EXHIBIT 10.16
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of September 27,
1999 by and between INTELLIGENT LIFE CORPORATION, a Florida corporation
("Buyer"), having an address at 11811 U.S. Highway One, Suite 101, North Palm
Beach, Florida 33408, and WORKPLACE HOLDINGS, LTD., a Florida limited
partnership ("Seller"), having an address at 222 Lakeview Avenue, 17th Floor,
West Palm Beach, FL 33401.
W I T N E S S E T H:
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A. Abacoa Development Company, a Delaware corporation ("Abacoa") is the
developer of a planned community known as Abacoa (the "Abacoa Project") located
on certain real property (which includes the real property referred to in this
Agreement) in the Town of Jupiter, Florida ("Town");
B. Seller intends to purchase from Abacoa certain real property comprising
the "Workplace District" of the Abacoa Project;
C. Buyer and WK3 Investors, Ltd., a Florida limited partnership ("WK3
Investors") that is an affiliate of Seller, have entered into a certain Lease
Agreement of even date herewith (the "Initial Project Lease"), pursuant to which
WK3 Investors will construct an office building, to be occupied by Buyer, on
certain land within the Workplace District (the "Initial Project") which is also
a portion of the "Workplace District" property to be purchased by Seller from
Abacoa;
D. Buyer has agreed to purchase from Seller, on the terms and conditions
of this Agreement, a portion of the "Workplace District" adjacent to the land on
which the Initial Project will be located in order to provide for the
construction of a second building as expansion space for Buyer when needed:
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as
follows:
1. AGREEMENT TO SELL AND PURCHASE. Conditioned on Seller acquiring title to
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the "Property", Seller agrees to convey to Buyer, and Buyer agrees to purchase
from Seller, for the price and upon and subject to the terms and conditions set
forth herein, a parcel of real property located in Palm Beach County, Florida,
containing approximately two and 15/100 (2.15) acres and shown on the sketch
attached hereto as Exhibit 1(a) (the "Property"). The Property is a portion of
Tract WK3 of Abacoa Plat No. 1, according to the plat thereof, as recorded in
Plat Book 78, Pages 145 through 163 inclusive, Public Records of Palm Beach
County, Florida. Seller shall deliver to Buyer the legal description for the
Property within thirty (30) days after the date of this Agreement. Seller's
obligations hereunder are expressly contingent upon Seller acquiring title to
the Property. In the event Seller does not acquire title to the Property by
December 31, 1999, this Agreement shall terminate, in which event the Deposit,
together with all interest thereon, shall be refunded to Buyer, whereupon all
obligations of the parties hereto shall cease and this Agreement shall be null
and void and without recourse to the parties hereto except with respect to
provisions hereof which specifically survive such termination.
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2. PURCHASE PRICE; DEPOSIT; ADJUSTMENTS; ESCROW.
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(a) Purchase Price: The purchase price for the Property ("Purchase Price")
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shall be Six and 50/100 Dollars ($6.50) per square foot of the Property, which
is equal to Six Hundred Eight Thousand Seven Hundred Fifty One and No/100
Dollars ($608,751.00) based on the estimate of two and 15/100 (2.15) acres. The
actual Purchase Price shall be determined when the legal description of the
Property has been finalized. The Purchase Price shall be payable as follows:
(i) A deposit (the "Deposit") in the amount of Sixty Thousand and No/100
Dollars ($60,000.00) shall be paid to Escrow Agent (as defined below) by
Buyer, when the last party executes and delivers this Agreement, by wire
transfer of immediately available federal funds and is to be delivered to
Seller by Escrow Agent at the "Closing" (as hereinafter defined); and
(ii) The balance of the Purchase Price, equal to Five Hundred Forty Eight
Thousand Seven Hundred Fifty One and No/100 Dollars ($548,751.00), shall be paid
by Buyer to Seller, subject to adjustments for the Property square footage and
as otherwise provided for in this Agreement, by wire transfer of immediately
available federal funds at Closing upon the delivery and acceptance of the Deed.
(b) Deposit.
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(i) The Deposit shall be held in an interest-bearing escrow account as
provided in Section 2(d) below, subject to the terms of this Agreement, and
shall be duly accounted for at Closing (as defined below). All interest on the
Deposit is to be accounted for and accrue to the account of Buyer if the Closing
occurs; or paid to Buyer if the Deposit (or any portion thereof) is returned to
Buyer under the terms of this Agreement; or if Seller shall retain the Deposit
under the provisions of Section 9(b) of this Agreement, then the entire amount
of the interest shall be paid to Seller.
(ii) The Deposit shall be refundable to Buyer only if Seller does not
acquire title to the Property and record the Plat or if Seller shall fail to
fulfill its agreement herein to convey the Property on the Closing Date and
Buyer does not obtain specific performance as provided in Section 9(a) below.
(c) Adjustments; Prorations; Credits. The Purchase Price shall be adjusted
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to reflect the following:
(i) Water and sewer use charges, charges for utilities, property owners'
association assessments, and real property taxes and assessments with respect to
the Property for the year in which the Closing occurs (with full discount) shall
be apportioned as of the Closing Date, and the net amount shall be added to or
deducted from the Purchase Price, as the case may be. Buyer shall have no
liability for real property taxes or assessments with respect to the Property
for years prior to the year in which the Closing occurs, and Seller shall have
no liability for real property taxes or assessments with respect to the Property
for the year in which the Closing occurs (other than the prorations provided
herein) or years following the year in which the Closing occurs. If the
Property is a portion of a larger tax or assessment parcel, then the amount of
real estate taxes and assessments to be prorated hereunder shall be limited to
the Proportionate Share (as calculated below) of the taxes and assessments which
are attributable to the Property. The "Proportionate Share" shall be calculated
by multiplying the total amount of real estate taxes and assessments by a
fraction, the numerator of which shall be the total acreage (or fraction
thereof) comprising the Property, and the denominator of which shall be the
total acreage of the larger tax or assessment parcel.
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(ii) If, on the Closing Date, the current real property tax or assessment
bill with respect to the Property is not available, the amount of real property
taxes and assessments shall be apportioned based on the current year's millage
and the current year's assessment. If the current year's millage is not fixed
and the current year's assessment is available, taxes and assessments will be
apportioned based on such assessment and the prior year's millage. If the
current year's assessment is not available, then real property taxes and
assessments will be apportioned on the prior year's taxes and assessments. Any
apportionment of taxes or assessments based upon any figures other than a final
tax and assessment bill shall, at the request of either Buyer or Seller, be
subsequently reapportioned based upon receipt of the final tax and assessment
bill for the current year.
(iii) Each party shall pay its own attorneys' fees and costs incurred in
connection with the negotiation of this Agreement and consummation of the
transactions contemplated by this Agreement, except as otherwise expressly
provided herein. Seller shall pay the cost of all deed or other transfer taxes
(including all documentary stamp taxes), with respect to the transactions
contemplated by this Agreement, all recording costs (including recording costs
associated with releases and other documents required to clear title or to
comply with Seller's obligations hereunder), and an ALTA owner's title insurance
policy insuring Buyer's title to the Property. Buyer shall pay the cost of a
current survey of the Property meeting ALTA requirements or the technical
standards set forth in Florida Administrative Code Rule 61G17-6.002 ("Survey"),
if Buyer elects to obtain a Survey. Any items of cost or expense not
specifically allocated above shall be paid by the party to the transaction that
customarily bears such cost or expense within Palm Beach County, Florida.
(iv) If at any time following the making of any of the adjustments to the
Purchase Price, the amount thereof shall prove to be incorrect, or it should be
discovered that some adjustment which should have been made was inadvertently
omitted altogether, the party in whose favor the error was made shall pay the
sum necessary to correct such error to the other party within fifteen (15) days
following receipt of notice of such error from such other party and resolution
of any dispute with respect thereto.
(d) Escrow Account.
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(i) The Deposit shall be held by Gunster, Yoakley, Valdes-Fauldi &
Stewart, P.A., as escrow agent ("Escrow Agent"), in a separate interest-bearing
account. Such account shall be maintained until the Deposit and the interest
thereon have been delivered to Buyer, Seller or a court of competent
jurisdiction in accordance with the provisions of this Agreement and shall
terminate on the date of such delivery.
