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HomeMy WebLinkAboutRESOLUTION - 47-21 - 8/17/2021 - Illinois I&L LL, LLC, 1500 E. Higgins, Purchase & Sale AgreementRESOLUTION NO.47-21 A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A PURCHASE AND SALE AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND ILLINOIS I&L LL, LLC (1500 E. HIGGINS ROAD) BE IT RESOLVED by the Mayor and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows: Section 1: That the Mayor be and is hereby authorized to sign the attached documents marked: PURCHASE AND SALE AGREEMENT a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is authorized to attest said documents upon the signature of the Mayor. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: 5 NAYS: 0 ABSENT: 1 PASSED this 17th day of August 2021. APPROVED this 17th day of August 2021. APPROVED: Mayor Craig B. Johnson Village of Elk Grove Village ATTEST: Loretta M. Murphy, Village Clerk 1500 East Higgins Road Elk Grove Village, Illinois PURCHASE AND SALE AGREEMENT THIS AGREEMENT made as of the Effective Date by and between ILLINOIS I&L LL, LLC, a Delaware limited liability company and THE VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal corporation; BackLyround A. Seller owns the Property; B. Subject to the terns and conditions hereinafter specified, Purchaser desires to purchase, and Seller desires to sell, the Property; NOW, THEREFORE, in consideration of the premises, and the mutual covenants herein contained and for other valuable consideration, each to the other given and obtained, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Terms 1. Preamble, Exhibits, Definitions. The preamble hereto and the Exhibits are a part of this Agreement. Capitalized words or phrases used in this Agreement shall have the meanings ascribed to them herein. 2. Purchase and Sale Agreement; Price. Subject to the terns and conditions hereinafter specified, Purchaser agrees to purchase, and Seller agrees to sell, the Property for the Price, subject to the adjustments thereto specified in Paragraph 14 hereof. 3. Escrow. Concurrently with the execution of this Agreement, the parties hereto, through their respective counsel, shall establish the Escrow. 4. Earnest Money. Within three (3) business days after the Effective Date, Purchaser shall deposit with Escrowee the Initial Earnest Money, which will be non-refundable to Purchaser but applied to the Price at Closing. Within three (3) business days after the Diligence Date, Purchaser shall deposit the Additional Earnest Money. The Earnest Money shall be held in the Escrow and disbursed in accordance with the provisions of this Agreement. 5. Purchaser Investigations and Elections. Subject to the Leases and all limitations hereinafter specified, Purchaser shall have the right through the Diligence Date and thereafter to the Closing Date, so long as Purchaser has not terminated this Agreement prior to Closing in accordance with this Paragraph 5 or any other provision herein affording Purchaser such rights, to make such investigations and evaluations of the Property as Purchaser deems necessary or desirable. In connection with such investigations: (a) Upon reasonable notice to Seller, Seller shall permit the Property Consultants access to and entry upon the Property to inspect and evaluate the condition of the Property and the feasibility of the transactions described herein. Prior to engaging in activities affecting the physical condition of the Property, Purchaser shall deliver to Seller evidence, in form and substance reasonably satisfactory to Seller, that Purchaser and each Property Consultant engaged by it and entering on the Property to perform such activities are covered by adequate commercial general liability insurance, statutory worker's compensation insurance and automotive liability insurance. Notwithstanding the foregoing, Purchaser shall not conduct any invasive testing (including "Phase II" testing) unless it shall receive the prior approval of the Seller, which approval may be withheld by Seller in Seller's sole discretion. Purchaser shall indemnify and hold Seller harmless from any cost, damage, liability or expense resulting from any injury to any person or damage to or loss of any part of the Property arising from Purchaser's or any Property Consultant's activities with respect to any such investigations or tests made by Purchaser or such Property Consultant. If this Agreement is terminated, the terms of this paragraph shall survive the termination of this Agreement. (b) Purchaser shall cause the information disclosed to or acquired by it or its Property Consultants in connection with the inspections and reviews described in this paragraph or otherwise provided by Seller pursuant to any other paragraph of this Agreement, including the Property Documents (the "Inspection Materials"), to the extent such information is not a matter of public knowledge or readily available to the public, to be held in confidence and not disclosed prior to the Closing Date to any party other than as may be (i) reasonably required in connection with Purchaser investigating and evaluating the Property, or (ii) required by applicable law (provided that Purchaser gives Seller notice prior to disclosing pursuant to this subsection (ii) in order to allow Seller to obtain protective orders). All Inspection Materials shall be used solely for the purpose of determining whether or not the Property is suitable for Purchaser's purpose and for no other reason. Purchaser will indemnify, defend and hold Seller harmless from and against any and all loss, liability, cost, damage or expense Seller may suffer or incur as a result of the disclosure of any Inspection Materials to any individual or entity in violation of this Agreement (whether by Purchaser or Property Consultants). If Purchaser shall elect to terminate this Agreement pursuant to the terms of this Agreement or if the Closing shall fail to take place for any other reason whatsoever, Purchaser will, promptly following Seller's request therefore, destroy or return to Seller all Inspection Materials in the possession of Purchaser or any Property Consultant. In the event of a breach or threatened breach by Purchaser or any Property Consultant of this paragraph, Seller shall be entitled to an injunction restraining Purchaser or its Property Consultant from disclosing, in whole or in part, any Inspection Materials. Nothing herein shall be construed as