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Exhibit 10.84
STANDARD OFFER, AGREEMENT AND ESCROW
INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
(Non-Residential)
American Industrial Real Estate Association
February 3, 1998
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(Date for Reference Purposes)
1. Buyer.
1.1 THE SPORTS CLUB COMPANY, INC. (the "Buyer hereby offers to purchase
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the real property, hereinafter described, from the owner thereof (the "Seller")
(collectively, the "Parties" or individually, a "Party through an escrow (the
"Escrow") to close on June 24, 1998 (the "Expected Closing Date") to be
held by Texas State Title Company (the "Escrow Holder") whose address is
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, Phone No. , Facsimile No.
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upon the terms and conditions set forth in this agreement (the "Agreement").
Buyer shall have the right to assign Xxxxx's rights hereunder, but any such
assignment shall not relieve Buyer of Buyer's obligations herein unless the
Seller expressly releases Buyer.
1.2 The term "Date of Agreement" as used herein shall be the date when by
execution and delivery (as defined in paragraph 20.2) of this document or a
subsequent counter-offer thereto, Buyer and Seller have reached agreement in
writing whereby Xxxxxx agrees to sell, and Xxxxx agrees to purchase the
Property upon terms accepted by both Parties.
2. PROPERTY.
2.1 The real property (the "Property") that is the subject of this offer
consists of (insert a brief physical description) 3.5 acres of land improved
with a retail nursery building and parking lot is located in the City of
Houston, County of Xxxxxx State of Texas, is commonly known by the street
address of McQue Street and U.S. Route 59 and Interstate 610 and is legally
described as: To be finished in escrow.
2.2 If the legal description of the Property is not complete or is
inaccurate, this Agreement shall not be invalid and the legal description shall
be completed or corrected to meet the requirements of Texas State Title Company
(the "Title Company") which Title Company shall issue the title policy
hereinafter described.
2.3 the Property includes, at no additional cost to Buyer, the permanent
improvements thereon, including those items which the law of the state in which
the Property is located provides is part of the Property, as well as the
following items, if any, owned by Seller and presently located in the Property
electrical distribution systems (power panels, xxxx ducting, conduits,
disconnects, lighting fixtures), telephone distribution systems (lines, jacks
and connections), space heaters, air conditioning equipment, air lines, fire
sprinkler systems, security systems, carpets, window coverings, wall coverings,
and n/a (collectively, the "Improvements").
3. PURCHASE PRICE.
3.1 The purchase price (the "Purchase Price") to be paid by Buyer to
Seller for the Property shall be $3,050,000 payable as follows:
(a) Cash down payment, including the Deposit as defined in paragraph
4.3 (or if an all cash transaction, the Purchase price): $ 250,000.
Total Purchase Price: $3,050,000
3.2 If an Existing Deed of Trust permits the beneficiary thereof to
require payment of a transfer fee as a condition to the transfer of the Property
subject to such Existing Deed of Trust, Xxxxx agrees to pay transfer fees and
costs of up to one and one-half percent (1 1/2%) of the unpaid principal balance
of the applicable Existing Note.
4. DEPOSITS.
4.1 Buyer will deliver funds the sum of $250,000.00, payable to Texas
State Title Company immediately upon mutual execution of this agreement, to be
(check applicable box) [] forthwith deposited in the payee's trust account
[] held uncashed until the Date of Agreement. When cashed, the check shall be
deposited into the payee's trust account to be applied toward the Purchase
Price of the Property at the Closing, as defined in paragraph 8.3. Should Buyer
and Seller not enter into an agreement for purchase and sale, Buyer's check or
funds shall, upon request by Xxxxx, be promptly returned to Buyer.
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4.2 Subject to the satisfaction of all contingencies specified herein
Buyer shall deposit with Escrow Holder the additional sum of $ none to be
applied to the Purchase Price at the Closing.
4.3 The funds deposited with the Escrow Holder by or on behalf of Buyer
under paragraphs 4.1 and 4.2, above (collectively the "Deposit"), shall be
deposited by Escrow Holder in such State of Federally chartered bank as Buyer
may select and in such interest-bearing account or accounts as Escrow Holder or
Broker(s) deem appropriate and consistent with the timing requirements of this
transaction. The interest therefrom shall accrue to the benefit of Buyer, who
hereby acknowledges that there may be penalties of interest forfeitures if the
applicable instrument is redeemed prior to its specified maturity. Buyer's
Federal Tax Identification Number is 00-0000000.
7. REAL ESTATE BROKERS.
7.1 The following real estate broker(s) (collectively, the "Brokers") and
brokerage relationships exist in this transaction and are consented to by the
parties (check applicable boxes): Advisors, L.L.P.
[X] Riverstone Realty represents Seller exclusively ("SELLER'S BROKER")
[X] The Weatherby Co. represents Buyer exclusively ("BUYER'S BROKER"); or
[ ] represents both Seller and Buyer ("DUAL AGENCY"). (Also
see Paragraph 26.)
(the "Broker(s)"),all such named Xxxxxx(s) being the procuring cause(s) of this
Agreement. See paragraph 26 for Disclosures Regarding the Nature of a Real
Estate Agency Relationship. Buyer shall use the services of Xxxxx's Broker
exclusively in connection with any and all negotiations and offers with respect
to the property described in paragraph 2.1 for a period of one year from the
date above.
7.2 Buyer and Seller each represent and warrant to the other that
he/she/it has had no dealings with any person, firm, broker or finder in
connection with the negotiation of this Agreement and/or the consummation of the
purchase and sale contemplated herein, other than the Broker(s) named in
paragraph 7.1, and no broker or other person, firm or entity, other than said
Xxxxxx(s) is/are entitled to any commission or finder's fee in connection with
this transaction as the result of any dealings or acts of such Party. Xxxxx and
Seller do each herby agree to indemnify, defend, protect and hold the other
harmless from and against any costs, expenses or liability for compensation,
commission or charges which may be claimed by any broker, finder or other
similar party, other than said named Xxxxxx(s) by reason of any dealings or act
of the indemnifying Party.
8. ESCROW AND CLOSING.
8.1 Upon acceptance hereof by Seller, this Agreement, including any
counter-offers incorporated herein by the Parties, shall constitute not only the
agreement of purchase and sale between Buyer and Seller, but also instructions
to Escrow Holder for the consummation of the Agreement through the Escrow.
Escrow Holder shall not prepare any further escrow instructions restating or
amending this Agreement unless specifically so instructed by the Parties of a
Broker herein.
8.2 Escrow Holder is hereby authorized and instructed to conduct the
Escrow in accordance with this Agreement, applicable law, custom and practice of
the community in which Escrow Holder is located, including any reporting
requirements of the Internal Revenue Code. In the event of a conflict between
the law of the state where the Property is located and the law of the state
where the Escrow Holder is located, the law of the state where the Property is
located shall prevail.
8.3 Subject to satisfaction of the contingencies herein described, Xxxxxx
Holder shall close this escrow (the "Closing") by recording the grant deed and
other documents required to be recorded and by disbursing the funds and
documents in accordance with this Agreement.
8.4 If this transaction is terminated for non-satisfaction and non-waiver
of a Buyer's Contingency, s defined in paragraph 9.4, then neither of the
Parties shall thereafter have any liability to the other under this Agreement,
except to the extent of the breach of any affirmative covenant or warranty in
this Agreement that may have been involved. In the event of such termination,
Buyer shall be promptly refunded all funds deposited by or on behalf of Buyer
with a Broker, Escrow Holder or Seller, less only Title Company and Escrow
Holder cancellation fees and costs, all of which shall be Buyer's obligation.
8.5 The Closing shall occur on the Expected Closing Date, or as soon
thereafter as the Escrow is in condition for Closing; provided, however, that if
the Closing does not occur by the Expected Closing Date and the Expected Closing
Date is not extended by mutual instructions of the Parties, a Party hereto not
then in default under this Agreement may notify the other Party, Escrow Holder,
and Broker(s), in writing that, unless the Closing occurs within five (5)
business days following said notice, the Escrow and this Agreement shall be
deemed terminated without further notice or instructions.
8.6 Should the Closing not occur during said five (5) day period, this
Agreement and Escrow shall be deemed terminated and Escrow Holder shall
forthwith return all monies and documents, less only Escrow Holder's reasonable
fees and expenses, to the Party who deposited them. Such Party shall indemnify
and hold Escrow holder harmless in connection with such return. However, no
refunds or documents shall be returned to a party claimed by written notice to
Escrow Holder to be in default under this Agreement.
8.7 Except as otherwise provided herein, the termination of Escrow and
this Agreement and /or the return of deposited funds or documents shall not
relieve or release either Buyer or Seller from any obligation to pay Escrow
Holder's fees and costs or constitute a waiver, release or discharge of any
breach or default that has occurred in the performance of the obligations,
agreements covenants or warranties contained herein.
8.8 If this Agreement terminates for any reason other than Seller's breach
or default, then at Seller's request, and as a condition to the return of
Buyer's deposit, Buyer shall within five (5) days after written request deliver
to Seller, at no charge, copies of all surveys, engineering studies, soil
reports, maps, master plans, feasibility studies and other similar items
prepared by or for Buyer that pertain to the Property.
9. CONTINGENCIES TO CLOSING .
9.1 The Closing of this transaction is contingent upon the satisfaction or
waiver of the following contingencies:
(a) Disclosure. Xxxxx's receipt and written approval, within ten
(10) days after delivery to Buyer, of a completed Property Information Sheet
(the "Property Information Sheet"), concerning the Property, duly executed by or
on behalf of Seller in the current form or equivalent to that published by the
American Industrial Real Estate Association (the "A.I.R."). Seller shall provide
Buyer with the Property Information Sheet within ten (10) days following the
Date of Agreement. See also paragraph 2.5 for possible additional disclosure
and contingency regarding a "Commercial Property Earthquake Weakness Disclosure
Report."
(b) Physical Inspection. Xxxxx's written approval, within ten (10)
days following the later of the Date of Agreement or receipt by Buyer of the
Property Information Sheet, of an inspection by Buyer, at Buyer's expense, of
the physical aspects of the Property.
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(c) Hazardous Substance Conditions Report. Xxxxx's written approval,
within one (1) day following the later of the Date of Agreement or receipt by
Buyer of the Property Information Sheet, of a Hazardous Substance Conditions
Report concerning the Property and relevant adjoining properties. Such report
will be obtained at Buyer's direction and expense. A "Hazardous Substance" for
purposes of this Agreement is defined as any substance whose nature and/or
quantity of existence, use, manufacture, disposal or effect, render it subject
to Federal, state or local regulation, investigation, remediation or removal as
potentially injurious to public health or welfare. A "Hazardous Substance
Condition" for purposes of this Agreement is defined as the existence on, under
or relevantly adjacent to the Property of a Hazardous Substance that would
require remediation and/or removal under applicable Federal, state or local law.
(d) Soil Inspection. Xxxxx's written approval, within one (1) day
after the later of the Date of Agreement or receipt by Buyer of the Property
Information Sheet, of a soil test report concerning the Property. Said report
shall be obtained at Xxxxx's direction and expense. Seller shall promptly
provide to Buyer copies of any existing soils reports that Seller may have.
(e) Governmental Approvals. Buyer's receipt, within fifteen (15)
days of the Date of Agreement, of all approvals and permits from governmental
agencies or departments which have or may have jurisdiction over the Property
which Buyer deems necessary or desirable in connection with its intended use of
the Property, including, but not limited to, permits and approvals required
with respect to zoning, planning, building and safety, fire, police,
handicapped access, transportation and environmental matters. Xxxxx's failure
to deliver to Escrow Holder and Seller written notice terminating this
Agreement prior to the expiration of said fifteen (15) day period as a result
of Buyer's failure to obtain such approvals and permits shall be conclusively
deemed to be Buyer's waiver of this condition to Buyer's obligations under this
Agreement.
(f) Condition of Title. Xxxxx's written approval of a current
preliminary title report concerning the Property (the "PTR") issued by the Title
Company, as well as all documents (the "Underlying Documents") referred to in
the PTR, and the issuance by the Title Company of the title policy described in
10.1. Seller shall cause the PTR and all Underlying Documents to be delivered
to Buyer promptly after the Date of Agreement. Xxxxx's approval is to be given
within ten (10) days after receipt of said PTR and legible copies of all
Underlying Documents. The disapproval by Buyer of any monetary encumbrance,
which by the terms of this Agreement is not to remain against the Property
after the Closing, shall not be considered a failure of this condition as
Seller shall have the obligation, at Seller's expense, to satisfy and remove
such disapproved monetary encumbrance at or before the Closing.
