Loading...
2002-01-31 Purchase and Sale Agreement,4n 31 02 05:06p Darkenwald Inc 763-441 -3751 P.2 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made and cantered into as of the day of 3anuwy 2002 ("Effective Date") by and between Darkenwald Rea. Estate Ltd., a Minnesota corporation, ("Seller") and Wiley Holdings, L.L.C., a Minnesota limited liability company ("Purchaser"). ARTICLE 1 PURCR ASE AND SALE L l Axreement of Purchase and Sale. Seller agrees to sell and uurchaser agrees to buy two (2) parcels of real property: Parcel I consisting of approximately 5.10 acres of land kcated in the City of Albertville, County of Wright, State of Minnesota, as legally described and cross hatched on the preliminary plat attached hereto as BxWbit A ("Parcel i ") and Parcel 2 consisting of approximately 5.32 acres of land located in the City of Albertville, County of Wright, State of Minnesota as lega'.ly described and cross 'hatched on Exhibit R attached hereto ("Parcel 2") ( Parcel 1 and Parcel 2 shall sometimes be referred to as the "Properry'�. The Property is a part of the real property depicted or. Exhibit A ("Development. Sitc"). Purchase- acknowledges and agrees that the Property is not currently a separately subdivided parcel and that the Development Site needs to be further subdivided in accordance with Section 2.6. 1.2 eurchase Price and Manner of PaYment. The pprchasr price for Parcel ; shall be Five and 85/ 100 Dollars (S5,85) per square foot of Parcel I , which consists of approximately 222,156 square feet, which amount is approximately ($1,299,612.60 ). The Purchase Price for Parcel 2 which consist of approxirrate!y 231,729.2 square feet shall be One and 00/100 Dollar ($1.00). The Purchase Price for Parcel 1 and Parcel 2 shall be referred to collectively as the "Purchase Price". The Purchase Price, subject to prorations. and adjustments set forth in tus Agreement, shall be payable in fall at Closing in cash, by wire transfer of immediately available fiends or by a Title Company check to Seller. The amount of the Purchase Price shall be adjusted at Closing in accordance with the actual square footage of the Property as determined in the final survey provided by Seller pursuant to Section 2.2. 1.3 ��Earncst Money. Sd'imultaneous with a execution and delivery of this Agreement, Purchaser shall dgnsit--with1he Title Company the sum of Twenty -Five Thousand and no;100 Dollars - ,325,00t),00)("Earnest Money") in good funds, either by certified bank or cashier's check or by wire `transfer: The Earnest Ivloney shall be nonrefundable except as set forth in this Agreement. The Title Company shall hold the Earnest Money in an interest bearing account pursuant to this Agreement. All interest shall become Earnest Money. ARTICLE II TITLE, SURVEY AND SUBDIVISION 2. ► Tie xaminakn. Seller shall, at Its sole cost and expense, cause to be issued and delivered to Purchaser %om sand Title, Inc., 1900 Silver Lake Road, New Brighton, hTN 55112, Attn. Larry Mountain ("Title Company") a current ALTA title i:,surance commitmcnt ("Title Cormnitment") Purchase and Sale Agreamen: Page i �. S �✓ c'�sl (r � � v 9�11 39ld ONI yDr ZFt8 ��ST.�T. CT:TT VOOL7,/Z Z7/ ;,3 Jar+ 31 C2 05:06p Darkerwald Ina 793-441-3751 0.3 covering the Prcperty tiithin Harty (30) days of the Ef#ec ve Date. Purchaser shall pad- the cost Jthe premium of the Title Policy and any endorsements. 22 auJe . Selicr shall employ a reputable surveyor, licensed or registered by the State of Minnesota, to survey the Property and prepare and deliver to Purchaser a survey ( "Survey"). The Survey shaii show the actual square footage of the Propert '. The Survey shbli be delivered ty Purchaser within fory-five, (.45) days of the Effective Date. 2.3 Cgnvevance of Title-, Permitted Excewiom Seller shall convey and transfer title to the Property pursuant to Section .5.2 subject tc the Permitted Exceptions as set forth in Exhibit CC. 2.4 Title Gbiectioas Cure of T tlt e Objections. Purchaser may odject in %ATitLa4 tr any item contained in the Title Currunitment and iu ExIm it C ("Objection" or "Object"). Purchaser shall have fifteen { 15; days after receipt of the Title Commitment to Object. Seller shall provide written notice to Purchaser within five (5) days of Purchaser's Objection if Seller intends to cure. Seller shall have