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HomeMy WebLinkAbout5.2c PA from WAG to EDA 1 PURCHASE AGREEMENT THIS PURCHASE AGREEMENT (this “Agreement”) is entered into as of , 2022 (the “Effective Date”), by and between the Cottage Grove Economic Development Authority, a public body corporate and politic under the laws of Minnesota (“EDA”), and Glendenning Farms, L.P., a Minnesota limited partnership, WAG Farms, Inc., a Minnesota corporation and Joan Glendenning Kennedy Family Limited Partnership, a Minnesota limited partnership (individually and collectively “WAG”). RECITALS Recital No. 1. WAG is the owner of 19 acres of unimproved real property located in Cottage Grove, Washington County, Minnesota, legally described on Exhibit A, attached hereto and incorporated herein by reference (“Property”). Recital No. 2. EDA desires to purchase the Property from WAG and WAG desires to sell the same to EDA, all on the terms and conditions of this Agreement. NOW, THEREFORE, EDA and WAG agree as follows: 1. Sale. 1.1. Sale. Subject to the terms and provisions of this Agreement, WAG shall sell the Property to EDA, and EDA shall purchase the same from WAG. 1.2. Purchase Price. The purchase price to be paid by EDA to WAG for the Property shall be One Dollar and 90/100 ($1.90) multiplied by 835,100 square feet, as determined by the Survey (the “Purchase Price”). There shall be no setoff to the Purchase Price for a loss of square footage of the Property caused by wetland dedication, easement or roadway dedication or the like which may cause a portion of the Property to become unusable for the Proposed Use as herein defined. The Purchase Price of One Million, Five Hundred Eighty-Six Thousand, Six Hundred Ninety and No/100 Dollars ($1,586,690.00) shall be paid on the Closing Date (as defined in Section 6), subject to those adjustments, prorations and credits described in this Agreement, in certified funds or by wire transfer pursuant to instructions from WAG. The Closing will occur at DCA Title, 7373 147th Street West, Apple Valley, MN 55124 (“Title”), unless otherwise agreed to by the parties. 2. Available Surveys, Tests, and Reports. Within ten (10) days of the Effective Date, WAG shall cause to be delivered to EDA, (a) copies of any surveys, soil tests and environmental reports previously conducted on the Property and in the possession of WAG, and (b) copies of existing title work for the Property and in the possession of WAG (the “Due Diligence Materials”). WAG makes no representations or warranties regarding the accuracy of the Due Diligence Materials. 2 3. EDA’s Investigations. For a period up to the Closing Date, WAG shall allow EDA and EDA’s agents or assigns access to the Property without charge and at all times for the purpose of EDA’s investigation and testing of the Property, including surveying and testing of soil and groundwater (“EDA’s Investigations”); provided, however, EDA shall not perform any invasive testing unless (a) WAG gives its prior written approval of EDA’s consultant that will perform the testing, which approval shall not be unreasonably withheld, conditioned or delayed, and (b) EDA gives WAG reasonable prior notice of such testing. WAG shall have the right to accompany EDA during any of EDA’s Investigations of the Property. EDA shall provide to WAG copies of all third- party, non-confidential written test results and reports conducted as part of EDA’s Investigations. EDA agrees to pay all of the costs and expenses associated with EDA’s Investigations, to cause to be released any lien on the Property arising as a result of EDA’s Investigations and to repair and restore, at EDA’s expense, any damage to the Property caused by EDA’s Investigations. EDA shall indemnify and hold WAG and the Property harmless from all costs and liabilities, including, but not limited to, reasonable attorneys’ fees, arising from EDA’s Investigations. The indemnification obligations provided herein shall survive the termination or cancellation of this Agreement. 4. Insurance; Risk of Loss. WAG assumes all risk of destruction, loss or damage to the Property prior to the Closing Date. If, prior to the Closing Date, all or any portion of the Property or access thereto is condemned, taken by eminent domain, or damaged by cause of any nature, WAG shall immediately give EDA notice of such condemnation, taking or damage. After receipt of notice of such condemnation, taking or damage (from WAG or otherwise), EDA shall have the option (to be exercised in writing within thirty (30) days) either (a) to require WAG to (i) convey the Property at Closing (as defined in Section 6) to EDA in its damaged condition, upon and subject to all of the other terms and conditions of this Agreement without reduction of the Purchase Price, (ii) assign to EDA at Closing all of WAG’s right, title and interest in and to any claims WAG may have to insurance proceeds, condemnation awards