(g) Survey. Buyer's written approval, within one (1) day after
receipt of the PTR and Underlying Documents, of an ALTA title supplement based
upon a survey prepared to American Land Title Association (the "ALTA") standards
for an owner's policy by a licensed surveyor, showing the legal description and
boundary lines of the Property, any easements of record, and any improvements,
poles, structures and things located within ten (10) feet either side of the
Property boundary lines. The survey shall be prepared at Buyer's direction and
expense. If Xxxxx has obtained a survey and approved the ALTA title supplement,
Buyer may elect within the period allowed for Buyer's approval of a survey to
have an ALTA extended coverage owner's form of title policy, in which event
Buyer shall pay any additional premium attributable thereto.
(h) Existing Leases and Tenancy Statements. Buyer's written
approval, within ten (10) days after receipt of legible copies of all leases,
subleases or rental arrangements (collectively the "Existing Leases") affecting
the Property, and a statement (the "Tenancy Statement") in the latest form or
equivalent to that published by the A.I.R., executed by Seller and each tenant
and subtenant of the Property. Seller shall use its best efforts to provide
Buyer with said Existing Leases and Tenancy Statements promptly after the Date
of Agreement.
(i) Other Agreements. Xxxxx's written approval, within ten (10) days
after receipt, of a copy of any other agreements ("Other Agreements") known to
Seller that will affect the Property beyond the Closing. Seller shall cause
said copies to be delivered to Buyer promptly after the Date of Agreement.
(j) Financing. If paragraph 5 hereof dealing with a financing
contingency has not been stricken, the satisfaction or waiver of such New Loan
contingency.
(k) Existing Notes. If paragraph 3.1(c) has not been stricken,
Xxxxx's written approval, within ten (10) days after receipt, of conformed and
legible copies of the Existing Notes, Existing Deeds of Trust and related
agreements (collectively the "Loan Documents") to which the Property will
remain subject after the Closing, including a beneficiary statement (the
"Beneficiary Statement") executed by the holders of the Existing Notes
confirming: (1) the amount of the unpaid principal balance, the current
interest rate, and the date to which interest is paid, and (2) the nature and
amount of any impounds held by the beneficiary in connection with said loan.
Seller shall use its best efforts to provide Buyer with said Loan Documents and
Beneficiary Statement promptly after the Date of Agreement. Xxxxx's obligation
to close is further conditioned upon Xxxxx's being able to purchase the
Property without acceleration or change in the terms of any Existing Notes or
charges to Buyer except as otherwise provided in this Agreement or approved by
Buyer, provided, however, Buyer shall pay the transfer fee referred to in
paragraph 3.2 hereof.
(l) Destruction, Damage or Loss. There shall not have occurred prior
to the Closing, a destruction of, or damage or loss to, the Property or any
portion thereof, from any cause whatsoever, which would cost more than
$10,000.00 to repair or cure. If the cost to repair or cure is $10,000.00 or
less, Seller shall repair or cure the loss prior to the Closing. Buyer shall
have the option, within ten (10) days after receipt of written notice of a loss
costing more than $10,000.00 to repair or cure, to either terminate this
transaction or to purchase the Property notwithstanding such loss, but without
deduction or offset against the Purchase Price. If the cost to repair or cure is
more than $10,000.00, and Buyer does not elect to terminate this transaction,
Buyer shall be entitled to any insurance proceeds applicable to such loss.
Unless otherwise notified in writing by either Party or Broker, Escrow Holder
shall assume no destruction, damage or loss costing more than $10,000.00 to
repair or cure has occurred prior to Closing.
(m) Material Change. No Material Change, as hereinafter defined,
shall have occurred with respect to the Property that has not been approved in
writing by Xxxxx. For purposes of this Agreement, a "Material Change" shall be
a change in the status of the use, occupancy, tenants, or condition of the
Property as reasonably expected by the Buyer, that occurs after the date of
this offer and prior to the Closing. Buyer shall have ten (10) days following
receipt of written notice from any source of any such Material Change within
which to approve or disapprove same. Unless otherwise notified in writing by
either Party or Broker, Escrow Holder shall assume that no Material Change has
occurred prior to the Closing.
(n) Seller Performance. The delivery of all documents and the due
performance by Seller of each and every undertaking and agreement to be
performed by Seller under this Agreement.
(o) Breach of Warranty. That each representation and warranty of
Seller herein be true and correct as of the Closing. Escrow Holder shall assume
that this condition has been satisfied unless notified to the contrary in
writing by Xxxxx or Xxxxxx(s) prior to the Closing.
(p) Broker's Fee. Payment at the Closing of such Xxxxxx's Fee as is
specified in this Agreement or later written instructions to Escrow Holder
executed by Xxxxxx and Xxxxxx(s). It is agreed by Xxxxx, Seller and Escrow
Holder that Broker(s) is/are a third party beneficiary of this Agreement insofar
as the Broker's fee is concerned, and that no change shall be made by Buyer,
Seller or Escrow Holder with respect to the time of payment, amount of payment,
or the conditions to payment of the Broker's fee specified in this Agreement,
without the written consent of Broker(s).
9.2 All of the contingencies specified in sub-paragraphs (a) through (o)
of paragraph 9.1 are for the benefit of, and may be waived by, Buyer, and may be
elsewhere herein referred to as "Buyer Contingencies."
9.5 Buyer understands and agrees that until such time as all Buyer's
Contingencies have been satisfied or waived, Seller and/or its agents may
solicit, entertain and/or accept back-up offers to purchase the subject
Property in the event the transaction covered by this Agreement is not
consummated.
9.6 As defined in subparagraph 9.1 (c), Buyer and Seller acknowledge that
extensive local, state and Federal legislation establish broad liability upon
owners and/or users of real property for the investigation and remediation of a
Hazardous Substance Condition. The determination of the existence of a
Hazardous Substance Condition and the evaluation of such a condition are highly
technical and beyond the expertise of Broker(s). Xxxxx and Seller acknowledge
that they have been advised by Xxxxxx(s) to consult their own technical and
legal experts with respect to the possible Hazardous Substance Condition
aspects of this Property or adjoining properties, and Buyer and Seller are not
relying upon any investigation by or statement of Broker(s) with respect
xxxxxxx Xxxxx and Seller hereby assume all responsibility for the impact of
such Hazardous Substance Conditions upon their respective interests herein.
10. DOCUMENTS REQUIRED AT CLOSING:
10.1 Escrow Holder shall cause to be issued to Buyer a standard
coverage (or ALTA extended, if so elected under paragraph 9.1(f)) owner's form
policy of title insurance effective as of the Closing, issued by the Title
Company in the full amount of the Purchase Price, insuring title to the Property
vested in Buyer, subject only to the exceptions approved by Buyer. In the event
there is a Purchase Money Deed of Trust in this transaction, the policy of title
insurance shall be a joint protection policy insuring both Buyer and Seller.
"IMPORTANT: IN A PURCHASE OR EXCHANGE OF REAL PROPERTY, IT MAY BE ADVISABLE TO
OBTAIN TITLE INSURANCE IN CONNECTION WITH THE CLOSE OF ESCROW SINCE THERE MAY
BE PRIOR RECORDED LIENS AND ENCUMBRANCES WHICH AFFECT YOUR INTEREST IN THE
PROPERTY BEING ACQUIRED. A NEW POLICY OF TITLE INSURANCE SHOULD BE OBTAINED IN
ORDER TO ENSURE YOUR INTEREST IN THE PROPERTY THAT YOU ARE ACQUIRING."
10.2 Seller shall deliver or cause to be delivered to Escrow Holder in
time for delivery to Buyer at the Closing, an original ink signed:
(a) Xxxxx deed (or equivalent), duly executed and in recordable
form, conveying fee title to the Property to Buyer.
(b) If paragraph 3.1(c) has not been stricken, the Beneficiary
Statements concerning Existing Note(s).
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(c) If applicable, the Existing Leases and Other Agreements together
with duly executed assignments thereof by Xxxxxx and Xxxxx. The assignment of
Existing Leases shall be on the most recent Assignment and Assumption of
Lessor's Interest in Lease form published by the A.I.R. or its equivalent.
(d) If applicable, the Tenancy Statements executed by Xxxxxx and the
Tenant(s) of the Property.
(e) An affidavit executed by Seller to the effect that Seller is not
a "foreign person" within the meaning of Internal Revenue Code Section 1445 or
successor statutes. If Seller does not provide such affidavit in form
reasonably satisfactory to Buyer at least three (3) business days prior to the
Closing. Escrow Holder shall at the closing deduct from the Seller's proceeds
and remit to Internal Revenue Service such sum as is required by applicable
Federal law with respect to purchases form foreign sellers.
10.3 Buyer shall deliver or cause to be delivered to Seller through escrow:
(a) The cash portion of the Purchase Price and such additional sums
as are required of Buyer under this Agreement for prorations, expenses and
adjustments. The balance of the cash portion of the Purchase Price, including
Xxxxx's escrow charges and other cash charges, if any, shall be deposited by
Buyer with Escrow Holder, by cashier's check drawn upon a local major banking
institution, federal funds wire transfer, or any other method acceptable to
Escrow Holder as immediately collectable funds, no later than 11:00 o'clock
A.M. on the business day prior to the Expected Closing Date.
(b) If a Purchase Money Note and Purchase Money Deed of Trust are
called for by this Agreement, the duly executed originals of those documents,
the Purchase Money Deed of Trust being in recordable form, together with
evidence of fire insurance on the improvements in the amount of the full
replacement cost naming Seller as a mortgage loss payee, and a real estate tax
service contract (at Buyer's expense), assuring Seller of notice of the status
of payment of real property taxes during the life of the Purchase Money Note.
(c) The assumption portion of the Assignment and Assumption of
Lessor's Interest in Lease form specified in paragraph 10.2(c), above, duly
executed by Buyer with respect to the obligations of the Lessor accruing after
the Closing as to each Existing Lease.
(d) Assumptions duly executed by Xxxxx of the obligations of Seller
that accrue after Closing under any Other Agreements.
(e) If applicable, a written assumption duly executed by Xxxxx of
the loan documents with respect to Existing Notes.
11. PRORATIONS, EXPENSES AND ADJUSTMENTS.
11.1 Taxes. Real property taxes payable by the owner of the Property shall
be prorated through Escrow as of the date of the Closing, based upon the latest
tax bill available. The Parties agree to prorate as of the Closing any taxes
assessed against the Property by supplemental bill levied by reason of events
occurring prior to the Closing. Payment shall be made promptly in cash upon
receipt of a copy of any such supplemental bill of the amount necessary to
accomplish such proration. Seller shall pay and discharge in full at or before
the Closing the unpaid balance of any special assessment bonds.
11.2 Insurance. If Buyer elects to take an assignment of the existing
casualty and/or liability insurance that is maintained by Seller, the current
premium therefor shall be prorated through Escrow as of the date of Closing.
11.3 Rentals, Interest and Expenses. Collected rentals, interest on
Existing Notes, utilities, and operating expenses shall be prorated as of the
date of Closing. The Parties agree to promptly adjust between themselves
outside of Escrow any rents received after the Closing.
11.4 Security Deposit. Security Deposits held by Seller shall be given to
Buyer by a credit to the cash required of Buyer at the Closing.
11.5 Post Closing Matters. Any item to be prorated that is not determined
or determinable at the Closing shall be promptly adjusted by the Parties by
appropriate cash payment outside of the Escrow when the amount due is
determined.
11.8 Escrow Costs and Fees. Buyer and Seller shall each pay one-half of
the Escrow Holder's charges and Seller shall pay the usual recording fees and
any required documentary transfer taxes. Seller shall pay the premium for a
standard coverage owner's or joint protection policy of title insurance.
12. REPRESENTATION AND WARRANTIES OF SELLER AND DISCLAIMER.
12.1 Seller's warranties and representations shall survive the Closing and
delivery of the deed, and, unless otherwise noted herein, are true, material
and relied upon by the Buyer and Broker(s) in all respects, both as of the Date
of Agreement, and as of the date of Closing. Seller hereby makes the following
warranties and representations to Xxxxx and Xxxxxx(s):
(a) Authority of Seller. Seller is the owner of the Property and/or
has the full right, power and authority to sell, convey and transfer the
Property to Buyer as provided herein, and to perform Seller's obligations
hereunder.
(b) Maintenance During Escrow and Equipment Condition At Closing.
EXCEPT as otherwise provided in paragraph 9.1(1) hereof dealing with
destruction, damage or loss, Seller shall maintain the Property until the
Closing in its present condition, ordinary wear and tear excepted. The heating,
ventilating, air conditioning, plumbing, elevators, loading doors and
electrical systems shall be in good operating order and condition at the time
of Closing.
(c) Hazardous Substances/Storage Tanks. Seller has no knowledge,
except as otherwise disclosed to Buyer in writing, of the existence or prior
existence on the Property of any Hazardous Substance (as defined in paragraph
9.1(c)), nor of the existence or prior existence of any above or below ground
storage tanks or tanks.
