Prudential-Bache/Xxxxxx & Xxxxxx, Ltd. - 4
THIS CONTRACT, made as of March 25, 1998, by and
between Prudential-Bache/Xxxxxx & Xxxxxx, Ltd. - 4, a
Texas limited partnership ("Seller"), and Dimex
Beltline, LLC, a Texas limited liability company
("Buyer").
WITNESSETH:
WHEREAS, Seller desires to sell and Buyer desires to
purchase all of Seller's right, title and interest in
the 0.7662 Acre Tract of Land (33,376 square feet.)
located on the north side of Belt Line Road,
approximately 180 feet east of Surveyor Boulevard,
Addison, Dallas County, Texas and any improvements
presently existing and located thereon ("Property"),
all upon the terms and subject to the conditions
hereinafter set forth; and
WHEREAS, following such sale, Seller intends to
liquidate and distribute its net assets (including the
proceeds of such sale) to its partners.
NOW, THEREFORE, in consideration of the foregoing, the
sum of $1.00 by each party in hand paid to the other,
and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, do
hereby mutually agree as follows:
1. Agreement to Purchase and Sell. Subject to the terms
and conditions hereinafter set forth, Seller agrees to
sell to Buyer and Buyer agrees to purchase from Seller,
free and clear of all liens, claims, encumbrances and
other charges, except the Permitted Exceptions (as
hereinafter defined), all of Seller's right, title and
interest in and to the Property.
2. Purchase Price. The purchase price ("Purchase Price")
for the Property, which Buyer agrees to pay, is the sum
of $392,168 payable in full in cash or other
immediately available funds.
3. Evidence of Title.
(a) Seller shall convey to Buyer at Closing (as
hereinafter defined) good, valid, insurable fee
simple title to the Property, subject to any and all
covenants, conditions, rights of way, restrictions,
easements and other matters affecting title, which do
not materially impair the use or the value of the
Property (collectively, "Permitted Exceptions").
(b) Buyer shall obtain within twenty (20) days after
the date hereof, commitment for an ALTA policy of
owners title insurance or the equivalent thereof in
the Texas jurisdiction ("Title Commitment") issued by
a reputable title insurance company agreed upon by
Seller and Buyer ("Title Insurer") showing fee simple
title to the Property as vested in Seller and to be
vested in Buyer, subject to the Permitted Exceptions.
Within ten days after the delivery of the Title
Commitment, Buyer shall deliver to Seller written
notice setting forth its
objections to any matters
encumbering the Property other than the Permitted
Exceptions ("Defects"). Seller shall then have the
option to cure any or all of the Defects prior to
Closing or terminate this Contract. Notwithstanding
anything herein to the contrary, Seller shall have
the right to adjourn the Closing Date for such
reasonable period, not to exceed thirty days, as
shall be necessary to cure any such Defect.
4. Condition of the Property. Subject only to Seller's
covenants, representations and warranties in this
Contract, Buyer shall purchase the Property in its "AS
IS" condition at the Closing Date, subject to all
latent and patent defects (whether physical, financial
or legal, including title defects), based solely on
Buyer's own inspection, analysis and evaluation of the
Property and not in reliance on any records or other
information obtained from Seller or on Seller's behalf.
Buyer acknowledges that it is not relying on any
statement or representation (other than any
representations, warranties, covenants and
indemnifications contained in this Contract) that has
been made or that in the future may be made by Seller
or any of Seller's employees, agents, attorneys or
representatives concerning the condition of the
Property (whether relating to physical conditions,
operating performance, title, or legal matters).
Without limiting the foregoing, any information
disclosed in writing to Buyer in connection with any
investigations, inspections, tests or analyses
performed prior to Closing, shall be deemed acceptable
to Buyer, and not violative of any warranty or
representation of Seller, if Buyer proceeds to Closing
hereunder.
5. Due Diligence Contingency. Buyer shall have a period
of thirty (30) days after the date hereof ("Due
Diligence Period") to perform environmental evaluations
and zoning, building and feasibility studies. This
contingency shall be deemed satisfied unless Buyer
notifies Seller of an unsatisfactory condition on or
before thirty (30) days from the date hereof. In the
event that Buyer notifies Seller of an unsatisfactory
condition within such time period, this Contract shall
terminate and neither party hereto shall have any
further liability to the other hereunder. In no event
shall Seller have any obligation to take any action
with respect to any such unsatisfactory condition or to
grant any reduction in the purchase price in connection
therewith. Buyer's sole option is to terminate this
Contract prior to the expiration of the Due Diligence
Period or to proceed with the purchase of the Property
in accordance herewith.