(ii) Escrow Agent shall account for the Deposit in accordance with the
terms of this Agreement or in such other manner as may be directed in a joint
written notice from Seller and Buyer directing some other disbursement of the
Deposit. If Escrow Agent receives written notice from either Buyer or Seller
that the other party has defaulted in the performance of its obligations under
this Agreement or that any condition to the performance of obligations under
this Agreement has not been fulfilled within the time period stipulated, which
notice shall describe in reasonable detail such default or non-performance, then
Escrow Agent shall (A) unless the notice evidences that a copy has been given to
the party alleged to have defaulted or to have failed to fulfill its obligation,
within two (2) business days give notice to such party of Escrow Agent's receipt
of such notice from the other party and shall enclose a copy of such notice from
the other party, and (B) subject to the provisions of Section 2(d)(iii) below
which shall apply if a conflict arises, on the tenth (10th) calendar day after
the giving of the notice referred to in clause (A) above, deliver the Deposit
(or the appropriate portion thereof) and the interest thereon to the party
claiming the right to receive it.
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(iii) If Escrow Agent is uncertain as to its duties or actions
hereunder, it shall be entitled to take any of the following courses of action:
(A) hold the Deposit as provided above in this Section 2(d) and decline to take
any further action until Escrow Agent receives a joint written direction from
Buyer and Seller or an order of a court of competent jurisdiction directing the
disbursement of the Deposit, in which case Escrow Agent shall then disburse the
Deposit in accordance with such direction; (B) in the event of litigation
between Buyer and Seller, deliver the Deposit and all interest thereon to the
clerk of any court in which such litigation is pending; or (C) deliver the
Deposit and all interest thereon to a court of competent jurisdiction and
commence an action for interpleader in such court, whereupon Escrow Agent shall
have no further duty with respect to the Deposit.
(iv) Escrow Agent shall not be liable for any action taken or omitted in
good faith and may rely, and shall be protected in acting or refraining from
acting in reliance, upon an opinion of counsel and upon any directions,
instructions, notices, certificates, instruments, requests, papers or other
documents believed by it to be genuine and to have been made, sent, signed or
presented by the proper party or parties.
(v) Buyer acknowledges that Escrow Agent is counsel for Buyer and may
continue to act as such counsel notwithstanding its duties as Escrow Agent
hereunder or any dispute or litigation arising as to its duties as Escrow Agent.
(vi) Escrow Agent shall have no liability with regard to any duty under
this Agreement nor be responsible for the loss of any moneys held by it except
in the event of willful and intentional misconduct on the part of Escrow Agent.
Notwithstanding any other provisions of this Agreement, Buyer and Seller jointly
indemnify and hold harmless Escrow Agent against any losses, costs, liabilities,
claims and expenses incurred by Escrow Agent arising out of or in connection
with its services under the terms of this Agreement, including attorneys' fees
and expenses and the costs and expenses of any interpleader action involving the
Deposit or of defending itself against any claim or liability. However, Escrow
Agent will not charge any fee for its normal services hereunder as Escrow Agent.
3. CLOSING.
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(a) Replatting.
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Buyer agrees and acknowledges that Seller will prepare and submit to the
applicable governmental authorities a replat of Tract WK3 which includes the
Property within its boundaries (the "Plat"). Seller shall provide to Buyer each
draft of the Plat as submitted to the Town, shall advise Buyer from time to time
as to the progress of review and approval of the Plat, shall promptly provide to
Buyer copies of comment letters received with respect to the Plat, and shall
consult with Buyer to the extent that the Plat is required to contain any
matters that would have an impact on development of the Property. The Plat shall
be recorded prior to the Closing Date.
(b) Closing Date.
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The time for the delivery of the Deed and for the performance of the
other terms and conditions of this Agreement ("Closing") shall be 9:00 A.M.
E.S.T. on the date ("Closing Date") that is five (5) days following the date on
which Seller delivers to Buyer a copy of the final Plat and evidence of
recordation thereof, but in no event later than June 30, 2000. The Closing shall
take place at the offices of Escrow Agent or at such other place as shall be
mutually agreed upon by Buyer and Seller.
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4. REPRESENTATIONS AND WARRANTIES.
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(a) Representations and Warranties of Buyer. Buyer warrants and represents
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to, and covenants and agrees with, Seller that Buyer is duly organized, validly
existing and in good standing under the laws of the State of Florida and has the
legal right, power and authority to enter into this Agreement and to perform all
of its obligations hereunder; that execution and delivery of this Agreement, and
the performance by Buyer of its obligations hereunder, have been duly authorized
by all necessary corporate action; that the officer signing this Agreement on
behalf of Buyer is duly authorized to execute the same on behalf of Buyer; and
that this Agreement and Buyer's performance hereunder will not conflict with, or
result in a breach of, any of the terms, covenants and provisions of the
articles of organization or by-laws of Buyer, as same may have been amended or,
to the best of Buyer's knowledge, any order, judgment, writ, injunction or
decree of any court or any agreement or instrument to which Buyer is a party or
by which it is bound. The foregoing warranties and representations of Buyer
shall survive Closing for a period of six (6) months.
(b) Representations and Warranties of Seller. Seller warrants and
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represents to, and covenants and agrees with, Buyer that Seller is duly
organized, validly existing and in good standing under the laws of the State of
Florida and has the legal right, power and authority to enter into this
Agreement and to perform all of its obligations hereunder; that the execution
and delivery of this Agreement, and the performance by Seller of its obligations
hereunder, have been duly authorized by all necessary corporate action; that the
officer signing this Agreement on behalf of Seller is duly authorized to execute
the same on behalf of Seller; and that this Agreement and Seller's performance
hereunder will not conflict with, or result in a breach of, any of the terms,
covenants and provisions of the partnership agreement of Seller, as same may
have been amended or, to the best of Seller's knowledge, any order, judgment,
writ, injunction or decree of any court or any agreement or instrument to which
Seller is a party or by which it is bound. Seller further warrants and
represents that Seller has not entered into any leases or contracts with respect
to the Property and will not enter into any such leases or contracts that
survive Closing (other than utility or other such agreements as may be necessary
for development of any other property within Tract WK3); Seller is not aware of
any claims or lawsuits with respect to the Property, including any such claims
or lawsuits involving hazardous materials; and Seller has no knowledge of the
presence of Hazardous Materials on the Property, provided that the only
investigation undertaken by Seller in that regard is documented in that certain
report from ATC Associates, Inc. dated September 21, 1999 under ATC Project
Number 03353.0001, Task 2, a copy of which report has previously been provided
to Buyer. The foregoing warranties and representations of Seller shall survive
Closing for a period of six (6) months.
5. TITLE INSURANCE. Within fifteen (15) days after the last party executes and
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delivers this Agreement, Seller shall provide to Buyer a commitment issued by
Chicago Title Insurance Company, pursuant to which such company agrees to issue
to Buyer, upon recording of the Deed, an owners' policy of title insurance in
the amount of the Purchase Price insuring Buyer's title to the Property. In the
event such title insurance commitment contains any Schedule B-II exceptions
which render title to the Property unmarketable, Buyer may notify Seller in
writing, within fifteen (15) days after receipt of the title insurance
commitment, specifying Buyer's objection to such exception(s). At its option,
Seller may cure or cause to be cured such objection within thirty (30) days
following receipt of such notice (the "Cure Period"), except that Seller will be
obligated to remove any liens or encumbrances resulting from Seller's actions.
At the expiration of the Cure Period, all title matters affecting the Property,
other than (a) any liens or encumbrances resulting from Seller's actions, and
(b) any other title matters that Seller has expressly agreed in writing to cure,
shall be deemed to be accepted by Buyer. In the event that any title matter
arises after the Cure Period that would render title unmarketable or would have
a material and substantial adverse effect on Buyer's intended development of the
Property, then, within ten (10) days after Buyer has written notice of same,
Buyer may notify Seller in writing, specifying Buyer's objection to such title
matter. If Seller does
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not cure such title matter within thirty (30) days after receipt of Buyer's
written notice (as extended for a reasonable period, not to exceed 90 days, if
necessary for Seller to effect such cure), then Buyer shall have the option, to
be exercised by giving written notice to Seller within ten (10) days after
Seller gives Buyer written notice that Seller cannot or will not effect such
cure, of either accepting title to the Property as it then exists without any
reduction of the Purchase Price or terminating this Agreement. In such event the
Deposit, together with all interest thereon, shall be refunded to Buyer, all
obligations of the parties hereto shall cease, and this Agreement shall be void
and without recourse to the parties hereto except with respect to provisions
hereof which specifically survive termination. If Buyer does not give written
notice of termination within said ten day period, Buyer shall be deemed to have
elected to accept title to the Property as it then exists without any reduction
of the Purchase Price.
