Exhibit 2(ii)
PURCHASE AND SALE AGREEMENT
OKEECHOBEE COUNTY, FLORIDA
THIS PURCHASE AND SALE AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into as of April 28, 2004 by and between
ROLLINS CONTINENTAL, INC., a New York corporation ("Seller") and LOR INC., a
Georgia corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller certain real property in accordance with the terms and
conditions hereinafter provided.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00), in hand paid, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
do hereby covenant and agree as follows:
ARTICLE 1
PROPERTY
1.1 Purchase of Property. Subject to the terms of this Agreement, Seller
agrees to sell and convey to Purchaser, and Purchaser agrees to buy from Seller,
the following:
(a) certain real property containing approximately 8,993.20 acres more
or less located in Section 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27,
28, 29, 30, 31, 32, 33, 34 and 35, Township 34 South, Range 35 East,
Okeechobee County, Florida, and being more particularly described on
Exhibit A and incorporated herein by reference, together with all
buildings, structures, improvements, appurtenances, rights, easements and
rights-of-way incident thereto (collectively, the "Real Property");
(b) all tangible personal property and fixtures of any kind owned by
Seller and attached to or used in connection with the ownership,
maintenance, use, leasing, service, or operation of the Real Property
(collectively, the "Personal Property");
(c) all intangible property of any kind owned by Seller and related to
the Real Property or the Personal Property, including without limitation,
Seller's rights and interests, if any, in and to the following (to the
extent assignable): (a) all plans and specifications and other
architectural and engineering drawings; (b) all warranties and guaranties
given or made in respect; (c) all consents, authorizations, variances or
waivers, licenses, applications, permits and approvals from any
governmental or quasi-governmental agency, department, board, commission,
bureau or other entity or instrumentality (collectively, the "Intangible
Property;" the Intangible Property, the Personal Property and the Real
Property collectively, the "Property").
ARTICLE 2
PURCHASE PRICE, EARNEST MONEY, CLOSING AND CONDITIONS
2.1 Purchase Price. Subject to the adjustments provided for elsewhere in
this Agreement, including the Survey Purchase Price Adjustment described in
Section 4.4 below, the purchase price (the "Purchase Price") for the Property
shall be SIXTEEN MILLION SIX HUNDRED THIRTY-SEVEN THOUSAND AND NO/100THS DOLLARS
($16,637,000.00). In calculating the Purchase Price, the parties have assumed
that the Real Property contains approximately 8,992.97 acres of land, thus
yielding a per acre price of $1,850.00 (the "Acre Price"). Purchase Price shall
be paid by Purchaser to Seller in cash at Closing by wire transfer of federal
funds, or by cashier's or certified check, or by closing attorney's escrow
account check, at Purchaser's election, provided that such amount shall be
adjusted for the "Earnest Money" (hereinafter defined in Section 2.2 below) and
the closing prorations described hereinbelow.
2.2 Earnest Money. Purchaser shall deliver to Fidelity National Title
Insurance Company, Two Parkway Center, 1800 Parkway Place, Suite 700, Marietta,
GA 30067 (the "Escrow Agent"), not later than two (2) business days after the
date hereof, the sum of ____N/A__ No/100 Dollars (N/A) (the "Earnest Money"),
which Earnest Money, together with any interest earned thereon, shall be either
credited to or delivered to Purchaser at Closing, if not theretofore disbursed
in accordance with the terms and conditions of this Agreement. After the
expiration of the Inspection Period, the Earnest Money shall be at risk and
shall be nonrefundable, except as expressly provided herein, including without
limitation, Seller's inability, refusal or unwillingness to satisfy the closing
conditions set forth in Section 5.1 below, and the terms of Sections 4.1, 4.2
and 9.2 and of Article 8.
2.3 Closing. The consummation of the purchase and sale of the Property
herein contemplated (such consummation being herein referred to as the
"Closing") shall take place on April 28, 2004.
In the event the date of Closing falls on a Saturday, Sunday or holiday,
the date of Closing shall be extended until, and shall occur on, the next
business day.
2.4 Place of Closing. The Closing shall take place at the offices of Arnall
Golden Gregory LLP, at 1201 West Peachtree Street, Suite 2800, Atlanta, Georgia,
or at such other place in the metropolitan Atlanta area as may be reasonably
designated by Seller and Purchaser.
2.5 Exchange. Seller agrees that Seller shall cooperate with Purchaser's
desire to exchange other property of like kind and qualifying use within the
meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and
the Regulations promulgated thereunder, for fee title in the Property, provided
that Seller shall not be obligated to incur any additional expense or liability
as a result of so structuring this transaction (other than sums incurred in
connection with the review of necessary exchange documents), and said exchange
shall not extend the date of Closing without the mutual consent of Purchaser and
Seller, nor shall Seller be required to take title to any exchange property for
the benefit of Purchaser.
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Purchaser agrees that Purchaser shall cooperate with Seller's desire to
exchange other property of like kind and qualifying use within the meaning of
Section 1031 of the Internal Revenue Code of 1986, as amended, and the
Regulations promulgated thereunder, for fee title in the Property, provided that
Purchaser shall not be obligated to incur any additional expense or liability as
a result of so structuring this transaction (other than sums incurred in
connection with the review of necessary exchange documents), and said exchange
shall not extend the date of Closing without the mutual consent of Seller and
Purchaser, nor shall Purchaser be required to take title to any exchange
property for the benefit of Seller.
Reference is made to that certain Master Exchange Agreement dated January
8, 2004, between Purchaser and SunTrust Delaware Trust Company ("SunTrust") (the
"Exchange Agreement"). Seller and Purchaser hereby acknowledge the Purchase
Price shall be funded by proceeds currently held by SunTrust as qualified
intermediary under the Exchange Agreement. Purchaser and Seller hereby
acknowledge and agree that SunTrust's liability under this Agreement shall be
limited to the Earnest Money deposited with Escrow Agent. The parties further
agree that no duty, obligation, representation or warranty of Purchaser under
this Agreement (if any) shall be assigned to SunTrust in connection with
consummation of the transactions contemplated herein.
2.6 Rights of Escrow Agent. Upon receipt of the Earnest Money, Escrow Agent
shall promptly deposit the same into a government insured interest-bearing
escrow account with such bank as Escrow Agent may select subject to Purchaser's
and Seller's reasonable approval (the "Depository"). The parties hereby
acknowledge and agree that Escrow Agent shall have the right to disburse the
Earnest Money to Purchaser or Seller upon ten (10) days' written notice to the
parties, but only if Escrow Agent shall not have received any written objections
to such disbursement within ten (10) days after receipt by Purchaser and Seller
of said notice. The parties hereto hereby acknowledge that the Escrow Agent
shall have no liability to any party on account of its failure to disburse the
Earnest Money and any interest thereon in the event of an unresolved dispute as
to which party is entitled to receive the same. In the event of any dispute as
to who is entitled to receive the Earnest Money and any interest thereon, Escrow
Agent shall have the right, at its sole election, either to retain the funds and
disburse them in accordance with the final order of a court of competent
jurisdiction or to deposit the Earnest Money and any interest thereon with said
court, pending a final decision of such controversy. The parties hereto further
agree that Escrow Agent shall not be liable for failure of the Depository and
shall only be liable otherwise in the event of its negligence or willful
misconduct. Escrow Agent's fee for serving in such capacity and Escrow Agent's
out-of-pocket expenses shall be paid 50% by Seller and 50% by Purchaser. All
interest earned on the Earnest Money shall accrue to the benefit of Purchaser,
but shall be credited, delivered or otherwise disbursed together with the
Earnest Money in accordance with the terms and conditions of this Agreement.
Purchaser's taxpayer identification number is 58-1317627.
