SWA000148_Pending Sales Agreement_20220607

Authentisign ID: F3A750A9-C70E-46CE-861)4-37716ADFBA30
V5— 5-13-21
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement') made as of
5 -14 - 2021 � 2021, by and between KBNK HOLDINGS, LLC, a North Carolina limited
liability company ("Seller"), whether one or more, and Gray Wolf Development, LLC, a North
Carolina limited liability company or assigns ("Purchaser'), with the joinder and consent of
Narron Wenzel, P.A. (hereinafter referred to as "Escrow Agent").
WITNESSETH:
WHEREAS, Seller is the owner and holder of the fee simple title to that certain parcels of
approximately 36 +/- acres, more or less, such parcels being located in Angier, North Carolina,
and being identified as PID. 040673 0175 06, 040673 0175 05, 040673 0175 07, and 040673
0175 08, Harnett County, North Carolina, more particularly described and depicted on Exhibit
"A" attached hereto, together with all easements, hereditaments, privileges, appurtenances and
rights belonging to and inuring to the benefit of said real property (the "Land"); and
WHEREAS, Seller owns the Land together with all buildings, structures and other
improvements currently located thereon, and all rights, ways, privileges and easements
appurtenant to the Land, including Seller's right, title and interest in and to all strips, gores,
streets, roads, alleys and ways, public or private, adjoining or crossing the Land, all of which are
appurtenant to, and shall benefit, the Land (the "Improvements"); and
WHEREAS, Seller has agreed to assign and convey to Purchaser any and all warranties,
guaranties, certificates, licenses, plans, governmental approvals, utility agreements, bonds, water
and sewer agreements, authorizations, certificates of occupancy, and other permits, consents and
approvals relating to the ownership or use of the Improvements which in any respect whatsoever
relate to or arise out of the use, occupancy, possession, development, construction or operation of
the Land as the same exists as of the Execution Date or comes to exist following the Execution
Date through Closing (the "Approvals"), but shall not constitute an assumption by Purchaser of
Seller's Approvals; and
WHEREAS, the Land and Improvements thereon and the Approvals, together with all of
the rights and appurtenances appertaining thereto, are hereinafter collectively referred to as the
"Pro e "; and the sale of the Property contemplated hereby shall also include the assignment,
transfer and conveyance of all of Seller's right, title and interest in and to all intangible personal
property, including, without limitation, maintenance and service contracts, water and sewer
hook-ups, impact fee credits, development agreements, approvals, easements, permits, plans,
reports, studies, consents and agreements, as well as all rents, issues, proceeds and profits now or
hereafter accruing from the Property, all of which are intended to encompass all of Seller's
contractual rights, benefits and entitlements relating to the Property.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto, each intending to be legally bound, do hereby agree as follows:
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WITNESSETH:
1. Recitation. The recitations set forth in the preamble of this Agreement are true
and correct and are incorporated herein by this reference.
2. Sale of Pro e . Seller shall sell, transfer, assign and convey to Purchaser at the
"Closing," as hereinafter defined, approximately thirty-six (36) acres of the Property, and
Purchaser shall accept such conveyance, subject to the conditions hereof and upon the
representations and warranties herein made.
3. Purchase Price.
(a) The purchase price to be paid by Purchaser to Seller for the Property ("Purchase Price")
shall be One Million, Six Hundred Thousand and 00/100 Dollars ($1,600,000.00), subject to the
provisions of Section 6(vii) and a final determination of the portion of the Property estimated to
be taken by the Department of Transportation ("DOT") for the Highway 55 bypass addressed
further below.
(b) The Purchase Price shall be paid as follows:
(i) Within five (5) days of the Effective Date, Purchaser will deposit with
Escrow Agent an earnest money deposit in the amount of Twenty Thousand Dollars
($20,000.00) ("De osit '), such Deposit to be credited towards this Agreement. The Deposit to
shall be held by Escrow Agent in accordance with the terms of this Agreement. The Deposit
shall be held by Escrow Agent in a non -interest bearing account. Should Purchaser close on the
Property, the Deposit shall be credited as part of the Purchase Price.
(ii) At Closing, the Purchaser shall pay to Seller the Purchase Price payable in
cash or by wire transfer of same day good funds acceptable to Escrow Agent for disbursement by
Escrow Agent to Seller, subject to prorations, adjustments and credits as hereinafter set forth. At
Closing, Purchaser may allocate the Deposit or a portion thereof to be applied against the
purchase price under this Agreement.
4. Deed. At Closing, Seller shall furnish and deliver to Escrow Agent for delivery to
Purchaser: a special warranty deed (the "Deed") dated as of the Closing Date, conveying the
Property according to the legal description attached hereto as Exhibit A, or if such legal
description has been modified by the Title Commitment or Survey in a manner reasonably
satisfactory to Purchaser and Seller, then the Property shall be conveyed by such modified legal
description, the Deed being subject to the Permitted Exceptions. "_Permitted Exceptions" shall
mean, (a) ad valorem real estate taxes for the year of Closing and subsequent years not yet due
and payable, (b) zoning restrictions and prohibitions imposed by governmental authority, and (c)
other matters set forth in the Commitment or Purchaser's Survey that are not the subject of a Title
Notice from Purchaser.
