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HomeMy WebLinkAboutNCC222903_NOT Supporting Documents_20240923 DocuSign Envelope ID:60C186B9-57F4-4598-B3F1-754E13787BB1
Triad—Poet's Walk
REAL ESTATE SALE CONTRACT
This REAL ESTATE SALE CONTRACT (the"Contract")is made and entered into by and between MTS
TRI, LLC, a North Carolina limited liability company ("Seller") and PULTE HOME COMPANY, LLC, a
Michigan limited liability company("Buyer").
1. PROPERTY. Seller is the owner, in fee simple title, of certain tracts of land located in Guilford County,
State of North Carolina, which tracts (i) contain approximately 42.8 acres, (ii) are identified as Tax Parcel Nos.
104262 and 104251, and(iii) are generally delineated on the map attached hereto as Exhibit"A",together with all
rights,privileges and appurtenances thereto(the "Property").
2. PURCHASE AND SALE. Seller agrees to sell and convey the Property to Buyer, and Buyer agrees to
purchase and acquire the Property from Seller on the terms and conditions hereinafter set forth.
3. PURCHASE PRICE AND PAYMENT. The purchase price for the Property is$4,784,000 and shall be
paid in immediately available funds at the Scheduled Closing (as hereinafter defined), subject to any credits or
adjustments pursuant to this Contract("Purchase Price").
4. DEPOSIT; SETTLEMENT AGENT.
4.1 Deposit. Within five(5)business days after the Effective Date(as hereinafter defined),Buyer shall
deliver the amount of$50,000 (the "Initial Deposit") in readily available funds to Hervey& Hervey, P.A., 1151
Executive Circle, Suite 102, Cary, NC 27511; Telephone: (919) 467-9012; Email: ben@herveyandhervey.com;
Attention:Ben Hervey("Settlement Agent"). The Settlement Agent shall immediately deliver$100.00 of the Initial
Deposit to the Seller as independent consideration for this Contract (the "Independent Consideration"), which
Independent Consideration shall be credited against the Purchase Price at Closing(as hereinafter defined). If Buyer
fails to timely deliver the Initial Deposit to Settlement Agent as provided herein, Seller's sole remedy shall be to
terminate this Contract.
4.2 Additional Deposit. Provided Buyer has delivered the Continuation Notice(as defined in Section 6.2
below), Buyer will deliver an additional amount equal to $200,000 to the Settlement Agent (the "Additional
Deposit")prior to the end of the fifth(5th)business day after the expiration of the Feasibility Period. If Buyer fails to
timely deliver the Additional Deposit to Settlement Agent,notwithstanding anything contained in this Contract,this
Contract shall be deemed terminated and Settlement Agent shall return the Initial Deposit (less the Independent
Consideration) to Buyer. Should the parties agree, the deemed termination may be rescinded by mutual written
agreement.
The term "Deposit" shall mean the Initial Deposit and the Additional Deposit (to the extent previously
delivered by Buyer to Settlement Agent)and shall refer to whatever amounts are being held by the Settlement Agent
at any given time. The Deposit shall be credited against the Purchase Price at Closing. The Settlement Agent shall
deposit the Deposit in the Settlement Agent's IOLTA,which shall be held and distributed by the Settlement Agent,as
provided for in this Contract.
4.3 Interpleader. If this transaction is terminated before Closing of the Property,the Settlement Agent
shall deliver the Deposit,to Seller or to Buyer pursuant to the terms of this Contract,or if Seller and Buyer dispute the
distribution of the Deposit, except for the return of the Deposit to Buyer pursuant to Sections 6.2 and 7.2, the
Settlement Agent may deliver the Deposit to the appropriate court in Guilford County, North Carolina in an
interpleader action and thereafter shall be relieved of any further obligation therefore.
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4.4 Exculpation of Settlement Agent. The Settlement Agent shall not be liable to either party for
damages or otherwise for any action taken in good faith provided;however,that this release of liability shall not apply
to the gross negligence of the Settlement Agent. In any legal action involving the Settlement Agent including
interpleader action initiated by the Settlement Agent,all legal expenses reasonably incurred by the Settlement Agent
including all discovery and appeals expenses shall be borne by the party against which final judgment is rendered or
as otherwise ordered by the court.
5. CLOSING. Provided that all of the Conditions to Closing(as defined in Section 11)have been satisfied or,
if not satisfied, waived by Buyer in writing, Seller agrees to sell and convey, and Buyer agrees to purchase the
Property on the Scheduled Closing. As used herein, the term"Scheduled Closing" shall mean the date which is
fifteen(15)days after the expiration of the Feasibility Period. As used herein,the term"Closing"shall mean the act
of conveyance of the Property to Buyer concurrently with the delivery of the Purchase Price to Seller. The term
"Closing Date"shall mean the date the Property is conveyed to Buyer concurrently with the delivery of the Purchase
Price to Seller. The Closing shall be held at the office of the Settlement Agent. Notwithstanding anything contained
herein,Buyer may elect to have an earlier Closing of the Property by notifying Seller in writing at least twenty(20)
days prior to the date Buyer intends to close, and Seller agrees to close on such date.
6. FEASIBILITY PERIOD.
6.1 Duration. The Feasibility Period(herein so called)shall be defined as a period of time beginning on
the Effective Date(as hereinafter defined)and ending ninety(90)days thereafter. Buyer may at any time during the
Feasibility Period waive the remainder of the Feasibility Period in writing after which Seller and Buyer will proceed
to Closing per the terms of this Contract.
6.2 Suitability for Use. During the Feasibility Period, Buyer shall determine, in its sole and absolute
discretion,whether the Property is suitable for Buyer's intended use. Prior to the expiration of the Feasibility Period,
Buyer may deliver to Seller written notice that Buyer will continue the Contract("Continuation Notice"). If Buyer
fails to deliver the Continuation Notice to Seller prior to the expiration of the Feasibility Period,then this Contract
shall automatically terminate and be of no further force or effect on and as of the expiration of the Feasibility Period,
and the Settlement Agent shall immediately return the Deposit(less the Independent Consideration)to Buyer, and
neither party shall have any further obligation hereunder, except as otherwise expressly provided herein. It is
specifically agreed to by Buyer and Seller that should Buyer deliver a written notice of termination to the Settlement
Agent at any time during the Feasibility Period,or if Buyer fails to deliver a Continuation Notice to Seller pursuant to
this Section 6,prior to the expiration of the Feasibility Period,the Settlement Agent shall refund to Buyer the Deposit
(less the Independent Consideration)without the requirement of a signed release from Seller.
