REAL ESTATE PURCHASE AND SALE AGREEMENT BY AND BETWEEN WIRE WAY, LLC, a Texas limited liability company ("Seller") and RCI HOLDINGS, INC., a Texas corporation ("Purchaser")
Exhibit
10.2
REAL
ESTATE
PURCHASE
AND SALE AGREEMENT
BY
AND BETWEEN
WIRE
WAY, LLC,
a
Texas limited liability company
("Seller")
and
RCI
HOLDINGS, INC.,
a
Texas corporation
("Purchaser")
THIS REAL ESTATE PURCHASE AND SALE
AGREEMENT (this "Agreement") is made
and entered into by and between WIRE WAY, LLC, a Texas limited liability company
("Seller"), and
RCI HOLDINGS, INC., a Texas corporation ("Purchaser"), pursuant
to the terms and conditions set forth herein.
W
I T N E S S E T H:
WHEREAS, Seller is the owner
of a certain real property consisting of approximately 4.637± acres of land,
together with all rights, (excepting for mineral rights as set forth below) ,
title and interests of Seller in and to any and all improvements and
appurtenances exclusively belonging or pertaining thereto (the "Property") located at
00000 Xxxx Xxx, Xxxxxx (xxx "Xxxx"), Xxxxxx
Xxxxxx, Xxxxx, which Property is more particularly described on Exhibit
A attached hereto and incorporated herein by reference; and
WHEREAS, contemporaneously
with the execution of this Agreement, North by East Entertainment, Ltd., a Texas
limited partnership ("North by East"), is
entering into an agreement with RCI Entertainment (Northwest Highway), Inc., a
Texas corporation ("RCI Entertainment"),
a wholly owned subsidiary of Rick's Cabaret International, Inc., a Texas
corporation ("Rick's") for the sale
and purchase of the assets of the business more commonly known as "Platinum Club
II" that operates from and at the Property ("Asset Purchase
Agreement"); and
WHEREAS, subject to and
simultaneously with the closing of the Asset Purchase Agreement, Seller will
enter into a lease with RCI Entertainment, as Tenant, for the Property, dated to
be effective as of the closing date, as defined in the Asset Purchase
Agreement (the "Lease") attached
hereto as Exhibit
B and incorporated herein by reference; and
WHEREAS, subject to the
closing of the Asset Purchase Agreement, the execution and acceptance by Seller
of the Lease, and pursuant to the terms and provisions contained herein, Seller
desires to sell and convey to Purchaser and Purchaser desires to purchase the
Property.
NOW, THEREFORE, for and in
consideration of the premises and mutual covenants and conditions contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
PURCHASE
AND SALE
Section 1.01. Purchase
and Sale. Pursuant to the
terms and provisions contained herein, Seller hereby agrees to sell, transfer
and convey by General Warranty Deed to Purchaser, and Purchaser hereby agrees to
purchase from Seller, the Property, free and clear of all liens and encumbrances
subject to any permitted exceptions mutually agreed to by the Parties (the
“Permitted Exceptions”). Seller hereby reserves from this sale, all right, title
and interest of Seller in and to the oil, gas and other non-surface minerals
under the Property; provided, neither Seller nor Seller’s heirs, successors,
lessees, assigns or grantees, shall ever use any portion of the surface of the
Property for the development of or exploration for the oil, gas and other
non-surface minerals reserved hereunder, any such use being expressly waived by
Seller for all purposes and for all times. The aforementioned General
Warranty Deed shall include a provision reserving from the sale all right, title
and interest of Seller in and to the oil, gas and other non-surface minerals
under the Property; provided, neither Seller nor Seller’s heirs, successors,
lessees, assigns or grantees, shall ever use any portion of the surface of the
Property for the development of or exploration for the oil, gas and other
non-surface minerals reserved hereunder, any such use being expressly waived by
Seller for all purposes and for all times.
