Exhibit 10.363


 


THIRD AMENDMENT TO AGREEMENT OF PURCHASE
AND SALE


[1309 and 1331 West Morehead Street
and 


811 and 829 South Summit Avenue, Charlotte,
NC]


 


This
THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this “Amendment”) is made and entered into as of June 30, 2015 (the
“Effective Date”), by and between Southern Apartment Group-49, LLC, a North Carolina limited liability company (“Seller”),
and ArchCo Residential LLC, a Delaware limited liability company (“Purchaser”).


 


Recitals


 


This Amendment is made with respect to
the following facts:


 


A.            Seller
and Purchaser entered into that certain Agreement of Purchase and Sale dated as of April 14, 2015 (the “Original Purchase
Agreement”), with respect to the real property located in 1309 and 1331 West Morehead Street and 811 and 829
South Summit Avenue, Charlotte, North Carolina (the “Property”), as more particularly described in the Original
Purchase Agreement.


 


B.           Seller
and Purchaser entered into (1) the Amendment to Agreement of Purchase and Sale dated as of June 8, 2015 (the “First
Amendment”), and (2) the Second Amendment to Agreement of Purchase and Sale dated as of June 26, 2015 (the “Second
Amendment”). The Original Purchase Agreement, as amended by the First Amendment and the Second Amendment, is referred to
as the “Purchase Agreement”. The Purchase Agreement, as amended by this Amendment, is referred to as the “Agreement”.


 


C.            Seller
and Purchaser desire to amend the Purchase Agreement as set forth in this Amendment.


 


Agreement


 


In consideration of the foregoing Recitals,
the conditions, terms, covenants and agreements set forth in this Amendment, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree that the Purchase Agreement is amended as
set forth in this Amendment:


 


1.           Defined
Terms. Each initially capitalized term used in this Amendment has the meaning set forth for that term in the Purchase Agreement,
unless it is otherwise defined in this Amendment.


 


2.           Amendments. 


 


2.1          Due
Diligence Period. Purchaser and Seller agree that the Due Diligence Period expired on the Effective Date. Notwithstanding any
provision of the Agreement to the contrary, as of the Effective Date, $25,000 of the Earnest Money (the “Non-Refundable Amount”)
shall be nonrefundable to Purchaser except in the event of a default by Seller.


 


2.2          Geotechnical
Investigation Period . Notwithstanding that the Due Diligence Period expires on the Effective Date, Purchaser shall have through
July 28, 2015 (the “Geotechnical Investigation Period”) to (a) have a geotechnical investigation and seismic
study performed for the Property (“Purchaser’s Geotechnical Investigation”), and (b) obtain a reliance letter
from ECS (the “ECS Reliance Letter”) for the report completed in 2013 by ECS for Seller regarding ECS’s geotechnical
investigation and seismic study for the Property (“Seller’s Geotechnical Report”). If Purchaser’s Geotechnical
Investigation yields results and conclusions that are materially different from the results and conclusions set forth in Seller’s
Geotechnical Report, or if Purchaser is unable to obtain the ECS Reliance Letter, Purchaser may terminate the Purchase Agreement
by giving notice of termination (a “Due Diligence Termination Notice”) to Seller on or before the last day of the Geotechnical
Investigation Period. If Purchaser terminates the Agreement pursuant to this Paragraph 2.2, the Escrow Agent shall refund
the Earnest Money (less the Non-Refundable Amount) to Purchaser immediately upon request and shall pay the Non-Refundable Amount
to Seller, and all further rights and obligations of the parties under the Agreement shall terminate, except those which by their
terms survive any termination of this Agreement.


 




    	 	 



     


    

 


2.3          Operating
Agreement Period. Section 1.1(h) of the Purchase Agreement is hereby amended to provide that the Operating Agreement Period
shall end on July 14, 2015. Notwithstanding the provisions of Section 2.3 of the Purchase Agreement to the contrary,
if Purchaser terminates the Agreement pursuant to Section 2.3 of the Purchase Agreement, the Escrow Agent shall refund the
Earnest Money (less the Non-Refundable Amount) to Purchaser immediately upon request and shall pay the Non-Refundable Amount to
Seller, and all further rights and obligations of the parties under the Agreement shall terminate, except those which by their
terms survive any termination of this Agreement.


