EX-10.3 4 a06-15826_1ex10d3.htm EX-10 PURCHASE AND SALE AGREEMENT
Exhibit 10.3
ARTICLE 1: PROPERTY/PURCHASE PRICE
1.1 Certain Basic Terms.
(a) Purchaser and Notice Address: 1100 West Properties, LLC c/o The Morgans Hotel Group Co. 000 00xx Xxxxxx 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxx Xxxxxx Telephone: 212/000-0000 Facsimile: 212/277/4270 Email: xxxx.xxxxxx@xxxxxxxxxxxxxxxxx.xxx
c/o Hudson Capital 0000 Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxxxx 00000 Attn: Xxxxxxx Xxxxxx Telephone: 305/000-0000 Facsimile: 305/531-6987 Email: xxxxxxx@xxxxxx.xxx |
With a copy to: Xxxxx X. Xxxxxx, Esq. XxXxxxxxx Will & Xxxxx LLP 00 Xxxxxxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Telephone: 212/000-0000 Facsimile: 212/547-5444 Email: xxxxxxx@xxx.xxx
With a copy to Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxx, Xxxxxxx 00000 Attn: Xxxxx Xxxxxxx, Esq. Telephone: 305/000-0000 Facsimile: 305/579-0717 Email: xxxxxxxx@xxxxx.xxx |
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(b) Seller and Notice Address: 1100 West Realty, LLC Attn: Xxxxxxx X. Xxxxxx & Xxxxxx Xxxxxxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxxxx 00000 Telephone: 305/000-0000 (Galbut); 305/374-5700 (Xxxxxxxxxxxx) Facsimile: 305/573-8489 (Galbut); 305/573-2315 (Xxxxxxxxxxxx) E-mail: xxxxxxx@xxxxxxxxxxxxxxx.xxx; xxxxxxxxxxxxx@xxxxxxxxxxxxxxx.xxx |
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(c) Title Company: First American Title Insurance Company Attn: Xxxxxx X. Xxxxxx, Vice President 0000 Xxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxx, XX 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Email: xxxxxxx@xxxxxxx.xxx |
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(e) |
Date of this Agreement: |
The latest date of execution by the Seller and the Purchaser, as shown on the signature page hereto. |
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(f) |
Purchase Price: |
One Hundred Ten Million Dollars and 00/100 Dollars ($110,000,000), payable in accordance with the terms set forth in Section 1.3 hereof. |
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(g) |
Closing Date: |
The Date of this Agreement. |
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1.2 Property. Subject to the terms of this Purchase and Sale Agreement (the “Agreement”), Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the following property:
(a) All of the fee simple title to the parcel of land commonly known as 0000 Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx as more particularly described in Exhibit A (the “Parcel”), together with the building and improvements thereon (the “Improvements”), and all appurtenances of the Parcel, including easements or rights-of-way relating thereto, and, without warranty, all right, title, and interest, if any, of Seller in and to the land lying within any street or roadway adjoining the Parcel to adjacent parcels or any vacated or hereafter vacated street or alley adjoining said Parcel.
(b) All of Seller’s right, title and interest, in and to all furniture, machinery, apparatus, equipment and other tangible personal property owned by Seller, currently used solely in connection with the operation of the Parcel and Improvements and situated thereon, including all fixtures and furniture, equipment, and other tangible personal property listed on Exhibit C attached hereto (the “Personal Property”) but excluding word processing and computing equipment (other than any non-proprietary information on the computer equipment related solely to the Property and its operations) and any items of personal property owned by tenants, any managing agent or others. The parties acknowledge that no portion of the Purchase Price is attributable to the Personal Property.
(c) All of Seller’s interest, as landlord, in the leases or occupancy agreements described in the rent roll (the “Rent Roll”) attached hereto as Exhibit F, together with all existing amendments, modifications, and supplements to the foregoing, as well as all guaranties thereof (collectively, “Leases”), together with any prepaid rents and security deposits held by Seller under the Leases subject to the terms of this Agreement.
(d) All of Seller’s right, title and interest, if any, in and to all of the following items, to the extent assignable and without warranty (the “Intangible Personal Property”): (i) all consents, authorizations, variances or waivers, licenses, permits and approvals from any governmental or quasi-governmental agency, department, board, commission, bureau or other entity or instrumentality, held by Seller in connection with the Property (defined below), (ii) the right to use the name of the Property (if any) in connection with the Property, but specifically excluding the right to use the name “Crescent Heights” and any other trademarks, logos, trade colors, service marks and trade names of Seller and Seller’s Affiliates (as defined in Section 2.4 below) if any, (iii) if still in effect, guaranties and warranties received by or for Seller from any contractor, manufacturer or other person in connection with the construction or operation of the Property, and (iv) any non-proprietary information on the Seller’s (or its property manager’s) computer equipment related solely to the Property and its operations, and any telephone numbers and addresses and other similar intangibles, if any, related solely to the Property and its operations.
(e) The contracts identified in the schedule of contracts attached hereto as Exhibit G, which extend beyond the date of Closing (collectively, “Service Contracts”).
(f) Condominium Xxxx XX00, Xxxxxxx 0000, as more particularly described in Exhibit A as Parcel 2 (“CU 12”).
(g) Condominium Xxxx XX00, Xxxxxxx 0000, as more particularly described in Exhibit A as Parcel 3 (“CU 10”).
(h) All of Seller’s Affiliates’ right, title and interest as lessee in and to the following (collectively, the “Submerged Lands Leases”):
(i) Sovereignty Submerged Lands Lease Renewal (“1200 Submerged Lands Lease”) between 1200 West Realty, LLC (“1200 LLC”) and the Trust Fund (as defined below) filed January 12, 2006, in Official Records Book 24141 at Page 1866; and,
(ii) Sovereignty Submerged Lands Lease Renewal and Modification to Reflect Change in Ownership (“Mirador Submerged Lands Lease”) between Mirador 1000, LLC (“1000 LLC”) and the Trust Fund filed December 16, 2004, in Official Records Book 22913 at Page 825.
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The Parcel described on Exhibit A, together with the Improvements and Personal Property located thereon, the Leases related thereto, the Intangible Personal Property used in connection therewith, and the Service Contracts , CU 10, CU 12, and the Submerged Lands Leases, are referred to together as the “Property.”
1.3 Assignment of Submerged Lands. Purchaser acknowledges and agrees that the consent of the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (the “Trust Fund”) is required for the assignment of the Submerged Land Leases from Seller to Purchaser and consent may not be sought until the recordation of the deeds to CU 10 and CU 12 have been recorded. Seller agrees that it shall request the Trust Fund’s consent for the assignment of the Submerged Lands Leases to Purchaser in connection with the Closing and Seller shall cooperate with Purchaser in obtaining such consent, it being agreed that Seller shall have no liability to Purchaser if the Trust Fund does not consent to the assignment. The terms of this Section 1.3 shall survive the Closing.
1.4 The Purchase Price shall be payable at Closing, as follows:
(i) One Hundred Eight Million ($108,000,000) less any amounts to be credited to the Purchaser pursuant to Section 6.1 hereof; and,
(ii) Two Million Dollars ($2,000,000) to be deposited into escrow with Xxxxxxxxx Xxxxxxx (“GT”) pursuant to an escrow agreement among Seller, Purchaser and GT in the form attached hereto as Exhibit I (the “GT Escrow Agreement”) and disbursed to Purchaser in accordance with Section 5.11 of this Agreement.
1.5 Allocation of Purchase Price. The parties hereto agree that a total of $21,188,024.00 of the Purchase Price is allocable to the Parcel and the balance of the Purchase Price is allocable to the other items constituting Property as defined in Section 1.2 hereof.
(a) real estate tax bills for the previous two tax years;
(b) true and correct copies of all of the Leases, together with Seller’s leasing files and tenant correspondence files.
