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10.87
WPI ▇▇▇▇ LETTER
AGREEMENT
2
[WPI-▇▇▇▇ LOGO]
October 7, 1996
Mr. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Director of Real Estate and Business Development
The Sports Club Company
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Proposed Japanese Mega Mall Projects
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Dear ▇▇▇▇▇:
Thank you for our continued discussions over the last year regarding the
interest of The Sports Club Company entering the Japan market to operate clubs
of the stature of Sports Club L.A., Sports Club Irvine and the Reebok Sports
Club in NY. This Letter Agreement will confirm the proposal for WPI.▇▇▇▇ Asia
Pacific Advisors ("WPI.▇▇▇▇") to bring The Sports Club Company ("Sports Club")
into a series of major shopping/entertainment mixed use complexes which
WPI.▇▇▇▇ is planning in Japan (the "MegaMalls") with a consortium of major
Japanese corporations ("Consortium).
1. Right of First Refusal. WPI.▇▇▇▇ will provide Sports Club with a right
of first refusal for a Japanese entity formed between Sports Club, or its
controlled affiliate, and one or more Japanese companies from the Consortium to
lease a sports and fitness facility of approximately one hundred thousand
square feet (100,000 s.f.) in each of the proposed MegaMalls to be located in
Japan when WPI.▇▇▇▇ commences its leasing activity at such MegaMalls, provided
this Letter Agreement is still in full force and effect at that time. WPI.▇▇▇▇
will send a written notice to Sports Club when WPI.▇▇▇▇ commences its concept
design phase of each MegaMall and provide Sports Club with certain demographic
and psychographic information on the trade area. Sports Club will then have
sixty (60) days to confirm that it has preliminary interest to lease premises
in such proposed MegaMall if and when it proceeds to development. Upon
confirmation of such preliminary interest in writing, Sports Club shall then
have an additional one hundred and twenty (120) days to complete its desired
market research, financial feasibility and commit under a Letter of Intent to
proceed with a lease on the project. Finalization of the lease shall proceed
in the normal course of business. If Sports Club decides not to lease such
premises (a) it will still have a right of first refusal as to other MegaMalls
under this paragraph 1; and (b) WPI.▇▇▇▇ will immediately have the right to
lease premises in such MegaMall to another sports and fitness facility operator
during the following three hundred sixty (360) day period providing a letter of
intent to lease is entered into during such three hundred sixty (360) day
period on terms no more favorable than offered to Sports Club. In the event
the landlord is willing to offer more favorable terms to another operator, or
after the following three hundred sixty (360) day period, the right of first
refusal as to such terms shall be made available for re-consideration to Sports
Club, however, the response period under this re-consideration period shall
thirty (30) days to enter into the
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Mr. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
October 7, 1996
Page 2
Letter of Intent under the then offered terms. Sports Club's actual leasing of
facilities in such MegaMalls will be subject to standard lease documentation
prepared by WPI.▇▇▇▇ and the Japanese owner of the MegaMall property ("Owner").
The actual financial terms will still need to be negotiated by WPI.▇▇▇▇ and
Owner with Sports Club for Sports Club's actual occupancy in such MegaMalls, but
the leases will be at the then fair market rental rate and other market terms
for such space.
2. Japanese Venture. If Sports Club pursues participation in any way in
the MegaMalls (leasing or otherwise), Sports Club will form a "Japanese Venture"
(whether in joint venture, partnership or corporate form) with a Japanese
partner or partners selected from the Consortium for Sports Club's proposed
MegaMall athletic and fitness club activities. Such Japanese partner(s) will
have, based upon the nature and extent of its participation, up to a forty five
percent (45%) interest, Sports Club not less than a fifty point one percent
(50.1%) interest and WPI.▇▇▇▇ of four point nine percent (4.9%) carried interest
in all profits generated by the Japanese Venture. ▇▇▇▇▇ ▇. ▇▇▇▇▇ will be a
voting member on the executive committee or other governing body of such
Japanese Venture for so long as WPI.▇▇▇▇ designates. Other than these items,
the Japanese Venture will be formed on such terms and conditions as may be
negotiated between Sports Club and such Prospective Partner(s), such
negotiations to be conducted and such agreements (if any) to be made by Sports
Club at Sports Club's sole discretion.
