APPLICATION
CITY OF BOYNTON BEACH
ill ~@~owrn 00
In JAN I 4 1991
I"
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PLANNING AND
"ATION ZONING DEft
BOARD OF ZONING APPEALS VARIANCE APPLI
Submittal Deadline: See schedule of dates for Board meetings and submitta:
dates
Please print {in ink} or type
Submittal date: 01/14/97
Th~ undersigned owner(s) hereby respectfully petition(s} the Board of
AdJustment to grant to petitioner(s} a special exception or variance to thE
existing Zoning or Sign Code of said City pertaining to the property
hereinafter described and in support thereof state(s):
N/A
, Subdivision
Boynton
Parcels 3D, 3E, 3F and
Lot(s} a portion of Parcels 3C
3G and JH. '
Commerce Center
Property involved is described as follows:
Block
Plat Book
46
, Page 126-127 or otherwise described as follows:
Property Address 190Qt-2118 Corporate Drive, Boynton Beach, FL 33426
The following documents are required to be submitted with this application to
form a single package. Incomplete package will not be accepted:
1. Two sealed surveys by a registered surveyor in the State of Florida, not
over six (6) months old, indicating:
A. All property lines
B. North arrow
C. Existing structures and paving
D. Existing elevations
E. Rights-of-way, with elevations
F. Easements on or adjacent to the site
G. Utilities on or adjacent to the site
'H. Legal description
I. Number of acres to the nearest one-hundredth (1/100) of an acre
J. Location sketch of property
K. Surveyor's Certificate
2. Two site plans properly dimensioned and to scale showing:
A. All proposed structures
B. All existing structures that are to remain on site
C. Setback lines for all structures drawn perpendicular from the
properly lines to the closest vertical wall of structures
D. Use of each structure (or uses within multiple occupancies)
E. Use of adjacent properties including right-of-way lines for all
streets and alleys, sidewalks, turn lanes and driveways
F. Elevations of the lowest finished floor of all structures on the
site
3. Certified list of names and post office addresses of property owners and
legal descriptions of their property within 400 feet of subject
property, as recorded in the County Courthouse. Such list shall be
accompanied by an Affidavit (see attached) stating that to the best of
the applicant's knowledge, said list is complete and accurate.
4. Proof of ownership of property by petitioner (s), such as deed or
purchase contract agreement. If an aoent is submitting the petition, a
notarized copy of a letter desiqnatinq him as such must accompany the
petition.
5. Statement of special conditions, hardships or reasons justifying the
requested exception or variance. Respond to the six (6) questions below
(A-F) on a separate sheet (Please print or tyPe) :
A.
That special conditions and
to the land, structure or
applicable to other lands,
zoning district;
circumstances exist which are peculiar
building involved and which are not
structures or buildings in the same
-~-_._----_._-~-_.
Page 2 of 3
B. That the special conditions and circumstances do not result from
the actions of the applicant;
C. That granting the variance requested will not confer on the
applicant any special privilege that is denied by this Ordinance to
other lands, buildings or structures in the same zoning district;
D. That literal interpretation of the provisions of this chapter would
deprive the applicant of rights commonly enjoyed by other
properties in the same zoning district under the terms of the
Ordinance and would work unnecessary and undue hardship on the
applicant;
E. That the variance granted is the minimum variance that will make
possible the reasonable use of the land, building or structure;
F. That the granting of the variance will be in harmony with the
general intent and purpose of this chapter and that such variance
will not be injurious to the area involved or otherwise detrimental
to the public welfare.
6. An application fee in the amount of $400.00, payable to the City of
Boynton Beach, must accompany a completed application. The $400.00
application fee covers a request to vary one (1) section of the Code.
Seeking relief from more than one section of the Code will require
payment of $100.00 for each additional Code section.
Menorah Realty, Ltd.
7. Name and address of owner: c/o Colliers Lehrer Adler, as Agent
Colliers Lehrer Adler, as Agent
8. Name of applicant: By: Alan M. Gainsborg. Construction Manager
Applicant's address:
Applicant's phone #:
4850 W. Prospect Road, Ft. Lauderdale, FL
(954) 731-6500, ext. 332
33309
Date:
01/13/96
Signature of Applicant:
O~,-/J~L~~
c..vv-~.:-.-:.-*-~.- ~
-----------------------------------------------------------------------
To be completed by the Building Official or Representative
1. Property is presently zoned: F I 7 Formerly zoned:
2. Property Control Number: OrJ- A /!J ~ A r;" 02 ..- 1A- - 0 ')/)./ .' JJA 0
3. Denial was made upon existing zoning or sign requirements ( list
sections[s] of Code from which relief is required):
L--.oo I (MA~\1::' R, Q - :zor-J'N&I -"cX\JT'lof'-1 7, ~.. 1-1
f
4. Nature of exception or variance required: .(:::'Pf); ) Xfi)t\ OJ; 'l1[.
~1 P 'f'jY?{2AL GQ If'J be I_T'
.
TO ~,,:; r f f Y
Date: :rAt.) 'G, 1~ (
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f?C Ov'.) r Pro r
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Permit denied:
Building Department
J ,C,
5.
Case Number:
L'~O
Meeting Date:
F~€> Q(I lo<q7
To be filled out by Board
BOARD OF ADJUSTMENT ACTION: Approved
Aye
Denied
Nay
Stipulations:
Signed:
Chairman
Page 3 of 3
CERTIFICATION
TO THE BEST OF MY KNOWLEDGE AND BELIEF, THE ATTACHED LIST IS A TRUE AND
CORRECT LIST OF PROPERTY OWNERS WITHIN FOUR HUNDRED (400) FEET OF THE
APPLICANT'S PROPERTY.
Collier
APPLICAT.WP5
Page 3 of 3
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RESPONSES TO QUESTION #5
BOARD OF ZONING APPEALS
VARIANCE APPLICATION
A. SPECIAL CONDITIONS AND CIRCUMSTANCES: The project consists of three
office/warehouse buildings totaling approximately 215,000 square feet. The original
approved master plan modification (File No. MPM 679), dated July 14, 1992, for the
project allows an additional 69 parking spaces at the east end of Parcels 3-D, 3-E and 3-F.
This plan also requires a 15'0"~ landscape buffer area at the north end of the east property
line, reducing to a 6'0"~ requirement at the south end of the east property line.
These minimum requirements cannot be met because of the 18'0" parking space
requirement and the 27'0" back out requirements of the City of Boynton Beach parking
code requirements. Therefore, we are requesting a reduction of the minimum landscape
buffer requirements to 11'0" on the north end of the east property line and to 3'6" on the
south end of the east property line. We will accommodate this change by reducing the sod
required for this area and without reducing the plant material requirements of the City of
Boynton Beach landscape codes. (see attached approved landscape plan).
B. The above special conditions and circumstances do not result from the actions of the
applicant, Menorah Realty, Ltd.
C. The granting of this variance request will not confer on the applicant any special privilege
that is denied by ordinance to other lands, buildings, or structures in this zoning district.
D. The literal interpretation of the provisions of this chapter would deprive the applicant of
rights commonly enjoyed by other properties in the same zoning district under the terms of
the ordinance and would work unnecessary and undue hardship on the applicant.
E. The variance requested and granted is the minimum variance that will make possible the
reasonable use of the land, buildings or structure.
F. The granting of the variance will be in harmony with the general intent and purpose of this
chapter and that such variance will not be injurious to the area involved or otherwise
detrimental to the public welfare.
MENORAH REALTY
I? I:' ~1r1'~~1 r.~,;
L~ "'-' '-"
II W rn
~
8479 Place l)evon,~hire, A-font-Ro"YaJ. Quebec H4Pl..~~ Canada
TeJephO/le (514) 344-5010 Fax (514) 342-4473
PLANNING AND
ZONING DEn
January 10, 1997
To: City of Boynton Beach
Board of Zoning Appeals
Ref: Boynton Commerce Center
Corporate Drive, Boynton Beach
Sir/Madam,
This letter will confirm that Mr. Alan M. Gainsborg, of Colliers Lehrer, is hereby appointed to
act on my behalf in the matter of the request for a zoning variance necessary to complete the east
side parking lot at the above noted property.
Yours very truly,
Menorah Realty, Ltd.,
a Florida limited partnership
By: Dalfen's Atlantic Enterprises, Inc.
a Canadian corporation, its sole general partner
Per:
Province of Quebec
City of Montreal
The foregoing instrument was acknowledged before me this 10th day of Janaury 1997, by Murray Dalfen, president
of Dalfen's Atlantic Enterprises, Inc., as general partner of Menorah Realty Ltd., a Florida limited partnership. He is
personally known to me.
,; / f7;'
011 a Shalinsky
Commissioner of Oaths, ,100-026
My commission expires: May 1997
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PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, dated as of the 11'kday of ~ .1995, is made by and
between Boynton Commerce Center Limited Partnership, a Florida limited partnership (the "Seller"), with
an office at 250 Australian Avenue South, Suite 400, West Palm Beach, Florida 33401, and Dalfen Holding
Company, a Florida corporation, with an office at clo Dalten's Limited, 8479 Place Devonshire, Ville Mont-
Royal, Quebec H4P 1 S5, CANADA (the "Purchaser"),
RECITALS:
The Seller desires to sell and transfer certain improved real property known as Boynton Commerce
Center located at Boynton Beach, Palm Beach County, Florida, along with certain related personal
property, and the Purchaser desires to purchase and acquire such real and personal property.