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ARTICLE 3
INSPECTION
3.1 Inspection of Property. Purchaser, its agents and representatives shall
have a period (the "Inspection Period") of N/A from the date hereof in which to
conduct due diligence with respect to the Property and to enter upon and make
such studies, tests and/or inspections of the Property, including environmental
inspections, at Purchaser's sole cost and expense, as Purchaser deems necessary
or appropriate. Such due diligence shall include review of all zoning, utility,
engineering, access, title, geotechnical, environmental and cost issues
associated with developing the Property, including obtaining any necessary
governmental approvals or permits. In the event that Purchaser, in its sole
discretion, determines that the Property is, for any reason whatsoever
(including, without limitation, economic reasons), unsatisfactory to Purchaser,
Purchaser shall have until the end of the last day of the Inspection Period (as
it may be extended) to notify Seller in writing that Purchaser has elected to
terminate this Agreement. If Purchaser elects to terminate this Agreement
pursuant to the preceding sentence, then Escrow Agent shall promptly deliver One
Hundred and No/100 Dollars ($100.00) to Seller from the Earnest Money and
Purchaser shall promptly deliver to Seller copies of any and all studies, tests,
reports, title examinations, surveys or similar material that Purchaser has had
prepared with respect to the Property (which deliveries and payment Seller
acknowledges and agrees constitute adequate consideration for the rights granted
to Purchaser under this Agreement through the Inspection Period). Escrow Agent
shall deliver the balance of the Earnest Money and any interest thereon to
Purchaser and, upon Seller's receipt of such deliveries and payment and
Purchaser's receipt of the balance of the Earnest Money, this Agreement shall be
terminated and neither Purchaser nor Seller shall have any further rights or
obligations hereunder, except for the survival of certain provisions as
expressly provided for herein. In the event the final day of the Inspection
Period falls on a Saturday, Sunday or holiday, the Inspection Period shall be
extended until the next business day. Purchaser shall pay all costs incurred in
making such studies, tests and/or inspections and shall indemnify Seller against
and defend and hold Seller harmless from any liens, claims, losses and
liabilities arising out of Purchaser's exercising its right and privilege to go
upon the Property; provided this indemnity shall not require Purchaser to
indemnify Seller for items merely discovered by Purchaser, such as environmental
matters. This indemnity shall survive the termination of this Agreement.
Provided that Purchaser has not terminated this Agreement prior to the
expiration of the Inspection Period, Purchaser shall continue to have the right
prior to Closing to make on-site inspections of the Property during reasonable
business hours in accordance with the terms and limitations of this Section 3.1.
As provided in Section 2.2 above, if Purchaser does not terminate this Agreement
prior to the expiration of the Inspection Period, the Earnest Money thereafter
shall be at risk and shall be nonrefundable, except as expressly provided
herein.
3.2 As-Is Condition. Seller expressly disclaims any representations or
warranties of any kind, whether express or implied, with respect to the Property
and its condition or fitness for a particular purpose, other than such
representations and warranties as are expressly set forth in this Agreement.
Except as otherwise specifically provided herein, the Property is to be conveyed
by Seller and accepted by Purchaser in "As-Is, Where-Is, with All Faults"
condition at Closing. The provisions of this Section 3.2 shall survive Closing.
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ARTICLE 4
TITLE; SURVEY
4.1 Title. N/A.
4.2 Objections to Title. N/A.
4.3 Lease. Seller and Purchaser acknowledge that the Purchaser is currently
in possession of the Property pursuant to that certain Lease for Pasturage
Grazing and Hunting (the "Lease"), dated July 1, 2002 between Seller as lessor
and Rollins Ranch, a division of Purchaser, as lessee. Purchaser and Seller
hereby agree that the Lease shall terminate and any payments thereunder shall be
prorated on a per diem basis at Closing. Any unfulfilled obligations, including
without limitation, the indemnity contained in Paragraph VI of the lease shall
survive termination indefinitely.
4.4 Survey. Within ten (10) days from the date hereof, Purchaser shall
order either an ALTA/ACSM Land Title Survey or a Florida Equivalent Survey
(defined below) (the "Survey") of the Property to determine the acreage and
boundaries of the Property. The parties acknowledge that the Survey will not be
available prior to Closing. The cost of the Survey shall be paid by Purchaser.
Purchaser shall use commercially reasonable efforts to have the Survey completed
within nine (9) months from the date of Closing. Following receipt of the
Survey, Purchaser shall cause a copy of the Survey to be delivered to Seller,
and provided the Survey is reasonably acceptable to Seller, the Purchase Price
shall be re-calculated on the basis of the actual acreage of the Property as
shown by the Survey (the "Survey Purchase Price Adjustment"). If the Survey
shows that the total acreage of the Property is less than 8,993.20 acres, then
the Purchase Price shall be reduced by an amount equal to the Acre Price times
the Acreage Shortfall (as defined below), and Seller shall promptly deliver to
Purchaser cash equal to the amount overpaid at Closing; and (ii) if the Survey
shows that the total acreage of the Property is greater than 8,993.20, then the
Purchase Price shall be increased by an amount equal to the Acre Price times the
Acreage Excess (as defined below), and Purchaser shall promptly deliver to
Seller cash equal to the amount underpaid at Closing. As used herein, the term
"Acreage Shortfall" shall mean a sum equal to 8,993.20 acres less the number of
acres established by the Survey, and the term "Acreage Excess" shall mean a sum
equal to the number of acres established by the Survey less 8,993.20 acres. As
used herein, the term "Florida Equivalent Survey" shall mean a survey prepared
in accordance with the minimum technical standards set forth in the Florida
Administrative Code. Following delivery of such Survey, Seller agrees promptly
to execute and deliver to Purchaser a Quitclaim Deed conveying all of Seller's
rights, interests and title in and to the Property shown on the Survey. This
provision shall survive the Closing.
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ARTICLE 5
CLOSING
5.1 Seller's Deliveries and Conditions to Purchaser's Obligations. Seller
shall execute and deliver at Closing the following documents, dated the date of
Closing, the form of each of which shall be reasonably acceptable to Seller and
Purchaser (provided any form attached hereto shall be acceptable to Seller and
Purchaser, except that QuitClaim Deeds must also be acceptable to the Title
Company), and the execution and accuracy of which shall be a condition to
Purchaser's obligation to consummate the purchase and sale herein contemplated:
(a) Quitclaim Deed. A Quitclaim Deed, in the form attached hereto as
Exhibit B, duly executed by Seller conveying title to the Property, with
the record legal description, together with all real property transfer tax
returns required by the State of Florida;
(b) Bill of Sale and Intangible Property Assignment. A Bill of Sale
(the "Bill of Sale"), in the form attached hereto as Exhibit C, duly
executed by Seller conveying title to the Personal Property, without
warranty as to the title or condition of such Personal Property;
(c) Certificate of Non-Foreign Status. A certificate, in the form
attached hereto as Exhibit D, duly executed by Seller setting forth
Seller's address and Social Security or tax identification number and
certifying that Seller is not a foreign person for purposes of the Foreign
Investment in Real Property Tax Act ( a/k/a "FIRPTA");
(d) Quitclaim Deed. If the legal description of the Property prepared
from the Survey differs from the legal description of the Property attached
to the Quitclaim Deed delivered at Closing, then Seller shall also execute
and deliver to Purchaser at Closing, or thereafter as provided in Section
4.4 hereof a second Quitclaim Deed, in the form attached hereto as Exhibit
E, duly executed by Seller and conveying the Property to Purchaser using
the Survey legal description (the "Additional Quitclaim Deed").
(e) Owner's Affidavit. Two (2) counterparts of the Owner's Affidavit,
in the form attached hereto as Exhibit F, duly executed by Seller and
notarized, as approved by the Title Company for the issuance of the Title
Policy without exception for parties in possession (other than Purchaser or
anyone acting by, through or under Purchaser), mechanics', materialmen's or
other statutory liens.
(f) Owner's Affidavit as to Mineral Leases. Two (2) counterparts of
the Owner's Affidavit as to Mineral Leases, in the form attached hereto as
Exhibit G, duly executed by Seller and notarized, as approved by the Title
Company.
