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HomeMy WebLinkAboutSW3191104_03 07 2019 FINAL SIGNED CONTRACT -TRUFFLE - GARCIA[1]_11/19/2019ASSIGNMENT AND AGREEMENT FOR PURCHASE OF REAL ESTATE This Assignment and Agreement For Purchase Of Real state ("Assignment Agreement") is made effective as of the day of t 2019 (the Effective Date"), by and among Truffle, LLC,�a Nortk� Caza ina limited liability company, ("TtuPfle") and GS Development, LLC , a limited liability company ("GSD }. Truffle and G are sometimes collectively referred to as the, '`Parties") A. Truffle, as Buyer, entered into that certain Purchase and Sale Agreement dated effective as of July 12, 2017 with Charlene G. Carter, as Seller, to purchase all of that certain 1.54 acres, more or less, tract of real property designated as ":Tract Two" in a deed dated April 7, 1999 from Frank Odell Campbell and wife Helen. Crane Campbell to Charlene G. Carter recorded in Book 1232, Page 893 of the Union County Registry (Tax parcel # 06456-003) (the "Property") (the "Purchase Agreement°'), that was amended by the First Amendment To Offer To Purchase dated January 20, 2018 ("First Amendment"), and the Second Amendment To Offer To Purchase And Sale Agreement dated September 22, 2015 ("Second Amendment', and the ?laird Amendment To Offer To Purchase Arid Sale Agreement dated January 29, 2019 ("Third Amendment") (the Purchase Agreement, First Amendment, Second Amendment, and Third Amendment are hereafter referred to as the "Purchase Agreement"). B. Truffle and GSD desire to enter into this Assignment Agreement to assign all of Truf le's right, title and interest in the Purchase Agreement, to GSD upon the terms and conditions set forth in this Purchase Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Truffle and GSD agree as follows: 1. Recitals. Defined Terms. The recitals are hereby trade a part of this Amendment. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Purchase Agreement. 2. Ownershi- Pr� Terty. GSD acknowledges that Truffle does not have ownership of the Property; and, instead Truffle has a contract to purchase the Property Pursuant to the terms of the Purchase Agreement. GSD further acknowledges that Truffle has provided GSD a copy of the Purchase Agreement. 3. Assianment Purchase Price. GSD shall pay to Truffle the amount of Three Hundred Forty -Five Thousand and 00/100 Dollars ($345,000) at Closing ('Assignment Purchase Price"), 4. Assignment Earnest Money De osit. Upon full execution of this Assigi3ment Agreement, GSD shall make an initial earnest money deposit ("Assignment Earnest Money Deposit") in the amount of Ten Thousand and 00/100 Dollars ($10,000) [16869VJI] in anon -interest -bearing escrow account. The Assignment be applied as part of the Assi Earnest Money Deposit s hereinbelow. gnment Purchase Price at Closing; or, disbursed as set 5- Assi nmezmt I ection Period. GSD shall have Seventy -Five (75) days after this Assignment Agreement is executed by GSD and Truffle to inspect the ProPertY (the "Assignment Inspection Period"). During od, GSD the Inspection Peri and GSD's agents and designees shall examine the title to the grope make any other investigations that GSD, in their sole discretionbelieves necessary or prudent. , In addition, GSD shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and making surveys, mechanical and seal engineering studies, environmental assessments, and any other investigations and inspections as GSD may reasonably require to assess the condition Of the Property; provided, however. that such activities by or on behalf of GSD on the property shall not materially damage the Property; and REfflided f�her, hoer, that GSD shall indemnify and hold Truffle and Charlene G_ Carter harmless .from and against any and all claims for injury to person or damage to Property, to the extent directly or indirectly resulting from the activities of GSD or LSD's agents or designees regarding the Property. This indemnification obligation of GSD shall survive the termination of this Assignment Agreement and or the Closing. It is acknowledged that although Charlene G. Carter is not a party to this Assignment Agreement, that good and valuable consideration is being paid for the forgoing indemnification of Charlene