The Boynton Commerce Center is an approximately 214,332 square foot center consisting ofthree
(3) industrial buildings located at 1902-1914 Corporate Park, Boynton Beach, Florida 33069.
On or about November 3, 1995, the Seller received from the Purchaser a letter of intent (the "Letter
ot Intent") for the purchase and sale ot such real property, the terms at which shall be deemed
superseded by this Agreement.
NOW, THEREFORE, in consideration of the foregoing, ot the mutual covenants, promises and
undertakings set forth herein, and for good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, the Seller and the Purchaser hereby agree as follows:
ARTICLE I.
THE PROPERTY
A. Subject to all the terms, conditions and provisions of this Agreement, and for the
consideration herein set forth, the Seller agrees to sell and transfer, and the Purchaser agrees to purchase
and acquire, all of the Seller's right, title, and interest in and to the following:
1, That certain real estate located in Boynton Beach, Palm Beach County, Florida,
and more specifically described in Exhibit "A" which is attached hereto and incorporated herein by
reference (the "Land");
2. The buildings, parking areas, fixtures and improvements now situated on the Land
(the "Improvements");
3. All furniture and equipment currently used in the operation, repair and
maintenance of the Land and Improvements and situated thereon (collectively, the "Personal Property"),
listed on the inventory attached hereto as Exhibit "B" and incorporated herein by reference. The Personal
Property to be conveyed is subject to depletions, replacements and additions in the ordinary course of
the Seller's business;
4. All easements, tenements and appurtenances belonging to or inuring to the benefit
of the Seller and pertaining to the Land and Improvements, if any;
5. All leases of the Land and the Improvements (the "Leases"), and all security
deposits actually paid to or received by the Seller (and not returned or forfeited by the tenants
thereunder) .
All of the above is hereinafter referred to as (the "Property").
8. The Property is being sold in an "AS IS" condition as of the date of this Agreement. The
Purchaser acknowledges that except as specifically set forth in this Agreement, no representations or
warranties have been made or are made and no responsibility has been or is assumed by the Seller or
by any partner, officer. person, firm, agent or representative acting or purporting to act on behalf of the
Seller as to the condition or repair of the Property or the value, expense of operation, or income potential
thereof or as to any other fact or condition which has or might affect the Property or the condition, repair,
value, expense of operation or income potential of the Property or any portion thereof. The parties agree
that all understandings and agreements heretofore made between them or their respective agents or
representatives are merged in this Agreement and the Exhibits hereto annexed, which alone fully and
completely express their agreement, and that this Agreement has been entered into after full investigation,
neither party relying upon any statement or representation by the other unless such statement or
representation is specifically embodied in this Agreement or the Exhibits annexed hereto. Further, to the
extent that the Seller has provided to the Purchaser information from any inspection, engineering or
environmental reports concerning the condition of the Property, the Seller makes no representations or
warranties with respect to the accuracy or completeness of same or otherwise concerning the contents
of such reports. The Purchaser acknowledges that the Seller has requested the Purchaser to inspect fully
the Property and all portions thereof and to rely solely upon the results of the Purchaser's own inspections
or other information obtained or otherwise available to the Purchaser, rather than any information that may
have been provided by the Seller.
C. The Seller agrees to convey, and the Purchaser agrees to accept, title to the Land by
special warranty deed in the condition described in Article I, paragraphs LA. and LB. above and Article
VIII, paragraph 8.1, below, and title to the Personal Property, by bill of sale. with a special warranty as to
the title of such personalty.
ARTICLE II.
PURCHASE PRICE
A. The purchase price (the "Purchase Price") which the Seller agrees to accept and the
Purchaser agrees to pay for the Property is EIGHT MILLION TWO HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($8,250.000). The Purchase Price is to be p~id in cash, as follows:
1. (a) Within seven (7) Business Days following the execution of the Letter of Intent
by Seller and Purchaser, Purchaser shall make an earnest money deposit in the amount of ONE
HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000) (the "Initial Deposit").
(b) On or before the expiration of the Inspection Period (as defined herein), the
Purchaser shall make an additional deposit in the amount of ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000) (the "Additional Deposit") (collectively, the Initial Deposit and the Additional Deposit
with accrued interest thereon shall be referred to hereinafter as the "Deposit.") Subject to Purchaser's right
to terminate this Agreement as provided herein, the Deposit shall be non-refundable, unless the Seller is
proven to have defaulted hereunder.
(c) The Deposit. as installments of same are paid. will be placed and held in
escrow by Chicago Title Insurance Company (the "Title Company") in an interest bearing account at a
mutually acceptable banking institution. Any interest earned by the Deposit shall be considered as part
of the Deposit. Except as otherwise provided in this Agreement, the Deposit will be applied to the
Purchase Price at the Closing (as defined herein). In the event the transaction is not closed. the Deposit
shall be disbursed in accordance with the provisions of this Agreement.
2
2. At the Closing (as defined herein), the Purchaser shall pay the Seller the balance
of the Purchase Price, subject to adjustments and prorations provided for herein, payable in cash or
immediately available funds to the Title Company, for delivery to the Seller as the Seller may direct to a
bank account designated by the Seller via wire transfer in immediately available funds.
B. The consummation of the sale and purchase of the Property pursuant to this Agreement
shall occur at a meeting of the parties (the "Closing"), forty-five (45) days after the end of the Inspection
Period, (as defined herein), on or before February 1, 1996 (the "Closing Date"), at the offices of Chicago
Title Insurance Company, 2393 South Congress Avenue, West Palm Beach, FL 33406, or at such other
time and place as may be agreed upon in writing by the Seller and the Purchaser. If Purchaser has a
valid commitment from a recognized lender, but is not ready to close with that lender on February 1, 1996,
the Purchaser shall have the right upon prior written notice to the Seller to extend the Closing Date for
thirty (30) days. Subject to Purchaser's right to terminate this Agreement as provided herein, the Deposit
shall be non-refundable, unless the Seller is proven to have defaulted hereunder.
C. Should the Closing not occur after the Inspection Period (as defined herein) expires, or
due to any reason other than a default by the Seller or the exercise by the Purchaser of its right to
terminate this Agreement as referenced herein, or should the Purchaser be in default under the terms and
conditions of this Agreement as described herein, then the Deposit and accrued interest thereupon, if any,
will be paid to the Seller pursuant to Article IX. hereof.
ARTICLE III.
PRIOR TO CLOSING
A. Until the Closing, the Seller or the Seller's agent shall:
1. Keep the Property insured in accordance with Seller's current practices against
fire and other hazards, covered by extended coverage endorsement in the full amount of replacement cost
and comprehensive public liability insurance against claims for bodily injury, death and property damage
occurring in, on or about the Property.
2. Operate and maintain the Property substantially in accordance with the Seller's
current practices, and make any and all repairs and replacements reasonably required, in accordance with
the Seller's current practices, and deliver the Property to the Purchaser at Closing in its present condition,
normal wear and tear excepted, provided that in the event of any loss or damage to the Property covered
by Article VI., the Seller shall have an obligation to the Purchaser to repair the Property only if the Seller
so elects and then shall be obligated only to the extent of available insurance proceeds.
3. Maintain the service, management, supply and maintenance agreements relating
to the Property which are listed on Exhibit "C" attached hereto and incorporated herein as referenced (the
"Contracts"), and enter into any service and other contracts substantially in accordance with the Seller's
current practices, or which shall be cancelable, without premium or penalty, on thirty (30) days written
notice. Copies of any such service and other contracts will be provided to Purchaser. After the end of
the Inspection Period, no new service contracts shall be entered into prior to Closing, nor should any
termination, waiver, modification, extension, amendment or renewal of any existing service contract be
entered into prior to Closing, without Purchaser's prior written consent, which will not be unreasonably
withheld, and which shall be deemed given if not denied within three (3) Business Days after Purchaser's
receipt of a written request for consent.
4. Continue its present rental program and efforts at the Property to rent vacant
space, terminate, modify, extend and amend or renew any lease or enter into any new lease substantially
in accordance with the Seller's current practice. After the end of the Inspection Period, no new lease shall
3
be entered into prior to Closing, nor should any termination, waiver, modification, extension, amendment
or renewal of any existing lease be entered into prior to Closing, without Purchaser's prior written consent,
which will not be unreasonably withheld, and which shall be deemed given if not denied within three (3)
Business Days after Purchaser's receipt of a written request for consent. Seller will provide Purchaser a
copy (if written) or written summary (if oral) of all proposals for leasing of the Property made prior to the
Closing Date. If any such lease requires the expenditure of capital or tenant improvement expenditures
by the Seller prior to Closing, such funds expended will be reimbursed to Seller by Purchaser at Closing,
subject to the Purchaser's review and approval of such lease.
5. Furnish the Purchaser with a copy of all written notices received by the Seller of
violation of laws or municipal ordinances, regulations, orders or requirements of departments of building,
fire, labor, health, or other state, city or municipal departments or other governmental authorities affecting
the Property or the use or operation thereof,
6. Not remove any item of Personal Property unless replaced by a comparable item,
with the exception of usage and depletion in the ordinary course of operations.
