EXHIBIT 10.15
AGREEMENT OF PURCHASE AND SALE
VALTERRA HOLDINGS, LLC North Carolina ("Buyer") hereby agrees to purchase and
CAROLINA INVESTMENT PARTNERS (collectively, the "Seller") hereby agree to sell
and convey, all of that plot, piece or parcel of land described below, together
with all improvements located thereon (collectively, the "Property"), upon the
terms and conditions set forth below (the "Contract"). If Seller has not
accepted this offer within seven (7) days of the date of Buyer's signature, this
offer shall be deemed withdrawn and of no further force and effect. The date of
the latter of Seller's or Buyer's signature shall be the date of this Contract.
1. REAL PROPERTY. Located in Cary, North Carolina and being approximately two
and one half (2.50) gross acres, subject to final survey, located at Xxxx
Parkway and US #1 and Hwy. 64 outlined in red on the attached Exhibit A.
PIN #07620678799. Address stated is 000 Xxxx Xxxx Xxxxxxx, Xxxx, X.X. The
exact and precise dimensions of the Property shall be mutually agreed upon
by the parties.
2. PURCHASE PRICE. The purchase price is Five Dollars ($5.00) per square foot
approximately two and one half (2.5) gross acres and subject to final
survey (the "Purchase Price"). The Purchase Price shall be paid as follows:
(a) Xxxxxxx Money Deposit in the form of a $15,000 irrevocable letter of
credit listing the Seller as beneficiary. Said Xxxxxxx Money Deposit
will be provided within seven (7) business days of the date of this
Contract and held in escrow by Seller's agent until the sale is
closed, at which time it will be converted to cash and credited to
Buyer against the Purchase Price, or until this Contract is otherwise
terminated. In the event Buyer terminates this Contract during the Due
Diligence Period (defined below) or any of the conditions hereto are
not satisfied, then the Xxxxxxx Money Deposit shall be returned to
Buyer. In the event of breach of this contract by Seller, upon Buyer's
request, the Xxxxxxx Money Deposit shall be returned to Buyer, or
Buyer, as Buyer's sole additional remedy, shall be forced to xxx for
Performance of Contract. In the event Buyer breaches this contract,
then the Xxxxxxx Money Deposit shall be forfeited to Seller, and such
forfeiture shall be Seller's sole remedy available to Seller for such
breach; provided, however, the Buyer shall have ten (10) business days
following written notice from Seller to cure any breach under this
Contract.
(b) Balance of the Purchase Price at closing in immediately available
United States Dollars.
(c) Options for the remainder of the nine acre tract of which the Property
is a portion will be granted to the buyer for one year, beginning on
the date the Contract is fully executed. Buyer may extend the option
for up to two (2) additional years by paying Seller an option fee of
$3,000 for each year extended, payable on the anniversary date of the
Contract Date; provided, however, that the options will end no later
than December 31, 2005. This will be paid in the form of cash to the
Seller sand will be non-refundable and will not apply toward the
purchase price.
(d) Option Land Purchase. Purchase price for the additional land shall be
$4.50
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per square foot during the first option year, $4.75 per square foot
during the second option year, and $5.00 per square foot during the
third option year.
3. GENERAL CONDITIONS/CONDITIONS PRECEDENT. The Buyer will have sixty days
(60) days after Seller's delivery of the items in Paragraph 8 hereof (the
"Due Diligence Period") to determine, in Buyer's sole discretion, if the
property is suitable for Buyer's intended use. In the event Buyer elects to
terminate this Contract within the Due Diligence Period, all the xxxxxxx
money shall be returned to Buyer.
The following are conditions precedent to Buyer's obligation to close the
transaction contemplated hereunder.
(a) The Property, including all access driveways adjacent to the Property,
must be in substantially the same or better condition at closing as of
the date of this Contract.
(b) Buyer must submit site plan no later than 30 days after examination
period and obtain site plan approval by April 30, 2003 ("Approval
Date") and all necessary permits and approvals from the Town of Xxxx
for its proposed office development and construction.
(c) Utilities (including, without limitation, water, sewer, electricity,
and natural gas) will be available at the property line and
allocations of such utilities will be sufficient for Buyer's proposed
use of the Property.