(d) Compliance. Seller has no knowledge of any aspect or condition of
the Property which violates applicable laws, rules, regulations, codes, or
covenants, conditions or restrictions, or of improvements or alterations made
to the Property without a permit where one was required, or of any unfulfilled
order or directive of any applicable governmental agency or casualty insurance
company that any work of investigation, remediation, repair, maintenance or
improvement is to be performed on the Property.
(e) Changes in Agreements. Prior to the Closing, Seller will not
violate or modify, orally or in writing, any Existing Lease or Other Agreement,
or create any new leases or other agreements affecting the Property, without
Buyer's written approval, which approval will not be unreasonably withheld.
(f) Possessory Rights. Seller has no knowledge that anyone will, at
the Closing, have any right to possession of the Property, except as disclosed
by this Agreement or otherwise in writing to Buyer.
(g) Mechanics' Liens. There are no unsatisfied mechanic's or
materialman's lien rights concerning the Property.
(h) Actions, Suits or Proceedings. Seller has no knowledge of any
actions, suits or proceedings pending or threatened before any commission,
board, bureau, agency, instrumentality, arbitrator(s) court or tribunal that
would affect the Property or the right to occupy or utilize same.
(i) Notice of Changes. Seller will promptly notify Buyer and
Xxxxxx(s) in writing of any Material Change (as defined in paragraph 9.1(m))
affecting the Property that becomes known to Seller prior to the Closing.
(j) No Tenant Bankruptcy Proceedings. Seller has no notice or
knowledge that any tenant of the Property is the subject of bankruptcy or
insolvency proceeding.
(k) No Seller Bankruptcy Proceedings. Seller is not the subject of a
bankruptcy, insolvency or probate proceeding.
12.2 Buyer hereby acknowledges that, except as otherwise stated in this
Agreement, Buyer is purchasing the Property in its existing condition and will,
by the time called for herein, make or have waived all inspections of the
Property Buyer believes are necessary to protect its own interest in, and its
contemplated use of, the Property. The Parties acknowledge that, except as
otherwise stated in this Agreement, no representations, inducements, promises,
agreements, assurances oral or written, concerning the Property, or any aspect
of the Occupational Safety and Health Act, hazardous substance laws, or any
other act, ordinance or law, have been made by either Party or Broker, or
relied upon by either Party hereto.
13. POSSESSION.
13.1 Possession of the Property shall be given to Buyer at the Closing
subject to the rights of tenants under Existing Leases.
14. BUYER'S ENTRY.
14.1 At any time during the Escrow period, Buyer, and its agents and
representatives, shall have the right at reasonable times and subject to rights
of tenants under Existing Leases, to enter upon the Property for the purpose of
making inspections and tests specified in this Agreement. Following any such
entry or work, unless otherwise directed in writing by Seller, Buyer shall
return the Property to the condition it was in prior to such entry or work,
including the recompaction or removal of any disrupted soil or material as
Seller may reasonably direct. All such inspections and tests and any other work
conducted or materials furnished with respect to the Property by or for Buyer
shall be paid for by Buyer as and when due and Buyer shall indemnify, defend,
protect and hold harmless Seller and the Property of and from any and all
claims, liabilities, demands, losses, costs, expenses (including reasonable
attorney's fees), damages or recoveries, including those for injury to person
or property, arising out of or relating to any such work or materials or the
acts or omissions of Buyer, its agents or employees in connection therewith.
15. FURTHER DOCUMENTS AND ASSURANCES.
15.1 Buyer and Seller shall each, diligently and in good faith, undertake
all actions and procedures reasonably required to place the Escrow in condition
for Closing as and when required by this Agreement. Buyer and Seller agree to
provide all further information, and to execute and deliver all further
documents and instruments, reasonably required by Escrow Holder or the Title
Company.
16. ATTORNEYS' FEES.
16.1 In the event of any litigation of arbitration between the Buyer,
Seller, and Xxxxxx(s), or any of them, concerning this transaction, the
prevailing party shall be entitled to reasonable attorney's fees and costs. The
attorneys' fee award shall not be computed in accordance with any court fee
schedule, but shall be such as to fully reimburse all attorneys' fees
reasonably incurred in good faith.
17. PRIOR AGREEMENTS/AMENDMENTS.
17.1 The contract in effect as of the Date of Agreement supersedes any
and all prior agreements between Seller and Buyer regarding the Property.
17.2 Amendments to this Agreement are effective only if made in writing
and executed by Xxxxx and Seller.
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5
18. BROKER'S RIGHTS.
18.1 If this sale shall not be consummated due to the default of either
the Buyer or Seller, the defaulting party shall be liable to and shall pay to
Broker(s) the commission that Broker(s) would have received had the sale been
consummated. This obligation of Buyer, if Buyer is the defaulting party, is in
addition to any obligation with respect to liquidated damages.
18.2 Upon the Closing, Broker(s) is/are authorized to publicize the facts
of this transaction.
19. NOTICES.
19.1 Whenever any Party hereto, Escrow Holder or Broker(s) herein shall
desire to give or serve any notice, demand, request, approval or other
communication, each such communication shall be in writing and shall be
delivered personally, by messenger or by mail, postage prepaid, addressed as
set forth adjacent to that party's or Broker's signature on this Agreement or
by telecopy with receipt confirmed by telephone. Service of any such
communication shall be deemed made on the date of actual receipt at such
address.
19.2 Any Party or Broker hereto may from time to time, by notice in
writing served upon the other Party as aforesaid, designate a different address
to which, or a different person or additional persons to whom, all
communications are thereafter to be made.
20. DURATION OF OFFER.
20.1 If this offer shall not be accepted by Seller on or before 5:00 P.M.
according to the time standard applicable to the city of Los Angeles, CA on the
date of February 20, 1998, it shall be deemed automatically revoked.
20.2 The acceptance of this offer, or of any subsequent count-offer
hereto, that creates an agreement between the Parties as described in paragraph
12, shall be deemed made upon delivery to the other Party or either Broker
herein of a duly executed writing unconditionally accepting the last
outstanding offer or counter-offer.
21. LIQUIDATED DAMAGES. (This Liquidated Damages paragraph is applicable only
if initialled by both parties.)
21.1 THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY
DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH
WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT. THEREFORE, IF, AFTER THE SATISFACTION OR WAIVER OF ALL
CONTINGENCIES PROVIDED FOR THE BUYER'S BENEFIT, BUYER BREACHES THIS AGREEMENT,
SELLER SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF $250,000 PLUS
INTEREST, IF ANY, ACCRUED THEREON. UPON PAYMENT OF SAID SUM TO SELLER, BUYER
SHALL BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER, AND ANY ESCROW
CANCELLATION FEES AND TITLE COMPANY CHARGES SHALL BE PAID BY SELLER.
/s/ DMT /s/ DMT
--------------- ---------------
BUYER INITIALS SELLER INITIALS
23. APPLICABLE LAW.
23.1 This Agreement shall be governed by, and paragraph 22.3 amended to
refer to, the laws of the state in which the Property is located.
24. TIME OF ESSENCE.
24.1 Time is of the essence of this Agreement.
25. COUNTERPARTS.
25.1 This Agreement may be executed by Xxxxx and Seller in counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument. Escrow Holder, after verifying that the
counterparts are identical except for the signatures, is authorized and
instructed to combine the signed signature pages on one of the counterparts,
which shall then constitute the Agreement.
26. DISCLOSURES REGARDING THE NATURE OF A REAL ESTATE AGENCY RELATIONSHIP.
26.1 The Parties and Xxxxxx(s) agree that their relationship(s) shall be
governed by the principles set forth in California Civil Code, Section 2375, as
summarized in the following paragraph 26.2.
26.2 When entering into a discussion with a real estate agent regarding a
real estate transaction, a Buyer or Seller should from the outset understand
what type of agency relationship or representation it has with the agent or
agents in the transaction. Xxxxx and Seller acknowledge being advised by the
Broker(s) in this transaction, as follows:
(a) Seller's Agent. A Seller's Agent under a listing agreement with
the Seller acts as the agent for the Seller only. A Seller's agent or subagent
has the following affirmative obligations: (1) To the Seller: A fiduciary duty
of utmost care, integrity, honesty, and loyalty in dealings with the Seller. (2)
To the Buyer and the Seller: a. Diligent exercise of reasonable skill and care
in performance of the agent's duties. b. A duty of honest and fair dealing and
good faith. c. A duty to disclose all facts known to the agent materially
affecting the value or desirability of the property that are not known to, or
within the diligent attention and observation of, the Parties. An agent is not
obligated to reveal to either Party any confidential information obtained from
the other Party which does not involve the affirmative duties set forth above.
(b) Xxxxx's Agent. A selling agent can, with a Xxxxx's consent, agree
to act as agent for the Buyer only. In these situations, the agent is not the
Seller's agent, even if by agreement the agent may receive compensation for
services rendered, either in full or in part from the Seller. An agent acting
only for a Xxxxx has the following affirmative obligations. (1) To the Buyer: A
fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with
the Buyer. (2) To the Buyer and the Seller: a. Diligent exercise of reasonable
skill and care in performance of the agent's duties. b. A duty of honest and
fair dealing and good faith. c. A duty to disclose all facts known to the agent
materially affecting the value or desirability of the property that are not
known to, or within the diligent attention and observation of, the Parties. An
agent is not obligated to reveal to either Party any confidential information
obtained from the other Party which does not involve the affirmative duties set
forth above.
MSS PA
---- ---
PAGE 5
6
(c) Agent Representing Both Seller and Buyer. A real estate agent,
either acting directly or through one or more associate licenses, can legally
be the agent of both the Seller and the Buyer in a transaction, but only with
the knowledge and consent of both the Seller and the Buyer. (1) In a dual
agency situation, the agent has the following affirmative obligations to both
the Seller and the Buyer: a. A fiduciary duty of utmost care, integrity,
honesty and loyalty in the dealings with either Seller or Buyer. b. Other
duties to the Seller and the Buyer as stated above in their respective sections
(a) or (b) of this paragraph 26.2. (2) In representing both Seller and Buyer,
the agent may not without the express permission of the respective Party,
disclose to the other Party that the Seller will accept a price less than the
listing price or that the Buyer will pay a price greater than the price offered.
(3) The above duties of the agent in a real estate transaction do not relieve a
Seller or Buyer from the responsibility to protect their own interests. Buyer
and Seller should carefully read all agreements to assure that they adequately
express their understanding of the transaction. A real estate agent is a person
qualified to advise about real estate. If legal or tax advise is desired,
consult a competent professional.
(d) Further Disclosures. Throughout this transaction Buyer and
Seller may receive more than one disclosure, depending upon the number of
agents assisting in the transaction. Buyer and Seller should each read its
contents each time it is presented, considering the relationship between them
and the real estate agent in this transaction and that disclosure.
26.3 Confidential Information. Xxxxx and Seller agree to identify to
Broker(s) as "Confidential" any communication or information given Broker(s)
that is considered by such Party to be confidential.
27. ADDITIONAL PROVISIONS:
Additional provisions of this offer, if any, are as follows or are
attached hereto by an addendum consisting of paragraphs_______through_______.
(It will be presumed no other provisions are included unless specified here.)
SEE ADDENDUM
BUYER AND SELLER HEREBY ACKNOWLEDGE THAT THEY HAVE BEEN AND ARE NOW ADVISED BY
THE BROKER(S) TO CONSULT AND RETAIN THEIR OWN EXPERTS TO ADVISE AND REPRESENT
THEM CONCERNING THE LEGAL AND INCOME TAX EFFECTS OF THIS AGREEMENT, AS WELL AS
THE CONDITION AND/OR LEGALITY OF THE PROPERTY, THE IMPROVEMENTS AND EQUIPMENT
THEREIN, THE SOIL THEREOF, THE CONDITION OF TITLE THERETO, THE SURVEY THEREOF,
THE ENVIRONMENTAL ASPECTS THEREOF, THE INTENDED AND/OR PERMITTED USAGE THEREOF,
THE EXISTENCE AND NATURE OF TENANCIES THEREIN, THE OUTSTANDING OTHER AGREEMENTS,
IF ANY, WITH RESPECT THERETO, AND THE EXISTING OR CONTEMPLATED FINANCING
THEREOF, AND THAT THE BROKER(S) IS/ARE NOT TO BE RESPONSIBLE FOR PURSUING THE
INVESTIGATION OF ANY SUCH MATTERS UNLESS EXPRESSLY OTHERWISE AGREED TO IN
WRITING BY BROKER(S) AND BUYER OR SELLER.
THIS FORM IS NOT FOR USE IN CONNECTION
WITH THE SALE OF RESIDENTIAL PROPERTY.
IF THIS AGREEMENT HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR SUBMISSION TO
YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY
THE REAL ESTATE BROKER(S) OR THEIR AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS AGREEMENT OR THE
TRANSACTION INVOLVED HEREIN. THE UNDERSIGNED BUYER OFFERS AND AGREES TO BUY THE
PROPERTY ON THE TERMS AND CONDITIONS STATED AND ACKNOWLEDGES RECEIPT OF A COPY
HEREOF.
