Exhibit 10.288


 


FOURTH AMENDMENT TO AGREEMENT
OF PURCHASE AND SALE


[Domain Site, Garland, TX]


 


This FOURTH AMENDMENT TO AGREEMENT OF PURCHASE
AND SALE (this “Amendment”) is made and entered into as of August 14, 2015 (the “Effective Date”), by and
between RCM Firewheel, LLC, a Texas 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 the Agreement of Purchase and Sale dated as of April 29, 2015 (the “Original Agreement”),
with respect to approximately 135.89 acres of land located in Garland, Texas (the “Property”), as more particularly
described in the Purchase Agreement.


 


B.            Seller
and Purchaser have also entered into the Amendment to Agreement of Purchase and Sale, dated as of July 13, 2015 (the “First
Amendment”), the Second Amendment to Agreement of Purchase and Sale, dated as of July 29, 2015 (the “Second Amendment”),
and the Third Amendment to Agreement of Purchase and Sale, dated as of August 6, 2015 (the “Third Amendment”). The
Original Agreement, as amended by the First Amendment, the Second Amendment and the Third Amendment, is referred to in this Amendment
as the “Purchase 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.           Due
Diligence Period. The Due Diligence Period shall expire on August 14, 2015, and this Amendment serves as Purchaser’s
Due Diligence Notice under Section 2.2(b) of the Original Agreement.


 


3.           Geotechnical
Investigation.


 


3.1           Geotechnical
Investigation Period. Notwithstanding that the Due Diligence Period expires on August 14, 2015, Purchaser shall have through
August 31, 2015 (the “Geotechnical Investigation Period”) to (a) perform geotechnical investigations for the Property
(“Purchaser’s Geotechnical Investigation”), (b) determine the scope of the Phase I Preparation Work and the Phases
II & III Preparation Work (as those terms are defined in Paragraph 3.2), and (c) obtain the Phase I Preparation Cost Estimate
and the Phases II & III Preparation Cost Estimate (as those terms are defined in Paragraph 3.3).


 


3.2           Phase
I Preparation Work. “Phase I Preparation Work” means the work necessary, as determined by Purchaser’s geotechnical
engineer, to prepare the existing soils on the Phase I Land so that the soils are in an acceptable state to receive the mass grading
work relating to the Flood Plain Improvements and are not detrimental to future building construction for the Phase I Project.
“Phase I Engineer’s Cost Estimate” means an estimate prepared by Purchaser’s geotechnical engineer of the
total costs to perform the Phase I Preparation Work.


 




     


     


    

 


3.3           Phases
II & III Preparation Work. “Phases II & III Preparation Work” means the work necessary, as determined by
Purchaser’s geotechnical engineer, to prepare the existing soils on the Phase II Land and the Phase III Land so that the
soils are in an acceptable state to receive the mass grading work relating to the Flood Plain Improvements and are not detrimental
to future building construction for the Phase II Project and the Phase III Project. “Phases II & III Engineer’s
Cost Estimate” means an estimate prepared by Purchaser’s geotechnical engineer of the total costs to perform the Phases
II & III Preparation Work.


 


