EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made
by and between FM PROPERTIES OPERATING CO., a Delaware general
partnership (hereinafter referred to as "Seller"), and XXXXXX
CREEK RESORT & CLUBS, INC., a Texas corporation (hereinafter
referred to as "Purchaser"), and is as follows:
W I T N E S S E T H
WHEREAS, Seller is the owner of those certain resort,
conference center, and country club facilities located in Xxxxxx
and Burnet Counties, Texas, commonly known as "Xxxxxx Creek
Country Club and Conference Resort" and "Xxxxxx Creek Lakeside,"
together with certain furniture, fixtures, equipment, inventory
licenses, permits, cash, cash accounts, accounts receivable,
tangible and intangible assets and rights related thereto and/or
used in connection with the operation of such facilities, which
are collectively defined in this Agreement as the "Property"; and
WHEREAS, Seller desires to sell the Property to Purchaser,
and Purchaser desires to purchase the Property from Seller, as
provided in this Agreement,
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are mutually acknowledged, the
parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
1.1. Definitions. All capitalized terms referenced or used
in this Agreement and not specifically defined herein shall have
the meaning set forth on Exhibit A.
ARTICLE 2.
PURCHASE AND SALE OF THE PROPERTY
2.1. Agreement to Purchase and Sell. In consideration of
the payment by Purchaser to Seller of the sum of TWENTY-FIVE
MILLION DOLLARS ($25,000,000.00), plus an amount equal to eight
percent (8%) simple interest per annum on the sum of TWENTY-FIVE
MILLION DOLLARS ($25,000,000.00) calculated from December 27,
1995 (the "Effective Date") through the Closing Date
(collectively, the "Purchase Price"), Seller hereby agrees to
sell the Property to Purchaser and Purchaser hereby agrees to
purchase the Property from Seller upon the terms and conditions
set forth herein.
ARTICLE 3.
TITLE, SURVEY, PERMITTED EXCEPTIONS, AND REVIEW
3.1. Title. The Title Company has issued and delivered to
Purchaser a final title commitment, dated effective as of August
8, 1996, referenced as GF No. 6-19468 (the "Title Commitment"),
showing Seller as the record fee title owner of the Property and
the terms by which the Title Company agrees to issue to Purchaser
at Closing an owner policy of title insurance (the "Title
Policy") in the amount of the Purchase Price on the standard form
promulgated by the State Board of Insurance of Texas, as modified
pursuant to Purchaser's request, insuring Purchaser's fee simple
title to the Property to be good and indefeasible, subject to the
terms of such policy and the Permitted Exceptions. Purchaser has
reviewed the Title Commitment and confirms that Purchaser's
objections have been addressed and the Permitted Exceptions
agreed to prior to the execution of this Agreement. Seller shall
pay all premium and other charges and costs incident to the
issuance of the Commitment and the Owner's Title Policy. Any
Title Policy premium fee for deletion of the exception as to
"shortages in area" shall be divided equally between the parties.
3.2. Survey. Xxxxxxx X. Xxxxxx, Registered Professional
Land Surveyor 4532, with Rust Xxxxxxxxx/Xxxxxxx & Associates, has
prepared and delivered to Purchaser, at Seller's expense, a
survey of the Real Property dated August 16, 1996, referenced as
Job No. 67000.901 (the "Survey"). Purchaser has reviewed the
Survey and Purchaser's objections have been addressed prior to
the execution of this Agreement and confirms that the Survey in
its final form is acceptable to Purchaser. Seller shall pay all
costs and expenses incident to the preparation and delivery of
the Survey.
3.3. Permitted Exceptions. The term "Permitted Exceptions"
as used in this Agreement shall refer to the list of encumbrances
and other matters set forth on Attachment 2 to the Special
Warranty Deed, of even date herewith by and between Seller and
Purchaser (the "Deed").
3.4. Review. Purchaser confirms that Purchaser has
conducted, or had the opportunity to conduct, a thorough and
complete due diligence review of the Property, including, without
limitation, engineering, environmental, soil, and other studies
and tests on the Property and, based on that review, Purchaser
has determined that the Property, subject to the representations
and warranties of Seller recited herein and in the Closing
Documentation (defined below) executed by Seller at Closing, is
acceptable to Purchaser in all respects.
ARTICLE 4.
PAYMENT OF PURCHASE PRICE
4.1. Payment of Purchase Price. The Purchase Price shall
be payable in cash, cashier's check, or wire transfer at Closing.
ARTICLE 5.
CLOSING
5.1. Date and Location. Closing shall be held on the
Execution Date of this Agreement (the "Closing Date"). Closing
shall be held at the offices of the Title Company, or such other
location mutually acceptable to Seller and Purchaser.
5.2. Closing Documents. At Closing, Seller and Purchaser
shall deliver or cause to be delivered to each other, as
applicable, the documents and instruments listed on the Closing
Checklist, a copy of which is attached hereto as Exhibit B, duly
executed, all of which shall be dated on or effective as of the
Closing Date and any other title curative documents, release
documentation, easements, or other documents executed at Closing
between the parties (collectively, the "Closing Documentation").
ARTICLE 6.
CLOSING STATEMENT
6.1. Closing Statement. The settlement statement (the
"Settlement Statement") has been prepared by the Title Company
and executed by the parties hereto at Closing, which closing
statement evidences the monetary terms of this transaction,
including all closing costs.
ARTICLE 7.