 


2.4          Closing
Date. Section 1.1(j) of the Purchase Agreement is hereby amended to read as follows:


 


“(j)         Closing
Date:                                    As designated by Purchaser upon not less than five Business Days’ prior notice, but not later than December 31,
2015. Purchaser shall have no further right to extend the Closing Date under Section 2.4(c).”


 


2.5          Earnest
Money. Unless the Agreement has been earlier terminated, the Escrow Agent shall release the Earnest Money to Seller on the
date that is 120 days after the end of the Due Diligence Period. Notwithstanding that the Earnest Money is released to Seller
under this Paragraph 2.5, if Purchaser terminates the Agreement pursuant any right to terminate set forth in the Purchase
Agreement for which Purchaser is entitled to receive a refund or return of the Earnest Money, Seller shall return the Earnest Money
(less the Non-Refundable Amount if Purchaser terminates for any reason other than a default by Seller) to Purchaser, and all further
rights and obligations of the parties under this Agreement shall terminate, except those which by their terms survive any termination
of this Agreement.


 


2.6          New
LLC. Notwithstanding the provisions of Section 2.3 of the Purchase Agreement to the contrary:


 


(a)          The
New LLC will not acquire title to the Property. Instead, the New LLC and a third-party equity investor will be the members of a
joint venture entity (“HoldCo JV”). HoldCo JV will create a wholly–owned subsidiary (“Project Owner”)
that will acquire title to the Property at the Closing. A structure diagram illustrating the ownership structure for the Property,
as described in this Paragraph 2.6(a), is attached as Exhibit 1 to this Amendment.


 


(b)          Simultaneously
with the execution of the New LLC Operating Agreement, Purchaser, on its own behalf and on behalf of Project Owner, shall execute
an assignment and assumption of the Agreement (the "Assignment and Assumption of Purchase Agreement") which, by its terms,
shall become effective only upon the Closing and by which Purchaser shall assign to Project Owner, and Project Owner shall assume,
Purchaser's rights and obligations to purchase the Property under this Agreement.


 


3.           Counterparts.
This Amendment may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall
be deemed to be one and the same Amendment when each party has signed one of the counterparts. This Amendment may be delivered
to the Escrow Agent and the other party by facsimile or in pdf format by email transmission.


 


4.           Entire
Agreement. The Purchase Agreement, as amended by this Amendment, constitutes the full and complete agreement and understanding
between Seller and Purchaser and shall supersede all prior communications, representations, understandings or agreements, if any,
whether oral or written, concerning the subject matter contained in the Purchase Agreement, as so amended, and no provision of
the Purchase Agreement, as so amended, may be modified, amended, waived or discharged, in whole or in part, except by a written
instrument executed by Seller and Purchaser.


 




    	 	2	 



     


    

 


5.           Full
Force and Effect; Incorporation. Except as modified by this Amendment, the terms and provisions of the Purchase Agreement are
hereby ratified and confirmed and are and shall remain in full force and effect. If any inconsistency arises between this Amendment
and the Purchase Agreement as to the specific matters which are the subject of this Amendment, the terms and conditions of this
Amendment shall control. This Amendment shall be construed to be a part of the Purchase Agreement and shall be deemed incorporated
in the Purchase Agreement by this reference.


 




    	 	3	 



     


    

 





Seller and Purchaser have executed this
Amendment as of the date first written above.


 


	Seller:	 
	 	 
	SOUTHERN APARTMENT GROUP-49, LLC	 
	 	 	 
	By:	/s/ Shane Seagle	 
	Name:	Shane
    Seagle	 
	Title:    	Manager	 


 




    	 	4	 



     


    

 


	Purchaser:	 
	 	 
	ArchCo Residential LLC	 
	 	 	 
	By:	/s/ Neil T. Brown	 
	Name:	Neil T. Brown	 
	Title:	Chief Executive Officer	 


 




    	 	5	 



     


    

 


Exhibit 1


 


Structure Diagram for Project Owner


 


[See attachment]


 




    	 	6