(g) Evidence of Authority. Such documentation as may be reasonably
required by Purchaser and the Title Company to establish that this
Agreement, the transactions contemplated herein and the execution and
delivery of the documents required hereunder are duly authorized, executed
and delivered.
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(h) Seller's Certificate. Two (2) counterparts of a certificate
executed and sealed by Seller, evidencing the reaffirmation of the truth
and accuracy in all material respects of Seller's representations,
warranties and agreements set forth in Article VII hereof.
(i) Settlement Statement. Four (4) counterparts of a settlement
statement executed by Seller, setting forth the amounts paid by or on
behalf of and/or credited to each of Purchaser and Seller pursuant to this
Agreement at Closing (the "Settlement Statement").
(j) Keys and Records. All of the keys to any door or lock on the
Property and such original non-confidential books and records in Seller's
possession as may be reasonably necessary for the continued operation of
the Property.
(k) Additional Documents. Such other documents, as are customary or
may be reasonably necessary to consummate the sale of the Property or to
induce the Title Company to issue the Title Policy.
5.2 Purchaser's Delivery and Conditions to Seller's Obligation. At Closing,
Purchaser shall deliver to Seller the following documents, dated the date of
Closing, the form of which shall be reasonably acceptable to Seller and
Purchaser (provided any form attached hereto shall be acceptable to Seller and
Purchaser), and the executed and accuracy of which shall be a condition to
Seller's obligation to consummate the purchase and sale herein contemplated.
(a) Purchase Price Funds. Immediately available funds in the full
amount of the Purchase Price, as adjusted pursuant to the terms of this
Agreement;
(b) Bill of Sale. Two (2) counterparts of the Bill of Sale, duly
executed by Purchaser;
(c) Settlement Statement. Four (4) counterparts of the Settlement
Statement.
(d) Additional Documents. Such other documents as are customary or may
be reasonably necessary to consummate the sale of the Property or to induce
the Title Company to issue the Title Policy.
5.3 Costs of the Parties. Seller shall pay (i) the State of Florida taxes
imposed upon the transactions contemplated in this Agreement and the conveyance
of the Property; (ii) the cost of all premiums payable with respect to the Title
Policy, including the cost of any endorsements to the Title Policy; (iii)
one-half of any closing fees or escrow fees charged by the Escrow Agent; (iv)
the cost of recording any title clearance documents required in accordance with
this Agreement; and (v) any additional costs and charges customarily charged to
sellers in accordance with common escrow practices in the county in which the
Property is located, other than those costs and charges specifically required to
be paid by Purchaser hereunder. Purchaser shall pay (i) the cost of the Survey;
(ii) the cost of recording the Quitclaim Deed delivered at Closing and the
Additional QuitClaim Deed; (iii) one-half of any closing fees or escrow fees
charged by the Escrow Agent; (iv) any additional costs and charges customarily
charged to purchasers in accordance with common escrow practices in the county
in which the Property is
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located, other than those costs and charges specifically required to be paid by
Seller hereunder. All costs and expenses of the parties' performance of their
respective obligations hereunder and the consummation of the transactions
contemplated herein that have not been assumed specifically by either party
under the terms hereof shall be borne by the party incurring such cost or
expense.
5.4 No Brokers. Seller represents and warrants that Seller has not dealt
with any broker or other finder in connection with the sale to Purchaser of the
Property. Seller will indemnify and hold harmless Purchaser from and against any
and all claims, loss, liability, cost and expenses (including reasonable
attorneys fees) resulting from any claim that may be made against Purchaser by
any broker or person claiming a commission, fee or other compensation from
Purchaser by reason of this transaction, if such claim arises by or on account
of any act of Seller or Seller's representatives. This indemnity shall survive
the Closing and any termination, cancellation or expiration of this Agreement.
Purchaser represents and warrants that Purchaser has not dealt with any
broker or other finder in connection with the sale to Purchaser of the Property.
Purchaser will indemnify and hold harmless Seller from and against any and all
claims, loss, liability, cost and expenses (including reasonable attorneys fees)
resulting from any claims that may be made against Seller by any broker or
person claiming a commission, fee or other compensation from Seller by reason of
this transaction if such claim arises by or on account of any act of Purchaser
or Purchaser's representatives. This indemnity shall survive the Closing and any
termination, cancellation or expiration of this Agreement.
ARTICLE 6
PRORATED ITEMS
6.1 Prorations. Property taxes, community improvement district assessments
and other similar charges assessed against the Property shall be prorated
between Seller and Purchaser at Closing. Such proration shall be adjusted after
Closing based on actual tax bills received. This provision shall survive
Closing.
ARTICLE 7
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
In order to induce Purchaser to enter into this Agreement, Seller makes the
representations, warranties and covenants contained in this Article Seven, each
of which is
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material to and is relied upon by Purchaser. Seller represents, warrants and
covenants as follows:
7.1 Organization; Authority to Sell. Seller is a duly organized and validly
existing corporation and is in good standing under the laws of the State of New
York. Seller is authorized to do business and in good standing under the laws of
the State of Florida. Seller has the right, power and authority to (a) enter
into this Agreement; (b) sell the Property to Purchaser in accordance with the
terms and conditions hereof; and (c) perform and observe the terms and
provisions hereof.
7.2 No Condemnation Proceedings. To Seller's knowledge, there are no
condemnation or eminent domain proceedings pending, threatened or contemplated
against the Property or any part of the Property, and Seller has received no
notice, oral or written, of the desire of any public authority or other entity
to take or use the Property or any part of the Property.
7.3 Compliance with Laws. To Seller's knowledge, Seller has not received
notice of any violations of law, municipal or county ordinances or other legal
requirements with respect to the Property (or any part thereof) or with respect
to the use, occupancy or construction thereof.
7.4 Property Agreements. Except for the Lease and any agreements entered
into by Purchaser on its behalf or on behalf of Seller, the Property is not
subject to any leases, operating agreements, maintenance agreements, service
agreements, management agreements, brokerage agreements, lease commission
agreements or other agreements or instruments in force or effect entered into by
Seller granting to any person or entity any right, title, interest or benefit in
and to all or any part of the Property or any rights relating to the use,
operation, management, maintenance or repair of all or any part of the Property.
7.5 Pending Litigation. To Seller's knowledge, there is no litigation or
any administrative proceeding pending with respect to the Property, or which
could affect Seller's ability to properly and timely perform under this
Agreement or for which Seller has received service of process or written notice
of the threat thereof.
7.6 Non-Foreign Person. Seller is not a "foreign person" for purposes of
the withholding rules of FIRPTA.
7.7 Mechanic's Liens. At or prior to Closing, Seller shall pay for all
labor that has been performed on, or materials furnished to, the Property at
Seller's direction for which a mechanic's or materialmen's lien or liens could
be claimed by any person or entity.
7.8 No Options or Contracts. Seller has granted no outstanding purchase
options or rights of first refusal with respect to all or any part of the
Property, and has entered into no outstanding contracts with others for the
sale, mortgage or other transfer of all or any part of the Property.
7.9 Action of Seller, Etc. Seller has taken all necessary action to
authorize the execution, delivery and performance of this Agreement, and upon
the execution and delivery of any document to be delivered by Seller on or prior
to the Closing, this Agreement and such
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document shall constitute the valid and binding obligation and agreement of
Seller, enforceable against Seller in accordance with its terms.
7.10 No Violations of Agreements. To Seller's knowledge, neither the
execution, delivery or performance of this Agreement by Seller, nor compliance
with the terms and provisions hereof, shall result in any breach of the terms,
conditions or provisions of, or conflict with or constitute a default under, or
result in the creation of any lien, charge or encumbrance upon the Property
pursuant to the terms of any indenture, mortgage, deed of trust, deed to secure
debt, note, evidence of indebtedness or any other agreement or instrument by
which Seller or the Property are bound.
7.11 Environmental Matters. To Seller's knowledge, Seller has received no
written notification from any governmental or quasi-governmental authority that
that there are any violations of any federal or state environmental laws with
respect to the Property, nor to Seller's knowledge, has Seller received any
written notice from any governmental or quasi-governmental authority that such
authority is contemplating an investigation of the Property with respect to a
violation or suspected violation of any such environmental law.
