Exhibit 10(k)
PURCHASE AND SALE AGREEMENT
SUSSEX COUNTY, DELAWARE
THIS PURCHASE AND SALE AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into as of December 20, 2004 by and between
ROLLINS CONTINENTAL, INC., a New York corporation ("Seller") and LOR INC., a
Georgia corporation ("LOR") and RCTLOR, LLC, a Georgia limited liability company
("RCTLOR"; LOR and RCTLOR collectively, "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, including
without limitation Section 1.2 below, Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to buy from Seller, the following:
(a) certain real property containing approximately 433.72 acres more
or less located in Lewes and Rehoboth Hundred, Sussex County, Delaware,
such real property 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").
1.2 Joint Acquisition of Property. At Closing, Seller shall convey to LOR,
and LOR shall receive from Seller, an approximately 42.15% undivided interest in
the Property (the "LOR Undivided Interest"). At Closing, Seller shall convey to
RCTLOR, and RCTLOR shall receive from Seller, an approximately 57.85% undivided
interest in the Property (the "RCTLOR Undivided Interest"). At Closing, LOR and
RCTLOR will enter into a Tenancy-In-Common Agreement. Wherever this Agreement
provides that Purchaser shall pay a particular cost or expense, or provides for
an adjustment to the Purchase Price (whether an increase or decrease), or
otherwise provides for rights, liabilities or obligations to be assigned,
assumed or performed by Purchaser, including without limitation Sections 2.6,
4.3, 4.4, 5.3 and Article 8, such costs, expenses, Purchase Price adjustments,
rights, liabilities and obligations shall be divided between LOR and RCTLOR on
the basis of their respective 42.15% and 57.85% ownership interests in 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, the purchase price (the "Purchase Price") for the Property shall
be TEN MILLION EIGHT HUNDRED THOUSAND AND NO/100THS DOLLARS ($10,800,000.00),
and shall be allocated between LOR and RCTLOR as follows: the portion of the
Purchase Price allocable to the LOR Undivided Interest and to be paid by LOR at
Closing shall be FOUR MILLION FIVE HUNDRED FIFTY-TWO THOUSAND TWO HUNDRED AND
NO/100THS DOLLARS ($4,552,200.00), and the portion of the Purchase Price
allocable to the RCTLOR Undivided Interest and to be paid by RCTLOR at Closing
shall be SIX MILLION TWO HUNDRED FORTY-SEVEN THOUSAND EIGHT HUNDRED AND
NO/100THS DOLLARS ($6,247,800.00). The Purchase Price shall be paid by Purchaser
to Seller in cash at Closing by wire transfer of federal funds, or by cashier's
or certified check, or by closing attorney's escrow account check, at
Purchaser's election, provided that such amount shall be adjusted for the
"Earnest Money" (hereinafter defined in Section 2.2 below) and the closing
prorations described hereinbelow.
2.2 Earnest Money. Purchaser shall deliver to Fidelity National Title
Insurance Company, Two Parkway Center, 1800 Parkway Place, Suite 700, Marietta,
GA 30067 (the "Escrow Agent"), not later than two (2) business days after the
date hereof, the sum of NA Dollars ($ 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 December 29, 2004.
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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
Fidelity National Title Insurance Company, Two Parkway Center, Suite 700, 1800
Parkway Place, Marietta, Georgia 30067, 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.
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.
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.
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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 and
in the Conveyance Deed as hereinafter described. 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. Except as otherwise agreed by the Seller in writing, for the
purposes of this Agreement, "Permitted Exceptions" shall mean the following: (i)
current state and county ad valorem real property taxes not due and payable on
the date of Closing; (ii) easements for the maintenance of public utilities that
serve only the Property; (iii) any other matters which a current, accurate
survey or physical inspection of the Property would show and (iv) any matters of
public record, other than Monetary Encumbrances (as hereinafter defined), if
any. Prior to the end of the Inspection Period, Purchaser shall secure, at
Purchaser's expense, one or more commitments (collectively, the "Title
Commitment") for an owner's policy or policies of title insurance (collectively,
the "Title Policy") to be issued by a national title insurance company selected
by Purchaser (the "Title Company") at its then current standard rates, without
any special premium, in an amount not less than the Purchase Price. Purchaser's
obligation to consummate the purchase and sale herein contemplated shall be
subject to and conditional upon Purchaser's receipt at Closing of the Title
Policy or of a marked-up Title Commitment deleting all exceptions (including,
without limitation, the standard exceptions the deletion of which does not
require a current survey of the Property) other than the Permitted Exceptions
(as hereafter defined). The Title Policy shall insure the Purchaser that, upon
consummation of the purchase and sale herein contemplated, Purchaser will be
vested with good, fee simple, marketable and insurable title to the Property,
subject only to the Permitted Exceptions. For the purposes of this Agreement,
"good, fee simple, marketable and insurable title" shall mean fee simple
ownership, insurable by the Title Company under the Title Policy, and free of
all claims, liens and encumbrances of any kind or nature whatsoever other than
the Permitted Exceptions. Seller hereby covenants and agrees to furnish the
Title Company with such affidavits and indemnities (subject to Seller's
reasonable approval) as may be reasonably required by the Title Company in order
to issue the Title Policy without any exception for unfiled and unrecorded
materialmen's and mechanics' liens rights or claims of parties in possession
(other than Purchaser or anyone acting by, through or under Purchaser) not shown
by the public records and taxes or special assessments which are not shown as
existing liens by the public records and as necessary to enable the Title
Company to issue so-called "gap" coverage in favor of Purchaser. Purchaser shall
have until the end of the Inspection Period in which to give Seller written
notice of Purchaser's objections to any encumbrances revealed by the Title
Commitment. Following Purchaser's initial title examination, Purchaser shall
have until the date of Closing in which to reexamine title to the Property and
in which to give Seller notice of any additional objections disclosed by such
reexamination and which were not filed and indexed of record as of the effective
date of the Title Commitment; upon delivery of such notice to Seller, the
process outlined in Section 4.2 below shall again be applicable with respect to
any additional objections.
4.2 Objections to Title. In the event that the Title Commitment shall show
that the Property is subject to encumbrances to which Purchaser objects, then
Purchaser may elect: (a) to waive any objection to such encumbrances and proceed
to Closing, subject to the obligation of Seller to pay and remove or otherwise
bond over in a manner reasonably acceptable to Purchaser all Monetary
Encumbrances (as hereinafter defined), or (b) to terminate this Agreement, in
which event the Earnest Money and any interest thereon shall be returned to
Purchaser, and, upon the receipt thereof by Purchaser, all obligations hereunder
shall be null and void and of no further force or effect, or (c) to deliver
written notice to Seller, within the time periods set forth hereinabove in
Section 4.1, of Purchaser's objections to such encumbrances ("Purchaser's Title
Objection Notice"). Seller shall be obligated to pay and discharge or otherwise
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bond over in a manner reasonably acceptable to Purchaser at or prior to Closing
all mortgages, deeds to secure debt, security agreements, mechanic's and
materialmen's liens, judgment liens, tax liens and assessments, and other
encumbrances for the benefit of Purchaser that can be cured by the payment of a
sum certain ("Monetary Encumbrances") encumbering the Property.