BROKER:
The Weatherby Co.
By /s/ X. X. XXXXXXXXX Date 3/5/98
Name Printed: X.X. Xxxxxxxxx
Title: Owner
Address: 00000 Xxxxx Xxxxxx Xxxx., Xx. 000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Facsimile No.: (000) 000-0000
BUYER:
The sports Club Company, Inc.
By /s/ XXXX XXXXX Date 3-5-98
Name Printed: Xxxx Xxxxx
Title: Vice President
Address: 00000 Xxxxx Xxxxxx Xxxx., Xx. 000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Facsimile No.: (000) 000-0000
28. ACCEPTANCE.
28.1 Seller accepts the foregoing offer to purchase the Property and
hereby agrees to sell the Property to Buyer on the terms and conditions therein
specified.
28.2 Seller acknowledges that Broker(s) has/have been retained to locate a
Buyer and is/are the procuring cause of the purchase and sale of the Property
set forth in this Agreement. In consideration of real estate brokerage service
rendered by Xxxxxx(s), Xxxxxx agrees to pay Xxxxxx(s) a real estate brokerage
fee in a sum equal to _____% of the Purchase Price (the "Broker(s) Fee")
divided equally in such shares as said Xxxxxx(s) shall direct in writing. As is
provided in paragraph 9.1(p), this Agreement shall serve as an irrevocable
instruction to Escrow Holder to pay such brokerage fee to Broker(s) out of the
proceeds accruing to the account of Seller at the Closing.
28.3 Seller acknowledges receipt of a copy hereof and authorizes the
Broker(s) to deliver a signed copy to Buyer.
NOTE: A PROPERTY INFORMATION SHEET IS REQUIRED TO BE DELIVERED TO BUYER BY
SELLER UNDER THIS AGREEMENT.
BROKER: SELLER: RIVERSTONE REALTY ADVISORS, LLC
__________________________________ ________________________________________
By____________________DATE________ BY /s/ XXXXX XXXXX DATE____________
Name Printed:_____________________ Name Printed: Xxxxx Xxxxx
Title:____________________________ Title: Manager
Address:__________________________ Address: 000 Xxxx Xxxxxxxxx Xxxxxx
__________________________________ Santa Fe, New Mexico 87501
Telephone:________________________ Telephone: (000) 000-0000
Facsimile No.:____________________ Facsimile No.: (000) 000-0000
7
EXHIBIT "1"
TO OFFER TO PURCHASE, SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
8
RECORDING REQUESTED )
BY AND WHEN RECORDED )
RETURN TO: )
)
XXXXXXX, SAPP, ZIVLEY, HILL & XXXXXX, LLP )
3400 Chase Tower )
600 Travis )
Houston, Texas 77002-3098 )
Attn: Xxxxx Xxxxxxxx )
--------------------------------------------------------------------------------
PROHIBITED USES COVENANT
THIS PROHIBITED USES COVENANT (the "Covenant") is made as of the ____
day of _____________, 1998, by __________________________________, a
______________ corporation ("Owner"), and Riverstone Realty Advisors, L.L.C.
("Riverstone").
RECITALS
X. Xxxxxxxxxx is the fee owner of that certain real property located in
the City of Houston, Xxxxxx County, State of Texas, more particularly described
in Schedule 1 attached hereto and made a part hereof (the "Riverstone Property")
containing approximately 7 acres.
B. Riverstone and The Sports Club Company, Inc., a Delaware corporation
("SCC"), entered into that certain Standard Offer, Agreement and Escrow
Instructions for Purchase of Real Estate dated as of February 3, 1998
("Agreement"), whereby Riverstone agreed to sell to SCC, and SCC agreed to
purchase from Riverstone, real property located adjacent to the Riverstone
Property, more particularly described in Schedule 2 attached hereto and made a
part hereof (the "SCC Property") containing approximately 3.5 acres. Owner is
the successor to SCC under the Agreement (the Riverstone Property and the SCC
Property, collectively, the "Properties" and, individually, a "Property").
C. The Agreement provides in part that neither SCC nor Riverstone, nor
any successor to either of SCC or Riverstone, shall construct, operate or allow
to be operated on its respective Property any prohibited use, as described in
this Covenant.
D. The recordation of this Covenant is intended to impose restrictions
on the operations of each Property for the benefit of the other Property.
NOW, THEREFORE, Riverstone and Owner each hereby covenants, agrees and
declares that all of its interests as the same may from time to time appear in
its respective Property shall be held and conveyed subject to the following
covenants, conditions and restrictions, which are hereby declared to be for the
benefit of the other Property and may be enforced by the owner (or any successor
owner) of such other Property.
-1-
9
1. Restrictions. There shall not be constructed, operated or allowed to
be operated on either Property, or any portion thereof, any one or more of the
following uses:
(a) Convenience store or gas station.
(b) Fast food restaurant or restaurant with drive-thru facilities.
(c) Assembly, servicing, industrial, manufacturing, warehousing or
distribution facility.
(d) Bowling alley.
(e) Mobile home park.
(f) Outdoor storage facility (except a facility ancillary to another
permitted use).
(g) Sale of new or used vehicles.
(h) The sale or viewing of erotic, pornographic or sexually oriented
books, paraphernalia, films, videos or other material.
(i) An establishment providing any kind of sexual or lewd
entertainment, activity, or conduct, or a sexually oriented
business; provided that massage by licensed professionals as
part of a health or fitness facility shall not be prohibited.
(j) Commercial excavation of building or construction materials (but
excluding temporary excavation in connection with construction
of improvements on the Burdened Property).
(k) Dumping, disposal, incineration, or reduction of garbage, sewer,
dead animals or refuse, or the construction or operation of
water or sewer treatment plant or electrical substation.
(l) Smelting of iron, tin, zinc or other ores, or refining of
petroleum or its products.
(m) Storage in bulk of junk or used materials.
2. Term. This Covenant shall remain in full force and effect until
December 31, 2040.
3. Running with the Land. The covenants, conditions and restrictions
contained herein shall run with the ownership interests of each Property, shall
be binding upon all parties having or acquiring any right or title in said
ownership interests of any part thereof
-2-
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and shall be enforceable by the owner from time to time of each Property as
equitable servitudes.
4. Attorneys Fees. In the event of any dispute between any fee owner of
all or any portion of one Property and any fee owner of all or any portion of
the other Property arising out of or in relation to this Covenant, including
without limitation any action brought by any owner of one Property to enforce
this Covenant, the prevailing party shall be entitled to recover, without
limitation, its attorneys fees and costs from the non-prevailing party. In the
event the non-prevailing party does not reimburse the prevailing party within 20
days of demand being made for such reimbursement, such demand to be accompanied
by reasonable evidence of such fees and costs, the prevailing party shall have a
lien on the Property owned by the non-prevailing party to the extent of the
amount unpaid by the non-prevailing party, which amount shall bear interest at
15% per annum or the highest rate of interest not prohibited by law at the time
of the expiration of said 20 days, whichever is less, from the date of
expiration of said 20 days until paid. Such lien may be established as provided
by filing a notice claiming a lien (a "Lien Claim") in the real property records
of Xxxxxx County, Texas, which Lien Claim shall include (i) a statement
concerning the basis for the Lien Claim and identifying the lien claimant as a
claiming party, (ii) an identification of the non-prevailing party, (iii) a
description of the expenses incurred which have given rise to the Lien Claim and
a statement itemizing the amount thereof, and (iv) a statement that the lien is
claimed pursuant to the provisions of this paragraph. The lien represented by
the Lien Claim shall attach, shall be effective and shall have a priority from
the date the Lien Claim is recorded solely in the amount claimed and may be
enforced or foreclosed by filing a suit to foreclose such lien under the
applicable provisions of the laws of the State of Texas.
5. Amendment. This Covenant may not be modified in any respect
whatsoever, or rescinded, in whole or in part, except by written instrument
executed by all fee owners of the Properties and by all mortgage lienholders
having a lien on either of the Properties and recorded in the Official Records
of Xxxxxx County, Texas.
6. Governing Laws. This Covenant shall be construed, interpreted,
governed and enforced in accordance with the laws of the State of Texas.
7. Headings. The headings of this Covenant are for purposes of reference
only and shall not limit or define the meaning of the provisions of this
Covenant.
-3-
11
8. Priority. This Covenant shall be prior and superior in position to
any deed of trust lien or other mortgage lien against either Property, but a
Lien Claim will be subordinate to any deed of trust or other mortgage lien
recorded prior to recording of such Xxxx Xxxxx.
IN WITNESS WHEREOF, this Covenant has been executed upon the day and
year first above written.
"OWNER"
___________________________,
a ___________________ corporation
By:___________________________________________
Print Name:___________________________________
Its:__________________________________________
"RIVERSTONE"
Riverstone Realty Advisors, L.L.C.,
a ____________________ limited liability company
By:___________________________________________
Print Name:___________________________________
Its:__________________________________________
-4-
12
STATE OF CALIFORNIA )
) ss.
COUNTY OF _________________________ )
On February ___, 1998, before me, ____________________, personally
appeared __________________________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature__________________________
-5-
13
Schedule 1
LEGAL DESCRIPTION OF RIVERSTONE PROPERTY
-6-
14
Schedule 2
LEGAL DESCRIPTION OF SCC PROPERTY
-7-
15
RECORDING REQUESTED )
BY AND WHEN RECORDED )
RETURN TO: )
)
XXXXX XXXXXXX XXXXXX & XXXXXX LLP )
00000 Xxxxx Xxxxxx Xxxx. )
Xxxxxx Xxxxx )
Xxx Xxxxxxx, XX 00000 )
Attn: Xxxxxxx Xxxxxxxxxx, Esq. )
--------------------------------------------------------------------------------
EXCLUSIVE ATHLETIC CLUB COVENANT
THIS EXCLUSIVE ATHLETIC CLUB COVENANT (the "Covenant") is made as of the
____ day of _____________, 1998, by RIVERSTONE REALTY ADVISORS, L.L.C., a
______________ limited liability company ("Riverstone").
RECITALS
X. Xxxxxxxxxx is the fee owner of that certain real property located in
the City of Houston, Xxxxxx County, State of Texas, more particularly described
in Schedule 1 attached hereto and made a part hereof (the "Burdened Property")
containing approximately 7 acres.
B. Riverstone and The Sports Club Company, Inc., a Delaware corporation
("SCC") entered into that certain Standard Offer, Agreement and Escrow
Instructions for Purchase of Real Estate dated as of February 3, 1998
("Agreement"), whereby Riverstone agreed to sell to SCC, and SCC agreed to
purchase, from Riverstone real property located adjacent to the Burdened
Property, more particularly described in Schedule 2 attached hereto and made a
part hereof (the "Benefited Property") containing approximately 3.5 acres.
C. The Agreement provides in part that Riverstone and any successor of
Riverstone, shall not construct, operate or allow to be operated on the Burdened
Property any one or more common area "tenant amenity type" or commercial health
clubs, athletic clubs, commercial gyms or other fitness facilities (including,
without limitation, any aerobic studio, cardiovascular area or indoor basketball
or volleyball court or courts) containing, in the aggregate, more than 1,500
square feet of total floor area under any one or more roofs.
D. The recordation of this Covenant is intended to impose restrictions
on the operations of the Burdened Property for the benefit of the Benefitted
Property.
NOW, THEREFORE, Riverstone hereby covenants, agrees and declares that
all of its
-1-
16
interests as the same may from time to time appear in the Burdened Property
shall be held and conveyed subject to the following covenants, conditions and
restrictions which are hereby declared to be for the benefit of the Benefited
Property and may be enforced by the owner of the Benefitted Property (or any
successor owner).
1. Restrictions. There shall not be constructed, operated or allowed to
be operated on the Burdened Property, or any portion thereof, any one or more
common area "tenant amenity type" fitness facilities, commercial health clubs,
commercial athletic clubs, commercial gyms or any other type of noncommercial or
commercial fitness facilities (including, without limitation, any aerobic
studio, cardiovascular area or indoor basketball or indoor volleyball court or
courts) (collectively, "Facilities") containing, in the aggregate, more than
1,500 square feet of total floor area under any one or more roofs. Thus, for
example and without limitation, an apartment building located on the Burdened
Property shall be permitted to have a 1000 square foot "tenant amenity type"
workout area under roof only if such Facility, when added to the square footage
of all other Facilities under roof on the Burdened Property, does not cause
there to be Facilities containing, in the aggregate, in excess of 1,500 square
feet under roof on the Burdened Property.
2. Term. This Covenant shall remain in full force and effect until
December 31, 2040.
3. Running with the Land. The covenants, conditions and restrictions
contained herein shall run with the ownership interests of the Burdened
Property, shall be binding upon all parties having or acquiring any right or
title in said ownership interests of any part thereof and shall be enforceable
by the owner, from time to time, of the Benefitted Property as equitable
servitudes.
