EXHIBIT 10.4
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the "First Amendment") made
and entered into as of the 29th day of June, 1998 by and between Codina
Development Corporation, a Florida corporation (the "Developer") and The Vincam
Group, Inc., a Florida corporation (the "Agent"), as agent for Fleet Real
Estate, Inc., a Rhode Island corporation (the "Owner"), pursuant to that certain
Agency Indemnity and Support Agreement dated as of December 9, 1997 and entered
into by and between the Owner and the Agent (the "Agency Agreement").
W I T N E S S E T H:
WHEREAS, the Developer and the Agent have entered into that certain
Development Agreement, dated as of September 12, 1997 (the "Agreement"); and
WHEREAS, Developer and Agent have agreed to amend the Agreement in the
manner set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties do hereby
agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated into this First Amendment as if fully set forth herein.
2. CONTRACT TIME. The date "June 1, 1998" set forth in the second line
of the definition of "Contract Time" in Article 2 of the Agreement is hereby
changed to "October 1, 1998."
3. GUARANTEED FINAL COMPLETION DATE. The date "July 31, 1998" set forth
in the first and sixth lines of the definition of "Guaranteed Final Completion
Date" in Article 2 of the Agreement is hereby changed to "November 30, 1998."
4. BONUS. Section 7.3.1 of the Agreement is hereby deleted in its
entirety and the following is hereby substituted therefor:
The Developer shall achieve Substantial Completion of the Project
within the Contract Time. Subject to the terms of this paragraph, in
the event that the Date of Substantial Completion is a date earlier
than September 15, 1998 (the "Bonus Date"), the Agent shall be
obligated to pay to the Developer, as a bonus the sum of Three
Thousand Three Hundred and Thirty-Three No/100 Dollars ($3,333.00)
per day, for each and every day by which the Date of Substantial
Completion precedes the Bonus Date. Notwithstanding anything
contained herein, or elsewhere in the Agreement, to the contrary, in
no event shall (a) the Agent be obligated to the Developer for the
payment of a bonus in excess of Seventy-Five Thousand and No/100
Dollars ($75,000.00)
or (b) the Bonus Date be extended, unless an Authorized Extension is
granted (i) for a delay for which the Agent is directly responsible
or (ii) for a delay caused by an Event of Force Majeure, in which
case the maximum number of days by which the Bonus Date may be
extended is sixty (60) days.
5. LIQUIDATED DAMAGES. Section 7.3.2 of the Agreement is hereby deleted
in its entirety and the following is hereby substituted therefor:
The Agent and the Developer agree and acknowledge that the Agent
shall suffer substantial damages in the event that the Developer
fails to achieve Substantial Completion of the Project, by itself or
through others, within the Contract Time. The Agent's damages are
not readily ascertainable as of the date of this Agreement.
Therefore, if the Developer fails to achieve Substantial Completion
of the Project, by itself or through others, within the Contract
Time, the Developer shall be obligated to pay to the Agent: (a) as
liquidated and agreed damages, and not as a penalty, liquidated
damages in the amount of Four Thousand Five Hundred and No/100
Dollars ($4,500.00) per day, for each and every day that the
Developer fails to achieve Substantial Completion after October 7,
1998 through and including January 21, 1998 (the "LD Period"). The
Developer shall, in no event, be obligated to the Agent for the
payment of liquidated damages in excess of Four Hundred Seventy-Five
Thousand and No/100 Dollars ($475,000.00). In the event that the
Developer fails to achieve Substantial Completion prior to the
expiration of the LD Period, the liquidated damages provision shall
be null and void and of no further force or effect and the Agent
shall be entitled to recover from the Developer actual damages,
meaning damages caused by the Developer's delay in achieving
Substantial Completion, including any necessary rental and moving
expenses incurred by the Agent and reasonable attorneys' fees and
expert witness fees, but excluding other consequential damages which
accrue after the expiration of the Contract Time. The Developer
expressly agrees that the Agent shall have the right to deduct any
amounts due for liquidated damages or actual damages from any and
all amounts required to be paid by the Agent under this Agreement.
6. ENTIRE AGREEMENT. Except as expressly modified and amended herein,
all of the terms, covenants, conditions and provisions of the Agreement shall
remain unchanged and in full force and effect. Except as set forth herein,
nothing contained herein shall in any way invalidate, impair or release any
covenant, condition, agreement or stipulation contained in the Agreement, or
shall otherwise impair or affect the validity of the Agreement.