5. Title. Within seven (7) days from the beginning of the Entitlement Period ("Title
Delivery Date"), Seller shall, at its expense, cause to be delivered to Purchaser, copies of any
existing title reports and policies, leases, declarations, boundary or ALTA surveys, zoning
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materials, site plans, leases, environmental reports (including, but not limited to a Phase I),
geotechnicaI reports, engineering reports, any documentation pertaining to the DOT
Condemnation Action, and any other information with respect to the Property that Seller has in
its possession or within its control in order to assist Purchaser with its review of the Property
(hereinafter collectively referred to as the "Seller's Title Evidence"). Within the "Title Review
Period" (as hereinafter defined), Purchaser, at its cost, may cause a survey to be prepared of the
Property ("Survey"). If the Survey reveals any encroachments upon the Property or that any
improvements on the Property encroach onto adjacent property, said encroachments shall be
treated as a title defect hereunder.
In furtherance of the foregoing, and not as a limitation thereof, Seller's Title Evidence
and the Purchaser's Survey and the state of title reflected thereby shall be such that a national
title insurance company selected by Purchaser (the "Title Company") will pursuant to
Purchaser's request issue a commitment ("Commitment") for the issuance of a Owner's Policy of
Title Insurance ("Owner's Policy") and a Loan Policy of Title Insurance ("Loan Policy") to a
lender designated by Purchaser. At the request of Purchaser or Purchaser's lender, the
Commitment shall also (a) insure, as part of the insured property, any appurtenant access,
drainage, utility or signage easement that benefits or serves the Property, and (b) include the
issuance of such endorsements as Purchaser and its lender may request that are available for
issuance in North Carolina. In the event the Commitment and/or the Purchaser's Survey reflects
any title condition which shall adversely affect the use or operation of the Property or which
shall render title to the Property or any insured easements to be other than good, marketable and
insurable, Purchaser may notify Seller of such objections ("Title Notice") on or before the
expiration of the Entitlement Period (as hereinafter defined, the "Title Review Period"). In
addition, Purchaser may give Seller a Title Notice as to any title exception (a "New Title
Matter') first appearing in any update of the Commitment prior to Closing. In the event
Purchaser gives Seller a Title Notice Seiler shall have a reasonable time, not to exceed thirty (30)
days, in which to cure such title objection(s). If, after the expiration of said thirty (30) day
period, Seller has not cured the defect(s) of which Purchaser gave notice, then, and in such event
occurring, the Purchaser may terminate this Agreement and the Deposit shall be forthwith
returned by Escrow Agent to Purchaser, and all parties hereto shall be released and relieved of
any and all further obligations hereunder or in connection herewith; or Purchaser may, at
Purchaser's option, require Seller to deliver title to the Property in its then existing condition with
no diminution of the Purchase Price, thereby waiving such objections to title. Nothing herein
shall be deemed to limit Seller's absolute obligation to satisfy, out of the closing proceeds or
otherwise, any and all liens, encumbrances or other obligations of indebtedness now or hereafter
affecting the Property.
6. Reqpresentations and Warranties of Seller. Seller covenants, represents and
warrants to Purchaser as follows, to wit:
(i) There are no legal actions, suits or other legal or administrative
proceedings pending or threatened against, by or affecting Seller which question the validity of
this Agreement or of any action to be taken by Seller pursuant to or in connection with this
Agreement or otherwise affecting the Property, in any court or before any governmental agency,
domestic or foreign;
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(ii) Seller has the full right, power and authority to own and convey the
Property to Purchaser, and does not need any further consents, joinders or other authorization
from any governmental or private entity, corporation, partnership, firm, individual or other
entity to execute, deliver and perform its obligations under this Agreement, and to consummate
the transaction contemplated hereby.
(iii) At Closing, no work shall have been performed or be in progress and no
materials or services shall be furnished with respect to the Property or any portion thereof which
could give rise to any mechanic's, materialmen or other liens. At Closing, Seller shall furnish to
Purchaser an affidavit attesting to the absence of any such liens or potential Iiens to permit the
Title Company to delete the mechanic's lien standard preprinted exception.
(iv) That currently, to the best of Seller's actual knowledge, and from the
Effective Date until the time of the Closing, the Property is not (and Seller will not take an
action without the written consent of Purchaser, to allow the Property to be) affected by any
service, maintenance, property management or any other contracts or other agreements of any
kind, other than those, if any, Purchaser elects in writing to assume.
(v) To the extent there are any current agricultural leases on the Property,
any existing tenants are permitted to farm the Property for the remainder of calendar year 2021.
Should this Agreement not be terminated by Purchaser prior to the expiration of the Entitlement
Period, Seller agrees not to lease the Property after December 31, 2021. Except as specifically
addressed, there are currently no other leases, use rights or other rights of occupancy affecting
the Property, and that, at the time of Closing there will be no leases, use rights or other rights of
occupancy affecting the Property.
(vi) That neither the entering into this Agreement nor the Closing will
constitute a violation or breach by Seller of any contract, agreement, understanding or
instrument to which it is a party or by which Seller or the Property is subject or bound; of any
judgment, order, writ, injunction or decree issued against or imposed upon them.