7.12 No New Encumbrances. During the term of this Agreement, Seller shall
not convey or encumber any portion of the Property or any rights therein without
the prior written consent of Purchaser, which consent shall not be unreasonably
withheld or delayed.
7.13 Warranties and Representations. The truth and accuracy in all material
respects, as of the date of Closing, of all representations and warranties made
by Seller herein shall be an express condition to Purchaser's obligation to
consummate the transactions contemplated herein.
7.14 No Breach. Seller shall not be deemed to be in breach of any warranty
contained in this Agreement or any other document executed by Seller at Closing
which shall be determined to be inaccurate in any respect, if, at Closing,
Purchaser has actual knowledge of such inaccuracy. The reference to phrase, the
"knowledge" of Purchaser, shall be deemed to include, without limitation, the
actual knowledge of Thorne S. Winter or Donald P. Carson, respectively of RFA
Management Co.
ARTICLE 8
CONDEMNATION
If the Property or any portion thereof be taken by condemnation or conveyed
under the threat of condemnation prior to Closing, or if there is any threatened
condemnation against the Property as of the date of Closing, Purchaser may, at
its sole election, either: (i) terminate this Agreement by notifying Seller in
writing on or before the last date for Closing as provided for above, in which
case the Earnest Money and any interest thereon shall be delivered to Purchaser,
and all rights and obligations of the parties under this Agreement shall expire,
except for the survival of certain provisions as expressly provided for herein,
and this Agreement shall terminate and be of no further force and effect; or
(ii) proceed to Closing, in which event the Purchase Price shall be reduced by
the total of any awards or other proceeds received by Seller on or before the
date of Closing with respect to any taking, and, at Closing, Seller shall assign
to
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Purchaser all of its right to any and all awards or other proceeds paid or
payable thereafter by reason of any taking. Seller shall notify Purchaser of the
existence or threat of eminent domain proceedings promptly after Seller learns
thereof.
ARTICLE 9
DEFAULT; REMEDIES
9.1 Purchaser Default. If all conditions precedent to Purchaser's
obligation to consummate the purchase of the Property have been waived by
Purchaser or satisfied, and if Seller has performed its covenants and agreements
hereunder, but Purchaser has breached its covenants and agreements hereunder and
for any reason whatsoever has failed, refused or is unable to consummate the
purchase and sale of the Property by the date of Closing, then the Escrow Agent
shall deliver the Earnest Money and any interest thereon to Seller as full and
complete liquidated damages, it being acknowledged by Purchaser and Seller that
in such event it would be extremely impracticable and difficult to ascertain the
actual damages that would be suffered by Seller. Upon proper delivery of the
Earnest Money and any interest thereon to Seller as liquidated damages, as above
provided, no party to this Agreement shall have any liability to any other party
to this Agreement, and this Agreement shall, in its entirety, be deemed of no
further force and effect, except for the survival of certain provisions as
expressly provided for herein. Such liquidated damages shall be Seller's sole
remedy for Purchaser's failure to close when obligated to do so.
9.2 Seller Default. If Seller has breached its covenants and agreements
under this Agreement for any reason whatsoever, including without limitation the
failure, refusal or inability of Seller to consummate the purchase and sale
contemplated herein by the date of Closing, then Purchaser shall, at Purchaser's
sole election, as Purchaser's sole and exclusive remedies:
(a) terminate this Agreement by written notice delivered to Seller on
or before the date of Closing, in which case Escrow Agent shall refund to
Purchaser the Earnest Money and any interest thereon and recover from
Seller any actual damages (but not punitive or speculative damages incurred
by Purchaser as a result of such default, including, without limitation, a
reimbursement of all of Purchaser's out-of-pocket expenses incurred to the
date of such termination (including, without limitation, Purchaser's
attorneys' fees and expenses, surveyors' fees and expenses, and engineering
fees and expenses); or
(b) obtain specific performance of this Agreement against Seller.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Entire Agreement; Counterparts. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated herein, and it supersedes all prior understandings or agreements
between the parties. This Agreement may be executed in one or more duplicate
original counterparts, each of which shall be effective as and shall
11
constitute an original document binding upon the party or parties signing the
same. It shall not be necessary for each party to execute all counterparts,
provided that each party has executed at least one counterpart.
10.2 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective heirs, devisees, personal
representatives, permitted successors and permitted assigns.
10.3 Survival of Warranties. It is the express intention and agreement of
the parties to this Agreement that all covenants, agreements, statements,
representations and warranties made by Seller or Purchaser in this Agreement and
stated to survive Closing shall survive this Agreement, the delivery of the
deeds and the Closing for a period of nine (9) months following the Closing,
other than, the provisions of Section 3.2, the indemnity contained in Section
3.1 and the indemnity and obligations referred to in the last sentence of
Section 4.3 and Section 5.4, all of which shall survive Closing in accordance
with their respective terms.
10.4 Waiver; Modification. Failure by Purchaser or Seller to insist upon or
enforce any of its rights shall not constitute a waiver thereof. Either party
hereto may waive the benefit of any provision or condition for its benefit
contained in this Agreement. No oral modification hereof shall be binding upon
the parties, and any modification shall be in writing and signed by the parties.
10.5 Time of Essence. TIME IS OF THE ESSENCE OF THIS AGREEMENT.
10.6 Construction. Each party hereto hereby acknowledges that all parties
hereto participated equally in the drafting of this Agreement and that,
accordingly, no court construing this Agreement shall construe it more
stringently against one party than the other.
10.7 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida.
10.8 Cumulative Remedies. Subject to the limitations set forth in Article
Nine above, each and every one of the rights, benefits and remedies provided to
Purchaser or Seller by this Agreement, or by any instrument or documents
executed pursuant to this Agreement, are cumulative and shall not be exclusive
of any other of said rights, remedies and benefits allowed by law or equity to
Purchaser or Seller, except to the extent provided in Article Nine of this
Agreement.
10.9 Date Hereof. For purposes of this Agreement, "the date hereof" or
similar references shall mean the date first above written.
10.10 Assignment. In addition to the assignment permitted in Section 2.5
herein, Purchaser may assign its interest in this Agreement, either in whole or
in part, without the prior written consent of Seller, to any entity which
controls, is controlled by or is under common control with Purchaser, provided
that such assignment shall not release Purchaser from liability hereunder.
10.11 Intentionally Deleted.
12
10.12 Radon. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit. Seller represents that it has no knowledge concerning the
existence of radon gas on the property being sold to Purchaser. Purchaser agrees
that Seller has no duty to investigate whether radon gas is now or ever was
present on the property being sold to Purchaser. Purchaser releases and
discharges Seller from any claims, demands, fees, expenses and liability if it
is found that radon gas is present on the property. Purchaser agrees to
indemnify, defend and hold Seller harmless from any claims, demands, attorney's
fees, expenses and liability if it is found at any time that radon gas is
present on the property.
10.13 Risk of Loss. Risk of loss from fire or other casualty to the
buildings on the Property shall be Purchaser's until close of escrow and
transfer of title. In the event of any damage or destruction to the Property, or
any portion thereof, Seller and Purchaser shall proceed to close under this
Agreement.
ARTICLE 11
NOTICES
11.1 Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be personally delivered, sent by
facsimile transmission (provided a copy is thereafter promptly sent by overnight
delivery as hereinafter provided), sent by Federal Express or other nationally
recognized overnight or same day courier service providing a return receipt, or
mailed by first-class registered or certified mail, return receipt requested,
postage prepaid (and shall be effective when received) to the following
addresses:
If to Seller: Rollins Continental, Inc.