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Section 1.02. Disclaimer
and Indemnity. THE PROPERTY SHALL BE
CONVEYED AND TRANSFERRED TO PURCHASER “AS IS, WHERE IS AND WITH ALL
FAULTS”. EXCEPT FOR THE REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER SET FORTH IN ARTICLE V OF THIS AGREEMENT, SELLER DOES NOT
WARRANT OR MAKE ANY REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUANTITY, QUALITY, LAYOUT, FOOTAGE,
PHYSICAL CONDITION, PERATION, COMPLIANCE WITH SPECIFICATIONS, ABSENCE OR LATENT
DEFECTS OR COMPLIANCE WITH LAWS AND REGULATIONS (INCLUDING, WITHOUT LIMITATION,
THOSE RELATING TO HEALTH, SAFETY AND THE ENVIRONMENT) OR ANY OTHER MATTER
AFFECTING THE PROPERTY AND SELLER SHALL BE UNDER NO OBLIGATION WHATSOEVER TO
UNDERTAKE ANY REPAIRS, ALTERATIONS OR OTHER WORK OF ANY KIND WITH RESPECT TO ANY
PORTION OF THE PROPERTY. FURTHER, PURCHASER SHALL INDEMNIFY, DEFEND
AND HOLD HARMLESS SELLER AND SELLER’S REPRESENTATIVES FROM AND AGAINST ANY
CLAIMS OR CAUSES OF ACTION ARISING OUT OF THE CONDITION OF THE PROPERTY BROUGHT
BY ANY OF PURCHASER’S SUCCESSORS OR ASSIGNS, OR ANY THIRD PARTY, AGAINST SELLER
OR SELLER’S REPRESENTATIVES. INFORMATION PROVIDED OR TO BE PROVIDED
BY SELLER IN RESPECT OF THE PROPERTY WAS OBTAINED FROM A VARIETY OF
SOURCES. SELLER HAS NOT MADE AN INDEPENDENT INVESTIGATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ASSURACY OR COMPLETENESS
THEREOF. PURCHASER HEREBY ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE
OWNERSHIP, USE, CONDITION, LOCATION, MAINTENANCE, REPAIR OR OPERATION OF THE
PROPERTY, WHICH PURCHASER WILL INSPECT AND ACCEPT “AS IS”. IN THIS
REGARD, PURCHASER ACKNOWLEDGES THAT (a) PURCHASER HAS NOT ENTERED INTO THIS
AGREEMENT IN RELIANCE UPON ANY INFORMATION GIVEN TO PURCHAWSER PRIOR TO THE DATE
OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, PROMOTIONAL MATERIALS OR
FINANCIAL DATA , (b) PURCHASER WILL MAKE ITS DECISION TO PURCHASE THE PROPERTY
BASED UPON PURCHASER’S OWN DUE DILIGENCE AND INVESTIGATIONS, (c) PURCHASER HAS
SUCH KNOWLEDGE AND EXPERIENCE IN REAL ESTATE INVESTIGATION TO EVALUATE THE
MERITS AND RISKS OF THE TRANSACTIONS PROVIDED IN THIS AGREEMENT, AND (d)
PURCHASER IS FINANCIALLY ABLE TO BEAR THE ECONOMIC RISK OF THE LOSS OF SUCH
INVESTMENT AND THE COST OF THE DUE DILIGENCE AND INVESTIGATIONS UNDER THIS
AGREEMENT. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS
BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT THE PROPERTY IS SOLD BY
SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE
FOREGOING. Disclaimers similar to the foregoing in form satisfactory
to Seller as well as Seller’s reservation of the mineral estate shall be
inserted in any and all documents to be delivered by Seller to Purchaser at
Closing.
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ARTICLE
II
PURCHASE
XXXXX, XXXXXXX MONEY AND INDEPENDENT CONSIDERATION
Section 2.01. Purchase
Price. The purchase price (the "Purchase Price") to
be paid by Purchaser to Seller for the Property acquired pursuant to this
Agreement shall be Six Million and No/100 Dollars
($6,000,000.00). Except as otherwise set forth herein, the Purchase
Price shall be due and payable in cash at the Closing (as hereinafter defined)
of the Property.
Section 2.02. Xxxxxxx
Money . Contemporaneously
with the execution of this Agreement, Purchaser shall deliver to Republic Title
of Texas, Inc., Attention: Xxx Xxxxxx, 0000 Xxxxxx, 00xx Xxxxx,
Xxxxxx, Xxxxx 00000 (the "Title Company"), the
amount of One Hundred Thousand Dollars ($100,000.00) (the "Initial Xxxxxxx
Money") in cash or immediately available funds. The Initial
Xxxxxxx Money is fully refundable until the later of June 10, 2008 or ten (10)
days after the approval of RCI Entertainment’s application for a sexually
oriented business license by the City of Dallas and the transfer of all other
permits utilized to operate Platinum Club II, (but in no event later than August
31, 2008) after which date it becomes non-refundable but will continue to be
held by the Title Company and shall be credited against the Purchase Price at
Closing.
Section 2.03. Additional
Payments. Subject to and
simultaneously with the closing of the Asset Purchase Agreement, Purchaser shall
pay to Seller, directly, the sum of One Million Five Hundred
Thousand and No/100 Dollars ($1,500,000.00) in cash or immediately available
funds (the “Cash Payment”). This Cash Payment delivered to
Seller shall be immediately non-refundable. If this transaction
closes, the $1,500,000 Cash Payment delivered hereunder shall be credited
against the Purchase Price at Closing.