prohibiting Seller from pursuing any other available remedy at law or in equity for such breach or threatened breach. If this Agreement is terminated, the terms of this paragraph shall survive the termination of this Agreement. In the event that Purchaser shall enter into to any confidentiality agreement with any tenant of the Property after the Effective Date, then Purchaser shall be bound by the terms thereof in addition to the terms of this Agreement. (c) Purchaser understands and agrees that any on -site inspections or testing of the Property shall be conducted upon at least twenty-four (24) hours' prior notice to Seller and (if Seller elects) Seller may be present for any such inspections. Notice of inspections can be provided via electronic mail. Purchaser shall and shall cause each Property Consultant to comply with all applicable laws pertaining to the access and use 2 rights granted hereunder with respect to the Property. Purchaser agrees to restore the Property to substantially the same condition existing immediately prior to Purchaser's inspection thereof in the event of any physical damage caused by Purchaser or Property Consultants. All inspections and testing shall be conducted so as not to interfere unreasonably with use of any Property by any tenants under Leases. Purchaser shall not contact any tenant (whether at the subject Property or through other means) or conduct any tenant interviews without the prior notice to Seller. Seller shall have the right to have a representative present, at all times, during any tenant meeting. Purchaser shall not contact any governmental authority without first obtaining the prior written consent of Seller (excluding contact in connection with the preparation of a standard zoning compliance report). (d) At Closing, Purchaser agrees to fund $1,250,000 (the "Relocation Amount") to relocate Sumitomo (SHI) Cryogenics of America, Inc. ("Sumitomo"), a tenant under a Lease, to another building not located on the Property; at Closing and as directed by Seller, Purchaser shall wire the Relocation Amount directly to the owner of the building to which Sumitomo is being relocated. Seller covenants and agrees that Sumitomo shall vacate the Property no later than April 1, 2022. This subsection shall survive Closing. Purchaser shall have the right through the Diligence Date to terminate this Agreement, if Purchaser, in its sole and exclusive discretion, is not satisfied with the results of such inspection, by giving Seller Notice of the exercise by Purchaser of its right to so terminate prior to 5:00 p.m. (Chicago time) on the Diligence Date. Unless Purchaser notifies Seller in the manner herein specified on or prior to the Diligence Date, of Purchaser's election to terminate this Agreement, Purchaser shall be deemed conclusively to have elected to waive its right to terminate this Agreement pursuant to this Paragraph 5. If Purchaser does so exercise its right to terminate this Agreement on or prior to the Diligence Date, the Earnest Money shall be released to Seller within five (5) days thereafter, and this Agreement shall terminate and be of no further force or effect, except as otherwise specified herein. 6. Title and Survey Matters. Seller shall convey to Purchaser or Purchaser's Grantee, if any, by a recordable special warranty deed (the "Deed"), fee simple title to the Real Property and such other estates, if any, as comprise the Appurtenances, subject only to the Permitted Title Exceptions (including those Title Matters to which Purchaser has objected in accordance with this paragraph, unless Seller has elected to cure the same or cause the same to be insured over). At least fifteen (15) days prior to the Diligence Date, Seller shall deliver to Purchaser: (i) the Title Commitment; (ii) a legible and complete copy of each of the instruments and documents referred to in the Title Commitment and (iii) the Survey. Purchaser may, at Purchaser's expense, obtain an update of the Survey. At least ten (10) days prior to the Diligence Date (the "Objection Deadline"), Purchaser shall give Notice to Seller of Title Matters and Survey Matters. Unless Purchaser notifies Seller of Title Matters and Survey Matters by the Objection Deadline, Purchaser will be deemed conclusively to have identified no Title Matters or Survey Matters, and Purchaser shall accept title to the Property at Closing in the form described above in this paragraph, subject only to Permitted Title Exceptions. Seller may, but shall not be obligated to, cure each Title Matter or Survey Matter by taking such action as will induce the Title Insurer to eliminate such Title Matter or Survey Matter from the Title Commitment and/or 3 may induce the surveyor providing the Survey to amend the same to show the absence of any such Title Matter or Survey Matter, and if not curable, may, but shall not be obligated to, cause the Title Company to insure against loss or damage resulting therefrom, pursuant to an endorsement in form and substance reasonably acceptable to Purchaser. At least five (5) days prior to the Diligence Date (the "Response Deadline"), Seller may give Purchaser Notice of those Title Matters or Survey Matters which Seller is unable or unwilling to cure in the manner aforesaid or for which Seller is unable or unwilling to obtain one or more of the title insurance endorsements described above. If Seller does not so notify Purchaser by the Response Deadline that a Title Matter or Survey Matter cannot be cured or insured over or that Seller is unwilling to cure or cause such Title Matter or Survey Matter to be insured over, Seller shall be deemed to have elected not to cure or cause such Title Matter or Survey Matter to be insured over. If Purchaser does not terminate this Agreement in accordance with Paragraph 5 hereof, Title Matters and Survey Matters which Seller is not obligated to cause to be waived, cured or insured over prior to Closing shall be deemed added to and made a part of the Permitted Title Exceptions. 