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Parking Mgmt Agmt ( MANAGEMENT AGREEMENT PARKING MANAGEMENT AGREEMENT between OCEAN BLVD II LLC and PARK ONE OF FLORIDA, L.L.C. hereinafter referred to as "Park One" or "Manager" TillS PARKING MANAGEMENT AGREEMENT is made and entered into this day of , 2004, by and between OCEAN BLVD II LLC (hereafter the "Owner") and PARK ONE OF FLORIDA, L.L.C. ARTICLE I - APPOINTMENT OF MANAGER Section 1.1. Owner does hereby appoint, designate, and employ Manager to manage, operate, and supervise all vehicular parking located at the Premises as designated in Section 2.1 hereof, under the terms and conditions set forth herein. Manager shall provide such services at the Premises exclusively for Owner during the term hereof. Section 1.2. Manager shall (a) provide all personnel required to perform its obligations hereunder, (b) have full control and direction over such personnel and of the mode and manner of performing its obligations hereunder, and (c) complete all obligations required of it hereunder with promptness and diligence. Owner retains the right to remove any personnel for any reason. The relationship which Manager shall have to Owner under this Agreement shall be that of an independent contractor. Nothing contained herein shall be construed to be inconsistent with that relationship or status, or to have the effect of making Manager the agent of the Owner, .or any of the Manager's employees, the employees of the Owner, or the Owner and Manager joint ventures or partners. in connection with any business or undertakings conducted on the Premises of Owner as hereinafter defmed. Neither the Owner nor Manager shall be liable for the torts, or for any of the debts of the other except as specifically defined herein. Section 1.3. In consideration of the management fees hereinafter proVIded to be paid to the Manager by the Owner, Manager hereby accepts such appointment, designation and employment and hereby covenants and agrees to perform all duties, services and other obligations required of it by this Agreement. Section 1.4. Owner acknowledges that Manager is in the business of developing, owning, operating and managing parking stations and garages, Manager's business is not limited to the operation of the parking functions at the Premises. The operation of any ( . other business or facility by Manager is expressly permitted, provided however, that the operation of any other business or facility shall not relieve Manager of any of its obligations pursuant to this Agreement. Anything contained herein to the contrary notwithstanding, Manager acknowledges and agrees that, with respect to each and every obligation of Manager under this Agreement, Manager has an affmnative duty to Owner to act in good faith. Section 1.5. Manager is the Owner of the name "Park One of Florida, L.L.C.", "Park One Holdings, L.L.C.", "Park One" and "Pelican" which is used as the trade name of the Premises, and other associated marks and logos (the "Marks"), which Manager uses in connection with the development, ownership, operation and management of parking stations and garages in Louisiana, Kentucky, Florida and foreign countries. Manager intends to use the Marks in connection with its operation of the parking functions at the Premises, The use of the Marks by Manager does not grant to Owner any rights with respect thereto. Manager retains all rights to use and to authorize any other person or entity to use the Marks in any manner it desires, The ownership of the Marks and the goodwill related thereto shaH always remain vested in Manager, both during the term of this Agreement and thereafter. The Owner further agrees never to challenge, contest or call into question the ownership or validity of any of the Marks or the registrations therefore, in any country of the world and never to contest Manager's right to use, or authorize others to use, the Marks in any manner in any country of the world. Upon the termination of this Agreement for any reason, the Owner shall not have the right to continue to use the Marks in any manner, and the Owner shall immediately and permanently cease to use, by advertising or in any manner whatsoever, the Marks. In particular and without limiting the generality of the foregoing, the Owner shall cease to use all signs, equipment, advertising material, stationery, forms and any of the articles that display any of the Marks, subject to the condition that Manager is hereby required to remove, at its sole cost and expense, any and all signs, equipment, advertising material, stationery, forms and any other articles that display any of the Marks from the Premises and failure to do so shall not constitute a prohibited use hereunder by Owner. If within 30 calendar days of the termination of this Agreement for any reason, Manager fails to remove any signage, equipment or other items displaying the Marks, Owner is. hereby permitted, but is not required, to do so, and any expense associated therewith, including a reasonable daily rental for storage of any such signage, equipmeitt,or other items, shall be paid by Manager to Owner, . ARTICLEII-PRENUSES Section 2.1. The "Premises" for purposes of this Agreement shall be. the parking garage structure currently owned by Owner located in the square bounded by Collins Avenue, 10th Street, Ocean Drive and 11 th Street in the City of Miami Beach bearing Municipal No. 1041 Collins Avenue. Manager agrees to set aside and protect whatever allocations of parking spaces for the various users Owner deems necessary or desirable, as further described in Article XI. ARTICLE III - DUTIES OF AND SERVICES PROVIDED BY MANAGER ( Upon execution of this Agreement, Manager shall perform the following services and such other functions incident to the parking operations at the Premises as Owner may reasonably request from time to time, all of which shall be accomplished in accordance with and be consistent with the Budget referenced in Section 10.5 hereof: (a) Operate and maintain the parking garage portion of the Premises in a first- class manner as a parking facility; (b) Maintain such cash controls, accounting procedures, and reporting systems as may be reasonably requested by Owner from time to time and are customary in the parking industry; (c) Employ and staff the parking operations at the Premises with an adequate number of competent personnel, and maintain records of time spent by such employees in order that proper allocations can be made; (d) Purchase all necessary supplies and equipment; (e) Account to Owner as hereinafter provided for all revenues collected; (f) Charge and collect such parking rates or fees as may be directed from time to time by Owner; (g) Oversee the maintenance and repair of all parking equipment; (h) Maintain the parking garage portion of Premises in a neat, clean, attractive, and sanitary condition; (i) Promptly report all thefts, robberies, casualty losses, and damage claims to Owner, and to Manager's insurance carriers and cooperate toward settling such claims pursuant to the reporting requirements contained in Manager's and Owner's insurance policies; (j) Operate the parking garage portion of the Premises in compliance with all applicable federal, state, and local laws, rules, and ordinances; (k) Maintain accounts and records with respect to all expense items incurred in connection with the operation of the parking garage and pay such expenses as they become due subject to the requirements of Section VI. Said expenses shall include, but not be limited to the followin~__ (l) Salaries and wages of hourly and salaried employees of Manager as set forth in Section VI, along with said employees' benefits, said benefits to be stipulated at 300/0 of payroll at the inception of this Agreement; (2) Employer payroll taxes of employees of Manager assigned to the Premises; ( (3) License and permit fees imposed by federal, state, and local government; (4) Sales, use, parking, and service taxes, and any other taxes of any nature assessed by any governmental authority bearing jurisdiction, except ad valorem taxes; (5) Sundry items such as uniforms, tickets and janitorial supplies; (6) Cost of utilities utilized in the operation of the parking garage portion of the Premises; (7) Premiums for insw-ance including garage keepers liability insw-ance required to be carried by Manager under the terms of this Agreement and deductibles incurred in connection with claims made under such coverage; (8) Expense of necessary supplies, maintenance and repairs, and such other expenses -as may be necessary to operate and maintain the parking garage portion of the Premises, provided that the expense of any item other than routine labor costs, insurance premiums, utilities or budgeted expenses estimated by Manager to be in excess of Five Hundred ($500.00) Dollars shall not be incurred by Manager without fitst obtaining the approval of the Owner; (9) Expenses of maintenance and repairs of business machines and cash registers utilized in the operation of, and located in, the parking garage portion of the Premises; (10) All other normal and routine expenses incurred by the Manager in connection with the operation of the parking garage portion of the Premises as a fIrst-class parking facility, except that payroll processing fees or expenses, accounting fees or expenses, accounts receivable fees or expenses, and/or administrative fees or expenses shall not be reimbursable by Owner as the same are included in the payroll administration fee set forth in Article VI( c); and (1 I) Collection and payment of sales tax. (I) Take such actions to manage the parking operations at the:flremises in accordance with and to otherwise comply with any and all lease requirements related to parking operations, which requirements are contained in the lease for the Premises between the Owner and the City of Miami Beach (the "City Lease"). Owner acknowledges and agrees that the scope of responsibilities undertaken by Manager hereunder include only the parking operations within the garage portion of the Premises and do not include, without limitation, any <- ... parking services or related operations outside of the garage portion of the Premises. In addition, Owner acknowledges and agrees that Manager has no responsibility for the operations or administration of any retail space within the Premises. ARTICLE IV - EQUIPMENT AND FACILITIES PROVIDED BY OWNER The Owner, at its expense, shall provide all equipment and facilities required by Manager to perfonn its duties under this Agreement. The required equipment and facilities include, but are not limited to, parking ticket dispensing machines, mechanical gates, cash