thirty (30) days to cure the Objection ("Cure Period"), during which titre the Closing may take place in escrow or may be extended at the discretion of Seller. If Seller does not cure, Purchaser has five (5) days from the ead of bye Gure Period to term:nate this ASreemenl and receive its Earnest Money. If Purchaser dogs not terminate, the Objection is waived, :2.5 Sup,pkmentai Title E curnbrmo-3. Sel:er may aver into cncwnbrances, daseTk entS ur covenant$ j -Restrictions") that affect the Property on of bef ire the Closing. Purchaser may Ob--i to any Restrictions that materially and adversely affect the use of the Property as contemplated by Purchaser. Purchaser shal l have a period of ter, (1 G i days from receipt of the Restrictions to notify Seller of any Gbiection, which Objection shall be made, cured cr waived asset forth in Section 2-4. ^. ?.b Subdi� ision _ val. Seller shall use r_asonable efforts to secure for suca platting and subdivision app_ovatls as are necessary to subdivide the Development Site so that the Property is a separate platted lot. provided that the completion ofany such subdivision by the Seller, and ttte riling of away plats or replats relating thereto, shall not be required if Purchaser is then in default of thi, Agrcm-L.-m. F Seller does not obmip the subdivision approval necessary to subdivide the Developrr.cnt Site as set forth herein, on or before the Closing Date, either party shall hswe the right to terminate this Agreement by written notice to the other, in which event the Earntest. Money shall be returned to Purchaser and neither party will have any further rights or obligations. Purchaser shalt hold Seller harmless from all rams, costs, expenses or darnagcs, including per-onable attorneys' fees actually incurred, related to the subdivision or failure to subdivide the Development Site as contemplated herein. If, in connection with effort- to obtain the subdivision of the Development Site, Seller is requested by any Severrinentat authority or other third party to enter into any agreements, contracts, easements or other covenants that materially and adversely affect the Property ("New Contract"), Seller shall provide P ar,:haser with a copy of the New Contract. Absent a previous consent or waiver by Purchaser, Purchaser shall have tie right, -within ten (10) days, to Object if the New G,)ntract materially and adversely affects the use of the Property as contemplated by Purchaser. Purchase AnE Sale .ggrerment -• —`---- _—.,-.-� ~—Y1..Y. - Page 3 't] 3evd ONI ��OV 'E•tSZt:ZCTLi 61:TT VOOZ/ZZ/VGA Jan 31 02 05.07p Darkenwald Inc 763-441 -3751 0.4 ARTICLE III rNSPECTION AND CONTINGENCIES 3.1 lit of inspection. From the Effective Date to the Closing Date, Purchaser and its agents shalt have the right to access the Property to make inspections, investigations and testing including, but not limited to, soil tests (`'Investigations") as the Purchaser deems necessary. Durehaser shall pay all costs and expenses of the Investigations. Purchaser shall repair and restore the Property to substantially the sarne condition as existed prior to the Investigations. Purchaser agrees to indemnify and hold Seller and the Property harmless from all claims, costs, expenses or damages, including reasonable attorneys' fees, for damages resulting from the Investigations. This obligation of Purchaser shall sur,,ive Closing or any tertrtination of this Agreement, --/-- 3,2 Puachaser's Coutingencies. The "Contingency Date" is April 200-7. The "Financing Contingency Datc" is March 1. 2002. The obligations of Purchaser under this Agreement are contingent upon :he following: (a) erformancc of Seller's Oblieations. Seller's performance of Seller's obligations under this Agreement on or before the Closing Date. Seller's obligations include: t 1) Seller shall provide all closing documents referenced in Section 5.2. (?) The representations and warranties made by Seller in Section 4 1 shall be tme and correct as of the Closing Date. (b) Testi e. Purchaser has made no Objection to the results of matters di closed by iTS Investigations by the Contingency Date or any Objection has been cured. (c) HaZWgus Substattcu. Purchaser shall determine, by the Contingency Date, that the Property does not contain Hazardous Substances. The term "Hazardous Substances" shall mean