6. Closing. Upon the terms and subject to the conditions
of this Contract, the transfer of title and possession
of the Property ("Closing") shall be held as a closing
by mail at the offices of Buyer unless otherwise
agreed in writing, at 10:00 a.m., Dallas time, on the
date which is two (2) business days after all of the
conditions to Closing as set forth in Sections 7, 8 and
9 hereof have been satisfied. The date on which the
Closing occurs is herein called the "Closing Date".
7. Conditions to Seller's and Buyer's Obligation to
Close. The obligations of Seller and Buyer to close
under this Contract are subject to the fulfillment,
prior to or at Closing, of the following condition:
There shall not be in effect any statute, regulation,
order, decree or judgment of any governmental entity
having jurisdiction which renders illegal or enjoins
or prevents in any material respect the sale of the
Property to Buyer.
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8. Conditions to Seller's Obligation to Close. The
obligations of Seller to close under this Contract are
subject to the fulfillment, prior to or at Closing, of
each of the following:
(a) The representations and warranties of Buyer
shall have been true and correct in all material
respects when made and shall be true and correct in
all material respects as of the Closing Date, as if
made at and as of such date except as otherwise
expressly provided herein.
(b) On and as of the Closing Date, Buyer shall have
performed and complied with, in all material
respects, all agreements and covenants required by
this Contract to be performed or complied with prior
to or on the Closing Date.
9. Conditions to Buyer's Obligation to Close. The
obligations of Buyer to close under this Contract are
subject to the fulfillment, prior to or at Closing, of
each of the following:
(a) The representations and warranties of Seller
shall have been true and correct in all material
respects when made and shall be true and correct in
all material respects as of the Closing Date, as if
made at and as of such date except as otherwise
expressly provided herein.
(b) On and as of the Closing Date, Seller shall have
performed and complied with, in all material
respects, all agreements and covenants required by
this Contract to be performed or complied with prior
to or on the Closing Date.
10. Deliveries.
(a) Seller's Deliveries. Upon the terms and subject to
the conditions of this Contract, on the Closing Date,
Seller shall:
(i) convey the Property to Buyer by delivery of a
quit claim deed or deed without covenants if a quit
claim deed cannot be utilized in a jurisdiction
where the Property is located; and
(ii) provide such evidence of its authority to sell
and convey the Property as the Title Insurer may
reasonably require.
(b) Buyer's Deliveries. Upon the terms and subject to
the conditions of this Contract, on the Closing Date,
Buyer shall deliver the following:
(i) certificates and resolutions demonstrating the
authority of the persons executing documents at
Closing; and
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(ii) Purchase Price by wire transfer of immediately
available funds to Seller's account, pursuant to
Seller's instructions.
11. Proration Items. The following shall be
apportioned on a per diem basis as of midnight of the
day preceding the Closing Date ("Adjustment Date") and
adjusted between the parties on the basis of a thirty
day month:
Real estate and other taxes, assessments and charges,
and other municipal and state charges, license and
permit fees, water and sewer rents and charges, if
any, on the basis of the fiscal period for which
assessed or charged.
Seller will not assign to Buyer any of the hazard
insurance policies affecting the Property then in
force. There will therefore be no proration of
insurance costs at Closing. Except as may be otherwise
provided therein, all other expenses which are
attributable to the period prior to the Closing Date
shall be the obligation of Seller and those which are
attributable to the period from and after the Closing
Date shall be the obligation of Buyer.
For purposes of the foregoing apportionments and
adjustments, the following procedures shall govern:
(a) If the Closing Date shall occur before the real
estate tax rate is fixed, the apportionment of such
taxes shall be made upon the basis of the tax rate
for the immediately preceding year, applied to the
latest assessed valuation.
(b) All taxes, water and sewer charges and
assessments for public improvements which are liens
upon the Property as of the Closing Date, will be
allowed to Buyer as a credit against the Purchase
Price, subject to apportionment as herein provided,
and the existence of any such lien shall not
constitute an objection to title.
12. Survey, Transfer Taxes and Other Costs. Seller
shall reimburse Buyer on the Closing Date one-half the
cost of any survey and the premium for any title
insurance, up to a maximum aggregate cost of $2,500.
All other costs of closing shall be the responsibility
of Buyer, except that, other than as expressly provided
herein, each of the parties shall pay for any and all
costs which it may incur in connection with the
transactions contemplated herein, including each
party's legal fees in connection with the Contract and
the Closing.