Section 2.04. Additional
Xxxxxxx Money. Commencing
on such date 60 days from the closing and funding of the Asset Purchase
Agreement and continuing each consecutive month thereafter until the Closing (as
hereinafter defined), Purchaser shall deliver as additional xxxxxxx
money ("Additional
Xxxxxxx Money") to the Title Company each month the amount of Two Hundred
Thousand and No/100 Dollars ($200,000.00) in cash or immediately available funds
until not later than the Closing. Any and all Additional Xxxxxxx
Money delivered to the Title Company shall be immediately
non-refundable. If this transaction closes, all Additional Xxxxxxx
Money delivered hereunder shall be credited against the Purchase Price at
Closing. In the event that Purchaser does not deliver any portion of
the Additional Xxxxxxx Money to Seller as set forth herein and such failure to
deliver continues for a period of five (5) business days thereafter, then this
Agreement may be terminated by either party as its sole remedy for such failure,
and no party shall thereafter have any further obligation to the other
hereunder.
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ARTICLE
III
SURVEY,
TITLE BINDER, LEASES AND SOIL TESTS
Section 3.01. Survey
and Title Binder. (a) Seller
and Purchaser acknowledge that Seller has delivered, or caused to be delivered,
to Purchaser a copy of an existing on-the-ground survey (the "Survey") of the
Property.
(b) Within
ten (10) days after the Date of Execution of this Agreement (as hereinafter
defined), Seller shall deliver or cause to be delivered to Purchaser, at
Seller's sole expense, at the address stated below, a copy of (i) a title
commitment (the "Title
Binder") addressed to Purchaser issued by the Title Company,
showing Purchaser and Seller as set forth in this Agreement, covering the
Property and binding the Title Company to issue to Purchaser at the Closing, on
behalf of the Title
Company (or its underwriter), a Texas Owner's Policy of Title Insurance on the
standard form of policy prescribed by the Texas State Board of Insurance (the
"Owner's Title
Policy") in the aggregate amount of the Purchase Price for the Property
to be acquired by Purchaser pursuant hereto, and (ii) copies of any and all
instruments referred to in the Title Binder as constituting exceptions or
restrictions upon or matters affecting the title of Seller to the Property,
except that copies of any liens or any other matters which are to be released at
or before the Closing may be omitted (the "Exception
Documents").
(c) Seller
and Purchaser acknowledge that Seller has delivered, or caused to be delivered,
to Purchaser true, correct, complete and legible copies of any and all leases or
other conditions affecting or relating to the Property, whether such leases or
conditions are presently in written form, valid or recorded.
(d) Seller
and Purchaser acknowledge that Seller has delivered, or caused to be delivered,
to Purchaser a copy of the "as built" plans for the interior and exterior of the
building located on the Property.
(e) Seller
and Purchaser acknowledge that Seller has delivered, or caused to be delivered,
to Purchaser any and all soils and compaction tests (collectively, the "Soils Tests") and
environmental tests and reports (the "Environmental
Reports") performed by or on behalf of Seller or which Seller has in its
possession relating to the Property. Without in any way limiting or
diminishing Seller's obligation hereunder, Purchaser shall have the right, at
Purchaser's expense, to have the Seller's Soil Tests and Environmental Reports
updated and/or reissued to Purchaser.
Section 3.02. Review of
Survey and Title Binder. In the event any
exceptions or reservations appear in the Title Binder or in the event the Survey
is unacceptable to Purchaser, Purchaser's sole and exclusive remedy shall be to
terminate this Agreement by written notice delivered to Seller on or before the
date which is ten (10) business days after the date of Purchaser's receipt of
all the items to be delivered referenced above in Section 3.01 and the
Purchaser shall be entitled to immediately receive the return of the Initial
Xxxxxxx Money. If Purchaser does not exercise its right to
terminate this Agreement in accordance with this Section 3.02, all
matters contained in or on, and all of Purchaser's objections to, the Title
Binder, Survey, Exception Documents and all other documents delivered hereunder
or otherwise obtained by Purchaser pursuant to or in connection with this
Agreement or the Property shall either be cured to the satisfaction of Purchaser
or waived by Purchaser at or prior to the closing of the Asset Purchase
Agreement. In the event that the Purchaser does not waive any
exceptions or reservations that appear, then Purchaser’s sole and exclusive
remedy shall be to terminate this Agreement by written notice delivered to
Seller and shall be entitled to immediately receive the return of the Initial
Xxxxxxx Money. Any matters to which Purchaser does not object or
which Purchaser waives or is deemed to have waived shall be "Permitted
Exceptions". If Purchaser terminates this Agreement as
provided in this Section 3.02, this
Agreement shall terminate and no party hereunder shall thereafter have any
further obligation to the other hereunder, except as otherwise provided
herein.
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ARTICLE
IV
FEASIBILITY
STUDY AND INSPECTION
Section 4.01. Feasibility
Study. (a) On or
before (i) ten (10) days after the approval of RCI Entertainment’s application
for sexually oriented business license by the City of Dallas and (ii) the
transfer of all other permits utilized to operate the Platinum Club II (but in
no event later than August 31, 2008), Purchaser may conduct its due diligence on
the Property, including but not limited to, studies or tests or to conduct an
engineering and/or economic feasibility study of the Property, which studies and
tests may have included, without limitation, financial and marketing analyses,
soil tests, topographical analysis, engineering studies, environmental studies
and tests and similar preliminary work. Purchaser hereby expressly waives the
right to any additional period of time for same.