any substance regulated, prohibited, restricted, or controlled by any applicabie federal, state, county, or local statutes, laws, regulations, rules, ordinances, or codes relating to environmental matters, and shall include asbestos in any form, petrochemical wastes, PCB's and urea formaldehyde products or any substance or material determined by duly constituted authority to be capable of posing a risk to the iealth and safety of persons. (d) Site Plan• Purchaser shall have received Site Plan approval fora the City of Albertville by the Contingency Date. (e) EirlancinR. Purchaser having received on or before the Fiatmcing Contingency Date, letter of approval from a qualified lending institution. (f) Acc ss. Temporary construction access to Parcel 1 on or before the C1osi.�I; Date. Purchase and Sale Agreement Page I 80 IrIvd '?NI t1Otl 6V8zCz9T/I ET:TT V00, DJ../b0 Jon 31 02 05;09p Darkenwald Inc 783-441--3751 9.5 00-1.. 3. a Purchaser's I:Ugb c .,..q, ion. Seiler agrees that in the cvent the continfeacics Con wined in Section 3.2 (b), (c) and (d) have not been satisfied an or before the Contingency Date or on or before the Closing Date for Section 3.2 (a), Purchaser shall have the right to terminate this Agreement in writing on or before the respective Contingency Date or Closing Date. Upon such termination, the Ear test Money shall be returned to ?urchaser. If Purchaser does not provide a written notice o terrination by the date required above, die contingency shall be deemed satisfied. 3A elier's Ccntin end . the obligations of Seller under this Agreement are contingent upon the acquisition by Seiler of marketable fee simple title to the Property on or before the Closing Date upon terms and conditions acceptable to Seiler in its sole discretion. i Seller's Right of T=jnation. Purchaser agrees that in the event the contingent. contained in Section 3A has not been satisfied on or before the Closing Date, Seller shall have the right to ternurtate tits Agreement by written notice to Purchaser on or before the Closing Date. Upon such termination, Purchaser's sole remedy shall be the return of the )•earnest Money. If Seller acknowledges the satisfaction or Waiver of a contingency by written notice to Purchaser, Seller shaJ 1 no longer have a right to terminate this Agreement. If Seller does not provide a written notice of termination by the Closing Date, the contingency shall be deemed satisfied. ARTICLE 1V REPFil-SENTATIONS.AND WARRANTIES 4.1 Represctttations and Warranties of 5 Wier. Seller represents and warrants to Purchaser: (a) 0_ g ization and Auth_Ority. Seller is a lviinnesota corporation in good standing under the laws of Minnesota, Seller has the requisite power and au;horin, to enter into and perform this Agreement and to transfer the Property under this Agreement. The person signing :his Agreement and Seller's closing documents on behalf of the Seller is authorized to do so. Seller's employer identification number is 41-1955520, (b) Rights of Others to Fmbiise 1'rovert. The Seller has not entered into sny other contracts for the sale of the Property. (c) Proceedings_. There is no action, litigation, investigation, condemnation, eminent domain or proceeding of any kind pending or threatened against the Property to the best of Seller's knowledge. (d) Hazardous Substances. Seller has received no notice tiom any governmental entity or private party that any Hazardous Substances are currently located on the Property )n violation of any environmental law. Seller has no actual knowledge of the use, storage or relmase of any Hazwdous Substances en the Property. Seller has not released any Hazardous Substances on the Property. _ ic) l'itleMKchgse of Ptooe Y. Seller is not the esrrent owner of the Development S itr. Seller holds a valid option to purchase the Development Site. Purchwo and Sale Agreement Page 4 60 39Wd JNI t7OV Z6t8Z6ZSTLT E T :T.T. b00Z/ZZ/t�O Jan 31 02 05:lope ❑arkerwald Inc ?63-441-3751 p.a (f) Liens ns and Encumbak&s. Upon Seller's receipt of the Purcbase Price at Closing, the Property will be free and clear of all liens, security in,4 mts, cnaurnbrances, easements, leases, mortgages, mechanics' liens or other restrictions, except the Permitted Exceptions. (g) ov!;ental ApUQvitls. Seller shall cooperate in all reasonable respects with Purchaser in obtaining governmental approvals. (h) Utilities. Water, sanitary sewer and storm sewer utility lines shall be available to a con.ncetion point within ten (10) feet of the perimeter of the Property on or before Closing, unless otherwise agreed to in writing by the parties. (i) Access Roads. Access roads as depicted on Exhibit A and B shall be completed on or before July 31, 2002. - tJ) � .r, a k-T , A,s 'V .91._i r ?