2170 Piedmont Road
Atlanta, GA 30324
Attention: Ron Buchanan
Telecopier: 404-888-2291
13
and a copy to: Arnall Golden Gregory LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
Attention: Paula Abercrombie Ball
Telecopier: 404-873-8717
If to Purchaser: LOR, Inc.
c/o RFA Management, LLC
2801 Buford Highway
Suite 470
Atlanta, GA 30329
Attention: Thorne S. Winter IV
Telecopier: 404-486-4621
and a copy to: Jones Day
1420 Peachtree Street, NE
Suite 800
Atlanta, Georgia 30309
Attention: Scott A. Specht
Telecopier: 404-581-8330
ARTICLE 12
EXECUTION
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day and year first above written.
SELLER:
ROLLINS CONTINENTAL, INC.
By: /s/ Harry J. Cynkus
---------------------------------------
Harry J. Cynkus
Secretary-Treasurer
[CORPORATE SEAL]
15
PURCHASER:
LOR, INC.
By: /s/ Donald P. Carson
-----------------------------------------
Donald P. Carson
Secretary-Treasurer
[CORPORATE SEAL]
16
EXHIBIT "A"
ALL OF THE FOLLOWING PARCELS OF LAND lying and being in the County of
Okeechobee, State of Florida, all being in Township 34 South, Range 35 East, and
being more particularly described as follows:
Parcel 1:
S 1/2 of Section 15;
E 1/2 of Section 16;
All of Section 17;
All of Section 18;
All of Section 19;
All of Section 20;
All of Section 21;
The N 1/2 of the N 1/2 and the S 1/2 of the SW 1/4 of Section 22;
All of Section 27;
All of Section 28;
All of Section 29;
All of Section 33; and
All of Section 34.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 1 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by O. Wayne Rollins and Grace C. Rollins by deed dated August
18, 1960, and recorded in Book 45, Page 19 of Okeechobee County, Florida
records, less and except Section 30, which was conveyed to Thomas L. Hammons and
Gerlinde M. Hammons, by deed dated November 19, 1979, and recorded in Book 231,
Page 1609 of Okeechobee County, Florida records.
Parcel 2:
All that parcel of the following described property lying west of U.S. Highway
No. 441, to-wit:
The S 1/2 of the NW 1/4; N 1/2 of the SW 1/4; W 1/2 of the SE 1/4; and S 1/2 of
the SE 1/4 of the SE 1/4, all in Section 22, Township 34 South, Range 35 East.
The W 1/2 of the NE 1/4 of Section 15; also, E 1/2 of the NE 1/4 of Section 15
(less a tract in the NE corner measuring 466.69 feet square and containing five
acres) being KING'S SUBDIVISION of said land, according to plat thereof recorded
in Plat Book 2, page 54, public records of Okeechobee County, Florida, LESS and
EXCEPT, all of Block 1, Lots 1, 2, 3, 22, 23, 24 of Block 2; Lots 1, 2, 3, 22,
23 and 24 of Block 7, and Lots 10 to 17 inclusive of Block 8, in said
Subdivision; all in Section 15, Township 34 South, Range 35 East.
NE 1/4 of the NW 1/4; S 1/2 of the NW 1/4; N 1/2 of the SW 1/4; SE 1/4 of the SW
1/4; all in Section 14, Township 34 South, Range 35 East; and the NW 1/4 of
Section 23, Township 34 South, Range 35 East.
S 1/2 of Section 23; S 1/2 of the NW 1/4 and S 1/2 of Section 26; and Section
35; all in Township 34 South, Range 35 East.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 2 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by O. Wayne Rollins and Grace C. Rollins, dated September 8,
1960, and recorded in Book 45, Page 21 of Okeechobee County, Florida records.
2
Parcel 3:
S 50 feet of Section 31; and
All of Section 32.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 3 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Mary Sisler, dated January 18, 1967, and recorded in Book
102, Page 13 of Okeechobee County, Florida records, less and except a portion of
Section 31, which was conveyed to Thomas L. Hammons and Gerlinde M. Hammons, by
deed dated November 19, 1979, and recorded in Book 231, Page 1609 of Okeechobee
County, Florida records.
3
Parcel 4:
The W 1/2 of Section 16, Township 34 South, Range 35 East.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 4 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Ernst Junker and Hilde Junker, dated March 10, 1969, and
recorded in Book 112, Page 359 of Okeechobee County, Florida records.
4
Parcel 5:
The S 1/2 of NE 1/4 of Section 22, Township 34 South, Range 35 East.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 5 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Marjorie C. Leggett and Gordon V. Leggett dated May 26,
1972, and recorded in Book 137, Page 627 of Okeechobee County, Florida records.
5
Parcel 6:
The N 1/2 of NE 1/4 of SE 1/4 of Section 22, Township 34 South, Range 35 East;
and N 1/2 of the S 1/2 of N/E 1/4 of the SE 1/4, all in Section 22, Township 34
South, Range 35 East.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 6 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by W.D. Coker and Zora R. Coker dated May 26, 1972, and
recorded in Book 138, Page 193 of Okeechobee County, Florida records.
6
EXHIBIT B
Intentionally Deleted
EXHIBIT C
DOC TAX $
RECORD $
Prepared by and return to:
- -------------------------
- -------------------------
- -------------------------
- -------------------------
QUITCLAIM DEED
This Indenture, made ____________, 2004 by and between ROLLINS CONTINENTAL,
INC., a New York Corporation, hereinafter referred to as Grantor, whose address
is 2170 Piedmont Road, N.E., Atlanta, Georgia 30324, and OKEECHOBEE RANCH LLC, a
Georgia limited liability company, whose address is c/o RFA Management Company,
LLC, 2801 Buford Highway, Suite 470, Atlanta, Georgia 30329, hereinafter
referred to as Grantee.
Witnesseth: Grantor, in consideration of the sum of ten dollars and other
valuable considerations to it in hand paid by Grantee, receipt of which is
hereby acknowledged, does hereby release, remise and quitclaim to Grantee any
and all of the right, title and interest of Grantor in and to the following
described property situate in Okeechobee County, Florida:
See Attached Exhibit A.
As used herein, the terms "Grantor" and "Grantee" shall include their respective
heirs, devisees, personal representatives, successors and assigns; any gender
shall include all genders, the plural number the singular and the singular, the
plural.
In Witness Whereof, Grantor has caused this deed to be executed in its name by
its undersigned duly authorized officer the date above written.
WITNESSES: ROLLINS CONTINENTAL, INC.,
a New York Corporation
By:/s/ Harry J. Cynkus
- ------------------------------------ ------------------------------------
Signature of Witness Harry J. Cynkus, Secretary-Treasurer
- ------------------------------------ (Corporate Seal)
Print Name of Witness
- ------------------------------------
Signature of Witness
- ------------------------------------
Print Name of Witness
2
STATE OF GEORGIA
COUNTY OF FULTON
The foregoing instrument was acknowledged before me this ____ day of ________
2004 by ________________________, as ____________ of ROLLINS CONTINENTAL, INC.,
a New York Corporation. The above-named person is personally known to me or has
produced _________________________ as identification. If no type of
identification is indicated, the above-named person is personally known to me.
----------------------------------------
(Notary Seal) Signature of Notary Public
----------------------------------------
Print Name of Notary Public
I am a Notary Public of the State of
Georgia, and my commission expires
on ____________.
3
STATE OF GEORGIA
COUNTY OF FULTON
The foregoing instrument was acknowledged before me this ____ day of March 2004
by ____________________________, as ____________ of ROLLINS CONTINENTAL, INC., a
New York Corporation, on behalf of the corporation. The above-named person is
personally known to me or has produced _________________________ as
identification. If no type of identification is indicated, the above-named
person is personally known to me.
----------------------------------------
(Notary Seal) Signature of Notary Public
----------------------------------------
Print Name of Notary Public
I am a Notary Public of the State of
Georgia, and my commission expires
on ____________.