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7. NO FURTHER OBLIGATIONS. Nothing herein shall be deemed or construed
as creating any obligation of the Agent to further extend the time for
completion of the Project, or to grant any further extension to the Developer,
or to consider any request of the Developer of any of the foregoing.
8. NO THIRD PARTY BENEFICIARIES. Nothing expressed or implied in this
First Amendment is intended, or shall be construed, to confer upon or give any
person other than the parties hereto and their respective legal representatives,
successors and assigns, any rights or remedies under or by reason of this First
Amendment.
9. SEVERABILITY. In the event any one or more of the words, phrases,
sentences, clauses, sections or subsections contained in this First Amendment or
any part hereof, all of which are inserted conditionally on their being valid in
law, shall be declared invalid, this First Amendment shall be construed as if
such word or words, phrase or phrases, sentence or sentences, section or
sections, or subsection or subsections, had not been inserted.
10. SUCCESSORS AND ASSIGNS. This First Amendment shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns.
11. SECTION HEADINGS. The section and other headings contained in this
First Amendment are for reference purposes only and shall not affect the meaning
or interpretation of this First Amendment.
12. ENTIRE AGREEMENT. This First Amendment constitutes the entire
agreement among the parties hereto, and supersedes all prior agreements,
understandings, negotiations and discussions, both written and oral, among the
parties hereto, with respect to the subject matter hereof, all of which prior
agreements, understandings, negotiations and discussions, both written and oral,
are merged into this First Amendment. Nothing herein is intended to supersede or
annul any express written term or provision of the Agreement, as amended by this
First Amendment.
13. TIME OF ESSENCE. Time is of the essence under this First Amendment
and each of the transactions contemplated to be consummated hereunder.
14. MODIFICATIONS. This First Amendment may not be amended or modified
in any way except by a written instrument executed by all of the parties hereto.
15. LIMITED MODIFICATION OF AGREEMENT. Except as may be expressly
modified hereby, all other covenants, terms and conditions contained in the
Agreement shall remain unchanged and in full force and effect.
16. GOVERNING LAW. This First Amendment shall be construed in
accordance with and governed by the laws of the State of Florida without regard
to the principles of conflicts of laws thereunder.
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17. COUNTERPARTS. This First Amendment may be executed in any number of
counterparts, all of which shall be deemed to be an original, and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed in four (4) counterparts, each of which shall constitute an
original and all of which, taken together, shall constitute a single instrument,
by and through their duly authorized representatives, as of the date first
written above.
DEVELOPER:
Signed, sealed and delivered in CODINA DEVELOPMENT
the presence of: CORPORATION, a Florida corporation
/S/ KATHLEEN YONCE By: /s/ O. FORD GIBSON
- - -------------------- -------------------------------
Name: KATHLEEN YONCE Name: O. FORD GIBSON
Title: PRESIDENT
/s ANIS C. HERNANDEZ
- - -------------------------
Name: ANNIS c. HERNANDEZ
AGENT:
THE VINCAM GROUP, INC., a Florida
corporation
/s/ L. F. SIGNORA By: /s/ JOHN T. CARLEN
- - ------------------------- -------------------------------
Name: L. F. SIGNORA Name: JOHN T. CARLEN
Title: PRESIDENT
/s/ FANNY MONCADA
- - ------------------------
Name: FANNY MONCADA
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ACKNOWLEDGMENT, CONSENT AND JOINDER
The undersigned hereby acknowledges receipt and review of this First Amendment
to the Development Agreement and acknowledges, agrees and consents the terms
and provisions hereof.
OWNER:
Signed, sealed and delivered in FLEET REAL ESTATE, INC.,
the presence of: a Rhode Island corporation
/s/ CAROLINE HUBBARD By: /s/ JAY C. HART
- - ------------------------- -------------------------------
Name: CAROLINE HUBBARD Name: JAY C. HART
Title: SENIOR VICE PRESIDENT
/s/ JENNIFER DUMAS
- - ------------------------
Name: JENNIFER DUMAS
LENDER:
FLEET NATIONAL BANK, as Agent
/s/ LORI H. JOU By: /s/GINGER STOLZENTHALER
- - ------------------------- -------------------------------
Name: LORI H. JOU Name: GINGER STOLZENTHALER
Title: SENIOR VICE PRESIDENT
/s CARL S. GERAGNTY
- - -------------------------
Name: CARL S. GERAGNTY