(b) Notwithstanding
the foregoing, Purchaser shall indemnify and defend Seller and hold Seller
harmless from and against any and all claims, liabilities or damages to the
Property or against Seller caused by Purchaser's and/or Purchaser's authorized
agents', representatives' or employees' actions during the or as a result of any
inspection of the Property by such parties during such time period.
ARTICLE
V
REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS
Section 5.01. Representations,
Warranties and Covenants of Seller. Seller
represents, warrants and covenants to Purchaser as follows:
(a) Organization, Good Standing
and Qualification. The Seller (i) is an entity duly organized,
validly existing and in good standing under the laws of the state of Texas, (ii)
has all requisite power and authority to operate its business, and (iii) is duly
qualified to transact business and is in good standing in Texas.
(b) Ownership of the
Property. As of the Closing, the Seller will be able to convey
the Property free and clear of any lien, claims, equities, charges, options,
rights of first refusal or encumbrances (save and except the Permitted
Exceptions) as evidenced by the title commitment for the Property to be issued
to Purchaser prior to the Closing and as evidenced by a title policy to be
provided to Purchaser at the time of Closing. Seller shall have at
Closing the unrestricted right and power to transfer, convey and deliver full
ownership of the Property without the consent or agreement of any other person
and without any designation, declaration or filing with any governmental
authority. Upon the transfer of the Property to the Purchaser as
contemplated herein, Purchaser will receive good and valid title thereto, free
and clear of any liens, claims, equities, charges, options, rights of first
refusal, encumbrances or other restrictions, subject to the agreed upon
Permitted Exceptions, if any.
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(c) Authorization. The
Seller has all requisite corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. All action on the part of the
Seller necessary for the authorization, execution, delivery and performance of
this Agreement has been taken by the Seller. This Agreement, when duly executed
and delivered in accordance with its terms, will constitute legal, valid and
binding obligations of the Seller enforceable against it in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization and
other similar laws of general application affecting creditors’ rights generally
or by general equitable principles.
(d) No Breaches;
Consents. The execution, delivery, and performance of
this Agreement and the transactions contemplated hereby by the Seller does
not: (i) violate any provision of its Articles of Organization or
Regulations; (ii) conflict with, violate, or constitute a breach of or a default
under; (iii) result in the creation or imposition of any lien, claim, or
encumbrance of any kind upon the Property; or (iv) require any authorization,
consent, approval, exemption, or other action by or filing with any third party
or Governmental Authority under any provision of: (a) any applicable
Legal Requirement; or (b) any credit or loan agreement, promissory note, or any
other agreement or instrument to which the Seller is a party or by which the
Property may be bound or affected. For purposes of this Agreement,
"Governmental Authority" means any foreign governmental authority, the United
States of America, any state of the United States, and any political subdivision
of any of the foregoing, and any agency, department, commission, board, bureau,
court, or similar entity, having jurisdiction over the parties hereto or their
respective assets or properties. For purposes of this Agreement,
"Legal Requirement" means any law, statute, injunction, decree, order or
judgment (or interpretation of any of the foregoing) of, and the terms of any
license or permit issued by, any Governmental Authority.
(e) Proceedings Relating to
Property. There is no pending, or, to the best knowledge of
the Seller, judicial, municipal or administrative proceedings with respect to,
or in any manner affecting the Property or any portion thereof, including,
without limitation, proceedings for or involving tenant evictions, collections,
condemnations, eminent domain, alleged building code or zoning violations,
personal injuries or property damage alleged to have occurred on the Property or
by reason of the use and operation of the Property, or written notice of any
attachments, executions, assignments for the benefit of creditors,
receiverships, conservatorships or voluntary or involuntary proceedings in
bankruptcy or pursuant to any other debtor relief laws pending or threatened
against the Seller or the Property itself, or the taking of the Property for
public needs.
(f) Public
Improvements. The Seller has no knowledge of any existing or
proposed public improvements which involve or which may result in any charge
being levied or assessed against the Property or which will or could result in
the creation of any lien upon the Property or any part thereof.
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(g) Certificates. To
the best knowledge of Seller, all certificates of occupancy, licenses, permits,
authorizations and approvals required by law or by any Governmental Authority
having jurisdiction over the Property have been obtained and are in full force
and effect.
(h) Material
Defect. The Seller has no knowledge of any material defects to
the Property which have not been disclosed in writing to Purchaser (except as
set forth in Exhibit C attached hereto and incorporated herein for all
purposes).
(i)
Flooding. The
Seller has no knowledge of any flooding which has occurred on the
Property.