(vii) Seller has advised Purchaser, and Purchaser acknowledges and agrees that
the DOT has provided notice of a proposed condemnation action ("DOT Condemnation Action"),
pertaining to anticipated improvements with the Highway 55 bypass. It is anticipated that the DOT
Condemnation Action may impact 1.6 acres, more or less, of the Property, and the final amount of
impacted acreage by the DOT Condemnation Action is unknown. The Purchase Price is based on
the DOT Condemnation Action not impacting more than two (2) acres of the Property; should the
final acreage of the DOT Condemnation Action impact more than two (2) acres of the Property, the
parties agree that Purchaser shall have the right to terminate this Agreement, receive a full refund
of its Deposit, and neither party will have any obligation or responsibility to the other hereunder.
The parties further agree that Seller will not sell, and Purchaser will not purchase, the acreage
impacted by the DOT Condemnation Action. Purchaser further acknowledges that neither this
Agreement nor Seller's sale of the Property shall impact Seller's right to just compensation with
respect to the DOT Condemnation Action, each of which shall be reserved by Seller. Seller shall
retain full authority to negotiate, settle, and otherwise receive any deposits that have been or may
be made related to the DOT Condemnation Action with the Harnett County Clerk of Superior
Court's office, and any and all increases to such deposits, judgment awards, and settlement
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proceeds or other amounts associated with or arising out of the DOT Condemnation Action,
whether the same are paid, due, received, or credited before or after Closing. Seller agrees to
notify Purchaser of any correspondence, filings, maps, or other materials received from the DOT
pertaining to the DOT Condemnation Action or that may be associated with any further eminent
domain proceedings on the Property within five (5) days after Seller receives the same or learns
thereof.
With the exception of the DOT Condemnation Action, there are no other condemnation
proceedings pending with respect to any portion of the Property and Seller has no actual
knowledge of any other pending or contemplated condemnation proceeding which could affect
any portion of the Property.
(viii) Seller is neither a "foreign person" nor a "foreign corporation" (as those
terms are defined in Section 7701 of the Internal Revenue Code of 1986, as amended).
(ix) No other person, firm or entity has any right by, through or under Seller
to acquire all or any portion of the Property or any interest therein.
(x) That there are no violations of law or governmental ordinances, codes,
orders, development or subdivision permits or requirements noted in, issued or threatened by
any departments of building, fire, labor, health or other federal, state, county, municipal or other
departments and/or governmental and/or quasi -governmental agencies having jurisdiction with
respect to the Property.
(xi) No commitments or agreements have been made to any governmental or
quasi -governmental authority, utility company, school board, church or other religious body,
any homeowners' association, or any other organization, group or individual relating to the
Property that have not been fulfilled or satisfied prior to the Execution Date hereof which would
impose an obligation upon Purchaser, as owner of the Property, to construct, install or maintain
any improvements of a public or private nature on or off the Property.
(xii) To the best of Seller's actual knowledge, Seller has not caused hazardous
substances to be discharged, disbursed, released, stored, treated, generated, disposed of, or
allowed to escape on, in, or under the Property in a manner which violates any law, statute,
code, regulation or ordinance regulating such substances and no other person has caused
hazardous substances to be discharged, disbursed, stored, treated, generated or allowed to
escape on, in or under the Property. To the best of Seller's actual knowledge, no asbestos or
asbestos containing materials have been installed, used, incorporated into, or disposed of on the
Property by Seller. No PCBs have been located on or in the Property, whether in electrical
transformers, fluorescent light fixtures with ballasts, cooling oils, or otherwise, by Seller or, to
the best of Seller's knowledge, by any other person. No underground storage tanks are currently
located on, at or under the Property. No patent or latent defects exist in regard to the
Improvements or with respect to the Real Property. To best of Seller's knowledge, no
investigation, administrative order, consent order or agreement, litigation, or settlement with
respect to hazardous substances is proposed, threatened, anticipated or in existence with respect
to the Property. To the best of Seller's knowledge, the Property has not previously been used as
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a landfill, a cemetery, or a dump for garbage or refuse by Seller or, to the best of Seller's
knowledge, by any other person.
(xiii) Neither Seller nor any of Seller's members, owners, officers, or directors
is a Specially Designated National or Blocked Person. As used herein, the term "Specially
Designated National or Blocked Person" shall mean a Person (i) designated by the Office of
Foreign Assets Control at the U.S. Department of the Treasury, or other U.S. governmental
entity, and appearing on the List of Specially Designated Nationals and Blocked Persons
(http://www.ustreas.gov/offices/enforcement/ofac/sdn/index.shtml}, which List may be updated
from time to time; or (ii) with whom U.S. Persons are prohibited from engaging in transactions,
by any trade embargo, economic sanction or other prohibition of United States law, regulation,
or Executive Order of the President of the United States.
(xiv) Seller has not commenced a voluntary case under Bankruptcy Law nor
has there been commenced against Seller an involuntary case under Bankruptcy Law, nor has
Seller consented to the appointment of a Custodian of it or for all or any substantial part of its
property, nor has a court of competent jurisdiction entered an order or decree under any
applicable Bankruptcy Law that is for relief against Seller or appoints a Custodian for Seller or
for all or any substantial part of Seller's property. The term "Bankruptcy Law" means the
United States Bankruptcy Code, 11 U.S.C.A. §§ 101 et seq. or any federal or state insolvency
laws or laws for composition of indebtedness or for the reorganization of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar official under and
Bankruptcy Law.
(xv) At Closing the Property shall be separately assessed for purposes of ad
valorem real property taxes. Any delinquent real property taxes and assessments due will be
paid by Seller, and any real property taxes for the current year with respect to the Property will
be prorated at Closing on a calendar year basis.