Within five (5) business days after Seller's receipt of Purchaser's Title
Objection Notice, Seller shall deliver written notice to Purchaser stating
whether Seller agrees to remove any of such encumbrances (other than the
Monetary Encumbrances) which are objected to in Purchaser's Title Objection
Notice (the "Non-Monetary Encumbrances"). Seller shall have no obligation to
remove any such Non-Monetary Encumbrances, and if Seller does not agree to
remove some or all of the Non-Monetary Encumbrances, Purchaser shall have the
right, upon written notice to Seller to acquire the Property subject to the
unsatisfied Non-Monetary Encumbrances. Within five (5) business days after
Purchaser's receipt of Seller's written response, Purchaser, at Purchaser's
election, shall provide written notice to Seller (the "Title Notice") that it
has elected to (i) acquire the Property subject to such Non-Monetary
Encumbrances or (ii) terminate this Agreement. If Purchaser elects to terminate
this Agreement, then the Earnest Money and any interest thereon shall be
delivered to Purchaser, and upon the receipt thereof by Purchaser, all
obligations hereunder shall be null and void and of no further force and effect,
except those stated herein to survive any such termination. Purchaser's failure
to timely deliver the Title Notice shall be deemed its election to acquire the
Property subject to such Non-Monetary Encumbrances. If Purchaser elects to
terminate this Agreement by sending Title Notice thereof, then, in such event
the Earnest Money and any interest thereon shall be delivered to Purchaser, and
upon the receipt thereof by Purchaser, all obligations hereunder shall be null
and void and of no further force and effect, except those stated herein to
survive any such termination. If Purchaser does not terminate this Agreement
within such time period, Purchaser shall be deemed to have waived its objection
to such Non-Monetary Encumbrance. If, on or before the date of Closing, Seller
either fails to pay and discharge any Monetary Encumbrance or fails to remove
any Non-Monetary Encumbrance which Seller has agreed to remove, Purchaser, at
Purchaser's election, may (i) waive such objections and proceed to Closing; (ii)
terminate this Agreement, in which such event the Earnest Money and any interest
thereon shall be delivered to Purchaser and, upon the receipt thereof, all
obligations hereunder shall be null and void and of no further force and effect,
except those stated herein to survive any such termination; or (iii) with
respect to any Monetary Encumbrance, proceed to Closing, satisfy such Monetary
Encumbrance and receive a credit against the Purchase Price in the amount of
such Monetary Encumbrance. Any Non-Monetary Encumbrances that Purchaser waives
or to which Purchaser fails to object within the designated time period shall be
deemed to be included in "Permitted Exceptions".
4.3 Lease. Seller and Purchaser acknowledge that the Property is currently
leased to Ritter Farms pursuant to that certain Lease (the "Lease"), dated
January 1, 2004 between Seller, as lessor, and Ritter Farms, as lessee. Seller
agrees to assign all of its rights and Purchaser agrees to assume all of
Seller's obligations under the Lease effective as of the Closing Date. All rent
under the Lease shall be prorated at Closing.
4.4 Intentionally Deleted.
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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 the Conveyance Deed and Quitclaim Deed 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) Conveyance Deed. A special warranty deed (the "Conveyance Deed"),
in the statutory form attached hereto as Exhibit C, duly executed by Seller
conveying title to the Property, with the record legal description, subject
to the Permitted Exceptions, together with all real property transfer tax
returns, if any, required by the State of Delaware;
(b) Assignment of Lease. Two (2) counterparts of an Agreement
Regarding Assignment and Assumption of Leases (the "Assignment of Lease")
in the form attached hereto as Exhibit D duly executed by Seller providing
for the assignment to Purchaser of Seller's rights under, and the
assumption by Purchaser of Seller's obligations under, the Lease effective
as of the Closing Date.
(c) Bill of Sale and Intangible Property Assignment. A Bill of Sale
and Intangible Property Assignment (the "Bill of Sale") in the form
attached hereto as Exhibit E, duly executed by Seller conveying title to
the Personal Property, without warranty as to the title or condition of
such personal property;
(d) Certificate of Non-Foreign Status. A certificate, in the form
attached hereto as Exhibit F, 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");
(e) Quitclaim Deed. If the legal description of the Property prepared
from the Survey differs from the legal description of the Property attached
to the Conveyance Deed, then Seller shall also execute and deliver to
Purchaser at Closing, or thereafter as provided in Section 4.4 hereof a
Quitclaim Deed, in the form attached hereto as Exhibit G, duly executed by
Seller and conveying the Property to Purchaser using the Survey legal
description;
(f) Owner's Affidavit. Two (2) counterparts of the Owner's Affidavit,
in the form attached hereto as Exhibit H, duly executed by Seller and
notarized, in form satisfactory to 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.
(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 consideration, including
prorations thereof and adjustments thereto, exchanged 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) Assignment of Lease. Two (2) counterparts of the Assignment of
Lease, duly executed by Purchaser.
(c) Bill of Sale. Two (2) counterparts of the Bill of Sale, duly
executed by Purchaser;
(d) Settlement Statement. Four (4) counterparts of the Settlement
Statement.
(e) 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) one-half of the State of
Delaware taxes imposed upon the transactions contemplated in this Agreement and
the conveyance of the Property (collectively, the "Transfer Taxes"); (ii)
one-half of the cost of the Survey; (iii) one half of the cost of all premiums
payable with respect to the Title Policy, including the cost of any endorsements
to the Title Policy (collectively, the "Title Insurance Premium"); (iv) one-half
of any closing fees or escrow fees charged by the Escrow Agent; (v) the cost of
recording any title clearance documents required in accordance with this
Agreement; and (vi) any additional costs and charges customarily charged to
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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) one-half of the Transfer
Taxes; (ii) one-half of the cost of the Survey; (iii) one-half of the Title
Insurance Premium; (iv) the cost of recording the Conveyance Deed and the
QuitClaim Deed; (v) one-half of any closing fees or escrow fees charged by the
Escrow Agent; (vi) any additional costs and charges customarily charged to
purchasers 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 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 material to and is relied upon by Purchaser. Seller represents,
warrants and covenants as follows:
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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 Delaware. 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 document shall constitute the valid and
binding obligation and agreement of Seller, enforceable against Seller in
accordance with its terms.
10
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 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.
11
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 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.
12
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 Delaware.
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.
10.12 Intentionally Deleted.
13
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
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: 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
14
ARTICLE 12
EXECUTION
IN WITNESS WHEREOF, the parties have hereunto set their hands arid seals as
of the day and year first above written.
SELLER:
ROLLINS CONTINENTAL, INC.
By: /s/ Harry J. Cynkus
---------------------------------------
Harry J. Cynkus
Treasurer and Assistant Secretary
[CORPORATE SEAL]
15
PURCHASER:
LOR, INC.
By: /s/ Donald P. Carson
---------------------------------------
Donald P. Carson, Secretary-Treasurer
[CORPORATE SEAL]
RCTLOR, LLC
By: LOR Inc, its Manager
By: /s/ Donald P. Carson
------------------------------------
Donald P. Carson, Secretary-Treasurer
[CORPORATE SEAL]
16
EXHIBIT A
(Legal Description)
ALL OF THE FOLLOWING tracts, pieces and parcels of land situate, lying, and
being in Sussex County, State of Delaware, as originally conveyed to Continental
Broadcasting, Inc. by virtue of that certain Corrective Deed, dated October 26,
1979, from Rollins, Inc., as successor corporation to Rollins Broadcasting, Inc.
(the "Vesting Deed"), as recorded in Deed Book 979, Page 228, in the Office of
the Recorder of Deeds, in and for Sussex County, Delaware and being more
particularly described therein as:
VESTING DEED TRACT II.
ALL THOSE certain tracts, pieces, or parcels of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, and the State of Delaware,
and more particularly described as follows, viz: Tract No. l: Fronting on the
public road leading from the Town of Lewes to the Town of Georgetown, known as
the "Woods Farm" bounded on the West by the aforesaid public road; on the North
by the "Orton Farm," on the East by lands of Dr. E. W. W. Marsh and heirs of
Joseph Marsh; on the South by lands of Thomas Turner; and containing 66 acres,
more or less. Tract No. 2: Known as the "Thomas Orton Farm," bounded and
described as follows, to wit: on the Northwest by the public road leading from
Lewes to Georgetown, on the Northeast by lands of John Wilson; on the Southeast
by the said Wilson lands and the public road leading from Lewes to Millsboro; on
the Southwest by lands of E. W. Marsh and Charles Robbins, the metes and bounds
are as follows, to wit: BEGINNING on the Southeast side of the public road
leading from Lewes to Georgetown at a corner for this land and lands of Charles
Robbins and running with the center of said road North 89 3/4(degree) East 34.7
perches; and continuing with said road North 71(degree) East 208.3 perches to a
corner for this land and the Wilson land; thence South 20(degree) East 100 1/4
perches; thence South 63(degree) West 96.4 perches to a corner; thence South
28(degree) East 98.8 perches to the center of the public road leading from Lewes
to Millsboro; thence with center of said road South 52 1/2(degree) West 162 3/4
perches to a corner of the Marsh lands; thence North 46(degree) West 46.4
perches; thence South 76 3/4(degree) West 11.5 perches to a corner of the
Robbins land; thence North 7 1/2(degree) West 121 1/4 perches to a post and the
place of beginning, containing 134 acres and 100 square perches of land, be the
same, more or less. Tract No. 1 and Tract No. 2 comprise one farm.