G. Carter, in that Truffle and. GSD are deriving a direct benefit because Truffle would not enter into this Assignment Agreement and GSD could not purchase the Property unless Charlene G. Carter is so indemnified; and provided further, however, that GSD, in the event of the termination of this Assignment Agreement, shall restore and/or repair the Property to its original theorrneci. GSD shall have condition prior to any tests or inspections GSD may have perF the right to terminate this Assignment Agreement at any time before 5 pm on �75th day after this Assignment Agreement is executed by both GSD and Truffle for any reason or for no reason. If GSD elects to terminate the Assignment Agreement as provided herein, the Escrow Agent shall return to GSD the Assignment Earnest Money Deposit and this Assignment Agreement shall terminate and become of no further force or effect, except for the indemnification provisions set out hereinabove which shall survive the termination. If upon the expiration of the Assignment Inspection Period, GSD has not terminated this Assignment Agreement as set out above, then it shall be deemed that GSD has waived its right to object to any and all matters or things that were or could have been discovered during the Assignment Inspection Period and within three (3) business days shall pay an additional amount of Forty Thousand Dollars ($40,000.00) to the Escrow Agent ("Additional Assignment Earnest Money Deposit'°). The Assignment Earnest Money Deposit and the Additional Assignment Earnest Money Deposit shall be non-refundable to GSD and shall be immediately payable to and retained by Tree, except in the event of a breach of this Assignment Agreement by Truffle or a beach of the Purchase Agreement by Truffle or Charlene G. Carter; however, the Assignment Earnest Money Deposit and the Additional Assignment Earnest Money Deposit shall be applied to time Assigmnent Purchase Price at Closing. Escrow Agent shall pay the Assignment Earnest Money Deposit and the Additional Assignment Earnest Money [(686982itl 1 Deposit to Truffle Mann receipt of the Additional Assignment Earnest Money Deposit Without the approval or consent of GSD Or any requirement or confirmation (written or otherwise) from GSD. 6- Approval Period. GSD shall submit a complete preliminary for a LearningE p >? nary Site Plan xperience Day Care to the applicable governmental authorities on n before Fifteen (15) days after expiration of Assignment fnspection Period. GSD shall have until 5.00 pm on the 30th day of June, 2019 to secure Site Plan approvals ("Approval Period). If GSD has not secured Site Plan Approvals by the end of the Approval Period, GSD may terminate this Assignment Agreement upon written notice to Truffle prior to the end of the Approval Period, and this Assignment Agreement shall terminate and have no further force or effect, except for the indemnification provisions set out hereinabove and with Truffle retaining the Assignment Earnest Money Deposit and the Additional Assignment Earnest Money Deposit. The Approval Period may be extended for two (2) consecutive Thirty (30) day periods (='Approval Period Extension"), the first of which shall begin on the day after the end of the Approval Period, pursuant to the following terms and conditions: a. GSD shall give notice that GSD is electing the Approval Period Extension before the end of the Approval Period (and before 5:00 pm the day before the first Approval Period Extension ends, if applicable); and b. GSD shall pay to Truffle for each Approval Period Extension the amount of Twenty -Five Thousand Dollars ($25,000) (Approval Period Extension Fee) that will be applied to Assignment Purchase Price- The Approval Period Extension Fee(s) shall be non-refundable and immediately payable to and retained by Truffle. C. If written notice of termination of the Assignment Agreement for failure to obtain Site Plan Approvals is given by GSD to Truffle before 5:00 pm on the day of the expiration of any Approval Period Extension, this Assignment Agreement shall terminate and be of no further force of effect-, however, the Assigniacut Earnest Money Deposit, and the Additional Assignment Earnest Money Deposit, and the Approval Period Extension Fee(s) shall not be refunded to GSD as set out in Section F.b. above, except in the event of a breach of this Assignment Agreement by Truffle or a beach of the Purchase Agreement by Truffle or Charlene G. Carter. 