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Exhibit 10.52
REAL ESTATE PURCHASE
AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT
(this “ Agreement ”) is made and entered into as
of the 30th day of May 2007, by and between JFS Desert Fountain
Properties, LLC (“ Seller ”), a Minnesota
limited liability company, and VCG Holding Corp. (“
Purchaser ”), a Colorado corporation, and is based on
the following facts:
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A.
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Seller is the owner of fee
title to real property known as and located at 115 4
th Street South, in the City of Minneapolis,
Hennepin County, Minnesota, legally described on Exhibit
“A” attached hereto and made a part of this Agreement
by reference (the “ Land ”).
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B. |
The Land is improved by a building (the “ Building
”) and other improvements (collectively, with the Building,
the “ Improvements ”) including, without
limitation, all mechanical, plumbing, heating, ventilating,
air-conditioning, electrical fixtures, equipment and systems
located in or on the Improvements. |
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C. |
With respect to the Land and the Improvements, Seller also owns
the service and maintenance contracts, equipment leases, and other
contracts (collectively, the “ Contracts ”); all
permits, licenses and trade names (collectively, “
Permits ”); all warranties and guaranties
(collectively, the “ Warranties ”); and all
business records, including management, leasing, real estate taxes,
assessments, insurance, rents, maintenance, repairs, capital
improvements and services (collectively, “ Records
”) (the Land, the Improvements, the Contracts, the Permits,
the Warranties, and the Records are hereinafter collectively
referred to as the “ Property ”). |
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D. |
Purchaser wishes to purchase the Property from Seller, and
Seller is willing to sell the Property to Purchaser, subject to
certain terms and conditions. |
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E. |
Seller and Purchaser wish to set forth in writing the terms of
their agreement relating to the foregoing. |
In consideration of the facts
stated above, the mutual covenants and agreements set forth below,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Seller and
Purchaser, the parties hereby agree as follows:
| 1. |
Recitals Incorporated . The facts stated above are
hereby incorporated into and made a part of this
Agreement. |
| 2. |
Sale and Purchase . Subject to the terms and conditions
of this Agreement, Seller agrees to sell and convey the Property to
Purchaser, and Purchaser agrees to purchase and accept the Property
from Seller. |
| 3. |
Purchase Price . The purchase price for the Property
(“ Purchase Price ”), shall be the sum of Three
Million and NO/100 Dollars ($3,000,000.00), payable by wire
transfer of collected funds on the Closing Date. |
| 4. |
Title To Be Delivered . Promptly after the parties have
executed and delivered this Agreement, Purchaser shall order, from
a title insurance company or agency licensed to write title
insurance in the State of Minnesota (“ Title ”),
a commitment for an ALTA owner’s title insurance policy (the
“ Commitment ”), wherein Title agrees to issue
to Purchaser upon the recording of the conveyance document(s), an
ALTA owner’s title insurance policy in the full amount of the
Purchase Price, and legible copies of all documents referred to in
the Commitment as affecting title to the Land (the “ Title
Documents ”). Purchaser also may order, not later than
ten (10) days after its receipt of the Commitment and the
Title Documents, from a registered land surveyor, a survey of the
Land (the “ Survey ”), containing a
certification addressed to Seller, Purchaser, Title and
Purchaser’s lender (if any), in form acceptable to Purchaser
and Purchaser’s lender, if any, and locating all of the items
shown on the Commitment as affecting title to the Land. The
Commitment, the Title Documents and any Survey timely ordered by
Purchaser, are collectively called the “ Title
Evidence .” |
Purchaser shall have twenty
(20) days after its receipt of the Title Evidence to render
objections to title in writing to Seller. Any matters not timely
objected to by Purchaser shall be Permitted Exceptions. Seller
shall have sixty (60) days after the date of timely notice of
such objections to cause the same to be removed or satisfied.
Seller agrees to use reasonable efforts promptly to satisfy any
such objections. Seller shall satisfy on or before the Closing Date
any exception which may be satisfied solely by the payment of
money. If Seller shall fail to cause such objections to be removed
or satisfied within that time, Purchaser may, at its sole
discretion, either (a) terminate this Agreement by notice to
Seller, in which event Seller and Purchaser shall execute a written
termination of this Agreement and thereupon neither party shall
have any further rights or obligations under this Agreement except
for obligations which expressly are provided in this Agreement to
survive a termination of this Agreement (the “ Surviving
Obligations ”); or (b) accept title subject to such
objections, in which event such objections shall be Permitted
Exceptions.
The following items shall be
Permitted Exceptions and shall not be objections to marketability
of title to the Property:
a. Financing Statement, dated
February 23, 2001, recorded in the office of the County
Recorder in and for Hennepin County, Minnesota on May 17, 2001
as Document No. 7473057, between Classic Affairs, Inc., as
Debtor, and Financial Management Leasing, Inc., as Secured
Party.
b. Perpetual Easement
Agreement, dated December 28, 1987, recorded in the office of
said County Recorder on January 15, 1988 as Document
No. 5368451.
c. Resolution 80R-326,
recorded in the office of said County Recorder on January 6,
1981 as Document No. 4615720.