and/or any causes of action with respect to such condemnation or taking of or damage to the Property or access thereto, and (iii) pay to EDA at Closing by certified or official bank check all payments made prior to the Closing Date under such insurance policies or by such condemning authorities, or (b) to terminate this Agreement by giving notice of such termination to WAG, whereupon this Agreement shall be terminated and thereafter neither party shall have any further obligations or liabilities to the other, except for such obligations as survive termination of this Agreement. If the right to terminate this Agreement is not exercised in writing within such thirty (30) day period, such right shall be deemed to have been waived. WAG shall not designate counsel, appear in, or otherwise act with respect to the condemnation proceedings without EDA’s prior written consent, which consent shall not be unreasonably withheld. 5. Contingencies. 5.1. EDA’s Contingencies. A. Unless waived by EDA in writing, EDA’s obligation to proceed to Closing shall be subject to (a) performance by WAG of its obligations hereunder, (b) the continued accuracy of WAG’s representations and warranties provided in 3 Section 9.1, and (c) EDA’s satisfaction, in EDA’s sole discretion, as to the contingencies described in this Section 5.1 within the time periods set forth below: (1) On or before the Closing Date, EDA shall have determined, in its sole discretion, that it is satisfied with (a) the results of and matters disclosed by EDA’s Investigations, surveys, soil tests, engineering inspections, hazardous substance and environmental reviews of the Property and (b) all other inspections and due diligence regarding the Property, including any Due Diligence Materials. (2) On or before the Closing Date, EDA shall have determined the acceptability of the Property for use as a warehouse and parking lot and other uses related thereto (collectively, the “Proposed Use”). All costs and expenses related to applying for and obtaining any governmental permits and approvals for the Property for the Proposed Use shall be the responsibility of the EDA. (3) On or before the Closing Date, EDA shall have received from Title an irrevocable commitment to issue a title insurance policy for the Property in a form and substance satisfactory to EDA in EDA’s sole discretion, not disclosing any encumbrance not acceptable to EDA in EDA’s sole discretion (the “Approved Commitment”). (4) On or before the Closing Date, EDA shall have received from Title an irrevocable commitment to issue a title insurance policy for the Property in the form of the Approved Commitment, subject only to such changes in title as are Permitted Encumbrances or as are acceptable to EDA in EDA’s sole discretion. (5) On or before the Closing Date, WAG shall have obtained releases of the Property from any and all mortgages or other monetary liens affecting any of the Property. (6) On or before the Closing Date, EDA shall review and approve the books and records in WAG’s possession, if any, including site plans, surveys, engineering or environmental reports associated with the Property. (7) On or before the Closing Date, EDA may obtain and approve an ALTA Survey of the Property. (8) On or before the Closing Date, EDA shall have approved the forms of all closing documents. The foregoing contingencies are for EDA’s sole and exclusive benefit and one (1) or more may be waived in writing by EDA in its sole discretion. WAG 4 shall reasonably cooperate with EDA’s efforts to satisfy such contingencies, at no out of pocket cost to WAG or assumption of any obligation or liability by EDA. EDA shall bear all cost and expense of satisfying EDA’s contingencies. If any of the foregoing contingencies have not been satisfied on or before the applicable date, then this Agreement may be terminated, at EDA’s option, by written notice from EDA to WAG. Such written notice must be given on or before the applicable date, or EDA’s right to terminate this Agreement pursuant to this Section shall be waived. Upon termination, neither party shall have any further rights or obligations against the other regarding this Agreement or the Property, except for such obligations as survive termination of this Agreement. B. If EDA elects not to exercise any of the contingencies set out herein, such election may not be construed as limiting any representations or obligations of WAG set out in this Agreement, including without limitation any indemnity or representations with respect to environmental matters. 