3.4           Purchaser’s
Election Regarding Phase I Preparation Work. If the Phase I Engineer’s Cost Estimate does not exceed $100,000, Seller
and Purchaser shall proceed to Closing for the Phase I Property and Seller, at Purchaser’s cost, shall perform the Phase
I Preparation Work before commencing the construction of the Flood Plain Improvements in accordance with the Purchase Agreement.
Notwithstanding anything to the contrary in the Purchase Agreement, if the Phase I Engineer’s Cost Estimate exceeds $100,000,
Purchaser may elect, by delivering written notice to Seller and Escrow Agent on or before the last day of the Geotechnical Investigation
Period, to either (a) terminate the Purchase Agreement, or (b) proceed to Closing for the Phase I Property (the “Phase I
Closing Election”). If Purchaser terminates the Purchase Agreement in accordance with this Paragraph 3.4, the Escrow Agent
shall disburse the Earnest Money to Purchaser in accordance with Section 9.2 of the Original Agreement, and all further rights
and obligations of the parties under the Purchase Agreement shall terminate, except those which by their terms survive any termination
of the Purchase Agreement. If Seller and Purchaser proceed to Closing for the Phase I Property in accordance with this Paragraph
3.4: (i) Seller will obtain an estimate of the costs to perform the Phase I Preparation Work from the FPI Contractor (the “Phase
I Contractor’s Estimate”); (ii) Purchaser shall, at Closing for the Phase I Property, deposit with the Escrow Agent,
to be held in the FPI Escrow Account in accordance with the terms and conditions of the FPI Escrow Agreement, an amount equal to
the least of (A) the Phase I Engineer’s Cost Estimate, (B) the Phase I Contractor’s Estimate, or (C) such lesser amount
to which Purchaser and Seller may agree, each in its sole discretion; and (iii) Seller shall perform the Phase I Preparation Work
before commencing the construction of the Flood Plain Improvements in accordance with the Purchase Agreement.


 


3.5           Seller’s
Election Regarding Phases II & III Preparation Work. If the Phases II & III Engineer’s Cost Estimate does not
exceed $100,000 and Purchaser does not terminate the Purchase Agreement in accordance with Paragraph 3.4, Seller, at Seller’s
cost, shall perform the Phases II & III Preparation Work before commencing the construction of the Flood Plain Improvements
in accordance with the Purchase Agreement. If the Phases II & III Engineer’s Cost Estimate exceeds $100,000, Seller may
elect, by delivering written notice to Purchaser and Escrow Agent on or before the third Business Day after Purchaser delivers
the Phases II & III Engineer’s Cost Estimate to Seller, to either (a) perform, at Seller’s cost, the Phases II
& III Preparation Work before commencing the construction of the Flood Plain Improvements in accordance with the Purchase Agreement,
or (b) perform the Flood Plain Improvements in accordance with the Purchase Agreement without regard to the Phases II & III
Preparation Work (the “No Preparation Work Election”). If Seller does not deliver written notice of its election in
accordance with the immediately preceding sentence, Seller shall be deemed to have elected the No Preparation Work Election. Purchaser
and Seller will proceed to Closing for the Phase I Property regardless of Seller’s election under this Paragraph 3.5. Notwithstanding
anything to the contrary in the Purchase Agreement, if Seller elects the No Preparation Work Election in accordance with this Paragraph
3.5, (i) Purchaser shall have the right but not the obligation to waive the Phase II Option and the Phase III Option by delivering
written notice to Purchaser and Escrow Agent on or before the Closing the Phase I Property; and (ii) if Purchaser waives the Phase
II Option and the Phase III Option in accordance with this Paragraph 3.5, Purchaser shall not be obligated to deliver the Phase
II Option Payment and the Phase III Option Payment at the Closing the Phase I Property.


 


4.          Compaction
Specifications. Seller agrees that the specifications for the mass grading work to be performed as part of the Flood Plain
Improvements will include the compaction specifications recommended in the letter dated August 6, 2015 from RGL Consulting Engineers
to Purchaser. For clarity, the specifications for the Phase I Preparation and the Phases II & III Preparation Work will be
separately determined.


 




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5.          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.


 


6.          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.


 


7.          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.


 




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Seller and
Purchaser have
executed this Amendment
as of the Effective Date
.


 


	Seller:	 
	 	 
	RCM Firewheel, LLC	 
	a Texas limited liability company	 
	 	 
	By: 	/s/ Tim Coltart	 
	Name: 	Tim Coltart	 
	Title: 	President	 


 




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	Purchaser:	 
	 	 
	ArchCo Residential, LLC	 
	a Delaware limited liability company	 
	 	 
	By: 	/s/ Neil T. Brown	 
	Name: 	Neil T. Brown	 
	Title: 	Chief Executive Officer	 


 




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