(xvi) Seller has not received written notice from any governmental authority or
any other entity responsible therefor of any fact or condition that would result in the termination
of (i) the current, unimpaired vehicular and pedestrian access from the Property to presently
existing public roads or (ii) access from the Property to existing sewer or other utility facilities
servicing, adjoining or situated on the Property.
Each representation and warranty of Seller contained in this Agreement shall be true and
accurate as of the date hereof and shall be deemed to have been made again at and as of Closing
and shall be true then and accurate in all material respects and shall survive the Closing for a
period of one (1) year after the Closing.
7. Representations and Warranties of Purchaser.
(i) Purchaser represents to Seller that, subject to the terms and provisions
hereof, Purchaser has full right, power and authority to enter into this Agreement and, at
Closing, will have full right, power and authority to consummate the sale provided for herein,
all required corporate, partnership or other action necessary to authorize Purchaser to enter into
and to consummate the sale provided herein has been, or upon the Closing will have been,
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taken, and the joinder of no person or entity other than Purchaser will be necessary to execute
and deliver such documents and instruments at CIosing and to perform all of the obligations of
Purchaser hereunder.
(ii) There are no legal actions, suits or other legal or administrative
proceedings pending or threatened against, by or affecting Purchaser which question the validity
of this Agreement or of any action to be taken by Purchaser pursuant to or in connection with
this Agreement, in any court or before any governmental agency, domestic or foreign.
Each representation and warranty of Purchaser contained in this Agreement shall be true
and accurate as of the date hereof and shall be deemed to have been made again at and as of
Closing and shall be true then and accurate in all material respects and shall survive the Closing
for a period of one (1) year after the Closing.
8. Covenants of Seller. As a material inducement to Purchaser entering into his
Agreement, Seller hereby covenants unto Purchaser the following, to wit:
(i) Subject to the rights of Seller's existing tenants, if any, Purchaser, its
agents, employees and representatives shall have reasonable access to the Property at all times
subsequent to the Execution Date: (i) to inspect the Property; and (ii) to conduct all tests thereon
including but not limited to soil borings and hazardous waste studies, and to make such other
examination with respect thereto as Purchaser, it counsel, licensed engineers, surveyors or other
representative may deem necessary or desirable. Any entry on or to the Property by Purchaser
or its authorized representatives pursuant to the provisions hereof shall be at the risk of
Purchaser. Purchaser shall deliver written notice to Seller of its intention to enter the Property
for the aforementioned testing or inspection, and Purchaser agrees to keep confidential the
results of such testing or inspection and deliver copies of same to Seller. In the event the
transactions contemplated hereby is not consummated and Closing does not occur, and in the
event the physical condition of Property was detrimentally damaged by such inspections or
tests, then Purchaser shall remedy such damage by placing the Property in substantially the
same condition as existed prior to Purchaser's entrance thereon. Purchaser does hereby agree to
and shall indemnify and hold harmless Seller from any injury sustained by or caused by
Purchaser or its agents, employees, servants and contractors in going upon the Property and
making such tests and investigations, except same as result from the negligence or willful
misconduct of Seller, its agents, employees or contractors.
(ii) From and after the date hereof, Seller will refrain from: (i) making any
changes on or about the Property other than as required by this Agreement; (ii) committing any
waste or nuisance on the Property, reasonable wear and tear excepted; or (iii) conveying any
interest in the Property.
(iii) Seller agrees that it will observe all laws, ordinances, regulations and
restrictions affecting the Property and its use;
(iv) Within seven (7) days from the beginning of the Entitlement Period,
Seller shall furnish, or cause to be furnished, to Purchaser any and all soil tests, environmental
tests or, reports, survey and engineering data, title insurance policies or commitments, and all
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other information which Seller has in its actual possession or has a right to possess with respect
to the Property, if any. In the event Purchaser terminates this Agreement or defaults hereunder,
Purchaser shall return said data to Seller.
(v) Seller shall not create or agree to create any matter affecting title to the
Property without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld or delayed;
(vi) Seller shall promptly in writing notify Purchaser of any material adverse
change with respect to the physical condition of the Property, or of any event or circumstance
which makes any representation or warranty of Seller under this Agreement untrue in any
material respect.
9. Entitlement Period. The parties hereto acknowledge that Purchaser, as of the date
of the execution of this Agreement, has not yet had an opportunity to undertake a detailed
analysis of either government or municipal approvals that will be necessary to Purchaser's
intended use of the Property. In that regard, Purchaser shall have a period (the "Entitlement
Period") commencing on the "Execution Date" through and including one hundred fifty (150)
days, in which to conduct such governmental and municipal reviews and analyses. If, prior to
5:00 p.m. on the date ("Entitlement Completion Date") that the Entitlement Period expires,
Purchaser determines in its sole and absolute discretion, that the Property is unacceptable to
Purchaser for any reason or no reason, including without limitation, the objections or
unfavorable review by any governmental or municipal departments or agencies, or for any other
reason whatsoever, Purchaser shall have the unconditional right to give notice to Seller electing
to terminate this Agreement, provided such notice is given no later than 5:00 p.m. on the
Entitlement Completion Date. In the event that such written notice is given by the Purchaser
prior to 5:00 p.m. on the Entitlement Completion Date, then, in that event, the Deposit shall be
immediately returned to Purchaser by Escrow Agent; and upon such delivery, this Agreement
shall terminate, and neither party shall have any further rights or obligations each to the other
under this Agreement. In the event the Purchaser does not elect, in writing, to terminate this
Agreement pursuant to this Paragraph 9 on or before 5:00 p.m. on the Entitlement Completion
Date, then the parties shall proceed to the Investigation Period, the Deposit shall become non-
refundable to Purchaser absent default by Seller, and the remainder of this Agreement shall
remain in full force and effect according to its terms. Seller acknowledges and agrees that
Purchaser's investigation of the Property under both the Entitlement Period and the Investigation
Period is solely for Purchaser's benefit and shall not limit or reduce the representations and
warranties made by Seller hereunder.
