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HomeMy WebLinkAbout4.2d First Amendment to PA EDA-Ryan Co. 8-19-22 v31 FIRST AMENDMENT TO PURCHASE AGREEMENT THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this “First Amendment”) 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 Ryan Companies US, Inc., a Minnesota corporation, or its assigns (“Ryan Companies” or “Buyer”). RECITALS Recital No. 1. EDA and Ryan Companies entered into a Purchase Agreement dated February 17, 2022 (“Agreement”), for property described on Exhibit A to the Purchase Agreement. Recital No. 2. Pursuant to the Agreement, the Closing is to occur on or before September 1, 2022, and allows Ryan Companies’ two (2) extensions of 30-days each, with the entire Earnest Money of $50,000 (“Original Earnest Money”) becoming nonrefundable with the exercise of both extensions. Recital No. 3. Ryan Companies has requested an extension of the Closing Date, beyond the two extension periods, to March 3, 2023, due to uncontrollable circumstances. Recital No. 4. The EDA does not object to the extension of the Closing Date, on condition that $35,000 of the Original Earnest Money becomes nonrefundable on September 1, 2022, unless Ryan Companies terminates the Agreement prior to that date and Ryan Companies shall deposit an additional, $20,000 in Earnest Money (“Additional Earnest Money”) with Title within three (3) business days following the Effective Date of this First Amendment, to be held in escrow. If the parties proceed to Closing, the Original Earnest Money and Additional Earnest Money, which totals $70,000, will be applied to the Purchase Price. NOW, THEREFORE, in consideration of the mutual promises and covenants of each to the other contained in this First Amendment and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do covenant and agree as follows: 1. The entire Agreement is hereby incorporated into the First Amendment, except as modified below. 2. Section 1.2 of the Agreement shall be removed and replaced in its entirety as follows: 1.2 Purchase Price. The purchase price to be paid by Ryan Companies to EDA for the Property shall be Three Dollars and 25/100 ($3.25) multiplied by 566,280 square feet as finally determined by the Survey (as defined below) (the “Purchase Price”). The Purchase Price of One Million, Eight Hundred Forty Thousand, Four Hundred Ten and 00/100s Dollars ($1,840,410.00) shall be payable as follows: (a) Fifty Thousand and No/100 Dollars ($50,000.00), as earnest money, already deposited with DCA Title, 7373 147th Street West, Apple Valley, MN 55124 (“Title”), being held in escrow by Title, and Twenty Thousand and 2 00/100s Dollars ($20,000.00) as Additional Earnest Money, to be deposited with Title within three (3) business days following the Effective Date of the First Amendment to Agreement, to be held in escrow by Title (collectively “Earnest Money”) and (b) the balance of the Purchase Price on the Closing Date subject to those adjustments, prorations and credits described in this Agreement, in cash or certified funds or by wire transfer pursuant to instructions from the EDA or Title. On September 1, 2022, Thirty-Five Thousand and 00/100s Dollars ($35,000.00) of the Earnest Money shall become nonrefundable. 3. Section 4 of the Agreement shall be removed and replaced in its entirety as follows: 4. Insurance; Risk of Loss. EDA 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, EDA shall immediately give Ryan Companies written notice of such condemnation, taking or damage. After receipt of written notice of such condemnation, taking or damage (from EDA or otherwise), Ryan Companies shall have the option (to be exercised in writing within sixty (60) days of receipt of such written notice from EDA) either (a) to require EDA to (i) convey the Property at Closing (as defined in Section 6) to Ryan Companies 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 Ryan Companies at Closing all of EDA’s right, title and interest in and to any claims EDA 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 Ryan Companies 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 written notice of such termination to EDA, whereupon this Agreement shall be terminated, the refundable Earnest Money shall be refunded to Ryan Companies 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 sixty (60) day period, such right shall be deemed to have been waived. EDA shall not designate counsel, appear in, or otherwise act with respect to the condemnation proceedings without Ryan Companies’ prior written consent, which consent shall not be unreasonably withheld. 