INTERIM OPERATIONS AND PRORATIONS
7.1. Lease/Option Agreement. Purchaser and Seller
acknowledge that the Property has been leased by Purchaser
pursuant to the terms of that certain Lease/Option Agreement
dated January 1, 1992 (the "Lease/Option Agreement"). The
Lease/Option Agreement is being terminated effective on the
Closing Date. Seller and Purchaser agree that Purchaser shall
receive and retain and Seller herein assigns to Purchaser as its
sole property (i) one hundred percent (100%) of all Gross
Receipts, as defined in the Lease/Option Agreement, generated or
prepaid from December 27, 1995 (the "Effective Date"), and (ii)
Purchaser shall be responsible for the payment of all Expenses,
as defined in the Lease/Option Agreement, arising and accrued
during the period from the Effective Date to the Closing Date as
if Purchaser had purchased the Property as of the Effective Date.
7.2. Lease Payments. In addition to the Purchase Price,
Purchaser agrees to pay to Seller on the Closing Date pursuant to
the termination of the Lease/Option Agreement (a) the rental
amount due to Seller as of the Effective Date which totals SEVEN
HUNDRED FORTY-THREE THOUSAND FIVE HUNDRED SIXTY-TWO AND NO/100
DOLLARS ($743,562.00), and (b) the sum of SIX HUNDRED THOUSAND
DOLLARS ($600,000.00) representing twenty percent (20%) of the
THREE MILLION DOLLARS ($3,000,000.00) received by Tenant for
initiation fees in December 1995, which amounts collectively
represent a full and final settlement of all sums due Landlord
under the Lease Option Agreement (the "Lease Payments") as
provided in the Lease Modification and Termination Agreement (the
"Termination Agreement").
7.3. Capital Reserve and Working Capital. Pursuant to the
terms of the Termination Agreement, the balance of any Working
Capital, Capital Reserve or other cash accounts or reserves,
together with Seller's right, title and interest in and to any
deposits posted with third parties pertaining to the Property as
of the Effective Date, are hereby assigned to Purchaser and shall
be Purchaser's sole property.
7.4. Utilities. Purchaser and Seller shall cause the
companies and municipalities furnishing utility services to the
Real Property and the Improvements to transfer services (if
applicable) to Purchaser on the morning of the Closing Date, or
on a date as soon thereafter as possible, and to submit final
statements for utility services for which Purchaser shall be
responsible.
7.5. Taxes. Except for the sales tax audit liability
assumed by Seller pursuant to the terms and provisions of that
certain Post Closing Agreement, of even date herewith, by and
between Seller and Purchaser (the "Post-Closing Agreement"), all
ad valorem taxes, payroll taxes, sales taxes, license taxes,
liquor taxes, use taxes, and all taxes arising from and as a
result of the operation of the Property that are due, or to
become due, to any governmental or quasi-governmental authority,
whether municipal, state, county or federal (the "Taxes")
accruing prior to the Effective Date shall be paid pursuant to
the terms of the Termination Agreement. Any Taxes accruing for
the period after the Effective Date shall be paid by Purchaser.
ARTICLE 8.
POSSESSION OF THE PROPERTY
8.1. Possession of the Property. Possession of the Real
Property, Improvements, and Tangible Personal Property shall be
delivered by Seller to Purchaser at Closing.
ARTICLE 9.
SELLER'S REPRESENTATIONS AND WARRANTIES
9.1. Seller makes the following representations and
warranties to Purchaser, which representations and warranties
shall survive the execution and delivery of this Agreement and
shall be true and correct in all material respects on the Closing
Date:
9.1.1. Partnership Status. Seller is a Delaware
general partnership duly organized, validly existing
and in good standing under the laws of the State of
Delaware, and is duly qualified and in good standing to
do business in Texas; Seller has all requisite power to
execute and deliver this Agreement, to consummate the
transactions contemplated hereby, and to perform its
obligations hereunder; the execution and delivery of
this Agreement by Seller and the performance of the
transactions contemplated hereby have been duly
authorized by all requisite partnership and general
partner corporate action on behalf of Seller, and this
Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable in accordance with
its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditor's rights
generally or by general equitable principles; and no
approval or consent of any person or entity is
necessary to make this Agreement a valid and binding
obligation of Seller.
9.1.2. Violation of Agreement. Neither the
execution and delivery of this Agreement by Seller nor
Seller's performance of any obligation hereunder or the
consummation of the transactions contemplated hereby
(i) will constitute a violation of Seller's partnership
agreement, or other governing documents or any law,
ruling, regulation or order to which Seller is subject,
or (ii) shall constitute a default of any term or
provision or shall cause an acceleration of the
performance required under any other agreement or
document (a) to which Seller is a party or is otherwise
bound or (b) to which the Property or any part thereof
is subject.
9.1.3. Name and Logo. Subject to the license
granted to Seller pursuant to the Xxxx License
Agreement, all of Seller's right, title and interest,
if any, in and to "Xxxxxx Creek Conference Resort and
Country Club" and "Xxxxxx Creek Lakeside Country Club,"
and the logos used in connection with the logo of
Xxxxxx Creek and in the operation of the Property as
and where now conducted, shall be assigned to Purchaser
at Closing and, to Seller's actual knowledge, the use
of such names and logos by Seller in the operation of
the Property as and where now conducted does not
violate or infringe the rights of any other person or
entity.