6.3 Available Plans and Permits. On or before five (5) days after the Effective Date, to the extent
available to Seller,Seller shall deliver to Buyer,if not previously delivered,copies of the following materials which
pertain to the Property to the extent that such materials are within the current possession or control of Seller,Seller's
agents and/or Seller's consultants: any governmental approvals,permits or correspondence;title insurance policies
(including the Original Title Policy, as defined in Section 7.3), title opinions or title reports; surveys; engineering
data,reports,zoning approval,plans and tests;environmental data and reports;subdivision plans and reports;utility
commitments;drainage reports;soils reports;zoning restrictions;deed restrictions;and other similar documents,and
all recorded instruments affecting the Property. Seller does not represent or warrant that Seller,Seller's agents and/or
Seller's consultants have any of the materials described herein,and Seller will not undertake to provide any materials,
other than those in Seller's, Seller's agents and/or Seller's consultants' current possession or control.
6.4 Buyer's Investigation of the Property. From the Effective Date through the Feasibility Period,and
if Buyer elects to go forward with Closing,from the end of the Feasibility Period until the Closing,Buyer,its agents,
consultants and contractors, shall,at its sole cost and expense,have the right to enter upon the Property and to make
all inspections,tests,studies,and investigations of the condition of the Property which it may deem necessary,all of
which shall be undertaken at Buyer's expense. Buyer shall not permit any liens to attach to the Property by reason of
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the exercise of such rights or to interfere with the rights of Seller in its possession and use of the Property. After
completing its investigation of the Property,if Buyer elects to terminate this Contract in accordance with this section,
Buyer shall leave the Property in substantially the condition existing on the Effective Date. Seller acknowledges that
said soil borings,surveying,test pits,and other standard feasibility studies require the use of heavy equipment which
by their nature will cause some damage to the terrain,trees,shrubs and other vegetation on the Property.This Section
will survive a termination of this Contract.
6.5 Indemnification. Buyer hereby agrees to indemnify Seller and hold Seller harmless against all claims,
demands and liability,including attorneys'fees,for nonpayment of services rendered to Buyer,for construction liens,
or for damage to persons or property arising out of Buyer's investigation of the Property. The foregoing restoration,
indemnity and hold harmless obligations do not apply to(i)any loss,liability,cost or expense arising from or related
to the acts or omissions of Seller, or its agents or consultants, (ii) any diminution in value of the Property, (iii)any
latent defects in the Property discovered by Buyer,or(iv)the release or spread of any hazardous materials which are
discovered(but not deposited)on or under the Property by Buyer.This Section will survive the termination or Closing
of this Contract.
7. EVIDENCE OF TITLE.
7.1 Delivery of Title Commitment. Within sixty(60)days after the Effective Date,Buyer shall cause a
Title Company(herein so called), of Buyer's choice, to issue an ALTA Form B Title Insurance Commitment(the
"Title Commitment")covering the Property,and shall request the Title Company to deliver to Buyer and Seller the
Title Commitment and a copy of each instrument(the"Title Documents")shown as an exception or pertaining to a
requirement in Schedule B thereof.
7.2 Indefeasible Title. Seller shall convey to Buyer indefeasible title to the Property,subject only to the
Permitted Exceptions(as herein defined). Buyer shall have fifteen(15)days from the date of receiving the last of the
Title Commitment,Title Documents and Survey(see Section 7.5)to examine same(the"Buyer Review Period").
Buyer shall notify Seller in writing of the specific title and/or survey objections it may have within the Buyer Review
Period. Seller shall use diligent efforts but need not bring suit to correct such objection(s); however, Seller shall
satisfy,at or prior to the Scheduled Closing,all monetary liens,judgments,assessments and all other requirements of
Seller appearing in the Title Commitment ("Monetary Items"). If Seller is not successful in removing the
objection(s)within ten(10)days after receipt of said notice from Buyer(the"Seller Review Period"),Buyer shall
have the option of either(i)maintaining the Contract in effect with the right to take title to the Property at Closing,
subject to such title objections not cured by Seller,utilizing up to the full amount of the Purchase Price to release or
satisfy all Monetary Items, (ii)deleting the portion of the Property affected by such title objection from the Contract,
with a proportionate reduction in the Purchase Price(based on the reduction in the acreage of the Property affected),
or (iii) terminating this Contract by sending written notice of termination to Seller and Settlement Agent. Upon
termination of this Contract pursuant to this Section 7.2, Settlement Agent shall return the Deposit (less the
Independent Consideration) to Buyer and, thereafter, neither Buyer nor Seller shall have any further obligations
hereunder, except as otherwise provided in this Contract. Those documents of record revealed in the Title
Commitment to which Buyer fails to object or which Buyer accepts as provided for above shall be the "Permitted
Exceptions" for the purpose of this Contract.
7.3 Title Policy. At the Scheduled Closing,Buyer may,at Buyer's sole cost and expense,request the Title
Company to deliver to Buyer an ALTA Owner's Title Insurance Policy(the "Title Policy"). Such policy will be
issued by the Title Company,will be in the amount of the Purchase Price for the Property and will insure Buyer's fee
simple title to same, subject to no exceptions other than the Permitted Exceptions as set forth in the Owner's Title
Policy obtained by Seller when Seller purchased the Property(the"Original Title Policy"),except that(i)the printed
exception relating to restrictions will be amended to describe the specific recording information of any restrictive
covenants affecting the Property that have been approved by the Buyer,or endorsed"none",(ii)the exception as to
the rights of parties in possession shall be deleted, (iii) the exception to the lien for taxes and for subsequent
assessments for prior years due to a change in land usage or ownership shall be limited to the year of Closing and
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shall be endorsed"not yet due and payable",(iv)the exception for unrecorded construction liens shall be deleted,and
(v)at Buyer's expense,Buyer may pay the additional premium at Closing,to eliminate the survey exception.