control equipment, telephone, cell phones, two-way radios and other communication equipment, video recording equipment, parking attendant structures and the occupancy of the parking office located within the Premises. The parking attendant structures shall be air conditioned and heated to provide a comfortable year round working environment for the parking attendants, The Owner shall provide Manager's employees working at the Premises with access to rest room facilities. ARTICLE V - MAINTENANCE AND REPAIRS Section 5.1. The Manager shall be responsible for perfonning or having perfonned by others the following: (a) trash removal, parking area sweeping, painting and repainting parking lines, curbing and traffic control directions and installation, repairing and replacing parking traffic control signs, and replacement of lighting tubes and ballasts; and (b) maintenance, repairs and replacement of parking-related equipment such as parking ticket dispensing machines, mechanical gates, video monitoring systems, cash control equipment and parking attendant structures. Manager shall have no responsibility for the condition, maintenance, repairs or replacement of the Premises or any of its equipment or facilities, provided however, that Manager shall be responsible for (a) notifying Owner of conditions at the Premises, its equipment, and/or facilities, which require maintenance and/or repair, and (b) the supervision of maintenance and/or repairs, and repairs respecting the Premises, equipment and/or facilities, including but not limited to, the Structural Repairs (as defmed below). AIl ordinary and necessary costs incurred by Manager pursuant to its maintenance obligation under this Section 5.1. shall be reimbursable expenses for which Owner shall be responsible under the tenns of Article VI, provided, however, that no expense in excess of One Thousand ($1,000) Dollars shall be reimbursed unless Manager shall have obtained the written consent of Owner prior to incurring the expense, except in cases of emergency, Owner agrees to maintain the sidewalks and curb cuts adjacent to the Premises in accordance with applicable municipal statutes, Owner shall also be responsible for all repairs to the Premises of a structural nature, including, but not limited to electrical~- plwnbing, pavement/concrete repair, painting of the structure, repairs to walls and floors of the Premises and maintenance of ventilation systems and elevators (the "Structural Repairs"). Manager shall, at the request of Owner, obtain third party maintenance contracts for the ventilation systems and elevators subject to the Owner's approval. In the course of providing parking management services at the Premises, Manager will report to Owner any needed Structural Repairs which Manager may notice and will assist and cooperate with Owner in facilitating such Structural Repairs. Notwithstanding the foregoing, ( however, Owner agrees to indemnify and hold hannless Manager from and against any and all costs, claims, action, losses or expenses arising from design or structural faults or defects. Each party shall provide the other party with notice of any maintenance or repairs of which it has notice and that are required to be performed by the other party. ARTICLE VI - REIMBURSEMENT OF EXPENSES The Owner shall reimburse Manager for all ordinary direct expenses of operating the Premises, including without limitation those described below, however, Owner shall have no obligation to reimburse Manager for any expense, other than budgeted expenses, in excess of $1,000, unless Owner shall have approved such expense in advance: (a) Salaries and wages of onsite personnel specifically assigned or allocated to the Premises pursuant to the Staffmg Schedule for Onsite Employees (as hereinafter defined) along with such employees' benefits; (b) Payroll taxes, workers'. compensation coverage and benefits of personnel assigned or allocated to the Premises pursuant to the Staffing Schedule for Onsite Employees, including but not limited to, medicaI/hospitalization insurance, retirement, etc. Vacation pay and holiday pay are not included in the definition of benefits. At the inception of this contract said benefits shall be stipulated at 30% of payroll, future benefits shall be adjusted upward subject to verification by Manager to Owner of any additional costs; (c) A payroll administration fee of eight (8%) percent calculated on gross salaries and wages, excluding payroll taxes and benefits, of assigned employees pursuant to the Staffing Schedule for Onsite Employees, which payroll administrative fee includes any and all payroll processing fees or expenses, payroll related accounting fees or expenses, accounts receivable fees; (d) License and permit fees imposed by federal, state, and -local governments; (e) Sundry items such as uniforms, tickets and janitorial supplies; (t) Cost of repairs and maintenance incurred pursuant to the terms of Section 5.1, including the cost of preventive or ordinary maintenance th~reto; (g) Settlement amounts of patron's claims for vehicle damage or loss of contents, settlement amounts for liability claims, payment of the deductible amount required by insurance coverage, including legal fees and claims adjustment expenses, and payment of claims in excess of policy limits, all of which shall be submitted for Owner's prior approval; ( (h) Business taxes such as sales and parking taxes, other than taxes on Manager's income or profit; (i) Cost of insurance premiwns for insurance maintained by Manager with respect to the Premises, including the insurance required to be maintained pursuant to Section 12.1 and deductible amounts paid; and (j) The payment of sales taxes collected. ARTICLE VII - MANAGEMENT FEEIINCENTIVE MANAGEMENT FEE Section 7.1. Base Mana2ement FeelIncentive Mana2ement Fee. As compensation for the services to be rendered by Manager herein, the Owner agrees to pay to Manager a Management Fee (the "Base Management Fee") as follows: (a) A Base Management Fee of $3,500 per month strictly for the parking operations within the garage portion of the Premises. (b) In addition to the Base Management Fee as stipulated above, Owner shall also pay the Manager an Incentive Management Fee equal to 10% of the Net Revenue (as hereinafter defined) which exceeds the actual Net Revenue of the prior twelve (12) month period (the "Incentive Management Fee"). (c) The fee set forth in subsection (a) above shall increase annually pursuant to changes in the CPI (Consumer Price Index as established). (d) The Incentive Management Fee shall be calculated monthly, paid quarterly and adjusted annually to reflect over payments or under payments to Manager. (e) For the purposes of calculating the Incentive Management Fee hereunder, ''Net Revenue" shall mean all Gross Revenues less Actual Operating Expenses. "Gross Revenues" shall mean all parking and parking related. revenues of any type collected by Owner or Manager in connection with the parking operations on the Premises, including the full imputed value of all free, subsidized or discounted parking that may be provided to certain users of the Premises by or on behalf of the Owner less all applicable sales and parking taxes. Gross Revenues shall not include revenue derived from the retail space currently under sublease to Surf Style, Inc. or any subsequent subtenant occupying the retail space or any other retail space. "Actual Operating Expenses" shall mean reasonable direct costs and expenditures incurred in connection with the parking operations of the Premises including the Base Management Fee, any percentage rent paid to the City of Miami Beach, and any insurance deductibles actually paid, but shall specifically exclude, however, any costs for insurance, real estate taxes and utilities for the Premises, debt service for the Premises, Ill~tenance, repairs or replacements to the Premises or any portion thereof, capital expenditures or other similar one time expenses related to the Premises or any expenses associated with the operation of Owner's other related properties or expenses associated with the retail space portions of the Premises (collectively, "Premises Operating Costs"). All Premises Operating Costs shall be the responsibility of Owner and shall not be included in the calculation of Actual Operating Expenses for purposes of determining the Incentive Management Fee hereunder, ( , ) Section 7.2. The Base Management Fee paid by the Owner to the Manager is intended to and shall cover and include all overhead of the Manager including the salaries and wages of all employees, administrative personnel and executives, not directly assigned to the day-to-day onsite parking operations of the Premises. It is not intended to cover, and does not include, any of the nonnal and regular operating expenses defmed and specified in Article III of this Agreement, nor any salaries and wages of the Manager's employees situated at the Premises pursuant to the Staffing Schedule of onsite employees, including full-time employees, part-time employees, and an estimated allocation (for each such employee) for any employees which Manager desires to share between the Premises and any other parking operations (the "Staffing Schedule of Onsite Employees"), which schedule shall be submitted by Manager to Owner, for Owner's approval, prior to the commencement of any onsite operations at the Premises, and thereafter on a quarterly basis, Owner shall approve the Staffing Schedule of Onsite Employees. Manager agrees to operate the Premises in accordance with the Staffmg Schedule of On-site Employees, provided however, that Owner acknowledges that such staffing schedule will be based on routine, day-to-day parking demand, and that actual staffmg may vary from time to time in response to demand from special events, unexpected transient demand or special projects, provided however, that Manager agrees to use its best good faith efforts to give Owner prior notice, and obtain Owner's approval, of deviations from the Staffmg Schedule of On site Employees. The budgeted staffing schedule may be increased by up to 10% due to over-time, training, and placement of required additional personnel for special events. Section 7.3. Consultant services required which are not part of the nonnal scope of operations shall be provided by the Manager on a negotiable fee basis, with the prior written approval of the Owner. Section 7.4 Manager shall not be entitled to any compensation, commissions or other fees with respect to any sale or fmancing of the Premises or any interest therein. ARTICLE VIII - TERM Section 8.1. The initial tenn of this Agreement shall commence on 2004 and end , 2009, for