WITH THE EXCEPTION of the parcel of real estate which was conveyed unto
Mahlon Graves and wife, and of record in the Office of the Recorder of Deeds, in
and for Sussex County, at Georgetown, in Deed Record No. 242, Page 291,
containing 3.3167 acres of land, more or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Robert W. Tunnell, Trustee by
Deed dated May 6, 1955, and recorded in the Office of the Recorder of Deeds,
aforesaid, in Deed Book 446, Page 1, &c., as reference thereunto being had will
more fully and at large appear.
VESTING DEED TRACT III.
ALL THAT certain tract, piece, and parcel of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, Delaware, lying on both
sides of the public road leading from Lewes to Millsboro and bounded and
described as follows, to wit:
BEGINNING on the South side of the public road aforesaid, at a corner for
these lands and lands of David Marine and running South 70(degree) East 38
perches; thence North 76 3/4(degree) East 1 1/2 perches; thence South 45
1/4(degree) East 48 perches; thence North 29 1/2(degree) East to a bend in the
line; thence North 19 3/4(degree) East 44 perches; thence North 32(degree) East
12 perches; thence North 22(degree) East 12 perches; thence North 36 1/2(degree)
East 14 perches to a corner; thence North 46(degree) West 91 perches crossing
the aforesaid public road to a corner; thence South 77(degree) West 86 perches;
thence South 23 1/4(degree) West 16.18 perches; thence South 43(degree) East
72.1 perches to the aforesaid public road, containing seventy (70) acres, more
or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Gove R. Morris and wife, in and
by their certain Deed dated September 20, 1955, and recorded in the Office of
the Recorder of Deeds, aforesaid, in Deed Book 453, page 73, &c.
VESTING DEED TRACT V.
ALL THAT certain tract, piece, or parcel of land, known as the "Turner
Tract," situate, lying, and being in Lewes and Rehoboth Hundred, Sussex County,
Delaware, fronting on the road leading from the Town of Lewes to St. George's
Chapel known as Route 285, and being more particularly described as follows, to
wit:
BEGINNING at a stone on the Northwesterly side of the aforesaid road, said
stone being a corner of these lands and lands of Homer L. Bryan; thence North 33
degrees 04 minutes West 1,970.9 feet along lands of Homer L. Bryan to a corner
tree and corner of lands of William H. Truitt; thence along lands of William H.
Truitt the following two courses: North 65 degrees 21 minutes East 1,418.6 feet
to a concrete monument; thence North 32 degrees 15 minutes West through a line
stump 1,067.0 feet to a stone and stob and corner for lands of Robert Swisher;
thence along lands of Swisher North 89 degrees 30 minutes East 2,157.7 feet to a
stone and lands of Wayne Rollins, thence along lands of Rollins South 13 degrees
19 minutes East to a stone and other lands of Rollins; thence along lands of
Rollins and Preston Millman; South 32 degrees 55 minutes West 1,149.4 feet to a
stone; thence South 11 degrees 37 minutes East 888.6 feet to a fence post and
Route 285 aforesaid; thence along Route 285 in a Southwesterly direction such a
distance as will reach the stone and place of beginning, containing 109.34
acres, be the same more or less. The above description is in accordance with a
survey prepared by Albert L. Korves, Civil Engineer and Surveyor, on December
31, 1959.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Elsie B. Hudson and C. Thomas
2
Hudson, her husband, by Deed date February 8, 1960, and recorded in the Office
of the Recorder of Deeds, aforesaid, in Deed Book 514, Page 445, &c.
VESTING DEED TRACT VI.
ALL THAT certain piece and parcel of land situate, lying and being in Lewes
and Rehoboth Hundred, located on the southerly side of the Millsboro-Lewes
Highway, being more particularly described as follows, to wit:
BEGINNING at a stake located on the Southerly side of said Millsboro-Lewes
Highway and in line of lands now or formerly of M. H. Graves; thence turning and
running with line of lands now or formerly of M. H. Graves South 45(degree) 00
minutes East 575 feet to a fence corner; thence North 60(degree) 50 minutes East
1,339.0 feet to a point in line of lands of H. G. Knapp: thence South 29(degree)
21 minutes East 752.0 feet to a corner; thence turning and running South
60(degree) 31 minutes West 752 feet to a point; thence South 71(degree) 12
minutes West 1,620 feet to a corner in line of lands of E. N. Harmon; thence by
and with the line of lands of E. N. Harmon and others North 39(degree) 48
minutes West 884 feet to the Southerly right-of-way line of the Millsboro-Lewes
Highway; thence turning and running with the Southerly right-of-way line of the
said Millsboro-Lewes Highway North 56(degree) 00 minutes East 1,463.0 feet to a
stake in line of lands of M. H. Graves, the point and place of BEGINNING,
containing 62.8 acres of land, be the same more or less, as surveyed by Albert
A. Korves, Surveyor, November 11, 1963.
The above described land is subject to a road of easement as shown on a survey
of the above-described lands.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Deed of Harry C. Dodd and Arzie
P. Dodd, his wife, by Deed dated December 26, 1963, and recorded in the Recorder
of Deeds, aforesaid, in Deed Book 568, Page 528, &c.
3
EXHIBIT B
[INTENTIONALLY DELETED]
EXHIBIT C
Conveyance Deed
Tax Parcel No.: ___________________
Prepared By and Return To:
S. Jefferson Greenway, Esq.
Jones Day
1420 Peachtree Street, N.E.
Suite 800
Atlanta, Georgia 30309
THIS DEED, made this _____ day of December, 2004
BETWEEN, ROLLINS CONTINENTAL, INC., a corporation organized and existing
under New York law, party of the first part,
AND
DELAWARE FARM LLC, a limited liability company organized and existing under
Georgia law ("Delaware Farm"), as to a 42.15% undivided interest in the Property
(as defined below), and RCTDE, LLC, a limited liability company organized and
existing under Georgia law("RCTDE"), as to a 57.85% undivided interest in the
Property (together Delaware Farm and RCTDE are referred to herein as party of
the second part);
WITNESSETH, that the said party of the first part, for and in consideration
of the sum of TEN MILLION EIGHT HUNDRED THOUSAND AND 00/100 DOLLARS
($10,800,000.00) lawful money of the United States of America, the receipt
whereof is hereby acknowledged, hereby grants and conveys (i) unto Delaware
Farm, its successor and assigns, as tenant in common, a 42.15% undivided
interest, in the following property and (ii) unto RCTDE, its successors and
assigns, as tenant in common, a 57.85% undivided interest in the following
property, to-wit:
ALL that certain lot piece or parcel of land lying and being situate in
Lewes and Rehoboth Hundred, Sussex County, Delaware being more particularly
described on "Exhibit A" attached hereto and incorporated herein by reference
(the "Property").
TOGETHER WITH the non-exclusive use of the streets, utilities, open spaces
and common areas located or to be located on the said lands and premises.
SUBJECT TO the matters described on "Exhibit B" attached hereto and
incorporated herein by reference.
BEING a portion of the same lands and premises conveyed unto the
Continental Broadcasting, Inc. by deed of Rollins, Inc., a corporation of the
State of Delaware, dated October 26, 1979, and of record in the Office of the
Recorder of Deeds, in and for Sussex County, in Deed Book 979 at Page 228.
Rollins Continental, Inc., party of the second part herein, is successor in
interest to Continental Broadcasting, Inc.
2
IN WITNESS WHEREOF, the said party of the first part, by and through its
authorized officer, has hereunto set its hand and seal the day and year
aforesaid.