6. SURVEY. Buyer shall have the option to obtain a Survey of the Property in
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such form and content as Buyer may elect in its sole discretion. Not later than
twenty five (25) days after Buyer receives the title commitment, Buyer shall
notify Seller in writing specifying its objection to any Survey matters which
render title to the Property unmarketable. In the event Buyer fails to object
to any such matters during this period, such matters shall be deemed to be
accepted by Buyer. At its option, Seller may cure or cause to be cured such
objection with thirty (30) days following receipt of such notice. At the
expiration of the Cure Period, all survey matters affecting the Property, other
than those that Seller has expressly agreed in writing to cure, shall be deemed
to be accepted by Buyer. In the event that any survey matter arises after the
Cure Period that would render title unmarketable or would have a material and
substantial adverse effect on Buyer's intended development of the Property,
then, within ten (10) days after Buyer has written notice of same, Buyer may
notify Seller in writing, specifying Buyer's objection to such title matter. If
Seller does not cure such title matter within thirty (30) days after receipt of
Buyer's written notice (as extended for a reasonable period, not to exceed 90
days, if necessary for Seller to effect such cure), then Buyer shall have the
option, to be exercised by giving written notice to Seller within ten (10) days
after Seller gives Buyer written notice that Seller cannot or will not effect
such cure, of either accepting title to the Property as it then exists without
any reduction of the Purchase Price or terminating this Agreement. In such
event the Deposit, together with all interest thereon, shall be refunded to
Buyer, all obligations of the parties hereto shall cease, and this Agreement
shall be void and without recourse to the parties hereto except with respect to
provisions hereof which specifically survive termination. If Buyer does not give
written notice of termination within said ten day period, Buyer shall be deemed
to have elected to accept title to the Property as it then exists without any
reduction of the Purchase Price.
7. CLOSING OBLIGATIONS.
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(a) Seller's Closing Obligations. On the Closing Date, Seller shall:
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(i) Deliver to Buyer full possession of the Property.
(ii) Deliver to Buyer, the following:
(A) A special warranty deed ("Deed") conveying good and marketable
title to the Property in accordance with the terms of this Agreement, which
shall be subject to all rights and reservations accruing to or for the benefit
of Seller under Section 10 of this Agreement.
(B) An affidavit to the title insurer in a form sufficient to delete
the so-called "gap", "parties in possession" and "mechanics lien" exceptions in
the title insurance commitment referred to in Section 5 above.
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(C) An affidavit certifying that Seller is not a "foreign person"
within the meaning of the Section 1445 of the Internal Revenue Code.
(D) Florida DR-219 form.
(b) Buyer's Closing Obligations. At the Closing, Buyer shall:
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(i) Deliver to Seller, by wire transfer of immediately available federal
funds, the balance of the Purchase Price, as adjusted pursuant to this
Agreement.
(ii) Deliver to Seller a signed acceptance copy of the Deed.
(iii) Deliver any other documents or monies expressly required by this
Agreement to be delivered by Buyer, including, without limitation, the consent
and waiver required by Northern Palm Beach County Improvement District
("NPBCID") in the form attached hereto as Exhibit 7(b), and the reproration
agreement provided for in subsection 2(c)(ii) above.
8. CONDEMNATION. In the event that all of the Property, or a portion
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thereof that prevents development of the Property in conformance with Buyer's
permitted use as described in Section 10(b)(vi), shall be acquired or condemned
for any public or quasi-public use or purpose, or if any such acquisition or
condemnation proceedings shall be threatened or begun prior to the Closing of
this transaction, Buyer shall have the option to either (a) terminate this
Agreement, in which event Escrow Agent shall return to Buyer the Deposit,
together with accrued interest thereon, and the obligations of all parties
hereunder shall cease except with respect to provisions hereof which
specifically survive termination, or (b) proceed, subject to all other terms,
covenants, conditions, representations and warranties of this Agreement, to the
Closing of the transaction contemplated hereby and receive title to the Property
without any reduction of the Purchase Price; provided, however, that Seller
shall direct all such proceedings with respect to the Property and pay to the
Buyer any sums received by it in connection with such proceedings and
attributable to that portion of the Property acquired or condemned.
9. FAILURE OR INABILITY TO PERFORM; DEFAULTS; REMEDIES.
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(a) Seller's Default. If Seller shall fail to fulfill its agreement
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herein to convey the Property on the Closing Date or if Seller shall fail to
fulfill its obligations with respect to the "Expansion Option", as defined in
Section 10(a) below, Buyer shall have the following as its sole remedies, each
of which shall be mutually exclusive:
(i) Buyer may file an action for specific performance, which must be
filed, if at all, within six (6) months after Seller's failure to close as
provided in this Agreement; or
(ii) Buyer may seek damages from Seller solely for the lost opportunity
to have the "Expansion Project" constructed for and leased to Buyer pursuant to
the "Expansion Project Lease", all as defined in Section 10(a) below; provided,
however, that Buyer and Seller agree that the sole measure of damages
recoverable by Buyer (in addition to attorneys' fees and costs as provided in
Section 12(f) below) shall be the excess, if any, of (x) the amounts payable by
Buyer under a lease for office space in substitution of the Expansion Project,
less (y) the amounts payable by Buyer under the Expansion Project Lease on the
assumption that Buyer exercised the Expansion Option after the date that is
twelve (12) months following the date of commencement of construction of the
Initial Project and before the "Option Deadline Date", as defined in Section
10(a) below.
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If Seller shall fail to fulfill any of its agreements herein other than the
agreement to convey the Property on the Closing Date or its obligations with
respect to the Expansion Option, whether before or after the Closing Date, and
such failure continues for more than fifteen (15) days after written notice of
default is given by Buyer (subject to extension if Seller is diligently pursuing
the cure but the default cannot be cured in such period, but in no event longer
than thirty days), Buyer shall have all remedies available at law or in equity
with respect to any such default (other than the failure of Seller to fulfill
its agreement herein to convey the Property on the Closing Date or its
obligations with respect to the Expansion Option).
(b) Buyer's Default. If Buyer shall fail to fulfill its agreement herein
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to purchase the Property on the Closing Date, Seller's sole and exclusive remedy
shall be to retain or recover from Buyer or the Escrow Agent the Deposit and any
interest thereon as full and complete liquidated damages, both at law and in
equity, whereupon this Agreement shall terminate without further recourse to
either party except with respect to provisions hereof which specifically survive
termination. If Buyer shall fail to fulfill any of its other agreements herein,
whether before or after the Closing Date, within fifteen (15) days after written
notice of default is given by Seller (subject to extension if Buyer is
diligently pursuing the cure but the default cannot cure in such period, but in
no event longer than thirty days), Seller shall have all remedies available at
law or in equity.
10. ADDITIONAL ACKNOWLEDGMENTS, COVENANTS AND AGREEMENTS.
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(a) Development by Seller. Buyer acknowledges that, except as provided
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below in Section 10(a), Seller shall have no obligation to make any improvements
of any type to the Property, including, without limitation, placing any fill on
the Property, compacting the soil or any other matter whatsoever.
Notwithstanding the foregoing, Seller agrees that, during the construction of
the Initial Project, it will cause the Property to be cleared, seeded (or its
equivalent) and irrigated, and Seller and its agents shall have an easement to
enter upon and under the Property from time to time for such purposes. Seller
shall have no obligation to maintain, repair, replace, or insure any portion of
the Property or any installations therein, and Buyer agrees to assume full
responsibility for all such matters.
(i) Expansion Option of Buyer. Buyer shall have the option (the
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"Expansion Option"), to be exercised (if at all) on or before the date that is
twenty four (24) months following the date of commencement of construction of
the Initial Project (the "Option Deadline Date"), to have Seller or Seller's
affiliated assignee, as determined by Seller (the "Repurchaser") repurchase the
Property from Buyer and simultaneously enter into a lease with Buyer (the
"Expansion Project Lease") for a one-story office building of approximately
20,000 square feet (the "Expansion Project") to be constructed on the Property.