an initial tenn of 60 months. Thereafter, this Agreement shall be extended on a year to year basis unless notice is provided by either party to the other within 60 days of the end of any tenn of that party's intention not to extend the Agreement. Section 8.2. In the event that Owner notifies Manager of its intentto tenninate this Agreement in accordance with the tenns of Section 16.1 or 16.2, herein, and provided that such tennination was for a reason other than cause, Owner agrees to allow Manager the opportunity to submit a proposal for the future management or lease of the Premises in a manner consistent with the tenns of the Owner's request for other proposals to manage the Premises, Owner further agrees to evaluate all proposals received on an equitable basis. ( ARTICLE IX - RATES Manager shall recommend space allocations and parking rates to Owner, and Owner shall have the exclusive right to approve same or stipulate space allocations and parking rates which, at Owner's sole discretion, are in the best interest of Owner. At the inception of this Agreement, the parking rates shall be as follows: 0- 1/2 Hours 1/2 - 1 Hours 1 - 2 Hours 2 - 3 Hours 3 - 4 Hours 4 - 6 Hours 6 - 10 Hours 10-24 Hours Monthly Non-Reserved $2,00 $3.00 $4.00 $5.00 $6,00 $8.00 $10.00 $20.00 $100.00 ARTICLE X - ACCOUNTING AND REPORTING Section 10.1. In its operations at the Premises pursuant to this Agreement, reasonable cash control procedures in accordance with usual and accepted principles in the parking industry, and such cash control and other accounting and reporting procedures as may be requested by Owner from time to time, shall be maintained and consistently applied by Manager. Section 10.2. Manager shall establish and maintain a checking account in the name of Park One of Florida. L.L.C., Pelican Garage Account (the "Garage Account") at a Florida National Bank or any other bank approved by Manager. Manager or Manager's representative shall be the only parties authorized to draw on the account. All deposits and other receipts from the parking operations at the Premises shall be collected by Manager and promptly deposited in the Garage Account. It is expressly agreed that Manager shall suffer no liability or responsibility whatsoever for lost funds. or the unavailability of funds deposited in the Garage Account resulting from errors or omissions of the bank or failure, closure or restructuring of the bank thereof. Manager shall not commingle any such receipts with Manager's funds or any other third party's funds. Manager shall not deposit any revenue received by Manager in connection with the Premises and/or this agreement into any account other than the Garage Account unless Manager shall have received the prior written consent of Owner. F@9s may be transferred to Manager's accounts for purposes of payroll expenses or reimbursed payroll expenses and other approved disbursements to Manager. Section 10.3. On or before the twentieth (20th) day following the close of each month, Manager shall submit to Owner, in person, a statement (hereinafter referred to as the "Operating Statement") reflecting all monies collected and/or received and expenses incurred in the operation of the Premises during the previous month, together with a check payable to Owner representing the Net Operating Income (as hereinafter defmed) (, ) for that specific accounting period all in a format which will allow for comparison to, and show, in detail, variances from the Budget and comparisons for the current month to same month last year and year to date in prior year. For purposes of this Section 10.3, "Net Operating Income" shall mean all revenues collected and/or received by Manager during the prior month minus the reimbursable expenses described above in Article VI and minus the Base Management Fee then due and minus the Incentive Management Fee then due, if any. The Operating Statement shall also include a month-by-month and year- to-date budget comparison to actual, and an occupancy report. Should this Agreement be tenninated for any reason, any unexpended funds held by Manager shall be returned within five calendar days to Owner and within the same period, Owner shall reimburse Manager for any un-reimbursed expenses paid by Manager. Section 10.4. The Manager shall maintain current and accurate records of account at its regular business office with respect to the parking operations at the Premises, said books to be kept and maintained according to first class industry standards and generally accepted accounting principles, consistently applied. Manager shall preserve such records of account during the tenn of this Agreement, and for a period of at least one (I) year thereafter, provided however, that parking tickets shall be maintained for a period of no longer than ninety (90) days. All such records shall, upon the request of the Owner, be made available for examination, review, and audit by the Owner within five (5) business days of request therefore. In the event this Agreement is terminated, the Manager shall deliver the books, records, and accounts for the Premises to Owner at Owner's expense. Manager shall deliver a final accounting within thirty days after the last day of the calendar month in which such termination occurs. Section 10.5. Not later than sixty (60) days prior to the commencement of each calendar year (or initially within sixty days after the date this Agreement is effective), Manager shall submit, or cause to be submitted, to Owner a proposed budget for the Premises for the ensuing year in form and content acceptable to Owner in the exercise of its reasonable judgment which shall include, but not necessarily be limited to, a description of the management and operating activities to be undertaken during such year, projected monthly statement of operating revenues and expenses, reserves or additions to reserves or estimates of net cash flow with regard to the Premises. Owner acknowledges that any budget submitted to Owner by Manager is an estimate and that Manager cannot guarantee any of the revenues and expenses, reserves or additions to reserves or estimates of net cash flow with regard to the Premises as contained therein, Any budget submitted to Owner shall identify, by line item, those items in each budget category which the Manager expects to provide using affiliates of Manager (in terms of labor, materials or other services) in order to facilitate Owner's comparisonct!such items to market costs in connection with Owner's approval of any such budget. Owner shall have thirty (30) days from the receipt of each proposed budget, time being of the essence, to deliver to Manager a written acceptance or rejection (in reasonable detail, indicating recommended changes, in the case of a rejection) of a proposed budget. Said budgets, once approved by Owner, shall herein be referred to collectively as the "Budget." Once approved, the Manager shall not supplement, modify or amend a Budget without the prior express written consent of Owner, except as is specifically provided for herein. If a proposed budget for the Premises is not approved, Manager shall resubmit, or cause to be (, resubmitted to Owner within ten (lO) days of such disapproval, a revised budget reflecting Owner's recommended changes. If Owner shall reject the revised budget for the Premises, then the Manager shall, until a revised budget shall be approved in accordance with the terms hereof, be subject to the same fmancial limitations established by the last approved Budget for the Premises, as if the last Budget had been in effect during the then present calendar year, increasing, however, the amount of the Budget in anticipation of known increases of known operating expenses, but excluding extraordinary and non-recurring items set forth in such last Budget. Manager agrees to notify Owner immediately of any fact or circumstance that may render an approved Budget inaccurate in any material respect. Section 10.6. To the extent necessary and as specifically requested in writing by Owner, the Budget shall be revised by Manager semi-annually throughout the fiscal year to reflect the actual results of operation. Section 10.7. Manager shall use commercially reasonable good faith efforts to use, manage and operate the parking operations at the Premises in accordance with the then current approved Budget, provided that, without Owner's prior approval, Manager may (i) exceed any category of line item of the approved Budget (except for capital expenditures) for a fiscal year by up to the greater of ten percent (10%) or $500.00 (provided that the overall approved Budget for such fiscal year [except for capital expenditures] is not increased by more than 10% or $500.00) (ii) incur expenses in excess of the approved Budget in the event of an emergency requiring immediate action to avoid imminent personal injury or property damage provided that Manager notifies Owner as to such emergency by the next business day, the actions taken to address it and the costs of the same; (iii) incur legally mandated expenses; and (iv) incur expenses necessary to satisfy a subtenant's right of quiet enjoyment pursuant to a sublease. Owner further acknowledges and agrees that Manager shall have no liability to Owner in the event that Manager exceeds the Budget in any respect, except that Manager shall be responsible to comply with the Budget as it relates to the Manager's costs for staffing the parking operations at the Premises. If a Budget is disapproved by Owner in whole or in part, or not approved prior to the commencement of the ensuing fiscal year, Manager shall continue to manage and operate the Premises pursuant to the prior year's approved Budget or the previously approved Budget for the current year (except for non-recurring expenditures and capital expenditures) until Manager and Owner -can resolve their differences; provided, however, that Manager shall be authorized to pay, as an expense of the Premises, non-controlled third-party costs not within the control of Manager such as taxes and utilities. Manager's failure to manage the Premises in a first class manner shall be excused if Manager is prevented from doing so due to Owner' s failure~-approve a Budget or Owner's failure to provide sufficient funds. ARTICLE XI - OWNER'S RETAINED RIGHTS At all times during the term of this Agreement, Manager and Owner agree that Owner retains the right to determine, and to change from time to time, all management and operational practices to be carried out by Manager, including, without limitation, prescribing parking rates for Owner's employees, tenants, and customers, and the general c' public and for valet parking, general operating