9.1.4. Litigation, Claims or Proceedings. Except
for the (i) XxXxxxxxx suit and (ii) the Audit as
defined in the Post Closing Agreement, Seller has no
actual knowledge of any existing or pending actions,
suits, litigation, claims, proceedings or governmental
investigations with respect to any aspect of the
Property or the Resort, nor, to the actual knowledge of
Seller, have any such actions, suits, litigation,
claims, proceedings or governmental investigations been
threatened or asserted.
9.1.5. Access. Seller has no actual knowledge of
any circumstance or condition existing which would
result in the termination of the current access to the
Real Property from existing roads.
9.1.6. Utilities, Waste and Drainage. To
Seller's actual knowledge, the utility services (i) are
installed and connected pursuant to valid permits and
are in full compliance with all governmental
regulations, (ii) are adequate for the present use and
operation of the Property, and (iii) no fact or
condition exists which would result in the termination
or impairment in the furnishing of utility services to
the Improvements.
9.1.7. Construction Claims. Except for any work
and services contracted by Tenant or its employees,
agents, or contractors and work and services provided
in connection with the day-to-day maintenance of the
Property, to Seller's actual knowledge, no work has
been performed or is in progress at the Property, and
no materials have been delivered to the Property that
might provide the basis for a mechanic's, materialman's
or other lien against the Property or any portion
thereof.
9.1.8. Assessments. Except for any existing
ad valorem taxes against the Real Property, Seller has
received no notice and has no actual knowledge of any
pending improvements, liens or special assessments to
be made against the Property by any governmental agency
or authority.
9.1.9. Contracts. To Seller's actual knowledge,
there are no outstanding contracts, leases, or
agreements of any nature to which the Resort, Purchaser
or the Property is or may become subject, except for
any contracts, which are (i) currently in Purchaser's
name, (ii) assumed by Purchaser or being terminated at
Closing, or (iii) set forth on the Permitted
Exceptions.
9.1.10. Property Condition of Improvements. To
Seller's actual knowledge, the Property is not in
material violation of any applicable city, county,
state and federal laws, ordinances, rules, regulations
and requirements, including, without limitation, those
pertaining to zoning, existing conditions in or about
the Property, building, safety, or environmental
matters promulgated by municipal, state or federal
governments, and Seller has not received any notice,
written or oral, claiming any violation of any of law,
ordinance or regulation or requesting or requiring the
performance of any repairs, alterations or other work
in order to so comply.
9.1.11. Options. There are no options or rights
of first refusal or any other right to purchase the
Property or any part thereof in favor of any person or
entity is currently outstanding, except for the rights
granted to Purchaser recited herein and the right of
first refusal on Part B of Tract II, Lot 44, to be
released at Closing.
9.1.12. Employees. Seller acknowledges that
Purchaser is acquiring only the Property and is not
obligated to retain any employee and is not assuming
any employment agreement, insurance or profit sharing
program of any nature between Seller and its
employees.
9.1.13. Environmental Laws. Seller has not
received any written notice, nor does Seller have any
actual knowledge that the Property is currently in
violation of or subject to any existing, pending or
threatened investigation or inquiry by any governmental
authority or to any remedial obligations under any
applicable laws pertaining to health or the environment
(hereinafter sometimes collectively called "Applicable
Environmental Laws"), including, without limitation,
the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 (as amended
from time-to-time, hereinafter called "CERCLA"), the
Resource Conservation and Recovery Act of 1976, as
amended by the Used Oil Recycling Act of 1980, the
Solid Waste Disposal Act Amendments of 1980, and the
Hazardous and Solid Waste Amendments of 1984 (as
amended from time-to-time, hereinafter called "RCRA"),
the Texas Water Code and the Texas Solid Waste Disposal
Act.
9.1.14. Waste Disposal Activities. Seller has no
actual knowledge that the Property has been used as a
garbage or refuse dump site, a landfill for waste, a
waste disposal facility, a transfer station, or any
other type of facility for storage, processing,
treatment, or temporary or permanent disposal of waste
materials, including, without limitation, solid,
industrial, toxic, hazardous, radioactive, nuclear, or
putrescible waste or sewage (except for normal trash
and kitchen waste, and household-like waste and
sanitary sewers and their contents), and there are no
underground storage tanks of any kind or nature located
on the Property. To Seller's actual knowledge, the
Property has not been, and is not now, listed on the
Environmental Protection Agency's list of violating
facilities established pursuant to the Clean Water Act,
the National Priorities List established pursuant to
CERCLA, and there are no orders, judgments, claims,
suits, actions or proceedings, including, but not
limited to, governmental investigations or requests for
information (except for the normal and routine
proceedings and investigations that may from time-to-
time occur in connection with the issuance, renewal,
modification, or monitoring of ordinary environmental
operating and other permits and licenses), which could
have an adverse effect upon the Property.
9.1.15. Wildlife. Except as otherwise reflected
in the Section 10(a) Permit applicable to the Property,
Seller has no actual knowledge of any present situation
or condition relating to the Property requiring
preservation of wildlife habitat.
The phrase "to Seller's actual knowledge" shall
mean the actual knowledge of Xxxxxxx X. Xxxxxxxxx, III,
the Vice President and Attorney-in-Fact of Seller, and
Xxxx Xxxxx, the Chief Financial Officer of Seller, and
Seller shall be deemed to have knowledge of any item
for which written documentation, notice, report,
memorandum, or correspondence of any nature has been
received from any party or governmental agency or
prepared by Seller or any of its Affiliates concerning
the subject matter. Purchaser acknowledges that it has
been the Tenant under the Lease/Option Agreement, and,
in the event Purchaser has actual knowledge prior to
Closing of any defect or misrepresentation of a
representation, covenant, or warranty made by Seller
herein (a "Seller" Breach") and Purchaser proceeds to
Closing, Purchaser waives any claim for damages, costs,
or fees against Seller arising due to the Seller
Breach.
ARTICLE 10.
SELLER'S COVENANTS
10.1. Seller covenants and agrees to the following, which
covenants and agreements shall survive Closing, shall have been
fully complied with as of the Closing Date, and shall not be
deemed merged in the conveyance contemplated herein:
10.1.1. Litigation, Claims or Proceedings. In
the event a lien, claim or cause of action affecting
the Property or the Resort should arise after the date
hereof and prior to the Closing Date and Purchaser
gives Seller written notice of same, Seller shall
satisfy (or contest and or provide suitable bonding
reasonably acceptable to Purchaser) any such claim
prior to the Closing Date and furnish Purchaser with
evidence thereof.
10.1.2. Permits. Seller shall cooperate fully
with Purchaser as necessary to enable Purchaser, at
Purchaser's cost, unless otherwise specified herein, to
procure and/or to transfer and to maintain all
licenses, permits or authorizations necessary for the
operation of the Property.
10.1.3. Sales Tax Audit. Pursuant to the term of
the Post-Closing Agreement, Seller agrees to indemnify
and hold Purchaser harmless from any claims, demands,
causes of action, attorneys' fees, and other costs,
including the payment of any sales tax due arising from
such audit proceedings.
10.1.4. Documentation. If necessary to carry out
the intent of this Agreement, Seller shall execute and
provide to Purchaser, on or after the Closing Date, any
and all instruments, documents, conveyances,
assignments and agreements which Purchaser may
reasonably request.
10.1.5. Noninterference. If Purchaser shall keep
and perform its covenants, conditions and obligations
hereunder, Seller shall not interfere in any manner
with Purchaser's operation, possession and ownership of
the Property.
ARTICLE 11.
PURCHASER'S
COVENANTS, REPRESENTATIONS, AND WARRANTIES
11.1. Purchaser makes the following covenants,
representations, and warranties to Seller. Each
covenant, representation, and warranty shall survive
the execution and delivery of this Agreement and shall
be true and correct in all material respects on the
Closing Date, and no covenant, representation, or
warranty shall be deemed to be merged with the
conveyance herein contemplated:
11.1.1. Corporate Status. Purchaser is a
corporation duly organized, validly existing and in
good standing under the laws of the State of Texas,
Purchaser has all requisite corporate power to execute
and deliver this Agreement, to consummate the
transactions contemplated hereby, and to perform its
obligations hereunder; the execution and delivery of
this Agreement by Purchaser and the performance of the
transactions contemplated hereby have been duly
authorized by all requisite corporate action on behalf
of Purchaser, and this Agreement constitutes the legal,
valid and binding obligation of Purchaser, enforceable
in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting
enforcement of creditor's rights generally or by
general equitable principles; and no approval or
consent of any person or entity is necessary to make
this Agreement a valid and binding obligation of
Purchaser.
11.1.2. Title. Purchaser has been advised that
Purchaser should have a title abstract covering the
Property examined by attorneys of Purchaser's selection
or that Purchaser should be furnished with a policy of
title insurance covering the Property.
11.1.3. Violation of Agreement. Neither the
execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby,
will violate, conflict with or result in the breach of
any term or provision of, or constitute a default
under, Purchaser's articles of incorporation, bylaws,
or any statute, order, judgment, writ, injunction,
decree, license, permit, rule or regulation of any
court or any governmental or regulatory body, or any
agreement to which Purchaser is a party or by which it
is bound.
11.1.4. Documentation. If necessary to carry out
the intent of this Agreement, Purchaser shall execute
and provide to Seller, on or after the Closing Date,
any and all instruments, documents, conveyances,
assignments and agreements which Purchaser may
reasonably request.
11.1.5. Litigation. Pursuant to the terms and
provisions of the Post Closing Agreement, Purchaser
agrees to indemnify and hold Seller harmless from any
claims, demands, causes of action, attorneys' fees, or
other costs arising from the XxXxxxxxx lawsuit.
11.1.6. Maintenance Standards. Purchaser agrees
to operate the Club at the maintenance standard set
forth in that certain Membership Agreement, of even
date herewith, by and between Seller and Purchaser.
11.1.7. Warranties. Purchaser acknowledges that
Purchaser has inspected the Property or independently
caused the Property to be inspected on its behalf and
that, except as otherwise expressly provided herein,
Purchaser has not entered into this Agreement based
upon any representation, warranty, agreement, statement
or expression of opinion of Seller or by any person or
entity acting or allegedly acting for or on behalf of
Seller as to the Property or the condition of the
Property. Purchaser agrees that the Property is to be
sold to and accepted by Purchaser at Closing, AS IS,
WHERE IS, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR
IMPLIED, except for the representations, warranties and
covenants expressly set forth herein and in the Closing
Documentation.
ARTICLE 12.