4
EXHIBIT A
Legal for Quitclaim Deed
ALL OF THE FOLLOWING PARCELS OF LAND lying and being in the County of
Okeechobee, State of Florida, all being in Township 34 South, Range 35 East, and
being more particularly described as follows:
Parcel 1:
S 1/2 of Section 15;
E 1/2 of Section 16;
All of Section 17;
All of Section 18;
All of Section 19;
All of Section 20;
All of Section 21;
The N 1/2 of the N 1/2 and the S 1/2 of the SW 1/4 of Section 22;
All of Section 27;
All of Section 28;
All of Section 29;
All of Section 33; and
All of Section 34.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 1 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by O. Wayne Rollins and Grace C. Rollins by deed dated August
18, 1960, and recorded in Book 45, Page 19 of Okeechobee County, Florida
records, less and except Section 30, which was conveyed to Thomas L. Hammons and
Gerlinde M. Hammons, by deed dated November 19, 1979, and recorded in Book 231,
Page 1609 of Okeechobee County, Florida records.
5
Parcel 2:
All that parcel of the following described property lying west of U.S. Highway
No. 441, to-wit:
The S 1/2 of the NW 1/4; N 1/2 of the SW 1/4; W 1/2 of the SE 1/4; and S 1/2 of
the SE 1/4 of the SE 1/4, all in Section 22, Township 34 South, Range 35 East.
The W 1/2 of the NE 1/4 of Section 15; also, E 1/2 of the NE 1/4 of Section 15
(less a tract in the NE corner measuring 466.69 feet square and containing five
acres) being KING'S SUBDIVISION of said land, according to plat thereof recorded
in Plat Book 2, page 54, public records of Okeechobee County, Florida, LESS and
EXCEPT, all of Block 1, Lots 1, 2, 3, 22, 23, 24 of Block 2; Lots 1, 2, 3, 22,
23 and 24 of Block 7, and Lots 10 to 17 inclusive of Block 8, in said
Subdivision; all in Section 15, Township 34 South, Range 35 East.
NE 1/4 of the NW 1/4; S 1/2 of the NW 1/4; N 1/2 of the SW 1/4; SE 1/4 of the SW
1/4; all in Section 14, Township 34 South, Range 35 East; and the NW 1/4 of
Section 23, Township 34 South, Range 35 East.
S 1/2 of Section 23; S 1/2 of the NW 1/4 and S 1/2 of Section 26; and Section
35; all in Township 34 South, Range 35 East.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 2 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by O. Wayne Rollins and Grace C. Rollins, dated September 8,
1960, and recorded in Book 45, Page 21 of Okeechobee County, Florida records.
6
Parcel 3:
S 50 feet of Section 31; and
All of Section 32.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 3 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Mary Sisler, dated January 18, 1967, and recorded in Book
102, Page 13 of Okeechobee County, Florida records, less and except a portion of
Section 31, which was conveyed to Thomas L. Hammons and Gerlinde M. Hammons, by
deed dated November 19, 1979, and recorded in Book 231, Page 1609 of Okeechobee
County, Florida records.
7
Parcel 4:
The W 1/2 of Section 16, Township 34 South, Range 35 East.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 4 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Ernst Junker and Hilde Junker, dated March 10, 1969, and
recorded in Book 112, Page 359 of Okeechobee County, Florida records.
8
Parcel 5:
The S 1/2 of NE 1/4 of Section 22, Township 34 South, Range 35 East.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 5 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Marjorie C. Leggett and Gordon V. Leggett dated May 26,
1972, and recorded in Book 137, Page 627 of Okeechobee County, Florida records.
9
Parcel 6:
The N 1/2 of NE 1/4 of SE 1/4 of Section 22, Township 34 South, Range 35 East;
and N 1/2 of the S 1/2 of N/E 1/4 of the SE 1/4, all in Section 22, Township 34
South, Range 35 East.
TOGETHER WITH all gas, oil, mineral and other sub-surface rights of the
foregoing Parcel 6 owned by Grantor.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by W.D. Coker and Zora R. Coker dated May 26, 1972, and
recorded in Book 138, Page 193 of Okeechobee County, Florida records.
10
EXHIBIT D
Bill of Sale
BILL OF SALE AND INTANGIBLE PROPERTY ASSIGNMENT
THIS BILL OF SALE AND INTANGIBLE PROPERTY ASSIGNMENT (hereinafter referred
to as this "Agreement"), made and delivered this day of April, 2004, by ROLLINS
CONTINENTAL, INC., a New York corporation (hereinafter referred to as "Seller"),
to OKEECHOBEE RANCH LLC, a Georgia limited liability company (hereinafter,
together with its successors and assigns, referred to as "Purchaser");
W I T N E S S E T H:
WHEREAS, Seller is the owner of fee simple title to certain real property
(hereinafter referred to as the "Premises") located in Okeechobee County,
Florida, as more particularly described in Exhibit "A" attached hereto and by
this reference made a part hereof;
WHEREAS, Seller has on even date conveyed to Purchaser title to the
Premises, and in connection therewith Seller wishes hereby to transfer and
assign to Purchaser all of Seller's right, title and interest in and to all
tangible personal property and fixtures and all intangible property related to
the Premises.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, in hand paid by Purchaser to Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby covenant and agree as follows:
1. Bill of Sale. Seller has granted, bargained, sold, conveyed,
transferred, and delivered, and by these presents does grant, bargain, sell,
convey, transfer and deliver, to all tangible personal property and fixtures of
any kind owned by Seller and attached to or used in connection with the
ownership, maintenance, use, leasing, service, or operation of the Premises
(hereinafter referred to as the "Personalty").
2. Assignment of Intangible Property. seller has transferred, assigned and
set over, and by these presents does transfer, assign, and set over in and to
purchaser all of seller's right, title and interest, in and under any and all
intangible property of any kind owned by seller and related to the premises or
the personalty, including without limitation, seller's rights and interests, if
any, in and to the following (to the extent assignable): (a) all plans and
specifications and other architectural and engineering drawings; (b) all
warranties and guaranties; (c) all consents, authorizations, variances or
waivers, licenses, applications, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality.
3. "As Is" Sale. Purchaser acknowledges that the Personalty is being sold
to Purchaser "As Is" with no representation or warranty as to the condition,
performance, capabilities, or fitness for any particular purpose of such
Personalty or any warranty whatsoever, express or implied.
4. Successors and Assigns. This Agreement shall be binding upon and insure to
the benefit of Purchaser and Seller and their respective heirs, legal
representatives, successors and assigns.
2
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement under
seal as of the date and year first above stated.
SELLER:
ROLLINS CONTINENTAL, INC.
By: /s/ Harry J. Cynkus
------------------------------------
Harry J. Cynkus
Secretary-Treasurer
[CORPORATE SEAL]
3
PURCHASER:
OKEECHOBEE RANCH LLC
By: LOR, Inc., its sole Member and
Manager
By: /s/ Donald P. Carson
------------------------------------
Donald P. Carson
Secretary-Treasurer
4
EXHIBIT "A"
Record legal description
Okeechobee, Florida
ALL OF THE FOLLOWING PARCELS OF LAND lying and being in the County of
Okeechobee, State of Florida, all being in Township 34 South, Range 35 East, and
being more particularly described as follows:
Parcel 1:
S 1/2 of Section 15;
E 1/2 of Section 16;
All of Section 17;
All of Section 18;
All of Section 19;
All of Section 20;
All of Section 21;
The N 1/2 of the N 1/2 and the S 1/2 of the SW 1/4 of Section 22;
All of Section 27;
All of Section 28;
All of Section 29;
All of Section 33; and
All of Section 34.
TOGETHER WITH an undivided 1/4 interest in all oil and mineral rights in and to
the above-described property.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by O. Wayne Rollins and Grace C. Rollins by deed dated August
18, 1960, and recorded in Book 45, Page 19 of Okeechobee County, Florida
records, less and except Section 30, which was conveyed to Thomas L. Hammons and
Gerlinde M. Hammons, by deed dated November 19, 1979, and recorded in Book 231,
Page 1609 of Okeechobee County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
6
Parcel 2:
All that parcel of the following described property lying west of U.S. Highway
No. 441, to-wit:
The S 1/2 of the NW 1/4; N 1/2 of the SW 1/4; W 1/2 of the SE 1/4; and S 1/2 of
the SE 1/4 of the SE 1/4, all in Section 22, Township 34 South, Range 35 East.