10. Investigation Period. Provided Purchaser does not terminate this Agreement prior
to or on the Entitlement Completion Date, Purchaser shall have one hundred ei h 180 days
from the Entitlement Completion Date to conduct its further due diligence and to seek and obtain
such approvals of the Property necessary to allow for the development of the Property for
Purchaser's intended use (the "investigation Period"), to include specifically but not to be limited
to obtaining an environmental condition report and to review, examine, evaluate or otherwise
satisfy itself with respect to the status of the Property, including without limitation, the soil
conditions, environmental conditions, the engineering conditions and the condition of the
Improvements. Purchaser shall be responsible for all cost and expense relating to its
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investigations of the Property. Seller hereby agrees to join in and consent to the filing of all
applications for Purchaser's development plans, as may be reasonably necessary or required. The
Closing shall be contingent on receipt by Purchaser of approval for such development of the
Property as Purchaser, in its sole and absolute discretion, deems necessary.
11. Zoning Approvals. Prior to the expiration of the Entitlement Period, Purchaser
shall file for rezoning and development approval of the Property necessary to allow for the
development of the Property for Purchaser's intended use with the appropriate governmental
authorities (the "Zoning Approvals"), any such Zoning Approvals being contingent upon
Purchaser closing on the Property. Purchaser shall be responsible for all cost and expense
relating to the application and for the Zoning Approvals. Seller hereby agrees to join in and
consent to the filing of all applications for Zoning Approvals as necessary. The Closing shall be
contingent on receipt of the Zoning Approvals for Purchaser's intended use in its sole discretion,
and if not approved prior to the expiration of the Entitlement Period, Purchaser shall have the
option to terminate the Agreement. Upon the expiration of the Entitlement Period, this
Agreement and the Deposit hereunder shall become binding and non-refundable to Purchaser.
12. Conditions Precedent to Purchaser. The occurrence of the following events or
conditions or the written waiver thereof by Purchaser shall be conditions precedent to Purchaser's
obligation to close the transaction contemplated by this Agreement, to -wit:
(i) That, at the time of the Closing contemplated hereby, the Property will be
in compliance with all applicable laws.
(ii) At Closing, Purchaser shall have received the Zoning Approvals to allow
for residential development of the Property, and if not received prior to the Entitlement
Completion Date, the Purchaser shall have the option to terminate the Agreement.
(iii) At Closing, the representations and warranties set forth herein by Seller
shall be true and correct in all material respects.
(iv) There will be adequate and sufficient sewer capacity and sewer access to
the Property from the Town of Angier and/or Harnett County for Purchaser's intended use of
the Property.
(v) Purchaser's approval of the final portions of the Property being acquired
in the DOT Condemnation Action.
(vi) There will be no moratorium imposed by the Town of Angier, Harnett
County, or any governmental authority or utility supplier on new construction that would impact
Seller's intended use of the Property.
The Purchaser shall, however, have the right to waive in writing, the conditions set forth
this Paragraph 12, in whole or in part. If such conditions have not been satisfied or waived, in
whole or in part, on or prior to the expiration of the Investigation Period, Purchaser shall have
the right (a) to terminate this Agreement by giving written notice to Seller, in which event the
Escrow Agent shall immediately return the Deposit then held by Escrow Agent to Purchaser,
whereupon the parties shall be released of all further obligations each to the other under this
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Agreement or (b) proceed to Closing, whereby the condition(s) not otherwise satisfied shall be
deemed waived.
13. Conditions Precedent to Seller. The occurrence of the following events or
conditions or the written waiver thereof by Seller shall be conditions precedent to Seller's
obligation to close the transaction contemplated by this Agreement, to -wit:
(i) At Closing, the representatives and warranties set forth herein by
Purchaser shall be true and correct in all material respects.
14. The Closing. The closing of title hereunder ("Closing") shall take place at the
office of Buyer's counsel ("Closing Location"), or such other mutually acceptable location,
commencing at 10:00 a.m. Eastern Standard Time on the date sixty (60) days after the expiration
of the Investigation Period (the "Closing, Date"). In the event the Closing Date is a Saturday,
Sunday, or local or national holiday, then in that event, the Closing Date shall be extended until
the next business day thereafter occurring.
15. Prorations and Adjustments. State, county or municipal real property taxes and
all other taxes levied or imposed upon, or assessed against, the Property for the calendar year in
which Closing occurs are to be prorated on a daily basis between Seller and Purchaser as of
midnight on the date of the Closing. Further, Seller and Purchaser shall prorate and apportion, as
of the Closing Date, any property owner's association assessments, if any. Real property taxes
shall be prorated on the basis of the then current calendar year's tax, if known. If the Closing
shall occur at a date when the then current calendar year's taxes are not fixed, and the current
year's assessment is available, taxes will be prorated based upon such assessment. If the current
calendar year's assessment is not available, the taxes will be prorated upon the basis of the taxes
for the most recent calendar year; provided, however, any tax proration based upon an estimate
may at the request of either party be promptly readjusted when the current taxes are ascertained,
and a statement to the effect is to be set forth on the Closing Date.