7.4 Title Update. On or before ten(10)days prior to the Scheduled Closing,Buyer may cause the Title
Company to deliver to Buyer an updated Title Commitment,together with copies of any Schedule B exceptions that
were not previously disclosed and delivered to Buyer. Buyer shall have the right to object to any new Schedule B
exception not included in a previous Title Commitment,provided,however,that Buyer shall not object to,and shall
indemnify Seller from,claims asserted by contractors and suppliers retained by Buyer. If Buyer objects to any new
exceptions for which it is not liable,the Closing shall be delayed and Seller and Buyer shall proceed in accordance
with Section 7.2 above, however, the "Buyer Review Period" shall be five (5) days after Buyer's receipt of the
updated Title Commitment and the "Seller Review Period" shall be five (5) days after Seller's receipt of Buyer's
notice of objections.
7.5 Survey. Within sixty (60) days after the Effective Date, Buyer shall, at its sole cost and expense,
obtain a survey of the Property(the"Survey"), or may rely on the existing survey provided by Seller, at its option.
Buyer may object to any matter disclosed on the Survey and such objections shall be handled as provided in Section
7.2 above. Should the Survey include excess property not included on Seller's prior survey,Seller shall transfer title
to such excess property by quit claim deed.
7.6 New Instruments. Seller agrees that it will not record or consent to the recording of new instruments
affecting the Property, including the recording of restrictive covenants,without Buyer's prior written consent.
7.7 Subdivision. If the conveyance of any portion of the Property by Seller to Buyer results in a
"subdivision"of property,as defined in any applicable subdivision ordinance,then,not less than ten(10)days prior to
the Scheduled Closing, Seller, at Seller's sole cost and expense, shall satisfy all requirements of such subdivision
ordinance, including,but not limited to,the preparation, approval, and recording of any required subdivision plat.
8. REPRESENTATIONS.
8.1 Seller's Representations and Warranties. Seller hereby represents and warrants to Buyer as of the
Effective Date and as of the Scheduled Closing as follows:
8.1.1 Authority. The execution and delivery of this Contract by Seller and the consummation by
Seller of the transaction contemplated by this Contract are within Seller's capacity and all requisite action has been
taken to make this Contract valid and binding on Seller in accordance with its terms.
8.1.2 No Legal Bar. The execution by Seller of this Contract and the consummation by Seller of this
transaction hereby contemplated does not, and will not (i) result in a breach of or default under any indenture,
agreement,instrument or obligation to which Seller is a party and which affects all or any portion of the Property,or
(ii)to the best of Seller's actual knowledge, constitute a violation of any governmental requirement.
8.1.3 No Litigation. There are no actions,suits,proceedings,or investigations pending or threatened
against the Property or any portion thereof, except as related to the City of Gibsonville's wetlands violation and
subsequent mitigation,which related expenses Seller is seeking reimbursement from the City of Gibsonville and its
associated subcontractors,and as it pertains to an existing suit with Summit Engineering over defective work which
was subsequently resolved but for which Seller is seeking reimbursement of its expenses.Neither matter impacts
Buyer's ability to utilize the Property for its purposes.
8.1.4 Title. Seller is the owner of indefeasible fee simple title to the Property, free and clear of all
liens, claims, encumbrances and restrictions, except those which are recorded against the Property. Seller has no
knowledge of any circumstance or event that may give rise to an attempt by any Governmental Authority to seize the
Property under any civil or criminal law authorizing seizure or forfeiture as a penalty for violation.
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8.1.5 No Hazardous Material. Seller has not received any notice and has no actual knowledge that
the Property has ever been used by previous owners and/or operators,and Seller has not used the Property to generate,
manufacture,refine,transport,treat, store,handle or dispose of hazardous material,whether used in construction or
stored on the Property, and Seller has not received a summons, citation, directive, letter or other communication,
written or oral, from any Governmental Authority concerning any intentional or unintentional action or omission
which resulted in the releasing, spilling, leaking, pumping,pouring, emitting, emptying or dumping of hazardous
material on the Property. The term "hazardous material" as used in this Contract shall mean any flammable or
explosive materials, petroleum or petroleum products, natural gas or synthetic gas usable for fuel, radioactive
materials,hazardous wastes or substances or toxic wastes or substances,including without limitation,any substances
now or hereafter defined as or included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "toxic materials" or "toxic substances" under any applicable governmental law or
regulations.
8.1.6 No Parties in Possession. There are no parties other than Seller in possession of any portion of
the Property. There are no farming or other leases(either oral or written)applicable to or affecting the Property.
8.1.7 Property Conditions. To the best of Seller's actual knowledge, there is no condition of the
Property that would prevent the use of any portion of the Property for development as a residential subdivision
(whether single-family,town home or condominium)other than those disclosed to Buyer in writing,including without
limitation, fault lines, caves, mines or other geological conditions; soil conditions; environmental conditions;
cemeteries,graves or archeologically or historically significant sites;endangered animals,birds,reptiles,amphibians
or insects; or flood hazard areas.
8.1.8 No Violations of Law. There is no condition of the Property that violates any federal,state or
local statute, ordinance or regulation.
8.1.9 No Commitments. Except as disclosed in writing by Seller to Buyer,no commitments have
been made by Seller to any Governmental Authority(as herein defined),utility company, school board, church or
other religious body,homeowners association,or any other organization,group or individual relating to the Property,
which would impose an obligation upon Buyer or its successors or assigns to make any contributions or dedications of
money or land or to construct, install or maintain any improvements of a public or private nature on or off the
Property, except as set forth in the Permitted Exceptions.
8.1.10 Fees or Contributions. To the best of Seller's actual knowledge,no Governmental Authority
has imposed any requirement that would bind Buyer to pay directly or indirectly any special fees, assessments, or
contributions or incur the expenses or obligations in connection with the development of the Property, except for
customary building permits and inspection fees, utility capital recovery fees,utility tap fees, parkland fees and all
other normal and customary fees charged by any Governmental Authority,if any,and except as may be disclosed in
the Permitted Exceptions.
8.1.11 No Contrary Property Rights. To the best of Seller's actual knowledge,no third party has an
option to purchase, a right of first refusal, a right of first offer and/or any other similar right with respect to the
Property,or any portion thereof,and Seller has not entered into any agreement for the sale of all or any portion of the
Property with any third party.