13. Representations and Warranties of Seller. As an
inducement for Buyer to purchase the Property from
Seller, Seller represents and warrants to Buyer the
following:
(a) Title to Real Estate. Seller has good, valid and
insurable title to the Property together with any
improvements situated thereon subject to the
Permitted Exceptions.
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(b) Organization and Authority.
(i) Seller is duly organized.
(ii) Seller has the requisite power and authority to
execute, deliver and perform this Contract. The
execution, delivery and performance of this
Contract and the consummation of the transactions
contemplated hereby have been duly authorized by
all necessary partnership action on the part of
Seller. This Contract is a valid and binding
obligation of Seller, enforceable against Seller in
accordance with its terms.
(iii) Neither the execution and delivery of this
Contract nor the consummation of the transactions
contemplated hereby in the manner herein provided
nor the fulfillment of or compliance with the terms
and conditions hereof shall:
A. contravene any material provision of the
Seller's Partnership Agreement; or
B. violate, be in conflict with, constitute a
default under, cause the acceleration of any
payments pursuant to, or otherwise impair the
good standing, validity, or effectiveness of any
agreement, contract, indenture, lease, or
mortgage, or subject any property or assets of
Seller to any indenture, mortgage, contract,
commitment, or agreement other than this Contract
to which Seller is a party or by which Seller is
bound, which in the aggregate would have a
material adverse effect on the Property.
14. Representations and Warranties of Buyer. As an
inducement for Seller to sell the Property to Buyer,
Buyer represents to Seller the following:
(a) Organization and Authority.
(i) Buyer is a Texas limited liability company duly
organized and validly existing under the laws of
the State of Texas and has full power and authority
to carry on its business as it is now being
conducted.
(ii) Buyer has the requisite power and authority to
execute, deliver and perform this Contract. The
execution, delivery and performance of this
Contract and the consummation of the transactions
contemplated hereby have been duly authorized by
all necessary action on the part of Buyer. This
Contract is a valid and binding obligation of
Buyer, enforceable against Buyer in accordance with
its terms.
(iii) Neither the execution and delivery of this
Contract nor the consummation of the transactions
contemplated hereby in the manner herein provided
nor the fulfillment of or compliance with the terms
and conditions hereof shall:
A. contravene any material provision of the
Articles of Organization or Operating Agreement
of Buyer; or
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B. violate, be in conflict with, constitute a
default under, cause the acceleration of any
payments pursuant to, or otherwise impair the
good standing, validity, or effectiveness of any
agreement, contract, indenture, lease, or
mortgage, or subject any property or assets of
Buyer to any indenture, mortgage, contract,
commitment, or agreement to which Buyer is a
party or by which Buyer is bound which, in the
aggregate, would have a material adverse effect
on Buyer's ability to perform all of its
obligations hereunder.
(b) Adequate Funds. Buyer has adequate funds or
available credit resources to pay the Purchase Price
at the Closing as provided hereunder.
15. Default and Damages.
(a) Buyer's Remedies. If Buyer shall elect to proceed
with the performance of this Contract notwithstanding
the failure to be satisfied of any conditions to
Closing, Buyer shall be deemed to have waived the
requirement that those conditions be satisfied.
Notwithstanding anything contained herein, in no
event shall Seller's general partners or limited
partners, affiliates, representatives, attorneys,
agents or employees have any personal liability under
this Contract whatsoever.
(b) Seller's Remedies. If Buyer shall be unable or
unwilling to consummate the Closing hereunder in
violation of the terms hereof, Seller shall have the
right to
(i) terminate this Contract, whereupon this Contract
shall become null and void and neither Buyer nor
Seller shall have any rights hereunder; or
(ii) pursue such rights and remedies as Seller may
have at law or in equity.
16. Brokers. Seller and Buyer hereby agree to defend
and hold the other harmless from any claim by a broker
or finder for a fee or expense which is based in any
way on an agreement or understanding made or alleged to
have been made by such broker or finder with them
relating to the transaction contemplated by this
Contract.
The provisions of this Section 16 shall survive the
Closing.
17. Indemnification of Seller. Buyer agrees to
indemnify and hold harmless Seller and its general
partners and limited partners, their affiliates, their
and their affiliates' representatives, attorneys,
accountants, agents and employees and their and their
affiliates' heirs, successors and assigns, from and
against any claims or demands for any expense,
obligation, loss, cost, damage or injury arising out of
(a) the Buyer's inspection of the Property prior to or
on the Closing Date and (b) the Buyer's operation and
maintenance of the Property from and after the Closing
Date.
The provisions of this Section 17 shall survive the
Closing.