�� oe, The representations and warranties contained in this Section shall be true and correct on the Effective Date and Closing Date. Seller shall indemnify and hold Purchaser harmless from any expenses or damages, including reasonable attorneys' fees, that Purchaser incurs by reason of, or arising cut of, any breach by Seller of any of the above representations and warranties, whether such breach is discovered before or after Closing. This indemnification obligation of Seller shall survive until august 1, 2002. Consummation of this Agreement by Purchaser Aith knowledge of any breach by Seller of the aforesaid representations and warranties shall constitute a waiver or release by ?urchaser of any claim for such breach. 4.2 Rg mcsentations and Warr ties of Purchaser. Purchaser represents and warrants to Sel lcr as follows - (a) QMWzatiori and Authority. purchaser is a limited liability company in good standing under the laws of the State of Minnesota. Purchaser has the requisite power and authority to enter into and perform this Agreement and to acquire the Property irl accordance with this Agreement. M-te person signing this Agreement on behalf of the Purchaser is authorized to do so. Purchaser's tax identification number is (b) lmdomWficatioa for P chsser's InYr;AjSatio& Studies and ErwineerinQ. Purchaser shall promptly pay all charges for investigations. (c) �fflveMM=al ARRrovals. Purchaser shall cooperate in all reasonable respects w:r i Seller in obtaining goverrinv ntal approvals. 9urchase and Sale Agreement Page 5 a 791:1"d ONI VOV Z6VBZCZSTZ-1 T•TT VOOZ/77Ih0 en 31 (72 05:11p Darkrnweld Inc 763-441-3751 p.7 na (d) Elans and Specifications. Prior to tlae Contingency Date, PurchL= shall submit a complete set of plans and specitzcat ons for the improvements to be constracted on the Propcuty t.o Seller for review abd approval. The representations and Nvarmaties contained in this Section shall survive C;losipg and shall be uue and correct on the Effective Date and Closing Dave. Purchaser si1all indemnify and hold Selter harmless from any expenses or damages, including reasonable attorneys' fees, that Seller imurs by reason of or arising out of, any breach by Purchaser of any of &,e above representations and warranties, whether such breach is discovered before or after Closing. This indemnification ohtigation of Purchaser shall survive Closing or any termination of this Agreement. Consu=ation of this A97tement by Seller with knowledge of any breach by Purchaser of the aforesaid representations and warranties shall constitute a waiver or release by Seller of any claim for such breach. ARTICLE V CLOSINU 5.1 Tune and Place. The closing of the purchase and sale transaction contemplated by this Agreement ("Closing") shall occur or, or before May 1, 2002, or upon such other date agreed upon by the parties. 5.2 &�41er's Oblitzations at CIosina. At the Closing, Seiler shall deliver to Purchaser, (i) a wauranry deed in recordable foul free and clear of all encumbrances except the Permitted Exceptions; (d) all corporate authority documentation; (iii) a standard Seller's affidavit; (i v,) an; IRS Designation Agreement; (v) if necessary, a Well Certificate and (vi) all other documents reasoaabi; necessary to consummate the transaction contemplated by this Agreement 5.3 t'urctgr.Objittatiens at Ciosin�. At Ciosing,Purchaser shall. ±,a) Purchase Price Pay to Seller the full amount of the Purchase Price, as increased or decreased by proration, or adjustments set forth in tliis Agreement, in cash, by wire transfer of immediately available fungi. or by a Title Company check. purchaser and Seller agree that the Earnest Money shall be d6vered to Seller at the Closing and applied towards payment of the Purchase Price. (b) Auchor . Deliver to Seller such evidence as Seller's counsel and/or the Title Company may reasonably require as to the authority of the persons