LIABILITIES AND INDEMNIFICATIONS
12.1. Liabilities. It is expressly agreed and recognized
that Purchaser, in acquiring the Property conveyed hereby, does
not assume any responsibility or liability whatsoever for any
commitments, agreements, contracts, obligations or debts made or
incurred by Seller, arising from Seller's ownership of the
Property prior to the Effective Date, regardless of whether
fixed, accrued or contingent, except for any obligations assumed
by Purchaser in the Closing Documentation, which accrues after
the Effective Date. It is further expressly agreed and
recognized that Seller, in disposing of the Property to be
conveyed hereby, does not assume any responsibility or liability
whatsoever for any commitments, obligations or debts made or
incurred by Purchaser or its successors arising from the
ownership of the Property subsequent to the Effective Date,
regardless of whether fixed, accrued or contingent, except for
the obligations assumed by Seller in the Closing Documentation.
12.2. Indemnification by Seller. Except for the liability
assumed by Purchaser pursuant to the terms of the Lease/Option
Agreement and the Closing Documentation, Seller shall pay, defend
and hold Purchaser and the Property harmless from and against all
liability of any nature whatever, regardless of the nature in
which such liability may arise, from any and all claims, actions
and demands, expenses, attorneys' fees, damages, losses,
liabilities, suits and/or judgments, costs and expenses,
including those of any employee of Seller, whether past or
present, arising from (i) Seller's ownership of the Property
prior to the Effective Date (but excluding liability as a result
of the acts or omissions of Purchaser or any affiliate of
Purchaser), (ii) any third-party relationship with Seller,
(iii) any misrepresentation, breach of warranty and/or covenant
(but excluding liability as a result of the acts or omissions of
Purchaser or any affiliate of Purchaser), or nonfulfillment of
any agreement on the part of Seller under this Agreement, or
(iv) any misrepresentation in or omission from any certificate or
other instrument furnished or to be furnished to Purchaser under
this Agreement. This Section 12.2 shall survive Closing and
shall in no event be deemed to merge with the conveyance herein
contemplated.
12.3. Indemnification by Purchaser. Except for the
liabilities retained by Seller pursuant to the terms of the
Closing Documentation, Purchaser shall pay, defend and hold
Seller harmless from and against all liability of any nature
whatever, regardless of the nature in which such liability may
arise, for any and all claims, actions, demands, expenses,
attorneys' fees, damages, losses, liabilities, suits and/or
judgments, costs and expenses, including that of any employee of
Purchaser or any customer, member, invitee or licensee of
Purchaser arising from (i) Purchaser's operation of the Property
from the Effective Date to the Closing Date and ownership of the
Property after the Closing Date, including, but not limited to,
all operational contracts and membership agreements entered into
by Purchaser during the term of the Lease/Option Agreement and
from the Effective Date to the Closing Date (but excluding
liability arising as a result of the acts or omissions of Seller
or any affiliate of Seller), (ii) any third-party relationship
with Purchaser, (iii) any misrepresentation, breach or warranty
and/or covenant (but excluding liability arising as a result of
the acts or omissions of Seller or any affiliate of Seller), or
nonfulfillment of any agreement on the part of Purchaser under
this Agreement, or (iv) any misrepresentation in or omission from
any certificate or other instrument furnished or to be furnished
to Seller under this Agreement. This Section 12.3 shall survive
Closing and shall in no event be deemed to merge with the
conveyance herein contemplated.
ARTICLE 13.
SELLER'S AND PURCHASER'S OBLIGATIONS
13.1. Independent Partnership. Purchaser recognizes and
acknowledges that Seller is an independent general partnership,
duly organized chartered under the laws of the State of Delaware,
and Purchaser will look solely to the partnership and the general
partners of the partnership, including the Managing General
Partners, who are solely responsible for the obligations and
liabilities of Seller recited herein, arising hereunder, or in
any manner related to the transactions contemplated hereby.
Purchaser further recognizes and acknowledges that no other
entity or entities, including, but not limited to, (i) any
individual, or (ii) any other corporation affiliated with Seller
which may provide services to, provide loans and funds to,
negotiate for, provide personnel to, make representations on
behalf of, and from time to time take actions on behalf of or for
the benefit of Seller by direct dealings with Purchaser or those
acting for it, is in any manner liable or responsible for the
obligations and liabilities of Seller, whether recited herein,
arising hereunder, or in any manner related to the transactions
contemplated hereby.
13.2. Independent Corporation. Seller recognizes and
acknowledges that Purchaser is an independent corporation,
chartered under the laws of the State of Texas, to whom Seller
will solely look and who is solely responsible for the
obligations and liabilities of Purchaser recited herein, arising
hereunder, or in any manner related to the transactions
contemplated hereby. Seller further recognizes and acknowledges
that no other entity or entities, including, but not limited to,
(i) Purchaser's parent corporation, Club Resorts Holding, Inc.;
the partner, Club Corporation International; or its affiliate,
Club Corporation of America, (ii) any individual, or (iii) any
corporation affiliated with Purchaser which may provide services
to, provide loans and funds to, negotiate for, provide personnel
to, make representations on behalf of, and from time to time take
actions on behalf of or for the benefit of Purchaser by direct
dealings with Seller or those acting for it, is in any manner
liable or responsible for the obligations and liabilities of
Purchaser, whether recited herein, arising hereunder, or in any
manner related to the transactions contemplated hereby.
ARTICLE 14.
DEFAULT/REMEDIES
14.1. Event of Default. If either party shall fail in the
performance of or compliance with any of the covenants,
agreements, terms or conditions contained in this Agreement and
such failure shall continue for a period of thirty (30) days
after written notice thereof from either party specifying in
detail the nature of such failure, or, in the case such failure
cannot with due diligence be cured within such 30-day period, if
either party fails to proceed promptly and with all due diligence
to cure the same and thereafter to prosecute the curing of such
failure with all due diligence [it being intended that in
connection with a failure not susceptible of being cured with due
diligence within thirty (30) days that the time within which to
cure the same shall be extended for such period as may be
necessary to complete the same with all due diligence, said
extension not to exceed ninety (90) days], then the party shall
be in default (an "Event of Default") and the nondefaulting party
shall be entitled to exercise the remedies set forth in
Section 14.2 hereof.