5.2. WAG’s Contingencies. WAG’s obligation to proceed to Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions: A. EDA shall have performed and satisfied all agreements, covenants and conditions required pursuant to this Agreement to be performed and satisfied by or prior to the Closing Date. B. All representations and warranties of EDA contained in this Agreement shall be accurate as of the Closing Date. C. There shall be no uncured default by EDA of any of its obligations under this Agreement as of the Closing Date, not otherwise waived by WAG. If any contingency contained in this Section 5.2 has not been satisfied on or before the date described herein, and if no date is specified, then the Closing Date, then this Agreement may be terminated by written notice from the WAG to EDA. If termination occurs all documents deposited by EDA shall be immediately returned to EDA, and all documents deposited by WAG shall be immediately returned to WAG and neither party will have any further rights or obligations with respect to this Agreement or the Property, except for such obligations that survive termination of this Agreement. All the contingencies in this Section 5.2 are specifically for the benefit of WAG, and WAG shall have the right to waive any contingency in this Section 5.2 by written notice to EDA. 6. Closing. The closing of the purchase and sale contemplated by this Agreement (the “Closing”) shall occur on or before August 19, 2022 (the “Closing Date”); provided, however, EDA shall have the right and option to extend the Closing Date for up to two (2) periods of forty- five (45) days each. EDA shall exercise its right and option to extend the Closing Date, if at all, by giving WAG notice of such election on or before the Closing Date, as the same may be extended. WAG agrees to deliver legal and actual possession of the Property to EDA on the 5 Closing Date. 6.1. WAG’s Closing Documents and Deliveries. On the Closing Date, WAG shall execute and/or deliver, as applicable, to EDA the following: A. Warranty Deed. A warranty deed conveying title to the Property to EDA, free and clear of all encumbrances, except the Permitted Encumbrances (the “Deed”). B. FIRPTA Affidavit. An affidavit of WAG certifying that WAG is not a “foreign person”, “foreign partnership”, foreign trust”, “foreign estate” or “disregarded entity” as those terms are defined in Section 1445 of the Internal Revenue Code of 1986, as amended. C. WAG’s Affidavit. A standard owner’s affidavit (ALTA form) from WAG which may be reasonably required by Title to issue an owner’s policy of title insurance with respect to the Property with the so-called “standard exceptions” deleted (excluding the survey exception). D. Bring-Down Certificate. A certificate dated as of the Closing Date, signed by an authorized officer of WAG, certifying that the representations and warranties of WAG contained in this Agreement are true as of the Closing Date. E. Settlement Statement. A settlement statement with respect to this transaction. F. General Deliveries. All other documents reasonably determined by Title to be necessary to transfer the Property to EDA and to evidence that WAG (a) has satisfied all monetary indebtedness with respect thereto, (b) has obtained such termination statements or releases from such secured creditors as may be necessary to ensure that the Property is subject to no monetary liens, (c) has obtained all consents from third parties necessary to effect WAG’s performance of the terms of this Agreement, including, without limitation, the consents of all parties holding an interest in the Property, (d) has provided such other documents as are reasonably determined by Title to be necessary to issue policies of title insurance to EDA with respect to the Property with the so-called “standard exceptions” deleted (excluding the survey exception), and (e) has duly authorized the transactions contemplated hereby. 6.2. EDA Closing Documents and Deliveries. On the Closing Date, EDA shall execute and/or deliver, as applicable, to WAG the following: A. Payment of Purchase Price. The Purchase Price, in accordance with the terms of Section 1.2. 6 B. Settlement Statement. A settlement statement with respect to this transaction. C. FIRPTA Affidavit. An affidavit of EDA certifying that EDA is not a “foreign person”, “foreign partnership”, foreign trust”, “foreign estate” or “disregarded entity” as those terms are defined in Section 1445 of the Internal Revenue Code of 1986, as amended. D. EDA’s Affidavit. A standard owner’s affidavit (ALTA form) from EDA which may be reasonably required by Title to issue an owner’s policy of title insurance with respect to the Property with the so-called “standard exceptions” deleted. E. Bring-Down Certificate. A certificate dated as of the Closing Date, signed by an authorized officer of EDA, certifying that the representations and warranties of EDA contained in this Agreement are true as of the Closing Date. F. General Deliveries. All other documents reasonably determined by Title to be necessary to evidence that EDA has duly authorized the transactions contemplated hereby and evidence the authority of EDA to enter into and perform this Agreement and the documents and instruments required to be executed and delivered by EDA pursuant to this Agreement, or may be required of EDA under applicable law, including any purchaser’s affidavits or revenue or tax certificates or statements. 