executing documents on behalf of Purchaser. (c) IRS Desigm9on Aggeement. Deliver to Seller an agreement designating the Title Company as the "reporting person" for purposes of completing Internal Revenue Form 1099 and, if applicable. Internal Revenue Form 8594. (d) Other Dqcuments. Deliver to Sealer all other documents reasonably necessary to consummate the tr&wction contemplated by this Agreement. Nrchg.9e and Sale Agreement TT 3OVd OH I VDr 7,6b87-CZ9TLT Jan 31 02 05:12p Dmrkenwald Inc 763-441-3751 p.8 5.4 Closirik_Costs. Seller and FutGllaSer agrer to the paytne;lt of costs in connection with the Closing as follows: (a) Closin . On the Closing Date, Seller and Purchaser each will pay one-half (1/2) of any reasonable and customary fees or charges imposed by the Title Company. (b+ Deed Tax. On the Closing Date, Seller shall pay all state deed cax. The Purchaser Shall pay all mortgage registry tax. (c) Reecor i Cots. On or before the Closing Date, Seiler shall pay the cost of reco-ding all doc:urnents necessary to place record title in the condition warranted by Seiler in this Agreement. Purchaser will Pay the cost of rxording the dr-ed can% -eying the Property to Purchaser, (d) Attorneys' Pees. Purcl•.aser and Seller will pay the-tr own attorneys' tees for the transaction contemplated by this Agreement, except as set forth in Section 10.15. (6 Qrher Costs. Purchaser and Seller shall pay any other costs required to be paid by such patty pursuant to this Agreement and shall authorize the Title Company to adj'asi the Purchase Price by such amount. 5.5 Escrow Closing/cl(c sing_ Instructions. Purchaser and/or Seller may Close this transaction by deed and money escrow. Purchaser and/or Seller my require the Title Company to fellow supp:etnenW closing �nstracuons; provided suchelosing instructions do nor. conflict with the closing requirements set forth in this Agreement, or are consented to in writing by the other party. ARTICLE Vl R -.A[, LSTATE TAXES -SPECIAL ASSESSMENTS AND DEVELOPMENT COSTS 6.1 Rea! Estate Tastes an oecial Assessrmn t -,'fin or before the Closing Date, Seller shall pay 3111 general reai estate taxes for tl►e Fyruperry due and payable in years prior to the year of Closing. Seller shall also pay, on or before the Closing Date, all deferred taxes for the Property- (including green acre taxes) &ad all special assessments levied against the Property as of the C1o3ing Dote, including, withclut limitation, any installments of special assessments or estimates thereofl and interest thereen payable after the Closing Date. Purchaser- yv_ill -Assume apd pa; all special gssatrtefiis pe>zdaztg---dgai� +t the Pro _in connection __pr� on with the inhasuveture mi p tir emen3 contemplated by this Agreement and the principa]rlaauni here- o� ski 11 be seC=off against the; _3a __ _` . Purchase Price. General re es ale taxes 0[ the Property ue and p—Wzbte-rn the year of Ming shall be apportioned between Purchaser and Seller based on a 365 day calendaryear as if Purchaser were vested with title to the Property on the Closing Date. In the event the actual amount of general real estate taxes or special assessnnertts owed by Seller has not been determined, Seller shall pay the general real estate taxes and special assessments owed by Seller based on an estimate determined by the proper governments! authority. Upon final determination of the actual amount of such general real estate taxes or special assessments, Seller or Purchaser shall immediately pay to the other ee NI VL;ti c-GV8ZHgTC l ET :TT VOKI./ Z/7a Jsn 3.1 02 05.13p tlarkenwald Inc 763--441-3751 0.9 r-- autount necessary to reconcile the estimate with the actual amount. The obligations of Purchaser and Seller contained in this Section shall sur%s Ye Closing or any termination of this Agreetnt ut. ARTICLE VL1 COMMISSIONS 7.1 Bmk eragc Comrmssions. Purchaser and Seller agree ;hst the other party shali not br liable 161 any real estate commissions resulting from a party's actions with respect to :_11e transaction c.n memplated under this Agreement. Purchaser and Seiler agree to indemnify and hold harmlcm the ocher party from any loss, habilimy cost, damage or expense resulting rmm, or relating to, any claim for such commissions or finder's fees. This obligation of Purchaser and Seller shall survive Closing or any