4. Attorneys Fees. In the event of any dispute between any fee owner of
all or any portion of the Benefited Property and any fee owner of all or any
portion of the Burdened Property arising out of or in relation to this Covenant,
including without limitation any action brought by any owner of the Benefitted
Property to enforce this Covenant, the prevailing party shall be entitled to
recover, without limitation, its attorneys fees and costs from the
non-prevailing party. In the event the non-prevailing party does not reimburse
the prevailing party within 20 days of demand being made for such reimbursement,
such demand to be accompanied by reasonable evidence of such fees and costs, the
prevailing party shall have a lien on the Benefitted Property or Burdened
Property, as applicable, owned by the non-prevailing party to the extent of the
amount unpaid by the non-prevailing party, which amount shall bear interest at
15% per annum or the highest rate of interest not prohibited by law at the time
of the expiration of said 20 days, whichever is less, from the date of
expiration of said 20 days until paid. Such lien may be established as provided
by filing a notice claiming a lien (a "Lien Claim") in the real property records
of Xxxxxx County, Texas, which Lien Claim shall include (i) a statement
concerning the basis for the Lien Claim and identifying the lien claimant as a
claiming party, (ii) an identification of the non-prevailing party, (iii) a
description of the expenses incurred which have given rise to the Lien Claim and
a statement itemizing the amount thereof, and (iv) a statement that the lien is
claimed pursuant to the provisions of this paragraph. The lien represented by
the Lien
-2-
17
Claim shall attach, shall be effective and shall have a priority from the date
the Lien Claim is recorded solely in the amount claimed and may be enforced or
foreclosed by filing a suit to foreclose such lien under the applicable
provisions of the laws of the State of Texas.
5. Amendment. This Covenant may not be modified in any respect
whatsoever, or rescinded, in whole or in part, except by written instrument
executed by all fee owners of the Burdened Property and the Benefited Property
and by all mortgage lienholders having a lien on either of the Burdened Property
or the Benefitted Property and recorded in the Official Records of Xxxxxx
County, Texas.
6. Governing Laws. This Covenant shall be construed, interpreted,
governed and enforced in accordance with the laws of the State of Texas.
7. Headings. The headings of this Covenant are for purposes of reference
only and shall not limit or define the meaning of the provisions of this
Covenant.
8. Priority. This Covenant shall be prior and superior in position to
any deed of trust lien or other lien or claim against the Burdened Property, but
a Lien Claim shall be subordinate to any deed of trust or other mortgage lien
recorded prior to recording of such Lien Claim.
IN WITNESS WHEREOF, this Covenant has been executed upon the day and
year first above written.
RIVERSTONE REALTY ADVISORS, L.L.C.,
a ____________________ limited liability company
By:___________________________________________
Print Name:___________________________________
Its:__________________________________________
-3-
18
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On February ___, 1998, before me, ____________________, personally
appeared __________________________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature_________________________
-4-
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Schedule 1
LEGAL DESCRIPTION OF BURDENED PROPERTY
-5-
20
Schedule 2
LEGAL DESCRIPTION OF BENEFITED PROPERTY
-6-
21
ADDENDUM TO STANDARD OFFER, AGREEMENT AND ESCROW
INSTRUCTIONS FOR PURCHASE OF REAL ESTATE DATED FEBRUARY 3, 1998,
BETWEEN THE SPORTS CLUB COMPANY, INC., AS BUYER, AND RIVERSTONE REALTY
ADVISORS, L.L.C., AS SELLER, FOR THE PROPERTY LOCATED AT INTERSTATE 000,
XXXXX 00 XXX XX XXX XXXXXX, XXXXXXX, XXXXX
This addendum ("Addendum") modifies, amends and supplements the offer referenced
above (the "Offer"). The Offer and this Addendum are collectively referred
herein as the "Agreement". Capitalized terms not defined herein shall have the
same meaning as set forth in the Offer. In the event of any inconsistency
between the terms of the Offer and this Addendum, the terms of this Addendum
shall prevail.
28. Paragraph 1.1 of the Offer is hereby amended to make The Sports Club
Company, Inc., a Delaware corporation, the "Buyer".
29. Paragraph 2.1 of the Offer is hereby amended (a) to provide that the parties
shall agree upon the legal description of the Property on or before the
expiration of the Due Diligence Period (as defined below) based upon the Survey
and (b) to exclude from the items being purchased by Buyer those described in
Schedule II attached hereto and incorporated herein by this reference. If the
legal description of the Property is not agreed upon on or before the expiration
of the Due Diligence Period, then it shall be agreed upon as soon thereafter as
reasonably possible, as a condition precedent to Closing.
30. Paragraph 3.1 of the Offer is hereby amended to provide that the Purchase
Price shall be an amount equal to the sum of (a) the product of $20 multiplied
by the number of gross square feet contained in the Property, as evidenced by
the ALTA and agreed upon during the Due Diligence Period ("Square Feet"), plus
(b) the Carrying Costs. If the gross square feet contained in the Property is
not agreed upon on or before the expiration of the Due Diligence Period, then it
shall be agreed upon as soon thereafter as reasonably possible, as a condition
precedent to Closing. "Carrying Costs" equal the sum of Interest Cost plus Other
Costs, which terms are themselves defined as follows:
"Interest Cost" = (Land Cost x Interest Rate / 365) x Holding Period.
"Land Cost" = Square Feet x Per Square Foot Cost.
"Per Square Foot Cost" = The lesser of $17 or the actual gross price per
square foot (as determined based upon the Square Feet) paid by Seller
for the Property to the party who sold the Property to Seller, exclusive
of any pro ration adjustments, brokerage commissions, costs of
financing, professional fees, closing costs, due diligence costs, etc.
"Interest Rate" = The lesser of 8% or the stated interest rate set forth
in the promissory note, the proceeds of which Seller used, in whole or
in part, to purchase the Property.
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"Holding Period" = The number of days from the expiration of the Due
Diligence Period through Closing. (Thus, for example, if the Due
Diligence Period expired on February 20, 1998 and Closing occurred on
June 24, 1998, then the Holding Period would be 124.)
"Other Costs" = Origination Fee + $5,000.
"Origination Fee" = Land Cost times the lesser of 1.5% or the percentage
used to calculate the loan origination fee actually paid by Seller for
the loan, the proceeds of which Seller used, in whole or in part, to
purchase the Property.
31. Paragraphs 4.1 and 4.2 of the Offer are hereby amended to provide that Buyer
shall deposit with Texas Title Company (a) $100,000 of the Deposit upon full
execution of this Agreement by the parties and (b) the remaining $150,000 of the
Deposit on or before Wednesday, March 4, 1998.
32. In paragraph 4.3 of the Offer, the reference to a "state chartered bank" is
hereby deleted; the reference to the "Brokers" is hereby deleted; and it is
hereby agreed that the interest shall accrue to the benefit of the party
entitled thereto, rather than to the benefit "of Buyer".
33. Any reference to counter offers contained in paragraph 8.1 of the Offer or
otherwise in the Offer are hereby deleted.
34. Any reference to a "grant deed" in paragraph 8.3 of the Offer or otherwise
in the Offer is hereby replaced with a reference to a "special warranty deed".
35. All time periods for the satisfaction of various contingencies set forth in
paragraph 9 of the Offer are hereby amended as set forth in paragraph 58 of the
Agreement.
36. Paragraph 9.1(a) of the Offer is hereby deleted in its entirety.
37. Paragraph 9.1(b) of the Offer is hereby deleted in its entirety.
38. Only a material adverse change in the physical condition of the Property
occurring after Tuesday, February 17, 1998 shall constitute a "Material Change"
under paragraph 9.1(m) of the Offer.
39. The last sentence of paragraph 9.1(p) of the Offer is hereby deleted in its
entirety.
40. [Intentionally omitted]
41. Paragraph 9.3 of the Offer is hereby deleted in its entirety.
42. Paragraph 9.4 of the Offer is hereby deleted in its entirety.
43. Paragraph 10.2(a) of the Offer is hereby amended to refer to a "special
warranty deed".
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44. The representations and warranties of Seller made in paragraph 12 of the
Offer and anywhere else in the Agreement shall survive for two years from and
after the date of Closing.
45. Each reference to Seller's knowledge in paragraphs 12.1(c), 12.1(d),
12.1(f), 12.1(g), 12.1(h), 12.1(i) and 12.1(j) of the Offer is hereby amended to
refer instead to "actual knowledge" "actually known", or words of similar
import, as applicable. In addition, such actual knowledge shall only refer to
the actual knowledge of either Xxxxx Xxxxx or Xxxxx Xxxxx.
46. The representation and warranty of Seller contained in paragraph 12.1(c) of
the Offer is hereby amended to refer only to the existence or prior existence on
the Property of any Hazardous Substance in violation of any applicable laws,
rules or regulations or any below ground storage tank.
47. The representation and warranty of Seller contained in paragraph 12.1(g) of
the Offer is hereby amended, in its entirety, as follows: "There are no
unsatisfied mechanic's or materialman's lien rights concerning the Property
arising out of any act or omission by Seller. To Seller's actual knowledge,
there are no unsatisfied mechanic's or materialman's lien rights concerning the
Property arising out of any act or omission of anyone other than Seller."
48. The representation and warranty of Seller contained in paragraph 12.1(h) of
the Offer is hereby amended to refer to any such action, suit or proceeding that
would "materially adversely" affect the Property or the right to occupy or
utilize same.
49. New paragraph 12.1(l) is hereby added to the Offer as follows: "(l) Month to
month tenancy. At Closing, no one shall have a right to occupy all or any part
of the Property, except, if at all, Quality Christmas Tree Co., Inc., a Texas
corporation ("Tenant"), and then only as a month-to-month tenant. Seller shall
take no action regarding Xxxxxx's occupancy of the Property without Xxxxx's
prior written consent and shall, if requested by Xxxxx at any time after
expiration of the Due Diligence Period, initiate and prosecute to completion, at
Seller's cost, the termination of Tenant's month-to-month tenancy and the
eviction of Tenant.
50. Paragraph 18.1 of the Offer is hereby deleted in its entirety.
51. Paragraph 18.2 of the Offer is hereby deleted, in its entirety, and replaced
with the following: "Upon the Closing, Broker(s) is/are authorized to publicize
the facts of this transaction, except for the sales price."
52. Paragraph 19 of the Offer is hereby amended to provide that a confirming
copy of any notice given by telecopier shall also be sent by other approved
means as soon as reasonably practicable hereafter.
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53. Paragraph 21.1 of the Offer is hereby amended and restated to read, in its
entirety, as follows: THE PARTIES AGREE THAT THEY HAVE NEGOTIATED WITH REGARD TO
THE DETERMINATION OF DAMAGES AND HAVE CONCLUDED THAT, IF CLOSING FAILS TO OCCUR,
THEN THE MAXIMUM AMOUNT OF ACTUAL DAMAGES, IF ANY, FOR WHICH BUYER SHALL BE
LIABLE SHALL NOT EXCEED AN AMOUNT EQUAL TO THE PURCHASE PRICE; IT BEING AGREED
THAT, UNDER NO CIRCUMSTANCES, SHALL BUYER BE LIABLE FOR ANY CONSEQUENTIAL
DAMAGES. THE PARTIES HEREBY ACKNOWLEDGE THAT THEY ARE IN EQUAL BARGAINING
POSITIONS, ARE SOPHISTICATED IN BUSINESS MATTERS AND WERE REPRESENTED BY COUNSEL
AT ALL TIMES DURING THE NEGOTIATION OF THIS PROVISION.
MSS PA
----------- -----------
Buyer's Seller's
Initials Initials
54. Subject to paragraph 52, if Buyer or Seller breaches the Agreement, then the
non-breaching party shall be entitled to any and all rights and remedies,
whether pursuant to the Agreement, at law or in equity, including, without
limitation, the right to pursue specific enforcement of this Agreement.
55. Paragraph 22 of the Offer is hereby deleted in its entirety.
56. Paragraph 26.1 of the Offer is hereby deleted, in its entirety, and replaced
with the following: "The Parties and Xxxxxx(s) agree that their relationship(s)
shall be governed by applicable Texas law, as summarized in the following
paragraph 26.2. In the event of any inconsistency between paragraph 26.2 and
Texas law, Texas law shall govern."
57. Paragraph 27 of the Offer is hereby amended to refer to the paragraphs of
this Addendum.
58. Paragraph 28.2 of the Offer is hereby deleted, in its entirety, and replaced
with the following: "Seller acknowledges that Broker(s) has/have been retained
to locate a Buyer and is/are the procuring cause of the purchase and sale of the
Property set forth in this Agreement. In consideration of real estate brokerage
service rendered by Xxxxxx(s), Xxxxxx agrees to pay Xxxxxx(s) a real estate
brokerage fee in a sum equal to 4% (1/2 to Riverstone, and 1/2 to Weatherby) of
the purchase price if and only if the sale to Buyer is closed and consummated."