(c) operating statements for the two previous fiscal years, and year-to-date, for the Property (the “Operating Statements”);
(d) true and correct copies of the Service Contracts;
(e) any existing land title survey of the Property (the “Existing Survey”);
(f) any environmental reports prepared for Seller or Seller’s predecessors, if in Seller’s possession, including the tests or reports on lead-based paint described on Exhibit D attached hereto; and
(g) engineering reports; proposed, conceptual, preliminary or final site plans; geotechnical\soil analysis; governmental permits, approvals and development orders; zoning information; utility service information; building inspection reports; warranties, if any, from third parties for the Improvements, including roof; certificates of occupancy for all structures on the Property; as well as any other documentation relating to the leasing, maintenance and operation of the Property reasonably requested by Purchaser in connection with Purchaser’s inspection of the Property, to the extent in the possession of Seller.
Except as otherwise expressly provided herein, Seller makes no representations or warranties as to the accuracy or completeness of the Property Information and Purchaser will be solely responsible for evaluating any
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such information provided by Seller to Purchaser for purposes of determining the suitability of the Property for Purchaser’s intended use.
2.3 Inspections in General. Purchaser, its agents, and employees have had the right to enter upon the Property prior to the date of this Agreement through and including the Closing Date for the purpose of making non-invasive inspections at Purchaser’s sole risk, cost and expense. At Seller’s request, Purchaser shall provide Seller with a copy of the results of any tests and inspections made by Purchaser, excluding only market and economic feasibility studies. Purchaser shall defend, indemnify Seller and hold Seller, Seller’s trustees, officers, tenants, agents, contractors and employees and the Property harmless from and against any and all losses, costs, damages, claims, or liabilities, including but not limited to, mechanic’s and materialmen’s liens and Seller’s attorneys’ fees, arising out of or in connection with Purchaser’s inspection of the Property, but excluding losses, costs, damages, claims, or liabilities related to discovery of conditions that existed prior to Purchaser’s inspection. Purchaser, its agents, and employees have had the right to enter upon the Property prior to the date of this Agreement through and including the Closing Date, and subject to the terms of the Leases to inspect apartments, for the purpose of preparing a condominium survey. The provisions of this paragraph shall survive the Closing.
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ARTICLE 3: TITLE AND SURVEY REVIEW
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Company to final judgment and has not been made whole. The provisions of this Paragraph 3.4 shall survive Closing and delivery of the Deed.
ARTICLE 4: Termination of Service Contracts
5.2 Conditions to the Parties’ Obligations to Close. The obligation of Seller, on the one hand, and Purchaser, on the other hand, to consummate the transaction contemplated hereunder is contingent upon the following:
(a) The other party’s representations and warranties contained herein shall be true and correct in all material respects as of the Date of this Agreement and the Closing Date;
(b) As of the Closing Date, the other party shall have performed its obligations hereunder and all deliveries to be made at Closing have been tendered. There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against the other party that would materially and adversely affect the other party’s ability to perform its obligations under this Agreement;
(c) There shall exist no pending or threatened action, suit or proceeding with respect to the other party before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transaction contemplated hereby;
(d) Seller shall have closed the transactions under the Assigned Contracts (as defined below) and caused title thereunder to be conveyed to Purchaser, as Seller’s designee, and the ground lease referenced in the Assigned Contracts shall have been terminated of record. As used herein the term “Assigned Contracts” means (x) that certain Purchase and Sale Agreement, dated as of April 28, 2006 between Xxxxxx Xxxxxxxxxx, as seller and Seller as purchaser and (y) that certain Purchase and Sale Agreement, dated as of April 28, 2006, between Honey Xxxxxxx, as seller and Seller as purchaser.
So long as a party is not in default hereunder, if any condition to such party’s obligation to proceed with the Closing hereunder has not been satisfied as of the Closing Date, such party may, in its sole discretion, terminate this Agreement by delivering written notice to the other party on or before the Closing Date, or elect to close, notwithstanding the non-satisfaction of such condition, in which event such party shall be deemed to have waived any such condition. If such party elects to close, notwithstanding the nonsatisfaction of such condition, there shall be no liability on the part of the other party for nonsatisfaction of such condition or for breaches of representations and warranties of which the party electing to close had knowledge as of the Closing.
Notwithstanding the foregoing, if Purchaser elects to terminate this Agreement because the condition described in item 5.2(d) above has not been timely satisfied, then Seller shall reimburse Purchaser for all of Purchaser’s actual out-of-pocket expenses in connection with this transaction, including, without limitation, all attorneys’ fees and costs, due diligence costs, and loan application and commitment fees, in an aggregate amount of
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up to One Million Dollars ($1,000,000), such reimbursement to be made by Seller to Purchaser within ten (10) days after Seller receives evidence of such actual out-of-pocket costs incurred by Purchaser.
(b) Xxxx of Sale and Assignment of Leases and Contracts. A Xxxx of Sale and Assignment of Leases and Service Contracts in the form of Exhibit B attached hereto (the “Assignment”), executed by Seller.
(c) State Law Disclosures. Such disclosures and reports (including State transfer tax and reporting forms) as are required by applicable state and local law in connection with the conveyance of real property;
(d) FIRPTA. A Foreign Investment in Real Property Tax Act affidavit executed by (x) Seller (y) 1000 LLC and (z) 1200 LLC.
(f) The GT Escrow Agreement. The GT Escrow Agreement, executed by Seller.
(i) Rent Roll. An updated Rent Roll for the Property certified as accurate by the Seller.
(m) 1200 Estoppel Letter. An Estoppel Letter from the Mirador 1200 Condominium Association in the form of Exhibit L attached hereto.
(n) 1000 Estoppel Letter. An Estoppel Letter from the Mirador 1000 Condominium Association in the form of Exhibit M attached hereto.
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(o) Ground Lease Termination. A Termination of Ground Lease in the form attached hereto as Exhibit N, executed by Seller, Honey Xxxxxxx and Xxxxxx Xxxxxxxxxx.
(b) Xxxx of Sale. The Assignment executed by Purchaser.
(c) Assignment of Submerged Land Leases. An Assignment of Submerged Land Leases executed by Purchaser.
(d) State Law Disclosures. Such disclosures and reports (including State transfer tax and reporting forms) as are required by applicable state and local law in connection with the conveyance of real property.
(e) Notice to Tenants. The Notice to Tenants executed by Purchaser.
(f) The GT Escrow Agreement. The GT Escrow Agreement, executed by Purchaser.
(g) Assignment of Declarant’s Rights. An Assignment of Declarant’s Rights in the form attached hereto as Exhibit E, executed by Purchaser.
(h) Letter to Xxxxxxxxxx. A letter to Xxxxxx Xxxxxxxxxx in the form of Exhibit K attached hereto, executed by Purchaser.
(i) Letter to Xxxxxxx. A letter to Honey Xxxxxxx in the form of Exhibit K-1, executed by Purchaser.
5.6 Title Policy. The Title Policy shall be delivered at Closing as provided in Paragraph 3.3.
5.9 Costs. Each party shall pay its portion of the following costs as indicated below:
(a) Survey – Purchaser
(b) Title Policy:
(i) Basic premium, including search and exam fees – Purchaser
(ii) Extended coverage – Purchaser
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(iii) Endorsements – Purchaser
(c) Documentary, transfer, excise and similar fees, including the surtax – Seller
(d) Recording charges:
(i) Instruments to remove encumbrances that Seller is obligated to remove – Seller
(ii) Deeds – Purchaser
(e) Appraisals, engineering studies, termite inspections, environmental inspections and other inspections and tests desired by Purchaser – Purchaser
(f) Other – The Escrow Agent’s escrow fee shall be evenly divided between the parties (provided that the total fee shall not exceed $500.00). Each party shall pay its own attorneys’ fees. Purchaser shall pay any escrow cancellation fee or other fees due upon a termination of this Agreement. All other costs not addressed above shall be borne according to local custom.