7. Representations and Warranties of Seller. To induce Purchaser to execute, deliver and perform its obligations under this Agreement, Seller hereby represents and warrants to Purchaser on and as of the date hereof as follows: (a) Seller is a limited liability company, duly organized, validly existing, and in good standing under the laws of the state of its formation and duly authorized to transact business in and in good standing under the laws of the state where the Property is located. (b) To Seller's knowledge, all information disclosed in each of the Property Documents which have heretofore been delivered to Purchaser was substantially true and correct in all material respects as of the date when delivered and as to such Property Documents to be delivered shall be substantially true and correct in all material respects as of the date when so delivered. (c) Except for Seller and tenants under Leases, there are no persons in possession or occupancy of the Real Property or any part thereof, nor are there any persons who have possessory rights in respect to the Real Property or any part thereof. (d) Seller has full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by Seller pursuant hereto; all required action and approvals therefore have been duly taken and obtained, and the individuals signing this Agreement and all other documents executed pursuant hereto on behalf of Seller are duly authorized to sign the same on Seller's behalf and to bind Seller thereto; and to Seller's knowledge, Seller's execution of and performance under this Agreement shall not constitute a breach of any agreement, understanding, order, judgment or decree, written or oral, to which Seller is a party, or to which any part of the Property may be subject, or by which Seller may be bound, and to Seller's knowledge shall not constitute a violation of any provision of law, state, federal or municipal, statutory or otherwise, to which Seller or the Property is or may become subject; and this 4 Agreement and all documents to be executed pursuant hereto by Seller are and shall be binding upon and enforceable against Seller in accordance with their respective terms. (e) Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations). As used in this Agreement, the phrase "to Seller's knowledge" means with respect to any statement following such phrase that to the date hereof, the actual (and not constructive or imputed) knowledge of Kevin Brennan ("Seller's Representative"), who is the person who would be most knowledgeable about the Property. Notwithstanding the foregoing, Seller's Representative is acting in his capacity as an authorized representative of Seller, and Purchaser hereby waives any right to sue or to seek any judgment or claim against Seller's Representative on an individual basis. If, prior to the Closing Date, any event or change in circumstances occurs, through no fault of Seller, which causes one or more of the foregoing representations and warranties to be no longer true and correct, Seller shall inform Purchaser of such fact within three (3) days after Seller learns of the occurrence of such change in circumstances (but in no event later than the Closing Date). None of the representations and warranties specified in this Paragraph 7 shall survive the Closing. 8. Purchaser's Acknowledgement. Purchaser acknowledges that except as otherwise set forth in this Agreement, the Property is being sold in an "AS IS, WHERE IS" CONDITION AND "WITH ALL FAULTS". Except as expressly set forth in this Agreement, no representations or warranties have been made or are made and no responsibility has been or is assumed by Seller or by any member, officer, person, firm, agent, attorney, or representative acting or purporting to act on behalf of Seller as to the condition or repair of the Property or the value, expense of operation, or income potential thereof or as to any other fact or condition which has or might affect the Property or the condition, repair, value, expense of operation or income potential of the Property or any portion thereof. The parties agree that all understandings and agreements heretofore made between them or their respective agents or representatives are merged in this Agreement, which alone fully and completely express their agreement, and that this Agreement has been entered into after full investigation, or with the parties satisfied with the opportunity afforded for investigation, neither party relying upon any statement or representation by the other unless such statement or representation is specifically embodied in this Agreement. Except as otherwise set forth in this Agreement, Seller makes no representations or warranties as to whether the Property contains asbestos or any hazardous materials or harmful or toxic substances, or pertaining to the extent, location or nature of same, if any. Further, to the extent that Seller has provided to Purchaser information from any inspection, engineering or environmental reports concerning asbestos or any hazardous materials or harmful or toxic substances, Seller makes no representations or warranties with respect to the accuracy or completeness, methodology of preparation or otherwise concerning the contents of such reports. Purchaser acknowledges that Seller has requested that Purchaser inspect the Property fully and carefully and investigate all matters relevant thereto and that Purchaser rely solely upon the results of Purchaser's own inspections or other information obtained or otherwise available to Purchaser, rather than any information that may have been provided by Seller to Purchaser. 5 9. Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller that: (a) Purchaser is duly organized, validly existing, and in good standing under the laws of the state of Illinois and duly authorized to transact business in and in good standing under the laws of the state where the Property is located. (b) Purchaser has full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by Purchaser pursuant hereto; all required action and approvals therefore have been duly taken and obtained, and the individuals signing this Agreement and all other documents executed pursuant hereto on behalf of Purchaser are duly authorized to sign the same on Purchaser's behalf and to bind Purchaser thereto; and Purchaser's execution of and performance under this Agreement shall not constitute a breach of any agreement, understanding, order, judgment or decree, written or oral, to which Purchaser is a party or by which Purchaser may be bound, and shall not constitute a violation of any provision of law, state, federal or municipal, statutory or otherwise, to which Purchaser is or may become subject; and this Agreement and all documents to be executed pursuant hereto by Purchaser are and shall be binding upon and enforceable against Purchaser in accordance with their respective terms. 