ATTEST: ROLLINS CONTINENTAL, INC., a New
York corporation
BY:
- ------------------------------------ -----------------------------------
(Signature) Harry J. Cynkus
Name: Treasurer and Assistant Secretary
-------------------------------
Title:
-----------------------------
(Corporate Seal)
GRANTEE'S ADDRESS:
c/o RFA Management, LLC
2801 Buford Highway, Suite 470
Atlanta, Georgia 30329
3
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
On this, the ______ day of December, 2004, before me, a Notary Public, the
undersigned officer, personally appeared Harry J. Cynkus, who acknowledged
himself to be the Treasurer and Assistant Secretary of Rollins Continental,
Inc., a New York corporation, and that he, in such capacity, being authorized to
do so, executed the foregoing instrument for the purposes therein contained by
signing on behalf of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
______________________________________
________________________ Notary Public
4
EXHIBIT A
LEGAL DESCRIPTION FOR CONVEYANCE DEED
ALL OF THE FOLLOWING tracts, pieces and parcels of land situate, lying, and
being in Sussex County, State of Delaware, as originally conveyed to Continental
Broadcasting, Inc. by virtue of that certain Corrective Deed, dated October 26,
1979, from Rollins, Inc., as successor corporation to Rollins Broadcasting, Inc.
(the "Vesting Deed"), as recorded in Deed Book 979, Page 228, in the Office of
the Recorder of Deeds, in and for Sussex County, Delaware and being more
particularly described therein as:
VESTING DEED TRACT II.
ALL THOSE certain tracts, pieces, or parcels of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, and the State of Delaware,
and more particularly described as follows, viz: Tract No. l : Fronting on the
public road leading from the Town of Lewes to the Town of Georgetown, known as
the "Woods Farm" bounded on the West by the aforesaid public road; on the North
by the "Orton Farm," on the East by lands of Dr. E. W. W. Marsh and heirs of
Joseph Marsh; on the South by lands of Thomas Turner; and containing 66 acres,
more or less. Tract No. 2: Known as the "Thomas Orton Farm," bounded and
described as follows, to wit: on the Northwest by the public road leading from
Lewes to Georgetown, on the Northeast by lands of John Wilson; on the Southeast
by the said Wilson lands and the public road leading from Lewes to Millsboro; on
the Southwest by lands of E. W. Marsh and Charles Robbins, the metes and bounds
are as follows, to wit: BEGINNING on the Southeast side of the public road
leading from Lewes to Georgetown at a corner for this land and lands of Charles
Robbins and running with the center of said road North 89 3/4(degree) East 34.7
perches; and continuing with said road North 71(degree) East 208.3 perches to a
corner for this land and the Wilson land; thence South 20(degree) East 100 1/4
perches; thence South 63(degree) West 96.4 perches to a corner; thence South
28(degree) East 98.8 perches to the center of the public road leading from Lewes
to Millsboro; thence with center of said road South 52 1/2(degree) West 162 3/4
perches to a corner of the Marsh lands; thence North 46(degree) West 46.4
perches; thence South 76 3/4(degree) West 11.5 perches to a corner of the
Robbins land; thence North 7 1/2(degree) West 121 1/4 perches to a post and the
place of beginning, containing 134 acres and 100 square perches of land, be the
same, more or less. Tract No. l and Tract No. 2 comprise one farm.
WITH THE EXCEPTION of the parcel of real estate which was conveyed unto
Mahlon Graves and wife, and of record in the Office of the Recorder of Deeds, in
and for Sussex County, at Georgetown, in Deed Record No. 242, Page 291,
containing 3.3167 acres of land, more or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Robert W. Tunnell, Trustee by
Deed dated May 6, 1955, and recorded in the Office of the Recorder of Deeds,
aforesaid, in Deed Book 446, Page 1, &c., as reference thereunto being had will
more fully and at large appear.
5
VESTING DEED TRACT III.
ALL THAT certain tract, piece, and parcel of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, Delaware, lying on both
sides of the public road leading from Lewes to Millsboro and bounded and
described as follows, to wit:
BEGINNING on the South side of the public road aforesaid, at a corner for
these lands and lands of David Marine and running South 70(degree) East 38
perches; thence North 76 3/4(degree) East 1 1/2 perches; thence South 45
1/4(degree) East 48 perches; thence North 29 1/2(degree) East to a bend in the
line; thence North 19 3/4(degree) East 44 perches; thence North 32(degree) East
12 perches; thence North 22(degree) East 12 perches; thence North 36 1/2(degree)
East 14 perches to a corner; thence North 46(degree) West 91 perches crossing
the aforesaid public road to a corner; thence South 77(degree) West 86 perches;
thence South 23 1/4(degree) West 16.18 perches; thence South 43(degree) East
72.1 perches to the aforesaid public road, containing seventy (70) acres, more
or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Gove R. Morris and wife, in and
by their certain Deed dated September 20, 1955, and recorded in the Office of
the Recorder of Deeds, aforesaid, in Deed Book 453, page 73, &c.
VESTING DEED TRACT V.
ALL THAT certain tract, piece, or parcel of land, known as the "Turner
Tract," situate, lying, and being in Lewes and Rehoboth Hundred, Sussex County,
Delaware, fronting on the road leading from the Town of Lewes to St. George's
Chapel known as Route 285, and being more particularly described as follows, to
wit:
BEGINNING at a stone on the Northwesterly side of the aforesaid road, said
stone being a corner of these lands and lands of Homer L. Bryan; thence North 33
degrees 04 minutes West 1,970.9 feet along lands of Homer L. Bryan to a corner
tree and corner of lands of William H. Truitt; thence along lands of William H.
Truitt the following two courses: North 65 degrees 21 minutes East 1,418.6 feet
to a concrete monument; thence North 32 degrees 15 minutes West through a line
stump 1,067.0 feet to a stone and stob and corner for lands of Robert Swisher;
thence along lands of Swisher North 89 degrees 30 minutes East 2,157.7 feet to a
stone and lands of Wayne Rollins, thence along lands of Rollins South 13 degrees
19 minutes East to a stone and other lands of Rollins; thence along lands of
Rollins and Preston Millman; South 32 degrees 55 minutes West 1,149.4 feet to a
stone; thence South 11 degrees 37 minutes East 888.6 feet to a fence post and
Route 285 aforesaid; thence along Route 285 in a Southwesterly direction such a
distance as will reach the stone and place of beginning, containing 109.34
acres, be the same more or less. The above description is in accordance with a
survey prepared by Albert L. Korves, Civil Engineer and Surveyor, on December
31, 1959.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Elsie B. Hudson and C. Thomas
6
Hudson, her husband, by Deed date February 8, 1960, and recorded in the Office
of the Recorder of Deeds, aforesaid, in Deed Book 514, Page 445, &c.
VESTING DEED TRACT VI.
ALL THAT certain piece and parcel of land situate, lying and being in Lewes
and Rehoboth Hundred, located on the southerly side of the Millsboro-Lewes
Highway, being more particularly described as follows, to wit:
BEGINNING at a stake located on the Southerly side of said Millsboro-Lewes
Highway and in line of lands now or formerly of M. H. Graves; thence turning and
running with line of lands now or formerly of M. H. Graves South 45(degree) 00
minutes East 575 feet to a fence corner; thence North 60(degree) 50 minutes East
1,339.0 feet to a point in line of lands of H. G. Knapp: thence South 29(degree)
21 minutes East 752.0 feet to a corner; thence turning and running South
60(degree) 31 minutes West 752 feet to a point; thence South 71(degree) 12
minutes West 1,620 feet to a corner in line of lands of E. N. Harmon; thence by
and with the line of lands of E. N. Harmon and others North 39(degree) 48
minutes West 884 feet to the Southerly right-of-way line of the Millsboro-Lewes
Highway; thence turning and running with the Southerly right-of-way line of the
said Millsboro-Lewes Highway North 56(degree) 00 minutes East 1,463:0 feet to a
stake in line of lands of M. H. Graves, the point and place of BEGINNING,
containing 62.8 acres of land, be the same more or less, as surveyed by Albert
A. Korves, Surveyor, November 11, 1963.
The above described land is subject to a road of easement as shown on a survey
of the above-described lands.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Deed of Harry C. Dodd and Arzie
P. Dodd, his wife, by Deed dated December 26, 1963, and recorded in the Recorder
of Deeds, aforesaid, in Deed Book 568, Page 528, &c.
7
EXHIBIT B
PERMITTED EXCEPTIONS
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 other matters which a current, accurate survey or physical inspection
of the Property would show.