59. The "Due Diligence Period" shall expire upon full execution of this
Agreement by the parties. Such full execution shall evidence that Xxxxx has
approved, in its sole discretion, all contingencies concerning the Property,
including, without limitation, those contingencies specified in paragraph 9 of
the Offer but excluding and without waiving any matter expressly stated in this
Agreement to be satisfied prior to Closing as a condition to Buyer's obligations
hereunder, and the provisions of this paragraph shall supersede the time periods
and termination rights in paragraph 9 of the Offer. Buyer acknowledges that it
has received from Seller, or itself had previously provided to Seller, those
Seller Documents described in Schedule III attached hereto and incorporated
herein by this reference.
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60. Prior to the execution of this Agreement, Seller shall have delivered to
Buyer, at Seller's expense, copies of any and all documents actually known to
Seller and in Seller's possession (or available to Seller at no expense to
Seller if not in Seller's possession but still known to Seller) which materially
affect the Property (collectively, the "Seller Documents"). The Seller Documents
shall include but not be limited to:
a. All agreements affecting the Property which will remain in effect
subsequent to Closing.
b. All substantive written communications and notices with governing
agencies, public utilities or other public bodies received or sent to, by or on
behalf of Seller.
c. All permits, licenses, certificates of occupancy and any other zoning
documents affecting the Property.
d. The PTR and all Underlying Documents.
e. [Intentionally omitted]
f. Any reports on the Property regarding soils, ground water, survey,
engineering, physical improvement or other studies relating to the Property.
g. The lease with Tenant.
Seller shall not, however, be required to deliver to Buyer any Seller Document
that Seller received, initially, from Buyer.
61. Seller makes the following representations and warranties to Buyer, which
shall be true as of Closing and shall survive Closing:
a. Seller has provided Buyer true, correct and complete copies of all
Seller Documents referenced in Schedule III, and Seller is not required to
provide to Buyer, prior to the execution of this Agreement, any Seller Document
not referenced in Schedule III.
b. To the actual knowledge of Xxxxx Xxxxx and Xxxxx Xxxxx, there are no
liens, encumbrances, bonds, assessments, leases or tenancies affecting the
Property that shall survive Closing, except those disclosed on Schedule IV.
62. Seller shall indemnify, defend and hold Buyer harmless from and against any
and all cost, expense, liability, damage or demand associated with the Property
occurring for the first time prior to Closing or the breach of any
representation or warranty made by Seller to Buyer.
63. Buyer shall indemnify, defend and hold Seller harmless from and against any
and all cost, expense, liability, damage or demand associated with the Property
occurring for the first time after Closing or the breach of any representation
or warranty made by Buyer to Seller.
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64. Xxxxx's and Xxxxxx's respective rights, duties and obligations under this
Agreement are subject to Seller's acquisition of the Property. If Seller has not
acquired the Property on or before the Expected Closing Date, then this
Agreement shall automatically terminate; the Deposit shall be delivered to
Buyer; and neither party shall have any further liability to the other
hereunder.
65. Buyer shall be entitled to a credit, through Escrow at Closing, against the
Purchase Price in an aggregate amount up to $25,000 for Buyer's third party
professional costs relating to an earlier transaction involving the Property,
upon providing Seller with actual invoices from unrelated third parties for such
costs.
66. Buyer shall reimburse Seller for Seller's third party professional costs
relating to the Property, in an aggregate amount not to exceed $20,000, upon
Seller providing Buyer with actual invoices from unrelated third parties for
such costs. Such costs shall include, without limitation, the costs of a soils
report, the Survey, additional environmental due diligence and any insurance for
environmental liabilities under which Buyer would be an insured.
67. Buyer and Seller have each already reviewed and approved the proposed site
plan and northern property boundary line for the Property, a reduced copy of
which is attached hereto as "Exhibit A" (the "Approved Site Plan"), and have
jointly submitted the same to the appropriate governmental authorities for the
City of Houston, Texas and/or Xxxxxx County, Texas. Seller will instruct its
architect, The Xxxxxxxxx Collaborative, AIA, ("Xxxxxxxxx"), to invoice Buyer
directly for, and Xxxxx will pay directly to Xxxxxxxxx, the cost of Xxxxxxxxx
having adapted the footprint for Xxxxx's proposed development at the Property to
the Approved Site Plan in order to make such submission. If Xxxxxxxxx
nonetheless invoices Seller, then Xxxxx will pay or reimburse Seller for same.
68. Buyer may cause Closing to occur at any time prior to the Expected Closing
Date, but after the expiration of the Due Diligence Period, upon not less than
10 business days prior written notice to Seller; provided, however, that Buyer
shall have no right to any rental income from the Tenant for any period through
and including May 31, 1998 even if Closing shall occur prior to May 31, 1998.
69. Prior to conveyance of the Property by Seller to Buyer, Seller agrees, at
its sole cost and expense, to subdivide the Development into two "Reserve
tracts" as defined in Section 42-62 of the Code of Ordinances of the City of
Houston (the "City"), one of which Reserve tracts shall consist of the Property
and the other of which shall consist of the Burdened Property pursuant to a
subdivision plat (the "Subdivision Plat") to be prepared in accordance with all
applicable laws, ordinances and requirements of the City, Xxxxxx County, and any
other governmental authorities (collectively, "Governmental Authorities") having
jurisdiction over the Property. Seller shall submit a copy of the Subdivision
Plat to Buyer for Buyer's review and approval prior to submitting the
Subdivision Plat for approval by any applicable Governmental Authorities; it
being agreed that the Subdivision Plat shall be prepared in accordance with the
Approved Site Plan. Buyer shall promptly review the
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Subdivision Plat and notify Seller of its approval or disapproval thereof, and
any disapproval shall specify the matter or matters deemed objectionable by
Buyer with respect to the Reserve tract constituting the Property and the
revisions required to make such matters acceptable to Buyer. Upon approval of
the Subdivision Plat by Buyer, Seller shall obtain the approval of the
Subdivision Plat by all applicable Governmental Authorities. If any revisions
are required or if any additional conditions are imposed by applicable
Governmental Authorities for approval of the Subdivision Plat, Buyer shall have
the right to review and approve, in Buyer's reasonable discretion, all of the
same that may have a material adverse affect upon Buyer's anticipated
development of the Property (including, without limitation, the anticipated cost
and timing of such development). As a condition to Buyer's obligation to close,
all approvals (including Buyer's as provided above) necessary for recordation of
the Subdivision Plat shall have been obtained, including the final approval by
the applicable Governmental Authorities for such recordation, such that the only
condition remaining for the effectiveness of the Subdivision Plat shall be the
recordation thereof. Seller shall pay all costs, expenses and fees in connection
with the processing, approval, filing and subsequent recordation of the
Subdivision Plat in the appropriate records of real property of Xxxxxx County,
Texas. In no event shall Seller be required to cause the Subdivision Plat to be
filed or become effective prior to the Closing.
70. Attached hereto as Exhibit B and incorporated herein by this reference is
the form of a mutually agreed upon and approved restrictive covenant (the
"Restrictive Covenant") to prohibit the construction, operation or existence, at
any time, upon the property located immediately to the north of the Property and
consisting of approximately 7.0 acres (the "Burdened Property"), or any portion
thereof, any one or more common area "tenant amenity type" fitness facilities,
commercial health clubs, commercial athletic clubs, commercial gyms or any other
type of noncommercial or commercial fitness facilities (including, without
limitation, any aerobic studio, cardiovascular area or indoor basketball or
indoor volleyball court or courts) (collectively, "Facilities") containing, in
the aggregate, more than 1,500 square feet of total floor area under any one or
more roofs. (Thus, for example and without limitation, an apartment building
located on the Burdened Property shall be permitted to have a 1000 square foot
"tenant amenity type" workout area under roof only if such Facility, when added
to the square footage of all other Facilities under roof on the Burdened
Property, does not cause there to be Facilities containing, in the aggregate, in
excess of 1,500 square feet under roof on the Burdened Property.) The legal
description of the Burdened Property shall be agreed upon prior to the
expiration of the Due Diligence Period. At and as a condition to Closing, Seller
covenants to execute, acknowledge and record, through Escrow, the Restrictive
Covenant, the Sign Easement (as defined below) and the Landscaping Agreement (as
defined below) against the Burdened Property so that the Restrictive Covenant,
the Sign Easement and the Landscaping Agreement shall each be prior in right to,
and superior to, the lien of any mortgage or deed of trust encumbering the
Burdened Property at Closing.
71. Attached hereto as Exhibit C and incorporate herein by this reference is the
form of a mutually agreed upon and approved restrictive covenant (the "Other
Restrictive Covenant") to prohibit the construction, operation or existence, at
any time, upon the Property and the Burdened Property, or any portion of either
or both thereof, of any one or more of the uses expressly described therein. At
and as a condition to Closing, Buyer and
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Seller each covenants to execute, acknowledge and record, through Escrow, the
Other Restrictive Covenant and the Landscaping Agreement against the Property
and the Burdened Property so that the Other Restrictive Covenant and the
Landscaping Agreement shall each be prior in right to, and superior to, the lien
of any mortgage or deed of trust encumbering the Property and the Burdened
Property at Closing.
72. Ad valorem and similar taxes and assessments relating to the Property for
the tax year in which the Closing occurs shall be prorated between Seller and
Buyer as of March 1, 1998 (or the date on which Seller acquires title to the
Property, if earlier) in accordance with the following provisions:
(i) If the amount of the actual taxes for the tax year in which
the Closing occurs is available, the proration of such taxes shall be on the
basis of such actual amounts.
(ii) If the amount of the actual taxes for the tax year in which
the Closing occurs is not available, the proration shall be on the basis of the
rate for the preceding calendar year applied to the latest assessed valuation
(or other basis of valuation).
(iii) If the Property has not been separately assessed for the
tax year in which the Closing occurs, the proration shall be on the basis of the
actual or estimated amount of the taxes, as applicable, times a fraction, the
numerator of which is the number of acres in the Property and the denominator of
which is the number of acres in the larger tract of land with which the Property
is assessed for tax purposes.
With respect to all taxes assessed against the Property, if such taxes
are prorated on the basis of estimated amounts, as soon as the amount of such
taxes on the Property for the tax year in which the Closing occurs is assessed,
Seller and Buyer shall readjust the amount of taxes to be paid by each party,
with the result that Seller shall pay for those taxes attributable to the period
of time prior to the Closing Date and Buyer shall pay for those taxes
attributable to the period of time commencing with the Closing Date. Subject to
such readjustment agreement, Buyer shall assume at Closing the payment of ad
valorem taxes for the year in which the Closing occurs. Seller represents and
warrants to Buyer that the taxes assessed against the larger property from which
the Property is to be split (the "Development") have not been determined by any
special appraisal method that allows for appraisal of the land comprising the
Development at less than its market value. Seller shall be liable for any
additional ad valorem taxes and interest and/or penalties that become due for
periods prior to the Closing because of the transfer of the land comprising the
Development or a subsequent change in the use thereof as contemplated by the
Approved Site Plan.
Xxxxxx agrees to cause the Property to be separate from the Development
on the tax roles as soon as possible after the Closing. Seller agrees to pay or
cause to be paid prior to delinquency the portion of the ad valorem taxes and
assessments allocable to the portion of the Development (the "Remaining
Development") remaining after the Property has been split from the Development
(the "Taxes Allocable to the Remainder") for each year in which the Property is
assessed with the Remaining Development. In the event the Taxes
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Allocable to the Remainder are not paid prior to delinquency and if as a result
thereof, the lien for taxes and assessments securing the Taxes Allocable to the
Remainder remains against the Property and is not fully discharged, Buyer shall
have the right to pay the same and receive reimbursement therefore from Seller
upon demand. In the event Seller does not reimburse Buyer as herein provided,
Xxxxx shall have a lien on the Remaining Development to the extent of the amount
unpaid by Seller, its successors or assigns in ownership of all or any part
thereof (each, a "Defaulting Owner"), which amount shall bear interest at
fifteen percent (15%) per annum or the highest rate of interest not prohibited
by law at the time of the expiration of said twenty (20) days, whichever is
less, from the date of expiration of said twenty (20) days until paid. Such lien
may be established as provided by filing a notice claiming a lien (a "Lien
Claim") in the real property records of Xxxxxx County, Texas, which Lien Claim
shall include (i) a statement concerning the basis for the Lien Claim and
identifying the lien claimant as a curing party, (ii) an identification of the
Defaulting Owner, (iii) a description of the expenses incurred which has given
rise to the Lien claim and a statement itemizing the amount thereof, and (iv) a
statement that the lien is claimed pursuant to the provisions of this Section.