procedures, traffic controls, hours of operation, the location and priority of space assignments, and the terms and conditions of daily and monthly space rentals. Anything contained herein to the contrary notwithstanding, Manager shall submit promptly to Owner any and all proposals, monthly contracts, and valet contract, which shall be for a term longer than month-to- month and/or shall provide for parking rates other than those charged to the general public which have been previously approved by Owner and Owner shall have the right to approve or disapprove such proposals and contracts in its sole discretion. ARTICLE XII - INSURANCE AND INDEMNIFICATION Manager shall at all times during the term, and any extensions or continuation of this Agreement, purchase and maintain the following minimum insurance limits which shall insure Owner and Manager against all of the various claims, liabilities and attorney's fees described in Section 12.6 hereof, including but not limited to: Section 12.1. LIMITS A. Worker's Compensation Insurance: Statutory To comply with Florida or federal law and the state or states in which employees are hired: Employer's Liability Insurance $1,000,000 Each Accident $1,000,000 Disease - each employee B. Automobile Liability Insurance: $1,000,000 (Applying to all owned, non-owned & hired vehicles) Each Accident Combined single limit per accident for bodily injury and property damage. C, Commercial General Liability Insurance including: Combined Single Limit for Bodily Injury and Property Damage $1,000,000 Blanket Contractual included Products and Completed Operations Hazard included Broad Form Property Damage included Personal Injury included ( fonn. The General Liability coverage is to be an "occurrence" policy The general aggregate, if any, shall apply separately to this Premises. NOTE: The insurance described in Items A, B and C above may be provided by a garage liability policy covering liability arising out of "garage operations" at the Premises of Owner in lieu of a separate Automobile Liability Insurance Policy and a Commercial General Liability Insurance Policy, D. Excess Liability Insurance: $5,000,000 (Umbrella Form) Over the insurance required above in A, B and C with combined minimum coverage of $5,000,000 for each occurrence. E. Garage Keeper Liability Insurance: $250,000 limit on vehicle, $1,000,000 comprehensive; $1,000,000 collision; $1,000,000 aggregate per location. Owner agrees to name Manager as an additional insured on its comprehensive general liability insurance policy pertaining to the Premises. Section 12.2. DEDUCTIBLES AND SELF-INSURED RETENTIONS Owner acknowledges that all insurance coverage provided by Manager except Worker's Compensation is subject to a deductible amount not to exceed: $500 for Crime Coverage; $5,000 for General Liability and Garage Liability; $10,000 for Garage Keepers Legal Liability on all coverages except stolen vehicles which has a deductible of $5,000, and such deductibles constitute a reimbursable operating expense of the Premises, Owner also acknowledges that Manager maintains self-insured retentions on all coverages except Worker's Compensation. Manager agrees that any such self-insured retention shall not exceed $15,000 without the approval of Owner which shall not be unreasonably withheld. Owner acknowledges that worker's compensation coverage includes a $5000.00 self insured retention per incident. All of the deductibles listed above are to be considered a non-quantified operating expense of the Premises and will not be included in any budget submitted by Manager hereunder but will be considered direct expenses that are reimbursable to Manager in accordance with the teIlilS-of Article VI hereof. Section 12.3. OTHER INSURANCE REQUIREMENTS The policies are to contain, or be endorsed to contain, the following provisions: 1) Commercial General Liability and Automobile Liability, or Garage Liability; Excess Liability Insurance c Owner and its officers and employees are to be covered as additional insured as respects: liability arising out of activities performed by or on behalf of the Manager; Premises occupied or used by the Manager; or automobiles owned, leased, hired or borrowed by the Manager. The coverage shall contain no special limitations on the scope of protection afforded to Owner, its officers or employees. The Manager's insurance shall be primary with respect to any insurance or self insurance programs covering Owner, its officers and employees. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to Owner, its officers or employees. 2) All Coverages Manager shall, prior to commencement of services, furnish Owner with properly executed certificates of insurance which shall clearly contain the following information with respect to all insurance carried: (a) name of insurance company, policy number, and expiration date; (b) the coverages. required and the limits on each, including the amount of deductibles or self-insured retentions; (c) provide that the insurer waives its rights of subrogation against Owner and a statement indicating that Owner shall receive thirty days' notice of cancellation or significant modification of any of the policies which may affect the Owner's interest; (d) provide certified copies of endorsements and policies if requested by Owner in lieu of or in addition to certificates of insurance; (e) replace certificates, policies, and endorsements for any such insurance expiring during the term of the Agreement, and (f) maintain such insurance during the term of the Agreement. Section 12.4. ACCEPTABILITY OF INSURERS The Manager shall purchase and maintain insurance as required in this Agreement, in a company or companies lawfully authorized to do business uLI:'lorida. Insurance required under this section is to be placed with insurers with a Best's rating of no less than A: VIII. Section 12.5. SUBCONTRACTORS Manager shall obtain and ensure that all subcontractors obtain insurance of the types described herein and/or shall include all subcontractors as insured under its ( policies, or shall furnish separate certificates of insurance for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. Owner shall have the right, but not the obligation, to approve all Subcontractors. Section 12.6. INDEMNIFICATION The Manager shall indemnify and hold hannless Owner, including its officers, directors, employees, agents and insurers from and against any and all claims, demands, losses, damages, injuries, including death, liabilities, expenses, judgments, liens, encumbrances, orders and awards (all of which are collectively referred to as "claims") together with attorney's fees and litigation expenses, and all other costs associated with the claims or losses sustained by Owner or any other person or entity on account of (1) injury to, or death of, any person, including without limitation, agents, employees, subcontractors, tenants, customers, and/or invitees or (2) loss of, or damage to, property including the Premises, and any damage to or loss of vehicle, the contents of vehicles stored at Premises, attributable to the intentional acts, recklessness, carelessness or negligence of Manager and/or its employees, servants, or agents. The Owner shall indemnify and hold hannless Manager, including its officers, directors, employees, agents and insurers and from and against any and all claims, demands, losses, damages, injuries, including death, liabilities, expenses, judgments, liens, encumbrances, orders and awards (all of which are collectively referred to as "claims") together with attorney's fees and litigation expenses, and all other costs associated with the claims or losses, sustained by Manager or any other person or entity on account of (l) injury to, or death of, any person, including without limitation, agents, employees, subcontractors, tenants, customers, or invitees or (2) loss of, or damage to, property including the Premises, and any damage to or loss of vehicle, the contents of vehicles stored at Premises, attributable to the intentional acts, recklessness, carelessness or negligence of Owner and/or its employees, servants, or agents. It is agreed that any actions, costs, claims, losses, expenses and/or damages relating from the design or structural faults or defects are the responsibility of Owner and that Owner shall not be limited in taking any actions against any such third parties relating to the design of the Premises or for structural defaults or defects in the Premises. ARTICLE XIO - SECURITY The Owner may require security for the Premises and Manager shall have scheduling responsibilities for such personnel as directed by Owner. In addition, Manager will be responsible for notifying Owner of any breaches of security, personal injuries or property damage claims which occur in the facility, provided hQ~ever, that Owner shall be responsible for all claims and costs resulting from breaches-of security, except that in no event shall Owner be responsible for any claims and costs arising from intentional acts, recklessness, carelessness or negligence of Manager as set forth in Section 12.6 above, ARTICLE XIV - DAMAGE TO AND DESTRUCTION OF THE PREMISES ( If the Premises shall be destroyed or substantially destroyed during the term of this Agreement, by fire or other casualty, and the Owner shall elect, for any reason, not to rebuild the building and improvements, this Agreement shall terminate. In the event Owner elects to rebuild the building and improvements at any time within one (I) year following the date of the Casualty, then this Agreement shall remain in full force and effect, except that it shall be tolled from the date of the casualty through the date of completion of the reconstruction, ARTICLE XV - CONDEMNATION If the whole or substantial portion of the Premises shall be taken or condemned in any eminent domain, condemnation, compulsory acquisition or like proceeding by any competent authority for any public or quasi-public use or purpose, or if such a portion thereof shall be taken or condemned as to make it imprudent or unreasonable, in Owner's reasonable opinion, to use the remaining portion as a parking facility of the type and class immediately preceding such taking or condemnation, then in either of such events the term of this Agreement shall cease and terminate as of the date of such taking or condemnation, and Owner shall receive the total proceeds of any award made for such taking or condemnation. ARTICLE XVI - EVENTS OF DEFAULT AND TERMINATION Section 16.1. Events of Default. This Agreement and the employment of Manager may be terminated by either party, at its option, upon the happening of any of the following events: (a) If the other party shall file a petition in bankruptcy or insolvency or for a reorganization or for the appointment of a receiver or trust of all or a substantial part of its property; if a petition in bankruptcy is filed against the other which is not discharged within sixty (60) days thereafter; or if the other party is insolvent by reason of being unable to pay debts as they mature; and (b) In the event Manager or Owner fails,. at any time during this Agreement, to perform any of the covenants, conditions, or provisions of this Agreement, and in the case of a monetary default, such default is not cured within thirty (30) days or in the case of non-monetary default, the cunng of such default shall not have been commenced within thirty (30) days and not thereafter diligently pursued to completion, after written notioo-=thereof to Manager or. Owner, as the case may be, then in such case, the aggrieved party, Owner or Manager, as the case may be, may terminate this Agreement by providing fifteen (15) days' written notice thereof. Section 16.2. Owner, or its successor or assign, may terminate this Agreement by providing one hundred twenty (120) days written notice to Manager subject to the ( conditions below. In the event Owner, or any successor owner, terminates this Agreement pursuant to this Section 16.2 within the initial five (5) years of the term of this Agreement, Owner or successor owner shall pay Manager, as an early cancellation penalty, (a) an amount equal to the full amount of the unpaid Base Management Fee calculated through the end of the fifth year of this Agreement without the benefit of any net present value discount (the "Cumulative Base Fee") plus (b) the amount of Incentive Management Fee that would have been paid over the remaining term of the Agreement (the "Cumulative Percentage Fee"), (The Cumulative Base Fee and the Cumulative Percentage Fee are hereinafter collectively referred to as the "Cancellation Fee"). The Cumulative Base Fee shall be paid on or before the tennination date The Cumulative Percentage Fee shall be paid in arrears within 30 days after the end of each 12 month period (or shorter period as may. be applicable up to the expiration date of this Agreement) and shall be calculated in accordance with the terms of Section 7.1 hereof if terminated after the first 36 months of the term hereof, or in accordance with the terms of the immediately following paragraph if terminated within the first 36 months of the term hereof. In the event this Agreement is terminated pursuant to Section 16.1 above, any and all payment obligations of Owner under this Agreement, including, without limitation, reimbursement of expenses, the Management Fee, and the Incentive Management Fee, shall terminate fr.om and after the tennination date, and Owner shall have no further obligations to Manager hereunder. Notwithstanding anything to the contrary contained in this Section 16.2, in the event that this Agreement is cancelled within the first 36 months of the term hereof, for any reason other than the reasons set forth in Section 16.1 hereof, then the calculation of the Cumulative Percentage Fee shall be computed using actual future Net Revenue in accordance with the terms of this Section 16.2. The Cumulative Percentage Fee shall be payable in arrears within 30 days after the end of each 12 month period (or shorter period as may be applicable up to the expiration date of this Agreement) during the remainder of term hereof (but for such cancellation). For purposes of calculating the Cumulative Percentage Fee, Gross Revenues shall have the same meaning as is given to such term in Section 7.1(e) hereof, however, the Actual Operating Expenses for this calculation of the Cumulative Percentage Fee shall be fixed, and shall be based on Actual Operating Expenses incurred in the last twelve month period before the tennination, as increased by the CPI. As an example: if this Agreement is cancelled in the second 12 month period during the term hereof, and during that year Gross Revenues were $1.2 million and Actual Operating Expenses were $425,000 then the Net Revenue calculation would be $775,000. If, in the third 12 month period during the term hereof, Gross Revenues were $1.5 million, Actual Operating Expenses would remain fixed at $425,000 (adjusted upward only for the inclusion of any percentage rent paid by Owner to the City of Miami Beach and by the CPI increase) and the Net Revenue calculation for the thira 12 month period during the term hereof would be $1.075 million. The Cumulative Percentage Fee due to the Manager for the third 12 month period during the term hereof would then be 10% of the $375,000 increase over the Actual Operating Expenses of $425,000 for a payment of $37,500 as the Cumulative Percentage Fee for the third 12 month period during the term hereof. ( In the event termination would occur within the first 36 months but not at the end of any 12 month period, the Cwnulative Percentage Fee shall be calculated using as Actual Operating Expenses the greater of (a) the swn of (i) the Actual Operating Expenses for those months during such 12 month period prior to termination and (ii) the Fixed Fee multiplied by a fraction the nwnerator of which is the remaining months in such 12 month period and the denominator of which is 12 or (b) the Fixed Fee for the Previous 12 month period. Section 16.3. The waiver of anyone event of default shall not be construed as the waiver of any other event of default. Section 16.4. Upon the termination of this Agreement for any reason, Manager shall deliver to Owner all contracts and records maintained by Manager which pertain to the parking operations at the Premises within ten (10) days of such termination. Section 16.5. Except as otherwise provided in Section 16.2, Owner shall have no obligation to Manager for any costs or expenses incurred by Manager under this Agreement after the date of termination, unless Owner shall have given Manager its prior written consent to incur such cost or expense. ARTICLE XVII - MISCELLANEOUS Section 17.1. Time is of the essence in this Agreement. Section 17.2. No modification, amendment, release, discharge or waiver of any provision hereof shall be of any force, effect or value unless in writing and signed by both Owner and Manager, or their duly authorized representatives. Section 17.3. This Agreement shall be construed under the laws of the State of Florida. Section 17.4. The captions of the Articles of this Agreement are inserted for identification only, and shall not govern the construction nor alter, vary or change any of the terms, conditions or provisions of this Agreement or any Article thereof. Section 17.5. Each provision herein shall be deemed separate and distinct from all other provisions, and if anyone of them shall be declared illegal or unenforceable, the same shall not affect the legality or enforceability of the other terms, conditions and provisions hereof, which shall remain in full force and effect. Section 17.6. This instrument contains the entire Agreement between-the parties as of this date; the execution hereof has not been induced by either of the parties by representations, promises, or understandings not expressed herein, and there are no collateral agreements, stipulations, promises, or understandings whatsoever upon the respective parties hereto in any way touching the subject matter of this instrument which are not expressly contained in this instrument. f f" Section 17.7. When either of the parties is required or desires to give notice under the terms of this Agreement, or to make delivery unto the other in connection with and according to the terms of this Agreement, such notice shall be given or such delivery made in person or by registered mail or certified United States mail, and it shall be deemed given or made when it has been delivered by the sender with sufficient postage prepaid thereon to carry it to its addressed destination in an envelope addressed as follows: For the Owner: Mr. Mark Siffin Ocean Blvd II LLC 1526 Blue Jay Way Los Angeles, CA 90069 For the Manager: Philip A. Nicely Bose McKinney & Evans LLP Attorneys for Owner 600 E, 96th Street, Suite 50 Indianapolis, Indiana 46240 Mr. Bijan Eghtedari President Park One of Florida, L.L.C. 12000 Biscayne Boulevard, #302 Miami, Florida 33181 Mr. David 1. Ducote Chairman Park One Holdings, L.L.C. 601 Poydras Street, Suite 2011 New Orleans, Louisiana 70130 Either party hereto may hereafter from time to time change the address for notices by written notice to the other party hereto. Section 17.8. Manager may not assign its rights hereunder without the prior consent of Owner, except that Manager may assign any ofits rights or duties hereunder to Manager's subsidiary, affiliate, or successor or to an entity that purchases all or substantially all of Manager's assets or equity, without the prior written consent of Owner. Section 17.9. Owner and Manager agree that, during the term of this Agreement, all personnel employed by Manager for the parking operations at the Premises shall be solely the employees of Manager and shall have no contractual relationship with Owner. In addition, Owner agrees, during the term of this Agreement, for twelve (12) months after Manager's employee departs, and for a period of twelve (12) months after termination of this Agreement, that it will not hire or attempt to hire or allow to work under the supervision of a third party parking operator, any personnel of Manager, nor ( will Owner enter into any negotiations, communications, or other actions which have as their intended consequence the inducement for any such person to enter the employ of Owner, in any capacity whatsoever. Section 17.10. Confidential Information of the Parties. In the performance of this Agreement, either party may disclose to the other certain "Confidential Information," which is defmed as any information, communication or data, in any form, including but not limited to oral, written, graphic or electromagnetic forms, models or samples, which the disclosing party identifies as confidential or which is of a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information, communication or data against unrestricted disclosure or use, including, without limitation, all information regarding customers and their accounts and tax information, all financial information, trade secrets, business plans, customer lists, procedures, inventions, improvements, innovations, concepts and ideas. The receiving party agrees to hold the Confidential Information disclosed by the other party in strictest confidence and not to, directly or indirectly, copy, use, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed or otherwise transfer the Confidential Information for any purpose whatsoever other than as expressly provided by this Agreement, other than under compulsion of law including subpoena, and as reasonably necessary to a party's agents, employees and regulatory authorities, The obligations in this Section shall continue for the longer of (i) the duration dictated under governing law or (ii) the term of this Agreement and for a period of five (5) years thereafter. Each party shall advise each of its employees, subcontractors and agents of their confidentiality obligations under this Agreement. Confidential Information shall not include (i) information that is or becomes generally available to the public through no act or omission of the receiving party; (ii) was in possession of the receiving party prior to the time of disclosure by the disclosing party; (iii) becomes available to the receiving party from a third party who was not violating any obligation of confidentiality to the disclosing party in making such disclosure or is developed independently by or for the receiving party; or (iv) if disclosure is required under applicable law or regulation, and the receiving party is advised of such in writing by legal counsel. Section 17.11. PrevaiIine: Party. The prevailing party in any litigation hereunder shall be entitled to reimbursement of reasonable attorney's fees and court costs. Section 17.12. Successors. This Agreement shall run with title to the Premises and shall be binding upon the parties and their respective successors and assigns. ( IN WIlNESS WHEREOF, the parties hereto have hereunto set their hands by and through their duly authorized officers, agents, or representatives, as of the day and year first above written. Ocean Blvd II LLC, an Indiana limited liability company By: \\MIA-SRVOI \L YNOTIM\I 554752vOI\1 FXWOOI_.D00.5I2O!04 !) IN WIlNESS WHEREOF, the parties hereto have hereunto set their hands by and through their duly authorized officers, agents, or representatives, as of the day and year first above written. Ocean Blvd II LLC, an Indiana limited liability company By: nl;Jf /!~/~ &~ ~.LLc .u M~ ' ( ~ ~ A. ~ -, V" PARK ONE OF FLORIDA, L.L.C., a Florida limited liability company .~y: =ILTftt5 \\MIA.SRVOl\L YNOTTM\lS547S2vOl\1FXWOOl_.DOC\S120/04 ( OWNER'S AFFIDAVIT STATE OF Lnll/{lqlll4 ) COUNTY OF OI2.IC.4N\ ) BEFORE ME, the undersigned authority, personally appeared David L. Ducote, (the "Affiant") as Manager of Gravier Development Company, L.L.C., a Louisiana limited liability company, which is the Manager of Pelican Development, L.L.C., a Florida limited liability company (the "Company"), who being by me first duly sworn, deposes and says as follows: 1. That Affiant is duly authorized to execute this Affidavit on behalf of the Company. 2. That the Company is the owner of a leasehold interest, pursuant to that certain Agreement of Lease between the City of Miami Beach, Florida, as owner, and the Company, as tenant, dated as of December I, 1999, in that certain property located and being situate in Miami- Dade County, Florida, more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (the "Property") . 3. That there are no outstanding contracts entered into by the Company, either oral or written, for the furnishing of labor, material or services to the Property or for any improvements thereon, and within the past ninety (90) days, there have been no improvements, alterations or repairs made by the Company to the Property for which the cost, or any part thereof, remains unpaid. 4. That no contractor, subcontractor, laborer or materialman, engineer, land engineer or surveyor working by, through or under the Company has any lien or right to a lien against the Property or any part thereof. 5. That the Company has exclusive possession of the Property, and that there are no other parties in possession of the Property or with a right to possession of the Property other than the Company and E. Levy Corporation, Inc., a Florida corporation, pursuant to a written Lease Agreement, as a subtenant only. 6. That the Company has not executed any instrument that would adversely affect title to the Property from and after April 14, 2004 at 8:00 a.m., the effective date of First American Title Insurance Company's Commitment for Title Insurance No. F A-C-7176. 7. That this Affidavit has been executed and delivered to induce FirsCt\merican Title Insurance Company and its agents (the "Title Company") to issue its Leasehold.Policy of Title Insurance in favor of Ocean Blvd II LLC, an Indiana limited liability company and/or its pennitted assigns ("Purchaser"). c \ ) ~ 8. That the Affiant is familiar with the nature of an oath; and with the penalties as provided by the laws of the State aforesaid for falsely swearing to statements made in an instrument of this nature. That the Affiant has read, or has heard read, the full facts of this Affidavit, and understands its context. ~ __ David L. Ducote The foregoing instrument was acknowledged before me this ~ day of A.-. 2004 by David L. Ducote as Manager of Gravier Development, L.L.C., a Louisiana limited liability company, the Manager of Pelican Development, L.L.C., a Florida limited liability company, on behalf of the company. He is personally known to me or produce as identification. M:t7JV1rres: Name: Notary PuB . , S Commission No. tr~ [Notarial Seal] r ( ~ ) EXHIBIT A [Legal Description] The North I foot of Lot 11, and all of Lots 12, 13 and 14, Block 15, OCEAN BEACH ADDITION NO.2, according to the Plat thereof, recorded in Plat Book 2, Page 56, of the Public Records of Miami-Dade County, Florida \\MIA-SRYOI\l556305v02\lffqh02 _.DOC\62595.0 101 00 C': ',--.' SUBTENANT NOTICE LETTER MaY2l:L, 2004 E. Levy Corporation, Inc. 4100 North 28th Terrace Hollywood, Florida 33021 Re: Sublease of premises located at 1039-1041 Collins Avenue, Miami Beach, Florida, between Pelican Development, L.L.C., as Sublandlord, and E. Levy Corporation, Inc., as Subtenant Ladies and Gentlemen: This is to notify you that the building in which you are a subtenant has been acquired by Ocean Blvd II, LLC. All rental payments and other communications regarding your lease should henceforth be directed to Ocean Blvd II, LLC at 250 East 96th Street, Suite 580, Indianapolis, Indiana 46240. Very truly yours, Pelican Development, L.L.C., a Florida limited liability company By: Gravier Development, L.L.C., a Louisiana limited liability company BY:~ David L. Ducote, Manager , , c Ocean Blvd IT LLC, an Indiana limited liability company ArIJ~~/~&~~/j By: / ~ ~ J::h- Name (printed): 'WU" >kr ~ Title: 1/1 \1MIA-SRVOI\LYN01TM\ISS4747vOl\Sn!04 -- , i c. ) NON-FOREIGN CERTIFICATION Section 1445 of the Internal Revenue Code of 1986, as amended, provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person.. To infonn the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by Pelican Development, L.L.C., a Florida limited liability company ("Transferor"), the undersigned hereby certifies the following on behalf of the Transferor: (1) The Transferor is not a foreign corporation, foreign trust or foreign estate (as those tenns are defmed in the Internal Revenue Code and Income Tax Regulations); (2) The Transferor is not a disregarded entity as defined in Section l.I 445-2(b )(2)(iii); (3) The Transferor's U.S. employer identification nwnber is 62- 1802361; and (4) Transferor's office address is 601 Poydras Street, Suite 2011, New Orleans, LA 70130. The Transferor understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fme, imprisonment, or both. Under penalties of perjury, I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this docwnent on behalf of the Transferor. Date: .2004. TRANSFEROR: Pelican Development, L.L.C., a Florida limited liability company By: Gravier Development, L.L.C., a Louisiana limited liability_company BY:~ ....::.- David L. Ducote, Manager (, STATE OF ~JIU~1t- ~ ~ COUNTY OF ~~ This instrument was acknowledged before me on by David L. Ducote, as Manager of Gravier Devel p nt, liability company, the Manager of Pelican Dev e liability company, on behalf of said company. Jo 2004, .L ., a Louisiana limited .L. ., a Florida limited MYC~~:7~ 1t.V"'V' \\MIA-SRVOIILYNOTIM\I 554746vOl\1 FX9Q01_.DOCI5nt04 " ( ASSIGNMENT OF SERVICE CONTRACTS STATE OF ~ ~ ~ KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WHEREAS, by Assignment and Assumption of Lease of even date herewith Pelican Development, L.L.C., a Florida limited liability company ("Assienor") conveyed Ocean Blvd II LLC, an Indiana limited liability company ("Assilmee"), whose mailing address is 250 East 96th Street, Suite 580, Indianapolis, Indiana 46240, Assignor's leasehold interest in and to that certain tract ofland more particularly described in Exhibit A attached hereto and made a part hereof, together with all improvements located thereon (the "Real Prooertv"); and WHEREAS, in connection with the above described conveyance, Assignor desires to sell, transfer and assign to Assignee all of its right, title and interest in and to the contracts hereinafter described. NOW, THEREFORE, in consideration of the receipt of TEN AND NO/lOO DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows: 1, Assignment of Contracts. Assignor hereby ASSIGNS, SETS OVER and TRANSFERS to Assignee, all of its right, title and interest in and to the contracts (the "Contracts") more particularly described in Exhibit B attached hereto and made a part hereof by reference. In consideration of the foregoing assignment, Assignee hereby assumes and agrees to perform, all of the obligations of Assignor under the Contracts arising or accruing on and after the date. hereof and Assignee does further agree to defend, indemnify and hold Assignor hannless from and against all loss, cost, claims, liability, expense or demand of whatever nature suffered or incurred by Assignor by reason of the failure of Assignee to perform any of the obligations assumed hereunder. 