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Rights of Inspection, Testing and Review . |
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A. |
Seller shall make available to Purchaser, within seven
(7) days after the mutual execution of this Agreement,
complete and accurate copies of any and all notices, consents,
approvals, plans, specifications, surveys, engineering studies,
analyses, reports and analyses of soil borings, environmental
studies (collectively, the “ Seller’s Environmental
Reports ”), leases and other documentation pertaining to
the Property (whether prepared by Seller, Seller’s agents or
independent contractors, any federal, state, regional or local
governmental authority or agency, or any other party), to the
extent that Seller has the same in its possession or control, all
of which shall remain the property of Seller unless and until the
Closing occurs, and all of which shall be returned to Seller
promptly upon any termination of this Agreement. Purchaser’s
obligation to return such items to Seller upon termination of this
Agreement shall be a Surviving Obligation. Such documentation shall
include, without limitation, the Contracts, Permits, Warranties,
and Records. If Purchaser does not wish Seller to assign any of the
Contracts at Closing, Purchaser shall give Seller notice of such
wish within ten (10) days after its receipt of such
Contract(s), in which case Seller shall terminate such Contract(s)
included in Purchaser’s notice at or prior to
Closing. |
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B. |
Purchaser, its counsel, accountants, agents, contractors and
other representatives shall have full and continuing access to the
Property and Seller’s records relating to the Property, from
the date of this Agreement through June 30, 2007 (the “
Contingency Date ”), upon reasonable notice to Seller
and any tenant or subtenant in possession of any part of the
Property. Purchaser and its counsel, accountants, agents,
contractors and other representatives also shall have the right to
enter upon the Land at any time after the execution and delivery
hereof for inspecting, surveying, engineering, soil borings,
performance of environmental tests and such other work as Purchaser
shall consider appropriate; provided, however, that such work shall
not include demolition or removal of the Improvements or any part
thereof. Purchaser shall hold Seller harmless from and fully
indemnify Seller against any damage, claim, liability or cause of
action arising from or caused by the actions of Purchaser, its
agents or representatives, upon the Land from the date of this
Agreement through the Closing Date; provided, however, that
Purchaser shall not be liable or be required to indemnify Seller
against claims, liabilities, or causes of action arising from
Purchaser’s mere discovery of hazardous materials or a
violation of environmental laws. The obligations in the preceding
sentence shall be Surviving Obligations. Purchaser further shall
have the right to make such inquiries of governmental agencies and
utility companies, etc., and to make such feasibility studies and
analyses as it considers appropriate (the review of the documents
under Section 5.A. above, together with the review of the
Property under this Section 5.B., are referred to as the
“ Inspections ”). Purchaser may elect, by notice
to Seller on or before the Contingency Date, to terminate this
Agreement as of a date not later than the Contingency Date if
Purchaser is not satisfied with the results of the Inspections, in
which event: this Agreement shall terminate; Seller and Purchaser
shall execute a written termination of this Agreement; and
thereupon neither party shall have any further rights or
obligations under this Agreement except for the Surviving
Obligations. |
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| 6. |
Control of Property . Until the Closing Date and subject
to Purchaser’s indemnification obligations under
Section 5.B. above, Seller shall have full responsibility and
liability for any and all damages or injury of any kind whatsoever
to the Property, to any person in, on or about the Property, and to
all personal property located on, removed from or related to the
Property. If, prior to the Closing Date, the Property is materially
damaged or becomes the subject of an action or threat of an action
in condemnation or eminent domain, whether temporary or permanent,
Seller promptly shall notify Purchaser of such damage, action or
threat of action, and Purchaser, in its sole discretion, shall have
the right to terminate this Agreement by notice to Seller within
thirty (30) days after such notice by Seller to Purchaser, in
which event Seller and Purchaser shall execute and deliver a
written termination of this Agreement, and thereupon neither party
shall have any further rights or obligations under this Agreement,
except for the Surviving Obligations. If Purchaser does not timely
exercise its right of termination, any and all proceeds arising out
of such damage or destruction, if the same be insured, or such
eminent domain or taking, shall be assigned and paid to Purchaser
on the Closing Date. From the date of this Agreement until the
Closing Date, Seller shall keep the Property insured and maintained
to an extent and in a manner not less than exists on the date of
this Agreement, and shall not grant any easement, right of way,
license, leasehold or other interest in or relating to the Property
without Purchaser’s prior written consent, which Purchaser
may withhold in Purchaser’s sole and absolute
discretion. |
| 7. |
Representations of Seller . To induce Purchaser to enter
into this Agreement and purchase the Property, Seller hereby
represents and warrants to Purchaser that: |
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A. |
Seller is the owner of fee title to the Property. |
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B. |
Seller has all requisite power and authority to enter into and
perform the obligations of Seller under this Agreement. |
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C. |
This Agreement has been duly executed and delivered on behalf
of Seller. |
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D. |
To the best of Seller’s knowledge, there is no individual
sewage treatment system on or serving the Property. |
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E. |
To the best of Seller’s knowledge, the Land does not now
contain any underground or above-ground storage tanks and, if any
above-ground or underground tanks previously were located on the
Land, Seller has provided to Purchaser any and all information
available to Seller in connection with the installation, operation
and removal of such tanks. |
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F. |
Seller knows of no wells on the Land. |
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G. |
Seller has made available to Purchaser, or will make available
to Purchaser as and when required by this Agreement, a correct and
complete copy of each Contract and its amendments which will
survive the Closing. |
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H. |
Seller has delivered to Purchaser, or will deliver to Purchaser
as and when required by this Agreement, copies of all environmental
reports and studies relating to the Property which are in
Seller’s possession or control. |
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I. |
No person is entitled to be in possession of all or any part of
the Property pursuant to any lease or other agreement except
pursuant to documents of which copies have been or will be
delivered to Purchaser as and when required by this
Agreement. |
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J. |
Seller has not entered into any other contract for the sale of
the Property which is still in effect, and has not granted any
right of first refusal or option to purchase the Property that is
still in effect and could prevent the consummation of the
transaction contemplated by this Agreement. |
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K. |
Seller is not a “foreign person”, “foreign
partnership”, “foreign trust” or |
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