(j)
Environmental. To
the best knowledge of Seller, the Property is not in violation of any state,
local or federal statutes, laws, regulations, ordinances, or rules pertaining to
health or the environment requirements affecting the Property and the Seller has
not received any citation, directive, letter or other communication, written or
oral, or any notice of any proceeding, claim or lawsuit relating to any
environmental issue at the Property; provided however, Seller has disclosed to
Purchaser that some or all of the Property was previously the location of a land
fill and used for such purposes. Seller expressly makes no
representation or warranty to Purchaser with respect to the soils, environmental
and ecological condition of the Property including, but not limited to, the
presence of any Hazardous Materials in, on or beneath the surface of the
Property or in the ground water or the surface water on, in, under or serving
the Property. Seller has produced a list of possible defects in the
Property as set forth on Exhibit C, attached
hereto.
(k)
Seller has disclosed that the mineral rights under the Property are not being
sold to Purchaser.
(l)
ALL REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT SHALL
SURVIVE THE CLOSING, SUBJECT TO ANY AND ALL APPLICABLE STATUTES OF LIMITATIONS
EXPIRY.
Section 5.02. Representations,
Warranties and Covenants of Purchaser. To induce Seller
to enter into this Agreement and to sell the Property, Purchaser (and RCI
Entertainment, where applicable) represent(s), warrant(s) and covenant(s) to
Seller as follows:
(a) Purchaser
has full power to enter into this Agreement and to consummate the transactions
provided for herein, and neither entering into this Agreement, nor consummating
any of the transactions provided for herein, will result in or constitute a
violation or breach by Purchaser of any lien, deed of trust, agreement or other
instrument affecting the Property or to which Purchaser is a party or by which
Purchaser is bound.
(b) Purchaser
will comply with all applicable laws, ordinances, regulations, statutes, codes,
rules, orders, decrees, determinations, covenants and restrictions relating to
the Property and every part thereof including those promulgated or imposed by
any agency, department, commission, board, bureau or instrumentality of any
governmental authority of the United States, the State of Texas, the City, the
County of Dallas or any other local authority.
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(c) Purchaser
and/or RCI Entertainment will maintain all permits, licenses and insurance
policies required to operate a club and timely comply with all terms and
conditions of the Lease, in accordance with the terms and conditions of the
Lease and any uncured default under the Lease by the Purchaser and/or RCI
Entertainment shall be a default of this Agreement. Upon the
occurrence of such uncured default, Seller may pursue any of the remedies set
forth in Section
8.02.
(d) Purchaser
understands and consents to the Seller’s reservation from this sale, all right,
title and interest of Seller in and to the oil, gas and other non-surface
minerals under the Property; provided, neither Seller nor Seller’s heirs,
successors, lessees, assigns or grantees, shall ever use any portion of the
surface of the Property for the development of or exploration for the oil, gas
and other non-surface minerals reserved hereunder, any such use being expressly
waived by Seller for all purposes and for all times.
(e) Prior
to Closing and funding of the purchase contemplated by this Agreement, neither
Purchaser nor RCI Entertainment, nor any of their parents, affiliates,
subsidiaries or related companies shall voluntarily surrender the sexually
oriented business license subsequent to its issuance to Purchaser or RCI
Entertainment by the City of Dallas for use at the Property, nor shall Purchaser
nor RCI Entertainment, nor any of their parent, affiliate, subsidiary or related
companies seek to move said license to a location within 1000 feet of the
Property, nor apply for an additional license within 1000 feet of the Property
as measured under the City of Dallas’ sexually oriented business
ordinance.
(f) ALL
REPRESENTATIONS AND WARRANTIES OF PURCHASER CONTAINED IN THIS AGREEMENT SHALL
SURVIVE THE CLOSING, SUBJECT TO ANY AND ALL APPLICABLE STATUTES OF LIMITATIONS
EXPIRY.
ARTICLE
VI
EMINENT
DOMAIN
Section 6.01. Eminent
Domain. Without limiting
any of Purchaser's other rights set forth in this Agreement, if, prior to the
Closing, any portion of the Property shall be permanently taken or condemned or
transferred by agreement in lieu of condemnation for any public or quasi-public
use or purpose by any competent authority, Purchaser may, at its option, (a)
terminate this Agreement by written notice to Seller, in which event all monies
previously paid will be refunded and neither party shall thereafter have any
further obligations to the other hereunder, (b) acquire only that portion of the
Property which has not been taken, condemned or transferred, or (c) close the
acquisition of the Property as provided herein. If Purchaser elects
to close, despite said taking, condemnation or transfer, Seller shall assign to
Purchaser Seller's right, title and interest in and to any compensation award
resulting from said taking, condemnation or transfer.