14.2. Remedies. Upon the occurrence of an Event of Default
by either party after Closing which is not cured within the time
permitted provided in Section 14.1 hereof, the disputed matter
shall be submitted to arbitration pursuant to the terms and
conditions of Article 15 hereof.
ARTICLE 15.
ARBITRATION
15.1. Arbitration. Any controversy arising out of, or
relating to, this Agreement, or the breach thereof, shall be
settled by binding arbitration administered by the American
Arbitration Association in accordance with its rules, and
judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction. The initiating party shall
give written notice to the other party of its intention to
arbitrate, which notice shall contain a statement setting forth
the nature of the dispute, the amount involved, if any, the
remedy sought, and the hearing locale requested, and shall file
at any regional office of the American Arbitration Association
three (3) copies of the notice and three (3) copies of this
arbitration provision, together with the appropriate filing fee,
as provided by the American Arbitration Association. The
arbitrator shall be selected by using the listing process under
the American Arbitration Association's arbitration rules. The
arbitrator shall award to the prevailing party, if any, as
determined by the arbitrator, all of its costs and expenses.
"Costs and expenses" shall mean all reasonable pre-award expenses
of the arbitration, including the arbitrator's fees,
administrative fees, travel expenses, out-of-pocket expenses,
such as copying and telephone, witness fees, and attorneys' fees.
The consideration of the parties to be bound by arbitration is
not only the waiver of trial by jury, but also the waiver of any
rights to appeal the arbitration finding.
ARTICLE 16.
NOTICES
16.1. Notices. Any notices or other communications
required or permitted hereunder shall be sufficiently given if in
writing and (i) hand delivered, including delivery by courier
service, (ii) sent by facsimile, or (iii) sent by certified mail,
return receipt requested, postage prepaid, addressed as shown
below, or to such other address as the party concerned may
substitute by written notice to the other. If the notice is sent
by facsimile, it must be properly addressed, reflecting the
facsimile phone number of the addressee(s), and must be
transmitted by a facsimile which produces a dated message
confirming completion of the transmission. All notices hand
delivered shall be deemed received on the date of delivery. All
notices forwarded by mail meeting the requirements of (iii) above
shall be deemed received on a date three (3) days (excluding
Sundays and legal holidays when the U.S. mail is not delivered)
immediately following date of deposit in the U.S. mail.
Provided, however, the return receipt indicating the date upon
which all notices were received shall be prima facie evidence
that such notices were received on the date on the return
receipt. Notwithstanding the foregoing, any notice of
termination given by Purchaser by certified mail and sent prior
to the end of the Review Period shall be effective when mailed.
If to Seller: FM PROPERTIES OPERATING CO.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxxx, III
Facsimile: (000) 000-0000
With a required copy to:
FM PROPERTIES OPERATING CO.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxx
Facsimile: (000) 000-0000
With a second required copy to:
Xxxxxxxxxxx & Price, L.L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Mr. Xxx Xxxxx
Facsimile: (000) 000-0000
If to Purchaser: XXXXXX CREEK RESORT & CLUBS, INC.
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Attention: President
Facsimile: (000) 000-0000
With a required copy to:
ADDISON LAW FIRM,
a Professional Corporation
00000 Xxxxxx Xxxxx, Xxxxx 000
Attention: Xx. Xxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
The addresses and addressees may be changed by giving notice
of such change in the manner provided herein for giving notice.
Unless and until such written notice is received, the last
address and addressee given shall be deemed to continue in effect
for all purposes. No notice to either Purchaser or Seller shall
be deemed given or received unless the entity noted "With a copy
to" is simultaneously delivered notice in the same manner as any
notice given to either Seller or Purchaser, as the case may be.
ARTICLE 17.
MISCELLANEOUS
17.1. Exhibits. All Exhibits attached hereto are
incorporated herein by this reference as if fully set forth
herein.
17.2. Waiver of Consumer Rights. TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, PURCHASER HEREBY WAIVES ALL OF THE PROVISIONS
OF THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT
(THE TEXAS BUSINESS AND COMMERCE CODE; SECTION 17.41, ET SEQ.)
SAVE AND EXCEPT THE PROVISIONS OF SECTION 17.555 OF THE TEXAS
BUSINESS AND COMMERCE CODE. PURCHASER WARRANTS AND REPRESENTS TO
SELLER THAT (A) PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE
BARGAINING POSITION AS TO ANY PROVISION OF THIS AGREEMENT OR AS
TO ANY MATTER CONTAINED HEREIN, (B) PURCHASER IS A SOPHISTICATED
ENTITY, AND (C) PURCHASER IS REPRESENTED BY LEGAL COUNSEL OF
PURCHASER'S OWN CHOOSING IN SEEKING, ACQUIRING, AND PURCHASING
THE PROPERTY AND IN NEGOTIATING THE TERMS OF THIS AGREEMENT.
FURTHER, THE CONSIDERATION FOR THE PURCHASE OF THE PROPERTY IS IN
EXCESS OF FIVE HUNDRED THOUSAND DOLLARS ($500,000.00). THIS
WAIVER IS MADE KNOWINGLY.