4. The last paragraph of Section 5.1(A) of the Agreement shall be removed and replaced in its entirety as follows: The foregoing contingencies are for Ryan Companies’ sole and exclusive benefit and one (1) or more may be waived in writing by Ryan Companies in its sole discretion. EDA shall reasonably cooperate with Ryan Companies’ efforts to satisfy such contingencies, at no out of pocket cost to EDA or assumption of any obligation or liability by Ryan Companies except as otherwise provided herein. Ryan Companies shall bear all cost and expense of satisfying Ryan Companies’ contingencies. If any of the foregoing contingencies have not been satisfied on or before the applicable date, then this Agreement may be terminated, at Ryan Companies’ option, by written notice from Ryan Companies 3 to EDA. Notwithstanding anything to the contrary herein, if Ryan Companies terminates this Agreement pursuant to this Section, the refundable Earnest Money shall be refunded to Ryan Companies. 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. 5. The last paragraph of Section 5.2 of the Agreement shall be removed and replaced in its entirety as follows: 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 EDA to Ryan Companies. If termination occurs all documents deposited by Ryan Companies shall be immediately returned to Ryan Companies, and all documents deposited by the EDA shall be immediately returned to the EDA 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. If the EDA terminates this Agreement pursuant to this Section, the refundable Earnest Money shall be refunded to Ryan Companies. All the contingencies in this Section 5.2 are specifically for the benefit of the EDA, and the EDA shall have the right to waive any contingency in this Section 5.2 by written notice to Ryan Companies. 6. Section 6 of the Agreement shall be removed in its entirety and replaced with the following: 6. Closing. The closing of the purchase and sale contemplated by this Agreement (the “Closing”) shall occur on or before March 3, 2023 (the “Closing Date”), unless otherwise agreed to by the parties. EDA agrees to deliver legal and actual possession of the Property to Ryan Companies on the Closing Date. 7. The last paragraph of Section 8.2 of the Agreement shall be removed and replaced in its entirety as follows: If Ryan Companies so terminates this Agreement, neither EDA nor Ryan Companies shall be liable to the other for any further obligations under this Agreement (except for such obligations as survive termination of this Agreement) and the refundable Earnest Money shall be refunded to Ryan Companies. 8. Section 13 of the Agreement shall be removed in its entirety and replaced with the following: 13. Default; Remedies. In addition to the rights granted to the parties pursuant to Minn. Stat. Sec. 559.21, if either EDA or Ryan Companies 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 4 the failing party written notice of such election. In the case of any default by Ryan Companies, EDA’s sole and exclusive remedies shall be termination of this Agreement as provided above and, upon any such termination, the Earnest Money shall be forfeited to the EDA as agreed and final liquidated damages. In the case of any default by EDA, Ryan Companies’ sole and exclusive remedies shall be (i) specifically enforce this Agreement, or (ii) terminate this Agreement, in which case the refundable Earnest Money shall be returned to Ryan Companies. In no event shall Ryan Companies be entitled to record a notice of Lis Pendens against the Property, unless Ryan Companies 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. 9. Except as provided for above, the terms and provisions of the Agreement shall remain in full force and effect. 10. This First Amendment and all disputes or controversies arising out of or relating to this First Amendment, or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Minnesota. 11. Nothing contained herein shall be deemed a waiver by the EDA of any governmental immunity defenses, statutory or otherwise. Further, any and all claims brought by Developer or its successors or assigns, shall be subject to any governmental immunity defenses of the EDA and the maximum liability limits provided by Minnesota Statutes, Chapter 466. 12. This First Amendment may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by the parties and delivered to the other parties. 13. This First Amendment shall not be amended, modified or supplemented, except by a written instrument signed by an authorized representative of each party. [remainder of page intentionally blank] 5 IN AGREEMENT, the parties hereto have hereunto set their hands as of the Effective Date. COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY By ________________________________ Myron Bailey Its President By ________________________________ Jennifer Levitt Its Executive Director 6 RYAN COMPANIES US, INC. By: Name: Title: