FIFTH AMENDMENT TO SALES CONTRACT


 


 


THIS FIFTH AMENDMENT TO
SALES CONTRACT (the “Amendment”) is made and entered into this 30th day of November, 2015
(the “Fifth Amendment Effective Date”), by and between ACRE REALTY LP, a Georgia limited partnership,
formerly named Roberts Properties Residential, L.P. (“Seller”), and BRADLEY PARK APARTMENTS, LLC, a
Georgia limited liability company (“Purchaser”).


 


 


W I T N E
S S E T H T H A T:


 


WHEREAS, Seller and Purchaser
are parties to that certain Sales Contract having an Effective Date of January 26, 2015, with respect to the sale by Seller to
Purchaser of approximately 22.03 acres of land located in Forsyth County, Georgia, which Sales Contract was amended by that certain
(i) First Amendment to Sales Contract having an Amendment Effective Date of July 24, 2015, between Seller and Purchaser (the “First
Amendment”), (ii) Second Amendment to Sales Contract having a Second Amendment Effective date of September 3, 2015
between Seller and Purchaser (the “Second Amendment”), (iii) Third Amendment to Sales Contract having
a Third Amendment Effective Date of November 11, 2015 between Seller and Purchaser and (iv) Fourth Amendment to Sales Contract
having a Fourth Amendment Effective Date of November 17, 2015 between Seller and Purchaser (the Sales Contract, as amended, is
hereinafter referred to as the “Sales Contract”); and


 


WHEREAS, Seller and Purchaser
are mutually desirous of entering into this Amendment to amend certain terms and provisions of the Sales Contract only as hereinafter
specifically set forth;


 


NOW, THEREFORE, for and
in consideration of the premises, Ten Dollars in hand paid by Purchaser to Seller, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged by the parties hereto prior to the execution, sealing and delivery
of this Amendment, Seller and Purchaser, intending to be legally bound, hereby agree as follows:


 


1.                 
The foregoing recital of facts is hereby incorporated herein to the same extent as if hereinafter fully set forth. Capitalized
words and phrases used herein which are not defined herein but which are defined in the Sales Contract shall have the meanings
ascribed thereto in the Sales Contract.


 






    	 



     

    

2.                 
Concurrently with the
execution hereof, (i) Escrow Agent shall pay the $75,000 Deposit held by Escrow Agent directly to Seller in accordance with wire-transfer
instructions to be provided by Seller to Escrow Agent (the “Additional Released Deposit”) and (ii) Purchaser
shall deposit with Seller an additional $25,000 in accordance with wire-transfer instructions to be provided by Seller (the “Extension
Deposit”), and (iii) Purchaser shall deposit with Seller an additional $86,000.00 (the “Improvements
Deposit”) to assure Seller that there will be monies available to pay for the cost of installing erosion control
measures and for the clearing and removing of all trees from the Property as provided in the Second Amendment. The Additional
Released Deposit, the Extension Deposit, the Improvements Deposit and the $45,000 Deposit released to Seller pursuant to the First
Amendment (the “Initial Released Deposit”) shall be deemed earned by Seller and shall be non-refundable
to Purchaser in all events other than any actual breach by Seller of its obligations under the Sales Contract, and, except in
the event of any actual breach by Seller of its obligations under the Sales Contract, Purchaser hereby waives all right, title,
interest and/or claims (whether by contract, at law or in equity) of any kind or nature in and to the Additional Released Deposit,
the Extension Deposit, the Improvements Deposit and the Initial Released Deposit except that the Additional Released Deposit,
the Extension Deposit, the Improvements Deposit and the Initial Released Deposit shall be applied against the Purchase Price due
and payable by Purchaser to Seller at Closing if the Closing is consummated (the “Deposit Closing Application”).
Purchaser hereby releases Seller from any and all claims (whether by contract, at law, or in equity), losses, damages, liabilities
or obligations of any kind or nature (known or unknown) which Purchaser has, had or purports to have with respect to the transaction
contemplated in the Sales Contract from the beginning of time through the Fifth Amendment Effective Date, and covenants not to
sue Seller with respect thereto. Purchaser acknowledges and agrees that if it breaches the release and covenant not to sue set
forth in the preceding sentence, the liquidated damages remedy in the Sales Contract shall be of no force or effect with respect
to such breach.


 


3.            
Intentionally omitted.


 


4.            
In consideration of the Additional Released Deposit, the Extension Deposit and the Improvements Deposit, the Sales Contract
is hereby amended to provide that the Closing Date is hereby extended to any business day on or before December 8, 2015, provided
that Purchaser gives Seller at least one (1) business day’s notice as to the specified business day for Closing, provided,
however, on written notice given to Seller no later than December 7, 2015, the Purchaser shall have the right to further extend
the Closing Date to any business day no later than January 30, 2016 specified by Purchaser in a subsequent written notice given
to Seller no later than three (3) business days prior to the specified business day for Closing.