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ARTICLE
VII
CLOSING
Section 7.01. Closing
Schedule. (a) The
closing of the purchase and sale of the Property to be conveyed under this
Agreement (the "Closing", and the
date of such Closing shall hereinafter be referred to as the "Closing Date") shall
be held at the offices of the Title Company on or before one year from the
closing of the Asset Purchase Agreement. Notwithstanding the
foregoing, the Purchaser shall have the right but not the obligation to complete
the purchase of the Property at any time subsequent to the closing of the Asset
Purchase Agreement by providing the Seller and the Title Company ten (10) days
written notice of its intention to close the acquisition of the
Property.
Section 7.02. Delivery
of Documents and Purchase Price. (a) At the
Closing, Seller shall deliver to Purchaser the following (the "Closing
Documents"):
(i) a
general warranty deed in appropriate form to convey the Property to the
Purchaser free and clear of any liens or encumbrances (the "Deed") subject to any
agreed upon Permitted Exceptions;
(ii) an
Owner's Title Policy covering the Property in the full amount of the Purchase
Price to be paid therefor issued by the underwriter for the Title Company
pursuant to the Title Binder as provided herein;
(iii) any
and all such other documents and instruments as may be reasonably necessary to
effectuate the transfer of the Property as provided herein.
(b) At
the Closing, Purchaser shall deliver to Seller (i) the Purchase Price for the
Property less the Initial Xxxxxxx Money, the $1,500,000 Cash Payment and any
Additional Xxxxxxx Money in immediately available funds, either by wire transfer
or cashier’s check, and (ii) any and all such other documents and instruments as
may be reasonably necessary to effectuate the transfer of the Property and other
transactions as provided herein.
Section 7.03. Proration
of Closing Costs and Expenses. (a) Ad valorem taxes for the
Property for the then current year shall be prorated at the Closing effective as
of the date of the Closing and shall be adjusted in cash to Purchaser at the
Closing. If the amount of taxes for the year in which the Closing
takes place is not known at the time of the Closing, the apportionment of the
taxes shall be upon the basis of the tax rate for the preceding year applied to
the latest assessed valuation; provided, however, that any
difference in ad valorem taxes for the year of sale actually paid by Purchaser
shall be adjusted between the parties upon receipt of written evidence of the
payment thereof.
(b) Seller
hereby agrees to pay and be responsible for the following Closing
costs:
(i) all
fees and premiums for the Title Binder and for the Owner's Title
Policy;
(ii) one-half
(2)
of the Title Company's escrow fees;
(iii) all
costs and expenses incurred by or on behalf of Seller including Seller's
attorney's fees; and
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(iv) such
other incidental costs and fees provided herein to be paid by Seller or
otherwise customarily paid by sellers of property in Dallas County, Texas in
transactions of a similar nature to the transactions provided
herein.
(c) Purchaser
hereby agrees to pay and be responsible for the following Closing
costs:
(i)
all fees and premiums for a Mortgagee’s Title Policy, if any;
(ii) the
cost of recording the Deed to the Property;
(iii) one-half
(2)
of the Title Company's escrow fees;
(iv)
all costs and expenses incurred by or on behalf of Purchaser including
Purchaser's attorney's fees; and
(v)
such other incidental costs and fees provided herein to be paid by Purchaser or
otherwise customarily paid by purchasers of property in Dallas County, Texas in
transactions of a similar nature to the transactions provided
herein.
Section 7.04. Texas
Property Code Section 5.010 Notice.
NOTICE
REGARDING POSSIBLE
LIABILITY FOR ADDITIONAL
TAXES
If for
the current ad valorem tax year the taxable value of the land that is the
subject of this Agreement is determined by a special appraisal method that
allows for appraisal of the land at less than its market value, the person to
whom the land is transferred may not be allowed to qualify the land for that
special appraisal in a subsequent tax year and the land may then be appraised at
its full market value. In addition, the transfer of the land or a
subsequent change in the use of the land may result in the imposition of an
additional tax plus interest as a penalty for the transfer or the change in the
use of the land. The taxable value of the land and the applicable
method of appraisal for the current tax year is public information and may be
obtained from the tax appraisal district established for the county in which the
land is located.
ARTICLE
VIII
TERMINATION,
DEFAULT AND REMEDIES
Section 8.01. Termination. If this Agreement
is terminated pursuant to any paragraph or provision hereof granting such power
or by the mutual written consent of the parties hereto, the parties shall
thereafter have no further obligation or liabilities to the other
hereunder. All monies held in escrow pursuant to this Agreement shall
be returned to the appropriate party as provided for in the relevant section
hereto.
10
Section 8.02. Purchaser's
Default and Seller's Remedies. In the event
Purchaser fails to fulfill any of its obligations hereunder, including all
rental payments and obligations under the Lease, except as a result of Seller's
default hereunder or the termination of this Agreement pursuant to any provision
hereof, Seller shall have the sole right to terminate this Agreement and retain
ALL the Xxxxxxx Money, Additional Xxxxxxx Money and monthly payments made by
Purchaser, as liquidated damages for the breach of this Agreement.