termination of this Agreement. ARTICLE VOI EMINENT DO1VL41N 8.1 Eminent main. If eminent domain proceedings are commenced prior to the Clesurg Uate, Seller shall itttrnedia;ely give notice w Purchaser and Purchaser shall have the right, at its option; to terminate this Agreement. If Purchaser gives notice of termination of the Agreement under this Section. the Agreement shall tettninate and he Earnest Money shall be returned to Pv=haser. If Purchaser does not give such notice within flfteen (15) days following Seller's notice, then the parties shall proceed to Closing, with no reduction in the Purchase Price, mid Seller shall assign to Purchaser all of Seller', right, title and interest to aji car in and receive any award from such proceeding. In the event any awuds are Made prior to Closing, Seller shall place suctl awards in escrow with the Title Cocrcpany, which will release such awards to purchaser upon - losing or to Seller upon termination of this Agreement. ARTICLE IX DEFAULT AND REMEDIES 9.1, QtfaLLlt. Purchaser or Seiler shall be in default under this Agreement if either faits to observe, porform cr comply with any term, condition or obligation of this Agreement and such. failure contint:es for a period of ten (10) days after written notice ofthe failure to the Purchaser or Seller horn the other party. 9.2 Remtc'ies. Upon default by a Purchaser or Seiler, the other party O.all have the following rernedle� ,a} p h& is Reme&cs. Upon Seller's default under this Agreement, then the sole remedy available to Purchaser is to terminate this Agreement pursuant to law by 1Aritten notice to Seller and to receive die return of the Earnest Money. (b) Sel ler's R=1dies. Upon Purchaser's default under this Agreement. Mien Seller may I erminate this Agreement pursuant to Iaw by written notice to Purchaser and upon such termination receive the Earnest Moricy. Pcrcha:e Sad Sale pereemant _._. --_•— Page 8 w t 30Vd ONI 5Oti Z6t78Z- 7,ST.L.I E T :TT VOOZ_./ZZ/tO Jan 31 02 05:14p Darkenweld Inc 763-441-3751 0.10 ARTICLE X NOSCEI.LANEOUS 10,1 Suc essors or Ass_ igns. This Agreement shall be binding upon and inure to the benefit ofthe parties, and their respective successors and assigns. 10.2 Scverability. In Lae event any provision of this Agreem=t shall be held to be invalid, unenforceable or in conflict with the law of the .jurisdiiction, the remaining provisions of this Agreement shall continue to be valid, enforceable and not be affected by such holding. 10.3 Waiver. INo terrn or condition of tlus Agreement will be deemed waived or amended unless expressed in writing. The waiver of any condition or the breach of any term will not be a waiver of any subsequent breach of the same or any other term or condition. 10.4 Assitnrnent. Either party may assign its rights under this Agreement before or $fter Lie, Closing. And such assignment will not relieve such assigning party of its obligations under this Agreement. 10.5 '. - otic . Any notice required or permitted pursuant to this Agreement shall be. ut wnting and delivered by (a) personal delivery, (b) reputable overnight delivery service with proof of delivery, (c) United Statca mail, postage prepaid, either certified or first crass mail, or (d) facsimile transmission, All notices shall be sent to aparty at the address set forth, below, or to such other address or pc, -sun as the party shall have designated in writing- Notices shall be deemed given upon the earlier of the date of actual receipt or (i) at the time of delivery if by personal delivery, or (ii) as of the date of first attempted delivery if by overnight delivery or certified mail. If to Seller: Darkenwald Real Estate Ltd, 7535 NE River Road Elk River, MN 55330 Attn: John Darkenwaid With copies to: Morrison & Fenske, P.A. 5125 County Road 101, Suite 102 Minnetonka, Minnesota 55345 Ann: David Penske If to Purchaser: Wiley Moldings, L.L.C. 10.6 Furtb;j Assurrulces. Each parry agrees that it will execute and deliver such other documents a id take such other action as may reasonably be requested by the other party. i'trchase end Sale A�samerR ~~����� Page 9 ONI VOV Z6b8ZEZSTLT ET:TT b00Z/ZZ/b0 Jan 31 02 05;lip Darkamwald Inc 763-441-3751 p,:l 10,7 Third Part _Beneficiaries_ The provisions of this Agreement and of the documents to be. executed and delivered at Closing are for the benofit of Purchaser and Seller only and are aot for the benefit of any third parry. 