10. Conditions Precedent to Purchaser's and Seller's Obligations. (a) Purchaser's obligations under this Agreement are subject to the condition precedent that Seller shall have fully and timely performed all material obligations under this Agreement, which condition precedent shall have been satisfied to Purchaser's satisfaction, or otherwise waived in writing by Purchaser (no such waiver shall be presumed or inferred from any action or inaction of Purchaser), which Purchaser shall have the right, but no obligation, to do. In the event the foregoing condition precedent is not satisfied and Purchaser does not expressly elect to waive the same, Purchaser shall have the right to terminate this Agreement by giving Seller Notice of its election to do so on or before the Closing Date whereupon the Escrow shall be terminated, the respective deposits returned within five (5) days thereafter, and except as otherwise specified in Paragraph 7 hereof respecting a breach of warranty for which Seller is responsible, this Agreement shall have no further force or effect, except as otherwise specified herein. (b) Seller's obligations under this Agreement are subject to the conditions precedent that Purchaser shall have fully and timely performed all material obligations under this Agreement, which condition precedent shall have been satisfied to Seller's reasonable satisfaction, or otherwise waived in writing by Seller (no such waiver shall be presumed or inferred from any action or inaction of Seller), which Seller shall have the right, but no obligation, to do. In the event any of the foregoing condition precedent is not satisfied and Seller does not expressly elect to waive the same, Seller shall have the right to terminate this Agreement by giving Purchaser Notice of its election to do so on or before the Closing Date whereupon the Escrow shall be terminated, the Earnest Money promptly shall be delivered to Seller, the respective deposits (other than the Earnest 6 Money, as aforesaid) returned within five (5) days thereafter, and this Agreement shall have no further force or effect, except as otherwise specified herein. 11. Maintenance and Operation of Property Prior to Closing Date. From and after the date hereof to the Closing Date, Seller shall refrain from encumbering any of the Property and, subject to interruptions attributable to causes beyond Seller's reasonable control, shall continue the operations of the Property in compliance with all laws and in substantially the same manner as they currently are being conducted including, but not limited to, providing normal and regular upkeep, maintenance and repairs for the Property, and the services required of Seller under the Leases, and maintaining in force insurance coverage the same as the coverages which currently are in force, subject, however, to the Leases. As long as this Agreement remains in full force, Seller shall (i) not remove any Tangible Personal Property or fixtures except in the normal course of operating the Real Property provided that replacements therefore are made which are equal or better in quality and design as that being replaced, (ii) not create any cloud on title to the Property which is not otherwise a Permitted Title Exception; or (iii) not enter into new Leases after the Diligence Date, without the prior written consent of Purchaser, which shall not be unreasonably withheld. 12. Additional Contracts to be Included. Purchaser shall inform Seller, prior to the Diligence Date, which, if any, of the Service Contracts Purchaser desires to have assigned to it. To the extent assignable, Seller shall assign to Purchaser all of Seller's rights, titles and interests in, to and under any and all such contracts and agreements so designated by Purchaser, and Seller shall use good faith efforts to obtain any and all required consents to the assignments of such contracts and agreements prior to the Closing Date. 13. Closing. (a) Subject to Purchaser's right to terminate this Agreement prior to the Closing, as set forth herein, the Closing shall occur on the Closing Date. (b) On or prior to the Closing Date, Seller will deliver the following to Escrowee: (i) the Deed; (ii) a Bill of Sale of Tangible Personal Property; (iii) Seller's counterpart of all transfer tax declarations for the deed deposited herein by Seller; (iv) duplicate counterparts of the Assignment and Assumption Agreement; (v) a certificate in the form prescribed by the Internal Revenue Service pursuant to Section 1445(b)(4) of the Internal Revenue Code (the "Code") that Seller is not a foreign person as that term is defined in the Code; 7 (vi) Seller's "ALTA Statement" showing no exception to the assurances specified therein except for Permitted Title Exceptions; (vii) a "Gap Undertaking" duly executed on behalf of Seller for the period from the most recent effective date of the Title Commitment and the Closing Date; (viii) the original lessor copy of the Lease with Sumitomo; (ix) the notice to Sumitomo under the Lease of such assignment signed on behalf of Seller; and (x) such other documents as may be reasonably requested by the Title Company to consummate this transaction pursuant to this Agreement. (c) On or prior to the Closing Date, Purchaser will deliver the following to Escrowee: (i) Purchaser's counterpart of all transfer tax declarations for the deed deposited herein by Seller; (ii) duplicate counterparts of the Assignment and Assumption Agreement; (iii) such other documents as may be reasonably requested by the Title Company to consummate this transaction pursuant to this Agreement; and (iv) the balance of the Price, plus or minus prorations and credits or charges as provided herein, in immediately available federal funds. 