16. Brokerage. Seller agrees to pay to Gray Wolf Realty, Inc., a North Carolina
corporation ("Broker") a two and one-half percent (2.5%) commission on the Purchase Price at
Closing. Other than the identified Broker, Seller and Purchaser hereby indemnify and hold each
other harmless from and against any cost, fees, damages, claims and liabilities, including, but not
limited to, reasonable attorneys' fees arising out of any claim or demand or threats of claim made
by any broker or salesmen claiming by reason of its relationship with the offending parry or its
representatives, employees or agents, whether incurred by settlement and whether or not
litigation results in all trial, arbitration and appellate Ievels. The provisions of this Paragraph
shall survive Closing or earlier termination of this Agreement. It is disclosed that both J. Wade
Corbett and Ben Mathis are licensed Realtors with the North Carolina Real Estate Commission.
17. Closina Costs. The costs of recording any corrective title instruments shall be
paid by Seller. The costs of the transfer taxes for the recording of the deed shall be paid by
Seller. Any deferred or rollback taxes that become due as a result of Closing shall be the
responsibility of and paid by Seller. The cost of searching or examining title and the cost of the
Commitment and the premium due with respect to the Owner's Policy to be issued pursuant to
the Commitment shall be paid by Purchaser. The cost of the Loan Policy to be issued pursuant
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to the Commitment (based on the simultaneous issue rate) and the cost of any endorsements to
the Owner's Policy or Loan Policy requested by Purchaser or Purchaser's lender shall be paid by
Purchaser.
Except in the event of a default hereunder, the parties shall each bear their own
respective attorney's fees.
18. Documents to be Delivered.
(a) At the Closing, simultaneously with the payment of the Purchase Price by Purchaser to
Seller, Seller shall deliver or cause to be delivered to Escrow Agent on behalf of Purchaser the
following, to wit:
(i) The special warranty deed outlined above;
(ii) A standard lien waiver satisfactory to the Title Company in order to delete
the standard printed exceptions relating to mechanics' liens and parties -in -possession. In that
regard at Closing, Seller shall deliver to Purchaser exclusive possession of the Property.
(iii) All such other documents contemplated by this Agreement.
(iv) A Non -foreign Seller Affidavit.
(v) An assignment of the Approvals from Seller to Purchaser.
(b) Purchaser shall deliver to Escrow Agent on behalf of the Seller, the Purchase Price, of
which the Deposit, if allocated by Purchaser, shall be a part, payable by wire transfer of same
day good funds acceptable to Escrow Agent for disbursement by Escrow Agent to Seller,
subject to prorations, adjustments and credits as hereinafter set forth.
(c) At the Closing, Seller and Purchaser shall mutually execute and deliver to each other a
Closing statement in customary form.
19. Assi ment. Either party may assign its rights under this Agreement without the
need for written consent of the non -assigning party.
20. Default.
(i) 1f Purchaser shall default in the payment of the Purchase Price or
otherwise default in any of the terms, covenants and conditions of this Agreement on the part of
Purchaser to be performed, Seller shall retain the Deposit as full and agreed upon liquidated
damages in full settlement of any and all claims against Purchaser for damages or otherwise and
Purchaser shall have no other or further liability hereunder. The parties acknowledge that this
provision for liquidated damages is a fair and reasonable measure of the damages to be suffered
by Seller in the event of Purchaser's default because the exact amount of damages is incapable
of ascertainment.
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(ii) In the event of a default by Seller under the terms of this Agreement,
Purchaser shall have the sole and exclusive remedies of either (i) terminating this Agreement,
whereupon the Escrow Agent shall deliver the Deposit paid hereunder to Purchaser, whereupon
all parties hereto shall be released and relived from any and all further liability or obligations
hereunder, or (ii) proceeding to enforce this Agreement by an action for specific performance,
as Purchaser shall elect.
(iii) Without limiting Purchaser's rights contained in this Paragraph, in case of
a lien or encumbrance on the Property which can be removed at the time of Closing by payment
of a liquidated amount, Seller covenants and agrees at Purchaser's request, to remove such lien
or encumbrance at Closing so that the Property can be conveyed to Purchaser free of same.
(iv) The parties further agree that in the event it becomes necessary for either
party to litigate in order to enforce its rights under the terms of this Agreement, then, and in that
event, the prevailing party shall be entitled to recover reasonable attorneys' fees and the costs of
such litigation, including appellate Iitigation.
21. Condemnation or Eminent Domain. Other than the DOT Condemnation Action
specifically addressed above, in the event of any other condemnation or eminent domain
proceedings for any public or quasi -public purposes at any time prior to Closing resulting in a
taking of any part or all of the Property, Seller shall immediately provide written notice thereof
to Purchaser and, Purchaser shall have the option to cancel this Agreement, in which event the
Deposit shall be promptly returned to Purchaser, and upon such return, this Agreement shall be
terminated and the parties released of any further obligation hereunder.