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accrue subsequent to the year of Closing, and the parties shall prorate the installment which is due for the year of the Closing.
(d) Fees and Charges under Service Contracts, Licenses and Permits. Fees and charges under such of the Service Contracts, licenses and permits as are being assigned to and assumed by Purchaser at the Closing, on the basis of the periods to which such Service Contracts, licenses and permits relate shall be prorated.
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ARTICLE 7: REPRESENTATIONS AND WARRANTIES
(a) Organization and Authority. Seller has been duly organized and is validly existing as a limited liability company in good standing in the State of Delaware, and is qualified to do business in the State of Florida. Seller has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Seller, enforceable in accordance with their terms.
(b) Conflicts and Pending Action. There is no agreement to which Seller is a party or to Seller’s knowledge binding on Seller which is in conflict with this Agreement. There is no action or proceeding pending or, to Seller’s knowledge, threatened against Seller which challenges or impairs Seller’s ability to execute or perform its obligations under this Agreement. Except as described in Item 10 of Schedule B-1 to the Title Commitment, there is no pending litigation brought by or against Seller or affecting the Property (including, without limitation, the Leases or the Service Contracts) or the operation of the Property.
(e) Employees. Seller has on-site employees in connection with the management, operation or maintenance of the Property. Purchaser shall have no obligation, liability or responsibility to hire such employees or
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with respect to charges, salaries, vacation pay, fringe benefits or like items subsequent to Closing, nor with respect to any management or employment agreements with respect to the Property.
(i) Submerged Land Leases. Seller has provided to Purchaser true and correct copies of the Submerged Land Leases; and, to Seller’s best knowledge, each is in full force and effect. Neither Seller nor, to Seller’s knowledge, any other party thereunder is in material default (or has an event occurred that with notice or lapse of time or both would constitute a material default) under any Submerged Land Lease. Seller has received no notice that any party to any Submerged Land Lease intends to cancel or terminate such agreement.
“Seller’s knowledge,” as used in this Agreement means the current actual knowledge of Xxxxx Xxxxxx, who is the Operations Manager for the Property, after making a reasonable inquiry or investigation. Seller’s maximum aggregate liability for damages arising from all breaches of the foregoing representations, whether discovered before or after Closing, shall be limited to Purchaser’s actual damages (and specifically excluding consequential, punitive and exemplary damages) not to exceed Three Million Dollars ($3,000,000), which limitation shall not include or affect any final reprorations after Closing under Article 6 or any indemnification obligations under this Agreement.
(a) Organization and Authority. Purchaser has been duly organized and is validly existing as a limited liability company, in good standing in the state of its formation and is qualified to do business in the State of Florida. Purchaser has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Purchaser at the Closing will be, authorized and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Purchaser, enforceable in accordance with their terms.
(b) Conflicts and Pending Action. There is no agreement to which Purchaser is a party or to Purchaser’s knowledge binding on Purchaser which is in conflict with this Agreement. There is no action or proceeding pending or, to Purchaser’s knowledge, threatened against Purchaser which challenges or impairs Purchaser’s ability to execute or perform its obligations under this Agreement.
ARTICLE 8: INTENTIONALLY DELETED
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9.2 Confidentiality. Purchaser shall not record this Agreement or any memorandum of this Agreement.
9.9 Time. Time is of the essence in the performance of this Agreement.
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and expenses, including attorneys’ fees, expended or incurred in connection therewith at all trial and appellate levels.
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subsequent to the exchanging party’s obligations under this Agreement; (b) the exchanging party shall effect its Exchange through an assignment of this Agreement, or its rights under this Agreement, to a qualified intermediary (c) neither party shall be required to take an assignment of the purchase agreement for the relinquished or replacement property or be required to acquire or hold title to any real property for purposes of consummating an Exchange desired by the other party; and (d) the exchanging party shall pay any additional costs that would not otherwise have been incurred by the non-exchanging party had the exchanging party not consummated the transaction through an Exchange. Neither party shall by this Agreement or acquiescence to an Exchange desired by the other party have its rights under this Agreement affected or diminished in any manner or be responsible for compliance with or be deemed to have warranted to the exchanging party that its Exchange in fact complies with §1031 of the Code.
9.20 Lead Warning Statement. EVERY PURCHASER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY ON WHICH A RESIDENTIAL DWELLING WAS BUILT PRIOR TO 1978 IS NOTIFIED THAT SUCH PROPERTY MAY PRESENT EXPOSURE TO LEAD FROM LEAD-BASED PAINT THAT MAY PLACE YOUNG CHILDREN AT RISK OF DEVELOPING LEAD POISONING. LEAD POISONING IN YOUNG CHILDREN MAY PRODUCE PERMANENT NEUROLOGICAL DAMAGE, INCLUDING LEARNING DISABILITIES, REDUCED INTELLIGENCE QUOTIENT, BEHAVIORAL PROBLEMS, AND IMPAIRED MEMORY. LEAD POISONING ALSO POSES A PARTICULAR RISK TO PREGNANT WOMEN. THE SELLER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY IS REQUIRED TO PROVIDE THE PURCHASER WITH ANY INFORMATION ON LEAD-BASED PAINT HAZARDS FROM RISK ASSESSMENTS OR INSPECTIONS IN THE SELLER’S POSSESSION AND NOTIFY THE PURCHASER OF ANY KNOWN LEAD-BASED PAINT HAZARDS. A RISK ASSESSMENT OR INSPECTION FOR POSSIBLE LEAD-BASED PAINT HAZARDS IS RECOMMENDED PRIOR TO PURCHASE.
By its execution of this Agreement, Purchaser acknowledges that (a) it has read and understand the foregoing Lead Warning Statement, (b) it has reviewed the Property Information concerning lead-based paint or lead-based paint hazards located on the Property, including the materials listed on Exhibit D attached hereto, and (c) Seller has provided, or Purchaser has independently obtained, a lead hazard information pamphlet in the form prescribed by the Environmental Protection Agency under Section 406 of the Toxic Substances Control Act. Purchaser may conduct such studies and tests for lead-based paint as Purchaser deemed appropriate. By its execution of this Agreement, Seller acknowledges that, to the best of Seller’s knowledge, the statements contained herein and the information provided, or to be provided, to the Purchaser pursuant to the terms of this Agreement concerning lead-based paint and lead-based paint hazards are accurate.
9.21 Radon. Florida law requires the following disclosure to be given to the purchaser of property in this State. Seller has made no independent inspection of the Property to determine the presence of conditions which may result in radon gas; however, Seller is not aware of any such condition. Certain building methods and materials have been proven to reduce the possibility of radon gas entering the building:
“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 over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida.
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Additional information regarding radon and radon testing may be obtained from your county public health unit.”