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18. Survival of Representations, Warranties and
Indemnifications. Except as otherwise expressly set
forth herein, none of the representations, warranties
and indemnifications contained in this Contract shall
survive the Closing.
19. Reasonable Efforts. Each party hereto will use all
reasonable efforts to perform all acts required to
consummate the transactions contemplated hereby as
promptly as practicable.
20. Termination. Notwithstanding anything contained
herein, this Contract may be terminated in accordance
with Section 3(b) or Section 5 hereof or as follows:
(a) By Seller in accordance with Section 15(b) hereof.
(b) By Seller or Buyer, if a court of competent
jurisdiction issues a binding and final order
permanently preventing the sale of the Property to
Buyer, or delaying the Closing beyond ninety (90)
days after the date hereof.
(c) By Seller or Buyer, if the Closing does not occur
on or before ninety (90) days from the execution
hereof, provided that the party seeking to terminate
is not in material breach of this Contract.
In the event this Contract is terminated pursuant to
any of the foregoing provisions, this Contract shall
thereupon become null and void and neither Seller nor
Buyer nor any of their representatives shall have any
further rights or obligations hereunder.
21. Notices. Any notice which may be required or may be
desired to be given pursuant to this Contract shall be
in writing and shall be deemed delivered and effective
upon actual receipt at the following addresses or such
other addresses as the parties may notify each other by
similar notice:
If to Seller, to:
Prudential-Bache/Xxxxxx & Xxxxxx, Ltd. - 4
c/o Prudential-Bache Properties, Inc.
One Seaport Plaza
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxxx
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With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxx, Esq.
If to Buyer, to:
Feltman, Karesh, Major & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
22. General.
(a) Interpretation of Words. A masculine pronoun
wherever used herein shall be construed to include
the feminine or neuter where appropriate. The
singular form wherever used herein shall be construed
to include the plural where appropriate.
(b) Assignment; Successors and Assigns; Third Party
Beneficiaries.
(ii) Neither of the parties hereto may assign its
respective rights under this Contract without the
consent of the other party. The foregoing
notwithstanding, Buyer shall be permitted, upon
five days notice to Seller, to assign its rights
under this Contract to a wholly-owned subsidiary of
Buyer. Such assignment, however, shall not relieve
Buyer of, and Buyer shall remain liable for, all of
its obligations contained in this Contract.
(ii) Except as otherwise provided hereby, the
provisions of this Contract shall be binding upon
and inure to the benefit of the parties hereto and
their respective legal representatives and
successors in interest.
(iii) This Contract is not intended, nor shall it be
construed, to confer upon any party except the
parties hereto and their heirs, successors and
permitted assigns any rights or remedies under or
by reason of this Contract.
(c) Time of the Essence. Time shall be of the essence
with respect to the performance of all of the
obligations hereunder.
(d) Entire Contract. This Contract represents the
entire understanding between the parties with respect
to the subject matter hereof, superseding all prior
or contemporaneous understandings or communications
of any kind, whether written or oral. Buyer and
Seller represent that no other agreements or
arrangements exist between the Buyer and the Seller
or any of its general partners or their affiliates
with respect to the Property. This Contract may only
be modified by a written agreement signed by both
parties hereto.
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(e) Captions. The headings of the paragraphs herein are
for convenience only; they form no part of this
Contract and shall not affect its interpretation.
(f) Governing Law. The provisions of this Contract
shall be governed by and construed in accordance with
the laws of the State of New York applicable to
agreements entered into and to be performed wholly
therein.
(g) Counterparts. This Contract may be executed in
several counterparts, each of which shall be deemed
an original. Such counterparts constitute but one and
the same instrument, which may be sufficiently
evidenced by one counterpart.
(h) Further Assurances. Each of the parties hereto
shall, at the request of the other party, execute,
acknowledge and deliver any further instruments, and
take such further actions, as the requesting party
may reasonably request, to carry out effectively the
intent of this Contract.
(i) Recording. Buyer agrees not to record this
Contract.
IN WITNESS WHEREOF, the parties hereto have executed
this Contract as of the day and year first above
written.
Seller: Buyer:
Prudential-Bache/Xxxxxx &
Xxxxxx , Ltd. - 4 Dimex Beltline, LLC
By: Prudential-Bache Properties, Inc. By: /s/ Xxxxxx X. Xxxxxx
_________________________________ ______________________
Its Managing General Partner Xxxxxx X. Xxxxxx
Manager
By: /s/ Xxxxx X. Xxxxxx
_________________________________
Xxxxx X. Xxxxxx
President
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