8.1.12 No Private Transfer Fees. Seller has never granted,created or imposed,and,to Seller's actual
knowledge, no past owner of the Property ever granted, created or imposed a Private Transfer Fee Obligation with
respect to the Property, nor will either Seller or Buyer be required to pay a fee to any person as a result of Seller
transferring the Property or any portion thereof to Buyer pursuant to this Contract. A "Private Transfer Fee
Obligation"means a declaration,covenant or other instrument which purports to bind current and future owners of the
Property and obligates a transferor or transferee of title to the Property or any portion thereof to pay a fee in connection
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with or as a result of a transfer of title.A Private Transfer Fee Obligation does not include a fee imposed by or payable to
a Governmental Authority or a fee payable to a homeowners'or property owners'association exclusively for the benefit
of that association pursuant to an instrument recorded in the real property records of the county in which the Property is
located.
8.2 Buyer's Representations and Warranties. Buyer hereby represents and warrants to Seller that as of
the Effective Date and as of the date of Scheduled Closing the following:
8.2.1 Authority. The execution and delivery of this Contract by Buyer and the consummation by
Buyer of the transaction contemplated by this Contract are within Buyer's capacity and all requisite action has been
taken to make this Contract valid and binding on Buyer in accordance with its terms.
8.2.2 No Legal Bar. The execution by Buyer of this Contract and the consummation by Buyer of
this transaction hereby contemplated does not and will not(i)result in a breach of or default under any indenture,
agreement, instrument or obligation to which Buyer is a party, or (ii) to the best of Buyer's actual knowledge,
constitute a violation of any material governmental requirement applicable to Buyer.
8.3 Duty to Disclose. Seller and Buyer shall disclose to the other in writing any conditions or events that
arise or occur subsequent to the Effective Date,that become known to Seller or Buyer,as the case maybe,and which
contradict or modify any representation of such party set forth herein.
8.4 Survival. The representations and warranties of Seller and Buyer shall survive Closing and shall not
be deemed to be merged into the Deed.
8.5 Seller's Covenants. From the Effective Date hereof until the Closing or termination of this Contract,
Seller shall(i)not permit grading, excavation, fill,dumping, clearing or other activities on the Property that would
increase the expense or difficulty of development of the Property as a residential subdivision,(ii)not create or incur
any mortgage, lien,pledge,or other encumbrance in any way affecting the Property other than those which Seller
causes to be satisfied and/or released at or prior to Closing,(iii)not commit any waste or nuisance upon the Property,
(iv)maintain and keep the Property in a neat condition,(v)observe all laws,ordinances,regulations and restrictions
affecting the Property, and (vi) not bury any trees, stumps, boulders, trash, refuse or brush on any portion of the
Property. This Section 8.5 shall survive Closing.
8.6 Signs. From and after the expiration of the Feasibility Period and provided this Contract has not been
terminated during the Feasibility Period,Seller shall permit Buyer,at no additional cost to Seller,to place billboards
and other signs on the Property in locations designated by Buyer and reasonably approved by Seller,which approval
shall be deemed given if not objected to in writing within ten(10)days of Seller's receipt of a written request from
Buyer to approve the location of any such signage.All such signs and billboards shall be installed,constructed,and
maintained at Buyer's expense. In the event Buyer terminates this Contract or otherwise does not close on the
acquisition of the Property,Buyer shall, at its sole cost and expense,remove any such signs or billboards from the
Property and restore any disturbance to the Property caused by Buyer's installation of same.
8.7 Construction Fence.From and after the expiration of the Feasibility Period and provided this Contract
has not been terminated during the Feasibility Period, Seller shall permit Buyer, at no additional cost to Seller, to
place construction fencing associated with permit approvals on the Property in locations designated by Buyer and
reasonably approved by Seller,which approval shall be deemed given if not objected to in writing within ten(10)
days of Seller's receipt of a written request from Buyer to approve the location of any such fencing.All such fencing
shall be installed, constructed, and maintained at Buyer's expense. In the event Buyer terminates this Contract or
otherwise does not close on the acquisition of the Property,Buyer shall,at its sole cost and expense,remove any such
fencing from the Property and restore any disturbance to the Property caused by Buyer's installation of same.
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8.8 Termination of Lease. Five(5)days prior to the Scheduled Closing,Seller shall deliver to Buyer and
the Title Company,an agreement or certificate("Lease Certificate")executed(i)by Seller stating that there are no
leases affecting the Property or(ii)by Seller and all tenants of the Property(whether one or more,the"Tenant"),if
any,in a form approved by Buyer and the Title Company,providing that(a)all agricultural,grazing or other leases,
whether written and/or oral, covering the Property or any portion thereof(whether one or more,the"Lease")have
terminated and Tenant,if any,has vacated the Property,(b)Buyer shall not be responsible for any crops which have
been planted on the Property,but not harvested,and(c)Seller shall indemnify,defend and hold Buyer harmless from
and against all claims, losses and damages, arising out of, related to, or in connection with the Tenant and/or the
Lease.
9. DEVELOPMENT APPROVALS AND SELLER'S COOPERATION.
9.1 Zoning. At any time after the Effective Date of this Contract, but subject to the conditions and
limitations set forth below,Buyer may, at Buyer's option and expense,prepare and submit for approval a rezoning
application for the Property("Zoning Application")to a residential zoning classification of its choice. Seller agrees
to cooperate with Buyer in its attempts to obtain approval of any such rezoning application prepared by Buyer,
including without limitation,joining in the execution of all applications and attending any hearing or meetings.The
term"Zoning Approval" as used herein shall mean the Zoning Application has been approved by the applicable
Governmental Authorities and the appeal period relating to such approval,if any,shall have expired without appeal
having been filed(or,if an appeal was filed,the appeal having been dismissed or the grounds for such appeal having
been satisfied to the reasonable satisfaction of Buyer).
9.2 Annexation. At any time after the Effective Date of this Contract,but subject to the conditions and
limitations set forth below,Buyer may,at Buyer's option and expense,prepare and submit for approval an annexation
petition for the Property(the"Annexation")into the Town of Gibsonville. Seller agrees to cooperate with Buyer in
its attempts to obtain approval of any such Annexation prepared by Buyer,including without limitation,joining in the
execution of all applications and attending any hearing or meetings.The term"Annexation Approval"as used herein
shall mean the Annexation has been approved by the Town of Gibsonville and the appeal period relating to such
approval, if any, shall have expired without appeal having been filed(or, if an appeal was filed,the appeal having
been dismissed or the grounds for such appeal having been satisfied to the reasonable satisfaction of Buyer).