The lien represented by the Lien Claim shall attach and be effective from the
date the Lien Claim is recorded solely in the amount claimed and may be enforced
or foreclosed by filing a suit to foreclose such lien under the applicable
provisions of the laws of the State of Texas. If the Defaulting Owner against
whom a Lien Claim is filed posts either (x) a bond executed by an approved
corporate surety or (y) an irrevocable letter of credit executed by a national
banking association, which bond or letter of credit (1) names Buyer as the
principal and payee and is in form satisfactory to Buyer, (2) is in the amount
of 1.5 times the claim made in the Lien Claim and (3) unconditionally provides
that it may be drawn upon by Xxxxx in the event of a final judgment entered by a
court of competent jurisdiction in favor of Xxxxx, then Xxxxx shall immediately
record a notice extinguishing the lien and releasing the Lien Claim of record or
take such action as may be reasonably required by a title insurance company
requested to furnish a policy of title insurance on such Parcel deleting the
lien and the Lien Claim as an exception thereto. The Defaulting Owner shall post
the bond or letter of credit by delivering the same to Xxxxx. All costs and
expenses to obtain the bond or letter of credit, and all costs and expenses
incurred by Xxxxx required to extinguish the lien and release the Lien Claim
hereunder, shall be borne by the Defaulting Owner. The representations,
warranties, covenants and obligations of the parties contained in this paragraph
shall survive the Closing. At any time before or after Closing, Xxxxxx agrees to
execute a memorandum evidencing the existence of the terms and provisions of
this agreement relative to payment of the Taxes Allocable to the Remainder and
the right of Buyer to record Lien Claims against the Remaining Development to be
recorded in the real property records of Xxxxxx County, Texas, at or following
Closing, to provide notice to all parties acquiring an interest in the Remaining
Development.
73. The special warranty deed to be delivered by Seller to Buyer pursuant to
Section 10.2(a) of the Offer shall contain covenants of special warranty and be
subject only to those matters contained in Schedule IV and the Survey approved
or deemed approved by Buyer pursuant to the Offer.
74. Pursuant to paragraphs 9.1(f) and 10.1 of the Offer, Seller shall cause, as
a condition to Closing, a current Texas form of owner's title policy (the "Title
Policy") in the
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amount of the Purchase Price promulgated by the Texas State Board of Insurance,
with the survey exception deleted, to be issued, at Seller's expense, to Buyer
at Closing for the Property that, among other things, shall reflect that the
Property is benefitted by the Restrictive Covenant, and that the Restrictive
Covenant has the priority described in paragraph 69. Attached hereto and
incorporated herein by this reference as Schedule IV is Schedule B from a title
commitment for the Property and the Burdened Property with certain changes
marked thereon by hand. As a condition to Closing, the Title Policy shall be
issued so as to comply with such Schedule B and its hand-marked changes.
75. [Intentionally omitted]
76. It shall be a condition precedent to Xxxxx's obligation to close that Seller
deliver, and Seller covenants to deliver, to Buyer proof, reasonably
satisfactory to Buyer, that the lease, dated September 1, 1987, between the
estate of Xxxxxxx X. Xxxxxxx, as landlord, and The Xxxxxxx Corporation, as
tenant, as the same may have been amended and covering, in part, the Property,
has been terminated effective on or before the date of Closing.
77. It shall be a condition precedent to Xxxxx's obligation to close that Seller
deliver, and Seller covenants to deliver, to Buyer, on or before Closing, either
an estoppel certificate for Tenant's lease, reasonably satisfactory to Buyer
(evidencing, without limitation, that such lease is a month-to-month tenancy or
such other term as Buyer has approved in writing) or proof, reasonably
satisfactory to Buyer, that such lease has terminated.
78. Upon prior written notice to the other party, either party may assign its
rights, duties and obligations hereunder to an affiliate that assumes, in
writing, such rights, duties and obligations. Buyer shall not be relieved of any
liability hereunder upon any permitted assignment and assumption, but shall
continue to be liable, jointly and severally with any such assignee, from and
after any such permitted assignment.
79. a. Buyer shall keep confidential the results of any tests and inspections
made by Buyer, and shall not disclose said results to any third parties. WHETHER
OR NOT THE TRANSACTION DESCRIBED IN THIS AGREEMENT SHALL CLOSE, BUYER AGREES TO
INDEMNIFY AND HOLD SELLER HARMLESS FROM ALL CLAIMS, LIABILITIES, DAMAGES AND
CAUSES OF ACTION ARISING OUT OF THE FEASIBILITY STUDY PERFORMED BY BUYER, ITS
AGENTS, INDEPENDENT CONTRACTORS, SERVANTS AND/OR EMPLOYEES, INCLUDING IF DUE TO
THE NEGLIGENCE OF SELLER, ITS AGENTS, INDEPENDENT CONTRACTORS, SERVANTS AND/OR
EMPLOYEES. Xxxxx further waives and releases any claims, demands, damages,
causes of action or other remedies of any kind whatsoever against Seller for
property damages or bodily and/or personal injuries to Buyer, its agents,
independent contractors, servants and/or employees arising out of the
feasibility study
b. Notwithstanding any other provision of this Agreement, at least three
(3) business days prior to performing any investigation or study of the Property
which will involve the intrusive or destructive sampling or analysis of any
portion of the Property, including, without limitation, any soil, water or
ground water on or under the Property
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("Phase II Investigation"), Buyer shall provide to Seller a detailed written
description of the work to be performed during the Phase II Investigation.
During the three (3) business day period after receipt of Buyer's description,
Seller shall have the right to object to any portion of the proposed Phase II
Investigation, and Xxxxx shall refrain from performing any such portion which
Xxxxxx decides in its sole discretion may represent an unreasonable risk of
injury or damage to persons or property on or near the Property. Seller or its
representatives shall have the right, but not the obligation, to observe any and
all activities of Buyer or its representative during the performance of Phase II
Investigation activities. Seller shall have the right but not the obligation, to
obtain half of any samples which Buyer may obtain during the Phase II
Investigation.
80. a. EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THIS AGREEMENT, SELLER HEREBY
SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (i) THE NATURE AND
CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH BUYER MAY ELECT TO CONDUCT THEREON, AND THE EXISTENCE
OF ANY ENVIRONMENTAL HAZARDS OR CONDITIONS THEREON OR COMPLIANCE WITH ALL
APPLICABLE LAWS, RULES OR REGULATIONS; (ii) EXCEPT FOR ANY WARRANTIES CONTAINED
IN THE SPECIAL WARRANTY DEED TO BE DELIVERED BY SELLER AT THE CLOSING, THE
NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE,
LICENSE, RESERVATION, CONDITION OR OTHERWISE; AND (iii) THE COMPLIANCE OF THE
PROPERTY OR ITS OPERATION WITH ANY LAWS, ORDINANCES OR REGULATIONS OF ANY
GOVERNMENTAL OR OTHER BODY. BUYER ACKNOWLEDGES THAT IT WILL INSPECT THE PROPERTY
AND, EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THIS AGREEMENT, BUYER WILL RELY
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY SELLER. XXXXX FURTHER ACKNOWLEDGES THAT THE
INFORMATION PROVIDED AND TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS
OBTAINED FROM A VARIETY OF SOURCES AND SELLER (x) HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION; AND (y) DOES NOT MAKE ANY
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. THE SALE
OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS," "WHERE IS" BASIS
AND WITH ALL FAULTS, AND BUYER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF
THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED HEREIN, SELLER
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION
OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY, TENANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT
OF THE PROPERTY.
b. Except as otherwise specifically stated in this Agreement and the
Special Warranty Deed to be delivered at Closing, Xxxxx agrees that Seller shall
not be responsible or liable to Buyer for any defects or other conditions
affecting the Property, as Buyer is purchasing the Property AS IS, WHERE IS, and
WITH ALL FAULTS, and subject to the rights of parties in possession of the
Property, if any. Except as otherwise specifically
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stated in this Agreement and the Special Warranty Deed to be delivered at
Closing, Buyer or anyone claiming by, through or under Buyer, hereby fully
releases Seller, its employees, officers, directors, representatives and agents
from any cost, loss, liability, damage, expense, demand, action or cause of
action arising from or related to any defects or other conditions affecting the
Property. Xxxxx further acknowledges and agrees that this release shall be given
full force and effect according to each of its expressed terms and provisions,
including, but not limited to, those relating to unknown and suspected claims,
damages and causes of action. This covenant releasing Seller shall be a covenant
running with the Property and shall be binding upon Xxxxx and Xxxxx's successors
and assigns. Seller hereby assigns without recourse or representation of any
nature to Buyer, effective upon Closing, any and all claims that Seller may have
for any such defects or other conditions affecting the Property. As a material
covenant and condition of this Agreement, Xxxxx agrees that in the event of any
such cost, loss, liability, damage, expense, demand, action or cause of action
due to such defects or other conditions affecting the Property, Buyer shall look
solely to Seller's predecessors in title for any redress or relief. Except as
otherwise specifically stated in this Agreement and the Special Warranty Deed to
be delivered at Closing, upon the assignment by Seller of its claims, Buyer
releases Seller of all rights, express or implied, Buyer may have against Seller
arising out of or resulting from any defects or other conditions affecting the
Property. Xxxxx further understands that some of Seller's predecessors in title
may have filed petitions under the federal Bankruptcy Code and Buyer may have no
remedy against such predecessors. This waiver and release of claims shall
survive the Closing.
c. Xxxxx will execute and deliver to Seller at Closing the Certificate
attached hereto as Schedule 1.
81. This Agreement shall be construed under and in accordance with the laws of
the State of Texas, and all obligations of the parties created hereunder are
performable in Xxxxxx County, Texas. Buyer irrevocably agrees that any legal
proceedings in respect of this Agreement or the Property shall be brought in the
District Courts of Xxxxxx County, Texas or in the United States District Court
for the Southern District of Texas, Houston Division.
82. The parties may execute this Agreement in one or more identical
counterparts, all of which when taken together will constitute one and the same
instrument.
83. Whenever any determination is to be made or action to be taken on a date
specified in this Agreement, if such date shall fall upon a Saturday, Sunday or
holiday observed by national banks in the State of Texas or California, the date
for such determination or action shall be extended to the first business day
immediately thereafter.
84. At the Closing, if the Property is situated in whole or in part within the
corporate limits of the City of Houston, Texas, Seller and Buyer shall sign and
acknowledge the form of notice of deed restrictions required by Houston City
Ordinance #89-1312, as it may have been amended or superseded from time to time.
85. In accordance with the requirements of the Texas Real Estate License Act,
Buyer is hereby advised by Xxxxxx that it should be furnished with or obtain a
policy of title
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insurance or have the abstract covering the Property examined by any attorney of
its own selection.
86. Prior to Closing and subject to applicable law, Seller shall identify a site
on the northeast corner of the Burdened Property, as close as reasonably
possible to the northern boundary line of the Burdened Property, on which Buyer
desires to install a monument sign for the development on the Property of
suitable size so as to be seen by cross traffic on Richmond Avenue. The exact
location of such monument sign, its size, construction, maintenance and all
other matters pertaining thereto shall be subject to the prior reasonable
consent of Seller, as memorialized in an easement agreement (the "Sign
Easement") to be agreed upon by Xxxxx and Seller, prior to Closing.
87. Prior to Closing, Buyer and Seller shall mutually agree upon a suitable
design for landscaping to be installed on the McQue Avenue side of the Property
and the Burdened Property. On or before Closing, Buyer and Seller shall have
agreed upon the terms of an agreement, to be recorded against both the Burdened
Property and the Property, at Closing, memorializing the agreement regarding
such landscaping (the "Landscaping Agreement") and providing, without
limitation, that each party shall be responsible for repairing, maintaining and
replacing their own landscaping but permitting the other party to repair,
maintain and replace such landscaping, and charge the defaulting party for such
work, if the party initially responsible therefor shall have failed to do so.
88. Buyer and Seller agree that Buyer may install up to two (2) traffic lights
at the intersection of McQue Avenue and Richmond Avenue. Seller shall reimburse
Buyer for one-half of any and all third party costs related to the design,
installation and maintenance of such traffic light(s) promptly upon being
presented with proof, reasonably satisfactory to Seller, of such cost.
89. Any provision of the Agreement which requires observance, performance or
enforcement, after Closing, shall survive Closing and shall continue to be
binding on the parties hereto, subject to and in accordance with the other terms
and conditions of this Agreement.
90. Seller agrees to allocate and assign to the Property 235 service units
(which units are calculated on the basis of per day usage) of any wastewater and
water capacity (collectively, "Utility Capacity") currently allocated to the
Development. The Utility Capacity to be transferred by Seller to Buyer shall be
transferred pursuant to an assignment executed by Xxxxxx and delivered to Buyer
at Closing in a form acceptable to the City of Houston to cause the transfer
thereof on the City's records. Xxxxxx agrees to execute such further documents,
correspondence or other instruments as may reasonably be required by the City or
other governmental authorities to evidence the transfer of such Utility
Capacity, which agreement of Seller shall survive the Closing. The execution and
delivery of the assignment of Utility Capacity by Seller shall be a condition to
Buyer's obligation to close. Buyer shall pay for all connection charges, tap
fees, capital recovery charges and impact fees to implement or preserve the
Utility Capacity allocated to Buyer if and to the extent Buyer wishes to
implement or preserve the same.