22. Escrow Agent. If there is any dispute as to whether the Escrow Agent is obligated
to deliver any monies which it holds or to whom said monies are to be delivered, the Escrow
Agent shall not be obligated to make any delivery, but in such event, may hold same until receipt
by the Escrow Agent of any authorization in writing signed by all of the parties having an
interest in such dispute directing the disposition of same; or, in the absence of such authorization,
the Escrow Agent may hold such monies with interest thereon, until the final determination of
the rights of the parties in an appropriate legal proceeding. If such written authorization is not
given or such legal proceeding not commenced and diligently continued, the Escrow Agent may
bring an appropriate action or proceeding for leave to deposit the monies it holds in escrow in
court, pending such determination. In the event the Escrow Agent places the monies it holds in
escrow in the registry of the court having jurisdiction with regard to this transaction and files in
an action of interpleader naming the parties hereto, the Escrow Agent shall be released and
relieved from any and all further obligations and liability hereunder. In the event of any dispute
with regard to the monies which are being held by Escrow Agent, then, with respect to the costs
and expenses incurred by Escrow Agent in connection with the filing of an interpleader action
(including, but not limited to, reasonable attorneys' fees for Escrow Agent's attorneys), the non -
prevailing party hereby indemnifies and holds Escrow Agent harmless for all Ioss, costs or
expense, including, but not limited to, attorneys' fees and court costs through all trial and
appellate levels (including fees incurred to itself) incurred by Escrow Agent in connection with
this Agreement.
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The parties hereby agree that the Escrow Agent shall be entitled to represent the
Purchaser and itself with regard to this Agreement and/or any litigation with respect thereto and
that Seiler is hereby estopped from objecting to such representation.
Escrow Agent shall not disburse the Deposit or any portion thereof to Seller
without first providing at least ten (10) days prior written notice thereof to Purchaser and
providing the Purchaser the right to object to such disbursement prior to the expiration of such
ten (10) day period, except in the event of the closing of the transaction contemplated by this
Agreement pursuant to the closing statement signed by Seller and Purchaser.
23. Notice. All notices of request, demand and other communications hereunder shall
be addressed to the parties as follows:
As to Seller: KBNK HOLDINGS, LLC
535 Hickorywood Blvd.
Cary, NC 27519
Attn: Suresh Kota
As to Purchaser: Gray Wolf Development, LLC
10920 Cleveland Road, Suite 100
Garner, NC 27529
Attn: J. Wade Corbett
As to Escrow Agent: Narron Wenzel, P.A.
102 South Third Street
Post Office Box 1567
Smithfield, NC 27577
Attn: Jason W. Wenzel
unless the address is changed by the parry by like notice given to the other parties. Notice shall
be in writing, mailed certified mail, return receipt requested, postage prepaid and shall be
deemed delivered when mailed or upon hand delivery to the address indicated. Notwithstanding
the foregoing, notices, requests or demands or other communications referred to in this
Agreement may be sent by Federal Express or other overnight courier service, but shall only be
deemed to have been given when received. The attorneys for Seller and Purchaser are authorized
to send notices and demands hereunder on behalf of their respective clients.
24. Execution Date. The "Execution Date" or "date of the execution of this
Agreement" shall mean the last day upon which this Agreement becomes fully executed by
Seller and the Purchaser.
25. Further Assurances. Each of the parties hereto agree to execute, acknowledge and
deliver and cause to be done, executed, acknowledged and delivered all such further acts,
assignments, transfers and assurances as shall reasonably be requested of it in order to carry out
this Agreement and give effect thereto. The parties hereto acknowledge that it is to their mutual
benefit to have an orderly and efficient transfer of ownership as contemplated hereby.
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Accordingly, without in any manner limiting the specific rights and obligations set forth in this
Agreement, the parties declare their intention to cooperate each with the other in effecting the
terms of this Agreement.
26. Time is of the Essence. For purposes herein, the parties agree that time shall be of
the essence of this Agreement and the representations and warranties made are all material and
of the essence of this Agreement.
27. Captions and Paraglaph Headings. Captions and Paragraph headings contained in
this Agreement are for convenience and reference only and in no way define, describe, extend or
limit the scope or intent of this Agreement, nor the intent of any provision hereof.
28. No Waiver. No waiver of any provision of this Agreement shall be effective
unless it is in writing, signed by the party against whom it is asserted and any such written
waiver shall only be applicable to the specific instance to which it relates and shall not be
deemed to be a continuing or future waiver.
29. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which shall constitute one and the same
Agreement. A facsimile or e-mail of either party's signature to this Agreement shall be deemed
an original signature for all purposes hereunder.
30. BindingEffect. ffect. This Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, personal representatives, successors and
assigns_
31. Governing Law; Jurisdiction; Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of North Carolina. Any legal action, claim,
action, suit, arbitration, hearing, inquiry, proceeding (administrative or otherwise) or
investigation by or before any governmental authority (an "Action") arising out of or relating to
this Agreement shall be heard and determined exclusively in the North Carolina court system.
Consistent with the preceding sentence, the parties hereto hereby irrevocably waive, and agree
not to assert by way of motion, defense, or otherwise, any such action, any claim that it is not
subject personally to the jurisdiction of the above -named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an inconvenient forum, that
the venue of the Action is improper, or that this Agreement or the transactions contemplated by
this Agreement may not be enforced in or by any of the above -named courts or arbitration forum.