9.22 Condominium Conversion Disclaimer. Notwithstanding anything contained in this Agreement to the contrary, neither Seller nor Seller’s predecessor in title constructed the Improvements as a condominium or constructed the Improvements with the intent to convert the Improvements into a condominium, pursuant to Chapter 718, Florida Statutes. Except to the extent of Seller’s representations and warranties expressly set forth herein, Seller specifically disclaims any warranties, representations or guarantees of any kind or character, express or implied, with respect to the Improvements if the Property is converted to a condominium form of ownership by Purchaser or by Purchaser’s successors and/or assigns. In no event shall Seller have any liability of any kind or nature arising from the conversion of the Property to a residential condominium or the sale of individual condominium units, whether to condominium unit owners, contract vendees of condominium units or any condominium association formed with respect to the Property. Purchaser hereby covenants and agrees that if Purchaser elects to convert the Property to a condominium, Purchaser shall include in its individual sales contracts with condominium unit purchasers a disclaimer whereby each individual unit purchaser disclaims, to the maximum extent permitted by applicable law, any liability or responsibility of any kind or nature, including negligent construction of any portion of the Improvements, and acknowledges that Purchaser purchased the Property in on “as is” basis (but only to the extent same is not prohibited by applicable laws nor is Purchaser or its successors and/or assigns subject to material penalties or fines for inclusion of same). To the extent same is not prohibited by applicable laws nor is Purchaser or its successors and/or assigns subject to material penalties or fines for inclusion of same, Purchaser shall incorporate such disclaimer into its general disclaimer language in both its condominium prospectus and its form purchase and sale contract for the condominium sales. Purchaser shall prepare such disclaimer language during the Inspection Period and shall provide such disclaimer to Seller for Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. To the extent same is not prohibited by applicable laws nor is Purchaser or its successors and/or assigns subject to material penalties or fines for inclusion of same, Purchaser (i) shall not enter into any sales contracts for the sale of individual condominium units prior to the approval of such disclaimer language and (ii) shall enter into any sales contracts for the sale of individual condominium units only after the approved disclaimer language has been included therein. Purchaser agrees that if it obtains defect insurance for the Property, it shall name Seller as an additional insured thereon provided that adding Seller as an additional insured is at no cost to Purchaser. This Section shall survive the Closing and shall not be merged with the Deed.
9.24 OFAC. Purchaser, and all beneficial owners of Purchaser, are in compliance with all laws, statutes, rules and regulations of any federal, state or local governmental authority in the United States of America applicable to such persons or entities, including, without limitation, the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the “Order”) and other similar requirements contained in the rules and regulations of the Office of Foreign Asset Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively called the “Orders”). Purchaser hereby agrees to defend, indemnify, and hold harmless Seller from and against any and all claims, damages, losses, risks, liabilities, and expenses(including actual attorneys fees) arising from or related to any breach of the provisions of this Paragraph 9.24. Purchaser shall also pay all costs and expenses incurred by Seller in defending a threatened or pending civil or criminal action, suit, or proceeding described in this section in advance of the final disposition of the threatened or pending action, suit, or proceeding, on receipt of an undertaking by or on behalf of the Seller to repay the costs and expenses, if it is ultimately determined that the person is not entitled to be indemnified by the Purchaser. The undertaking shall be an unlimited general obligation of the Seller, but need not be secured.
9.25 Terrorism. Neither Purchaser, nor any beneficial owner of Purchaser: (a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the “Lists”); (b) is a person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (c) is owned or controlled by, or acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders. Purchaser hereby agrees
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to defend, indemnify, and hold harmless Seller from and against any and all claims, damages, losses, risks, liabilities, and expenses(including actual attorneys fees) arising from or related to any breach of the provisions of this Paragraph 9.25. Purchaser shall also pay all costs and expenses incurred by Seller in defending a threatened or pending civil or criminal action, suit, or proceeding described in this section in advance of the final disposition of the threatened or pending action, suit, or proceeding, on receipt of an undertaking by or on behalf of the Seller to repay the costs and expenses, if it is ultimately determined that the person is not entitled to be indemnified by the Purchaser. The undertaking shall be an unlimited general obligation of the Seller, but need not be secured.
ARTICLE 10: “AS-IS” PURCHASE
10.1 No person acting on behalf of Seller is authorized to make, and by execution hereof, Purchaser acknowledges that no person has made, any representation, agreement, statement, warranty, guarantee or promise regarding the Property or the transaction contemplated herein or the zoning, construction, physical condition or other status of the Property except as may be expressly set forth in this Agreement or the closing documents delivered by Seller. No representation, warranty, agreement, statement, guarantee or promise, if any, made by any person acting on behalf of Seller which is not contained in this Agreement or the closing documents delivered by Seller will be valid or binding on Seller.
10.2 PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT AND IN THE DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (I) VALUE; (II) THE INCOME TO BE DERIVED FROM THE PROPERTY; (III) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING, WITHOUT LIMITATION, THE POSSIBILITIES, IF ANY, FOR FUTURE DEVELOPMENT OF THE PROPERTY; (IV) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (V) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (VI) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE INDOOR AND OUTDOOR ENVIRONMENT AIR QUALITY, WATER, SOIL AND GEOLOGY; (VII) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (VIII) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY; (IX) COMPLIANCE WITH ANY FEDERAL, STATE, AND LOCAL ENVIRONMENTAL PROTECTION, POLLUTION, HEALTH AND SAFETY OR LAND USE LAWS, RULES, REGULATIONS, ORDINANCES, ORDERS, REQUIREMENTS OR COMMON LAW, INCLUDING, WITHOUT LIMITATION, TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED, THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED, THE RESOURCE CONSERVATION AND RECOVERY ACT, AS AMENDED, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, THE SAFE DRINKING WATER ACT, AS AMENDED, THE HAZARDOUS MATERIALS TRANSPORTATION ACT, AS AMENDED, THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, AS AMENDED, THE TOXIC SUBSTANCE CONTROL ACT, AS AMENDED, AND REGULATIONS PROMULGATED UNDER ANY OF THE FOREGOING AND ANALOGOUS STATE STATUTES AND REGULATIONS; (X) THE PRESENCE OR ABSENCE OF MOLD OR HAZARDOUS OR TOXIC MATERIALS, SUBSTANCES OR WASTE AT, ON, UNDER, OR ADJACENT TO THE PROPERTY; (XI) THE CONTENT, COMPLETENESS OR ACCURACY OF
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THE DUE DILIGENCE MATERIALS OR PRELIMINARY REPORT REGARDING TITLE; (XII) THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS OR SPECIFICATIONS FOR THE PROPERTY INCLUDING ANY PLANS AND SPECIFICATIONS THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PURCHASER; (XIII) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR FUTURE APPLICABLE ZONING OR BUILDING REQUIREMENTS; (XIV) DEFICIENCY OF ANY UNDERSHORING, (XV) DEFICIENCY OF ANY DRAINAGE; (XVI) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE; (XVII) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE PROPERTY; OR (XVIII) WITH RESPECT TO ANY OTHER MATTER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND REVIEW INFORMATION AND DOCUMENTATION AFFECTING THE PROPERTY, PURCHASER IS, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT AND IN THE DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING, RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND REVIEW OF SUCH INFORMATION AND DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT AND IN THE DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING, ANY INFORMATION MADE AVAILABLE TO PURCHASER OR PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. EXCEPT FOR LIABILITY FOR BREACHES OF SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT AND IN THE DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING (BUT SUBJECT TO THE EXPRESS LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT), PURCHASER AGREES TO FULLY AND IRREVOCABLY RELEASE SELLER FROM ANY AND ALL CLAIMS THAT PURCHASER MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST SELLER FOR ANY COSTS, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM SUCH INFORMATION OR DOCUMENTATION. EXCEPT FOR LIABILITY FOR BREACHES OF SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT AND IN THE DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING (BUT SUBJECT TO THE EXPRESS LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT), SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT AND IN THE DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN “AS IS” CONDITION AND BASIS WITH ALL FAULTS, AND THAT SELLER HAS NO OBLIGATIONS TO MAKE REPAIRS, REPLACEMENTS OR IMPROVEMENTS EXCEPT AS MAY OTHERWISE BE EXPRESSLY STATED HEREIN. PURCHASER REPRESENTS, WARRANTS, AND COVENANTS TO SELLER, WHICH REPRESENTATION, WARRANTY, AND COVENANTS TO SELLER SHALL SURVIVE THE CLOSING AND NOT BE MERGED WITH THE DEED, THAT, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT AND IN THE DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING, PURCHASER IS RELYING SOLELY UPON PURCHASER’S OWN INVESTIGATION OF THE PROPERTY.