For purposes of this Section 10(a), the commencement of construction of the
Initial Project shall be defined as the pouring of the footers, and Buyer and
Seller shall execute a written acknowledgment of such date within ten (10) days
following notice from Seller to Buyer that such footers have been poured. The
Expansion Project Lease shall be on substantially the same terms and conditions
(including optional extension rights of Buyer) as the Initial Project Lease
except as follows:
(x) Exercise During First 12 Months. If the Expansion Option is
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exercised within twelve (12) months following the date of commencement of
construction of the Initial Project, then the "Base Rent" under the Expansion
Project Lease will be the same for each lease year as the "Base Rent" under the
Initial Project Lease, including "Base Rent" during each extension option term.
(y) Exercise Between 12 and 24 Months. If the Expansion Option is
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exercised after the date that is twelve (12) months following the date of
commencement of construction of the Initial Project
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and before the Option Deadline Date, then the "Base Rent" under the Expansion
Project Lease will be as follows:
Lease Year Base Rent Base Rent per Rentable Square Foot
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One-Two $340,000.00 $17.00
Three-Five $350,000.00 $17.50
Six-Eight $370,000.00 $18.50
Nine-Ten $390,000.00 $19.50
Eleven-Twelve $420,000.00 $21.00
Thirteen-Fifteen $435,000.00 $21.75
Sixteen-Eighteen $450,000.00 $22.50
Nineteen-Twenty $470,000.00 $23.50
Upon commencement of the initial term of the Expansion Project Lease, the
initial lease term under the Initial Project Lease shall be extended for the
period (the "Initial Term Extension Period") ending on the date of expiration of
the initial lease term under the Expansion Project Lease, and Buyer agrees to
execute all documentation reasonably requested by the "Landlord" under the
Initial Project Lease to confirm such extension. The "Base Rent" applicable
under the Initial Project Lease during the Initial Term Extension Period shall
be the same Base Rent that would have been due under the Initial Project Lease
if Buyer had exercised its first extension option under the Initial Project
Lease, and each Base Rent adjustment thereafter shall occur on the corresponding
anniversary of the "Commencement Date" of the Initial Project Lease without
regard to the fact that such adjustment dates will not correspond to the
beginning of a lease year. With respect to any portion of the second extension
option period that extends beyond the 20 years for which Base Rent rates are set
forth in the Initial Project Lease (the "Post 20-Year Period"), the Base Rent
shall be increased by One Dollar ($1.00) per rentable square foot at the
twentieth (20th) anniversary of the Commencement Date of the Initial Project
Lease and shall be increased again by the same amount at each second anniversary
of the Commencement Date of the Initial Project Lease thereafter (e.g., 22nd,
24th, etc.)
(ii) Limitation. The rental rates set forth in Section 10(a)(i) above
----------
shall apply only if the Expansion Option is exercised timely; otherwise, the
"Base Rent" with respect to the Expansion Option shall be subject to mutual
agreement of Buyer and the Repurchaser if Buyer elects to have the Repurchaser
develop the Property.
(iii) Condition of Option. As a condition of Buyer's exercise of the
-------------------
Expansion Option, Buyer shall submit to Seller then current financial and other
related information regarding Buyer and/or its affiliates as may be required by
Seller to confirm that Buyer's then current financial condition is similar or
equal to Buyer's financial condition at the date of this Agreement. Further,
Seller shall not be obligated to cause the Repurchaser to repurchase the
Property from Buyer or otherwise perform pursuant to the Option if Buyer's then
current financial condition is not sufficient for the Repurchaser to obtain
mortgage financing for the Expansion Project on terms reasonably acceptable to
the Repurchaser. Without limitation of any other provisions of this Agreement,
Buyer acknowledges that Seller's exercise of its rights under this Section
10(a)(iii) shall not be a default by Buyer under this Agreement and shall not
give rise to any action for specific performance or damages pursuant to Section
9(a) above.
(iiv) Repurchase Terms. The repurchase price for the Property pursuant
----------------
to exercise of the Option shall be equal to Six and 50/100 Dollars ($6.50) per
square foot of the Property (the "Repurchase Price"). At the time of closing of
the repurchase, which shall be simultaneous with the closing of the construction
loan for the Expansion Project, the Repurchaser shall pay to Buyer an amount
equal to the
Page 9
Repurchase Price, less (a) the unpaid balance of any liens or assessments
against the Property (subject to applicable prorations), (b) any costs and
expenses incurred by the Repurchaser in clearing the title of all encumbrances
that were not applicable to the Property at the date of the initial conveyance;
and (c) the documentary stamp tax on the deed of conveyance to the Repurchaser.
At closing, Buyer shall convey to the Repurchaser good and marketable title to
the Property and any improvements thereon by special warranty deed, subject only
to maters of record in existence at the date of Seller's conveyance of the
Property to Buyer and matters appearing subsequent thereto for which Buyer is
not responsible in any manner. Once the Expansion Option has been exercised,
Seller or the Repurchaser may enforce the provisions of this Section 10(a) by an
action for specific performance.
(v) Exclusive Rights. In consideration of the covenants of Seller set
----------------
forth in this Section 10(a), Buyer acknowledges and agrees that the right of
Seller (or the Repurchaser) to repurchase the Property and construct
improvements thereon shall be exclusive prior to the Option Deadline Date, and
Buyer shall be prohibited from conveying the Property (or any interest therein)
to any other transferee and from developing or constructing any improvements on
the Property in violation of this subsection.
(vi) Fill. Seller will cause Abacoa to make available sufficient fill
----
for the Property to comply with the stormwater storage, detention, retention,
and minimum finished floor elevations set forth in the "SFWMD Conceptual Plan"
as defined in Section 10(b)(i)(a) below, provided that transportation of such
fill from Abacoa's stockpile to the Property shall be at the expense of Buyer
(or shall be included within the development budget for the Expansion Project)
if Buyer timely exercises the Expansion Option and executes and delivers the
Expansion Project Lease.
(b) Buyer's Additional Acknowledgments, Covenants and Agreements. In
-------------------------------------------------------------
addition to its other acknowledgments, covenants and agreements hereunder, Buyer
acknowledges, covenants and agrees as follows:
(i) Matters Regarding the Property and the Abacoa Project.
-----------------------------------------------------
(a) Entitlement Documents. The Property, and the planning,
---------------------
development, occupation and use thereof, is subject to the obligations and
requirements of, is governed by the uses and entitlements permitted by, and
shall be conducted in accordance with the requirements and assumptions of, that
certain Development Order dated June 6, 1995 known as Resolution No. 9-95 of the
Town as amended to date (and as further amended from time to time, "Development
Order"), Town Ordinance No. 1-95 (and as further amended from time to time, "MXD
Ordinance"), the Master Plan for the Abacoa Project approved by the Town (and as
further amended from time to time, "Abacoa Master Plan"), a Conceptual Water
Management Plan of the South Florida Water Management District ("SFWMD") (and as
further amended from time to time, "SFWMD Conceptual Plan"), a Water Management
Plan of NPBCID (and as further amended from time to time, "NPBCID Water
Management Plan"), and certain other permits, approvals, licenses, agreements,
arrangements and the like from or with various other governmental authorities
and/or utility companies (including, without limitation, Loxahatchee River
Environmental Control District. ("Encon")) relating to the development of the
Abacoa Project (all of the foregoing, as further amended from time to time,
being collectively referred to as the "Entitlement Documents"). Buyer
acknowledges and agrees that it will provide any non-confidential information in
Buyer's possession or readily available to Buyer that is necessary to complete
and file any reports required by the Entitlement Documents, that the Entitlement
Documents do not guarantee that any particular portion of the Abacoa Project or
any particular use may be developed at any time, and that the Entitlement
Documents include conditions and obligations to which Buyer, as owner of the
Property, will be subject. Seller has not assumed, and does not hereby assume,
responsibility for any obligations under the Entitlement Documents, and Buyer
acknowledges and agrees
Page 10
that it shall have no claim against Seller for the failure of any person or
entity to perform any duty or obligation arising out of or related to the
Entitlement Documents.
(b) Modification of Entitlement Documents. The John D. and Catherine
-------------------------------------
T. MacArthur Foundation, a Illinois not-for-profit corporation (the
"Foundation"), Abacoa and/or Seller, their successors and assigns, may, from
time to time, request that the appropriate governmental authorities modify,
amend, limit or terminate the Entitlement Documents. Buyer will not object to
or contest any such modification, amendment, limitation or termination, provided
it does not modify, amend, limit or terminate any of the Entitlement Documents
in any manner that would have a material adverse effect on development of the
Property as permitted under this Agreement. Buyer acknowledges and agrees that
it shall have no claim against Seller for any modification, amendment,
limitation or termination of any of the Entitlement Documents by any person or
entity.