9.3 Development Plans. Seller agrees to reasonably cooperate with Buyer in its attempts to obtain
approval of Buyer's Development Plans from the Governmental Authorities,including,without limitation,joining in
the execution of all applications and attending hearings or meetings. All costs and expenses incurred by Buyer in
connection with the preparation and submission of the Development Plans shall be paid by Buyer. The term
"Development Plans" as used herein shall mean and refer to any and all plats, plans, specifications, working or
construction drawings, environmental studies, zoning applications, site plans, and other items of engineering and
information related to the Property required to be approved by the appropriate Governmental Authorities, utility
providers or other entities in order to obtain the appropriate permits (including a land disturbance permit) and
approvals to develop the Property for Buyer's intended use, which use shall be determined by Buyer in its sole
discretion, and commence construction of residences on the Property.
9.4 State and Federal Permits. At any time after the Effective Date of this Contract, Buyer may, at
Buyer's option and expense prepare an application to obtain a 404 permit from the U.S.Army Corps of Engineers and
a 401 permit from the North Carolina Division of Water Resources(collectively,the"State and Federal Permits").
9.5 Disapprovals. If the Zoning Application, Annexation, or Development Plans are denied or not
approved by the Governmental Authorities or if the Governmental Authorities indicate that the Zoning Application,
Annexation or Development Plans will be denied or not approved,then Buyer may terminate the Contract whereupon
the Deposit(less the Independent Consideration)shall be returned to Buyer and,thereafter,neither Buyer nor Seller
shall have any further obligations hereunder, except as otherwise expressly provided in this Contract.
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The term "Governmental Authority" as used in this Contract shall mean any federal, state, county,
municipal or other governmental department, entity, authority, commission, board, bureau, court, agency, utility
supplier, or other instrumentality of any of them,having jurisdiction over the Property or any portion thereof, and
whose approval is necessary for the satisfaction of any conditions contained in this Contract.
10. EASEMENTS. In order to develop the Property into a residential subdivision,Buyer may need easements
("Easements") in, on and over portions of real property adjacent to or near the Property to the extent reasonably
necessary to construct offsite improvements. Seller shall pay for all fees,costs and expenses related to the Easements,
including,without limitation,(i)obtaining and surveying the area of real property covered by the Easements and(ii)
preparing and recording the documents evidencing the Easements, up to a maximum of Fifty Thousand Dollars
($50,000.00).
11. CONDITIONS TO BUYER'S OBLIGATION TO CLOSE.
11.1 Conditions. Buyer shall not be obligated to close on the purchase of the Property unless each of the
following conditions (collectively"Conditions to Closing")are either satisfied or waived, in writing,by Buyer:
11.1.1 Compliance with Covenants. Seller shall have performed all covenants, agreements and
obligations and complied with all conditions required by this Contract to be performed or complied with by Seller
prior to the Scheduled Closing,and Seller's representations and warranties will be true and correct with the same force
and effect as if such representations and warranties were made on and as of the Scheduled Closing.
11.1.2 Status of Title. The status of title to the Property shall be as required by this Contract.
11.1.3 Moratorium. There will be no general moratorium imposed by any Governmental Authority
or utility supplier with respect to the issuance of plan approvals, building permits, certificates of occupancy, or
sanitary sewer,water or electricity connections with respect to the Property being conveyed.
11.1.4 Easements. Seller shall have obtained the Easements described in Section 10.
11.1.5 Utility Commitments;Availability. Buyer shall have obtained written commitments from all
applicable utility providers for a sanitary sewage collection system,water distribution system,and electric,telephone,
cable and gas service (collectively, the "Utilities"), stating that such providers will serve the Property. At the
Scheduled Closing, the Utilities shall be fully operational and available for immediate connection with sufficient
capacity and quality to serve all of the residences Buyer intends to construct upon the Property.
11.1.6 Zoning. Zoning Approval shall have occurred.
11.1.7 Annexation. Annexation Approval shall have occurred.
11.1.8 Intentionally Deleted.
11.1.9 Development Plans. The Development Plans for(i)Phase 1 as shown on Exhibit"A"as the
area labeled"Phase 1"and(ii)Phase 3 as shown on Exhibit"A" as the area labeled as"Phase 3" shall have been
approved by all applicable Government Authorities,subject only to terms,conditions,and requirements acceptable to
Buyer and the appeal period relating to such approval,if any,shall have expired without appeal having been filed(or if
an appeal was filed, the appeal having been dismissed or the grounds for such appeal having been satisfied to the
reasonable satisfaction of Buyer).
11.1.10 State and Federal Permits. Buyer shall have obtained all necessary state and federal permits
to commence grading and development of the Property, including 401 and 404 permits from the applicable
Governmental Authorities.
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11.1.11 No Violations. All written notices of violations of governmental orders or requirements noted
or issued by any Governmental Authority having jurisdiction, and any action in any court against or affecting the
Property shall have been complied with by Seller and the Property shall be free and clear thereof,and the Property
shall not be in violation of any governmental laws, ordinances,rules or regulations.
11.1.12 No Special Assessments. There shall be no pending or proposed special assessments or
surcharges imposed or to be imposed by any Governmental Authority against the Property and/or the owner of the
Property.
11.1.13 Development Rights. Seller shall have executed and delivered the Assignment of
Development Rights described in Section 21.
11.1.14 Lease Certificate. Seller shall have delivered to Buyer and the Title Company the Lease
Certificate as provided in Section 8.8.
11.2. Failure of Condition. If all of the Conditions to Closing have not been satisfied by the Scheduled
Closing,Buyer shall have the right to(i)terminate this Contract by written notice to Seller at any time up until such
Conditions to Closing are satisfied,whereupon the Deposit(less the Independent Consideration)shall be delivered to
Buyer,(ii)waive in writing the incomplete Condition(s)to Closing and proceed with Closing,and/or(iii)extend the
date of the Scheduled Closing one(1)day for each day until the Conditions to Closing are satisfied,such extensions
not to exceed a total of one hundred twenty(120)days after the Scheduled Closing(or any extensions thereof). If
Buyer elects to extend the date of the Scheduled Closing as provided in clause (iii) above and the Conditions to
Closing remain unsatisfied as of the expiration of such one hundred twenty(120)day period,Buyer may exercise its
rights in clause(i)or(ii)above.