2. Miscellaneous, This Assignment and the obligations of the parties hereunder shall survive the conveyance of the Real Property and sl1all be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns. Co EXECUTED on ,2004. ASSIGNOR: Pelican Development, L.L.C., a Florida limited liability company By: Gravier Development, L.L.C., a Louisiana limited liability company By:J(~ David . Ducote, Manager (, 3 ASSIGNEE: Ocean Blvd IT LLC an Indiana limited liability company /3n, .r:;,fft"~ ~~ ~~I Lk :81._ 1: ~ $;tt Name (printed): ,.,f /fl,'I-P~ Title: VI M~ '- c EXHIBIT A Legal Description The North 1 Foot of Lot 11, and all of Lots 12, 13 and 14, Block 15, Ocean Beach Addition No.2, according to the Plat thereof, recorded in Plat Book 2, Page 56, of the Public Records of Miami-Dade County, Florida . ( EXHIBIT B ( Contracts) 1. Service Agreement Non-Hazardous Wastes dated July 23,2002 between Pelican Garage and Waste Management of Dade County \\MIA-SRVOl\L YN01TM\ISS474SvOI\IFX9POl .D0C\5nlO4 (~ BILL OF SALE AND ASSIGNMENT STATE OF ~ ~ ~ KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WHEREAS, by Assignment and Assumption of Lease of even date herewith, Pelican Development, L.L.C., a Florida limited liability company ("Seller") conveyed to Ocean Blvd II LLC, an Indiana limited liability company ("Buver"), whose mailing address is 250 East 96th Street, Suite 580, Indianapolis, Indiana 46240, Seller's leasehold interest in and to that certain tract ofland more particularly described in Exhibit A attached hereto and made a part hereof, together with all improvements located thereon (the "Real Propertv"); and WHEREAS, in connection with the above described conveyance, Seller desires to sell, transfer and assign to Buyer certain items of personal property as hereinafter described. NOW, THEREFORE, in ,!ons.ideration of the receipt of TEN AND NO/loo DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller has GRANTED, SOLD, TRANSFERRED, SET OVER and DELIVERED and by these presents does hereby GRANT, SELL, TRANSFER, SET OVER and DELIVER to Buyer, and its successors and assigns, all of its right, title and interest in and to the items of personal property set forth on Exhibit "B" attached hereto and made a part hereof (the "Personal Propertv"), to have and to hold, all and singular, the Personal Property unto Buyer forever, subject however to the terms of the Lease. Subject to the terms of the Lease, Seller does hereby bind itself, and its successors and assigns, to WARRANT and FOREVER DEFEND title to the Personal Property unto Buyer, and its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Seller, but not otherwise. For the same consideration, Seller does hereby ASSIGN, SET OVER and TRANSFER to Buyer, to the extent assignable, and without recourse or warranty of any kind, all of its right, title and interest in and to all licenses, permits, plans, studies, utility arrangements, and warranties and guaranties, if any, relating to the Real Property together with all of Seller's interest in and to the name "Pelican Garage", ifany. - BUYER ACKNOWLEDGES THAT THE CONVEYANCE OF THE PERSONAL PROPERTY IS SPECIFICALLY MADE SUBJECT TO THE TERMS OF THE LEASE, AND "AS-IS" AND "WHERE-IS," WITHOUT ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FIlNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER. L . , \ ! BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS INSTRUMENT, NEITHER SELLER NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER, WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT TO, (i) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PERSONAL PROPERTY, (ii) THE SUITABILITY OF THE PERSONAL PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH MAY BE CONDUCTED ~REWITH, (iii) THE COMPLIANCE OF OR BY THE PERSONAL PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY, (iv) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PERSONAL PROPERTY, OR (v) ANY OTHER MATTER WITH RESPECT TO THE PERSONAL PROPERTY. BUYER SHALL RELY SOLELY ON ITS OWN INVESTIGATION OF THE PERSONAL PROPERTY AND NOT ON ANY STATEMENTS, REPRESENTATIONS, WARRANTIES OR INFORMATION MADE OR PROVIDED OR TO BE PROVIDED BY SELLER OR ITS AGENTS OR CONTRACTORS. SELLER SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS, WARRANTIES OR INFORMATION PERTAINING TO THE PERSONAL PROPERTY OR THE OPERATION THEREOF, FURNISHED BY ANY PARTY PURPORTING TO ACT ON BEHALF OF SELLER. EXECUTED on .2004. SELLER: Pelican Development, L.L.C., a Florida limited liability company By: Gravier Development, L.L.C., a Louisiana limited liability company ~-- By: Davi L. Ducote, Manager c. \ } EXHIBIT A Legal Description The North I Foot of Lot II, and all of Lots 12, 13 and 14, Block 15, Ocean Beach Addition No.2, according to the Plat thereof, recorded in Plat Book 2, Page 56, of the Public Records of Miami-Dade County, Florida. c: l , '-' EXHIBIT B Office: (Personal Property) I Dell CPU for access card system I Pelco Digital video recorder I Sylvania 15" LCD monitor (security) I Dell 17" LCD monitor I HP Laser Printer 1200 series I HP Office jet D135 printer (multifunction inkjet) I Time Clock I Cooler I Safe Box 4 Power back-up supply 16 boxes of ticket (spitter) 2 Desks 2 Chairs I Microwave 2 Shelf Units I Telephone Base Siemens 2 Cordless Phone Unit Siemens 2 Metal Cabinets 4 Boxes Thermal Paper for fee compo printer Garage: 66 Fire Extinguishers (5 in storage) 2 Cabinets 19 Rates Signs 14 Security Cameras Cashier: 2 Fee Computers 2 Printers (for fee comp.) I Credit Card Terminal I AC Unit I Water Dispenser I Monitor \\MIA-SRVO IlL YN011M\1554744v02\1 fx9z02 _.D0C\5/19104 . ( \,_.~ ) '. ASSIGNMENT OF SUBLEASE STATE OF ~ ~ ~ KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WHEREAS, by Assignment and Assumption of Lease of even date herewith, Pelican Development, L.L.C., a Florida limited liability company (ltAssie:Dor") conveyed to Ocean Blvd II, LLC, an Indiana limited liability company ("Assimee"), whose mailing address is 250 East 96th Street, Suite 580, Indianapolis, Indiana 46240, Seller's leasehold interest in and to that certain tract of land more particularly described in Exhibit A attached hereto and made a part hereof, together with all improvements located thereon (the "Real Propertv"); and WHEREAS, in connection with the above described conveyance, Assignor desires to sell, transfer and assign to Assignee all of its right, title and interest in and to the subleases, commission agreements and tenant finish contracts hereinafter described. NOW, THEREFORE, in consideration of the receipt of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows: I. Assignment of Subleases. Commission Agreements and Tenant Finish Contracts. Assignor hereby ASSIGNS, SETS OVER and TRANSFERS to Assignee, all of its right, title and interest in and to the sublease, including all security deposits and guaranties thereunder (collectively, the "Subleases") more particularly described in Exhibit B attached hereto and made a part hereof by reference. In consideration of the foregoing assignment, Assignee hereby assumes and agrees to perform, all of the obligations of Assignor under the Subleases arising or accruing on and after the date hereof, including, without limitation, any leasing commissions or tenant fInish costs relating to any future sublease renewals, and Assignee does. further agree to defend, indemnify and hold Assignor harmless from and against all loss, cost, claims, liability, expense or demand of whatever nature suffered or incurred by Assignor by reason of the failure of Assignee to perform any of the obligations assumed hereunder. 2. Miscellaneous. This Assignment and the obligations of the parties hereunder shall survive the conveyance of the Real Property and shall be bmding upon and inure to the benefIt of the parties hereto and their respective legal representatives, successors and assigns. I ( EXECUTED on ,2004. 2 ASSIGNOR: Pelican Development, L.L.C. a Florida limited liability company By: Gravier Development, L.L.C., a Louisiana limited liability company BY:~ - David L. Ducote, Manager 3 ASSIGNEE: Ocean Blvd II LLC an Indiana limited liability company ~ 6-"./1' "'~)~.EtC.~ w.-,~, IM7 By: ~ -I:. ~ .ZiJ Name (priDted): t';/ .4. ;f1}Up (,f Title: v~ ~ ( EXHIBIT A Legal Description The North I Foot of Lot II, and all of Lots 12, 13 and 14, Block 15, Ocean Beach Addition No.2, according to the Plat thereof, recorded in Plat Book 2, Page 56, of the Public Records of Miami-Dade County, Florida. 4 Co, ..' I f EXHIBIT B (Subleases) I. Lease dated as of January 17,2001 by and between Pelican Development, L.L.C., a Florida limited liability company, as Landlord, and E. Levy Corporation, a Florida corporation, as Tenant, as amended by Addendum dated January 17, 2001, Second Addendum dated June 7, 2002, and Third Addendum dated November 2003. \\MIA.SRVOIIL YN011M\1554742v02\IFX9M02_.D0C\5/19/04 5 ( I'RY 25 '84 16110 FR BJ5E MCKlt-lE:'1' l'lR1li Ig] 001 VVf."V~ ~~~vu r~ ( ) '. -~ 317 574 3716 TO 111~7a2 P.0<Vm rk~ ~ SECOND .AMENDMENT TO PURCHASE AND SALE AGREEMENT TBIS SECOND AMENDMENT is made as otthe clay of May, 2004, by and between PELICAN DEVELOPMENT. LLC., a Flotida IitDitcd liability company("SeJIer") and OCEAN BLVD II u.c, an Indiana Wnitcd liability company ("Purchuer"). l!BIBIA~: A Seller and Parchascr an: the partiu to that c:crl:lIin Purohue and Sale Agreement dated Novembet 24, 2003, as the aamc was unended by that ~ Pint Amendment to Purchase and Sale Agreement dated March 2.2, 2004 (collectively the . AsreemeDt") with respect to certain :real property 10cate4 in Miami Beach. Florida lIS more particularly deSCnDcd in Jhe.Apement (the ".Property"). B. The parties dcai~ to ameod the Agn:cmcm in certain respects as more particularly set fMh below. NOW, TRRREPORE, in consideratioo of the execution and delivery of the ~t and other good and valuable consideration, the receipt and lIllfficicncy of which are ~ acknowledged, the pu1ies hcleby fw:tbcr agree as follows: t. 1bis Amendment ahall be d~ a part of, but shall tam ~ence over and snpersede any provWons to the COI1tnll')' contained in the Agrc:c;ment. 2. . All initial capitalized terms used in this AIlu:mdment shall have the BlIIDe meaniDg 118 set forth in the AaIeement DD1css otbcrwise provided. 3. Seller and Purchaser herd>y agree that the Closing Date as dP.finM in Section 8.1 of1he Agreement will tab place on or befoJ:e]onc I, 2004. ~lJcr's agR:emmIt to extend the date for Closing is madD 011 the conclition that PIlrchaseI- extlCIJtc ancl deJiver all of the items required by Pulchaset fur Closing (including the cash to close due to Seller) into escrow on cr before May 28. 2004 sO that a wire tnmafcr of the cash to clOlie due to Seller wiD ocwr as c=ady on Tuesday, June 1. 2Ob4 as is possible.. 