(d) All deeds of trust, liens, and other charges against the Property, not
assumed by Buyer, must be paid and satisfied by Seller prior to or at
closing such that cancellation is immediately obtained following
closing. Seller shall remain obligated to obtain any such
cancellations following closing.
(e) Title must be delivered at closing by General Warranty Deed, and must
be fee simple marketable title, free of all encumbrances except: ad
valorem taxes for the current year (prorated through the date of
closing); utility easements and unviolated restrictive covenants that
do not materially affect the value of the Property; and such other
encumbrances as may be assumed or specifically approved by Buyer. The
Property must have legal access acceptable to Buyer to a public right
of way, either directly or through another property owned by Buyer.
Any matter of title, other than deeds of trust or mortgages to be
satisfied at closing not expressly objected to by Buyer during the Due
Diligence period shall be treated as having been specifically approved
by Buyer.
(f) Satisfaction of the "Seller Conditions" attached hereto as Exhibit B.
4. SPECIAL ASSESSMENTS. Seller warrants that there are no governmental special
assessments for sidewalk, paving, water, sewer or other improvements on or
adjoining the Property, no unpaid governmental impact fees or frontage
fees, and no business campus associated dues, if so, Seller to pay/The
Transportation Agreement is permissible.
5. PRORATIONS AND ADJUSTMENTS. Unless otherwise provided, the following items
shall be prorated and either adjusted between the parties or paid at
closing:
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(a) Ad valorem taxes on real property shall be prorated on a calendar year
basis through the date of closing.
(b) Rents, if any, for the property shall be prorated through the date of
closing.
6. CLOSING EXPENSES. Seller shall pay for preparation of a deed and all other
documents necessary to perform Seller's obligations under this Contract
including the cancellation of deeds of trust, liens, and other charges, and
for excise tax (revenue stamps) required by law. Buyer shall pay for all
other costs of closing, including the cost of recording the deed and for
preparation and recording of all instruments required to secure the balance
of the Purchase Price unpaid at closing.
7. BROKERAGE COMMISSIONS. Seller shall pay a two percent (2%) broker's
commission to Buyer's agent, Sequoia Realty. Buyer and Seller hereby
acknowledge that no other broker's commission or finder's fee is payable
with regard to the transaction contemplated by this Agreement. Each party
hereto agrees to defend and indemnify the other party from and against all
liability, claim, demand, damage or cost of any kind arising from or
connected with any broker's or finder's fee, commission or charge claimed
to be due any person arising from the such party's conduct with respect to
this transaction.
8. THIRD PARTY REPORTS. Seller agrees to use its best efforts to deliver to
Buyer as soon as reasonably possible after the date of this Contract copies
of all title information in possession of or available to Seller, including
but not limited to: title insurance policies, attorney's opinions on title,
surveys, soil reports, site plans, covenants, deeds, notes, deeds of trust,
and easements relating to the Property of legal description.
9. LABOR AND MATERIAL. Seller shall furnish at closing an affidavit and
indemnification agreement in form satisfactory to Buyer showing all labor
and materials, if any, furnished to the Property within 120 days prior to
the date of closing have been paid by Seller and agreeing to indemnify
Buyer against all loss from any cause or claim arising therefrom.
10. REASONABLE ACCESS. Seller will provide reasonable access to Buyer or
Buyer's representatives for purposes of appraisal and inspection, including
without limitation soil and environmental tests.
11. CLOSING. Closing shall be defined as the date and time of recording the
deed. All parties agree to execute any and all documents and papers
necessary in connection with closing and transfer of title, at a place
designated by Buyer, on or before the fifteenth (15/th/) day following the
satisfaction of the conditions listed in Section 3 of this Contract.
12. POSSESSION. Possession shall be delivered at closing.
13. RISK OF LOSS. The risk of loss or damage by fire or other casualty prior to
closing shall be upon Seller. If the improvements on or to the Property are
destroyed or materially damaged prior to closing, Buyer may terminate this
Contract by written notice of such election to the other party, in which
event Seller hereby consents to the return of the Xxxxxxx Money Deposit to
Buyer.