12. SELLER'S CLOSING DOCUMENTS.
12.1 Documents. At the Closing, Seller shall deliver the following documents ("Seller's Closing
Documents")to the Settlement Agent:
12.1.1 Deed. A Special Warranty Deed("Deed"),which shall be duly executed and acknowledged by
Seller so as to convey to Buyer(i)good and indefeasible fee simple title to the Property, free and clear of all liens,
encumbrances and other conditions except the Permitted Exceptions,and(ii)all of Seller's right,title and interest in
and to any dedicated public street,road or avenue adjoining the Property.
12.1.2 Quitclaim Deed. A Quitclaim Deed that includes a legal description of the Property derived
from the Survey,which shall be duly executed and acknowledged by Seller.
12.1.3 Construction Lien Affidavit. Such NCLTA form lien waivers as the Title Company may
reasonably require to insure title to the Property without exception for claims of mechanics and materialmen claiming
by or through Seller. Seller shall indemnify Buyer and Title Company against any claims asserted by contractors or
suppliers for any improvements. Each person constituting Seller shall execute a separate affidavit pertaining to the
Property being conveyed.
12.1.4 FIRPTA. A FIRPTA Non-Foreign Transferor Certificate in accordance with Section 1445 of
the Internal Revenue Code. Each person constituting Seller shall execute a separate affidavit or otherwise comply
with Section 1445 of the Internal Revenue Code.
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12.1.5 Closing Statement.A closing statement.
12.1.6 Lease Certificate. The Lease Certificate, as described in Section 8.8.
12.1.7 Other Documents. Such other title instruments, documents, and affidavits as may be
reasonably required by Buyer, the Title Company and/or the Settlement Agent to clear title to the Property of all
unpermitted liens,claims,encumbrances,and the standard title exceptions,if any,or to comply with state or federal
reporting requirements as to the terms of the transaction and/or the tax liability of Seller.
12.2 Pre-Closing Delivery. Copies of Seller's Closing Documents shall be delivered to Buyer for review
not less than five(5)days prior to the Scheduled Closing.
13. CLOSING PROCEDURES. The Closing shall proceed in the following manner:
13.1 Transfer of Funds. Buyer shall pay the Purchase Price for the Property pursuant to Section 3,to the
Settlement Agent by wire transfer or by the deposit of certified funds to a depository designated by Settlement Agent.
13.2 Delivery of Documents. Seller shall deliver Seller's Closing Documents to Settlement Agent.
13.3 Disbursement of Funds and Documents. The Title Company will endorse(mark-up and approve)
the Title Commitment to delete any and all exceptions except the Permitted Exceptions on Schedule B approved by
Buyer, and will agree to issue the Title Policy accordingly. Thereafter: (i)the Title Company shall update the title
search on the Property to confirm no change in the state of title before recording the Deed,(ii)Settlement Agent shall
record the Deed and the Quitclaim Deed in the Public Records if such title update does not reveal any change in the
state of title, and (iii) Settlement Agent shall then disburse the net Purchase Price to Seller and Seller's Closing
Documents to Buyer.
14. PRORATIONS AND CLOSING COSTS.
14.1 Taxes. Real estate property taxes and special assessments shall be prorated on a calendar year basis on
the date of the Scheduled Closing based on the current year's assessment, if available, or, if not available, then
prorated based on the application of the preceding year's rates to the latest assessed valuation. If subsequent to
Closing, taxes for the year of the Scheduled Closing are determined to be higher or lower than as prorated, a re-
proration or adjustment will be made at the request of Buyer or Seller upon presentation of actual tax bills and any
payment required as a result of the re-proration shall be made within thirty(30)days following demand therefore. All
other prorations and adjustments shall be final.
14.2 Roll-Back Taxes. Seller will be responsible for all taxes,assessments,interest and penalties,if any,
which will result from subsequent assessments for prior years due to a change in land usage or ownership ("Roll-
Back Taxes") as a result of Closing or Buyer's intended development of the Property. If the actual or estimated
amount of Seller's Roll-Back Tax obligations can be determined Seller must(i)pay to the appropriate taxing authority
the amount of the taxes,to the extent that the taxing authority will accept payment for the taxes,or(ii)escrow funds
in an amount required by the Title Company in order to delete any exception for Roll-Back Taxes in the Title Policy
and make payment of the taxes when they become due and payable. In the event Seller's actual Roll-Back Tax
obligation exceeds the amount paid at Closing,such deficiency shall be paid by Seller within thirty(30)days of notice
of same. In the event Seller's actual Roll-Back Tax obligation is less than the funds paid at Closing,such excess shall
be collectable by Seller from the applicable taxing authority or from escrow, as the case may be.
14.3 Seller's Costs. Seller shall pay for the following items at the time of the Scheduled Closing:
- Preparation of Deed;
- Title curative instruments;
- Releases of existing liens;
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- Recording fees for curative instruments and releases;
- Prorata share of taxes and assessments;
- Tax statements or certificates;
- Special assessments and delinquent taxes,interest and penalties levied against Property;
- Roll-Back Taxes;
- One-half of escrow fee;
- Revenue or documentary stamps or other transfer fees or taxes on the Deed;
- Attorney fees of Seller; and
- Customary expenses incurred to Seller.
14.4. Buyer's Costs. Buyer shall pay for the following items at the time of the Scheduled Closing:
- Title Commitment;
- Owner's Policy of Title Insurance;
- Survey;
- Recording of the Deed;
- Attorney fees of Buyer;
- Any cost charged by the Title Company to delete from the Title Policy the exception as to the rights
of parties in possession;
- One-half of escrow fee; and
- Customary expenses incurred to Buyer.
15. POSSESSION. Buyer shall be granted full possession of the Property at the Closing,free of all tenancies,
occupants,or claims of possession of Seller or any other person. In the event Seller or any other person shall remain
in possession of the Property or any portion thereof at Closing,Seller or such party shall be a tenant at sufferance,and
Buyer may bring an action to obtain immediate possession of the entire Property.
16. CONDEMNATION. In the event of the institution of any proceedings by any Governmental Authority
which shall relate to the taking or proposed taking of any portion of the Property by eminent domain prior to the
Scheduled Closing of same,or in the event of the taking of any portion of the Property by eminent domain prior to the
Scheduled Closing, Seller shall promptly notify Buyer and Buyer shall thereafter have the right and option to (i)
terminate this Contract by giving Seller written notice of Buyer's election to terminate within ten (10) days after
receipt by Buyer of the notice from Seller, in which event, the Deposit(less the Independent Consideration) shall
immediately be returned to Buyer,and thereafter the parties hereto shall be released from their respective obligations
and liabilities hereunder,(ii)continue this Contract in full force and effect,and at Closing,Seller shall assign all of its
right,title and interest in all awards in connection with such taking to Buyer,or(iii)delete the portion of the Property
condemned or threatened to be condemned from this Contract with a proportionate reduction in the Purchase Price
(based upon the reduction in the acreage of the Property).If Buyer fails to notify Seller of one of the options provided
above within ten(10)days after receipt of notice from Seller,Buyer will be deemed to have terminated this Contract
and the Deposit(less the Independent Consideration) shall be refunded to Buyer.