B. The Seller has delivered to the Purchaser the following items:
1. Maps, surveys, plats, in Seller's possession.
2. As built plans and specifications, in Seller's possession.
3, Existing Owner's Tille Policy.
4. Copies of rent rolls and operating statement for the past 24 months.
5. Copies of accounts receivable reports for the past 24 months.
6. Copies of all engineering and other inspection reports, in Seller's possession,
7. Copies of environmental reports, in Seller's possession.
8, Copies of all Leases and all amendments thereto.
9. Copies of zoning letters and similar due diligence items, in Seller's possession.
10. Copies of all contracts between the Seller and any individual or company
providing services or products to the Property, in Seller's possession.
C. Seller shall provide within ten (10) days following the date hereof, a commitment for title
insurance (the "Commitment") from the Title Company, addressed to the Purchaser, covering the land
and Improvements. The Commitment shall also require the Title Company to issue a simultaneous
mortgagee policy to the lender which is providing financing to the Purchaser ("Lender"), including Florida
Form 9 and variable rate endorsements, all at Purchaser's expense, The Purchaser shall obtain a survey
(the "Survey") of the Property at Purchaser's sole costs and expense.
D. The Purchaser commenced due diligence with respect to the Property on November 3,
1995 and the Inspection Period shall expire forty five (45) days thereafter on December 18, 1995 (the
"Inspection Period"). During the Inspection Period the Purchaser shall complete its physical inspection,
review of title, survey, leases, and all other due diligence items including, but not limited to, its
environmental and engineering studies.
4
E. The Seller agrees to allow the Purchaser or the Purchaser's agent or representative
reasonable access to the Property (during business hours) for purposes of analysis or other tests and
inspections which may be deemed necessary or desirable by the Purchaser. The Seller agrees to
cooperate with the Purchaser in enabling the Purchaser to carry out such tests and inspections (subject
to the rights of tenants). The Purchaser shall not materially alter the physical condition of the Property
without notifying the Seller of its requested tests and obtaining the written consent of the Seller to any
material physical alt~ration of the Property. The Purchaser agrees that, in making any inspections of, or
conducting any testing of, on or under the Property, the Purchaser or the Purchaser's agents will carry
adequate liability insurance and, will provide the Seller with written evidence ot same, will not interfere with
the activity of tenants or any persons providing service at the Property, will not reveal to any third party,
other than the parties referenced in Article X., paragraph F., not approved by the Seller. the results of its
inspections or tests, and will restore promptly the Property to its condition prior to such inspection or test
and repair any physical damage caused by the inspections or tests. The Purchaser shall give the Seller
reasonable prior notice of its intention to conduct any inspections or tests, and the Seller reserves the right
to have a representative present. The Purchaser agrees to provide the Seller with a copy of any inspection
or test report upon the Seller's written request. Upon termination of this Agreement, the Purchaser shall
return to the Seller all due diligence materials referenced at Article III., paragraph 8 and any other copies
of documents, books or records provided to the Purchaser by the Seller or the property manager in
connection with this transaction. The Purchaser agrees (which agreement shall survive Closing or
termination of this Agreement) to indemnity, defend, and hold the Seller free and harmless from and shall
be responsible for any loss, injury, damage, claim, lien. cost or expense, including attorney's fees and
costs, resulting from the inspection and testing of the Property. Any inspections and testing shall be at
the Purchaser's expense.
F. The Purchaser may elect to terminate this Agreement by giving the Seller notice, in writing,
not later than the end of the Inspection Period that it elects to terminate this Agreement. Provided the
Purchaser has complied with the requirements of Article III., paragraph E.. the Seller shall direct the Title
Company to return the Deposit to the Purchaser and neither party shall have any liability to the other
except for the obligations of the Purchaser set out in Article III" paragraph E. above. The Purchaser shall
approve or disapprove the results of its investigation in the exercise of the Purchaser's sole discretion.
After conducting the aforesaid inspections. in the event that such notice is not given to terminate this
Agreement it shall be deemed approved. In the event that the Purchaser gives notice of its election to
proceed or this Agreement is deemed approved by the Purchaser's failure to terminate on or before
expiration of the Inspection Period, the parties shall proceed to Closing in accordance with the terms
hereof,
G. If the Purchaser or the Seller does not elect to terminate this Agreement as contemplated
herein, the Property shall be conveyed to the Purchaser at Closing subject to (i) those items set forth in
the Commitment which the Seller or Title Company have not agreed in writing to cause to be removed;
(ii) the lien for taxes in the year of Closing; (iii) any and all liens and encumbrances (including mechanic's
and materialman's liens) relating to the Property and created (whether or not voluntarily or solely) by,
through or under the Purchaser, its agents. employees or contractors, whether as a result of such party's
actions or omissions; and (iv) the rights of tenants under all Leases (recorded or unrecorded) existing as
of the Closing as listed on the updated copy of the rent roll described in Article III., paragraph B. The
foregoing items III.G. (i) through (iv) shall constitute Permitted Exceptions (the "Permitted Exceptions").
H. The Purchaser shall have a financing contingency period which expires on January 18,
1996, during which the Purchaser shall obtain a written commitment for a fixed rate loan for the principal
amount of at least seventy-five percent (75%) of the Purchase Price. at an interest rate not to exceed seven
and three-quarters percent (7.75%), with twenty-five (25) year amortization. and a term of ten (10) years.
The Purchaser will use reasonable diligence to obtain such loan commitment and, thereafter, shall satisfy
the terms and conditions of the commitment and close the loan, The Purchaser shall pay all loan
5
expenses. If the Purchaser after diligent effort to procure such commitment is unable to acquire same on
or before January 18, 1996 the Purchaser may waive such contingency and the parties shall proceed to
Closing, or the Purchaser may terminate this Agreement and the Deposit shall be returned to the
Purchaser and neither party shall have any liability to the other except for the obligations of the Purchaser
set out in Article III.E. Notwithstanding the foregoing, the Closing shall not be extended beyond March
1, 1996.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
A. The Seller represents and warrants to the Purchaser to Seller's actual (not implied or
constructive) knowledge that:
1. The Seller is a limited partnership duly organized, and validly existing under the
laws of the State of Florida, has duly authorized the execution and performance of this Agreement, and
has the power and authority to sell and convey the Property as provided in this Agreement and to carry
out the Seller's obligations hereunder,
2. Attached hereto is a complete and correct list of all the Leases listed as Exhibit
"0" and the Contracts listed as Exhibit "C" relating to the Property. To Seller's actual knowledge, none of
the Leases has been modified in any respect, except as set forth in any amendments listed for each Lease
as described on Exhibit "0" attached hereto, and each of the Leases is, and shall be on the Closing Date,
in good standing and without material default.
3. The Seller has not received written notice of any condemnation or violation of any
applicable law, regulation or other governmental requirement.
4. The Seller is not a "Foreign Person" within the meaning of the Internal Revenue
Code Section 1445(n(3).
5, No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of
creditors, or petition seeking reorganization or arrangement or other action under Federal or State
bankruptcy laws is pending against or contemplated by the Seller.
6. There are no suits, actions, proceedings, claims or investigations pending or, (to
the Seller's current actual knowledge without special inquiry), threatened against or involving the Seller
or the Property before any court, arbitrator or administrative or governmental body, except as set forth in
Exhibit E.
All of the above representations and warranties are made to the extent of the Seller's knowledge.
The terms "to Seller's actual knowledge" or "knowledge" or "known" as they are used in this Article IV.,
paragraph A. shall mean the actual knowledge of Charles J. Stone, an officer of Seller, as distinguished
from implied, imputed and constructive knowledge, without inquiry.
B. The Purchaser represents and warrants to the Seller that:
1. The Purchaser is a corporation duly organized. and validly existing under the laws
of the State of Florida is authorized to do business in the State of Florida, has duly authorized the
execution and performance of this Agreement, and has the power and authority to purchase the Property
as provided in this Agreement and to carry out the Purchaser's obligations hereunder.
6
2. No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of
creditors, or petition seeking reorganization or arrangement or other action under Federal or State
bankruptcy laws is pending against or contemplated by the Purchaser.
3. The Purchaser will have inspected the Property fully and completelyat its expense
not later than the expiration of the Inspection Period, and will have ascertained to its satisfaction by that
date whether the Property complies with applicable zoning, building, environmental, health and safety and
all other laws, codes and regulations.
4. The Purchaser will have reviewed during the Inspection Period the Leases,
Contracts, expenses and other matters relating to the Property and, except as otherwise provided in this
Agreement, the Purchaser shall assume the Seller's obligations thereunder as of the Closing Date.
C. Each of the Seller and the Purchaser represents to the other that there are no other
brokers included in this transaction except Lang Properties, Inc. (the "Broker"). The Seller will be
responsible for the commission due to Broker, pursuant to the terms and conditions of a separate
agreement between Seller and Broker. The Seller and the Purchaser will indemnify and hold the other
harmless from and against any and all claims, losses, costs, expenses and fees claimed against such
party by any other real estate brokers or other parties prior to or subsequent to Closing claiming a
commission by, through or under the other party. The terms and provisions of this paragraph shall survive
the Closing or termination hereunder.
ARTICLE V.