14. NOTICES. Any notice, request, instruction or other document to be given
hereunder by
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either party to the other shall be in writing and shall be deemed to have
been given (a) when physically received by personal delivery (which shall
include the receipt of a facsimile transmission), (b) one (1) business day
after being deposited with a nationally known commercial courier service
providing next day delivery service (such as Federal Express), or (c) two
(2) business days after being deposited in the United States certified or
registered mail, return receipt requested, postage prepaid, addressed to
the respective parties at the following addresses:
To Seller: Carolina Investment Partners To Buyer: Valterra Holdings, LLC
0000 Xxxx Xxxxx Xxxx 0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx 000
Xxxxxx, XX 00000
Either party may change the person or address for notices to such party by
giving notice to the other party as provided above.
15. ASSIGNMENTS. Buyer may assign this Contract.
16. PARTIES. This Contract shall be binding upon and shall inure to the benefit
of the parties, i.e., Buyer and Seller and their heirs, successors and
assigns. As used herein, words in the singular include the plural and the
masculine includes the feminine and neuter genders, as appropriate.
17. SURVIVAL. If any provision herein contained which by its nature and effect
is required to be observed, kept, or performed after the closing, it shall
survive the closing and remain binding upon and for the benefit of the
parties hereto until fully observed, kept, or performed.
18. ENTIRE AGREEMENT. This Contract contains the entire agreement of the
parties, and there are no representations, inducements or other provisions
other than those expressed therein. Each party hereto and its counsel have
had the opportunity to review and review (or request revisions of) this
Contract, and therefore any usual rules of construction requiring that
ambiguities are to be resolved against a particular party shall not be
applicable in the construction and interpretation of the Contract hereto or
amendments hereof. All changes, additions or deletions hereto must be in
writing and signed by all parties.
19. EXECUTION. This Contract shall become binding only when signed by both
Buyer and Seller. This Contract is executed under seal in signed multiple
originals, all of which together constitute one and the same instrument,
with a signed original retained by each party, and the parties adopt the
word "Seal" beside their signatures below.
20. MORATORIUM. In the event that any governmental entity having jurisdiction
over the property imposes any moratorium or other restriction on rezoning,
construction or any other aspect of the development process that would, in
Buyer's sole judgment, materially impact or delay Buyer's ability to obtain
the approvals and permits specified in Section 3(b), then Buyer shall have
the option to (i) terminate this Contract upon written notice to Seller and
receive a full refund of the Xxxxxxx Money, (ii) extend the Approval Date
for such reasonable amount of time after such moratorium or restriction has
been lifted to allow for buyer to obtain the necessary permits and
approvals.
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21. TRANSPORTATION AGREEMENT. Buyer acknowledges that it is purchasing the
Property subject to that "Transportation Agreement" with the Town of Xxxx,
a copy of which is attached hereto as Exhibit C. Seller agrees to pay all
fees called for under the Transportation agreement. If Buyer develops any
or all of the Property, Buyer shall reimburse Seller Ten Thousand Dollars
($10,000) per acre of land purchased, for the transportation agreement fee,
at the closing.
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BUYER
Valterra Holdings, LLC (Seal)
By: /s/ (Seal)
---------------------------------
Date: 11.01.02
SELLER
/s/ Xxxxx Xxxxx (Seal)
------------------------------------
By: Xxxxx Xxxxx
Date: 10.29.02
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EXHIBIT B
See Attached Agreement As A Condition By The Seller
Agreement
Seller Conditions
1. Seller must determine by appraisal that the selling price is acceptable per
the terms or the partnership agreement. To be completed within ten (10)
days of a fully executed contract.
2. Buyers site plan and buildings must meet the approval of the Seller with
regard to the retained parcel and the conformity of exterior appearance
with potential proposed development of the retained parcel. This will be
approved by the Buyer and Seller upon site plan submittal. Seller will have
ten (10) to approve. If Seller does not notify Buyer within ten (10) days
of its disapproval, Seller will be deemed to have approved the site plan
and buildings.
3. Buyer will provide pavement, sewer, water, and other utilities access to
the retained parcel to the satisfaction of the Seller as required by the
Town of Xxxx.