Section 8.03. Seller's
Default and Purchaser's Remedies. In the
event Seller fails to fulfill any of its obligations hereunder, except as a
result of Purchaser's default hereunder or the termination of this Agreement
pursuant to any provision hereof, Purchaser shall have the right to (a)
terminate this Agreement and receive the Initial Xxxxxxx Money, the Cash
Payment, Additional Xxxxxxx Money and monthly payments made by Purchaser, as
liquidated damages for the breach of this Agreement or (b) enforce
specific performance of this Agreement and require Seller to consummate the
sale, transfer and conveyance of the Property to the Purchaser in accordance
with the terms and conditions hereof.
ARTICLE
IX
COMMISSION
Section 9.01. Commission. Each
of the parties hereto hereby represents and warrants to the other parties that
no real estate commissions or finder's fees are due or payable as a result of or
in connection with this Agreement or the transactions contemplated herein to any
person or agency, and that each of the parties hereby agrees to indemnify the
other party and hold the other party harmless from and against any and all
claims for real estate commissions and/or finders fees occasioned by its
acts.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
Section
10.01. Date of
Agreement. The term "Date of
this Agreement" as used herein shall mean the date, whichever is latest, this
Agreement has been fully executed by Seller and Purchaser, as indicated by their
signatures below.
Section
10.02. Date of
Performance. In the event the
Closing Date should fall on a legal holiday, Saturday or Sunday, such date shall
be extended to the next working day which is not a legal holiday, Saturday or
Sunday, and such next working day shall be considered to be the Closing
Date.
Section
10.03. Notices. Any notices
or other communications required or permitted hereunder shall be sufficiently
given if in writing and delivered in person or sent by registered or certified
mail (return receipt requested) or nationally recognized overnight delivery
service, postage pre-paid, addressed as follows, or to such other address has
such party may notify to the other parties in writing:
11
|
If
to Purchaser:
|
Rick's
Cabaret International, Inc.
|
|
00000
Xxxxxx Xxxx
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Attention: Xxxx
Xxxxxx
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
|
|
with
a copy to:
|
Xxxxxxx
Xxxxx & Xxxxxxxxx
|
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0000
Xxxxxxxx Xxxxx, Xxxxx 000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Attention:
Xxxxxx X. Xxxxxxx
|
|
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Telephone:
(000) 000-0000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
If
to Seller:
|
Wire
Way, LLC
|
|
0000
Xxxxxx Xxxx
|
|
|
Xxxxx,
Xxxxx 00000
|
|
|
Attention:
Xxxxxx X. Xxxxxx
|
|
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Telephone:
(000) 000-0000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
with
a copy to:
|
|
|
Quilling,
Selander, Cummiskey & Xxxxxx, P.C.
|
|
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0000
Xxxxx Xx., Xxxxx 0000
|
|
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Xxxxxx,
Xxxxx 00000
|
|
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Attn:
Art Xxxxxxxx
|
|
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Telephone:
(000) 000-0000
|
|
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Facsimile:
(000) 000-0000
|
Any
address for notice may be changed by written notice so given.
Section
10.04. Attorney's
Fees. If either party
shall be required to employ an attorney to enforce or defend the rights of such
party hereunder, the prevailing party shall be entitled to recover reasonable
attorney's fees incurred in connection therewith.
Section
10.05. Survival. Any portion of
this Agreement not otherwise consummated at the Closing will not survive the
Closing as a continuing agreement by and between the parties
hereto.
Section 10.6. Relationship
of the Parties. Nothing contained
herein is intended to create, nor shall it ever be construed to make, Seller and
Purchaser partners or joint venturers.
12
Section 10.7. Compliance
with Section 6045(e) of the Tax Reform Act of 1986. The Title Company
hereby agrees to (a) timely file returns with the Internal Revenue Service, on
Form 1099-B or such other forms as instructed by the Internal Revenue Service,
showing the gross proceeds of each transaction contemplated hereunder, the
recipient thereof and such other information as the Internal Revenue Service may
by form or regulation require from time to time, and (b) furnish Seller and
Purchaser with a written statement showing the name and address of the Title
Company and the information shown on such returns with respect to each such
transaction. These returns shall be filed to ensure that the parties
to these transactions will be in compliance with Section 6045(e) of the Internal
Revenue Code of 1986, as amended from time to time, and as further set forth in
any regulations promulgated thereunder.
Section 10.8. Sale
Offer. The execution of
this Agreement by Seller constitutes an offer to sell the
Property. Unless this Agreement is accepted by Purchaser and a fully
executed copy, along with the Initial Xxxxxxx Money, is delivered to the title
company on or before 5:00 p.m., May 12, 2008, the offer set forth in this
Agreement shall be automatically revoked and terminated.