7. &e resentations and Warranties of Truffle. Truffle represents and Warrants, as follows: a. The Property is zoned to allow for the operation of a child care facility on the Property consisting of a 10,000 sq, fit building and parking, for a capacity of 170 children. b. To the best of Truffle's knowledge All ,structures on the Property existing at the time Truffle entered into the Purchase Agreement have been removed from the Property, i jtb8b9E2/t] � —"` C. To the best of Truffle's knowledge all structures existing below the ground on the Property at the time Treffle entered into been removed. the Purchase Agreement have d. Truffle obtained a Phase 1 environmental study of the Property. e- Truffle removed all trees from the Property except buffer areas. £ Truffle obtained a current survey of the Property. g- Truffle has the authority to enter into this Assignment Agreement- h. Truffle is in compliance with all terms and conditions of the Purchase Agreement. follows. 8. Representations and WwTaniies of GSD. GSD represents and warrants as a GSD has the authority to enter into this Assignment Agreement. b. GSD shall not contact Charlene G. Carter. C. GSD will not interfere or take any action to impair the ability of Truffle to comply with Truffle's duties and obligations pursuant to the Purchase Agreement. 9. Truffle Deliveries. Truffle has delivered to GSD and GSD acknowledges receipt of the Phase l Environmental Report for the Property, the Engineering drawings for a two-story office building for the Property and the current survey of the Property. Truffle will deliver to GSD within ten (10) days to GSD, or its agent documentation of the rezoning of the property for childcare facilities. 10. & - The Haymond Properties, LLC sign is the only sign allowed on the Property before Closing except as sign with the wording `:Coming Soon Learning Experience Day Care" may be placed on the Property after the Assignment Earnest Money Deposit and the Additional Assignment Earnest Money Deposit becomes non- refundable. GSD shall allow a "Haymond Sold. Sign" to remain on the Property for a period of sixty (60) days after Closing as the only real estate sold sign on the Property. Notwithstanding anything to the contrary this provision snail survive Closing. 11. Assignment. GSD may assign this Assignment Agreement only after the Assignment Earnest Money Deposit and the Additional Assignment Earnest Money Deposit have become non-refundable and only if GSD remains a guarantor of all terms and conditions set out in this Assignment agreement including all provision that survive Closing. 12. Conditions to Closing: [1686982111 � a. GSD shall not be obligated to Close unless the following has occurred or is performed at Closing: (1) Charlene G. Carter has complied with all of her duties and obligations pursuant to the Purchase Agreement; and, (2) Truffle has complied with its duties and obligations pursuant to the Purchase Agreement and this Assignment Agreement; and, (3) The Representations and Warranties of Truffle remain true as of the time of Closing. (4). There has been no impairment of title to the Property from the end of the Assignment Inspection Period excepting anything impairing title as a result of any action taken by or on behalf of GSD or its agents or assigns or arising out of any activity of GSD or its agents or assigns. b. Truffle shall not be obligated to Close and Truffle shall have the right, in its sole discretion, to terminate this Assignment Agreement and be paid and retain Assignment Earnest Money Deposit, and the Additional Assignment Earnest Money Deposit, and the Approval Period Extension Fee(s) unless the following has occurred or is performed at Closing. (1) GSD, or its assigns, has performed all of its duties and obligations pursuant to this Assignment Agreement. (2) GSD pays the full Assignment Purchase Price in immediate available funds. (3) GSD reimburse Truffle in immediately available funds the full Earnest Money Deposit paid by Truffle to Charlene G. Carter pursuant to the Purchase Agreement. (4) GSD pays the fall Purchase Agreement purchase price at Closing . 