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EXHIBIT C
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STATE OF NORTH CAROLINA
TRANSPORTATION AGREEMENT
COUNTY OF WAKE
This TRANSPORTATION AGREEMENT ("Agreement") is made and entered into this
20/th/ day of July, 2001 by and between the TOWN OF XXXX, a North Carolina
municipal corporation (the "Town") and CAROLINA INVESTMENT PARTNERS, a North
Carolina general partnership ("Carolina").
W I T N E S S E T H:
WHEREAS, Carolina owns the real property m or particularly described on
Exhibit A attached hereto ("Carolina Property"); and
WHEREAS, in connection with the proposed development of property in the
vicinity of the Carolina Property, a Traffic Impact Analysis ("TIA") was
obtained which TIA evidenced that the intersection of U.S. 1 and the Xxxx
Parkway (the "Intersection") would be functioning at an unacceptable service
level as defined by Section 5.15.3 of the Town of Xxxx Unified Development
Ordinance (the "Code") such that a Certificate of Approved Traffic Analysis
("CATA") might not be issued for the development of all or portions of the
Carolina Property without compliance with 5.15.7 of the Code; and
WHEREAS, Carolina has no immediate plans to develop its property or to make
requests for a subdivision plan, site plan, master land use plan for a planned
unit development, or conditional use rezoning, but Carolina intends to develop
the Carolina Property in the future and to make requests for one or more of such
approvals; and
WHEREAS, Town has determined that the level of service of the Intersection
will be enhanced by improvements to the Intersection, said improvements being
substantially similar to those shown on that "Conceptual Plan Cary Parkway/U.S.
1/64 Interchange Modification" prepared by Xxxxxx-Xxxx Associates, Inc., a copy
of which is attached hereto (the "Improvements"; and
WHEREAS, Town has determined that the Improvements should be made to the
Intersection in order for property in the vicinity of the Intersection to be
developed and to obtain Town approval for development; and
WHEREAS, Town is willing to enter into this Agreement and agreements with:
(i) Tryon Partners, LLC and Xxxxxxx X. Xxxxxxxx, and (ii) Summerwinds, Inc., in
order to accelerate the construction of the Improvements to the Intersection;
and
WHEREAS, Town has indicated it is considering adoption of a new adequate
public facilities ordinance which may modify or replace the current Chapter 5,
Part 15 of the Code; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged:
1. Town agrees that at such time as Carolina makes any and all
application(s) for subdivision plan, site plan, master land use plan for planned
unit development, or conditional use rezoning for the development of the
Carolina Property, a CATA shall be issued by the Town for each such development
application provided that Carolina pays the developer contribution as set forth
herein. This agreement by the Town to issue the CATA is with full recognition
that the requested approval(s) may not satisfy the requirements of Section
5.15.3 of the Code, but the Town agrees that this Agreement satisfies the
requirements of Section 5.15.7(f)(iii) as "... an
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agreement with the Town to participate financially in the cost of the
improvements in order to accelerate their construction..." The parties
acknowledge that Carolina may make application for one or more approvals in
connection with a portion or all of the property. In the event multiple
applications are made, a CATA shall be issued at the time of each application.
Town agrees further that it will expedite construction of the Improvements
to the Intersection in reliance upon this Agreement and the agreements by Tryon
Partners, LLC and Xxxxxxx X. Xxxxxxxx and Summerwinds. In the event Carolina
applies for a CATA or CATAs prior to two (2) years after the execution of this
Agreement, then Carolina shall be limited to obtaining certificates of occupancy
for fifty percent (50%) of its proposed improvements on the Carolina Property
until the earlier of such times as (i) the lapse of two years from the execution
of this Agreement or (ii) such time as there is a reasonable expectation that
the Improvements to the Intersection will be completed in time to be of benefit
to the project. Upon the occurrence of the earlier of the above events, then
Carolina shall be entitled to receive certificates of occupancy for all of its
proposed improvements. Notwithstanding the limitations set forth above, Carolina
shall be entitled to a CATA or CATAs and to the issuance of building permits for
improvements upon application as set forth in the preceding paragraph.