14. Prorations and Adjustments. Prorations shall be made as of the Closing Date as if Purchaser were in title for the entire Closing Date. The following shall be prorated and adjusted between Seller and Purchaser: (a) Closing Costs. At or prior to the Closing, Seller shall pay (i) the costs of obtaining and/or keeping in force the Title Commitment and the premiums for the Title Policy up to the amount of the Price, (ii) one-half of the charges of Escrowee for administering the Escrow, (iii) all state, county and municipal taxes imposed by law on the transfer of title to the Property, (iv) the amounts required to obtain and record the release of all liens and encumbrances, if any, affecting the Property (unless the same is an Insured Exception) and which Seller is obligated to cause to be released pursuant to Paragraph 6, and (v) the charges of Seller's counsel and other advisors to Seller. Purchaser shall be responsible for paying (i) one-half of the charges of Escrowee for administering the Escrow, (ii) the premiums for title insurance in an amount, if any, exceeding the Price, or required in connection with any loan policy of title insurance issued in connection with this transaction, (iii) the premiums for any title insurance endorsements; (iv) all of the charges of Escrowee for administering any separate money lender's escrow agreement in connection with this transaction, (v) recording costs for 8 recording the deed of conveyance and all mortgage loan documents and (vi) the cost of any update to the Survey. (b) Security Deposits. The amount of all cash security and any other cash tenant deposits for Sumitomo actually held by Seller, and interest due thereon, if any, shall be credited to Purchaser. (c) Contracts. Amounts paid or payable under the Service Contracts assumed by Purchaser shall be prorated. (d) Base Rent. Purchaser will receive a credit at Closing for the prorated amount of all base or fixed rent payable pursuant to the Leases and all Additional Rents (collectively, "Rent") previously paid to, or collected by, Seller and attributable to any period following the Closing Date. Rents are "Delinquent" when they were due prior to the Closing Date, and payment thereof has not been made on or before the Closing Date. Delinquent Rent shall not be prorated at Closing. All Rent collected by Purchaser or Seller from each tenant from and after Closing will be applied as follows: (i) first, to any accrued Rents owing to Purchaser, (ii) second, to Delinquent Rent owed for the month in which the Closing Date occurs (the "Closing Month"), and (iii) third, to Delinquent Rents owing to Seller for the period prior to Closing. Any Rent collected by Purchaser and due Seller will be promptly remitted to Seller. Any Rent collected by Seller and due Purchaser shall be promptly remitted to Purchaser. Purchaser shall use reasonable efforts to collect Delinquent Rents owed to Seller in the ordinary course of its business; provided, however, that Seller hereby retains the right to pursue any tenant under the Leases for any Rent and other sums due Seller for period attributable to Seller's ownership of the Property; and provided further, however, Seller (x) shall be required to notify Purchaser in writing of Seller's intention to commence or pursue any legal proceedings; and (y) shall not be permitted to commence or pursue any legal proceedings against any tenant seeking eviction of such tenant or the termination of the underlying Lease. "Additional Rents" shall mean any and all amounts due from tenants for operating expenses, common area maintenance charges, taxes, shared utility charges, management fees, insurance costs, other comparable expenses and pass -through charges and any other tenant charges that are paid by the tenant(s) to Seller, as landlord, as opposed to charges (e.g. utility) that the tenant(s) pays directly to third parties. The provisions of this subparagraph shall survive the Closing and the delivery of any conveyance documentation. (e) Taxes. Seller shall be responsible for the payment of all real estate taxes and special assessments attributable to the Property and due and payable on or before the Closing Date. At Closing, Seller shall credit Purchaser an amount equal to the real estate taxes which have accrued during the period Seller owned the Property but are not yet due and payable. If such accrued real estate taxes are not yet known, the foregoing credit shall be based upon 100% of the most recently ascertainable tax bill. Whether or not any tenant is responsible for the payment of real estate taxes, after Closing, there shall be no re -proration of real estate taxes, and Purchaser shall have no obligation to return to Seller the aforementioned credit or any portion thereof. 9 (f) Other. Such other items as are customarily prorated in transactions of this nature shall be ratably prorated. (g) Adjustments. In the event any prorations made pursuant hereto shall prove incorrect for any reason whatsoever, or in the event the prorations set forth above are estimated on the most currently available (rather than based on the actual final) bills, either party shall be entitled to an adjustment to correct the same provided that it makes written demand on the other within three (3) months after the Closing Date. The provisions of this subparagraph shall survive Closing. (h) Real Estate Tax Protests. All real estate assessment protests and proceedings that are fled (or otherwise initiated) by Seller prior to the Closing Date and that affect the Property (collectively or individually, a "Protest"), if any, will be prosecuted under Seller's direction and control. In the event of any reduction in the assessed valuation of the Property for the fiscal year in which the Closing occurs (and, if applicable, any future fiscal years elapsing after the Closing Date or fiscal years prior to that in which the Closing occurs), the net amount of any tax savings shall: (a) with respect to fiscal years ending prior to the Closing, be payable to Seller, in their entirety; (b) if the Protest in question results in a tax savings only with respect to the fiscal year in which the Closing shall occur, then after deduction of actual, documented expenses and attorneys' fees incurred by Seller with respect to that particular Protest, such tax savings shall be adjusted between Seller and Purchaser as of the day before the Closing Date; and (c) if the Protest in question results in tax savings applicable to the fiscal year in which Closing occurs, as well as to future fiscal years, then (i) Seller and Purchaser each be responsible for their respective pro rata shares of all expenses and attorneys' fees incurred by Seller to prosecute that particular Protest, which pro rata shares shall be based upon the periods of time that each of Seller and Purchaser own the Property during the period of time to which the reduction in assessed valuation applies; and (ii) the tax savings occurring as a result of that Protest and its related reduction in assessed valuation shall be adjusted between Seller and Purchaser so as to provide Seller with the benefit of the reduction for the period of time immediately preceding the Closing Date and to provide Purchaser with the benefit of the reduction for the period of time from and after the Closing Date. If any reduction in assessment shall be granted for a period that is prior to the Closing occurs and such reduction in assessment takes the form of a credit for taxes payable at or after Closing, Seller shall be entitled to receive a sum equal to such credit when granted. This subparagraph shall survive Closing. 