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91. Seller acknowledges and agrees that all credits required for flood detention
plus all credits for flood detention impact fees assessed by the Xxxxxx County
Flood Control District for the development on the Property of a health club and
related parking structure (or any other development equivalent to a health club
and related parking structure for such purposes) accruing as a result of the
existing impervious surfaces located on the Burdened Property and the Property
shall be allocated solely to the Property. Buyer will not be responsible for any
flood detention requirements, and Seller agrees to be responsible for providing
any required flood detention for both the construction of a health club and
related parking structure on the Property (or any other development equivalent
to a health club and related parking structure for such purposes) and the
Burdened Property, which agreement shall survive the Closing.
92. Seller represents and warrants that its present intent, and its intent at
Closing, is either to construct apartment units on the Burdened Property or to
sell the Burdened Property to a developer of apartment units. Buyer represents
and warrants that its present intent, and its intent at Closing, is to construct
a health club and related parking structure on the Property. The foregoing
representations and warranties shall survive for two years after Closing.
93. a. As a material inducement to Buyer to enter into this Agreement, for a
period of 5 years from and after the Closing neither Riverstone Realty Advisors,
LLC nor any entity controlled by Riverstone Realty Advisors, LLC, nor any entity
controlling Riverstone Realty Advisors, LLC, nor any entity controlled by either
of Xxxxx Xxxxx or Xxxxx Xxxxx (collectively, "Restricted Parties") shall have
any interest, direct or indirect and whether as an owner, shareholder, partner,
member, beneficiary, lender, trustee, employee, manager, consultant or
otherwise, or shall engage or participate, directly or indirectly, in any manner
whatsoever in any health or fitness or other similar facility located within a
6-mile radius of the Property, including without limitation in the development,
financing, construction, ownership, management, marketing, or operations of any
such facility and whether as an owner, shareholder, partner, member,
beneficiary, lender, trustee, employee, manager, consultant or otherwise. It
shall not, however, be a breach of this paragraph if any Restricted Party shall
have any interest, direct or indirect and whether as an owner, shareholder,
partner, member, beneficiary, lender, trustee, employee, manager, consultant or
otherwise, or shall engage or participate, directly or indirectly, as aforesaid,
in any health or fitness facility or other similar facility located within (i)
any hotel as an ancillary service for guests of such hotel if, and only if, such
facility does not sell any memberships or the right to use the facility for any
period of time to the general public, or (ii) any apartment complex or
condominium complex as an ancillary service for tenants or condominium owners,
as applicable, of such complex if, and only if, such facility does not sell any
memberships or the right to use the facility for any period of time to the
general public and contains, in the aggregate, less than 1,500 square feet of
total floor area under any one or more roofs.
b. Seller recognizes and agrees that a breach by any Restricted Party of
any of the covenants set forth in this paragraph could cause irreparable harm to
Buyer, that Xxxxx's remedies at law in the event of such breach would be
inadequate, and that,
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accordingly, in the event of such breach a restraining order or injunction or
both may be issued against any Restricted Party, in addition to any other rights
and remedies which are available to Buyer. If this paragraph is more restrictive
than permitted by the legal requirements of any jurisdiction in which Buyer
seeks enforcement hereof, then this paragraph shall be limited to the extent
required to permit enforcement thereunder. In particular, the parties intend
that the covenants contained in the preceding portions of this paragraph shall
be construed as a series of separate covenants, one for each county and city
within the radius described above. Except for geographic coverage, each such
separate covenant shall be deemed identical in terms. If, in any judicial
proceeding, a court shall refuse to enforce any of these separate covenants
deemed included in this paragraph, then such unenforceable covenant shall be
deemed eliminated from these provisions for the purpose of those proceedings to
the extent necessary to permit the remaining separate covenants to be enforced.
c. No consideration shall be allocated to the covenants set forth in
this paragraph.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
THE SPORTS CLUB COMPANY, INC. RIVERSTONE REALTY ADVISORS, L.L.C.
By:__________________________________ By:___________________________________
Its:_________________________________ Its:__________________________________
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94. If at any time after the Closing and prior to issuance of a Certificate
of Occupancy by the City of Houston, Texas, for a health club of at least 65,000
square feet on the Property, Buyer or any other owner of the Property (the
"Property Owner") desires to sell all or part of the Property to a person or
entity to build or develop rental housing facilities on all or part of the
Property, then the Property Owner shall give written notice thereof (the
"Notice") to the Seller or any other owner of any part of the Burdened Property
(the "Burdened Property Owner"), enclosing a contract for the sale of the
Property executed by the Property Owner (the "Sale Agreement"). The Burdened
Property Owner shall have fifteen (15) days after receipt of the Notice to
notify the Property Owner in writing that it will purchase the Property on the
same terms and conditions set forth in the Sale Agreement with such
modifications as may be necessary to substitute for terms which the Burdened
Property Owner, because of their nature, cannot meet other terms that will
provide substantially the same bargain to the Property Owner. If the Burdened
Property Owner elects to purchase the Property, then the Sale Agreement shall be
terminated and the Burdened Property Owner and the Property Owner shall execute
a sale agreement containing the terms required by this paragraph within ten (10)
days after the Property Owner's receipt of the Burdened Property Owner's
election to purchase the Property. If the Property Owner does not receive a
written notice form the Burdened Property Owner within the said fifteen-day
period, or if a sale agreement is not executed by the Burdened Property Owner
within said ten-day period (other than as a result of default by the Property
owner), then the Burdened Property Owner shall be deemed to have waived its
right to purchase the Property in accordance with the terms of this paragraph.
If the Sale Agreement is not consummated, or is modified to decrease the
purchase price by more than five percent (5%), or to extend the closing date by
more than thirty (30) days, then the Burdened Property Owner will again have the
right to purchase the Property on the new terms, and the Property Owner must
send a new Notice in accordance with the terms hereof. At Closing, a memorandum
setting forth the terms of this right of first refusal shall be executed by
Xxxxxx and Xxxxx and recorded in the Real Property Records of Xxxxxx County,
Texas. Such memorandum shall require the parties thereto to release the
memorandum after the right of first refusal has expired.
MSS [SIG]
----------- ------------
Buyer's Initials Seller's Initials
15-A
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SCHEDULES:
Schedule I - Certificate
Schedule II - Items Excluded from Sale
Schedule III - Seller Documents Already Provided to or By Seller
Schedule IV - Approved Schedule B to Title Commitment
EXHIBITS:
Exhibit A - Approved Site Plan
Exhibit B - Restrictive Covenant
Exhibit C - Other Restrictive Covenant
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CERTIFICATE
The undersigned, ______________________ ("Buyer") has this day purchased
from _________________________ ("Seller") that certain real property described
on Exhibit A and all of Seller's right, title, claim and interest in and to any
fixtures and improvements situated thereon (such real property, fixtures and
improvements being herein called the "Property") under and pursuant to the terms
of that certain Standard Offer Agreement and Escrow Instruction for Purchase of
Real Estate dated _____________, 1998 (the "Agreement") between Buyer and
Seller. The Buyer executes this Certificate to confirm and acknowledge that
Xxxxx has purchased the Property in its AS IS, WHERE IS condition, with all
faults.
(a) EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THE AGREEMENT, SELLER
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (i) THE NATURE AND
CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH BUYER MAY ELECT TO CONDUCT THEREON, AND THE EXISTENCE
OF ANY ENVIRONMENTAL HAZARDS OR CONDITIONS THEREON OR COMPLIANCE WITH ALL
APPLICABLE LAWS, RULES OR REGULATIONS; (ii) EXCEPT FOR ANY WARRANTIES CONTAINED
IN THE SPECIAL WARRANTY DEED TO BE DELIVERED BY SELLER AT THE CLOSING, THE
NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE,
LICENSE, RESERVATION, CONDITION OR OTHERWISE; AND (iii) THE COMPLIANCE OF THE
PROPERTY OR ITS OPERATION WITH ANY LAWS, ORDINANCES OR REGULATIONS OF ANY
GOVERNMENTAL OR OTHER BODY. BUYER ACKNOWLEDGES THAT IT WILL INSPECT THE PROPERTY
AND, EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THE AGREEMENT, BUYER WILL RELY
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY SELLER. XXXXX FURTHER ACKNOWLEDGES THAT THE
INFORMATION PROVIDED AND TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS
OBTAINED FROM A VARIETY OF SOURCES AND SELLER (x) HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION; AND (y) DOES NOT MAKE ANY
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. THE SALE
OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS," "WHERE IS" BASIS
AND WITH ALL FAULTS, AND BUYER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF
THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED IN THE AGREEMENT,
SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY
OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION,
HABITABILITY, MERCHANTABILITY, TENANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, IN RESPECT OF THE PROPERTY.
(b) Except as otherwise specifically stated in this Agreement and the
Special Warranty Deed to be delivered at Closing, Xxxxx agrees that Seller shall
not be responsible or liable to Buyer for any defects or other conditions
affecting the Property, as Buyer is purchasing the Property AS IS, WHERE IS, and
WITH
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ALL FAULTS, and subject to the rights of parties in possession of the Property,
if any. Except as otherwise specifically stated in this Agreement and the
Special Warranty Deed to be defined at Closing, Buyer or anyone claiming by,
through or under Buyer, hereby fully releases Seller, its employees, officers,
directors, representatives and agents from any cost, loss, liability, damage,
expense, demand, action or cause of action arising from or related to any
defects or other conditions affecting the Property. Xxxxx further acknowledges
and agrees that this release shall be given full force and effect according to
each of its expressed terms and provisions, including, but not limited to, those
relating to unknown and suspected claims, damages and causes of action. This
covenant releasing Seller shall be a covenant running with the Property and
shall be binding upon Xxxxx and Xxxxx's successors and assigns. Seller hereby
assigns without recourse or representation of any nature to Buyer, effective
upon Closing, any and all claims that Seller may have for any such defects or
other conditions affecting the Property. As a material covenant and condition of
this Agreement, Xxxxx agrees that in the event of any such cost, loss,
liability, damage, expense, demand, action or cause of action due to such
defects or other conditions affecting the Property, Buyer shall look solely to
Seller's predecessors in title for any redress or relief. Except as otherwise
specifically stated in this Agreement and the Special Warranty Deed to be
delivered at Closing, upon the assignment by Seller of its claims, Buyer
releases Seller of all rights, express or implied, Buyer may have against Seller
arising out of or resulting from any defects or other conditions affecting the
Property. Xxxxx further understands that some of Seller's predecessors in title
may have filed petitions under the federal Bankruptcy Code and Buyer may have no
remedy against such predecessors. This waiver and release of claims shall
survive the Closing.
Executed this day of ___________________, 1998.
[INSERT SIGNATURE BLOCKS AND NOTARY ACKNOWLEDGMENT]
Exhibit A - Description of the Property
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SCHEDULE II
ITEMS EXCLUDED FROM SALE
1. The buildings.
2. The metal containers.
3. The light poles.
4 The chain link fencing.
Seller shall have removed, or caused to have been removed, the preceding items
2, 3 and 4 from the Property on or before the Closing unless Tenant's lease,
with Buyer's approval, shall remain in effect after the earlier to occur of May
31, 1998 or Closing.
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SCHEDULE III
SELLER DOCUMENTS ALREADY
DELIVERED TO OR BY SELLER
- Environmental Reports
- Subsurface Site Investigation (not dated completed January, 1998)
- T/GE Resources January 15, 1998 Oversight Soils Sampling Report
- Note: Buyer previously had copies of March 12, 1994 Phase I
Environmental and commissioned a 11/19/97 Phase II Environmental
Site Assessment and Preliminary Geotechnical Investigation
- Xxxxx Xxxxxxxxx February 4, 1998 Engineer Report
- 1997 Tax Statements
- Title Commitment for Title Insurance with exceptions
- All documents with respect to our filing for development plat with the
City of Houston including site plan, survey, updated title commitment
and development plat application
- Lease Agreement with Quality Christmas Tree Co., Inc., its January 1,
1997 amendment and its December 3, 1997 amendment
- City of Houston November 10, 1997 Restricted Reservation Letter
- City of Houston November 10, 1997 Water and Storm Drainage Application
- February 16, 1998 signed development plat approval notification, and the
approved development plat.
- Application for Permit to Construct Access Driveway Facilities dated
February 13, 1998
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SCHEDULE IV
APPROVED SCHEDULE B TO TITLE COMMITMENT
21
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Exhibit A
[Approved Site Plan]
22
44
Exhibit B
[Restrictive Covenant]
23
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Exhibit C
[Other Restrictive Covenant]
24