4. Except for Excluded Matters (as hereafter defined), any matters of public
record, including but not limited to, those matters set forth in Title
Commitment No. 114529.52, issued by Fidelity National Title Insurance
Company of New York and all the vesting deeds. As used herein, the term
"Excluded Matters" shall mean any mortgages, deeds to secure debt, security
agreements, mechanic's and materialmen's liens, judgment liens, tax liens
and assessments, and other encumbrances that can be cured with the payment
of a sum certain.
8
EXHIBIT D
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (the "ASSIGNMENT"), between and
among ROLLINS CONTINENTAL INC. ("ASSIGNOR"), DELAWARE FARM LLC ("DELAWARE FARM")
and RCTDE, LLC ("RCTDE"; RCTDE and Delaware Farm collectively, "ASSIGNEE"):
WITNESSETH:
WHEREAS, concurrently herewith, Assignor has conveyed to Delaware Farm, as
tenant in common, a 42.15% undivided interest in that certain tract of improved
real property described in Exhibit "A" attached hereto (the "PROPERTY") and to
RCTDE, as tenant in common, a 57.85% undivided interest in the Property;
WHEREAS, in connection with the conveyance of the Property, Assignor
desires to assign that certain Lease dated January 1, 2004, between Assignor, as
landlord, and Ritter Farms, as tenant (the "LEASE"), to Delaware Farm (with
respect to a 42.15% undivided interest in the Lease) and to RCTDE (with respect
to a 57.85% undivided interest in the Lease);
NOW, THEREFORE, for Ten and No/ 100 Dollars ($10.00) and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, (i) Assignor does hereby assign, transfer, set over and convey to
Delaware Farm a 42.15% undivided interest in the Lease and to RCTDE a 57.85%
undivided interest in the Lease, and (ii) Delaware Farm and RCTDE do hereby
accept the foregoing assignment and do hereby assume all of Assignor's rights,
covenants, duties and obligations arising under the Lease.
IN WITNESS WHEREOF, Assignor has executed and delivered this Assignment as
of the ________day of December, 2004.
ASSIGNOR:
ROLLINS CONTINENTAL, INC.
By:
----------------------------------
Harry J. Cynkus
Treasurer and Assistant Secretary
[CORPORATE SEAL]
DELAWARE FARM:
DELAWARE FARM LLC
By: LOR, Inc., its sole Member and
Manager
By:
------------------------------
Donald P. Carson
Secretary-Treasurer
RCTDE:
RCTDE, LLC
By: RCTLOR, LLC., its sole Member and
Manager
By: LOR, Inc., its Manager
By:
-------------------------
Donald P. Carson
Secretary-Treasurer
2
EXHIBIT A
(Legal Description)
ALL OF THE FOLLOWING tracts, pieces and parcels of land situate, lying, and
being in Sussex County, State of Delaware, as originally conveyed to Continental
Broadcasting, Inc. by virtue of that certain Corrective Deed, dated October 26,
1979, from Rollins, Inc., as successor corporation to Rollins Broadcasting, Inc.
(the "Vesting Deed"), as recorded in Deed Book 979, Page 228, in the Office of
the Recorder of Deeds, in and for Sussex County, Delaware and being more
particularly described therein as:
VESTING DEED TRACT II.
ALL THOSE certain tracts, pieces, or parcels of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, and the State of Delaware,
and more particularly described as follows, viz: Tract No. 1: Fronting on the
public road leading from the Town of Lewes to the Town of Georgetown, known as
the "Woods Farm" bounded on the West by the aforesaid public road; on the North
by the "Orton Farm," on the East by lands of Dr. E. W. W. Marsh and heirs of
Joseph Marsh; on the South by lands of Thomas Turner; and containing 66 acres,
more or less. Tract No. 2: Known as the "Thomas Orton Farm," bounded and
described as follows, to wit: on the Northwest by the public road leading from
Lewes to Georgetown, on the Northeast by lands of John Wilson; on the Southeast
by the said Wilson lands and the public road leading from Lewes to Millsboro; on
the Southwest by lands of E. W. Marsh and Charles Robbins, the metes and bounds
are as follows, to wit: BEGINNING on the Southeast side of the public road
leading from Lewes to Georgetown at a corner for this land and lands of Charles
Robbins and running with the center of said road North 89 3/4(degree) East 34.7
perches; and continuing with said road North 71(degree) East 208.3 perches to a
corner for this land and the Wilson land; thence South 20(degree) East 100 1/4
perches; thence South 63(degree) West 96.4 perches to a corner; thence South
28(degree) East 98.8 perches to the center of the public road leading from Lewes
to Millsboro; thence with center of said road South 52 1/2(degree) West 162 3/4
perches to a corner of the Marsh lands; thence North 46(degree) West 46.4
perches; thence South 76 3/4(degree) West 11.5 perches to a corner of the
Robbins land; thence North 7 1/2(degree) West 121 1/4 perches to a post and the
place of beginning, containing 134 acres and 100 square perches of land, be the
same, more or less. Tract No. 1 and Tract No. 2 comprise one farm.
WITH THE EXCEPTION of the parcel of real estate which was conveyed unto
Mahlon Graves and wife, and of record in the Office of the Recorder of Deeds, in
and for Sussex County, at Georgetown, in Deed Record No. 242, Page 291,
containing 3.3167 acres of land, more or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Robert W. Tunnell, Trustee by
Deed dated May 6, 1955, and recorded in the Office of the Recorder of Deeds,
aforesaid, in Deed Book 446, Page 1, &c., as reference thereunto being had will
more fully and at large appear.
3
VESTING DEED TRACT III.
ALL THAT certain tract, piece, and parcel of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, Delaware, lying on both
sides of the public road leading from Lewes to Millsboro and bounded and
described as follows, to wit:
BEGINNING on the South side of the public road aforesaid, at a corner for
these lands and lands of David Marine and running South 70(degree) East 38
perches; thence North 76 3/4(degree) East 1 1/2 perches; thence South 45
1/4(degree) East 48 perches; thence North 29 1/2(degree) East to a bend in the
line; thence North 19 3/4(degree) East 44 perches; thence North 32(degree) East
12 perches; thence North 22(degree) East 12 perches; thence North 36 1/2(degree)
East 14 perches to a corner; thence North 46(degree) West 91 perches crossing
the aforesaid public road to a corner; thence South 77(degree) West 86 perches;
thence South 23 1/4(degree) West 16.18 perches; thence South 43(degree) East
72.1 perches to the aforesaid public road, containing seventy (70) acres, more
or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Gove R. Morris and wife, in and
by their certain Deed dated September 20, 1955, and recorded in the Office of
the Recorder of Deeds, aforesaid, in Deed Book 453, page 73, &c.
VESTING DEED TRACT V.
ALL THAT certain tract, piece, or parcel of land, known as the "Turner
Tract," situate, lying, and being in Lewes and Rehoboth Hundred, Sussex County,
Delaware, fronting on the road leading from the Town of Lewes to St. George's
Chapel known as Route 285, and being more particularly described as follows, to
wit:
BEGINNING at a stone on the Northwesterly side of the aforesaid road, said
stone being a corner of these lands and lands of Homer L. Bryan; thence North 33
degrees 04 minutes West 1,970.9 feet along lands of Homer L. Bryan to a corner
tree and corner of lands of William H. Truitt; thence along lands of William H.
Truitt the following two courses: North 65 degrees 21 minutes East 1,418.6 feet
to a concrete monument; thence North 32 degrees 15 minutes West through a line
stump 1,067.0 feet to a stone and stob and corner for lands of Robert Swisher;
thence along lands of Swisher North 89 degrees 30 minutes East 2,157.7 feet to a
stone and lands of Wayne Rollins, thence along lands of Rollins South 13 degrees
19 minutes East to a stone and other lands of Rollins; thence along lands of
Rollins and Preston Millman; South 32 degrees 55 minutes West 1,149.4 feet to a
stone; thence South 11 degrees 37 minutes East 888.6 feet to a fence post and
Route 285 aforesaid; thence along Route 285 in a Southwesterly direction such a
distance as will reach the stone and place of beginning, containing 109.34
acres, be the same more or less. The above description is in accordance with a
survey prepared by Albert L. Korves, Civil Engineer and Surveyor, on December
31, 1959.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Elsie B. Hudson and C. Thomas
4
Hudson, her husband, by Deed date February 8, 1960, and recorded in the Office
of the Recorder of Deeds, aforesaid, in Deed Book 514, Page 445, &c.