7. Prorations. WAG and EDA agree to the following prorations and allocation of costs regarding this Agreement: 7.1. Title Evidence, Survey and Closing Fee. EDA shall pay all costs of the Commitment with respect to the Property. EDA shall pay all cost of the Survey, if any. EDA shall pay all premiums for any title insurance policy it desires with respect to the Property. EDA and WAG shall each pay one half (1/2) of any reasonable closing fee or charge imposed by Title. 7.2. Transfer Taxes. EDA shall pay all state deed tax regarding the Deed. 7.3. Recording Costs. EDA will pay all recording costs with respect to the recording of the Deed. 7.4. Real Estate Taxes and Special Assessments. General real estate taxes applicable to any of the Property due and payable in the year of Closing shall be prorated between WAG and EDA on a daily basis as of 12:00 a.m. CT on the Closing Date based upon a calendar fiscal year, with WAG paying those allocable to the period prior to the Closing Date and EDA being responsible for those allocable to the Closing Date and subsequent thereto. WAG shall pay in full all special assessments (and charges in the nature of or in lieu of such assessments) levied, pending, postponed or deferred with respect to 7 any of the Property as of the Closing Date. EDA shall be responsible for any special assessments that are levied or become pending against the Property after the Closing Date, including, without limitation, those related to EDA’s development of the Property. 7.5. Utilities. All utility expenses, including water, fuel, gas, electricity, sewer and other services furnished to or provided for the Property, if any, shall be prorated between WAG and EDA on a daily basis as of the Closing Date, with WAG paying those allocable to the period prior to the Closing Date and EDA being responsible for those allocable to the Closing Date and subsequent thereto. 7.6. ALTA Survey. EDA may obtain and pay for an ALTA Survey (“ALTA Survey”). 7.7. Attorneys’ Fees. WAG and EDA shall each pay its own attorneys’ fees incurred in connection with this transaction. 7.8. Survival. The obligations set forth in this Section 7 survive the Closing. 8. Title Examination. (i) Within ten (10) days following the Effective Date, EDA shall, at EDA’s expense, order a commitment for an owner’s title insurance policy (ALTA Form 2006) issued by Title for the Property, and copies of all encumbrances described in the commitment (the “Commitment”); and, if desired, (ii) within ten (10) days following the Effective Date, EDA shall order, at EDA’s expense, an ALTA-certified survey bearing the legal description of the Property, and showing the area, dimensions and location of the Property (the “Survey” and, together with the Commitment, the “Title Evidence”). 8.1. EDA’s Objections. Within ten (10) days after EDA’s receipt of the last of the Title Evidence, EDA may make written objections (“Objections”) to the form or content of the Title Evidence. The Objections may include without limitation, any easements, restrictions or other matters which may interfere with the Proposed Use of the Property or matters which may be revealed by the Survey. Any matters reflected on the Title Evidence which are not objected to by EDA within such time period or waived by EDA in accordance with Section 8.2(B) shall be deemed to be permitted encumbrances (“Permitted Encumbrances”). Notwithstanding the foregoing, the following items shall be deemed Permitted Encumbrances: (a) Covenants, conditions, restrictions (without effective forfeiture provisions) and declarations of record, if any; (b) Reservation of minerals or mineral rights by the State of Minnesota, if any; (c) Utility and drainage easements which do not interfere with the Proposed Use; and (d) Applicable laws, ordinances, and regulations. EDA shall have the renewed right to object to the Title Evidence as the same may be revised or endorsed from time to time. 8.2. WAG’s Cure. WAG shall be allowed twenty (20) days after the receipt of EDA’s Objections to cure the same but shall have no obligation to do so. If such cure is not completed within said period, or if WAG elects not to cure such Objections, EDA shall have the option to do any of the following: 8 A. Terminate this Agreement with respect to all of the Property. B. Waive one or more of its objections and proceed to Closing. If EDA so terminates this Agreement, neither WAG nor EDA shall be liable to the other for any further obligations under this Agreement (except for such obligations as survive termination of this Agreement). 9. Warranties and Representations. 