(c) Use of Names. Buyer shall not utilize the names "Abacoa", "Abacoa
------------
Workplace", or any variation of any of the foregoing in any manner without the
prior written consent of Seller and, where applicable, Abacoa.
(ii) Buyer's Approvals. With respect to Buyer's development of the
-----------------
Property, Buyer shall, at Buyer's sole cost and expense, apply for and obtain
all licenses, permits, approvals and the like from the Town, SFWMD, NPBCID, the
Florida Department of Environmental Protection and any other federal, state or
local governmental agency or authority having jurisdiction over the Property
necessary or desirable to permit Buyer to construct and operate its permitted
use (collectively, the "Buyer's Approvals"). Buyer shall be responsible for all
infrastructure and improvement obligations required by any governmental agency
or authority as a condition of obtaining any Buyer's Approvals, and Seller
agrees to cooperate with Buyer, at Buyer's expense, in connection with Buyer's
efforts to obtain Buyer's Approvals. Buyer acknowledges and agrees that Buyer's
obligations to purchase the Property in accordance with the terms of this
Agreement are not, expressly or impliedly, contingent or conditioned upon Buyer
obtaining all or any of the Buyer's Approvals. The provisions of this Section
10(b)(ii) shall not apply if Buyer timely exercises the Expansion Option and
executes and delivers the Expansion Project Lease; in such event, the
Repurchaser shall be responsible for obtaining all of the Buyer's Approvals.
(iii) Development Matters.
-------------------
(a) Utilities, Utility Capacity and Utility Charges. Prior to
-----------------------------------------------
Closing, Seller may, but is not obligated to, enter into: (i) a water agreement
required by the Town for the portion of the Workplace District that includes the
Property, (ii) a standard developer's agreement for sanitary sewer service
required by Encon for the portion of the Workplace District that includes the
Property, and (iii) a reuse irrigation quality ("IQ") agreement required by
Encon for the portion of the Workplace District that includes the Property.
Buyer will, at the Closing, reimburse Seller for any and all sums paid by Seller
pursuant to such agreements with the Town and Encon that are allocable to the
Property, and assume all remaining obligations thereunder that are allocable to
the Property. Without limitation of the foregoing, Buyer shall be solely
responsible for the timely payment of all potable water, wastewater/sewer and IQ
water connection charges, carrying charges (including any accrued guaranteed
revenue fees of the Town for the Property), hook-up and tap-in fees and for any
initial start-up, tie-in, deposit, tap-in, meter installation or any other cost
normally charged by a utility company providing potable water, wastewater/sewer,
IQ water, telephone, electric, alarm monitoring, cable television or other
service for the Property; provided, however, that if Buyer timely exercises the
Expansion Option and executes and delivers the Expansion Project Lease, then the
Repurchaser shall be responsible for all such costs associated with development
of the Property (as opposed to any costs associated with carrying the Property
until development thereof). In connection with any site plan
Page 11
application filed by Buyer with respect to the Property, Seller will permit
Buyer to avail itself of any right of Seller to borrow reservation capacity from
Abacoa pending approval of the site plan application, but solely on condition
that Buyer pay all fees charged with respect thereto and otherwise comply with
all conditions associated therewith.
(b) Impact Fees. Buyer shall be responsible for paying any and all
-----------
impact fees of the Town, Palm Beach County ("County") or any other governmental
authority that would normally be required or collected in connection with the
application or issuance of any building permit for any portion of the Property,
regardless of any impact fee credit that might be available as a result of
actions of any other person or entity besides Buyer. When impact fee credit is
available to any person or entity other than Buyer, Buyer will pay the amount of
impact fee that would normally be required in order to reimburse Abacoa or
Seller for actions taken by Abacoa or Seller or any person or entity besides
Buyer in accumulating the impact fee credit. Buyer will pay impact fees in the
following manner:
(1) For each type of impact fee, when no impact fee credit is
available or when there is no pending credit determination for that type of
impact fee, Buyer shall pay the required impact fee directly to the applicable
governmental authority as required by the impact fee regulations.
(2) For each type of impact fee that has a pending credit
determination and escrow agreement with the applicable governmental authority,
except roads, Buyer shall pay the required impact fee directly to the escrow
agent established under such escrow agreement ("Impact Fee Escrow Agent"). Once
the amount of credit is determined, any impact fees paid into escrow that would
normally be returned to the party paying them into escrow will be turned over to
Abacoa or Abacoa's designee. Future impact fees of this type will be paid
directly to Abacoa when each building permit is issued until the credit is fully
utilized. Once the credit is fully utilized, future impact fees will be paid
pursuant to subparagraph (1) above, unless additional impact fee credits are
determined or a credit determination is pending. In that instance, the
provisions of this subparagraph will apply.
(3) For roads, impact fees will initially be paid directly to Gary,
Dytrych & Ryan, P.A., as escrow agent. Buyer acknowledges that Abacoa and
NPBCID are currently working on an agreement with the County dealing with the
collection and disbursement of road impact fees based on the road impact fee
credit that will be available to Abacoa as a result of the road improvements
constructed by NPBCID ("Collection Agreement"). Once the Collection Agreement
is executed, future road impact fees will be paid by Buyer and previously paid
impact fees will be disbursed by Gary, Dytrych & Ryan, P.A., as escrow agent,
pursuant to the terms of the Collection Agreement. If Abacoa or Seller notifies
Buyer that the Collection Agreement will not be executed, then the provisions of
subparagraph (2) above will also apply to road impact fees.
(4) For any type of impact fee that is being paid pursuant to
subparagraph (1) above, Seller will notify Buyer if impact fee credits will
become available for that type of impact fee in the future. Buyer will follow
Seller's instructions on how to pay that type of impact fee.
(c) Easements. Prior to the Closing Date, Abacoa and/or Seller,
---------
their successors and assigns, may grant and record easements encumbering the
Property in the ordinary course of business, provided that each such easement
(i) is necessary for development of the Abacoa Project or the portion of the
Workplace District that includes the Property, (ii) does not directly affect the
use of the Property or the intensity of development or timing of development of
the Property, and (iii) does not directly affect the cost of development with
respect to the Property (unless Seller or Abacoa agrees to bear such cost).
After the Closing Date and in connection with the approval of any site plan
submitted by Buyer with respect to the
Page 12
Property, Buyer shall, without compensation of any kind, grant Abacoa and/or
Seller, or any parties designated by Abacoa and/or Seller, easements for access,
utilities, irrigation, landscaping, cable television, roads, bicycle paths,
medians, turn lanes, drainage and other similar services or purposes, provided
such easements are non-exclusive, the location of the easements and the use
thereof do not prevent or materially interfere with Buyer's proposed development
of the Property, and Buyer has the right to relocate the easements at Buyer's
expense.
Notwithstanding the foregoing, if Buyer timely exercises the Expansion Option
and executes and delivers the Expansion Project Lease, then the Repurchaser
shall be responsible for all impact fees associated with development of the
Property.
(d) Intentionally Omitted.
---------------------
(e) Clearing. Buyer will not burn or allow burning as part of the
--------
land development process for the Property.
(f) Debris. Buyer will not permit trash and debris from the
------
Property to be carried by the wind or otherwise scattered, and shall keep all
roadways and other portions of the Property clear of silt, construction
materials and trash from its construction activities. Buyer shall ensure that
all trash and debris is contained in appropriate trash receptacles or removed
regularly from its construction sites and will abide by any Town debris
management plans.
(g) Telecommunication Plan. Buyer acknowledges that Abacoa may
----------------------
develop a master telecommunication plan, including the planning, design,
construction and operation of public and/or private telecommunications
infrastructure and/or services within the boundaries of the Abacoa Project,
including, but not limited to nonresidential buildings, contracts for telephone
services, data or information services, video and/or cable television services
and wireless services and broadcast and/or communications facilities. In the
event Abacoa does develop such a master telecommunications plan, Buyer agrees to
abide by such plan, including but not limited to the installation by Buyer of
the proper wiring within building improvements to accommodate the master
telecommunication plan.
(iv) Property Owners Associations. The Property is subject to the
----------------------------
Declaration of Covenants, Conditions and Restrictions for Abacoa recorded in
Official Records Book 9739, Page 1629, Public Records of Palm Beach County,
Florida ("Master Declaration"), the Articles of Incorporation and By-Laws of
Abacoa Property Owner's Assembly, Inc., a Florida corporation not-for-profit
(the "Master POA"), which has been established as a master community or property
owners association for all of the Abacoa Project under the Master Declaration.