15. Possession. Possession of the Property shall be delivered on the Closing Date free of any occupants or parties claiming any possessory interest therein, other than tenants under Leases. Notwithstanding anything herein to the contrary, in no event will Purchaser be required to take possession of the Property until that certain lease dated December 8, 2015, by and between Seller, as landlord, and Sears, Roebuck and Co., as tenant, has been terminated and the tenant has vacated the Property. 16. Destruction or Damage. If after the Diligence Date and prior to the Closing Date, the Improvements shall be destroyed or damaged in an amount in excess of $500,000.00 by fire, vandalism or other casualty, then Purchaser shall have the right and option to terminate this 10 Agreement by giving Seller Notice to such effect, within the later of (i) twenty (20) days after the date of receipt by Purchaser of Notice from Seller of such fire or other casualty or (ii) five (5) days after the determination of the amount of such damages as provided in this paragraph. Should Purchaser elect to so terminate this Agreement, the Earnest Money shall be returned forthwith to Purchaser within five (5) days after Notice of such election, and thereupon the parties hereto shall be released from any and all further obligations hereunder, except as otherwise specified herein. In the event of fire, vandalism or other casualty causing damage in the amount of $500,000.00 or less, (or more than $500,000.00, if Purchaser does not so elect to terminate), then Purchaser shall not have the right to so terminate this Agreement and in such event shall have the right to participate in the adjustment and settlement of any insurance claim relating to said damage, and at the Closing, Seller shall assign the interest of Seller in and to any insurance proceeds with respect to said damage to Purchaser, and Purchaser shall be given a credit against the Price in an amount equal to the amount deductible under the applicable insurance policies. If the Closing Date is a date prior to the expiration of the time periods specified above, the Closing shall be delayed until Purchaser makes its election within the time periods specified above. 17. Condemnation. Prior to the Closing Date, if any proceeding, judicial, administrative or otherwise, which shall relate to the proposed taking of any portion of the Property by condemnation or eminent domain or any action in the nature of eminent domain, or the taking or closing of any right of access to the Property, is instituted or commenced, Purchaser shall have the right and option to terminate this Agreement by giving Seller Notice to such effect within ten (10) days after actual receipt of Notice from Seller of any such occurrence or occurrences or the day prior to the Closing Date, whichever is earlier. Failure of Purchaser to give such Notice within such time shall be conclusive evidence that Purchaser has waived the option to terminate by reason of the occurrence of which it has received Notice, and Purchaser shall be credited with or be assigned all Seller's right to any proceeds therefrom. Seller hereby agrees to furnish Purchaser Notice in respect to any such proceedings within forty-eight (48) hours of Seller's receipt of any such notification or learning of the institution of such proceedings. Should Purchaser elect to so terminate this Agreement, the Earnest Money shall be returned forthwith to Purchaser within five (5) business days after Notice of such election, and thereupon the parties hereto shall be released from any and all further obligations hereunder, except as otherwise specified herein. If the Closing Date is less than ten (10) days following Purchaser's receipt of such Notice, then the Closing shall be delayed until Purchaser makes such election. Notwithstanding the foregoing, if such proceeding by way of condemnation or eminent domain shall be "insubstantial," Purchaser shall not have the right to terminate this Agreement but shall be credited with or be assigned Seller's right to any proceeds therefrom. An "insubstantial" proceeding shall be one which (i) does not relate to the taking or closing of any right of access to the Property, (ii) affects only the perimeter of the Property and does not involve more than the equivalent of $500,000.00 in value, (iii) does not enable Purchaser's lender to terminate its loan commitment to provide financing for Purchaser's acquisition of the Property, and (iv) does not involve any material relocation of utility facilities serving the Property (providing this latter condition shall be deemed deleted if Seller shall agree to pay any cost of relocation of any of the same and may use such part of the proceeds of the award allocable thereto for such purpose). 18. Remedies for Defaults. If Purchaser defaults hereunder in any material respect prior to the Closing, Seller shall have the right to terminate Seller's obligations hereunder, Purchaser's rights under this Agreement, and whatever interest in the Property is derived hereunder, by giving Notice of such election to Purchaser, in which event Seller shall be paid, and have the right to retain, the Earnest Money, which payment to Seller of the Earnest Money in respect of such default shall be Seller's sole and exclusive remedy therefore (Seller and Purchaser each agreeing that the amount of said Earnest Money to be so paid to Seller under such circumstances is the mutually agreed upon amount of compensation to Seller for making the Property available to Purchaser on the terms and during the pendency of this Agreement, and that the payment thereof will not result in a penalty or forfeiture, and shall be in lieu of any other remedy or damages). If Seller defaults hereunder prior to Closing in any material respect and such default remains uncured five (5) days after Notice thereof from Purchaser to Seller in which the nature of the default is described with particularity, Purchaser may elect, as Purchaser's sole and exclusive remedy, either to: (i) terminate Purchaser's obligations hereunder by giving Notice of such election to Seller, in which event the Earnest Money shall be returned to Purchaser, or (ii) compel Seller to perform its obligations hereunder in accordance with the terms hereof through an action for specific performance, which action must be initiated, if at all, within thirty (30) days of such default. 