10.3 Intentionally deleted.
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10.4 Purchaser and anyone claiming by, through or under Purchaser hereby waives its right to recover from and fully and irrevocably releases Seller, its employees, officers, directors, representatives, agents, servants, attorneys, affiliates, parent, subsidiaries, successors and assigns, and all persons, firms, corporations and organizations in its behalf (“Released Parties”) from any and all claims that it may now have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to any construction defects, errors, omissions, or other physical conditions, latent or otherwise, including environmental matters, affecting the Property, or any portion thereof, except to the extent Seller is liable for a breach of one or more of Seller’s express representations and warranties specified in this Agreement and in the documents and instruments executed and delivered by Seller in connection with the Closing (but subject to the express limitations on liability set forth in this Agreement). The foregoing release includes claims of which Purchaser is presently unaware or which Purchaser does not presently suspect to exist which, if known by Purchaser, would materially affect Purchaser’s release to Seller. In this connection and to the extent permitted by law, Purchaser hereby agrees, represents and warrants, which representation and warranty shall survive the Closing and not be merged with the Deed, that Purchaser realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and Purchaser further agrees, represents and warrants, which representation and warranty shall survive the Closing and not be merged with the Deed, that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Purchaser nevertheless hereby intends to release, discharge and acquit Seller from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which might in any way be included as a material portion of the consideration given to Seller by Purchaser in exchange for Seller’s performance hereunder, except to the extent that Seller is liable for a breach of one or more of Seller’s express representations and warranties specified in this Agreement and in the documents and instruments executed and delivered by Seller in connection with the Closing (but subject to the express limitations on liability set forth in this Agreement).
10.5 From and after the Closing, Purchaser shall protect, defend, indemnify and hold Seller and Seller’s parent company, if any, and their respective, affiliates and subsidiaries, and their respective partners directors, officers, participants, employees and agents free and harmless from and against any and all claims (including third party claims), demands, liabilities, damages, costs and expenses, including, without limitation, investigatory expenses, clean-up costs and reasonable attorneys’ fees of whatever kind or nature arising from or in any way connected with the physical condition of the Property or any other aspect of the Property, which accrue after the Closing. Purchaser’s obligations of indemnity set forth herein shall survive the Closing and shall not be merged with the Deed.
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As to Sections 1.2(h), 1.3, 5.3(j), 7.1(i) |
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1200 WEST REALTY, LLC, | |||||
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EXHIBIT A
LEGAL DESCRIPTION
Lots 7 and 8 and the North 50 feet of Xxx 0, Xxxxx 00, x xxxxxxxxxxx xx XXXXX EIGHTY OF THE XXXXX BEACH REALTY COMPANY, A PART OF THE XXXXX BEACH BAY FRONT SUBDIVISION, according to the Plat thereof recorded in Plat Book 6, at Page 12, of the Public Records of Miami-Dade County, Florida; also described as:
Commence at the Northwest corner of West Avenue and 10th Street in Miami Beach, Florida, said corner also being the intersection of Tangents at the Southeast Corner of Block 80, and run Northerly along the Easterly line of said Block 80, along the Westerly line of West Avenue, a distance of 350.00 feet to the Southerly line of the North 50.00 feet of said Lot 9 and the Point of Beginning (P.O.B.) of the tract of land hereinafter described: Thence continue along the Easterly Line of said Block 80, along the Westerly line of West Avenue, a distance of 299.85 feet to the Northeast Corner of the above referenced Lot 7; thence deflecting 90° 00’ 00” to the left, run Westerly along the Northerly Line of said Lot 7, a distance of 337.96 feet to the face of a concrete bulkhead cap and the face of deck; thence run Southerly along the face of deck and cap a distance of 301.70 feet to the Southerly line of the North 50.00 feet of Lot 9; thence run Easterly along the Southerly line of the North 50.00 feet of said Lot 9, a distance of 304.67 feet to the Point of Beginning.
PARCEL 2
Condominium Unit CU-12, Mirador 1000, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in Official Records Book 22959, Page 1727, of the Public Records of Miami-Dade County, Florida.
Parcel Identification Number: 0232330714610
PARCEL 3
Condominium Unit CU-10 Mirador 1200, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in Official Records Book 23543, Page 3930, of the Public Records of Miami-Dade County, Florida.
Parcel Identification Number: 0232330734220
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EXHIBIT B
XXXX OF SALE, ASSIGNMENT OF LEASES AND CONTRACTS
This instrument is executed and delivered as of the day of July, 2006 pursuant to that certain Purchase and Sale Agreement (“Agreement”), dated July , 2006, by and between 1100 West Realty, LLC, a Delaware limited liability company (“Seller”), and 1100 West Properties LLC, a Delaware limited liability company (“Purchaser”), covering the real property described in Exhibit A attached hereto (“Real Property”).
1. Sale of Personalty. For good and valuable consideration, Seller hereby sells, transfers, sets over and conveys to Purchaser the following (the “Personal Property”):
(a) Leases. All of the Seller’s right, title and interest, as landlord, in and to the leases or occupancy agreements described in the rent roll attached hereto as Exhibit B (collectively, “Leases”), together with any prepaid rents and security deposits held by Seller under the Leases, and Purchaser hereby assumes all of the landlord’s obligations under the Leases arising from and after the Closing Date (as defined in the Agreement).
(b) Tangible Personalty. All of Seller’s right, title and interest in and to all furniture, machinery, apparatus, equipment and other tangible personal property owned by Seller, currently used in connection with the operation of the Real Property and improvements and situated thereon, including all fixtures and furniture, equipment, and other tangible personal property listed on Schedule I attached hereto.
2. Assignment of Contracts. For good and valuable consideration, Seller hereby assigns, transfers, sets over and conveys to Purchaser, and Purchaser hereby accepts such assignment of (the “Assigned Property”) all of the Seller’s right, title and interest in and to the service contracts described in Exhibit C attached hereto (the “Service Contracts”).
3. Assumption. Purchaser hereby assumes the obligations of Seller under the Leases, Service Contracts, and Submerged Land Leases arising from and after the Closing Date and shall defend, indemnify and hold harmless Seller from and against any liability, damages, causes of action, expenses, and attorneys’ fees incurred by Seller by reason of the failure of Purchaser to fulfill, perform, discharge, and observe its obligations with respect to the Leases or the Service Contracts arising on and after the Closing Date. Seller shall defend, indemnify and hold harmless Purchaser from and against any liability, damages, causes of action, expenses, and attorneys’ fees incurred by Purchaser by reason of the failure of Seller to fulfill, perform, discharge, and observe its obligations with respect to the Leases or the Service Contracts arising before the Closing Date.
4. Warranty of Title to Assigned Property. Seller warrants and defends title to the Tangible Personalty, the Intangible Personal Property, and the Assigned Property unto Purchaser, its successors and assigns, against any person or entity claiming, or to claim, the same or any part thereof by, through or under Seller, subject only to the matters to which the Deed is subject, to the extent applicable.
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5. Agreement Applies. The covenants, agreements, representations, warranties, indemnities and limitations provided in the Agreement with respect to the property conveyed hereunder (including, without limitation, the limitations of liability provided in the Agreement), are hereby incorporated herein by this reference as if herein set out in full and shall inure to the benefit of and shall be binding upon Purchaser and Seller and their respective successors and assigns.
6. Disclaimer. As set forth in the Agreement, which provisions are hereby incorporated by this reference as if herein set out in full, the Personal Property and Assigned Property are is conveyed by Seller and accepted by Purchaser AS IS, WHERE IS, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN THE AGREEMENT, IT BEING THE INTENTION OF SELLER AND PURCHASER EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY CONVEYED HEREUNDER, AND ALL OTHER REPRESENTATIONS AND WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE UNIFORM COMMERCIAL CODE OF THE STATE OR STATES WHERE THE REAL PROPERTY IS LOCATED.