The Property also will be subject to a Workplace District master and/or sub
declaration of covenants, conditions and restrictions to be recorded in the
Public Records of Palm Beach County, Florida (collectively, the "Project
Declaration") establishing a master and/or sub property owners' association(s)
(collectively, the "Project POA"), and the articles of incorporation and by-laws
of the Project POA, which will be established as a property owners
subassociation under the Master Declaration. Buyer acknowledges that Seller will
be preparing the Project Declaration and that the Project Declaration may
contain provisions concerning, among other matters, reconveyance of the Property
to Seller, at Seller's option, in the event that construction of vertical
improvements to the Property does not commence within a specified time period,
cross access and parking easements, common area maintenance, assessments for
common area maintenance and other expenses (such as real property taxes and
assessments), lien rights with respect to assessments, and site plan and
architectural review and approval. Subject to the foregoing, Buyer shall have
the right to approve the Project Declaration, provided that such approval shall
not be unreasonably withheld, delayed or conditioned. If Buyer objects to any
provision(s) of the Project Declaration and Seller believes in good
Page 13
faith that such provision(s) are commercially reasonable and consistent (as
applicable) with other declarations in the Abacoa Project, then Seller shall
have the right to include such provision(s) in the Project Declaration
notwithstanding Buyer's objection provided that such provision(s) do not
directly affect the use of the Property or the intensity of development or
timing of development of the Property. Buyer agrees to accept title to the
Property subject to the Master Declaration and the Project Declaration and to
abide by and comply with all of the terms and conditions thereof. Buyer
acknowledges and agrees that construction of all improvements on the Property
will be subject to the requirements of the Master Declaration and the Project
Declaration, design guidelines promulgated under the Master Declaration and
Project Declaration, and the approval of architects and/or architectural review
committees under the Master Declaration and the Project Declaration. Buyer
acknowledges that a maintenance agreement for the maintenance of the preserve
areas, streets, drainage and landscaping or any other items deemed appropriate
by the Master POA or the Project POA may be entered into by the Master POA or
the Project POA with NPBCID or other governmental agencies, and that a portion
or all of the expenses referred to in such agreements may be assessed to the
Property as a common expense.
(v) Signage. Buyer acknowledges that the Property is also subject to
-------
sign codes and approval rights of the Town, the Foundation, Abacoa, and the
Master POA.
(vi) Limitations on Use. Buyer, and its successors and assigns, may
------------------
develop and use the Property for a commercial office building and for no other
purpose whatsoever.
(vii) Seller's Approval Rights.
------------------------
(a) In each instance in which Buyer intends to cause improvements to
be developed on the Property, Buyer shall, at Buyer's sole cost and expense,
submit to Seller, for Seller's review and approval (the "Seller Approval"), the
proposed site plan application and all supporting materials (the "Application
Package") not less than ten (10) days prior to submission of same to the Town.
Seller shall have a period of seven (7) business days following its receipt of
the Application Package, or any modification thereof, within which to provide
Buyer with written approval thereof or objections thereto stating, with
reasonable specificity, Seller's objections and what changes must be made to
obtain the Seller Approval. In the event Seller shall fail to provide Buyer
with a written approval of or objection to the Application Package, or any
modification thereto, within seven (7) business days following its receipt
thereof, or any Modification thereof, Seller shall be deemed to have approved
the Plans or the applicable Modification thereof.
(b) No improvements of any kind, including, without limitation, any
building, fence, wall, sign, satellite dish, tower or other telecommunication
facility, site paving, grading, building, building addition, alteration, mail
box, air conditioning equipment, pump, fill, excavation, decorative feature,
landscaping, or any other improvements (collectively, "Improvements") shall be
commenced, erected, placed or maintained upon the Property by Buyer, its
successors or assigns, nor shall any addition, change or alteration be made by
Buyer, its successors or assigns, with respect to any Improvements, unless and
until the plans, specifications and locations of same shall have been submitted
to and approved in writing by Seller, its successors or assigns. Buyer shall
submit to Seller two (2) complete sets of all plans and specifications for any
Improvements (including, without limitation, building and landscaping plans and
specifications), the construction or placement of which is proposed on or under
the Property, together with a copy of any governmental or other required
permits. Seller, its successors or assigns, may also require the submission of
samples of building materials and colors proposed for use on or under the
Property, and may require such additional information as is reasonably necessary
to completely evaluate the proposed Improvements. Within ten (10) days
following receipt of all required submissions (whether an initial submission or
re-submission following disapproval), Seller shall give Buyer written notice of
Seller's
Page 14
approval or disapproval and, if applicable, stated reasons for disapproval;
absent such notice, Buyer's plans and specifications shall be deemed approved.
Seller's review of the plans, specifications and other materials with respect to
the proposed Improvements is intended to ensure the aesthetic harmony,
compatibility, and quality of Improvements within the Abacoa Project and the
Workplace District in order to protect and preserve the value of all such
Improvements, and Seller shall not unreasonably withhold or delay any such
approval. Seller's rights with respect to approval of the plans, specifications
and locations of Improvements shall not apply to any construction, addition,
change or alteration to any Improvement not visible from outside of any
structure and not creating any aesthetic impact upon the Abacoa Project or the
Workplace District.
(c) If Buyer timely exercises the Expansion Option and executes and
delivers the Expansion Project Lease, then the Repurchaser shall be responsible
for obtaining all approvals required under this Section 10(b)(vii).
(viii) As Is. Buyer acknowledges and agrees that Seller has not made,
-----
does not make and specifically negates and disclaims any representations,
warranties (other than the warranty of title as set forth in the deed),
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, of, as to, concerning or with respect to the Property, including,
without limitation, the value, nature, quality or condition of the Property, the
water, soil and geology of the Property, including the existence or absence of
any hazardous materials, the suitability of the Property for any and all
activities and uses which Buyer may conduct thereon, the compliance of or by the
Property or its operation with any laws, rules, ordinances or regulations of any
applicable governmental authority or body, the habitability, merchantability,
marketability, profitability or fitness for a particular purpose of the
Property, or any other matter with respect to the Property, and, to the maximum
extent permitted by law, hereby waives, releases and discharges Seller, its
partners, employees, agent and attorneys from any and all claims relating to any
of the foregoing matters. Buyer further acknowledges and agrees that to the
maximum extent permitted by law, the sale of the Property as provided for herein
is made on an "AS IS", "WHERE IS" condition and basis "WITH ALL FAULTS". It is
understood and agreed that the Purchase Price has been adjusted by prior
negotiation to reflect that the Property is being sold by Seller and purchased
by Buyer subject to the foregoing.
11. INSPECTIONS.
------------
(a) Indemnity. During the term of the Agreement, Buyer shall have the
---------
right to enter upon the Property at reasonable times for the purposes of
inspection and making tests and studies thereon; provided, however, that until
Seller acquires title to the Property, Seller's sole obligation hereunder shall
be to endeavor in good faith to obtain access to the Property for Buyer from
Abacoa and the Foundation, and all inspections, test and studies of Buyer shall
be subject to the approval of Abacoa and the Foundation. Buyer's activities
shall be conducted in a commercially reasonable manner and in compliance with
all applicable laws, ordinances, rules and regulations of any governmental
authority or agency. Buyer shall (a) cause all borings to be plugged or capped
in a safe manner, (b) cause any property damaged or destroyed to be repaired or
replaced to its preexisting condition, (c) cause all debris resulting from its
activities to be removed, (d) not cut or uproot any vegetation without the prior
written consent of Seller, (e) not disturb any wetland or land subject to any
ordinance in respect of environmentally sensitive land, (f) not destroy, injure
or move any species of endangered or threatened animal or habitat, (g) exercise
its rights hereunder in the least obtrusive manner possible, and (h) not take
any actions or do anything which would constitute a breach or violation of any
of the Entitlement Documents. Buyer agrees to indemnify, defend and hold
harmless Abacoa, the Foundation, Seller and deGuardiola Development Ventures,
Inc. ("GDVI"), and all of the partners, officers, directors, employees, agents
and independent contractors of Seller or GDVI at any time
Page 15
and from time to time (collectively, "Seller"s Group"), from and against all
liabilities, obligations, claims, damages, judgments, awards, penalties, costs
and expenses, including, without limitation, attorneys' fees and costs at both
trial and appellate levels and fines or impositions of any governmental or
quasi-governmental authority or agency, which Abacoa, the Foundation, Seller,
GDVI or any of Seller's Group, may incur, suffer or sustain by reason of any
breach or violation by Buyer, or any of its directors, officers, employees,
agents or independent contractors at any time and from time to time
(collectively, "Buyer's Group"), of the provisions of this Section, any injury
to or death of persons or loss of or damage to property in connection with, or
as a result of, any activities hereunder and any labor or services performed, or
any materials furnished, by or for the account or benefit of, Buyer in respect
of the Property. In any action, suit or proceeding brought against Abacoa, the
Foundation, Seller, GDVI or any of Seller's Group, by reason or on account of
any of the foregoing, Buyer shall, at Buyer's expense, defend such action, suit
or proceeding with legal counsel approved by Seller in its sole discretion.