17.3. Successors and Assigns; Assignment. This Agreement
and the terms and provisions hereof shall inure to the benefit of
and be binding upon the parties hereto and their respective
successors and assigns whenever the context so requires or
permits. Except as expressly provided herein, this Agreement and
any documents executed in connection therewith shall not be
assigned by Seller or Purchaser without the prior written consent
of the other party, and any assignment without such prior written
consent shall be null and void.
17.4. Confidentiality; Public Announcements. Seller
covenants and agrees that unless the transaction contemplated by
this Agreement actually closes and Purchaser receives the Special
Warranty Deed at Closing, Seller will not disclose to any person
or entity any information received or discovered by Seller
concerning this Agreement or the intentions of Purchaser
hereunder. If Seller discloses any such information, such
disclosure shall constitute an Event of Default, whereupon
Purchaser shall be entitled to exercise the remedies available to
Purchaser under this Agreement as well as any other remedies
available to Purchaser at law or in equity for Seller's violation
of this Section, without any prior notice whatsoever; Seller
hereby waives notice for purposes of this Section. The
provisions of this Section shall survive Closing. Neither party
hereto shall make any public announcement or press release
concerning this Agreement or the transactions contemplated herein
except as may be mutually agreed upon by the parties in writing;
provided, however, the foregoing shall not preclude either party
from disclosing to any governmental or regulatory authority such
information or making press releases as may be required by
applicable laws or regulations.
17.5. Survival. All statements contained in any
certificate or other instrument delivered by or on behalf of
either party pursuant hereto, or in connection with the
transactions contemplated hereby, shall be deemed representations
and warranties by the respective party presenting such statement.
All covenants, representations, warranties, and agreements,
including, without limitation, agreements for indemnification and
post-closing adjustments, contained in this Agreement or in the
documents or instruments delivered at Closing which contemplate
performance by either party after Closing, shall survive Closing
and shall not be deemed merged in the conveyance.
17.6. Construction, Interpretation and Severability of
Agreement. This Agreement is to be performed in the State of
Texas and shall be governed by and construed in accordance with
the laws of the State of Texas. Any action brought to enforce or
interpret this Agreement shall be brought in the court of
appropriate jurisdiction in the county in which the Real Property
is located. Should any provision of this Agreement require
judicial interpretation, it is agreed that the court interpreting
or considering same shall not apply the presumption that the
terms hereof shall be more strictly construed against a party by
reason of the rule or conclusion that a document should be
construed more strictly against the party who itself or through
its agent prepared the same. It is agreed and stipulated that
all parties hereto have participated equally in the preparation
of this Agreement and that legal counsel was consulted by each
party before the execution of this Agreement. Except as
expressly provided to the contrary herein, each section, part,
term, or provision of this Agreement shall be considered
severable, and if for any reason any section, part, term, or
provision herein is determined to be invalid and contrary to or
in conflict with any existing or future law or regulation by a
court or governmental agency having valid jurisdiction, such
determination shall not impair the operation of or have any other
affect on other sections, parts, terms, or provisions of this
Agreement as may remain otherwise intelligible, and the latter
shall continue to be given full force and effect and bind the
parties hereto, and said invalid sections, parts, terms, or
provisions shall not be deemed to be a part of this Agreement.
17.7. No Partnership or Joint Venture; Outside Business.
Nothing contained herein shall be deemed or construed by the
parties hereto or by any third party as creating the relationship
of (i) principal and agent, (ii) a partnership, or (iii) a joint
venture between the parties hereto; it being understood and
agreed that neither any provisions contained herein nor any acts
of the parties hereto shall be deemed to create any relationship
between the parties hereto other than the relationship of seller
and purchaser. Nothing contained in this Agreement shall be
construed to restrict or prevent in any manner any party or any
party's affiliates, parent corporations, representatives, or
principals from engaging in any other businesses or investments.
17.8. Time. Time is of the essence in this Agreement and
each and all of its provisions. Any extension of time granted
for the performance of any duty under this Agreement shall not be
considered an extension of time for the performance of any other
obligation under this Agreement.
17.9. Counterparts; Documentation. This Agreement may be
executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and
the same instrument. If necessary to carry out the intent of
this Agreement, Purchaser and Seller agree to execute and provide
to the other party on or after Closing any and all other
instruments, documents, conveyances, assignments, and agreements
which such other party may reasonably require.
17.10. Brokers. Seller shall indemnify and hold harmless
Purchaser against and from all loss, cost, damage, or expense,
including attorneys' fees, incurred by Purchaser in any action
based upon a claim by a broker that Seller has employed or
otherwise engaged such broker in connection with the transaction
contemplated by this Agreement; and Purchaser shall indemnify and
hold harmless Seller against and from all loss, cost, damage, or
expense, including attorneys' fees, incurred by Seller in any
action based upon the claim of a broker that Purchaser has
employed or otherwise engaged such broker in connection with the
transaction contemplated by this Agreement. The term "broker" as
used herein shall include any party who claims a commission
because of the sale of the Property contemplated hereby.
17.11. Captions. Captions, titles to sections, and
paragraph headings used herein are for convenience of reference
and shall not be deemed to limit or alter any provision hereof.
17.12. Governing Document. This Agreement shall govern in
the event of any inconsistency between this Agreement and any of
the Exhibits attached hereto or any other document or instrument
executed or delivered pursuant hereto or in connection herewith.