32. Gender. All terms and words used in this Agreement regardless of the number
and gender in which used, shall be deemed to include any other gender or number as the context
or the use thereof may require.
33. Entire Agreement. ement. This Agreement contains and sets forth the entire
understanding between Seller and Purchaser, and it shall not be changed, modified or amended
except by an instrument in writing and executed by the party against whom the enforcement of
any such change, modification or amendment is sought. This Agreement shall be binding upon
the parties hereto and their respective heirs, personal representatives, successors and assigns.
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34. Relationship. Nothing contained in this agreement shall constitute or be
construed to be or create a partnership, joint venture or any other relationship between Seller and
Purchaser other than the relationship of a buyer and seller of real and personal property as set
forth in this Agreement.
35. Possession. Exclusive possession of the Property shall be delivered to Purchaser
at the Closing, free and clear of all tenancies, use agreements and possessory rights.
36. Modification. This Agreement shall not be modified (and no purported
modification thereof shall be effective) unless in writing and signed by the party to be charged.
37. Joint Preparation. The preparation of this Agreement has been a joint effort of the
parties and the resulting documents shall not, solely as a matter of judicial construction, be
construed more severely against one of the parties than the other. Each party hereto warrants and
represents that each party has been afforded the opportunity to be represented by counsel of its
choice in connection with the execution of this Agreement and has had ample opportunity to
read, review, and understand the provisions of this Agreement. Each party agrees to keep the
contents of this Agreement confidential, provided either party may disclose the content of this
Agreement and provide copies of this Agreement to its successors, assigns, agents, and
professional advisors.
38. Saturday,Sundays and Holidays. In the event that any date herein provided
occurs on a Saturday, Sunday or legal holiday, then such date shall be deemed extended to the
next full business day thereafter occurring.
39. Force Ma'eure. If the performance by either party of any of its obligations
hereunder is delayed by natural disaster, terrorist activity, war, Iabor dispute or other matter
beyond the control of such party, without such parry's fault or negligence, then the party affected
shall notify the other party in writing of the specific obligation delayed, and the duration of the
delay, and the deadline for completion of such obligation shall be extended by a like number of
days. The foregoing shall not apply to any obligation to pay money due hereunder.
40. 1031 Exchange. Seller and Purchaser acknowledge that both parties have the
right to sell and purchase the Property under the provisions of an Internal Revenue Service
Section 1031 Tax Deferred Exchange (the "Exchange"). Seller and Purchaser hereby agree to
cooperate in executing any document required by such an Exchange provided that (i) each party
incurs no additional cost or Iiability due to such an Exchange and (ii) the Closing shall not be
delayed or affected by an Exchange nor shall the consummation or accomplishment of the
Exchange be a condition precedent or condition subsequent to the obligations under this
Agreement of the party conducting the Exchange and (iii) the party conducting an Exchange (the
"Exchangor") shall effect the Exchange through a qualified intermediary and the other party
shall not be required to acquire or hold title to any real property for the purposes of
consummating such Exchange and (iv) the Exchangor shall indemnify, defend and hold harmless
the other party from and against any costs, expense, or liabilities incurred as a result of the
Exchange conducted by the Exchangor, included, but not limited to legal fees, accounting fees
and any other expenses incurred as a result of an I.R.S. audit of the Exchange. Neither party
shall by this agreement of acquiescence to an Exchange (1) have its rights under this Agreement
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affected in any manner, or (2) be responsible for compliance with or be deemed to have
warranted to the party conducting the Exchange that such Exchange in fact complies with § 1031
of the Code.
41. No Shop. From the Execution Date through Closing or the termination of this
Agreement prior to Closing, Seller agrees not to entertain, solicit, encourage, negotiate, or
pursue, either directly or indirectly, a sale of the Property to a third party. In furtherance thereof,
Purchaser agrees to notify Seller immediately in writing in the event of a decision by Purchaser
to terminate its purchase of the Property.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
SELLER:
KBNK HOLDINGS, LLC,
A North Carolina limited liability company
.4vfhenfi:;:..
By:
Print'?"5�f�ota
Print Title: Manager
0511512021
Date:
PURCHASER:
Gray Wolf Development, LLC,
A North Carolina ited li
By:
de Corbett, Manager
Date: 05/14/2021
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ESCROW JOINDER
The undersigned hereby joins in this Agreement to act as Escrow Agent as provided for
herein and agrees to hold the Deposit in escrow in accordance with the terms and provisions of
this Agreement.
ESCROW AGENT:
Narron Wenzel, P.A.
By:
Name:
Title:
Dated:
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V5— 5-13-21
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
PINS: 0673-42-7003.000; 0673-52-1506.000; 0673-52-4376.000; and 0673-52-3849.000
Being certain property located in the Town of Angier, Black River Township, Harnett County,
North Carolina, being further described as:
BEING all of Lot Number 1, as shown in Map Number 2004-1274, Harnett County Registry, and
Lot Numbers 2, 3, and 4, as shown in Map Number 2006-1276, Harnett County Registry,
reference to which is hereby made for greater certainty of description.
For chain of title information, see Book 2441, page 803; Book 2248, page 719; and Book 769,
page 719, all of the Harnett County Registry. See also the survey recorded in Book 2019, page
180, and the Ordinance recorded in Book 3704, page 821, Harnett County Registry.
(N0258647.DOC; 51