VESTING DEED TRACT VI.
ALL THAT certain piece and parcel of land situate, lying and being in Lewes
and Rehoboth Hundred, located on the southerly side of the Millsboro-Lewes
Highway, being more particularly described as follows, to wit:
BEGINNING at a stake located on the Southerly side of said Millsboro-Lewes
Highway and in line of lands now or formerly of M. H. Graves; thence turning and
running with line of lands now or formerly of M. H. Graves South 45(degree) 00
minutes East 575 feet to a fence corner; thence North 60(degree) 50 minutes East
1,339.0 feet to a point in line of lands of H. G. Knapp: thence South 29(degree)
21 minutes East 752.0 feet to a corner; thence turning and running South
60(degree) 31 minutes West 752 feet to a point; thence South 71 (degree) 12
minutes West 1,620 feet to a corner in line of lands of E. N. Harmon; thence by
and with the line of lands of E. N. Harmon and others North 39(degree) 48
minutes West 884 feet to the Southerly right-of-way line of the Millsboro-Lewes
Highway; thence turning and running with the Southerly right-of-way line of the
said Millsboro-Lewes Highway North 56(degree) 00 minutes East 1,463.0 feet to a
stake in line of lands of M. H. Graves, the point and place of BEGINNING,
containing 62.8 acres of land, be the same more or less, as surveyed by Albert
A. Korves, Surveyor, November 11, 1963.
The above described land is subject to a road of easement as shown on a survey
of the above-described lands.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Deed of Harry C. Dodd and Arzie
P. Dodd, his wife, by Deed dated December 26, 1963, and recorded in the Recorder
of Deeds, aforesaid, in Deed Book 568, Page 528, &c.
5
EXHIBIT E
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 December, 2004, by
ROLLINS CONTINENTAL, INC., a New York corporation (hereinafter referred to as
"SELLER"), to DELAWARE FARM LLC, a Georgia limited liability company ("DELAWARE
FARM"), as to a 42.15% undivided interest in the Personalty (as defined below)
and Intangible Property (as defined below), and RCTDE, LLC, a Georgia limited
liability ("RCTDE"), as to a 57.85% undivided interest in the Personalty and
Intangible Property (RCTDE, together with Delaware Farm, and their respective
successors and assigns, collectively "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 Sussex County, Delaware,
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 Delaware Farm, as tenant in
common, a 42.15% undivided interest in the Premises and to RCTDE, as tenant in
common, a 57.85% undivided interest in 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:
(i) BILL OF SALE. Seller has granted, bargained, sold, conveyed,
transferred, and delivered, and by these presents does grant, bargain,
sell, convey, transfer and deliver, (a) unto Delaware Farm, as tenant
in common, a 42.15% undivided interest in the Personalty (as defined
below) and (b) unto RCTDE, as tenant in common, a 57.85% undivided
interest in the Personalty. As used herein the term "PERSONALTY" shall
mean all tangible personal property and fixtures of any kind (if any)
owned by Seller and attached to or used in connection with the
ownership, maintenance, use, leasing, service, or operation of the
Premises.
(ii) ASSIGNMENT OF INTANGIBLE PROPERTY. Seller has transferred,
assigned and set over, and by these presents does transfer, assign,
and set over, (a) unto Delaware Farm, as tenant in common, a 42.15%
undivided interest in the Intangible Property (as defined below) and
(b) unto RCTDE, as tenant in common, a 57.85% undivided interest in
the Intangible Property. As used herein, the term "INTANGIBLE
PROPERTY" shall mean all of Seller's right, title and interest, in and
under any and all intangible property of any kind (if any) 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.
(iii) "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.
(iv) 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.
[BALANCE OF THIS PAGE INTENTIONALLY BLANK]
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:
-------------------------------------
Harry J. Cynkus
Treasurer and Assistant Secretary
[CORPORATE SEAL]
3
PURCHASER:
DELAWARE FARM LLC
By: LOR, Inc., its sole Member and
Manager
By:
--------------------------------
Donald P. Carson
Secretary-Treasurer
RCTDE, LLC
By: RCTLOR, LLC., its sole Member and
Manager
By: LOR, Inc., its Manager
By:
---------------------------
Donald P. Carson
Secretary-Treasurer
4
EXHIBIT "A"
LEGAL FOR BILL OF SALE
(Legal Description)
ALL OF THE FOLLOWING tracts, pieces and parcels of land situate, lying, and
being in Sussex County, State of Delaware, as originally conveyed to Continental
Broadcasting, Inc. by virtue of that certain Corrective Deed, dated October 26,
1979, from Rollins, Inc., as successor corporation to Rollins Broadcasting, Inc.
(the "Vesting Deed"), as recorded in Deed Book 979, Page 228, in the Office of
the Recorder of Deeds, in and for Sussex County, Delaware and being more
particularly described therein as:
VESTING DEED TRACT II.
ALL THOSE certain tracts, pieces, or parcels of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, and the State of Delaware,
and more particularly described as follows, viz: Tract No. l : Fronting on the
public road leading from the Town of Lewes to the Town of Georgetown, known as
the "Woods Farm" bounded on the West by the aforesaid public road; on the North
by the "Orton Farm," on the East by lands of Dr. E. W. W. Marsh and heirs of
Joseph Marsh; on the South by lands of Thomas Turner; and containing 66 acres,
more or less. Tract No. 2: Known as the "Thomas Orton Farm," bounded and
described as follows, to wit: on the Northwest by the public road leading from
Lewes to Georgetown, on the Northeast by lands of John Wilson; on the Southeast
by the said Wilson lands and the public road leading from Lewes to Millsboro; on
the Southwest by lands of E. W. Marsh and Charles Robbins, the metes and bounds
are as follows, to wit: BEGINNING on the Southeast side of the public road
leading from Lewes to Georgetown at a corner for this land and lands of Charles
Robbins and running with the center of said road North 89 3/4(degree) East 34.7
perches; and continuing with said road North 71 (degree) East 208.3 perches to a
corner for this land and the Wilson land; thence South 20(degree) East 100 1/4
perches; thence South 63(degree) West 96.4 perches to a corner; thence South
28(degree) East 98.8 perches to the center of the public road leading from Lewes
to Millsboro; thence with center of said road South 52 1/2(degree) West 162 3/4
perches to a corner of the Marsh lands; thence North 46(degree) West 46.4
perches; thence South 76 3/4(degree) West 11.5 perches to a corner of the
Robbins land; thence North 7 1/2(degree) West 121 1/4 perches to a post and the
place of beginning, containing 134 acres and 100 square perches of land, be the
same, more or less. Tract No. 1 and Tract No. 2 comprise one farm.
WITH THE EXCEPTION of the parcel of real estate which was conveyed unto
Mahlon Graves and wife, and of record in the Office of the Recorder of Deeds, in
and for Sussex County, at Georgetown, in Deed Record No. 242, Page 291,
containing 3.3167 acres of land, more or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Robert W. Tunnell, Trustee by
Deed dated May 6, 1955, and recorded in the. Office of the Recorder of Deeds,
aforesaid, in Deed Book 446, Page 1, &c., as reference thereunto being had will
more fully and at large appear.
VESTING DEED TRACT III.
ALL THAT certain tract, piece, and parcel of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, Delaware, lying on both
sides of the public road leading from Lewes to Millsboro and bounded and
described as follows, to wit:
BEGINNING on the South side of the public road aforesaid, at a corner for
these lands and lands of David Marine and running South 70(degree) East 38
perches; thence North 76 3/4(degree) East 1 1/2 perches; thence South 45
1/4(degree) East 48 perches; thence North 29 1/2(degree) East to a bend in the
line; thence North 19 3/4(degree) East 44 perches; thence North 32(degree) East
12 perches; thence North 22(degree) East 12 perches; thence North 36 1/2(degree)
East 14 perches to a corner; thence North 46(degree) West 91 perches crossing
the aforesaid public road to a corner; thence South 77(degree) West 86 perches;
thence South 23 1/4(degree) West 16.18 perches; thence South 43(degree) East
72.1 perches to the aforesaid public road, containing seventy (70) acres, more
or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Gove R. Morris and wife, in and
by their certain Deed dated September 20, 1955, and recorded in the Office of
the Recorder of Deeds, aforesaid, in Deed Book 453, page 73, &c.
