies, and construction and finish materials not yet incorporated in the Improvements but held for repairs and replacements.


 


“Real Property” shall
mean the Land and the Improvements.


 


“Reconciliation”
shall have the meaning given to it in Section 1.1 hereof.


 



    	 



    	 



    

 


“Rents”
shall mean all income from the Real Property, including without limitation, all fixed or base rent, percentage rent, additional
rent or other amounts payable by tenants under Leases with respect to operating expenses, Taxes or other charges under the Leases.


 


Securities Act”
shall have the meaning given to it in Section 4.3(h) hereof.


 


“Seller”
shall have the meaning given to it in the preamble to this Agreement.


 


“Subsidiary”
shall have the meaning given to it in the Recitals to this Agreement.


 


“Taxes”
shall mean all federal, state, local, foreign, and other taxes, including, without limitation, income taxes, estimated taxes, alternative
minimum taxes, excise taxes, sales taxes, use taxes, value-added taxes, gross receipts taxes, bulk sales taxes, transient occupancy
taxes, franchise taxes, capital stock taxes, employment and payroll-related taxes, withholding taxes, stamp taxes, Transfer Taxes
and property taxes, whether or not measured in whole or in part by net income, and all deficiencies or other additions to taxes,
including interest, fines and penalties.


 


“Transfer
Taxes” shall mean any and all taxes on the transfer, or deemed transfer, of the Berry Hill Property as a result of the
conveyance of Berry Hill Interest pursuant to this Agreement payable pursuant to applicable Laws, but if and only to the extent
that the conveyance of the Berry Hill Interest pursuant to this Agreement is deemed to constitute a transfer of the Berry Hill
Property that is subject to such tax, but not including real estate taxes or income taxes.


 


“Venture Agreement”
shall mean the limited liability company agreement governing BR Berry Hill Member, as amended, supplemented or amended and restated
prior to the Effective Date.


 


“Venture Agreement
Amendment” shall have the meaning given to it in Section 2.1(c) hereof.


 


“Warranties”
shall have the meaning given to it in Section 4.5 hereof.


 



    	 



    	 



    

 


APPENDIX 2.1(a)


 


Assignment of Interest


 


[see attached]


 



    	 



    	 



    

 


APPENDIX 2.1(c)


 


Venture Agreement Amendment


 


[see attached]