(b) Soil Test. In the event Buyer's soil test of the Property reveals any
---------
unanticipated soil conditions that would (i) prevent construction of the
Expansion Project or a comparable building on the Property or (ii) increase the
cost thereof by more than Two Hundred Thousand Dollars ($200,000), then, except
as hereinafter provided, Buyer shall have the option of terminating this
Agreement, in which event the Deposit, together with all interest thereon, shall
be refunded to Buyer, whereupon all obligations of the parties hereto shall
cease and this Agreement shall be void and without recourse to the parties
hereto except with respect to provisions hereof which specifically survive
termination; provided, however, that Buyer must exercise such option, if at all,
by delivering written notice of such termination to Seller, together with a
complete copy of such soil report and all exhibits thereto, within the period
ending at 5:00 P.M., local time, on the date that is twenty (20) days following
the date of this Agreement, time being of the essence. Notwithstanding the
foregoing, Buyer's termination shall be ineffective, and this Agreement shall
continue in full force and effect, if Seller gives written notice to Buyer,
within twenty (20) days after receipt of Buyer's termination notice, evidencing
Seller's agreement to reimburse Buyer (promptly after payment by Buyer) for all
costs in excess of $200,000 incurred by Buyer with respect to such unanticipated
soil conditions.
12. MISCELLANEOUS.
-------------
(a) Tax Identification Number. Seller warrants and represents that
-------------------------
Seller's federal tax identification number is 65-0874148, and Buyer warrants and
represents that Buyer's federal tax identification number is ______________.
Seller and Buyer each acknowledge that the foregoing information will be relied
upon in reporting the transactions contemplated hereby to appropriate
governmental authorities.
(b) Agreement Not an Offer. The submission of any draft of this Agreement
----------------------
or any portion thereof does not constitute an offer to buy the Property, it
being acknowledged and agreed that neither Buyer nor Seller shall be legally
obligated with respect to the purchase or sale of the Property unless and until
this Agreement has been executed by both Buyer and Seller and a fully executed
copy has been delivered to each of Buyer and Seller, and Seller has acquired
title to the Property.
(c) Exhibits. The Exhibits attached hereto are incorporated herein by this
--------
reference and made a part hereof.
(d) Notices. All notices or communications required or permitted hereunder
-------
shall be in writing and delivered by hand or mailed by certified mail, return
receipt requested, postage and registration or certification charges prepaid, or
by nationally recognized overnight courier service, or by telefax, to the party
entitled thereto as follows:
Page 16
If to Seller:
Workplace Holdings, Ltd.
222 Lakeview Avenue, 17th Floor
West Palm Beach, FL 33401
Attention: Patrick J. DiSalvo
With a courtesy copy to:
Lawrence B. Juran, P.A.
222 Lakeview Avenue, 17th Floor
West Palm Beach, FL 33401
Attention: Lawrence B. Juran, Esquire
If to Buyer:
Intelligent Life Corporation
11811 U.S. Highway One, Suite 101
North Palm Beach, Florida 33408
Attn: ______________________
With a courtesy copy to:
Lewis F. Crippen, Esq.
Gunster, Yoakley
777 S. Flagler Drive
Suite 500 East
West Palm Beach, FL 33401
or such other party(ies), address(es) or telefax number(s) as either party shall
specify by written notice to the other from time to time. Any such notice or
communication shall be deemed to have been given as of the date of its receipt
or delivery. Any legal counsel designated above or any substitute counsel as
designated by Seller and/or Buyer by written notice to the other party is
authorized to give (but not receive) notices under this Agreement on behalf of
its respective client.
(e) Time is of the Essence. TIME IS OF THE ESSENCE with respect to each
----------------------
provision of this Agreement which requires that action be taken by either party
within a stated time period, or upon a specified date.
(f) Attorneys' Fees and Costs. In the event of any dispute or litigation
-------------------------
arising out of this Agreement, the prevailing party shall be entitled to recover
all fees, expenses and costs incurred, including reasonable attorneys' fees at
both trial and appellate levels.
(g) Venue. The venue of any litigation arising out of this Agreement shall
-----
be Palm Beach County, Florida.
(h) Captions. The descriptive captions contained herein are for
--------
convenience only and shall not control or affect the meaning or construction of
any provision hereof.
Page 17
(i) Binding Effect. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Florida, and shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective legal
representatives, successors and assigns.
(j) Broker.
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(i) Each of Buyer and Seller hereby represents, covenants and warrants to
the other that the party so representing has dealt with no broker or other
person entitled to a commission in connection with the negotiation or execution
of this Agreement or the consummation of the transactions contemplated hereby,
with the exception of Ben DeVries ("Broker"). If, as and when the transaction
contemplated by this Agreement closes in accordance with the terms and
provisions hereof, Seller shall pay to Broker, in full satisfaction of all
commissions, fees or compensation of any kind owed or owing to Broker arising
out of or related to the transaction contemplated by this Agreement, the sum
equal to four percent (4%) of the Purchase Price (the "Property Sale
Commission"). As a condition thereof, Broker shall execute and deliver to
Seller such documents and instruments as Seller may reasonably request to
evidence the full and complete satisfaction of any claims or demands of Broker
for any commissions, fees or compensation of any kind owed or owing to Broker
arising out of or related to the transaction contemplated by this Agreement and
Broker shall be solely responsible for all commissions, fees or compensation of
any kind owed or owing to any broker, salesperson or finder claiming by, through
or under Broker or having dealt with Broker in connection with the transaction
contemplated by this Agreement. Broker shall not be due any commission, fee or
compensation of any kind in the event the transaction contemplated by this
Agreement fails to close for any reason whatsoever and, in such event, it shall
not be entitled to all or any portion of the Deposit. Each of Buyer and Seller
agrees to indemnify and hold harmless the other from any loss, cost or expense
which such non-indemnifying party may incur as a result of any inaccuracy in the
other party's warranties and representations as set forth in this subsection.
(ii) In the event that Buyer exercises the Expansion Option and Buyer and
the Repurchaser enter into the Expansion Project Lease, Broker shall be due a
commission equal to Six Dollars ($6.00) per square foot of the Expansion
Project, or a total of One Hundred Twenty Thousand and 00/100 Dollars ($120,000)
(the "Expansion Project Lease Commission"), which shall be payable to Broker by
the Repurchaser on the same payment schedule and subject to the same terms and
conditions as the Commission Agreement of even date herewith between Broker and
WK3 Investors with respect to the Initial Project; provided, however, that the
full amount of the Property Sale Commission shall be credited against the
Expansion Project Lease Commission, which shall reduce the Expansion Project
Lease Commission from $120,000 to $95,650.
(k) Entire Agreement; Rules of Construction. This Agreement may be
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executed in multiple counterparts; sets forth the entire agreement between the
parties; merges all prior and contemporaneous agreements, understandings,
warranties, or representations; shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns; and may be
canceled, modified or amended only by a written instrument executed by both
Seller and Buyer.
(l) Further Assurances. Upon Seller's request, Buyer agrees to execute and
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deliver to Seller such additional instruments, certificates and documents as
Seller may reasonably require, whether or not after the Closing Date, in order
to provide Seller with the rights and benefits to which Seller is entitled under
this Agreement.
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(m) No Recording. Buyer may not record this Agreement or a memorandum
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thereof or of the rights granted herein without the prior written approval of
Seller, which approval may be withheld in Seller's sole and absolute discretion.