VESTING DEED TRACT V.
ALL THAT certain tract, piece, or parcel of land, known as the "Turner
Tract," situate, lying, and being in Lewes and Rehoboth Hundred, Sussex County,
Delaware, fronting on the road leading from the Town of Lewes to St. George's
Chapel known as Route 285, and being more particularly described as follows, to
wit:
BEGINNING at a stone on the Northwesterly side of the aforesaid road, said
stone being a corner of these lands and lands of Homer L. Bryan; thence North 33
degrees 04 minutes West 1,970.9 feet along lands of Homer L. Bryan to a corner
tree and corner of lands of William H. Truitt; thence along lands of William H.
Truitt the following two courses: North 65 degrees 21 minutes East 1,418.6 feet
to a concrete monument; thence North 32 degrees 15 minutes West through a line
stump 1,067.0 feet to a stone and stob and corner for lands of Robert Swisher;
thence along lands of Swisher North 89 degrees 30 minutes East 2,157.7 feet to a
stone and lands of Wayne Rollins, thence along lands of Rollins South 13 degrees
19 minutes East to a stone and other lands of Rollins; thence along lands of
Rollins and Preston Millman; South 32 degrees 55 minutes West 1,149.4 feet to a
stone; thence South 11 degrees 37 minutes East 888.6 feet to a fence post and
Route 285 aforesaid; thence along Route 285 in a Southwesterly direction such a
distance as will reach the stone and place of beginning, containing 109.34
acres, be the same more or less. The above description is in accordance with a
survey prepared by Albert L. Korves, Civil Engineer and Surveyor, on December
31, 1959.
2
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Elsie B. Hudson and C. Thomas
Hudson, her husband, by Deed date February 8, 1960, and recorded in the Office
of the Recorder of Deeds, aforesaid, in Deed Book 514, Page 445, &c.
VESTING DEED TRACT VI.
ALL THAT certain piece and parcel of land situate, lying and being in Lewes
and Rehoboth Hundred, located on the southerly side of the Millsboro-Lewes
Highway, being more particularly described as follows, to wit:
BEGINNING at a stake located on the Southerly side of said Millsboro-Lewes
Highway and in line of lands now or formerly of M. H. Graves; thence turning and
running with line of lands now or formerly of M. H. Graves South 45(degree) 00
minutes East 575 feet to a fence corner; thence North 60(degree) 50 minutes East
1,339.0 feet to a point in line of lands of H. G. Knapp: thence South 29(degree)
21 minutes East 752.0 feet to a corner; thence turning and running South
60(degree) 31 minutes West 752 feet to a point; thence South 71(degree) 12
minutes West 1,620 feet to a corner in line of lands of E. N. Harmon; thence by
and with the line of lands of E. N. Harmon and others North 39(degree) 48
minutes West 884 feet to the Southerly right-of-way line of the Millsboro-Lewes
Highway; thence turning and running with the Southerly right-of-way line of the
said Millsboro-Lewes Highway North 56(degree) 00 minutes East 1,463.0 feet to a
stake in line of lands of M. H. Graves, the point and place of BEGINNING,
containing 62.8 acres of land, be the same more or less, as surveyed by Albert
A. Korves, Surveyor, November 11, 1963.
The above described land is subject to a road of easement as shown on a survey
of the above-described lands.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Deed of Harry C. Dodd and Arzie
P. Dodd, his wife, by Deed dated December 26, 1963, and recorded in the Recorder
of Deeds, aforesaid, in Deed Book 568, Page 528, &c.
3
EXHIBIT F
CERTIFICATE OF NON-FOREIGN STATUS
TRANSFEROR'S CERTIFICATION OF NONFOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. For U.S. tax purposes (including Section 1445), the owner of a
disregarded entity (which has legal title to a U.S. real property interest under
local law) will be the transferor of the property and not the disregarded
entity. To inform transferee that withholding of tax is not required upon the
disposition of a U.S. real property interest by ROLLINS CONTINENTAL, INC., a New
York corporation (the Transferor"), the undersigned hereby certifies the
following on behalf of the Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations).
2. Transferor is not a disregarded entity as defined in ss.
1.1445-2(b)(2)(iii) of the Income Tax Regulations.
3. The Transferor's U.S. employer identification number is 51-0077018; and
4. The Transferor's office address is 2170 Piedmont Road, Atlanta, Georgia
30324.
The undersigned understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties 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 have authority to sign this document
on behalf of the Transferor.
Dated: ____________________, 2004
ROLLINS CONTINENTAL, INC., a New York
corporation
By:
------------------------------------
Harry J. Cynkus
Treasurer and Assistant Secretary
EXHIBIT G
QUITCLAIM DEED
Tax Parcel No.: ____________
Prepared By and Return To:
____________________________
____________________________
____________________________
____________________________
THIS QUITCLAIM DEED, MADE THIS _____ day of __________________ in the year
of our LORD Two Thousand Four (2005)
BETWEEN, ROLLINS CONTINENTAL, INC., a New York corporation, party of the
first part,
AND
DELAWARE FARM LLC, a limited liability company organized and existing under
Georgia law ("Delaware Farm"), as to a 42.15% undivided interest in the Property
(as defined below), and RCTDE, LLC, a limited liability company organized and
existing under Georgia law("RCTDE"), as to a 57.85% undivided interest in the
Property (together Delaware Farm and RCTDE are referred to herein as party of
the second part);
WITNESSETH, that the said party of the first part, for and in consideration
of the sum of TEN DOLLARS AND 00/100 ($10.00) lawful money of the United States
of America, the receipt whereof is hereby acknowledged, hereby quitclaims (i)
unto Delaware Farm, its successor and assigns, as tenant in common, a 42.15%
undivided interest, in the following property and (ii) unto RCTDE, its
successors and assigns, as tenant in common, a 57.85% undivided interest in the
following property, to-wit:
ALL that certain tract, piece and parcel of land, lying and being situate
in Lewes and Rehoboth Hundred, Sussex County, Delaware being more particularly
described on "Exhibit A" attached hereto and incorporated herein by reference. `
BEING the same lands and premises . . .
IN WITNESS WHEREOF, the said party of the first part, by and through its
authorized officer, has hereunto set its hand and seal the day and year
aforesaid.
ATTEST: ROLLINS CONTINENTAL, INC., a New
York corporation
By:
- --------------------------------------- --------------------------------
(Signature) Harry J. Cynkus
Treasurer and Assistant Secretary
Name:
---------------------------------
Title: (Corporate Seal)
--------------------------------
GRANTEE'S ADDRESS:
c/o RFA Management, LLC
2801 Buford Highway, Suite 470
Atlanta, Georgia 30329
2
STATE OF GEORGIA )
) ss.
COUNTY OF _____________________ )
On this, the __________ day of ______________, 2004, before me, a Notary
Public, the undersigned officer, personally appeared Harry J. Cynkus , who
acknowledged himself to be the Treasurer and Assistant Secretary of Rollins
Continental, Inc., a New York corporation, and that he, in such capacity, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing on behalf of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
____________________________________
______________________ Notary Public
3
EXHIBIT A
LEGAL DESCRIPTION FOR QUITCLAIM DEED
4
EXHIBIT H
OWNER'S AFFIDAVIT
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 Treasurer and Assistant Secretary 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 the Purchasers (as hereinafter defined) or affiliates of either
entity.
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. 114529.52 issued by Fidelity National Title Insurance Company and
prior to the closing of the sale of the property to DELAWARE FARM LLC, a Georgia
limited liability company, and RCTDE, LLC, a Georgia limited liability company,
as tenants in common ("Purchasers").
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 December, 2004
___________________________(Affiant)
Harry J. Cynkus
2
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
On this, the _____ day of __________________, 2004, before me, a Notary
Public, the undersigned officer, personally appeared Harry J. Cynkus, who
acknowledged himself to be the Treasurer and Assistant Secretary of Rollins
Continental, Inc., a New York corporation, and that he, in such capacity, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing on behalf of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
____________________________________
______________________ Notary Public
EXHIBIT "A"
LEGAL DESCRIPTION FOR OWNER'S AFFIDAVIT
ALL OF THE FOLLOWING tracts, pieces and parcels of land situate, lying, and
being in Sussex County, State of Delaware, as originally conveyed to Continental
Broadcasting, Inc. by virtue of that certain Corrective Deed, dated October 26,
1979, from Rollins, Inc., as successor corporation to Rollins Broadcasting, Inc.