3. Prospective Partner(s). WPI.▇▇▇▇ will use its reasonable efforts to
locate and introduce to Sports Club prospective Japanese partner(s)
("Prospective Partner(s)") for Sports Club's Japanese Venture as follows:
a. Before WPI.▇▇▇▇'▇ search for Japanese Prospective
Partner(s) from the Consortium, Sports Club will submit to
WPI.▇▇▇▇ a detailed list of business, financial and other
criteria relating to the proposed joint venture transaction
("Transaction Criteria"). WPI.▇▇▇▇ and Sports Club will jointly
prepare and approve the list of Transaction Criteria before
commencing with the pursuit of Prospective Partner(s). Sports
Club agrees to direct all new inquiries subsequent to
announcement of Sports Club's intention to enter Japan to
WPI.▇▇▇▇ for the initial three (3) year period from the date of
this Agreement from Prospective Partner(s) who are members of
the Consortium who express direct interest to Sports Club to
become Sports Club's partner for its Japanese Venture.
b. Sports Club will perform its own evaluation on
Prospective Partner(s), their operations ability, the personnel
such partner(s) may put forward to assist in the Ventures
operations in Japan, the partners financial standing and
thereafter, WPI.▇▇▇▇ shall have no liability if Prospective
Partner(s) and Sports Club either do not form a Japanese Venture
or, if formed, such Japanese Venture is not.
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Mr. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
October 7, 1996
Page 3
financially or otherwise successful. In connection with the
Japanese Venture, Sports Club and WPI.▇▇▇▇ each agree to consult
with its own tax advisor concerning US federal income tax,
Japanese tax and other laws and foreign laws that may be
applicable to it. In addition, Sports Club and WPI.▇▇▇▇ each
agree to obtain legal advice with respect to any US securities
or other laws or regulations (US or foreign) that Sports Club or
WPI.▇▇▇▇ may have to comply with in connection with the Japanese
Venture. Sports Club acknowledges that WPI.▇▇▇▇ will not, and
does not purport to, advise Sports Club with respect to tax
matters or legal issues and vice versa.
c. WPI.▇▇▇▇ is not, and will not be deemed in any way, to
be Sports Club's agent or broker. Sports Club acknowledges that
WPI.▇▇▇▇ will be acting solely to introduce Sports Club to
Prospective Partner(s) and that WPI.▇▇▇▇ does not (and will not
be deemed to) make any representations or warranties with
respect to such Prospective Partner(s).
d. Sports Club will indemnify, defend, protect and hold
WPI.▇▇▇▇ harmless from and against any and all liability, and
any and all claims, loss, demands, litigation, costs, attorneys'
fees or judgments resulting from any incorrect or inaccurate
information supplied to WPI.▇▇▇▇ by Sports Club or the
concealment of any material facts concerning Sports Club.
e. WPI.▇▇▇▇ will indemnify, defend, protect and hold Sports
Club harmless from and against any and all liability, and any
and all claims, loss, demands, litigation, costs, attorneys'
fees or judgments resulting from any incorrect or inaccurate
information supplied to Sports Club by WPI.▇▇▇▇ or the
concealment of any material facts concerning WPI.▇▇▇▇.
f. WPI.▇▇▇▇ will not have authority to bind Sports Club.
4. WPI.▇▇▇▇'▇ Fee. For locating such Prospective Partner(s), the
Japanese Venture to pay to WPI.▇▇▇▇, without offset or deduction, a fee equal
to two per cent (2%) of the total equity contribution of the Prospective
Partner(s) to the Japanese Venture for all equity contributions made in the
formation, startup and opening (but not on any portion of the equity related to
payment of the fee, or increased cost of construction after commencement of
construction on each club) of the first four (4) MegaMall sports clubs in
Japan after the formation of the Japanese Venture. Such fee will be due and
payable by the Japanese Venture to WPI.▇▇▇▇ when, and the Japanese Venture
will be under no obligation to pay any part of this fee to WPI.▇▇▇▇ until, the
Japanese Venture is formed and upon each funding of equity thereafter relative
to the first four (4) clubs by Sports Club or its controlled affiliate within
the MegaMalls. For purposes of this Letter
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Mr. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
October 7, 1996
Page 4
Agreement, no Japanese Venture will be considered formed until Sports Club or
the Japanese Venture entity has received the initial equity contribution from
Prospective Partner(s).