13. The Closing Date shall be 15 days after the later of the Assignment Inspection Period or the and of the Approval Period (as may be extended as set forth in Section 6); provided that, notwithstanding anything herein to the contrary, the Closing shall occur no later than the 15tff day of September, 24I9 ("Closing Deadline"). If the Closing does not occur before 5:00 p.m. on the Closing Deadline, then all of the Assignment Earnest Money Deposit, and the Additional Assignment Earnest Money Deposit, and the Approval Period Extension Fee(s)sums not already paid to Truffle shall be paid to Truffle, and this Assignment Agreement shall otherwise be of no further force and effect, except those provisions that survive closing as set out herein. At Closing GSD shall pay the Assignment Purchase Price to Truffle. Truffle l�s7hall assign GSD all of its right, title and interest in the Purchase Agreement to GSD, and GSD shall thereby assume the rights, title, interest and obligations of the Buyer pursuant to the Purchase Agreement and effect Closing under the Purchase Agreement. [1686982/11 v � l` K 14- Truffle and GSD agree to indemnify and hold Escrow Agent harmless from and against any and all claims, demands, casts, liabilities, damages, and expenses arising out of; from, or in conjunction with Escrow Agent's execution of or performance under this Agreement. In the event of doubt as to the duties under this Agreement, the Escrow Agent (i) may continue to hold the Escrow Funds until a judgment of a court of Coffipetent jurisdiction shall determine the rights of the parties thereto or (R) deposit the Escrow Funds with the Clerk of Superior Court of Union County, North Carolina_ Upon notifying all parties of such action, all liability on the part of the Escrow Agent shall terminate except to the extent of accounting for any monies theretofore delivered out of escrow. Escrow Agent shall not be liable to any person by virtue of its action or failure or refusal to act without such judicial determination. Escrow Agent shall not be liable to any person by virtue of its action or failure or refusal to act without such judicial determination. In the event of any suit between any of the parties to this Agreement, wherein the Escrow Agent is trade a party by virtue of acting as Escrow Agent or interpleads the subject matter of this escrow, the Escrow Agent shall be entitled to recover reasonable attorneys' fees and expenses incurred. Such fees and expenses are to be charged and assessed as court costs against the non -prevailing party. The Escrow Agent shall notify all parties to this Agreement of any disburse meatt of the Escrow Funds. 15. Any notice required or permitted to be given to any party shall be in writing and shall be delivered by hand, sent via fax, sent via email, or sent by a national, reputable overnight courier to the addresses set forth below. Any such notice shall be deemed to be received: (i) if delivered personally, on the date of such delivery; (ii) if fated, on the date of transmissions with confirmation of transmission by fax and with a hard copy sent by first class mail; (iii) if emailed, on the date of transmission with email confirmation by email delivery receipt and with a hard copy sent by first class mail, or (iv) if sent by overnight courier, on the first 0st) business day following delivery to the courier. The addresses for notice shall be as follows: Truffle: 10612-D Providence Road, carte 5 CharlQueNC 28277 Email: hp3mwndl.com Fax# GSD: G L rr � 6'A i C- (,I- -10 i " /r-4 L G C? 2j Email: Fax#�Cid r �� Escrow Agent: Helms Robison Lee 8c Bennett, PA Atta. R. Kenneth Helms, jr. P.Q_ Drawer 99 .Monroe, NC 28I11-oog9 Email: khel:tx>;sia�.�Ibatto>nevs.co; [1686982i 1 j i• TIME IS 0-F TEE ESSENCE AS TO ALL �'ROVISI(�NS of MISAS,SGN1l�I.�"N�"AGR.�F1YrEN7: IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement as of the day and year first above written. TRUFFLE, LLC By: GS DEVELOPMENT, LLC 13y- Escrow Agent executes this Assignment Agreement solely for the purpose of agreeing to the terms and conditions regarding any escrowed funds as set out in the Assignment Agreement, Escrow Agent: HELMS ROBISON LEE & BENNETT, P.A By: (1686982/1] R. Kenneth Helms, Jr.