REAL ESTATEPURCHASE AND SALE AGREEMENT[ DCT1]
BY AND BETWEEN
WIRE WAY, LLC,
a Texas limited liability company
("Seller")
and
RCI HOLDINGS, INC.,
a Texas corporation
("Purchaser")
From
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT(this "Agreement") is made and entered into by and between WIRE WAY, LLC[ DCT2], a Texas limited liability company ("Seller"), and RCI HOLDINGS, INC[ DCT3]., a Texas corporation ("Purchaser"), pursuant to the terms and conditions set forth herein.
W I T N E S S E T H:
WHEREAS[ DCT4], 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 [ DCT5]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 10557 Wire Way, Dallas (the "City"), Dallas County, Texas, which Property is more particularly described onExhibit Aattached hereto and incorporated herein by reference; and
WHEREAS[ DCT6],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 [ DCT7]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 [ DCT8]"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[ DCT9]the closing date, as defined in the Asset Purchase Agreement (the "Lease") attached hereto asExhibit Band incorporated herein [ DCT10]by reference; and
WHEREAS, subject to [ DCT11]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[ DCT12].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[ DCT13], neither Seller nor Seller’s heirs, successors, lessees, assigns or grantees, shall ever use any portion of the surface [ DCT14]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[ DCT15].
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[ DCT16], 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.[ DCT17]THE PROPERTY SHALL BE CONVEYED AND TRANSFERRED[ DCT18] TO PURCHASER “AS IS, WHERE IS AND WITH ALL FAULTS”.[ DCT19]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,[ DCT20]DESIGN, QUANTITY, QUALITY, LAYOUT, FOOTAGE, PHYSICAL CONDITION, OPERATION, 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 [ DCT21]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.[ DCT22]FURTHER, PURCHASER[ DCT23] SHALL INDEMNIFY, DEFEND [ DCT24]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 ACCURACY 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[ DCT25] UPON ANY INFORMATION GIVEN TO PURCHASER 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 PRICE, EARNEST 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.Earnest Money.Contemporaneously with the execution of this Agreement, Purchaser shall deliver to Republic Title [ DCT26]of Texas, Inc., Attention: Mel Morgan, 2626 Howell, 10thFloor, Dallas, Texas 75204(the "Title Company"), the amount of One Hundred Thousand Dollars ($100,000.00) (the "Initial Earnest Money") in cash or immediately available funds[ DCT27].The Initial Earnest Money is fully refundable until the later of [ DCT28]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 [ DCT29]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[ DCT30] against the Purchase Price at Closing.
Section 2.03.Additional Payments.Subject to and simultaneously with [ DCT31]the closing of the Asset Purchase Agreement, Purchaser shall pay to Seller, directly, the sum of OneMillion[ DCT32] Five Hundred Thousand and No/100 Dollars ($1,500,000.00) in cash or immediately available funds [ DCT33](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 Earnest Money.Commencing on such date [ DCT34]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 additionalearnest money ("Additional Earnest Money[ DCT35]") 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 Earnest Money delivered to the Title Company shall be immediately non-refundable.If this transaction closes, all Additional Earnest 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 Earnest 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[ DCT36] 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[ DCT37]") addressed to Purchaser issued bythe 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 ofthe 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[ DCT38] for the interior and exterior of the building located on the Property.
(e)Seller and Purchaser acknowledge [ DCT39]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[ DCT40]") performed by or on behalf of Seller or [ DCT41]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[ DCT42], 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 [ DCT43]to Purchaser, Purchaser's sole and exclusive remedy shall be to terminate this Agreement [ DCT44]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 inSection 3.01 and the Purchaser shall be entitled to immediately receive the return of the Initial Earnest Money.If Purchaser does not exercise its right to terminate this Agreement in accordance with thisSection 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 [ DCT45]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 Earnest 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 [ DCT46]this Agreement as provided in thisSection 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) [ DCT47]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[ DCT48], 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 [ DCT49]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.[ DCT50]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[ DCT51]; (ii) conflict with, violate, or constitute a breach of or a default under[ DCT52]; (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 [ DCT53]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.[ DCT54]There is no pending, or, [ DCT55]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.