5. Confidential Information. Each party acknowledges that it will have
access to the other party's "Confidential Information" relating to the MegaMall
projects, including without limitation, plans, specifications, rental rates,
market information, customer information, and other data and analysis as well
as operations of the athletic and fitness clubs. Each party agrees that,
without the prior written consent of the other, it will not use for its own
benefit or disclose any of the other party's Confidential Information to any
third parties, except for its own employees on an as-needed basis (each party
for itself agrees to cause its employees to keep it confidential and not use
for their own benefit). Further, neither party will make any copies of any of
the other party's Confidential Information, in whole or in part, for any
purpose other than in connection with the MegaMalls and solicitation of
Prospective Partner(s), which parties must similarly agree to keep confidential
the Confidential Information, and will, upon request by the other party, return
all of the other party's Confidential Information, including without
limitation, all copies of Confidential Information and any notes or memoranda
of conversations describing or relating to the Confidential Information and any
and all documents, notes and memoranda, and any magnetic tapes or other
electronic media that have been received or derived by the receiving party.
Each party hereby acknowledges the unique nature of the Confidential
Information and further acknowledge that monetary damages, by themselves, would
not adequately compensate a party in the event that the other party
disseminates or utilizes, or permits or suffers third parties to disseminate or
utilize Confidential Information, except for the purposes described above.
Therefore, in addition to recovering monetary damages, each party will have the
right to obtain a temporary restraining order and/or injunctive relief from any
court in equity to halt or prevent the dissemination or use of its Confidential
Information by the other party except for the purposes described in this
agreement.
6. Term. Unless sooner terminated as provided herein, the term of this
Letter Agreement will be from October 1, 1996 through September 30, 2006. In
the event no Japanese Venture letter of intent is executed within three (3)
years of the date of execution of this letter by both parties and a subsequent
venture agreement is entered into for a MegaMall property in the normal course
of business within the next one (1) year period, this letter agreement shall be
of no further force or effect. However, should the parties introduced by
WPI.▇▇▇▇ subsequently enter into a venture agreement with Sports Club for a
MegaMall property within the subsequent two (2) year period to the termination
date, the compensation due under this letter agreement shall be paid by the
Japanese Venture to WPI.▇▇▇▇ within thirty (30) days of the commencement of
said venture.
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Mr. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
October 7, 1996
Page 5
7. Miscellaneous. This Letter Agreement contains the entire agreement
between WPI.▇▇▇▇ and Sports Club concerning WPI.▇▇▇▇'▇ activities as a finder
in connection with the location of Prospective Partner(s) and Sports Club's
rights to locate a facility within the MegaMalls, and accurately describes our
agreement as of today. Time is of the essence of each and every part of this
Letter Agreement. This Letter Agreement will be governed by, and construed in
accordance with, California law. The prevailing party in any dispute under
this Letter Agreement will be entitled to recover reasonable attorneys' fees
and costs of suit as determined by a court of competent jurisdiction in Los
Angeles County. This Letter Agreement may not be modified or amended except by
an agreement in writing signed by both parties.
We appreciate your interest in entering the Japan market and the MegaMall
projects as well as the time and effort Sports Club has put into this project
to date. We look forward to a highly successful relationship for both of us in
Japan. If the terms outlined above accurately reflect our agreement, please
sign below and return a second original to me.
WPI.▇▇▇▇ Asia Pacific Advisors
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President
ACKNOWLEDGED AND AGREED TO:
The Sports Club Company,
a Delaware Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Dated: This 9th day of October, 1996