The W 1/2 of the NE 1/4 of Section 15; also, E 1/2 of the NE 1/4 of Section 15
(less a tract in the NE corner measuring 466.69 feet square and containing five
acres) being KING'S SUBDIVISION of said land, according to plat thereof recorded
in Plat Book 2, page 54, public records of Okeechobee County, Florida, LESS and
EXCEPT, all of Block 1, Lots 1, 2, 3, 22, 23, 24 of Block 2; Lots 1, 2, 3, 22,
23 and 24 of Block 7, and Lots 10 to 17 inclusive of Block 8, in said
Subdivision; all in Section 15, Township 34 South, Range 35 East.
NE 1/4 of the NW 1/4; S 1/2 of the NW 1/4; N 1/2 of the SW 1/4; SE 1/4 of the SW
1/4; all in Section 14, Township 34 South, Range 35 East; and the NW 1/4 of
Section 23, Township 34 South, Range 35 East.
S 1/2 of Section 23; S 1/2 of the NW 1/4 and S 1/2 of Section 26; and Section
35; all in Township 34 South, Range 35 East.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by O. Wayne Rollins and Grace C. Rollins, dated September 8,
1960, and recorded in Book 45, Page 21 of Okeechobee County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
Parcel 3:
S 50 feet of Section 31; and
All of Section 32.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Mary Sisler, dated January 18, 1967, and recorded in Book
102, Page 13 of Okeechobee County, Florida records, less and except a portion of
Section 31, which was conveyed to Thomas L. Hammons and Gerlinde M. Hammons, by
deed dated November 19, 1979, and recorded in Book 231, Page 1609 of Okeechobee
County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
7
Parcel 4:
The W 1/2 of Section 16, Township 34 South, Range 35 East, less rights of way
for public roads and highways, including all improvements and buildings thereon.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Ernst Junker and Hilde Junker, dated March 10, 1969, and
recorded in Book 112, Page 359 of Okeechobee County, Florida records.
Parcel 5:
The S 1/2 of NE 1/4 of Section 22, Township 34 South, Range 35 East.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Marjorie C. Leggett and Gordon V. Leggett dated May 26,
1972, and recorded in Book 137, Page 627 of Okeechobee County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
8
Parcel 6:
The N 1/2 of NE 1/4 of SE 1/4 of Section 22, Township 34 South, Range 35 East;
and N 1/2 of the S 1/2 of N/E 1/4 of the SE 1/4, all in Section 22, Township 34
South, Range 35 East.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by W.D. Coker and Zora R. Coker dated May 26, 1972, and
recorded in Book 138, Page 193 of Okeechobee County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
9
EXHIBIT E
Certificate of Non-Foreign Status
TRANSFEROR'S CERTIFICATION OF NONFOREIGN STATUS
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"),
provides that a transferee of a U.S. real property interest must withhold tax if
the transferor is a foreign person. To inform OKEECHOBEE RANCH LLC, a Georgia
limited liability company (the "Transferee"), that withholding of tax under
Section 1445 of the Code will not be required upon the transfer of a U.S. real
property interest to the Transferee by ROLLINS CONTINENTAL, INC., a New York
corporation (the Transferor"), the undersigned hereby certifies the following on
behalf of the Transferor:
1._______The Transferor is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the Code and the
Income Tax Regulations promulgated thereunder);
2._______The Transferor's U.S. employer identification number is
____________; and
3._______The Transferor's office address is 2170 Piedmont Road, Atlanta,
Georgia 30324.
The Transferor understands that this Certificate may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification
and, to the best of my knowledge and belief, it is true, correct and complete,
and I further declare that I gave authority to sign this document on behalf of
the Transferor.
Dated: ___________________, 2004
ROLLINS CONTINENTAL, INC., a New York
corporation
By: /s/ Harry J. Cynkus
---------------------------------
Harry J. Cynkus
Secretary-Treasurer
EXHIBIT F
DOC TAX $
RECORD $
Prepared by and return to:
- -------------------------
- -------------------------
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QUITCLAIM DEED
This Indenture, made ____________, 2004 by and between ROLLINS CONTINENTAL,
INC., a New York Corporation, hereinafter referred to as Grantor, whose address
is 2170 Piedmont Road, N.E., Atlanta, Georgia 30324, and OKEECHOBEE RANCH LLC, a
Georgia limited liability company, whose address is c/o RFA Management Company,
LLC, 2801 Buford Highway, Suite 470, Atlanta, Georgia 30329, hereinafter
referred to as Grantee.
Witnesseth: Grantor, in consideration of the sum of ten dollars and other
valuable considerations to it in hand paid by Grantee, receipt of which is
hereby acknowledged, does hereby release, remise and quitclaim to Grantee any
and all of the right, title and interest of Grantor in and to the following
described property situate in Okeechobee County, Florida:
See Attached Exhibit A.
As used herein, the terms "Grantor" and "Grantee" shall include their respective
heirs, devisees, personal representatives, successors and assigns; any gender
shall include all genders, the plural number the singular and the singular, the
plural.
In Witness Whereof, Grantor has caused this deed to be executed in its name by
its undersigned duly authorized officer the date above written.
WITNESSES: ROLLINS CONTINENTAL, INC.,
a New York Corporation
By: /s/ Harry J. Cynkus
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Signature of Witness Harry J. Cynkus, Secretary-Treasurer
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Print Name of Witness
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Signature of Witness
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Print Name of Witness
STATE OF GEORGIA
COUNTY OF FULTON
The foregoing instrument was acknowledged before me this ____ day of ________
2004 by ________________________, as ____________ of ROLLINS CONTINENTAL, INC.,
a New York Corporation. The above-named person is personally known to me or has
produced _________________________ as identification. If no type of
identification is indicated, the above-named person is personally known to me.
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(Notary Seal) Signature of Notary Public
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Print Name of Notary Public
I am a Notary Public of the State of
Georgia, and my commission expires
on ____________.
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EXHIBIT A
Legal for Quitclaim Deed
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EXHIBIT G
STATE OF GEORGIA
COUNTY OF FULTON
OWNER'S AFFIDAVIT
Before the undersigned attesting officer, duly authorized by law to
administer oaths in the above-referenced state, appeared Affiant, Harry J.
Cynkus, who, being duly sworn according to law, deposed and stated on oath
as follows:
That Affiant is the Secretary-Treasurer of Rollins Continental, Inc., a New
York corporation, (hereinafter referred to as "Seller"), and is duly authorized
to make this Affidavit.
That Seller has not conveyed any interest in the real property described in
Exhibit "A" attached hereto and incorporated herein by reference, except as may
be disclosed by public record.
That to Affiant's knowledge there are no unrecorded judgments, bankruptcies
or executions against Seller or to Affiant's knowledge against said property
which would affect title thereof.
That no improvements or repairs have been made on said property at the
instance of Seller during the 100 days immediately preceding the date hereof for
which full payment has not been made and that there are no outstanding bills
incurred by Seller for labor or materials used in making improvements or repairs
on said property or for services of architects, surveyors, or engineers incurred
in connection therewith which have not been paid; and that to Affiant's
knowledge there are no unpaid bills or liens against said property for sewerage,
water, sidewalk, street, or other improvements except as may be set forth on
Exhibit "B".
That Affiant knows of no pending petition for, nor is he aware of having
received notice of condemnation, paving, or street, water, or sewer improvements
affecting said property, and that to the knowledge of Affiant, no written notice
of condemnation, any such improvements, or any other assessment has been
received by Seller.
That to Affiant's knowledge no brokers services have been engaged with
regard to the management, sale, lease, option or other conveyance of any
interest in said property or any loan secured thereby, except as disclosed in
the Leases identified on Exhibit "C" attached hereto.
That there are no parties in possession of all or any portion of said
property, except for the Lease described on Exhibit "C" and anyone acting by,
through or under Purchaser.