9.1. By WAG. WAG warrants and represents the following to EDA, and acknowledges that EDA has relied on such representations and warranties in agreeing to enter into this Agreement: A. Glendenning Farms, L.P. is a Minnesota limited partnership and is duly organized and in good standing under the laws of the state of Minnesota and is not in violation of any provisions of its company documents or its operating agreement. B. WAG Farms, Inc. is a Minnesota corporation is duly organized and in good standing under the laws of the state of Minnesota and is not in violation of any provisions of its company documents or its operating agreement. C. Joan Glendenning Kennedy Family Limited Partnership is a Minnesota limited partnership is duly organized and in good standing under the laws of the state of Minnesota and is not in violation of any provisions of its company documents or its operating agreement. D. This Agreement has been duly executed and delivered and constitutes the legal, valid and binding obligation of WAG enforceable in accordance with its terms. WAG has been duly formed under the laws of the State of Minnesota and is in good standing under the laws of the jurisdiction in which the Property is located, is duly qualified to transact business in the jurisdiction in which the Property is located, and has the requisite power and authority to enter into and perform this Agreement and the documents and instruments required to be executed and delivered by WAG pursuant hereto. This Agreement and the documents and instruments required to be executed and delivered by WAG pursuant hereto have each been duly authorized by all necessary action on the part of WAG and such execution, delivery and performance does and will not conflict with or result in a violation of WAG’s organizational agreement or any judgment or order. E. The execution, delivery and performance by WAG of this Agreement will not (a) violate any provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award of any court, governmental agency or arbitrator presently in effect having applicability to WAG, or (b) result in a breach of or constitute a default under any indenture, loan 9 or credit agreement or any other agreement, lease or instrument to which WAG is a party or by which it or any of its properties may be bound. F. To WAG’s knowledge, except as contemplated herein, no order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by, any governmental or public body or authority, or any other entity, is required on the part of WAG to authorize, or is required in connection with, the execution, delivery and performance of, or the legality, validity, binding effect or enforceability of, this Agreement, except for EDA obtaining all the Approvals (as defined below). G. To WAG’s knowledge, there are no actions, suits or proceedings pending or threatened against or affecting WAG or any of its properties, before any court or arbitrator, or any governmental department, board, agency or other instrumentality which in any of the foregoing (a) challenges the legality, validity or enforceability of this Agreement, or (b) if determined adversely to WAG, would have a material adverse effect on the ability of WAG to perform its obligations under this Agreement. H. WAG has not received written notice, and has no knowledge, of (a) any pending or contemplated annexation or condemnation proceedings, or purchase in lieu of the same, affecting or which may affect all or any part of the Property, (b) any proposed or pending proceeding to change or redefine the zoning classification of all or any part of the Property, (c) any proposed changes in any road patterns or grades which would adversely and materially affect access to the roads providing a means of ingress or egress to or from all or any part of the Property, or (d) any uncured violation of any legal requirement, restriction, condition, covenant or agreement affecting all or any part of the Property or the use, operation, maintenance or management of all or any part of the Property. I. To WAG’s knowledge, there are no wells or sewage treatment systems located on any portion of the Property. To WAG’s knowledge, there has been no methamphetamine production on or about any portion of the Property. To WAG’s knowledge, the sewage generated by the Property, if any, goes to a facility permitted by the Minnesota Pollution Control Agency and there is no “individual sewage treatment system” (as defined in Minnesota Statutes § 115.55, Subd. 1(g)) located on the Property. J. WAG is not a “foreign person,” “foreign corporation,” “foreign trust,” “foreign estate” or “disregarded entity” as those terms are defined in Section 1445 of the Internal Revenue Code. K. To WAG’s knowledge, except as may be disclosed as part of the Due Diligence Materials, (i) no condition exists on the Property that may support a claim or cause of action under any Environmental Law (as defined below) and there are no Hazardous Substances (as defined below) on the Property, (ii) there has been 10 no release, spill, leak or other contamination or otherwise onto the Property, and (iii) there are no restrictions, clean ups or remediation plans regarding the Property. To WAG’s knowledge, except as may be disclosed as part of the Due Diligence Materials, there is no buried waste or debris on any portion of the Property. “Environmental Law” shall mean (a) the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. § 9601-9657, as amended, or any similar state law or local ordinance, (b) the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq., (c) the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., (d) the Clean Air Act, 42 U.S.C. § 7401, et seq., (e) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., (f) the Safe Drinking Water Act, 42 U.S.C. § 300(f) et seq., (g) any law or regulation governing aboveground or underground storage tanks, (h) any other federal, state, county, municipal, local or other statute, law, ordinance or regulation, including, without limitation, the Minnesota Environmental Response and Liability Act, Minn. Stat. § 115B.01, et seq., (i) all rules or regulations promulgated under any of the foregoing, and (j) any amendments of the foregoing. “Hazardous Substances” shall mean polychlorinated biphenyls, petroleum, including crude oil or any fraction thereof, petroleum products, heating oil, natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel, and shall include, without limitation, substances defined as “hazardous substances,” “toxic substances,” “hazardous waste,” “pollutants or contaminants” or similar substances under any Environmental Law. L. There are no leases or tenancies with respect to the Property. There are no unrecorded agreements or other contracts of any nature or type relating to, affecting or serving the Property. M. There will be no indebtedness attributable to the Property which will remain unpaid after the Closing Date. As used in this Agreement, the term “to WAG’s knowledge” shall mean and refer to only the current actual knowledge of the designated representative of WAG and shall not be construed to refer to the knowledge of any other partner, officer, manager, member, director, agent, authorized person, employee or representative of WAG, or any affiliate of WAG, or to impose upon such designated representative any duty to investigate the matter to which such actual knowledge or the absence thereof pertains, or to impose upon such designated representative any individual personal liability. As used herein, the term “designated representative” shall refer to William G. Glendenning. The representations, warranties and other provisions of this Section 9.1 shall survive Closing; provided, however, WAG shall have no liability with respect to any breach of a particular representation or warranty if EDA shall fail to notify WAG in writing of such breach within two (2) years after the Closing Date, and provided further that WAG shall have no liability with respect to a breach of the representations and warranties set forth in this Agreement if EDA has actual knowledge of WAG’s breach thereof prior to Closing and EDA consummates the acquisition of the Property as provided herein. 11 EDA acknowledges and agrees that, except as expressly specified in this Section 9 of this Agreement, WAG has not made, and WAG hereby specifically disclaims, any representation, warranty or covenant of any kind, oral or written, expressed or implied, or rising by operation of law, with respect to the Property, including but not limited to, any warranties or representations as to the habitability, merchantability, fitness for a particular purpose, title, zoning, tax consequences, physical or environmental condition, utilities, valuation, governmental approvals, the compliance of the Property with governmental laws, the truth, accuracy or completeness of any information provided by or on behalf of WAG to EDA, or any other matter or item regarding the Property. EDA agrees to accept the Property and acknowledges that the sale of the Property as provided for herein is made by WAG on an “AS IS,” “WHERE IS,” and “WITH ALL FAULTS” basis. EDA is an experienced purchaser of property such as the Property and EDA has made or will make its own independent investigation of the Property. The limitations set forth in this paragraph shall survive the Closing and shall not merge in the deed. 9.2. By EDA. EDA warrants and represents the following to WAG, and acknowledges that WAG has relied on such representations and warranties in agreeing to enter into this Agreement: A. EDA has all requisite authority to enter into this Agreement and to perform all of its obligations under this Agreement. B. The execution, delivery and performance by EDA of this Agreement will not (a) violate any provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award of any court, governmental agency or arbitrator presently in effect having applicability to EDA, (b) violate or contravene any provision of the articles of incorporation or