 


5.            
If a Closing does not occur by January 30, 2016, for any reason other than any actual breach by Seller of its obligations
under the Sales Contract (and Purchaser agrees that if it is in default with regard to Closing the transaction contemplated in
the Sales Contract, Seller shall not be obligated to tender a Closing), then in such event Purchaser hereby acknowledges that
it shall be in default of the Sales Contract and hereby waives all right, title, interest and/or claims (whether by contract,
at law or in equity) of any kind or nature in and to the Deposit Closing Application, the Sales Contract and the Property and
Purchaser further releases Seller from any and all claims (whether by contract, at law or in equity), losses, damages, liabilities
or obligations of any kind or nature (known or unknown) which the Purchaser has, had or purports to have with respect to the Deposit
Closing Application, the Additional Released Deposit, the Extension Deposit, the Improvements Deposit, the Initial Released Deposit,
the Sales Contract and the Property and covenants not to sue Seller with respect to any of the foregoing. Purchaser acknowledges
and agrees that if it breaches the release and covenant not to sue set forth in the preceding sentence, the liquidated damages
remedy in the Sales Contract shall be of no force or effect with respect to such breach.


 






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6.            
In addition, if a Closing does not occur by January 30, 2016, for any reason other than any actual breach by Seller of its
obligations under the Sales Contract (and Purchaser agrees that if it is in default with regard to Closing the transaction contemplated
in the Sales Contract, Seller shall not be obligated to tender a Closing), Purchaser shall promptly provide Seller with copies
of all engineering and architectural materials, intellectual property, correspondence (relating to the development of the Property),
studies, specifications, third party reports of any kind or nature, design drawings, surveys, contracts, licenses, permits, bonds
and approvals relating to the Property and obtained by Purchaser (or its affiliates) and, thereafter, if Seller shall request in
writing, Purchaser shall promptly arrange for the assignment of any of the foregoing to Seller. Purchaser acknowledges and agrees
that if it breaches the covenant set forth in the preceding sentence, the liquidated damages remedy in the Sales Contract shall
be of no force or effect with respect to such breach.


 


7.            
Time is of the Essence as to all dates and timeframes set forth in this Amendment and the Sales Contract.


 


8.            
In order to expedite the execution of this Amendment, telecopied or PDF signatures may be used in place of original signatures
on this Amendment. Purchaser and Seller intend to be bound by the signatures on the telecopied or PDF document, are aware that
the other party will rely on such signatures, and hereby waive any defenses to the enforcement of the terms of this Amendment based
on the form of signature. This Amendment may be executed and delivered in any number of counterparts, each of which so executed
and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. This Amendment shall
be governed by and construed in accordance with the laws of the State of Georgia. Except as herein specifically amended, the Sales
Contract shall remain in full force and effect and unamended. This Amendment shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.


 


IN WITNESS WHEREOF, the undersigned have caused
this Amendment to be duly executed, sealed and delivered as of the Fifth Amendment Effective Date.


 


 


[Signatures Follow]


 


 



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	 	PURCHASER:
	 	 
	 	BRADLEY PARK APARTMENTS, LLC, a Georgia limited liability company
	 	 
	 	By:	Roberts Bradley, LLC, a Georgia limited liability company, its sole member and manager
	 	 	 	 	 
	 	 	By:	Roberts Properties, Inc., a Georgia corporation, its sole member and manager
	 	 	 	 	 
	 	 	 	By:  	/s/ David M. Phillips	 
	 	 	 	 	David M. Phillips	 
	 	 	 	 	Vice President of Development	 
	 	 	 	 	 
	 	SELLER:
	 	 
	 	ACRE REALTY LP, a Georgia limited partnership, formerly named Roberts Properties Residential, L.P.
	 	 
	 	By:	Acre Realty Investors Inc., a Georgia corporation, formerly named Roberts Realty Investors, Inc., its general partner
	 	 	 	 	 
	 	 	 	 	 
	 	 	By: 	/s/ Robert Gellert	 
	 	 	 	Name:   	Robert Gellert	 
	 	 	 	Title: 	Executive Vice President	 


 


 


	 	 	ESCROW AGENT:
	 	 	 
	 	 	COMMONWEALTH LAND TITLE 
	 	 	INSURANCE COMPANY
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	By: 	/s/ Susan Vander Meer	 
	 	 	 	Name: 	Susan Vander Meer	 
	 	 	 	Title: 	Escrow Manager	 


 






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