4. Except 85 spedfically moctified hereby, Il1l of the provisions of the Agn:cmcnt which am not in conflict with the tcmIa of this Ameudment 6haIl remain in 1W1 farce lII1d dft:ct. S. This Ameodmcnt may be executed in countczpan ariginals and by the separate parties hereto in separate counterpms, each of which when taken topther shall be <Ieeomed an 1 ( < ' This instrument prepared by or under the supervision of (and after recording should be returned to): Name: Richard J. Giusto, Esquire Address: Greenberg, Traurig, PA 1221 Brickell Avenue Miami, Aorida 33131 (Space Reserved for Clerk of Court) Parcel I.D. No .0232340080221 ASSIGNMENT AND ASSUMPTION OF LEASEHOLD ESTATE TillS ASSIGNMENT AND ASSUMPTION OF LEASEHOLD ESTATE is made and entered into as of the _ th day of , 2004 by Pelican Development, L.L.C., a Florida limited liability company ("Grantor"), whose mailing address is 601 Poydras Street, Suite 2011, New Orleans, LA 70130 and Ocean Blvd II LLC, an Indiana limited liability company ("Grantee"), whose taxpaler identifIcation number is 94- 0472650 and whose mailing address is 250 East 96 Street, Suite 580, Indianapolis, Indiana 46240. Wherever used herein, the terms"Grantor" and "Grantee" shall include all of the parties to this instrument and their successors and assigns. WITNESSETH: GRANTOR, for and in consideration of Ten and No/IOO Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has assigned, granted, bargained and sold, and by these presents does hereby assign, grant, bargain and sell to Grantee and Grantee's heirs, successors and assigns forever, that certain leasehold estate (the "Leasehold Estate") created by virtue of that certain lease more particularly described on Exhibit "B" attached hereto and made a part hereof (the "Lease") with respect to the following described land situate and being in Miami-Dade County, Florida (the "Property"), to wit: SEE EXHIBIT "A" ATTACHED HERETO AND MADEA PART HEREOF TOGETHER WITH all the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining. SUBJECT TO taxes and assessments for the year 2004 and subsequent years, laws, ordinances, regulations, restrictions, prohibitions and other requirements imposed by governmental authority, and the permitted exceptions as set forth on Schedule I (, attached hereto and made a part hereof, provided that this reference shall not operate to re-impose the same. TO HAVE and to hold the Leasehold Estate forever. GRANTOR hereby covenants with Grantee that it is lawfully seized of the Leasehold Estate, that it has good right and lawful authority to sell and convey the Leasehold Estate, that it hereby fully warrants the title to the Leasehold Estate and will defend the same against the lawful claims of all persons claiming by, through or under Grantor, but no others. GRANTOR hereby indemnifies and agrees to defend and hold harmless Grantee from and against any and all liabilities, obligations, claims, costs and expenses whatsoever which Grantee may incur or suffer arising under, accruing or on account of the Lease prior to the date hereof. GRANTEE hereby assumes all obligations of Grantor under the Lease arising after the date hereof. Grantee hereby indemnifies and agrees to defend and hold harmless Grantor from and against any and all liabilities, obligations, claims, costs and expenses whatsoever which Grantor may incw:or suffer arising under, accruing or on account of the Lease from and after the date hereof. (SIGNATURE PAGES FOLLOW] c IN WITNESS WHEREOF, Grantor and Grantee have hereunto set their hands and seals as of the day and year fIrst above written. GRANTOR: Witnessed by: Pelican Development, L.L.C., a Florida limited liability company ~ J:!!:;t1fi€rfi 5 J~ Pri Name: ~ () 1I w+c.. By: Gravier Development, L.L.C., a Louisiana limited liability company, its Manager ~ By: J~' David L. Ducote, Manager STATEOF Lov,t'J'\...J4 COUNTY OF DR.lcl\lI.1 ) ) ss: ) The foregoing instrument was acknowledged before me this ;;lo,l4ay of ~, 2004 by David L. Ducote, as Manager of Gravier Developme ompany, L.L.C., a Louisiana limited liability company, the Manager elic evelopment, L.L.C., a Florida limited liability company, on behalf of the c e i p rsonally known to me or produced as identifi My commission expires: ~ No ~ [Notarial Seal]' (, / ' , J ~,' GRANTEE: Witnessed by: Print Name: Ocean Blvd II LLC, an Indiana limited liability company !j1 j;hr~. . Ie--. ~~~~~'-U.I By: ~ 4:J. .~ Iv . M~ Name: OM/I'd fh ~1IM- Title: VI Print Name: STATEOF~~ ::. '_d . )ss: COUNTY art ~/C ) /1/7 The foregoing inst:rup1ent was acknowledged before me this "').(p day of IJ'I~ 2004 by~ l)~ ~~Vl:... (~ as ,,.S\~\) ~R.s:..~M\\.""" of OceabBlvd II LLC. an Indilm~ limited liability compapy, on behalf f the company. He/she is personally known to me or produced mitI'Uz5 ,.1 lll.l(,(j 0 a~ identiftcation. ~ . _ 'S>~ I. I. c/!;~~ My commission expires: ) / g { (2.CO 1"- [Notarial Seal] 1 f)" BRY~i;8LmEN . ~..' . . . NOrARYPlI8I"I~-"'EsorA Pi% ' My Com- L .1Ipne ~ "~;~,::.....' .-..,11.., ( EXHIBIT "A" Legal Description The North I Foot of Lot II, and all of Lots 12, 13 and 14, Block 15, Ocean Beach Addition No.2, according to the Plat thereof, recorded in Plat Book 2, Page 56, of the Public Records of Miami-Dade County, Florida. ( EXHIBIT "B" Lease Agreement of Lease between City of Miami Beach, Florida (Owner) and Pelican Development, LLC (Tenant) dated as of December I, 1999 _10th Street Project. JUN-02-2004 15:34 CITY ATTORNEY M I AM [ BEACH 305673 7002 P.10/21 CONSENT The undersigned hereby consents to the foregoing Assignment and Assumption of Leasehold Estate from Pelican Development, L.L.C., as Grantor, to Ocean Blvd II LLC, as Grantee. CITY OF MIAMI BEACH, FLORIDA. a municipal corporation of the State of Florida ~~-J,;~ m/)p~'L Title: ?'"k'"7Y i)1."fl.I1,r~/l.. Attest: - City Clerk APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ~ (r SCHEDULE 1 rPermitted Exceptions] I. Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate surveyor inspection of the property. 2. Any adverse claim to any portion of said land which has been created by artificial means or has accreted to any such portion so created and riparian rights, if any. 3. The lien of taxes for the year 2004 and all subsequent years, which are not yet due and payable. 4. Provisions of the Plat of Ocean Beach, FLA, Addition No.2, recorded in Plat Book 2, Page 56 of the Public Records of Miarni-Dade County, Florida. 5. Terms, conditions, and provisions of City of Miami Beach Resolution No. 99- 23266 and the Memorandum attached thereto, as evidenced by and as modifIed by Agreed Order of Approval, recorded August 5,1999 in OR. Book 18721, Page 4615. 6. All of the terms and provisions set forth and contained in that certain Lease between City of Miami Beach, Florida, Lessor, and Pelican Development, L.L.C., Lessee, recorded in O.R. Book 18938, Page 2422. 7. Terms and conditions of the Development Agreement between City of Miami Beach, Florida and Pelican Development, L.L.C. recorded in O.R. Book 18938, Page 2648. 8. Order, recorded November 1,2000 in OR. Book 19347, Page 1760. 9. Order, recorded June 21, 2001 in OR. Book 19734, Page 4848. 10. Conditional Use Permit, recorded July 27, 2001 in OR. Book 19802, Page 3060. II. Easement granted to Florida Power & Light Company by instrument recorded in OR. Book 20298, Page 1709. 12. All of the terms and provisions set forth and contained in that certain Lease between Pelican Development L.L.C., a Florida limited liability company, Lessor, and E. Levy Corporation, Inc., a Florida corporation, Lessee, a memorandum of which is recorded in OR Book 20467, Page 1031. Unless otherwise indicated, aU of the recording information listed on this Schedule 1 refers to the Public Records of Miami-Dade County, Florida. \\MIA.SRVO I \L YN011M\1554735v03\1 fX9f03 _.D0C\5/19/04 c' . , SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT TIDS SECOND AMENDMENT is made as of the day of May, 2004, by and between PELICAN DEVELOPMENT, L.L.C., a Florida limited liability company("Seller") and OCEAN BLVD II LLC, an Indiana limited liability company ("Purchaser"). WHEREAS.: A. Seller and Purchaser are the parties to that certain Purchase and Sale Agreement dated November 24, 2003, as the same was amended by that certain First Amendment to Purchase and Sale Agreement dated March 22, 2004 (collectively the "Agreement") with respect to certain real property located in Miami Beach, Florida as more particularly described in the Agreement (the "Property"). B. The parties desire to amend the Agreement in certain respects as more particularly set forth below. NOW, THEREFORE, in consideration of the execution and delivery of the Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby further agree as follows: I. This Amendment shall be deemed a part of, but shall take precedence over and supersede any provisions to the contrary contained in the Agreement. 2. All initial capitalized terms used in this Amendment shall have the same meaning as set forth in the Agreement unless otherwise provided. 3. Seller and Purchaser hereby agree that the Closing Date as defIned in Section 8.1 of the Agreement will take place on or before June 1,2004. Seller's agreement to extend the date for Closing is made on the condition that Purchaser execute and deliver all of the items required by Purchaser for Closing into escrow on or before May 28,2004 so that Purchaser's lender will fund Purchaser's loan and enable Purchaser to wire transfer the cash to close due to Seller as early on Tuesday, June 1,2004 as is possible. "- 4. Except as specifically modified hereby, all of the provisions of the Agreement which are not in conflict with the terms of this Amendment shall remain in full force and effect. 5. This Amendment may be executed in counterpart originals and by the separate parties hereto in separate counterparts, each of which when taken together shall be deemed an 1 c ~, _J original and shall constitute one and the same instrument. Signatures of the parties hereto on copies of this Amendment transmitted by facsimile machine shall be deemed originals for all purposes hereunder, and shall be binding upon the parties hereto. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the dates written below. SELLER: PELICAN DEVELOPMENT, L.L.C., a Florida limited liability company By: Name Title: Date: May _' 2004 PURCHASER: OCEAN BLVD II, LLC an Indiana limited liability company By: /rF/A..} Date: Ma~, 2004 \\MIA-SRV01\LYNOTTK\1559919vOl\lFJBF01_.DOC\5/24/04\62595.010100 2 ** TOTAL PAGE.05 ** VV/.,/V,,* ......v,...~~_. (c ) !'WoW 25 '04 16:10 FR BOSE I'O<II'oIEY tmTH 317574 3716 TO 111U"i'83S154#171il2 P.05/05 III 00% original and shall ~~ oue aDd the same iDsln1mem. Signatul:C$ of the parties hereto on copies of this Amendment tI'iIn$lDitted by fat:$imiIc !IlllChiDc shall be dfoemed originals for all purpescs hereunder. and shall be binding upon tha parties bmeto. IN WITNESS IWHEREOF, the parties hereto have executM this Amendment as of the dates written below. RRT .T li'.R: PEIlCANDlMlLoPMBNT, LLC-. a Florida limited Ii&biHty company By: ~ Name .....;,J L,tJaul-e ntJe: ~ DatC: May::!... 2004 PURCHASER: Date: Ma~ 2004 .OCEAN BL VI> R.u.c . an Indiana limited Hability amIpaIlY By: JI(~' ~=: ~~ ~'~FNJ '\KXA-SKV01'L~'1559919Y01\~l-.DOC\5/24/0t"259'_Ol0100 2 ** TUrFL PFCE.05 "'*