bylaws of EDA, or (c) result in a breach of or constitute a default under any indenture, loan or credit agreement or any other agreement, lease or instrument to which EDA is a party or by which it or any of its properties may be bound. The representations, warranties and other provisions of this Section 9.2 shall survive Closing; provided, however, EDA shall have no liability with respect to any breach of a particular representation or warranty if WAG shall fail to notify EDA in writing of such breach within two (2) years after the Closing Date. 10. Additional Obligations of WAG. 10.1. Licenses and Permits. WAG shall transfer to EDA all transferable rights, if any, in any permits or licenses held by WAG with respect to the Property. WAG shall execute all applicable transfer forms and applications to facilitate and effect any such transfer and to cooperate fully with EDA in its efforts to obtain all of the necessary licenses and permits for the Proposed Use, at no out-of-pocket cost to WAG, or the assumption of any obligations or liabilities by WAG. 12 10.2. Condition of Property at Closing. Prior to Closing, the Property shall be operated in the ordinary course consistent with previous practice. On the Closing Date, WAG shall deliver to EDA exclusive vacant possession of the Property, free and clear of any personal property, surface waste and surface debris of any kind. On or before the Closing Date, WAG shall remove all trash and personal property from the Property. WAG agrees that EDA may dispose of any trash or personal property remaining on the Property as of the Closing Date in EDA’s sole discretion and WAG agrees to pay for all costs and expenses incurred by EDA with respect to the transport and/or disposal of the personal property within ten (10) days after receipt of an invoice from EDA. 10.3. Further Assurances. From and after the Closing Date, WAG agrees to execute, acknowledge and deliver to EDA such other documents or instruments of transfer or conveyance as may be reasonably required to carry out its obligations pursuant to this Agreement. 10.4. Non-Assumption of Contracts or Other Obligations. The parties understand and agree that EDA is only acquiring certain of WAG’s real property assets and that this Agreement and any related agreements shall not be construed to be in any manner whatsoever an assumption by EDA of any agreements, indebtedness, obligations or liabilities of WAG which are owing with respect to the operation of the Property prior to the Closing Date. 10.5. Mortgages. On or before the Closing Date, WAG shall satisfy all mortgage and/or lien indebtedness with respect to all or any portion of the Property and shall obtain recordable releases of the Property from any and all such mortgages or other liens affecting all or any portion of the Property. 10.6. Approvals. EDA or Developer may elect to seek certain approvals in order for EDA to develop the Property for the Proposed Use, including rezoning the Property or receipt of a conditional use permit (the “Approvals”). WAG, at no out-of-pocket cost to WAG, or the assumption of any obligations or liabilities by WAG, will reasonably cooperate with EDA’s efforts to obtain the Approvals at or prior to Closing. WAG hereby grants EDA and Developer the right to file and prosecute applications and petitions for the Approvals and any special use permits and variances desired by EDA; provided, however, any special use permits or variances shall (a) be contingent on the occurrence of the Closing and shall not be binding upon WAG or the Property unless and until the Closing occurs, or (b) be approved in writing in advance by WAG. WAG, at no out-of- pocket cost to WAG, or the assumption of any obligations or liabilities by WAG, agrees to cooperate with EDA in the filing and prosecution of such applications and petitions, including the filing of the same in WAG’s name, if required. 11. Commissions. Each party represents that all negotiations on its behalf relative to this Agreement and the transactions contemplated by this Agreement have been carried on directly between the parties, without the intervention of any party as broker, finder or otherwise, and that there are no claims for brokerage commissions or finders’ fees in connection with the execution of this Agreement. 