(n) No Assignment. Buyer may not assign or transfer this Agreement or
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any right or interest herein without the prior written consent of Seller, which
consent may be withheld in the sole and absolute discretion of Seller. Seller
may assign or transfer this Agreement or any right or interest herein to any
person or entity whatsoever without the consent of Buyer, provided that Seller
shall remain liable for its obligations under this Agreement.
(o) Confidentiality. During the term of this Agreement and at all times
---------------
thereafter, neither Buyer nor any of its directors, officers, employees, agents
or attorneys shall in any manner, directly or indirectly, divulge, disclose or
communicate to any person or entity any information of any kind concerning any
matters affecting or relating to Seller nor the terms or provisions of this
Agreement, provided that the foregoing shall not apply to any disclosures or
filings required of Buyer as a company whose shares are registered or traded on
a securities exchange.
(p) Survival. The terms of the following Sections shall survive the
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Closing or any termination of this Agreement: Section 2, Section 4, Section 9,
Section 10, Section 11, and Section 12.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused it
to be executed by their respective duly authorized representatives, as an
instrument under seal as of the day and year first above written.
WITNESSES: BUYER:
INTELLIGENT LIFE CORPORATION, a Florida
corporation
By: __________________________________
__________________________ Name:__________________________________
Title:_________________________________
__________________________
SELLER:
WORKPLACE HOLDINGS, LTD., a Florida limited
partnership
By: Workplace Investors, Ltd., a Florida
limited partnership, its general partner
By: Workplace Equity Corporation, a Florida
corporation, its general partner
By:_____________________________________
__________________________ Name:___________________________________
Title: _________________________________
__________________________
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ESCROW AGENT:
GUNSTER, YOAKLEY, VALDES-FAULI & STEWART, P.A.,
a Florida professional corporation
By:____________________________________
__________________________ Name:__________________________________
Title:_________________________________
__________________________
Schedule of Exhibits
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Exhibit 1(a) Sketch of Property
Exhibit 7(b) Consent and Waiver
Page 20
Exhibit 1(a)
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Sketch of Property
Page 21
Exhibit 7(a)
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PREPARED BY AND RETURN TO:
Lawrence B. Juran, Esq.
222 Lakeview Avenue, 17th Floor
West Palm Beach, FL 33401
CONSENT AND WAIVER
NORTHERN PALM BEACH COUNTY WATER CONTROL DISTRICT
UNITS OF DEVELOPMENT NUMBER 9, 9A, 9B and 28
THE UNDERSIGNED, having purchased the property more particularly
described in Exhibit "A" attached hereto and made a part hereof which is located
within Northern Palm Beach County Improvement District, Units of Development
Number 9, 9A, 9B and 28 and being otherwise fully informed in the premises does
hereby acknowledge, consent and agree as follows:
W I T N E S S E T H :
WHEREAS, Northern Palm Beach County Improvement District f/k/a
Northern Palm Beach County Water Control District (hereinafter referred to as
the "District"), is a political subdivision of the State of Florida, having been
created by Chapter 59-994, Laws of Florida, Act of 1959, as amended and
supplemented; and
WHEREAS, in accordance with Chapter 59-994, Laws of Florida, Act of
1959, as amended and supplemented, and Chapter 298 of Florida Statutes, the
Board of Supervisors of the District have the authority to create Units of
Development and have done so by creating Units of Development Number 9, 9A, 9B
and 28, the lands of which are fully contained within the boundaries of the
District and include the real property described in Exhibit "A" attached hereto,
which has been purchased by the undersigned; and
WHEREAS, the District, in accordance with the aforementioned Act and
Chapter 298 of Florida Statutes, also has the authority to adopt and
subsequently amend, if necessary, Water Management Plans for Units of
Development and does intend to adopt a Water Management Plan for Units of
Development Number 9, 9A, 9B and 28; and
WHEREAS, the District, prior to implementing a Water Management Plan
or any amendment thereto, is required to file with the Fifteenth Judicial
Circuit in and for Palm Beach County, Florida, a Petition for Approval of the
Water Management Plan or any amendments thereto; and
WHEREAS, subsequent to the filing of the aforementioned Petition for
Approval, three (3) Commissioners are appointed by the Court to prepare a
Commissioner's Report setting forth their assessment of the benefits or damages,
if any, that will accrue to the real property located within said Unit due to
the implementation of the Water Management Plan or any amendments thereto; and
WHEREAS, the District is required, following preparation of the
aforementioned Report of Commissioners to send to each owner of real property
located within the Unit of Development for which said Water Management Plan or
amendment thereto is being proposed, copies of the following:
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(a) Report of Commissioners; and
(b) A conformed copy of the published Notice of Filing of the Report
of Commissioners; and
WHEREAS, the undersigned, together with all other real property owners
within Units of Development Nos. 9, 9A, 9B and 28, have the statutory right to
file exceptions with the Fifteenth Judicial Circuit Court in and for Palm Beach
County, Florida, to all or any part of any Commissioners' Report filed for the
Water Management Plan or amendments thereto for Units of Development Nos. 9, 9A,
9B and 28.
WHEREAS, the District in order to implement a Water Management Plan
for Units of Development Nos. 9, 9A, 9B and 28, will be required to issue bonds
in accordance with Chapter 75 of Florida Statutes and, in order to issue said
bonds, the District will be required to publish an Order to Show Cause setting
forth the filing of the Complaint for Validation of said Bonds and the Hearing
date for same; and
WHEREAS, the undersigned as a real property owner within Units of
Development Nos. 9, 9A, 9B and 28 has the statutory authority to be present at
the Hearing held on the aforementioned Order to Show Cause and at said Hearing
is entitled to set forth the undersigned's position as to whether or not the
District should be authorized by the Court to issue the proposed bonds.
NOW, THEREFORE, the Undersigned does hereby
acknowledge, consent and agree as follows:
1. The undersigned hereby waives its right to receive and the
requirement of the District to serve upon it a copy of the Report of
Commissioners assessing benefits or damages, if any, for the Water Management
Plan or Amendments thereto filed for Northern Palm Beach County Water Control
District, Units of Development Nos. 9, 9A, 9B and 28.
2. The undersigned hereby waives any and all rights and/or
requirements of the District to serve a copy of the Notice of Filing in the
Fifteenth Judicial Circuit in and for Palm Beach County, Florida, of any
Commissioners Report on a Water Management Plan or amendments thereto for
Northern Palm Beach County Water Control District, Units of Development Nos. 9.
9A, 9B and 28.
3. The undersigned hereby waives any and all rights to file
exceptions as to all or any part thereof of any Commissioners' Report that is
filed for a Water Management Plan or Amendments thereto for Northern Palm Beach
County Water Control District, Units of Development Nos. 9, 9A, 9B and 28.
4. The undersigned hereby consents to the entry of an Order and all
subsequent Orders that are entered by the Fifteenth Judicial Circuit in and for
Palm Beach County, Florida, approving any Report of Commissioner's filed for the
Water Management Plan or amendments thereto for Northern Palm Beach County Water
Control District, Units of Development Nos. 9, 9A, 9B and 28.
5. The undersigned hereby consents and agrees to the entry of an
Order by the Fifteenth Judicial Circuit in and for Palm Beach County, Florida,
for validation of any and all bonds that the District may submit to said Court,
the proceeds of which will be used to implement and/or construct the Water
Management Plan or amendments thereto for Northern Palm Beach County Water
Control District, Units of Development Nos. 9, 9A, 9B and 28.
6. The undersigned does hereby acknowledge, consent and agree that
this Consent and Waiver shall be binding on the undersigned, and all of said
undersigned's successors and/or assigns.
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7. The undersigned does hereby acknowledge, consent and agree, that
the undersigned had the opportunity, if the undersigned so desired, to have this
document reviewed by the undersigned's own legal counsel prior to the signing of
same.
8. The undersigned does hereby consent to the recording of this
instrument in the Public Records in and for Palm Beach County, Florida.
Executed this ______ day of ___________, 19__.
Signed, sealed and delivered
in the presence of: _______________________
Witness
_________________________ By:________________________
Printed Witness Name:
Name: _____________________
_________________________
Witness Title:_____________________
_________________________
Printed Witness Name:
STATE OF FLORIDA
COUNTY OF __________________
The foregoing instrument was acknowledged before me this _____ day of
______, 1999, by ___________________________, as __________________ of
______________, who is personally known to me or who has produced
___________________________ as identification.
__________________________
Printed Name:
Notary Public, State of Florida
Serial Number:
My Commission Expires:
(NOTARY SEAL)
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