17. DEFAULT.
17.1 Seller's Default— Buyer's Remedies. If Seller breaches any representation or covenant of Seller
contained herein or otherwise fails to fulfill any of its obligations hereunder,and such breach or failure continues for
more than ten(10)days following written notice thereof from Buyer,then Seller will be in default under this Contract
and Buyer may(a)pursue any specific remedies provided elsewhere in this Contract for a specific default or failure
hereunder,(b)enforce specific performance of this Contract,or(c)terminate this Contract by written notice delivered to
Seller, in which event the Deposit (less the Independent Consideration) will be refunded to Buyer and Buyer may
recover all actual damages occasioned by such breach or failure,but excluding lost profits and special,exemplary and
punitive damages, and not to exceed a cumulative amount of twenty five thousand dollars ($25,000.00).
Notwithstanding any provision herein,Buyer shall be entitled to all rights and remedies available at law or in equity
(including the right to recover all actual damages, but excluding lost profits and special, exemplary and punitive
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damages)for Seller's breach of any representation,warranty,indemnity or other agreement contained in this Contract
which expressly survives a Closing or the termination of this Contract.
17.2 Buyer's Default—Seller's Remedies. If Buyer breaches any representation or covenant of Buyer
contained herein or otherwise fails to fulfill any of its obligations hereunder,including,without limitation,Buyer's failure
to timely purchase the Property pursuant to the terms of this Contract,and such breach or failure continues for more than
ten(10)days following written notice thereof from Seller,then Buyer will be in default under this Contract and Seller
may, as Seller's sole and exclusive remedy, terminate this Contract and receive the Deposit(to the extent previously
delivered by Buyer to Settlement Agent)as liquidated damages,which Buyer and Seller acknowledge and agree to be a
fair and reasonable estimate of the damages Seller may incur due to Buyer's default. Following such a termination of
this Contract,neither party will have any further rights or obligations hereunder,except as specifically provided otherwise
in this Contract.Except for Seller's right to receive the Deposit as provided above in this Section 17.2,Seller waives all
other rights and remedies including the right to recover damages and the right to seek specific performance.
Notwithstanding any provision herein, Seller shall be entitled to all rights and remedies available at law or in equity
(including the right to recover all actual damages, but excluding lost profits and special, exemplary and punitive
damages)and not to exceed a cumulative amount of twenty five thousand dollars($25,000.00).for Buyer's breach of
any representation,warranty,indemnity or other agreement contained in this Contract which expressly survives a Closing
or termination of this Contract.
18. REAL ESTATE COMMISSION. If Closing occurs, Seller agrees to pay Braxton Real Estate (Greg
Garrett) ("Broker") a commission pursuant to the terms of a separate agreement between Broker and Seller. Each
party represents that it has not dealt with any brokers or finders with regard to this transaction, except for Broker.
Seller agrees to indemnify, defend and save harmless Buyer from and against any and all claims, losses,damages,
costs or expenses of any kind or character arising out of or resulting from any agreement, arrangement or
understanding alleged to have been made by Seller or on its behalf with any broker or finder in connection with this
Contract or transactions contemplated hereby,including Broker.Buyer agrees to indemnify,defend and save harmless
Seller from and against any and all claims,losses,damages,costs or expenses of any kind or character arising out of
or resulting from any agreement,arrangement or understanding alleged to have been made by Buyer or on its behalf
with any broker or finder in connection with this Contract or transactions contemplated hereby, excluding Broker.
This Section 18 shall survive Closing or termination of this Contract.
19. NOTICES. Any notice or other communication to be given or served upon any party hereto in connection
with this Contract must be in writing, and shall be delivered(i) in person or via courier, (ii)by email(with a copy
following in the United States mail or by other means of delivery permitted herein), (iii)overnight delivery service
(including FedEx),or(iv)by certified mail,return receipt requested. If such notice is given in person,via courier or
via email,such notice will be deemed to have been received,on the earlier of,when actually received,when delivered
to the street address set forth below or when sent to the email address set forth below. If such notice is given by
overnight delivery service, such notice will be deemed received one business day after the notice is delivered to the
overnight delivery service. If such notice is given by certified mail,such notice will be deemed received 3 days after a
certified letter containing such notice,properly addressed with postage prepaid,is deposited in the United States mail.
Any notice,however delivered,that is confirmed or acknowledged(excluding any automatically generated electronic
acknowledgment) by a party below to have been received by such party is effective notice. Notice will go to the
parties at the following addresses:
If to Seller: MTS TRI, LLC
Attn: Joe Polite
2857 Westport Road
Charlotte,NC 28208
Telephone: (704) 399-4663
Email: jpolite@eastwoodhomes.com
With a copy to: MTS TM, LLC
Attn: Allen Nason, Esq.
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2857 Westport Road
Charlotte,NC 28208
Telephone: (704)399-4663
Email: anason@eastwoodhomes.com
If to Buyer: Pulte Home Company, LLC
1225 Crescent Green Drive, Suite 250
Cary,NC 27518
Attention: David Carrier,Division President
Telephone: 919-816-1123
Email: david.carrier@pultegroup.com
with a copy to: Pulte Home Company,LLC
1225 Crescent Green Drive, Suite 110
Cary,NC 27518
Attention: Mark McIntyre
Telephone: (919) 816-1174
Email: mark.mcintyre@pultegroup.com
Any party may change its address,email address or telephone number for the purpose of this paragraph by giving
written notice of such change to each of the other parties in the manner herein provided.To be effective,such notice of
change must expressly state that it is given for the purpose of changing the notice provisions of this Contract.
20. ASSIGNMENT. Buyer may assign its rights and delegate its duties hereunder without Seller's prior written
consent;however should Buyer so assign,Buyer shall notify Seller in writing of such assignment.