13 12. Notice. Any notice to be given by one party hereto shall be personally delivered (including messenger delivery) or be sent by registered or certified mail, or by a nationally recognized overnight courier which issues a receipt, in each case postage prepaid, to the other party at the addresses in this Section (or to such other address as may be designated by notice given pursuant to this Section), and shall be deemed given upon personal delivery, three (3) days after the date postmarked or one (1) business day after delivery to such overnight courier. If to EDA: Cottage Grove Economic Development Authority 12800 Ravine Parkway South Cottage Grove MN 55016 Attn: Jennifer Levitt, EDA Executive Director with a copy to: Korine L. Land LeVander, Gillen & Miller, P.A. 633 South Concord Street, Suite 400 South St. Paul, MN 55075 If to WAG: Joan Glendenning Kennedy Family Limited Partnership 7437 Queensland Lane North Maple Grove, MN. 55311-3799 Attn: William S. Kennedy, Jr. Glendenning Farms, L.P. and WAG Farms, Inc. 1941 Ford Parkway #304 St. Paul, MN 55116 Attn: Gordon Glendenning 13. Default; Remedies. If either WAG or EDA fails to perform any of its obligations under this Agreement in accordance with its terms, and such failing party does not cure such failure within thirty (30) days after written notice thereof from the other party (provided that no notice or cure period shall be required for obligations to be performed at Closing), then the other party shall have the right to terminate this Agreement by giving the failing party written notice of such election. In the case of any default by EDA, WAG’s sole and exclusive remedies shall be (i) termination of this Agreement as provided above and, upon any such termination, final liquidated damages shall be forfeited to WAG. In the case of any default by WAG, EDA’s sole and exclusive remedies shall be (i) specifically enforce this Agreement, or (ii) terminate this Agreement, in which case final liquidated damages shall be returned to EDA. In no event shall EDA be entitled to record a notice of Lis Pendens against the Property, unless EDA is pursuing specific performance of this Agreement. In any action or proceeding to enforce this Agreement or any term hereof, the prevailing party shall be entitled to recover its reasonable costs and attorneys’ fees. 14. Cumulative Rights. No right or remedy conferred or reserved to WAG or EDA is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative in and in addition to every other right or remedy existing at law, in equity or by statute, 14 now or hereafter. 15. Entire Agreement; Modification. This written Agreement constitutes the complete agreement between the parties with respect to this transaction and supersedes any prior oral or written agreements between the parties regarding this transaction. There are no verbal agreements that change this Agreement and no waiver of any of its terms will be effective unless in writing executed by the parties. 16. Binding Effect; Survival. This Agreement binds and benefits the parties and their respective successors and assigns. All representations and warranties, and indemnification obligations of the parties hereto shall survive the Closing. 17. EDA’s Assignment. EDA may assign this Agreement without the prior written consent of WAG (but with written notice to WAG). No assignment shall relieve EDA from its obligations under this Agreement. 18. Governing Law. The provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 19. Rules of Interpretation. The words “herein” and “hereof” and words of similar import, without reference to any particular section or subdivision, refer to this Agreement as a whole rather than any particular section or subdivision hereof. References herein to any particular section or subdivision hereof are to the section or subdivision of this Agreement as originally executed. 20. Titles of Sections. Any titles of the sections, or any subsections, of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 21. Counterparts; Facsimiles. This Agreement may be executed in any number of counterparts, and all of the signatures to this Agreement taken together shall constitute one and the same agreement, and any of the parties hereto may execute such agreement by signing any such counterpart. Facsimile or “PDF” signatures on this Agreement shall be treated as originals until the actual original signatures are obtained. 22. Represented by Counsel. Each party has been represented and advised by counsel in the transaction contemplated hereby. 23. Time of the Essence. Time is of the essence of this Agreement. [Remainder of page intentionally blank] 15 IN AGREEMENT, the parties hereto have hereunto set their hands as of the date hereinbefore first written. COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY By ________________________________ Myron Bailey Its President By ________________________________ Jennifer Levitt Its Executive Director 16 WAG FARMS, INC. By:__________________________________ William G. Glendenning Its: President GLENDENNING FARMS, L.P. By:__________________________________ William G. Glendenning Its: General Partner 17 JOAN GLENDENNING KENNEDY FAMILY LIMITED PARTNERSHIP By:____________________________ William S. Kennedy, Jr. Its: General Partner A-1 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Real property in Washington County, Minnesota to be platted and legally described as follows: Lot 1, Block 1, Glengrove Industrial Park 9th Addition Abstract Property [Commitment legal description to govern]