2. Carolina agrees that at such time as it receives the CATA, Carolina
shall contribute to Town the sum of One Hundred Sixty Thousand Five Hundred
Dollars ($160,500.00) (the "Developer Contribution") as financial participation
in the cost of the Improvements to the Intersection. Carolina shall have no
obligation to pay the Developer Contribution unless Carolina receives the CATA
as set forth herein. Once Carolina has paid the Developer Contribution for any
requested CATA, then all future requested CATAs in connection with the
development of the Carolina Property shall be issued without the necessity of
further payments.
In the event Carolina proposes density for its development that causes
traffic generation to exceed the traffic demonstrated by the TIA, then the
amount of Developer Contribution shall be increased by a percentage equal to the
percentage increase of traffic generated by the Carolina development.
3. The parties agree that transportation development fees for the
Carolina Property shall be paid at such time as required by the Code.
4. The Town agrees that in the event Chapter 5, Part 15 of the Code is
modified or replaced such that the Town's requirements for development of the
Carolina Property are modified or replaced, then Carolina shall have the right
to have its application for approval controlled by the terms of Chapter 5, Page
15 of the Code as it exists on the date of execution of this Agreement.
Notwithstanding any new or modified requirements of the Codes as to approvals
related to traffic or transportation matters, Carolina shall be entitled to the
issuance of the CATA and approval of its subdivision plan, site plan, master
land use plan for a planned unit development, or conditional use rezoning upon
payment of the Developer's Contribution.
5. In the event of a modification or replacement of Chapter 5, Part 15 of
the Code, Carolina shall have the right to elect to terminate this Agreement by
delivering written notice thereof to the Town in which even this Agreement shall
be null and void and of no further effect. Any approvals for development of the
Carolina Property shall be subject to the then applicable Code provisions.
6. Any notice, demand or request given under this Agreement shall be
given in
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writing, and shall be made by personal delivery or sent by United States
registered or certified mail, postage prepaid, return receipt requested or sent
by a reputable overnight courier, addressed as follows:
a. If to Town: Town of Xxxx
Attn: Xxxxxxx Xxxxxxxxx, Esquire
000 X. Xxxxxxx Xxxxxx
Xxxx, XX 00000
Facsimile: 919460-4929
With copy to: Town of Xxxx
Attn: Xxx Xxxxxx
000 X. Xxxxxxx Xxxxxx
Xxxx, XX 00000
Facsimile: 000-000-0000
b. If to Carolina: Carolina Investment Properties
C/o Trademark Properties
Attn: Xxxxx Xxxxx
0000 Xxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Xxxxxxx X. Xxxxxxx, Esquire
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxx, XX 00000
Facsimile: 000-000-0000
Or to such other address as either party may designate in writing mailed to the
other party as provided herein. Notices shall be deemed given, delivered and
received on the actual date of their personal delivery; three (3) business days
after deposit in the United States mail with registered mail, return receipt
requested; one (1) business day after deposit with or pick up by a professional
overnight delivery service if the sender receives delivery confirmation from the
service; or upon the date of transmission of a telecopied written communication
if the sender obtains machine generated or other written confirmation of
completed transmission and provided that a copy is deposited in the U.S. mail.
7. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and to the successors and assigns of Carolina s owner of any
portion of the Carolina Property.
8. This Agreement may only be amended or modified by the written consent
of the Town and Carolina.
9. This Agreement shall be governed and construe din accordance with the
laws of the State of North Carolina. This Agreement constitutes the entire
agreement between Town and Carolina.
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10. This Agreement will terminate in the event that Carolina has not made
application for a CATA or CATAs within ten (10) years after the date of
execution of the Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS OF THE FOREGOING, town and Carolina have caused this instrument
to be executed under seal as of the date first above written.
TOWN OF XXXX
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Xxxxxxx Xxxxxxx, Town Manager
ATTEST:
/s/ Xxx X. Xxxxxxx
--------------------------
Xxx X. Xxxxxxx, Town Clerk
[TOWN SEAL]
Carolina Investment Partners
By: /s/ Xxxxx Xxxxx
------------------
Name: Xxxxx Xxxxx
Title: General Partner
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EXHIBIT A
All that certain tract or parcel of land located in Cary, Wake County,
North Carolina and being more particularly described as follows:
BEGINNING at a point located in the northern margin of the right-of-way of
Cary Parkway at the point where such right-of-way commences to curve and
intersect with the eastern margin of the right-of-way of Xxxxxxxx Drive, running
thence from such point of BEGINNING with and along the arc of a curve to the
right having a radius of 30.00 feet, an arc distance of 45.22 feet to a point
(such curve having a chord bearing and distance of North 01(Degree) 34' 20" West
41.06 feet); running thence North 41(Degree) 36' 29" East 98.25 feet to a point;
running thence South 32(Degree) 50' 24" East 69.31 feet to a new iron pipe;
running thence South 60(Degree) 56' 49" East 115.70 feet to an existing iron
pipe; running thence South 19(Degree) 12' 35" East 61.59 feet to a new iron
pipe; running thence South 03(Degree) 07' 35" West 75.78 feet to an existing
iron pipe; running thence South 11(Degree) 39' 56" West 113.37 feet to a new
iron pipe located in the northern margin of the 106 foot wide right-of-way of
Cary Parkway; running thence with and along such margin of the right-of-way of
Cary Parkway with and along the arc of a curve to the left, having a radius of
1485.39 feet, an arc distance of 314.19 feet, to a point and being the point and
place of BEGINNING (such curve having a chord bearing and distance of North
38(Degree) 41' 35" West 313.61 feet), containing 0.86 acres and being a part of
Xxx 0, Xxxxxxxxxx Xxxx P.U.D., all according to that certain unrecorded plat of
survey entitled "Survey for Resolution Trust Corporation of Part of Xxx 0,
Xxxxxxxxxx Xxxx, X.X.X.," prepared by Al Prince & Associates, P.A., dated April
28, 1992, to which unrecorded survey reference is hereby made for a more
accurate description of the metes, bounds, courses and distances of the
foregoing tract.
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EXHIBT A (CONTINUED)
BEGINNING at a point in the centerline of N.C.S.R. 1009 (Xxxxx Road), said
point being the southwest corner of Parcel 4 of the Wellington Park P.U.D. as
shown on Book of Maps 1986, Page 1262, in the Wake County Registry, and having
N.C. Grid Coordinates of North 725570.77 and East 207045865; thence North
19(Degree) 13' 12" West 50.05 feet to a point on and tangent to a curve having a
radius of 30.00 feet; thence with said curve as it turns to the right a distance
of 45.68 feet to a point on and tangent to a curve having a radius of 1485.39
feet; thence with said curves as it turns to the left a distance of 278.54 feet
to a point of tangency; thence North 11(Degree) 39' 58" East 113.37 feet to a
point; thence North 03(Degree) 07' 35" East 75.7 feet to a point; thence North
19(Degree) 12' 35" West 61.59 feet to a point; thence North 60(Degree) 56' 49"
West 115.70 feet to a point; thence North 32(Degree) 50' 24" West 69.31 feet to
a point; thence North 41(Degree) 36' 29" East 380.92 feet to a point on and
tangent to a curve having a radius of 403.00 feet; thence with said curve as it
turns to the right a distance of 422.02 feet to a point of tangency; thence
South 78(Degree) 23' 31" East 290.97 feet to a point on and tangent to a curve
having a radius of 30.00 feet; thence with said curve as it turns to the right a
distance of 47.17 feet to a point of tangency; thence South 11(Degree) 41' 43"
West 245.72 feet to a point on and tangent to a curve having a radius of 265.00
feet; thence with said curve as it runs to the left a distance of 210.44 feet to
appoint of tangency; thence south 33(Degree) 48' 17" East 163.90 feet to a point
on and tangent to a curve having a radius of 30.00 feet; thence with said curve
as it turns to the right a distance of 47.08 feet to a point of tangency; thence
south 34(Degree) 02' 30" East 49.84 feet to a point; thence South 55(Degree) 57'
30" West 49.52 feet to a point; thence south 57(Degree) 40' 03" West 102.39 feet
to a point; thence South 59(Degree) 45' 02" West 94.59 fee to a point; thence
south 63(Degree) 55' 26" West 107.39 feet to a point; thence South 69(Degree)
20' 26" West 96.27 feet to a point; thence South 70(Degree) 46' 48" West 354.60
feet to the POINT AND PLACE OF BEGINNING and containing 17.29 acres.
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