21. DEVELOPMENT RIGHTS. At Closing,Seller agrees to provide Buyer with an assignment("Assignment
of Development Rights") of Seller's development rights in its possession, including but not limited to, any
applications, permits, construction plans, government approvals, engineering and engineering reports, plats,
reimbursement for fees paid relating to the Property, any development fees, development fee waivers or other
entitlements from the applicable Governmental Authorities relating to the Property,any utility service commitments
or allocations,and all other development rights,and benefits relating to the Property,which entitles the Property to be
developed in accordance with the applicable Governmental Authorities.
22. MISCELLANEOUS.
22.1 Counterparts;Electronic Execution. This Contract may be executed in counterparts,each of which
shall constitute an original,but all of which,when taken together,shall constitute one agreement.This Contract may
be signed and transmitted by electronic means and the signature of any person on an electronically transmitted copy
hereof shall be considered an original signature and have the same binding effect as an original signature on an
original document.At the request of any party hereto,any electronic copy of this Contract shall be re-executed by a
party in original form.No party hereto may raise the fact that any signature was transmitted by electronic mail or other
electronic means as a defense to the enforcement of this Contract or any amendment hereto or other document
executed in connection with the transaction contemplated by this Contract.
22.2 Section and Paragraph Headings. The section and paragraph headings herein contained are for the
purposes of identification only and shall not be considered in construing this Contract.
22.3 Amendment. No modification or amendment of this Contract shall be of any force or effect unless in
writing executed by both Seller and Buyer.
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22.4 Attorneys' Fees. If any legal suit, action, proceeding or arbitration is commenced by any party to
enforce any provision of this Contract,the losing party will pay to the prevailing party all actual expenses incurred by
the prevailing party,including costs,expenses and reasonable attorneys'fees. The prevailing party is the party who
receives substantially the relief sought whether by judgment,summary judgment,dismissal,settlement or otherwise.
In any suit,action,proceeding or arbitration primarily for the recovery of monetary damages,the award of reasonable
attorneys' fees may not exceed the monetary damages awarded. This provision shall survive termination of this
Contract and the execution and delivery of the Deed.This provision is intended to comply with N.C.Gen. Stat. §6-
21.6.
22.5 Governing Law. This Contract shall be interpreted in accordance with the laws of the state in which
the Property is located,both substantive and remedial.
22.6 Entire Contract. This Contract sets forth the entire agreement between Seller and Buyer relating to
the Property and all subject matter herein and supersedes all prior and contemporaneous negotiations,understandings
and agreements,written or oral,between the parties.
22.7 Time of the Essence. Time is of the essence in the performance of all obligations by Buyer and Seller
under this Contract.
22.8 Force Majeure. If Buyer is prevented from fulfilling any of its obligations as set forth in this Contract
or the proposed entitlement or development of the Property is impeded, threatened or prevented by strikes, war,
shortages of labor, fuel or materials, an epidemic or pandemic, the weather, insurrection, acts of terrorism, acts of
God, fire or other casualty, or other event or cause reasonably beyond the control of Buyer ("Force Majeure
Event"),and Buyer notifies Seller of the Force Majeure Event by sending written notice thereof("FM Notice"),then
all affected dates in this Contract shall be automatically tolled from the date of the FM Notice until such time as the
completion of the Force Majeure Event. In addition, if the Force Majeure Event lasts in excess of thirty(30)days
after the FM Notice,Buyer shall have the right,at any time after such thirty(30)day period to terminate this Contract
by giving Seller written notice thereof, whereupon the Deposit (less the Independent Consideration) shall be
immediately returned to Buyer,and thereafter neither party shall have any liability to the other hereunder,unless such
liability is expressly stated to survive termination.
22.9 Computation of Time. Any reference herein to time periods less than six (6) days shall exclude
Saturdays,Sundays and U.S.legal holidays in the computation thereof. If any date,deadline,or time period for which
performance is required under this Contract falls,expires,or ends on a Saturday, Sunday,or U.S. legal holiday,the
date for such performance shall extend to 11:59 p.m. on the next day which is not a Saturday, Sunday or U.S.legal
holiday.
22.10 Successors and Assigns. This Contract shall inure to the benefit of and be binding upon the permitted
successors and assigns of the parties hereto.
22.11 Intentionally Deleted.
22.12 Construction of Contract. All of the parties to this Contract have participated freely in the
negotiation and preparation hereof;accordingly,this Contract shall not be more strictly construed against any one of
the parties hereto.
22.13 Gender. As used in this Contract,the masculine shall include the feminine and neuter,the singular
shall include the plural and the plural shall include the singular as the context may require.
22.14 Exclusivity. PulteGroup,Inc.,a Michigan corporation,is not a party to this Contract and shall have no
direct or derivative liability for any obligation of Buyer under this Contract.
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22.15 Obligations to Survive Closing. All promises,representations,warranties and all other obligations
that are performable or relate to a period after Closing hereunder shall survive the Closing and the execution and
delivery of the Deed, and shall not be merged therein.
22.16 Invalid Provision. In the event any one or more of the provisions contained in this Contract shall be
held to be invalid,illegal or unenforceable in any respect,for any reason,such invalidity,illegality or unenforceability
shall not affect any other provision hereof, and the remainder of this Contract shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. Section headings in this Contract are for
convenience only and shall not affect or alter the meaning of any provision of this Contract.
22.17 Effective Date. The term"Effective Date"as used herein shall mean the later date on which Seller or
Buyer executes this Contract below.
22.18 No Waiver. The failure of any party to enforce any provision of this Contract shall not be construed to
be a waiver of such or any other provision,nor in any way to affect the validity of all or any part of this Contract or
the right of such party thereafter to enforce each and every such provision.The waiver of a Condition to Closing is not
deemed to be a waiver of any right to seek remedies for a default as provided in Section 17. No waiver of any breach
of this Contract shall be held to constitute a waiver of any other or subsequent breach.
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IN WITNESS WHEREOF,the parties have executed this Contract as of the date indicated below.
SELLER:
MTS TRI,LLC,
a North Carolina limited liability company
,—DocuSigned by:
By: ^`t, n Ui Date:
1 6/28/2023
Name: e ddre4F4..
Title: vice President
BUYER:
PULTE HOME COMPANY,LLC,
a Maid liability company
By: Via lX'ylt,r Date:6/27/2023
Name: `uavi tr a'r`ri er
Title: Division President
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EXHIBIT "A"
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