Section 10.9. Disclosures. Seller expressly
makes the disclosures set forth on the attached Exhibit
C incorporated herein by reference.
Section
10.10. Location
of Flood Plain. Seller makes no
representation or warranty, express or implied, regarding the location of any
100 year flood plain or the impact of a 100 year flood plain on the
Property. Any costs or expenses associated with the revision of the
100 year flood plain or revision of the 100 year flood plain map, including (a)
administrative and filing expenses for obtaining a conditional letter of map
revision or letter of map revision, and (b) costs of construction to revise the
100 year flood plain, shall be borne solely and exclusively by Purchaser, and
Seller shall have no liability therefor.
Section
10.11. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
Section
10.12. Assignment; Successors
and Assigns. Except as
otherwise provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors and permitted assigns of the parties
hereto. No party hereto may assign its rights or delegate its
obligations under this Agreement without the prior written consent of the other
parties hereto, which consent will not be unreasonably withheld.
Section
10.13. Public
Announcements. The parties
hereto agree that prior to making any public announcement or statement with
respect to the transactions contemplated by this Agreement, the party desiring
to make such public announcement or statement shall consult with the other
parties hereto and exercise their best efforts to agree upon the text of a
public announcement or statement to be made by the party desiring to make such
public announcement; provided, however, that if any party hereto is required by
law to make such public announcement or statement, then such announcement or
statement may be made without the approval of the other
parties.
13
Section
10.14. Entire
Agreement. This Agreement
and the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof and thereof and supersede and cancel all prior representations,
alleged warranties, statements, negotiations, undertakings, letters,
acceptances, understandings, contracts and communications, whether verbal or
written among the parties hereto and thereto or their respective agents with
respect to or in connection with the subject matter hereof.
Section
10.15. Choice of
Law. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Texas, without regard to principles of conflict of laws. In any
action between or among any of the parties, whether arising out of this
Agreement or otherwise, each of the parties irrevocably consents to the
exclusive jurisdiction and venue of the federal and state courts located in
Dallas County, Texas.
Section
10.16. Execution. This Agreement
may be executed in two or more counterparts, all of which when taken together
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
Section
10.17. Costs and
Expenses. Each party
shall pay their own respective fees, costs and disbursements incurred in
connection with this Agreement.
Section
10.18. Section
Headings. The section and
subsection headings in this Agreement are used solely for convenience of
reference, do not constitute a part of this Agreement, and shall not affect its
interpretation.
Section
10.19. Attorney
Review - Construction. In connection
with the negotiation and drafting of this Agreement, the parties represent and
warrant to each other that they have had the opportunity to be advised by
attorneys of their own choice and, therefore, the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments
hereto.
Section
10.20. No
Third-Party Beneficiaries. Nothing in this
Agreement will confer any third party beneficiary or other rights upon any
person or any entity that is not a party to this Agreement.
Section
10.21. Validity. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
[THE
BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
14
EXECUTED on the dates stated
below:
|
SELLER:
|
PURCHASER:
|
|||
|
WIRE
WAY, LLC,
|
RCI
HOLDINGS, INC.,
|
|||
|
a
Texas limited liability company
|
a
Texas corporation
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxxx |
By:
|
/s/ Xxxx Xxxxxx | |
|
Xxxxxx
X. Xxxxxx, Manager
|
Xxxx
Xxxxxx, President
|
|||
| May 10, 2008 | May 10, 2008 | |||
|
Date
of Execution
|
Date
of Execution
|
|||
AGREED
AND ACKNOWLEDGED WITH
RESPECT
TO SECTION 5.02 ONLY BY:
RCI
ENTERTAINMENT (NORTHWEST HIGHWAY), INC.:
|
By:
|
/s/ Xxxx Xxxxxx | |
|
Xxxx
Xxxxxx, President
|
15
ACKNOWLEDGMENT
The
undersigned Title Company hereby acknowledges its receipt of an executed copy of
this Agreement and the Xxxxxxx Money provided herein (if any) and, further,
agrees to comply with and be bound by the terms and provisions of this
Agreement, including, without limitation, those terms relating to disposition of
the Xxxxxxx Money (if applicable) and compliance with Section 6045(e) of the
Internal Revenue Code of 1986, as amended from time to time, and as further set
forth in any Regulations or forms promulgated thereunder.
|
REPUBLIC
TITLE OF TEXAS, INC.
|
||
|
By:
|
/s/ Xxxxxx Xxxxxx | |
|
Name:
|
Xxxxxx
Xxxxxx
|
|
|
Title:
|
Escrow Officer | |
|
Date:
|
May 12, 2008 | |
|
Address:
|
0000
Xxxxxx, 00xx
Xxxxx
|
|
|
Xxxxxx,
Xxxxx 00000
|
||
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
|
|
Email:
|
xxxxxxx@xxxxxxxxxxxxx.xxx
|
16