That to Affiant's knowledge, Seller has not and will not execute any
instrument that would affect title to the property, including, but not limited
to, the mortgaging or conveying of the property or any interest therein or cause
the creation of liens against the property subsequent
to the effective date of Commitment No. NT04-0166 (File No. 4ATL) issued by
Fidelity National Title Insurance Company and prior to the closing of the sale
of the property to Okeechobee Ranch, LLC ("Buyer").
That this Affidavit is made to induce Fidelity National Title Insurance
Company to issue its policy of title insurance insuring said property.
Executed by me this __ day of April, 2004
/s/ Harry J. Cynkus (Affiant)
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Harry J. Cynkus
STATE OF GEORGIA
COUNTY OF FULTON
The foregoing instrument was sworn to, subscribed and acknowledged before me
this _____ day of April, 2004 by Harry J. Cynkus, in his capacity as
Secretary-Treasurer of Rollins Continental, Inc., a New York corporation, who is
personally known to me.
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Notary's Name:
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(NOTARIAL SEAL)
My Commission Expires:
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Exhibit "A"
Record legal description
Okeechobee, Florida
ALL OF THE FOLLOWING PARCELS OF LAND lying and being in the County of
Okeechobee, State of Florida, all being in Township 34 South, Range 35 East, and
being more particularly described as follows:
Parcel 1:
S 1/2 of Section 15;
E 1/2 of Section 16;
All of Section 17;
All of Section 18;
All of Section 19;
All of Section 20;
All of Section 21;
The N 1/2 of the N 1/2 and the S 1/2 of the SW 1/4 of Section 22;
All of Section 27;
All of Section 28;
All of Section 29;
All of Section 33; and
All of Section 34.
TOGETHER WITH an undivided 1/4 interest in all oil and mineral rights in and to
the above described property.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by O. Wayne Rollins and Grace C. Rollins by deed dated August
18, 1960, and recorded in Book 45, Page 19 of Okeechobee County, Florida
records, less and except Section 30, which was conveyed to Thomas L. Hammons and
Gerlinde M. Hammons, by deed dated November 19, 1979, and recorded in Book 231,
Page 1609 of Okeechobee County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
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Parcel 2:
All that parcel of the following described property lying west of U.S. Highway
No. 441, to-wit:
The S 1/2 of the NW 1/4; N 1/2 of the SW 1/4; W 1/2 of the SE 1/4; and S 1/2 of
the SE 1/4 of the SE 1/4, all in Section 22, Township 34 South, Range 35 East.
The W 1/2 of the NE 1/4 of Section 15; also, E 1/2 of the NE 1/4 of Section 15
(less a tract in the NE corner measuring 466.69 feet square and containing five
acres) being KING'S SUBDIVISION of said land, according to plat thereof recorded
in Plat Book 2, page 54, public records of Okeechobee County, Florida, LESS and
EXCEPT, all of Block 1, Lots 1, 2, 3, 22, 23, 24 of Block 2; Lots 1, 2, 3, 22,
23 and 24 of Block 7, and Lots 10 to 17 inclusive of Block 8, in said
Subdivision; all in Section 15, Township 34 South, Range 35 East.
NE 1/4 of the NW 1/4; S 1/2 of the NW 1/4; N 1/2 of the SW 1/4; SE 1/4 of the SW
1/4; all in Section 14, Township 34 South, Range 35 East; and the NW 1/4 of
Section 23, Township 34 South, Range 35 East.
S 1/2 of Section 23; S 1/2 of the NW 1/4 and S 1/2 of Section 26; and Section
35; all in Township 34 South, Range 35 East.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by O. Wayne Rollins and Grace C. Rollins, dated September 8,
1960, and recorded in Book 45, Page 21 of Okeechobee County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
Parcel 3:
S 50 feet of Section 31; and
All of Section 32.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Mary Sisler, dated January 18, 1967, and recorded in Book
102, Page 13 of Okeechobee County, Florida records, less and except a portion of
Section 31, which was conveyed to Thomas L. Hammons and Gerlinde M. Hammons, by
deed dated November 19, 1979, and recorded in Book 231, Page 1609 of Okeechobee
County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
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Parcel 4:
The W 1/2 of Section 16, Township 34 South, Range 35 East, less rights of way
for public roads and highways, including all improvements and buildings thereon.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Ernst Junker and Hilde Junker, dated March 10, 1969, and
recorded in Book 112, Page 359 of Okeechobee County, Florida records.
Parcel 5:
The S 1/2 of NE 1/4 of Section 22, Township 34 South, Range 35 East.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by Marjorie C. Leggett and Gordon V. Leggett dated May 26,
1972, and recorded in Book 137, Page 627 of Okeechobee County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
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Parcel 6:
The N 1/2 of NE 1/4 of SE 1/4 of Section 22, Township 34 South, Range 35 East;
and N 1/2 of the S 1/2 of N/E 1/4 of the SE 1/4, all in Section 22, Township 34
South, Range 35 East.
Being the same lands and premises granted and conveyed to Continental
Broadcasting, Inc. by W.D. Coker and Zora R. Coker dated May 26, 1972, and
recorded in Book 138, Page 193 of Okeechobee County, Florida records.
LESS AND EXCEPT all property lying within the rights of way of public roads or
highways, if any.
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EXHIBIT "B"
Permitted Encumbrances
Okeechobee, Florida
1. Current state and county ad valorem real property taxes not due and
payable.
2. All easements for the maintenance of public utilities that serve only
the Property,
3. Any matters which a current, accurate survey or physical inspection of
the Property would show.
4. Any matters of public record, including but not limited to, those
matters set forth in Title Commitment No. NT04-0166 (File No. 04ATL),
issued by Fidelity National Title Insurance Company of New York and
all the vesting deeds.
EXHIBIT "C"
Leases
NONE
EXHIBIT G
OWNER'S AFFIDAVIT AS TO MINERAL LEASES
STATE OF_________________________
COUNTY OF ______________________
I, ________________________________, ("Affiant") after first being duly
sworn, do hereby state and depose, under penalties of perjury and upon oath, as
follows with all recitals herein being limited to Affiant's knowledge:
1. I am over the age of 18 years, under no legal disabilities, have not been
known by any name other than as set forth herein, and have personal
knowledge of the facts and circumstances as herein set forth.
2. I am the ______________________ of Rollins Continental, Inc., a New York
corporation, formerly known as Continental Broadcasting, Inc., a New York
corporation, ("Rollins") and am duly authorized to make this Affidavit.
3. That the instruments referenced herein (the "subject instruments") are as
follows:
(a) Oil, Gas and Mineral Lease in favor of Shell Oil Company, dated
September 12, 1973, recorded February 22, 1974 in Official Record Book
156, page 371, of the Public Records of Okeechobee County, Florida.
(b) Oil, Gas and Mineral Lease in favor of Shell Oil Company dated
September 12, 1973, recorded February 22, 1974 in Official Record Book
156, page 375, of the Public Records of Okeechobee County, Florida.
4. That there have been no amendments, modifications or extensions of the
subject instruments, except as referenced herein, entered into by Rollins;
5. That Rollins has not received any payments for rents, leases or royalties
in connection with the commercial production of oil, gas or minerals on the
subject properties by the grantors recited in the subject instruments or
their successors in interest for a period of at least 12 months prior to
the date hereof.
6. That this Affidavit is made for the sole purpose of inducing Fidelity
National Title Insurance Company to issue its policy of title insurance.
[Continued]
Executed by me this __ day of April, 2004
_________________________________ (Affiant)
Name: _______________________________
STATE OF __________________________
COUNTY OF ________________________
The foregoing instrument was sworn to, subscribed and acknowledged before me
this _____ day of April, 2004 by __________________________, in his/her capacity
as _______________ of Rollins Continental, Inc., a New York corporation, who is
personally known to me or has produced ___________________________________ as
identification.
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Notary's Name: __________________________________
(NOTARIAL SEAL)
My Commission Expires:
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