COSTS
A. The Purchaser will pay the following costs of closing this transaction:
1. The fees and disbursements of its counsel, inspecting architect and engineer;
2. Any stamp or documentary taxes, or intangible taxes with respect to the mortgage,
if any;
3. Any sales or use taxes relating to the transfer of the Personal Property to the
Purchaser, prorated as of the date of Closing;
4. The cost of any special endorsements or any other special requirements of
Purchaser and any additional premium charge for endorsements and/or deletion of exception items issued
in this transaction pursuant to the Commitment, including without limitation, the cost of a simultaneous
issue mortgagee policy and the cost of Form 9 and variable rate endorsements;
5. The cost ot any survey required by the Title Company;
6. Any recording fees;
7. Any other expenses incurred by the Purchaser or its representatives in inspecting
or evaluating the Property or closing this transaction: and
8. One-halt (1/2) of any escrow fees.
B. The Seller will pay the following costs of closing this transaction:
1. The fees and disbursements of its counsel;
7
2. The cost of an owner's policy of title insurance issued in this transaction pursuant
to the Commitment (including the cost of obtaining and recording any corrective instruments);
3. The Broker's commission to the extent any such fee is payable.
4, One-half (1/2) of any escrow fees.
5. Any real estate transfer stamp or documentary tax on the deed.
C. Rents (including tenants proportionate share of building operating costs, finish allowances,
and other amounts due under the Leases), personal property taxes, installment payments of special
assessment liens, sewer charges and operating or utility charges actually collected, billed or paid as of
the Closing Date shall be prorated as of the Closing Date and be adjusted against the Purchase Price due
at the Closing, provided that within thirty (30) days after the Closing, the Purchaser and the Seller will
make a further adjustment for such rents, taxes or charges which may have accrued or been incurred prior
to the date of Closing, but not billed or paid at that date. Rent and all other sums which are due and
payable to the Seller by any tenant but uncollected as of the Closing shall not be adjusted. With respect
to delinquent rentals, the Seller shall collect the same after the Closing directly from the tenant. Nothing
contained herein shall operate to require the Purchaser to institute any lawsuit or other collection
procedure to collect such delinquent rentals. The Purchaser and the Seller agree that any sums received
by the Purchaser from any tenants owing delinquent rentals shall first be applied to delinquent rentals
owed to the Purchaser, second to any rentals owed to the Purchaser for the month in which such sums
are received by the Purchaser and finally to any delinquent rentals owed to the Seller. regardless of the
designation of such sums by the tenant. For amounts due the Seller not collected within three (3) months
atter Closing, the Seller shall have the right to sue to collect same. The Purchaser will cooperate with the
Seller in all reasonable efforts to collect such rent and other amounts due. At Closing, the Seller shall
deliver to the Purchaser a schedule of all such past due uncollected rent and other sums owed by tenants.
0, General real estate taxes payable during the then current year and special taxes or
assessments, if any, relating to the Property shall be prorated as of the Closing Date. If Closing shall occur
before the actual taxes payable during the then current year are known, the apportionment of taxes shall
be upon the basis of taxes for the Property payable during the immediately preceding year, provided that,
if the taxes payable during the current year are thereafter determined to be more or less than the taxes
payable during the preceding year (atter any appeal of the assessed valuation thereof is concluded), the
Seller and the Purchaser, upon request of either party promptly (but no later than thirty (30) days atter the
issuance of the 1995 tax bill, except in the case of an ongoing tax protest) shall adjust the proration of
such taxes and the Seller or the Purchaser, as the case may be, shall pay to the other any amount
required as a result of such adjustment and this covenant shall not merge with the deed delivered
hereunder but shall survive the Closing.
E. Utilities and other customarily proratable expenses, including but not limited to water,
sewer, gas, electricity, trash removal and fire protection service, and any Contracts or agreements for
services to the Property to be transferred to and assumed by the Purchaser, to the extent paid for by the
Purchaser or required to be paid for by Seller for a period atter Closing, shall be prorated as of the
Closing Date, The Seller shall use its best efforts to have all utility meters read immediately prior to
Closing.
F. Any amounts payable to or paid by the Seller under any permit and/or inspection fees
(calculated on the basis of the period covered), insurance premiums (as to those policies. if any, that the
Purchaser continues atter the Closing), and liability for other Property operation and maintenance
expenses and other recurring costs shall be prorated between the parties and appropriate credits given.
8
G. At the Closing, the Seller shall credit the Purchaser against the Purchase Price the amount
of security deposits actually paid to or received by the Seller under the Leases (and not as of the Closing
Date returned to or forfeited by tenants under Leases) and of any prepaid rentals actually paid to or
received by the Seller for periods subsequent to the Closing.
H. Any other costs or charges of Closing this transaction not specifically mentioned in this
Agreement shall be shared by the parties and paid one-half (1/2) by Purchaser and one-half (1/2) by
Seller.
I. Except as expressly provided herein, the purpose and intent as to the provisions of
prorations and apportionments set forth in this Article V. and elsewhere in this Agreement is that the Seller
shall bear all expenses of ownership and operation of the Property and shall receive all income therefrom
accruing through midnight at the end of the day preceding the Closing ancl the Purchaser shOlIl bear all
such expenses and receive all such income accruing thereafter.
J. Common area maintenance charges will be separately reconciled and prorated under each
Lease on the basis of the lease year set forth in each Lease for the payment of common area maintenance
charges. All such common area maintenance charges for the lease year including the Closing received
by either party, whether before or after Closing, shall be retained by such party until determination of the
proration of the respective year. Within thirty (30) days following the termination of each respective lease
year, each party shall report to the other the amount of common area maintenance charges received
under the applicable Lease and the Seller and Purchaser shall reconcile periodic estimates with the actual
amounts collected and adjust between themselves amounts owed for each lease year on account of
common area maintenance charges, based on a fraction, the numerator of which is the number of days
in such lease year prior to Closing and the denominator of which is the total number of days in such lease
year. By applying said fraction to the total percentage received by both parties, the party which has
received more than its share shall forthwith pay over the difference to the other party.
K. Commissions of leasing and rental agents for any lease entered into before the date of
Closing shall be paid by Seller prior to Closing, and reimbursed to Seller at Closing from Purchaser for
all leases entered into after the date hereof, approved in writing (or deemed approved) by Purchaser.
L. At Closing, the amount of prorations and adjustments as aforesaid shall be determined
or estimated to the extent practicable, and monetary adjustments shall be made between Seller and
Purchaser, As the amounts of the respective items become finally ascertained, further adjustment shall
be promptly made between the parties in cash.
ARTICLE VI.
DESTRUCTION OR CONDEMNATION OF PROPERTY
A. If, prior to the Closing Date, condemnation proceedings are commenced, the Seller shall
notify the Purchaser of such proceedings. During the term of this Agreement, the Seller shall notify the
Purchaser of material developments in such condemnation proceedings and consult with the Purchaser
regarding major decisions by the Seller in such proceedings.
1. If. prior to the Closing Date, condemnation proceedings are commenced against
any material portion of the Property and the Seller, at its option, is unable to cure any material defect
caused by such condemnation within a reasonable period of time, and this Agreement has not terminated
pursuant to Article III., paragraph F. hereof, then in such event the Purchaser may, at its option, elect to
terminate this Agreement by written notice to the Seller within ten (10) days after the Seller's notification
to the Purchaser of the commencement of such condemnation proceedings and the Seller's failure to cure
same, or at the Closing (which may be extended by the Seller for a reasonable amount of time), whichever
9
is earlier, in which case the Deposit shall be refunded to the Purchaser subject to the Purchaser's
obligations under Article 111., paragraph E., and neither party shall have any further rights or obligations
hereunder, other than as set forth herein with respect to rights and obligations which survive termination.
If the Purchaser does not make its election to terminate this Agreement then, subject to the Seller's
approval, the Closing shall take place as provided herein without reduction of the Purchase Price, and at
Closing the Seller shall assign to the Purchaser its interest in and to any condemnation award, less any
costs or expenses of Seller for which the Seller shall be reimbursed.
2. If, prior to the Closing Date, condemnation proceedings are commenced against
less than a material portion of the Property, then in any such event neither the Purchaser nor the Seller
shall have any right to terminate its obligations under this Agreement, and the Seller shall assign to the
Purchaser its interest in and to any condemnation award, less any costs or expenses of Seller for which
the Seller shall be reimbursed, at the Closing which shall take place as provided herein without reduction
of the Purchase Price.
3. For the purposes of Article VI., paragraph A., "material portion" of the Property
shall mean such portion of the Property which, if taken, would have a material adverse effect on the use
of the Property and its market value equivalent to twenty percent (20%) or more of the Purchase Price.
B. The Seller agrees to give the Purchaser prompt notice of any fire or other casualty
affecting the Land, the Improvements or the Personal Property between the date of this Agreement and
the Closing.
1. If prior to the Closing there shall occur damage to the Property caused by fire or
other casualty which would cost twenty percent (20%) of the Purchase Price or more to repair and the
Seller, at its option, is unable to cure such damage within a reasonable period of time. then in any such
event the Purchaser may, at its option, elect to terminate this Agreement by written notice to the Seller
within ten (10) days after the date of the Seller's notice to the Purchaser of the casualty and the Seller's
failure to cure same or at the Closing (which may be extended by Seller for a reasonable amount of time),
whichever is earlier, in which case the Deposit shall be refunded to the Purchaser subject to the
Purchaser's obligations under Article 111., paragraph E" and neit}1er party shall have any further rights or
obligations hereunder other than as set forth herein with respect to rights and obligations which survive
termination. If the Purchaser does not timely make its election to terminate this Agreement then, subject
to Seller's approval, the Closing shall take place as provided herein without reduction of the Purchase
Price and there shall be assigned to the Purchaser at the Closing all interest of the Seller in and to any
casualty insurance proceeds, specifically excluding the proceeds of any loss of rental insurance for the
period prior to Closing.
