Exhibit 10.334


 


FIFTH AMENDMENT TO AGREEMENT OF PURCHASE
AND SALE


Flagler Village Site, Fort Lauderdale, FL
– Andrews Village Property


 


This FIFTH AMENDMENT TO AGREEMENT OF PURCHASE
AND SALE (this “Amendment”) is made and entered into as of October 31, 2015 (the “Amendment Date”),
by and among ArchCo Residential LLC (“Purchaser”) and Andrews Village LLC (“Seller”).


 


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 January 12, 2015 (the “Original Agreement”),
with respect to the real property owned by Seller and located on the east side of North Andrews Avenue between NE 5th
Street and NE 6th Street in Fort Lauderdale, Florida, (the “Property”), as more particularly
described in the Original Agreement.


 


B.           Seller
and Purchaser entered into an Amendment to the Original Agreement dated as of February 9, 2015 (the “First Amendment”),
a Second Amendment to the Original Agreement dated as of April 30, 2015 (the “Second Amendment”), a Third
Amendment to the Original Agreement dated as of June 30, 2015 (the “Third Amendment”), and a Fourth Amendment
to the Original Agreement dated as of September 15, 2015 (the “Fourth Amendment”). The Original Agreement,
as amended by the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment, is referred to in this Amendment
as the “Purchase Agreement”.


 


C.          While
not a party to the Original Agreement, Lender signed the Original Agreement as consenting to the consummation of the transactions
described in the Purchase Agreement.


 


D.          Seller
and Purchaser desire to amend the Purchase Agreement in accordance with 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.          Extension
of Closing Date. Section 1.1(h) of the Purchase Agreement
is amended to read as follows:


 


“(h)
Closing Date:             As designated by Purchaser upon not less than five Business
Days’ prior notice, but not later than December 17, 2015.”


 


3.          Purchaser
Price. Section 1.1(f) of the
Purchase Agreement is amended to read as follows:


 


“(f)         Purchase
Price: $2,500,000.00; plus the Purchase Price shall be increased by the sum of:


 


(i)          $150,000.00;


 


(ii)         $71,456.00
(for interest that accrues on the outstanding principal balance of the loan secured by the Mortgage at the rate of $308.00 per
day for the period beginning on April 30, 2015 and ending on December 17, 2015); and


 


(iii)        $12,121.40
(for property taxes for the period starting on April 30, 2015 and ending on December 31, 2015 at the rate of $49.274
per day)


 




     

     

    

 


This Section 1.1(f) supersedes
Section 1.1(f) of the Original Agreement as previously modified by Section 3 of the Fourth Amendment.”


 


4.          Extension
Period Interest. In consideration for and as a condition
of the extension of the outside Closing Date in accordance with Section 2 of this Amendment, Purchaser will pay to Seller
the amount of $14,476.00 (the “Extension Period Interest Amount”), for interest that accrues on the outstanding
principal balance of the loan secured by the Mortgage at the rate of $308.00 per day for the period beginning on November 1,
2015 and ending on December 17, 2015, within three Business Days after the Execution Date (defined in Section 11 of this
Amendment). Seller shall (a) pay the Extension Period Interest Amount to Lender not later than two Business Days after Seller
receives the Extension Period Interest Amount, and (b) instruct Lender to (i) apply the Earnest Money to reduce Seller’s
outstanding indebtedness to Lender under the loan secured by the Mortgage, and (ii) acknowledge in writing the receipt and
application of the Extension Period Interest Amount for such purpose to Seller and Purchaser within three Business Days after the
Seller pays the Extension Period Interest Amount to Lender pursuant to this Section 6.  So long as Seller receives
the Extension Period Interest and pays it to Lender in accordance with this Section 6, the Extension Period Interest Amount
shall not be refundable to Purchaser. So long as Purchaser pays the Extension Period Interest Amount to Seller, the Extension Period
Interest Amount shall be applied to the Purchase Price.


 


6.          2015
Property Taxes. In consideration for and as a condition
of the extension of the outside Closing Date in accordance with Section 2 of this Amendment, Purchaser will pay to Seller
the amount of $12,121.40, for property taxes for the period starting on April 30, 2015 and ending on December 31,
2015 (“Purchaser’s Share of 2015 Taxes”), within three Business Days after the Execution Date (defined in Section 11
of this Amendment). Within two Business Days after Purchaser pays Purchaser’s Share of 2015 Taxes to Seller, Seller shall
pay all property taxes relating to the Property for 2015 (the “2015 Taxes”). So long as Seller receives Purchaser’s
Share of 2015 Taxes and pays the 2015 Taxes in accordance with this Section 6, Purchaser’s Share of 2015 Taxes shall
not be refundable to Purchaser. So long as Purchaser pays Purchaser’s Share of 2015 Taxes to Seller, Purchaser’s Share
of 2015 Taxes shall be applied to the Purchase Price.


 


7.          Proration
of Taxes. So long as Purchaser pays Purchaser’s
Share of 2015 Taxes to Seller, the first two sentences of Section 6.1(a) of the Purchase Agreement, as amended by Section
2.3 of the Second Amendment, shall be deleted and replaced with the following:


 


“Seller shall receive no
credit for any accrued but unpaid general real estate taxes and assessments (including without limitation any assessments imposed
by private covenant, “Taxes”) applicable to any period before January 1, 2016, and Purchaser shall receive
a credit for any accrued but unpaid Taxes applicable to any period before January 1, 2016, even if such Taxes are not yet
due and payable.”


 


8.          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
by facsimile or other form of electronic transmission.


 


9.          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.


 






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10.        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. 


 


11.        Execution
Date. This Amendment will be effective as of the Amendment Date upon on the latest date of execution by Seller, Purchaser or
Lender, as indicated on the signature page of this Amendment (the “Execution Date”).


 




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The undersigned have executed this Amendment
as set forth below.


 


Purchaser:


 


	ArchCo Residential LLC	 	 
	 	 	 	 
	By:	/s/ Neil T. Brown	 	Date:  11/23/15
	 	Neil T. Brown, its Chief Executive Officer	 	 


 




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	Seller:	 	 	 
	 	 	 	 
	Andrews Village LLC	 	 
	 	 	 	 
	By:	/s/ Richard Schwartz	 	Date:  11/20/15
	 	Richard Schwartz, its Managing Member	 	 


 


While not party to the Purchase Agreement, as amended by this
Amendment, Lender consents to Seller entering into this Amendment and the consummation of the transactions described in the Purchase
Agreement, as amended by this Amendment, in accordance with its terms and conditions.


 


	Lender:	 	 
	 	 	 
	Sunstate Bank	 	 
	 	 	 	 
	By:	/s/ Charles Davis	 	Date:  11/23/15
	Name:	Charles Davis	 	 
	Title:	CFO	 	 


 




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