(the "Vesting Deed"), as recorded in Deed Book 979, Page 228, in the Office of
the Recorder of Deeds, in and for Sussex County, Delaware and being more
particularly described therein as:
VESTING DEED TRACT II.
ALL THOSE certain tracts, pieces, or parcels of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, and the State of Delaware,
and more particularly described as follows, viz: Tract No. 1: Fronting on the
public road leading from the Town of Lewes to the Town of Georgetown, known as
the "Woods Farm" bounded on the West by the aforesaid public road; on the North
by the "Orton Farm," on the East by lands of Dr. E. W. W. Marsh and heirs of
Joseph Marsh; on the South by lands of Thomas Turner; and containing 66 acres,
more or less. Tract No. 2: Known as the "Thomas Orton Farm," bounded and
described as follows, to wit: on the Northwest by the public road leading from
Lewes to Georgetown, on the Northeast by lands of John Wilson; on the Southeast
by the said Wilson lands and the public road leading from Lewes to Millsboro; on
the Southwest by lands of E. W. Marsh and Charles Robbins, the metes and bounds
are as follows, to wit: BEGINNING on the Southeast side of the public road
leading from Lewes to Georgetown at a corner for this land and lands of Charles
Robbins and running with the center of said road North 89 3/4(degree) East 34.7
perches; and continuing with said road North 71(degree) East 208.3 perches to a
corner for this land and the Wilson land; thence South 20(degree) East 100 1/4
perches; thence South 63(degree) West 96.4 perches to a corner; thence South
28(degree) East 98.8 perches to the center of the public road leading from Lewes
to Millsboro; thence with center of said road South 52 1/2(degree) West 162 3/4
perches to a corner of the Marsh lands; thence North 46(degree) West 46.4
perches; thence South 76 3/4(degree) West 11.5 perches to a corner of the
Robbins land; thence North 7 1/2(degree) West 121 1/4 perches to a post and the
place of beginning, containing 134 acres and 100 square perches of land, be the
same, more or less. Tract No. 1 and Tract No. 2 comprise one farm.
WITH THE EXCEPTION of the parcel of real estate which was conveyed unto
Mahlon Graves and wife, and of record in the Office of the Recorder of Deeds, in
and for Sussex County, at Georgetown, in Deed Record No. 242, Page 291,
containing 3.3167 acres of land, more or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Robert W. Tunnell, Trustee by
Deed dated May 6, 1955, and recorded in the Office of the Recorder of Deeds,
aforesaid, in Deed Book 446, Page 1, &c., as reference thereunto being had will
more fully and at large appear.
VESTING DEED TRACT III.
ALL THAT certain tract, piece, and parcel of land, situate, lying, and
being in Lewes and Rehoboth Hundred, Sussex County, Delaware, lying on both
sides of the public road leading from Lewes to Millsboro and bounded and
described as follows, to wit:
BEGINNING on the South side of the public road aforesaid, at a corner for
these lands and lands of David Marine and running South 70(degree) East 38
perches; thence North 76 3/4(degree) East 1 1/2 perches; thence South 45
1/4(degree) East 48 perches; thence North 29 1/2(degree) East to a bend in the
line; thence North 19 3/4(degree) East 44 perches; thence North 32(degree) East
12 perches; thence North 22(degree) East 12 perches; thence North 36 1/2(degree)
East 14 perches to a corner; thence North 46(degree) West 91 perches crossing
the aforesaid public road to a corner; thence South 77(degree) West 86 perches;
thence South 23 1/4(degree) West 16.18 perches; thence South 43(degree) East
72.1 perches to the aforesaid public road, containing seventy (70) acres, more
or less.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Gove R. Morris and wife, in and
by their certain Deed dated September 20, 1955, and recorded in the Office of
the Recorder of Deeds, aforesaid, in Deed Book 453, page 73, &c.
VESTING DEED TRACT V.
ALL THAT certain tract, piece, or parcel of land, known as the "Turner
Tract," situate, lying, and being in Lewes and Rehoboth Hundred, Sussex County,
Delaware, fronting on the road leading from the Town of Lewes to St. George's
Chapel known as Route 285, and being more particularly described as follows, to
wit:
BEGINNING at a stone on the Northwesterly side of the aforesaid road, said
stone being a corner of these lands and lands of Homer L. Bryan; thence North 33
degrees 04 minutes West 1,970.9 feet along lands of Homer L. Bryan to a corner
tree and corner of lands of William H. Truitt; thence along lands of William H.
Truitt the following two courses: North 65 degrees 21 minutes East 1,418.6 feet
to a concrete monument; thence North 32 degrees 15 minutes West through a line
stump 1,067.0 feet to a stone and stob and corner for lands of Robert Swisher;
thence along lands of Swisher North 89 degrees 30 minutes East 2,157.7 feet to a
stone and lands of Wayne Rollins, thence along lands of Rollins South 13 degrees
19 minutes East to a stone and other lands of Rollins; thence along lands of
Rollins and Preston Millman; South 32 degrees 55 minutes West 1,149.4 feet to a
stone; thence South 11 degrees 37 minutes East 888.6 feet to a fence post and
Route 285 aforesaid; thence along Route 285 in a Southwesterly direction such a
distance as will reach the stone and place of beginning, containing 109.34
acres, be the same more or less. The above description is in accordance with a
survey prepared by Albert L. Korves, Civil Engineer and Surveyor, on December
31, 1959.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Elsie B. Hudson and C. Thomas
2
Hudson, her husband, by Deed date February 8, 1960, and recorded in the Office
of the Recorder of Deeds, aforesaid, in Deed Book 514, Page 445, &c.
VESTING DEED TRACT VI.
ALL THAT certain piece and parcel of land situate, lying and being in Lewes
and Rehoboth Hundred, located on the southerly side of the Millsboro-Lewes
Highway, being more particularly described as follows, to wit:
BEGINNING at a stake located on the Southerly side of said Millsboro-Lewes
Highway and in line of lands now or formerly of M. H. Graves; thence turning and
running with line of lands now or formerly of M. H. Graves South 45(degree) 00
minutes East 575 feet to a fence corner; thence North 60(degree) 50 minutes East
1,339.0 feet to a point in line of lands of H. G. Knapp: thence South 29(degree)
21 minutes East 752.0 feet to a corner; thence turning and running South
60(degree) 31 minutes West 752 feet to a point; thence South 71(degree) 12
minutes West 1,620 feet to a corner in line of lands of E. N. Harmon; thence by
and with the line of lands of E. N. Harmon and others North 39(degree) 48
minutes West 884 feet to the Southerly right-of-way line of the Millsboro-Lewes
Highway; thence turning and running with the Southerly right-of-way line of the
said Millsboro-Lewes Highway North 56(degree) 00 minutes East 1,463.0 feet to a
stake in line of lands of M. H. Graves, the point and place of BEGINNING,
containing 62.8 acres of land, be the same more or less, as surveyed by Albert
A. Korves, Surveyor, November 11, 1963.
The above described land is subject to a road of easement as shown on a survey
of the above-described lands.
BEING the same lands and premises heretofore conveyed unto Rollins
Broadcasting, Inc., a Delaware corporation, by Deed of Harry C. Dodd and Arzie
P. Dodd, his wife, by Deed dated December 26, 1963, and recorded in the Recorder
of Deeds, aforesaid, in Deed Book 568, Page 528, &c.
3
EXHIBIT "B"
PERMITTED ENCUMBRANCES FOR THE OWNER'S AFFIDAVIT
1. Easements, restrictions and/or agreements of record in the Office of the
Recorder of Deeds, in and for Sussex County, Delaware.
2. All current state and county ad valorem property taxes not yet due and
payable.
3. Any matters which a current, accurate survey or physical inspection of the
property would show.
EXHIBIT "C"
LEASE EXHIBIT TO THE OWNER'S AFFIDAVIT
1. Lease dated January 1, 2004 between Seller, as lessor, and Ritter Farms, as
lessee.