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5. CONTINGENCIES WHICH MUST BE EXERCISED BY WRITTEN NOTICE TO <br />THE EDA ON OR BEFORE 120 DAYS OF THE EFFECTIVE DATE OF THIS <br />AGREEEMENT (THE "CONTINGENCY DATE"): <br />5.1. Buyer's Contingencies. <br />5.1.1. Testing. The Buyer shall have determined that the Buyer is satisfied with the <br />results of, and matters disclosed by, any environmental site assessments <br />(including a Phase I and Phase II if necessary), soil tests, surveys, engineering <br />inspections, hazardous substances and environmental reviews of the Property, <br />all such tests, assessments, inspections and reviews to be obtained at the <br />Buyer's sole cost and expense. <br />a. The Buyer shall pay all costs and expenses of such investigation and <br />testing and shall promptly repair and restore any damage to the <br />Property caused by the Buyer's testing and return the Property to <br />substantially the same condition as existed prior to entry. The Buyer <br />shall indemnify, defend and hold the EDA harmless from any claim <br />for damage to person or property arising from any investigation or <br />inspection of the Property conducted by the Buyer, the Buyer's agents <br />or contractors, including the cost of attorneys' fees. <br />b. Copies of any written reports, studies or test results obtained by the <br />Buyer in connection with the Buyer's inspection of the Property or <br />investigation relating to the Property shall be delivered to the EDA <br />promptly upon receipt of the same at no cost to the EDA. <br />5.1.2. Land Use Approvals. The Buyer shall have obtained, at the Buyer's sole cost <br />and expense, on or before the Contingency Date, all consents, agreements, <br />approvals, easements, licenses and adequate assurances that are legally <br />necessary for the Buyer to use the Property as intended, including, but not <br />limited to, land use approvals from the City of Elk River. <br />5.1.3 Financing. The Buyer shall have obtained suitable financing in a form and <br />amount acceptable to the Buyer in its sole discretion. <br />5.1.4 Tax Increment. The City of Elk River (the "City") shall have approved the <br />establishment of an economic development tax increment financing district <br />after a public hearing and upon satisfaction of all other conditions required by <br />Minnesota Statutes Sections 469.174 through 469.1794 prior to the Closing <br />Date. <br />5.1.5 Development Agreement. The Buyer and the City shall have negotiated, <br />mutually agreed to, and executed, effective not later than the Closing Date, a <br />457530v2 SJS EL185-33 <br />