7. Limitation of Liability. Notice is hereby given that all persons dealing with Seller shall look to the assets of Seller for the enforcement of any claim against Seller, as none of the members, trustees, officers, employees or shareholders of Seller assume any personal liability for obligations entered into by or on behalf of Seller.
8. Further Assurances. Seller and Purchaser each agree to do such further acts and things and to execute and deliver such additional agreements and instruments as the other may reasonable require to consummate, evidence or confirm the sale or any other agreement contained herein in the manner contemplated hereby.
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STATE OF FLORIDA
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The foregoing instrument was acknowledged before me this day of July, 2006 by Xxxxxx Xxxxxxxxxxxx, as Vice President, of 1100 West Realty, LLC, who is either personally known to me, or has produced as identification.
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STATE OF
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The foregoing instrument was acknowledged before me this day of July, 2006 by , as , of 1100 West Properties LLC, a Delaware limited liability company, who is either personally known to me, or has produced as identification.
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The foregoing instrument was acknowledged before me this day of July, 2006 by , as , of 1100 West Properties LLC, a Delaware limited liability company, who is either personally known to me, or has produced as identification.
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EXHIBIT A
LEGAL DESCRIPTION
Lots 7, 8 and the North 50 feet of Xxx 0, Xxxxx 00, x xxxxxxxxxxx xx XXXXX EIGHTY OF THE XXXXX BEACH REALTY COMPANY, A PART OF THE XXXXX BEACH BAY FRONT SUBDIVISION, according to the Plat thereof, recorded in Plat Book 6 at Page 12 of the Public Records of Miami-Dade County, Florida, also described as:
Commence at the Northwest corner of West Avenue and 10th Street in Miami Beach, Florida, said corner also being the intersection of Tangents at the Southeast Corner of said Block 80 and run Northerly along the Easterly Line of said Block 80, along the Westerly line of West Avenue, a distance of 350.00 feet to the Southerly line of the North 50.00 feet of said Lot 9 and the Point of Beginning (P.O.B.) of the tract of land hereinafter described: Thence continue along the Easterly Line of said Block 80, along the Westerly line of West Avenue, a distance of 299.85 feet to the Northeast Corner of the above referenced Lot 7; Thence deflecting 90 degrees 00 minutes 00 seconds to the left, run Westerly along the Northerly Line of said Lot 7, a distance of 337.96 feet to the face of a concrete bulkhead cap and the face of deck. Thence run Southerly along the face of deck and cap at a distance of 301.70 feet to the Southerly line of the North 50.00 feet of Lot 9; Thence run Easterly along the Southerly line of the North 50.00 feet of said Lot 9, a distance of 304.67 feet to the Point of Beginning.
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EXHIBIT B
RENT ROLL
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EXHIBIT C
SERVICE CONTRACTS
1) Laundry Lease Agreement dated February 1, 2000, by and between Mac-Gray Services, Inc. (“Lessee”) and Xxxxxxx X. Xxxxx Residential Realty (“Lessor”) as assigned by Lessor to Seller.
2) KONE Complete Maintenance Agreement dated January 1, 2005, by and between KONE, Inc. and Mirador Bayfront Residences.
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SCHEDULE I
TANGIBLE PERSONAL PROPERTY
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EXHIBIT C
PERSONAL PROPERTY
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EXHIBIT D
LIST OF LEAD-BASED PAINT TESTS AND REPORTS
Phase I Environmental Site Assessment Report prepared by Hygienetics Environmental Services, Inc. for Mirador Apartments, 1000, 1035, 1100, 1125 & 0000, Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx 00000 dated April 26, 2004. Hygienetics Environmental Project No. 3452.004
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EXHIBIT E
Assignment of Declarant’s Rights
THIS ASSIGNMENT is made as of the day of July, 2006 by MIRADOR 1000, LLC, MIRADOR 1035, LLC, MIRADOR 1125, LLC, 1100 WEST REALTY, LLC and 1200 WEST REALTY, LLC, all Delaware limited liability companies (collectively, “Assignor”) to 1100 WEST PROPERTIES, LLC, a Delaware limited liability company (“Assignee”).
R E C I T A L S
1. The above recitals are true and correct and are hereby incorporated by reference as if fully set forth herein.
2. Assignor hereby assigns and transfers to Assignee the Declarant’s Rights.
3. Assignor represents and warrants to Assignee that (i) Assignor is the sole holder and owner of the Declarant’s Rights, free of all liens, claims and encumbrances, (ii) Assignor has full right, power and authority to transfer to Assignee the Declarant’s Rights without the joinder of consent of any third party, and (iii) Assignor has fully performed all of its obligations of the “Declarant” under the Declaration and is not currently in default of any of its obligations thereunder.
4. This Assignment shall not be deemed to impose any liability upon Assignee for any liabilities or obligations of Assignor under the Declaration arising or accruing prior to the date hereof.
Assignee hereby assumes the obligations of Assignor under the Declaration arising from and after the date hereof and shall defend, indemnify and hold harmless Assignor from and against any liability, damages, causes of action, expenses, and attorneys’ fees incurred by Assignor by reason of the failure of Assignee to fulfill, perform, discharge and observe the obligations of the “Declarant” under the Declaration arising on or after the date hereof. Assignor shall defend, indemnify and hold harmless Assignee from and against any liability, damages, causes of action, expenses and attorneys’ fees incurred by Assignee by reason of the failure of Assignor to fulfill, perform, discharge and observe its obligations as the “Declarant” under the Declaration arising prior to the date hereof.
5. This Assignment shall inure to the benefit of, and shall be binding on, Assignor and Assignee, and their respective successors and assigns.
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1200 WEST REALTY, LLC, a Delaware limited liability company | ||||||||
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Signed, sealed and delivered in the presence of: |
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WEST REALTY Holdings, LLC, a Delaware limited liability company, its Sole Member and Manager | ||||||
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WEST REALTY Holdings II, LLC, a Delaware limited liability company, its Sole Member and Manager | |||||
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STATE OF FLORIDA |
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The foregoing instrument was acknowledged before me this day of July, 2006, by Xxxxxx Xxxxxxxxxxxx, as Vice President of MIRADOR 1000, LLC, MIRADOR 1035, LLC, MIRADOR 1125, LLC, 1100 WEST REALTY, LLC and 1200 WEST REALTY, LLC, all Delaware limited liability companies, on behalf of said companies. He/she personally appeared before me, is personally known to me or produced as identification.
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The foregoing instrument was acknowledged before me this day of July, 2006, by , as of 1100 WEST PROPERTIES, LLC, a Delaware limited liability company, on behalf of said company. He/she personally appeared before me, is personally known to me or produced as identification.
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The foregoing instrument was acknowledged before me this day of July, 2006, by , as of 1100 WEST PROPERTIES, LLC, a Delaware limited liability company, on behalf of said company. He/she personally appeared before me, is personally known to me or produced as identification.
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EXHIBIT F
RENT ROLL
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EXHIBIT G
SERVICE CONTRACTS
3) Laundry Lease Agreement dated February 1, 2000, by and between Mac-Gray Services, Inc. (“Lessee”) and Xxxxxxx X. Xxxxx Residential Realty (“Lessor”) as assigned by Lessor to Seller.
4) KONE Complete Maintenance Agreement dated January 1, 2005, by and between KONE, Inc. and Mirador Bayfront Residences.