2. If prior to the Closing there shall occur damage to the Property caused by fire or
other casualty which would cost less than twenty percent (20%) of the Purchase Price to repair. then in
any such event the Purchaser shall have no right to terminate its obligations under this Agreement, but
there shall be assigned to the Purchaser at Closing all interest of the Seller in and to any casualty
insurance proceeds which may be payable to Seller on account of any such occurrence, specifically
excluding the proceeds of any loss of rental insurance for the period prior to Closing and the Closing shall
take place as provided herein, without reduction of the purchase price.
3. The Seller and the Purchaser both agree to use the Seller's insurance adjuster's
assessment to determine the amount of damages.
10
ARTICLE VII.
NOTICES
All notices, requests and other communications under this Agreement shall be in writing and shall
be sent by certified or registered mail, return receipt requested, by overnight courier or may be per-sonally
delivered to the following addresses:
If to Seller:
Boynton Commerce Center Limited Partnership
250 Australian Avenue South, Suite 400
West Palm Beach, FL 33401
AUn: Charles J. Stone
phone no. (407) 820-1300
with a copy to:
Robert A. D'Amore, Esq.
Robert A. D'Amore, P.A.
250 Australian Avenue South, Suite 301
West Palm Beach, FL 33401
phone no. (407) 820-1331
If to Purchaser:
Dalfen Holding Company
c/o Dalfen's Limited
8479 Place Devonshire
Vile Mont-Royal, Quebec H4P 1 S5 CANADA
phone no. (514) 344-5010
with a copy to:
Thomas C. Cobb, Esq.
Scharlin, Lanzetta, Cohen, Cobb and Ebin
United National Bank Building
1399 S.W. First Avenue
Miami, FL 33130
phone no. (305) 358-4222
or such other address of which the Seller or the Purchaser shall have given notice as herein provided.
All such notices, requests and other communications shall be deemed to have been sufficiently given for
all purposes on the date of receipt, provided. however, that a delivery to the attorneys of the respective
parties listed above shall not be deemed proper notice, but is only for convenience of the parties.
ARTICLE VIII.
CLOSING AND ESCROW
A. Upon execution of this Agreement, the parties hereto shall deposit an executed
counterpart of this Agreement with the Title Company and this instrument shall serve as the instructions
to the Title Company as the escrow holder for the consummation of the transaction contemplated herein.
The Seller and the Purchaser agree to execute such additional and supplementary escrow instructions
as may be appropriate to enable the Title Company to comply with the terms of this Agreement.
B. The Seller shall deliver at Closing or make available at the Property the following
documents, each executed and acknowledged (as appropriate):
11
1. A special warranty deed to convey title to the Property conveying title in fee simple
to the Land and Improvements subject to the Permitted Exceptions.
2. A bill of sale conveying the Personal Property, with special warranty of title.
3. (i) The Leases currently encumbering the Property, which Leases are listed on
Exhibit "0" attached hereto and incorporated herein by reference; (ii) a current listing of any tenant security
deposits and prepaid rents held by the Seller with respect to the Property; and (iii) an assignment of such
Leases, deposits, and prepaid rents by way of an assignment and assumption agreement in form and
substance reasonably acceptable to the Purchaser and the Seller. The Purchaser shall assume all of
landlord's obligations under the Leases relating to the period commencing on and following the Closing
Date, and the Purchaser shall indemnify and hold the Seller harmless from all claims of tenants under the
Leases arising from and after the Closing Date or relating to any security deposits and pre-paid rent which
are paid over and delivered to the Purchaser at the Closing, and the Seller shall indemnify and hold the
Purchaser harmless from all claims of tenants under the Leases arising prior to the Closing Date or
relating to any security deposits and prepaid rent which are not paid over and delivered to the Purchaser
at the Closing.
4. (i) Copies of all Contracts relating to the Property, and (ii) an assignment of such
Contracts to the Purchaser by way of an assignment and assumption agreement in form and substance
reasonably acceptable to the Purchaser and the Seller. The Purchaser shall indemnify and hold the Seller
harmless against any liability under the Contracts arising from and after the Closing Date. The Seller shall
indemnify and hold the Purchaser harmless against any liability under the Contracts arising prior to the
Closing Date. The Seller shall terminate prior to the Closing, at no cost or expense to the Purchaser, any
and all management agreements and such other service contracts affecting the Property which the Seller
and Purchaser shall agree upon prior to the end of the Inspection Period.
5. An assignment to the Purchaser of the Seller's right, title and interest, if any, in
all trade names, including without limitation in the name Boynton Commerce Center.
6. An assignment of all transferable permits, warranties and guarantees, then in
effect, if any, with respect to the Property or any repairs or renovations to such Property.
7. All books and records in the Seller's possession at the Property held by or for the
account of the Seller, as available.
8. A non-foreign affidavit as permitted by Section 1445(a), Internal Revenue Code
for 1986, as amended;
9. Evidence of its capacity and authority for the closing of this transaction as
reasonably required by the Title Company.
10, All keys for the Property.
The documents referred to in Article VIII., paragraphs B, 3.(i), 4.(i}, 7. and 10. shall be made
available to the Purchaser at the Property.
Originals or copies of the foregoing Contracts. assignments and other documents shall be
furnished by the Seller or the Purchaser (as required) in the form to be executed or delivered at Closing,
at least two (2) days prior to the Closing Date.
12
C. At the Closing, the Purchaser shall (i) pay the Seller the Purchase Price; (ii) provide
evidence of its capacity and authority for the closing of this transaction as reasonably required by the title
company, and (iii) execute the agreements referred to in Article VIIl., paragraphs B. 3.{iii) and 4.(ii), and
all other documents as required by the Title Company reasonably necessary to close this transaction.
D. The Seller shall terminate its policies of insurance as of 5:00 p.m. on the date of Closing
and the Purchaser shall be responsible for obtaining its own insurance thereafter.
E. The Seller shall be entitled to the return of any deposit(s) posted by it with any utility
company and the Seller shall notify each utility company serving the Property to terminate the Seller's
account.
F. The Seller shall deliver possession of the Property to the Purchaser at Closing, subject
to the Leases and the Permitted Exceptions;
G. With respect to the ongoing operation of the Property, the Purchaser shall either revive
the prior existing property owners association or establish its own new property owners association,
including the incorporation of an association as required as the owner, and establish such reasonable
covenants, conditions and restrictions, as are appropriate to provide for the maintenance at the common
area and roadway, ingress and egress, and for allocation ot costs and expenses related thereto, subject
to the approval of the Seller. Purchaser and Seller shall grant cross easements for the benefit of each
other, their successors and assigns and the tenants and invitees of Boynton Commerce Center, as utility
and access easements (the "Access Easements") for utility lines and pedestrian and vehicular traffic within
the private roads now or hereafter existing within Boynton Commerce Center. The Access Easements
shall be granted for the purpose of providing (i) an easement for utility line, (ii) ingress and egress
between the Property and all public rights of way; and (iii) vehicular circulation around Boynton Commerce
Center. The provisions of this Section shall survive Closing. The cost of the foregoing shall be shared
by the parties and paid one-halt {1/2} by the Purchaser and one-half (1/2) by the Seller.
H. It shall be Condition Precedent to Purchaser's obligations hereunder that Purchaser shall
have obtained. on or prior to the Closing Date, an estoppel certificate (the "Estoppel Certificate") and a
subordination and non-disturbance agreement (the "Subordination Agreement"), each dated no earlierthan
thirty (30) days prior to the Closing Date from the tenants representing up to ninety percent (90%) of the
income of the Property, as required by Purchaser's lender. Seller shall cooperate in all respects with
Purchaser's efforts to obtain such Estoppel Certificates and Subordination Agreements. If the Purchaser
(despite its diligent efforts) is unable to obtain an Estoppel Certificate from such tenant, Purchaser's sole
remedy shall be to either (i) terminate this Agreement because of non-satisfaction of a Condition Precedent
in which event the Deposit shall be refunded to Purchaser; or (ii) proceed to close without such Estoppel
Certificates and accept the Seller's own Estoppel Certificate with respect to the Lease and tenancy for
which Purchaser and Seller fails to procure an Estoppel Certificate from the relevanttenanl. Each such
Estoppel Certificate and Subordination Agreement shall be substantially in the form attached as Exhibit
"F"; and Exhibit "G" respectively, however, Estoppel Certificates supplied by the Seller shall be specifically
limited to the Seller's actual knowledge. If the factual content of such Estoppel Certificate shall be false
in any material respect, notwithstanding any lack of knowledge on the part of the Seller, the Purchaser
may eject, upon notice to Seller, to terminate this Agreement, in which event the Deposit shall be returned
to Purchaser, and unless Seller is in default hereunder, in which case Article IX, paragraph B., shall apply,
neither party shall have any further liability or obligation to the other except for the indemnity provisions
which survive hereunder.