109 Tednation. If this Agreement is terminated by either Purchaser or Seller puisttant to aright of termination expressly set forth in finis Agreement, neither party shall have any further rigbts or obligations tender this Agreement, except for the obligations concerning the Earnest Money as set north in this Agreement and to the extent any tights or obligations expressly survive such termination. 10.9 Time of Essence. Tim-. is cf the essence of this Agreement. 10.10 Calculation of Time. Periods. Except as specifically set forth in this Agreement, in computing any period of time described in this Agreement, the day of the actor event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is on a Saturday, Sunday or legal holiday, in which event the period shall run untii the end of the next business day following such Saturday, Sunday or legal holiday. 10.1 ; Qov inpLv. This Agreement shall in all respects be interpreted, construed and enforced according to tree laws of the state where the Property is located. 10,11 CQM& erpAi15. This Agreement may be executed separately and indepencently in any nwnber of counterparts and each and all of which togethei shell be deelned to have been executed simultaneously and regarded as one agreement dated the Effective Date. 10.13 Ca ns. The Captions and headings eontaiaed in this Agreement arc tar canveruent reference only and ihail not affect the interpretation of this Agreement. 10.14 Constructipa. Seller and Purchaser and their respective counsel have reviewed and revised :his Agreement. Seller and Purchaser a:.knowledge that the normal rule of construction tc the effect That any ambiguities are to be resolved aga;nst the drafting pertv shall not be emplo;ed in the interpretation of this Agreemment. 10,15 _ ttomey§' Pees and Coss. In the event of litigation arising out of breach or claimed breach of this Agreement. the prev.Wng party shall be entitled to recover from the other party all ca sts and expemes incurred as a result, including art mays' fees and costs. 10.16 Syrvi v_ag. Except to the extent set forth in this Agreement, all of the terms cf this Agreement, including, without limitation, the representations and warranties contained herein, she survive and be enforceable after the Closing and delivery of the ;seed for a period of one (1) year after the Closing Datc. 10.1.7 Facsimile G tries. A facsimile signature on a facsim le copy of this Agreement shall have &,e some force and effect as an anginal and shall bind a party to the terms and conditions hereof, All psrtics shall execute four (4) original copies of the kgmesnent signed by facsimile. t>urchaaa artd Sale AVeeme+sr - J _-- Page 10 5' :3DHd JHT VO'" Z6b8ZEZSTLI E7:TT r.aOz/ZZ/VO ~ Jan 31 02 (IS: 16p Darkenaald Inc ?63-441-3751 p.12 10.18 1'_xhi bits. E&Wbit A is for iatarmatiooal purposes oaiy, and is aot a warranty, representation or agrcctnent that the Property or Development Site will be developed as shown on the exhibit, or that any buildings, common areas or occupants shown on the exhibit will be located within the Development Site. i U. i 9 Entire AgureemenVAMC11daCut. This Agreement ccmtitstes the entire agreementbetween the purtics with respect to the subject matter herein and fully supersede3 all prior written or oral agreements between the parties with respect to such matters. No other agreement, statement or promise made by any party and no amendment, modification or other change of any provision oftlus Agreement shall be effective unless in writing signed by the parties. N WITNESS WHERF.Of, Seller and Purchaser have executed this Krebase and Sale Agreement as of the Effective Date. Dated: Dated: !�urchwe and Sale Agreement 2001. SELLER: Darkeawald Real Estal:e LW., a Minnesota corporation By: Its: PURCHASER: , 2001. Wiley Holdings, LLC Its: _ ...._ .� .�. PAV 1 1 9T 30Vd ONI VOV Z6b8Z£Z9TLT £T:TT b00Z/ZZ/b© 1 02 05:17p Darker,Wald Inc 763-441-3751 p.13 Exhibit A to Purchase and Sale Agreement Proposed Legal Description of Parcel 1 together with x Depiction of Property and Development Site (a depiction of the Pzopetty and Development Site is attached) IM Purchase and Snlc Agreement Subdivision. Page 1" IT 3Eatld ONI Gott Z6b8ZEZSTLT rT:TT. t OZ,'ZZ/r9