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EXHIBIT H
This instrument prepared by:
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Crescent Heights of America, Inc. |
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0000 Xxxxxxxx Xxxxxxxxx |
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(Space Reserved for Clerk of Court)
ASSIGNMENT AND ASSUMPTION OF SOVEREIGNTY SUBMERGED LANDS LEASE
THIS ASSIGNMENT AND ASSUMPTION OF SOVEREIGNTY SUMBERGED LANDS LEASE (this “Assignment”) is made as of the day of July, 2006 (the “Effective Date”) between 1200 WEST REALTY LLC, a Delaware limited liability company (“Assignor”), whose mailing address is c/o 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, and 1100 WEST PROPERTIES LLC, a Delaware limited liability company (“Assignee”), whose mailing address is . Wherever used herein, the terms “Assignor” and “Assignee” shall include all of the parties to this instrument and their successors and assigns.
1. Assignor does hereby assign, grant, sell, convey, transfer, set over and deliver unto Assignee, and Assignee does hereby accept, all right, title and interest of Assignor in, to and under the Lease.
2. Assignee hereby assumes the obligations of Assignor under the Lease arising from and after the Effective Date hereof and shall defend, indemnify and hold harmless Assignor from and against any liability, damages, causes of action, expenses, and attorneys’ fees incurred by Assignor by reason of the failure of Assignee to fulfill, perform, discharge, and observe its obligations with respect to the Lease arising on and after the Effective Date. Assignor shall defend, indemnify and hold harmless Assignee from and against any liability, damages, causes of action, expenses, and attorneys’ fees incurred by Assignee by reason of the failure of Assignor to fulfill, perform, discharge, and observe its obligations with respect to the Lease arising before the Effective Date.
3. Assignee hereby acknowledges and agrees that the effectiveness of this assignment is subject to the consent of the state which may not be sought or obtained until the conveyance of that certain real property known as CU-10 (as more particularly described on Schedule I attached hereto) from Assignor to Assignee.
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4. Any notice to be given to the lessee under the Lease shall, from and after the date hereof, be delivered to the addresses designated below:
Assignee: 1100 West Properties, LLC
5. Notice is hereby given that all persons dealing with Assignor shall look to the assets of Assignor for the enforcement of any claim against Assignor, as none of the members, trustees, officers, employees or shareholders of Assignor assume any personal liability for obligations entered into by or on behalf of Assignor.
6. This Assignment may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts shall collectively constitute one agreement. In addition, this Assignment may contain more than one counterpart of the signature page, and this Assignment may be executed by the affixing of the signature of either party to any of such counterpart signature pages; all of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. The parties hereto may execute and deliver this Assignment by forwarding facsimile, telefax or other means of copies of this Assignment showing execution by the parties sending the same, and the parties agree and intend that such signature shall have the same effect as an original signature, that the parties shall be bound by such means of execution and delivery, and that the parties hereby waive any defense to validity based on any such copies or signatures.
7. Assignor and Assignee each hereby represents and warrants that the person or persons executing this Assignment on their respective behalf are duly authorized by all appropriate action to execute and deliver this Assignment.
8. Further Assurances. Assignor and Assignee each agree to do such further acts and things and to execute and deliver such additional agreements and instruments as the other may reasonable require to consummate, evidence or confirm the sale or any other agreement contained herein in the manner contemplated hereby.
[Signature page follows]
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ASSIGNOR: | |||||
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1200 WEST REALTY, LLC, | ||||
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a Delaware limited liability company | ||||
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1200 West Realty Holdings, LLC, a Delaware limited liability company, Its Sole Member and Managing Member | |||
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STATE OF FLORIDA |
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COUNTY OF MIAMI-DADE |
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The foregoing instrument was acknowledged before me this day of July, 2006, by Xxxxxx Xxxxxxxxxxxx, as Vice President, of 1200 West Realty Holdings LLC, a Delaware limited liability company, sole member of 1200 West Realty LLC, a Delaware limited liability company, on behalf of said limited liability company. He/she is personally known to me / or has produced as identification.
NOTARY SEAL |
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ASSIGNEE: | ||||||
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The foregoing instrument was acknowledged before me this day of July, 2006 by , as , of 1100 West Properties, LLC, a Delaware limited liability company, on behalf of each said limited liability company. He/she is personally known to me / or has produced as identification.
NOTARY SEAL |
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STATE OF |
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The foregoing instrument was acknowledged before me this day of July, 2006 by , as , of 1100 West Properties, LLC, a Delaware limited liability company, on behalf of each said limited liability company. He/she is personally known to me / or has produced as identification.
NOTARY SEAL |
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EXHIBIT A LEGAL DESCRIPTION
A parcel of Sovereign submerged land in Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 42 East, in Biscayne Bay, Miami-Dade County, Florida more particularly described as follows:
Commence (P.O.C.) at the Southeasterly corner of Xxx 0, Xxxxx 00, xx XXXXX XXXXXX XX XXX XXXXX XXXXX REALTY COMPANY, A PART OF THE XXXXX BEACH BAY FRONT SUBDIVISION, a subdivision recorded in Plat Book 6, at Page 12, of the Public Records of Miami-Dade County, Florida and run North, 87° 39’ 30” West along the Southerly line of said Lot 6, a distance of 336.42 feet to the water face of a concrete bulkhead; Thence run North 10° 53’ 83” West along the water face of said bulkhead, a distance of 78.00 feet to the Point of Beginning (P.O.B.) of the Marina Lease Area; Thence run South 79° 01’ 07” West into Biscayne Bay, a distance of 130.00 feet; Thence run North 10° 58’ 63” West, a distance 95.00 feet; Thence run North 79° 01’ 07” East, a distance of 130.00 feet to the water face of aforesaid bulkhead; Thence run South, 10° 58’ 63” West, along the water face of said bulkhead, a distance of 95.00 feet to the Point of Beginning (P.O.B.). Marina Lease Area contains 12,350 sq. ft, more or less or 0.284 acres, more or less.
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SCHEDULE I
Condominium Unit CU-10 Mirador 1200, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in Official Records Book 23543, Page 3930, of the Public Records of Miami-Dade County, Florida.
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EXHIBIT H1
This instrument prepared by:
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Xxxxxxx Xxxxxxxxx |
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Crescent Heights of America, Inc. |
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0000 Xxxxxxxx Xxxxxxxxx |
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Xxxxx, XX 00000 |
(Space Reserved for Clerk of Court)
ASSIGNMENT AND ASSUMPTION OF SOVEREIGNTY SUBMERGED LANDS LEASE
THIS ASSIGNMENT AND ASSUMPTION OF SOVEREIGNTY SUMBERGED LANDS LEASE (this “Assignment”) is made as of the day of July, 2006 (the “Effective Date”) between MIRADOR 1000, LLC, a Delaware limited liability company (“Assignor”), whose mailing address is c/o 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, and 1100 WEST PROPERTIES LLC, a Delaware limited liability company (“Assignee”), whose mailing address is . Wherever used herein, the terms “Assignor” and “Assignee” shall include all of the parties to this instrument and their successors and assigns.
1. Assignor does hereby assign, grant, sell, convey, transfer, set over and deliver unto Assignee, and Assignee does hereby accept, all right, title and interest of Assignor in, to and under the Lease.
2. Assignee hereby assumes the obligations of Assignor under the Lease arising from and after the Effective Date hereof and shall defend, indemnify and hold harmless Assignor from and against any liability, damages, causes of action, expenses, and attorneys’ fees incurred by Assignor by reason of the failure of Assignee to fulfill, perform, discharge, and observe its obligations with respect to the Lease arising on and after the Effective Date. Assignor shall defend, indemnify and hold harmless Assignee from and against any liability, damages, causes of action, expenses, and attorneys’ fees incurred by Assignee by reason of the failure of Assignor to fulfill, perform, discharge, and observe its obligations with respect to the Lease arising before the Effective Date.
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3. Assignee hereby acknowledges and agrees that the effectiveness of this assignment is subject to the consent of the state which may not be sought or obtained until the conveyance of that certain real property known as CU-12 (as more particularly described on Schedule I attached hereto) from Assignor to Assignee.