13
U(;;.....-VQ-J.::1::1.)
J..).,)O
UHl..r-CI'l :JJ.4--J<.4'-"t4 (..)
t-'.~
ART/CLf IX
DEFAULT
A. If the Purchanr shaU default under this Agreement. or the Closing shall not occur 10f any
rQason other than a default by the SeU.r after the expiration of the Inspac:hon Period or the exercise by
the Purchasvr of is specific right to terminate hereunder. the Deposit shall be retained by the SeUer as
liquidated damages. and both par1ll!s shall bQ reheveod or and released Ilem any turlher .iabUity he'e\.Inder.
except tor thl obUgattons of the Purchaser set out in ArtICle It I. . paragraph E. above. The Seller and Cfte
Purchaser agree that the Deposil is a fair and reasonable amount to be retained by the Seller as agreed
and liquidated damages In light of the Seller's reme.,al ot the Propeny trem the marxet and the cosrs
incurred by the Seller and shall nol constitute a penally or a forfeiture. THEAEFORE. BY PLt-ClNG THEIR
INITIALS BELOW. THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED UPON.
AFTER NEGOTIATION. AS THE PARTIES' REASONABLE ESTIMATE OF THE SELLER'S OAMAGES ANO
AS THE SELLER'S EXCLUSIVE REMEOY AGAINST THE PURCHASER. AT LAW OR IN eQUITY. fN THE
EVENT OF A DEFAULT UNOER TM'S AGREEMENT ON THE PART OF THE PURCHASER. IN ADDITION.
THE PARTIES AGREE THAT THE OAMAGE DUE TO SUCH A DEFAULT WOULD BE DIFFICULT AND
IMPOSSIBLE TO ACCURATELY ESTIMATE.
INI f1Al.S. Seller_
Purchastr 1vl ~-
e, If the Seller shall refuse or fall 10 convey Ihe Property u h~r.,n provided. or shall defaull
under this Agreement anet such <JvJaull by th~ Seller hctreunder tnAt has not been cured on or before the
Closing Oate. then the Purchaser's sOle remedy herflundrr shall be to terminate this Agreement and
recover the non-refundable Deposit. $ubjec:t to Purchaser's obligatIons under ArtIcle 1II. paragrnph E.. or
speCIfically enlorce Sellers obligation lO nil the Prop2rty to Purchaser ~s providliPd herein.
c. Notwithstanding ;\;'\ything to th~ contrary in Uns Agreemilnt, ei\ch party shall be wnliUed
to thre~ (3) Bustnns Oays after recvlpt 01 written notice of default under thIS Agreement. wltnin which to
cure such default. and any closing or other deadline sh,.U be' ~xte"ded for that period of <;ure.
ARTICLE X,
MISCELLANEOUS
A, Entire Aqr.ement . ThiS Agreemenll'S the entire Agreament betwetm the parties Wllh
rnpeet to the suble<;t maltC!r herecf. and no alt.ratlon. modlhcat~Qn 01 interprelation h~reof shall be
binding unless in writing and SIgned by both parties.
8. Severabilllv . If any provision of this Agreemvnt or applu::alion lo any pat1y or
circumstance5 shall be determined by any court 01 competent juriSdIction to be invaltd and un.nCoreeable
to any extent. the remainder 01 thl~ Agreement or tne application or such provIsion to such person or
cirC\lmstances. other than lhose as to which it IS so datelmmf:d I"valld or unenforceable. shall not be
atfe<:ted thereby. and each proviSIon hereof shall b~ valid and shall be enforced to the fullest extent
permlned by law. but the Seller shall han the option 10 t~rminate thiS Agreement.
C. Apglicable Law. This Agreement shall bv construed and enforced in acc:erdance'With the
laws of the State of Florida.
D. Assiqn01bili\y.. 11 the Purchaser requestl the Seller"s written con5enl t~ any 4$signm.nt,
the Purchaser shall (1) notify the Seller In wflti09 ot the proposed assignment: (2) prOVIde lhe Setler WIth
lhe name and address 01 the propond &$$'9ne.; (3) prOVIde the Selle, with financial informatIon inclllding
finan~1 statements of th8 proposed assIgnee; and (4) provide tl'ur Seller with a c;;opy of the proposed
assignment. Assignment of this Agreemen\ 51'1<\11 only be to an .,nllSy own.a or controlled by Pun;ttaser.
1-l
ARTICLE IX.
DEFAULT
A. If the Purchaser shall default wider this Agreement. or the Closing shall not occur for any
reason other than a default by the Seller after the expiration of the Inspection Period or the exercise by
the Purchaser of a specific right to terminate hereunder, the Deposit shall be retained by the Seller as
liquidated damages, and both parties shall be relieved of and released from any further liability hereunder,
except for the obligations of the Purchaser set out in Article III.. paragraph E. above. The Seller and the
Purchaser agree that the Deposit is a fair and reasonable amount to be retained by the Seller as agreed
and liquidated damages in light of the Seller's removal of the Property from the market and the costs
incurred by the Seller and shall not constitute a penalty or a forfeiture. THEREFORE. BY PLACING THEIR
INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED UPON,
AFTER NEGOTIATION. AS THE PARTIES' REASONABLE ESTIMATE OF THE SELLER'S DAMAGES AND
AS THE SELLER'S EXCLUSIVE REMEDY AGAINST THE PURCHASER, AT LAW OR IN EQUITY, IN THE
EVENT OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF THE PURCHASER. IN ADDITION,
THE PARTIES AGREE THAT THE DAMAGE DUE TO SUCH A DEFAULT WOULD BE DIFFICULT AND
IMPOSSIBLE TO ACCURATELY ESTIMATE.
INITIALS: Sellerl: ~ S-- Purchaser
B. It the Seller shall refuse or fail to convey the Property as herein provided. or shall default
under this Agreement and such default by the Seller hereunder that has not been cured on or before the
Closing Date, then the Purchaser's sole remedy hereunder shall be to terminate this Agreement and
recover the non-refundable Deposit, subject to Purchaser's obligations under Article III, paragraph E., or
specifically enforce Seller's obligation to sell the Property to Purchaser as provided herein.
C. Notwithstanding anything to the contrary in this Agreement. each party shall be entitled
to three (3) Business Days after receipt of written notice of default under this Agreement. within which to
cure such default, and any closing or other deadline shall be extended for that period of cure.
ARTICLE X.
MISCELLANEOUS
A. Entire Aqreement - This Agreement is the entire Agreement between the parties with
respect to the subject matter hereof, and no alteration, modification or interpretation hereof shall be
binding unless in writing and signed by both parties.
B. Severabilitv - It any provision of this Agreement or application to any party or
circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable
to any extent, the remainder ot this Agreement or the application ot such provision to such person or
circumstances, other than those as to which it is so determined invalid or unenforceable, shall not be
affected thereby, and each provision hereof shall be valid and shall be enforced to the fullest extent
permitted by law, but the Seller shall have the option to terminate this Agreement.
C. Applicable Law - This Agreement shall be construed and enforced in accordance with the
laws of the State ot Florida.
D. Assiqnabilitv - It the Purchaser requests the Seller's written consent to any assignment,
the Purchaser shall (1) notify the Seller in writing of the proposed assignment; (2) provide the Seller with
the name and address of the proposed assignee; (3) provide the Seller with financial information including
financial statements of the proposed assignee: and (4) provide the Seller with a copy of the proposed
assignment. Assignment of this Agreement shall only be to an entity owned or controlled by Purchaser.
14
E. Successors Bound - This Agreement shall be binding upon and inure to the benefit of the
Purchaser and the Seller and their successors and permitted assigns.
F. No Public Disclosure - The Purchaser shall make no public disclosure of the terms of this
transaction without the prior written consent of the Seller, except that the Purchaser may discuss the
transaction in confidence with proposed joint venturers or prospective mortgagees. Nothing in this
paragraph shall prevent either the Purchaser or the Seller from disclosing or accessing any information
otherwise deemed confidential under this paragraph, (i) in connection with that party's enforcement of its
rights hereunder; (ii) pursuant to any legal requirement, and statutory reporting requirement or any
accounting or auditing disclosure requirement; (iii) in connection with performance by either party of its
obligations under this Agreement (including, but not limited to, the delivery and recordation of instruments,
notices or other documents required hereunder); or (iv) to potential investors, participants or assignees
in or of the transaction contemplated by this Agreement or such party's rights therein;
G. Captions - The captions in this Agreement are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this Agreement or the scope or
content of any of its provisions,
H. Attornev's Fees - In the event of any litigation arising out of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees and costs at trial and through all appeals.
I. No Partnership - Nothing contained in this Agreement shall be construed to create a
partnership or joint venture between the parties or their successors in interest.
J. Time - Time is of the essence in this Agreement.
K. Counterparts - This Agreement may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an original and all of which
shall constitute one and the same instrument.
l. Recordation - The Purchaser and the Seller agree not to record this Agreement or any
memorandum thereof.
M, Tax Report - The Title Company shall be deemed the "responsible party" for closing this
transaction, for the purpose of compliance with Section 6045(e) of the Internal Revenue Code of 1986.
Upon Closing, the Title Company shall be responsible for submission of appropriate forms to the Internal
Revenue Service, with copies provided to the Purchaser and the Seller.