17.13. Attorneys' Fees. In the event either party hereto
should default under any of the provisions of this Agreement and
the parties should employ attorneys or incur other expenses for
the enforcement of performance or observance of any obligation or
assessment on the part of the defaulting party or the defense of
said allegations, the prevailing party shall be entitled to
recover reasonable attorneys' fees and expenses incurred.
EXECUTED August 21, 1996 (the "Execution Date").
Seller:
FM PROPERTIES OPERATING CO.,
a Delaware general partnership
By: /s/ Xxxxxxx X. Xxxxxxxxx, III
Xxxxxxx X. Xxxxxxxxx, III,
Authorized Agent
Purchaser:
XXXXXX CREEK RESORT & CLUBS,
INC., a Texas corporation
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx, Vice President
EXHIBIT "A"
DEFINITIONS
All capitalized terms referenced or used in the Purchase and
Sale Agreement (the "Agreement") to which this Exhibit is
attached and not specifically defined therein shall have the
meaning set forth below in this Exhibit A, which is attached to
and made a part of the Agreement for all purposes. The section,
paragraph, and exhibit references herein refer to the Sections,
Paragraphs, and Exhibits in and to the Agreement.
1.1. Affiliate. The term "Affiliate" shall mean a person
that directly or indirectly controls, is controlled by, or is
under common control with the person in question, and any other
party who owns ten percent (10%) or more of such person. For
purposes of this definition, the term "control" means the
ownership of ten percent (10%) or more of the beneficial interest
of the voting power of the appropriate entity.
1.2. Capital Reserve. The term "Capital Reserve" shall mean
those amounts at any given time allocated to an account for
capital replacements and improvements within and to the
Improvements, the Tangible Personal Property, and the Real
Property, as more specifically reflected on the Financial
Statements of the Property.
1.3. Closing. The term "Closing" shall mean the time at
which Seller shall deliver the Deed to Purchaser.
1.4. Closing Date. The term "Closing Date" shall mean the
date specified in Section 5.1.
1.5. Closing Documentation. The term "Closing
Documentation" shall have the meaning set forth in Section 5.2.
1.6. Club. The term "Club" shall collectively mean the
portion of the Resort operated as "Xxxxxx Creek Country Club,"
consisting of two (2) 18-hole golf courses, the clubhouse, tennis
courts and related club facilities, and the "Xxxxxx Creek
Lakeside" 18-hole golf course, country club and related club
facilities.
1.7. Effective Date. The term "Effective Date" shall have
the meaning set forth in Section 7.1.
1.8. Improvements. The term "Improvements" shall mean all
improvement structures, and fixtures placed, constructed, or
installed on the Real Property conveyed to Purchaser pursuant to
that Xxxx of Sale and Assignment, of even date herewith, between
Seller and Purchaser (the "Xxxx of Sale").
1.9. Intangible Personal Property. The term "Intangible
Personal Property" shall mean all intangible personal property
owned or held by Seller in connection with the Property,
including, but not limited to, cash, cash accounts, security
deposits, prepaid expenses, accounts receivable, membership
lists, and the exclusive use of the logos, service marks, and the
names "Xxxxxx Creek Country Club and Conference Resort" and
"Xxxxxx Creek Lakeside," conveyed to Purchaser pursuant to the
Xxxx of Sale and that certain Xxxx Assignment, of even date
herewith between Seller and Purchaser.
1.10. Lease/Option Agreement. The term "Lease/Option
Agreement" shall have the meaning set forth in Section 7.1.
1.11. Lease Payments. The term "Lease Payments" shall
have the meaning set forth in Section 7.2.
1.12. Permitted Exceptions. The term "Permitted
Exceptions" shall have the meaning as set forth in Attachment 2
to the Deed.
1.13. Personal Property. The term "Personal Property"
shall mean the Intangible Personal Property and the Tangible
Personal Property.
1.14. Property. The term "Property" shall mean the
Improvements, the Intangible Personal Property, the Tangible
Personal Property, and the Real Property owned by Seller and to
be conveyed to Purchaser pursuant to the Agreement, including the
Resort and the Club.
1.15. Real Property. The term "Real Property" shall
have the same meaning as "Property" as such term is defined in
the Deed.
1.16. Resort. The term "Resort" shall be defined as the
Xxxxxx Creek Conference Center and Country Club located near
Austin, Texas, with one hundred fifty (150) guest rooms,
conference center, three (3) 18-hole golf courses with country
club, executive fitness center/spa, tennis courts and fitness
facilities.
1.17. Survey. The term "Survey" shall mean the Survey
defined in Section 3.2, which has been approved by Purchaser.
1.18. Tangible Personal Property. The term "Tangible
Personal Property" shall have the same meaning as "Personal
Property" as such term is defined in the Xxxx of Sale and
Assignment, of even date herewith, by and between Seller and
Purchaser.
1.19. Title Company. The term "Title Company" shall
mean Heritage Title Company of Austin, Inc., 00 Xxx Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xx. Xxxxxx
X. Xxxxxxxx.
1.20. Title Policy. The term "Title Policy" shall mean
an TLTA policy of title insurance issued by the Title Company in
the amount of the Purchase Price in the form accepted by
Purchaser pursuant to Section 3.1.
1.21. Working Capital. The term "Working Capital" shall
mean the amount of working capital pursuant to generally accepted
accounting principles shown on the Financial Statements
concerning the Property for the Fiscal Year ending December 27,
1995.
EXHIBIT B
CLOSING CHECKLIST