4. Any notice to be given to the lessee under the Lease shall, from and after the date hereof, be delivered to the addresses designated below:
Assignee: 1100 West Properties, LLC
5. Notice is hereby given that all persons dealing with Assignor shall look to the assets of Assignor for the enforcement of any claim against Assignor, as none of the members, trustees, officers, employees or shareholders of Assignor assume any personal liability for obligations entered into by or on behalf of Assignor.
6. This Assignment may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts shall collectively constitute one agreement. In addition, this Assignment may contain more than one counterpart of the signature page, and this Assignment may be executed by the affixing of the signature of either party to any of such counterpart signature pages; all of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. The parties hereto may execute and deliver this Assignment by forwarding facsimile, telefax or other means of copies of this Assignment showing execution by the parties sending the same, and the parties agree and intend that such signature shall have the same effect as an original signature, that the parties shall be bound by such means of execution and delivery, and that the parties hereby waive any defense to validity based on any such copies or signatures.
7. Assignor and Assignee each hereby represents and warrants that the person or persons executing this Assignment on their respective behalf are duly authorized by all appropriate action to execute and deliver this Assignment.
8. Further Assurances. Assignor and Assignee each agree to do such further acts and things and to execute and deliver such additional agreements and instruments as the other may reasonable require to consummate, evidence or confirm the sale or any other agreement contained herein in the manner contemplated hereby.
[Signature page follows]
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ASSIGNOR: | |||||
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MIRADOR 1000, LLC, | ||||
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Mirador Holdings, LLC, a Delaware limited liability company, Its Sole Member and Managing Member | |||
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STATE OF FLORIDA |
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The foregoing instrument was acknowledged before me this day of July, 2006, by Xxxxxx Xxxxxxxxxxxx, as Vice President, of Mirador Holdings, LLC, a Delaware limited liability company, sole member of Mirador 1000, LLC, a Delaware limited liability company, on behalf of said limited liability company. He/she is personally known to me / or has produced as identification.
NOTARY SEAL |
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ASSIGNEE: | ||||||
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The foregoing instrument was acknowledged before me this day of July, 2006 by , as , of 1100 West Properties, LLC, a Delaware limited liability company, on behalf of each said limited liability company. He/she is personally known to me / or has produced as identification.
NOTARY SEAL |
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STATE OF |
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The foregoing instrument was acknowledged before me this day of July, 2006 by , as , of 1100 West Properties, LLC, a Delaware limited liability company, on behalf of each said limited liability company. He/she is personally known to me / or has produced as identification..
NOTARY SEAL |
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EXHIBIT A LEGAL DESCRIPTION
A parcel of Sovereign submerged land in Section 04, Xxxxxxxx 00 Xxxxx, Xxxxx 02 East, in Biscayne Bay, Miami-Dade County, Florida more particularly described as follows:
Commence (P.O.C.) at the intersection of Tangents at the Northwest corner of 10xx Xxxxxx xxx Xxxx Xxxxxx, as said Street and Avenue are shown on Block 80 of a subdivision of BLOCK EIGHTY OF THE XXXXX BEACH REALTY COMPANY’S BAY FRONT SUBDIVISION recorded in Plat Book 6, at Page 12, of the Public Records of Miami-Dade County, Florida and run South 87° 39’ 30” West along the Northerly line of said 10th Street, along the Southerly line of Lox 00 xx Xxxxx 00, a distance of 289.60 feet to the Water Face of a Concrete Bulkhead on the Easterly shore of Biscayne Bay; thence run North 4° 34’ 13” West along the Water Face of said Bulkhead, a distance of 110.00 feet to the Point of Beginning (P.O.B.) of the following described Marina Lease Area: Thence run South 85° 25’ 47” West into Biscayne Bay, a distance of 130 feet; thence run North 4° 34’ 13” West a distance of 87.00 feet; thence run North 85° 25’ 47” East, a distance of 130.00 feet to the Water Face of the aforedescribed Bulkhead; thence run South 4° 34’ 13” East along the Water Face of said Bulkhead, a distance of 87.00 feet to the Point of Beginning (P.O.B.).
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SCHEDULE I
Condominium Unit CU-12, Mirador 1000, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in Official Records Book 22959, Page 1727, of the Public Records of Miami-Dade County, Florida.
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EXHIBIT I
GT Escrow Agreement
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EXHIBIT J
Estoppel Certificate
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EXHIBIT K
Letter to Xxxxxx Xxxxxxxxxx
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EXHIBIT K-1
Letter to Honey Xxxxxxx
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EXHIBIT L
1200 Estoppel Letter
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EXHIBIT M
1000 Estoppel Letter
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EXHIBIT N
This instrument prepared by:
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(Space Reserved for Clerk of Court)
Ground Lease Termination Agreement
This Ground Lease Termination Agreement is dated as of July , 2006 and is entered into by and among Honey Xxxxxxx f/k/a Honey Xxxxxx, Xxxxxx Xxxxxxxxxx, and 1100 West Realty, LLC, a Delaware limited liability company (collectively the “Lessors”) and 1100 West Realty, LLC, a Delaware limited liability company (“Lessee”).
WHEREAS, Lessee is the holder of the right, title , and interest of the lessee under the Lease.
NOW THEREFORE, WITNESSETH, that the parties hereto agree as follows:
The parties hereby confirm that the Lease has been terminated and should be REMOVED and RELEASED and otherwise DISCHARGED and CANCELED of record, and that the Lease is null, void and of no further force and effect.
Execution in Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement. To facilitate
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execution of this Agreement, the parties may execute and exchange by telephone facsimile counterparts of the signature pages.
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STATE OF NEW YORK
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The foregoing instrument was acknowledged before me this day of July, 2006 by Honey Xxxxxxx, f/k/a Honey Xxxxxx, who is either personally known to me, or has produced as identification.
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The foregoing instrument was acknowledged before me this day of July, 2006 by Xxxxxx Xxxxxxxxxx, who is either personally known to me, or has produced as identification.
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STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of July, 2006 by Xxxxxx Xxxxxxxxxxxx, as the Vice President, of 1100 West Realty, LLC, who is either personally known to me, or has produced as identification.
My Commission Expires: |
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STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of July, 2006 by Xxxxxx Xxxxxxxxxxxx, as the Vice President, of 1100 West Realty, LLC, who is either personally known to me, or has produced as identification.
My Commission Expires: |
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Exhibit A
Lots 7 and 8 and the North 50 feet of Lox 0, Xxxxx 00, x xxxxxxxxxxx xx XXXXX XIGHTY OF THE XXXXX BEACH REALTY COMPANY, A PART OF THE XXXXX BEACH BAY FRONT SUBDIVISION, according to the Plat thereof recorded in Plat Book 6, at Page 12, of the Public Records of Miami-Dade County, Florida; also described as:
Commence at the Northwest corner of West Avenue and 10th Street in Miami Beach, Florida, said corner also being the intersection of Tangents at the Southeast Corner of Block 80, and run Northerly along the Easterly line of said Block 80, along the Westerly line of West Avenue, a distance of 350.00 feet to the Southerly line of the North 50.00 feet of said Lot 9 and the Point of Beginning (P.O.B.) of the tract of land hereinafter described: Thence continue along the Easterly Line of said Block 80, along the Westerly line of West Avenue, a distance of 299.85 feet to the Northeast Corner of the above referenced Lot 7; thence deflecting 90° 00’ 00” to the left, run Westerly along the Northerly Line of said Lot 7, a distance of 337.96 feet to the face of a concrete bulkhead cap and the face of deck; thence run Southerly along the face of deck and cap a distance of 301.70 feet to the Southerly line of the North 50.00 feet of Lot 9; thence run Easterly along the Southerly line of the North 50.00 feet of said Lot 9, a distance of 304.67 feet to the Point of Beginning.
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