N, Ad Valorem Tax Protest - If the Seller has tiled a protest of filing real property taxes, then
the Purchaser agrees to remit to the Seller any refund issued to the Purchaser as a result of such action.
O. Removal From Market - Until the earlier of Closing or the termination of this Agreement,
the Seller shall not accept any offers for the sale of the Property with any third party.
P. Radon Gas - Radon is a naturally occurring radioactive gas that, when it has accumulated
in a building in sufficient quantities. may present health risks to persons who are exposed to it over time.
Levels of Radon that exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding Radon and Radon testing may be obtained from your county public
health unit.
a. Proper Execution - The submission by the Seller to the Purchaser of this Agreement in
unsigned form shall be deemed to be a submission solely for the Purchaser's consideration and not for
15
acceptance and execution. Such submission shall have no binding force and effect, shall not constitute
an option, and shall not confer any rights or impose any obligations upon the Purchaser, irrespective of
any reliance thereon, change of position or partial performance, The submission by the Seller of this
Agreement for execution by the Purchaser and the actual execution and delivery thereof by the Purchaser
to the Seller shall similarly have no binding force and effect on the Seller unless and until the Seller shall
have executed this Agreement and the Initial Deposit shall have been received by the Title Company and
a counterpart thereof shall have been delivered to the Purchaser.
R. Exculpation - This Agreement is being executed by and on behalf of Seller. No present
or future officer, director, employee, trustee, affiliate or agent of Seller or of any partner or management
company of the Seller shall have any personal liability . directly or indirectly, and recourse shall not be had
against any such officer, director. employee, trustee, affiliate or agent, under or in connection with this
Agreement or any other document or instrument heretofore or hereafter executed in connection with this
Agreement. Purchaser hereby waives and releases any and all such personal liability and recourse. The
limitations of liability provided in this paragraph are in addition to, and not in limitation of, any limitation
on liability applicable to Seller provided by law or in any other contract, agreement or instrument.
S. Business Days. In the computation of any period of time provided for in this Agreement
or by law, the day or event from which said period of time runs shall be excluded, and the last day of such
period shall be included, unless it is a Saturday, Sunday or legal holiday. in which case the period shall
be deemed to run until the end of the next day which is not a Saturday, Sunday or legal holiday.
T. AQreement Void - This Agreement shall be void if one fully executed copy is not received
by the Seller, along with confirmation that the Deposit has been received by the Title Company on or
before 5:00 p.m. E,S.T. on ~ II, 1995.
IN WITNESS WHEREOF, the Purchaser and the Seller have executed this Agreement on the date
set forth below, effective as of the date set forth above.
ATTEST:
SELLER:
BOYNTON COrY1MERCE CENTER LIMITED PARTNERSHIP,
A FLORIDA LIMITED PARTNERSHIP
BY:
MIG/BOYNTON COMMERCE CENTER, INC.,
A FLORIDA CORPORATION
GENERAL,P~RT71R ~
BY, ~~ vie. President
DATE: I '1. /~ /q ,
I I
/~~~{W~;CA 7
PURCHASER:
DALFEN HOLDING COMPANY
a Florida corporation
i ~ II< ~)
~~~
By:
~ . -kb-ty
MO~MY 01tL-F(1N.) fMSt/Jf,I'/;
~ 1- J~~r
/
DATE:
16
An original. fully executed copy of this Agreement, together with the Deposit, has been received
by the Title Company's agent this _ day of , 1995, and by execution
hereof the Title Company's agent hereby covenants and agrees to be bound by the terms of this
Agreement.
BY:
boynlon.dlr\Dallen.agr\ 12-11-115\4: :lOp, m,
17
EXHIBITS
(TO BE SUPPLIED)
EXHIBIT "A" LAND (LEGAL DESCRIPTIONS)
EXHIBIT "B" PERSONAL PROPERTY
EXHIBIT "C. CONTRACTS
EXHIBIT "0" LEASES
EXHIBIT "E" LITIGATION SCHEDULE
EXHIBIT "F" ESTOPPEL CERTIFICATE
EXHIBIT "G" SUBORDINATION AGREEMENT
VCI".-tJd-j,';;I'::1';)
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p.an;eq 3iD. ~-L a.Jt .... ..... ., JitatQU ~. .:J-G .... ~.W.aDYHTON COMMEAC. csrnm. .accordift9 La 1.1
PlaltMnD' oM ,.~... ill "-If ..... '.ON UI.-no 1%7 In \bo ~u* AeGOl'lb oJ P.....!~.clMt,y. MOrici
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PWfti.:s.... !Df . .... .f ~'t'T.)' I.., iO . ,.w" on . an. .11,00 ..., SOU'" .' .. Jtu.a.& ~ \he Sctulh Iin. I
..",..,~ a44. . .... '.ao ... 1he 'OlHT OF ItGIHNIHG: U..ltftCe ~ N ozr1113~. 1. "'ft. 1I\g We
liM 0' ..... 'ar... 3-G ...... 3-H. ~O, . d'\s'~ 1 OS~.60 rUf; ",me. S ...3Z'20. l. 181.02. S.., ID ~ pein' Oft U
b~l In. ~c utct 7' eel ,-H; 'nenc;o S OZ-.21'32- W. a&o", sIlO lu. Une. lor & ots'an~. of 14_""0 Icel '0 a ,em, C
I ttc\<< .o~ I.., OM. o. ,ncf ~.".. woW, IN Souln Jlno of saId 'wco! ,.c;~::'I.n:. S .'.3~'20- E. t&Gn9 sa
p.,aII.. Iin.. '0'. .'-No. of %2~.5l :00. 'OJ . poI."" on ~ .,,. 01 . "nvc"~ CVtWe. eon~.w. i~ SouUt"..L: lh,n:
Svv,,,...l.d., &&0, .eid ......... ino ~ ~e a:t; ~, uia cunoo. h...1tQ . ,.41.,. ~I '53<1.00 'Ofl. & ""V.l eft9f. I
, ~ .01.41' 1M '" we diallnca oJ .'$.40 loa;.; ,1';0... S 20.00' t~. VI. .t.ftC lb. Eau Ii,... c4 satO ;tar~.b 3-C:. 3.e
:j-!. ~.F .,,,, :I-G.' or : ..ia'.nc~ it, aos.oc. I..., 1D . p"mL Qr: . tn. :lS.DC f.-I Scrul" .1 :.~ :P~eA. ...;61\ Ih. No,:
lan. at ui.. '.teo' -Q "'~ ~a Sov\h I:IW ul P.,~.t 3.M. ailil ~:t"" al5D b-'"o 0" the "C 0.: . _'-;II'OOn1 curv
co..en. to th. So 1ft,.,.., (re.....I:Inw '0 .e<<s ;plJi." o..n ,.. 19 .Cle.o~' Wl: thOM. Hot'n__.~.dy "ens n;.t Douet;
u.~. and '~. arc ot ..c =vrvo h'~ . ,.Give 0: 721.<:0 I..,. & CDnv.' ,,,,,,e 0' \'''40~5. .~. ... lie ei"lnc;o,
~Z4..7 14<<' '0. ~ 0& ,."'.rico,: tho.... N 8'.:;2'20- W. aig..,O'~ ...rIUec ,,~. ,,~.151'e.t to;he POIH~ C
'!CI"~NI4G. t I : 1
TOGm-<,~ WTTH: : { . : ~ .
A se. In+..... Ell n lAd UriI. Euam'''1 .. shown .ft lovrrrON COtt.t"!~! c.uqEJl.~ accatcfinIJ .co tho 1"
U'oreal ., r.cOte. 1ft Plat Book . . Pea.. 1 %5 .~ 121 11\ Ut. Public l'Co:~td. .1 ~...., Snell qttlfmcy. ReritI..
I . I I' ,
Sokl ,..,o~ 1""'0 SINa\. In ,~ "..eIl CGuncv. flo'~'. conl..nlno t4S.!5 t' ~QV"'. ~"c.l,k.a:r'ltCt:~. mOl.
J.,u. I' I ,
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The P~"'O . . Q) n 11M of SelWs ngI\Ia. it "'Y. CO u.. raecMaY .... retM.a' IOCaNC
Of aDOul a*W Evrwa... &Mo...... shown on 8OYNTON COMM~ CEN'Te8.. ~tM""lheI
.. ...ccw0tl0 1ft Plat _L_
anca fe') ...~. ~ . of 1M Settr ' fft~ to the ~ ..... end ~ of .. ~ ~twlD -- (
c:oncr.......... ..... side at . inltneCCion Of 1be ~ ROIIO.no ~ Roa= 1-1....11 any. 01
s..rwMl~ "'. UM crt ~ ~ on the g1US"-"" Dff aw Ea I \ .,-..
I I . .
~.cI.., ",. ~ ~ snail,... forlnlf .nd iCs ."",_ucn and ......., iCa t9J1....~ intwwst I
........ 'new"n, I1CIIl ~~thooetclr -.gr.... ...... ",,"N. ~...... .,..., ~ .......end aa:
induGing ~ acwa t;plIIcet $-H. ~~ 10 or ,"urinQ to 1M ~ Of 1M ~!O~.a" OIIIM
1he ~ by thelellec. ~...,.,.,c of ~~.~. and 36'1. ~on ~~T". Center ~
_ _ ~..... .. PIol , ... ~a_ .oe and .27 .. - ,.- .-"" Gl Palm '4--
............... a(" .......... ..... ~ by s.u. in .... ~ , , CerQr. Ute
oonIIinue....... JtmiI8G un 01......... so,Man Co.....-- c.... '''Vt. D._..AQlI......u.....
fit' .. "tocIIIiId wW1in".... eo,,... Cvf~ c.r.J. but .., ..... .......,.. WITt otMr ,
... Cc:l4mn.-r. c..r.
/-'.Ii::I.J
~... InitiII
"11-f,,.e ..
TOnI.. P. S
TOTJ:l. p. as
TOT~ P.03
EX H I B ~ Tit'
LA'NO DESCRIPTION:
Parcels :3.0, ':3.E, :;.F 'end .a portion ot f~ntcob ~.C, .3.(j ~nd ~.H,BOYNTm~ COMMERCE CENTER, .according to tl
PJat thoreot .as recorded in PJDt Book 4e,p~Oos 1.26 .nnd 127 In the Public Record:5 Dl Palm BCGch,CouniY, Florid
more pZ1rticuJerly ducrlbod 4~ IoUows:
COMMENCING at tho Soulhwo3t Corner of uJd Parco! 3.G; thoncD' N 02021'32. E. aiono the 'West lina of so
P8rc.I.:3~G, Jor.n di3;tZ1nce 01 .239,73' root to II point on .n lino 35~00 foot South of and perDllel with tho South Iino
~ald Pnrcal 3.H, uid point .aLso being 1ho POINT OF BEGINNINGi thonce continuo N 02021'32- E. alone the We
line 01 said PlIrcals .:3.G and 3-H, for 0 dlst~nce 1054.60 lut; thonce S 6S032'20" E, 165.02 IDOl to :I pcint on 1J
East line ot said FlIrccl 3-H; thenco S 02021'32" W, ~Iono aid Ea~. linD, lor a distance 01 249.50 leet to a pOintl
o line 4~.00 foal N.orth of Bnd pllr61101 with tho South line at said Porco! :J.e; thence S 860:;2':20' E, alene sa
porallel hne, lor e dlstanco of 223,5 j [cot to c point 0:1 tho ore 01 0 tangen: e:.:rvc, concovo 10 South.....ost. thenl
S~~tho.Q,Sl~rlY alonw said, p~r8l1ol Iino ond tho ~rc of soid curve, hovino 0 radius cf 1534.00 loot. c cenLrnl ~ngJo
lc 07 ~7 and an nre dIstance o( 485.40 foet: O-,OOCO S 20000'j5. W. Blong the EllZ! lino cl said Parcels 3./"' -.1
3-E. 3-F nnd :I.G, '{or : dist~nC'.:l of SOS.04 (to"'t to 0 po:nt on :i [no 35.00 l!lo: South 01 ond porellol \'..ith th~'N~r
lino 01 aid Parcol ~-G ond thc South l:n(,) oj Parcol 3.H, aid ;::>int also boinO on 1ho erc 01 II no~.tilnoonc c~rv
conCi1ve to the Southwlls. !rodlof IIno to sold i'oint boars N HPOS'OS- WI; thonco Northwosleriy along soid p~roli
IJ~e ondtho arc at sold .:urvo hovlno c rodius 01 729.C~ foot. e ccntr~1 engle 01 17040'25. nnd en ~rc distance
224.e7 feet to a point 01 tenoency; thonco N 8s032'20" W, olono said pe!allel lino 402.15 tee. to tho POINT C
BEGINNING.
TOGETHEn WITH:
A 50' Ingre"~r EgrQ":l nnd Utility Ea:H1mont os shown on BOYr~TON COMl,\ERCE CENTER, acccrdin(j :0 tho PI
thorool 8$ tllco'rded In Plllt Book 45, POQos 125 llnd 127 In tho Public Rocord" 01 Palm Such County, Florida.
Sold IllndJ lyinQ and sJlulIto In ?alm 'BOller: County, Florld~, conlain!no 845,95 1 ~OUQro foet, 14.83' acre:!, more;
I a:s.s.
The Property also includes: (i) nonexclusive use of Seller's rights, if any, to the roadway and related improvements located i
or about the 80' Ingress. Egress and Utility Easement as shown on BOYNTON COMMERCE CENTER, according to the Plat therec
as recorded in Plat Book 46, Pages 126 and 127 in the Public Records of Palm Beach County, Florida (the "Easement Road"
and (ii) all rights, if any, of the Seller with respect to the non-exclusive use and maintenance of signs upon the two berms an
concrete parapets on either side of the intersection of the Easement Road and Woolbright Road; and (iii) all rights, if any, of th
Seller with respect to the non-exclusive use of temporary signs on the grass median on the Easement Road.
Notwithstanding the foregoing, the Seller shall retain for itself and its successors and assigns, its right, title and interest to c
easements including but not limited to those for ingress, egress, utilities, drainage, sewer, water distribution, signage, and acces
including without limitation access over parcel 3-H. belonging to or inuring to the benefit of the Seller to service the balance I
the property retained by the Seller, parcels 3A, 3B and part of parcels 3C, 3G, and 3H, Boynton Commerce Center according 1
the plat thereof as recorded in Plat Book 48, Pages 126 and 127 in the public records of Palm Beach County, Florida.
In connection with the Seller's marketing of the remaining parcels owned by Seller in the Boynton Commerce Center, the Sell,
shall be permitted to continue making limited use of the name Boynton Commerce Center (e.g.. promotional statements th;
Seller's parcels are "part of' or "located within" the Boynton Commerce Center), but Seller shall not transfer to any other persc
any right to use the name of Boynton Commerce Center.
Sellers Initials:~
Purchasers Initials:_
We the undersigned Tenants of Boynton Commerce Center would greatly appreciate the City of
Boynton Beach approving the variance requested to allow for additional parking on the east side of
the Boynton Commerce Center site. This additional parking is critical to the success of our
business in the City of Boynton Beach.
,
It/""~N $', e ,......."',
~
t!: JJ~tA:b~
tJ/.
We the undersigned Tenants of Boynton Commerce Center would greatly appreciate the City of
Boynton Beach approving the variance requested to allow for additional parking on the east side of
the Boynton Commerce Center site. This additional parking is critical to the success of our
business in the City of Boynton Beach.
q
~/D7
2103 Cd/(/. ~.
~...
. ~- _.._._--~~---_.__._---_._-----_.----'-
GoVElL~AL CENr\1\ - FIFrH FlOOR
301 NORTH OuVE AVENUE
W FSl' PALM BEACH. FLORIDA 33401
TF.L: (407) 355-2866 FAX: (407) 355-3963
GARY R. NIKOun, (FA
P AIM BEACH CoUNTY
PROPERTY APPRAISER
TO: MENORAH RLTY LTD/ALAN GAINSBORG TELEPHONE:
(954) 731 6000G
FROM:
PALM BEACH COUNTY PROPERTY APPRAISER, CUSTOMER SUPPORT
DATE: 5-10-96
LISTED BELOW ARE CHARGES FOR DATA PROCESSING COSTS ASSOCIATED WITH
THE PRODUCTION OF YOUR REQUEST. PLEASE MAKE YOUR CHECK PAYABLE TO:
PALM BEACH COUNTY PROPERTY APPRAISER.
ISS COST SUMMARY:
HOURS $
SECONDS $ 10.61
LINES $ .51
I/O $
18 $ 18.00
APPLICATIONS/DEV. SERVICES @ $40/HOUR:
COMPUTER TIME @ $.58/PER SECOND:
PRINT LINES @ $1.01/THOUSAND LINES: 509
TAPE INPUT/OUTPUT @ $3.39/PER THOUSAND:
TAX ROLLS 4 TO 5 PC NUMBERS TO A PAGE :
OTHER CHARGES:
141 REC'S
$
$
$
3.00
LABELS: @ $4.95/PER THOUSAND
.70
MAPS
TOTAL AMOUNT DUE:
$
32.82
I CERTIFY THAT I HAVE CALCULATED THE MEMORANDUM BILLING AND TO THE
BEST OF MY KNOWLEDGE IT IS A TRUE AND CORRECT RENDERING OF COSTS
INCURRED BY THIS OFFICE.
SIGNED,UM~~ ~\"
DATE:
5-10-96
MB 3/94
GLADES AREA OFt1CE
2976 STAn: ROAD 15
Bt:w: GLAD.:. FL 33430
TF~(407)996-4890
FAX: (407) 996,1661
NORTH COL"NTY OFflCE
3188 PGA BLVD.
PALM BFoACH GARDU,s. fl. 33410
Tt:L: (407) 624-6522
FAX: (407) 775-5617
E/R AUTH
. ROYAL PALM BEACH OFFICE ·
11500 OKF.ECHOIIEE BLVD., Sn:. A
HOYAL PALM BEACH, FL 33411
Tt:L: (407) 790-6001
FAX: (407) 790-6010
.
SOUTH COlJNTY OFflCE
501 S. CONGRtSS An:.
Dt:LRAY BEACH, FT~ 33445
Tu.: (407) 276-1250
FAX: (407) 276-1278
\
I
I
/
--L--
PROPERTY OWNER REQUEST LIST
~==~=__====_=...~=..====....D_===========.==.=a==================
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.==.==============..======a.==========~============.==_===...._
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--
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