19. No Assignments; Binding Effect. Neither party shall assign this Agreement without the other party's prior written consent, except that Purchaser may assign its rights hereunder to any entity which will acquire the Property as part of a Section 1031 tax deferred exchange for the benefit of Purchaser pursuant to an exchange agreement with Purchaser, without thereby releasing Purchaser from its obligations hereunder. Any entity to which this Agreement is assigned pursuant to this paragraph shall expressly assume all obligations of the party assigning this Agreement, and the party assigning this Agreement shall not be relieved of its obligations under this Agreement. 20. Real Estate Brokers. Each party represents to the other that it has not engaged the services of, or been assisted by, any real estate broker or sales person in connection with this transaction. If any claims for brokerage commissions or fees are ever made against Seller or Purchaser in connection with this transaction by anyone, all such claims shall be defended and/or paid by the party whose actions or alleged commitments form the basis of such claim, and the party whose actions or commitments form the basis of such claim shall indemnify and hold harmless the other from and against any and all such claims and demands with respect to any brokerage fees or agents' commissions or other compensation asserted by any person, firm or corporation in connection with this contract or the transactions contemplated hereby. 21. Notices. Each Notice shall be in writing and either: (a) hand delivered, (b) sent by overnight courier delivery service, (c) sent by registered or certified mail, postage prepaid, return receipt requested, or (d) sent by electronic mail transmission (provided, however, that in the case of notice by electronic mail, a hard copy is also promptly delivered in the manner described in (a) — (c) above). Notices shall be addressed to the respective parties, as follows: YA If for Seller: ILLINOIS I&L LL, LLC 9450 W. Bryn Mawr, Suite 750 Rosemont, Illinois 60018 Attention: Michael W. Brennan Email: mbrennan@brennanllc.com with a copy to: Brennan Investment Group 9450 W. Bryn Mawr, Suite 750 Rosemont, Illinois 60018 Attention: Samuel Mandarino Email: sandarino@brennanllc.com If for Purchaser: The Village of Elk Grove Village 901 Wellington Avenue Elk Grove Village, IL 60007 Attention: George Knickerbocker, Village Attorney Email: GKnickerbocker@elkgrove.org Each party hereto may, from time to time, change the address or name specified above for it by giving Notice to the other party (or parties, as the case may be) in accordance with this paragraph. 22. Governing Law. This Agreement shall be construed, and the terms hereof shall be enforceable, in accordance with the internal laws (as distinguished from the conflicts of law provisions) of the state where the Property is located, and in the event any legal proceedings are brought in connection with this Agreement, the parties agree that the venue therefore shall be only state and federal courts located in the state where the Property is located, and the courts to which an appeal therefrom may be taken. 23. Expenses of Enforcement. In the event of litigation between the parties with respect to the Property, this Agreement, the performance of their obligations hereunder or the effect of a termination under this Agreement, the losing party shall pay all costs and expenses incurred by the prevailing party in connection with such litigation, including reasonable attorneys' fees. 24. Amendments. Neither this Agreement nor any provisions hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the party against which the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. 25. Non -Business Days. If any date herein set forth for the performance of any obligations by Seller or Purchaser or for the delivery of any instrument or Notice or for the satisfaction of any condition precedent, as herein provided should be on a Saturday, Sunday or legal holiday, the compliance with such obligations or delivery or satisfaction of such condition shall be extended to the next business day following such Saturday, Sunday or legal holiday. As used herein, the term "legal holiday" means any state or federal holiday for which financial institutions or post offices are generally closed in the State of Illinois for observance thereof. 13 26. Construction of Agreement; Entire Agreement. Time is of the essence in the performance of this Agreement. This Agreement shall not be construed more strictly against one party than against the other merely because of the fact that it may have been prepared by counsel for one of the parties, it being recognized that both Seller and Purchaser have contributed substantially and materially to the preparation of this Agreement. The headings of various paragraphs in this Agreement are for convenience only, and are not to be utilized in construing the content or meaning of the substantive provisions hereof. This Agreement supersedes all previous agreements between Seller and Purchaser pertaining to the Property, and this Agreement therefore constitutes the entire agreement and understanding of the parties hereto. 27. Survival of Certain Provisions. The provisions of this Agreement, which by their nature are intended to be performed or be applicable after the Closing, shall not merge in the deed of conveyance and shall survive the Closing (but only for the duration, if any, specified herein), and all other provisions of this Agreement shall have no further force or effect after the Closing. 28. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 29. Tax -Deferred Exchange. If Seller or Purchaser desires to structure the applicable transaction to effect a tax -deferred exchange under Section 1031 of the United States Internal Revenue Code and the regulations promulgated thereunder, as amended, then the other party shall cooperate with the structuring party in such effort provided (a) the structuring party pays all reasonable third party, out-of-pocket costs and expenses incurred by the other party in connection therewith, and (b) no other party incurs any potential liabilities as a result thereof that would not otherwise have been incurred by the other party (e.g., by having to make any warranties under a deed). 30. Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent: (a) "Additional Earnest Money" means One Hundred Thousand and No/100 U.S. Dollars ($100,000.00); (b) "Agreement" means this Purchase and Sale Agreement between Seller and Purchaser; (c) "Appurtenances" mean, collectively, all privileges, rights, easements, hereditaments, and appurtenances belonging to or for the benefit of the Land, including, but not limited to, any streets, alleys, passages, and other rights -of -way included thereon or adjacent thereto (before or after the vacation thereof) and vaults beneath any such streets; (d) "Assignment and Assumption Agreement" means an assignment and assumption agreement between Seller and Purchaser under which Seller assigns to Purchaser all of its rights under the Leases and Service Contracts and Purchaser assumes 14 all obligations of Seller under the Leases and Service Contracts from and after the Closing Date; (e) "Building" means the building constructed on the Land containing approximately 53,462 square feet of rentable space in the aggregate; (f) "Closing" means the consummation of this Agreement; (g) "Closing Date" means the date which is five (5) days after the Diligence Date; (h) "Diligence Date" means the date which is twenty (20) days after the Effective Date, provided that Purchaser may extend the initial Diligence Date by twenty (20) days by Notice to Seller of such extension not later than twenty (20) days following the Effective Date and by delivering the First Extension Earnest Money to Escrowee no later than twenty (20) days after the Effective Date; the First Extension Earnest Money shall be non-refundable to Purchaser, except in the event of the failure of any of Purchaser's closing conditions set forth in Paragraph 9; (i) "Earnest Money" means, collectively, the Initial Earnest Money and the Additional Earnest Money; 0) "Effective Date" means August 18, 2021; (k) "Escrow" means the escrow established with Escrowee pursuant to the Escrow Agreement; (1) "Escrow Agreement" means Escrowee's standard form of Strict Joint Order Escrow Agreement; (m) "Escrowee" means Stewart Title Guaranty Company; (n) "Exhibits" mean, collectively, the exhibits attached to this Agreement; (o) "Extension Earnest Money" means One Hundred Thousand and No/100 U.S. Dollars ($100,000.00); (p) "Improvements" mean, collectively, the Building and all other improvements located on the Land, or fixtures thereto (including all replacements or additions thereto between the Effective Date and the Closing Date) such as, but not limited to, all systems, facilities, fixtures, machinery, equipment and conduits to provide fire protection, security, heat, exhaust, ventilation, air conditioning, electrical power, lighting, plumbing, refrigeration, gas, sewer, water, telephone, and television reception thereto, elevators, canopies, and signs; (q) "Initial Earnest Money" means One Hundred Thousand and No/100 U.S. Dollars ($100,000.00); 15 (r) "Insurable Easement" means each recorded easement for the benefit of the Land; (s) "Insured Exception" means any Title Matter or Survey Matter which the Title Company is willing to insure over on terms acceptable to Seller and Purchaser; (t) "Land" means the fee simple estate in that certain improved parcel of land described on Exhibit A, and commonly known as 1500 East Higgins Road, Elk Grove Village, Illinois; (u) "Leases" mean, collectively, those certain leases which are in force on the date of the Agreement and do not terminate prior to the Closing Date, together with such similar leases as are hereafter executed on behalf of Seller prior to the Closing Date in accordance with the Agreement; (v) "Notice" means each notice, request, demand, approval, consent, election, or other communication permitted or required to be given under this Agreement; (w) "Permitted Title Exceptions" mean, collectively, all title exceptions disclosed in Schedule B-2 to the Title Commitment, other than those which Seller agrees to cause or is obligated to cause to be waived, cured or insured over at or prior to Closing; (x) "Price" means Seven Million and No/100 U.S. Dollars ($7,000,000.00); (y) "Property" means, collectively, all right, title and interest of Seller in and to (i) the Real Property, (ii) the Appurtenances, (iii) the Service Contracts, (iv) the Tangible Personal Property and (v) the Leases, all guarantees by any third parties of tenants' obligations under any Leases, all security deposits and any other deposits held by or on behalf of Seller, and all rents, issues, recoveries of charges, proceeds, and accounts receivable and accruing after the Closing Date (excluding, but not limited to, rent accrued and unpaid prior to the Closing Date); (z) "Property Consultants" mean, collectively, Purchaser and Purchaser's designated representatives, agents, employees, contractors, architects, engineers, and environmental specialists; (aa) "Property Documents" mean, collectively, the documents described in Exhibit B, attached hereto and made a part hereof, to the extent the same are in Seller's possession and control; (bb) "Purchaser" means THE VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal corporation; (cc) "Purchaser's Grantee" means such other grantee as designated by Purchaser in a Notice to Seller given not less than five (5) days prior to the Closing Date; 16 (dd) "Real Property" means, collectively, the Land, the Improvements and every Insurable Easement; (ee) "Seller" means ILLINOIS I&L LL, LLC, a Delaware limited liability company; (ff) "Service Contracts" mean, collectively, all service, maintenance, operating, repair, advertising and other contracts relating to the Real Property, if any, to which Seller is a party; (gg) "Survey" means that certain plat of survey of the Real Property prepared by Chicagoland Survey Company Inc. and dated September 14, 2020; (hh) "Survey Matter" means a matter which is disclosed in the Survey or in any prior survey delivered by Seller and to which Purchaser specifically objects by Notice to Seller; (ii) "Tangible Personal Property" means, collectively, all machinery, equipment, furnishings, signs and other tangible personal property, if any, situated in or upon or used solely in connection with the operation or maintenance of the Real Property and owned by Seller; 0j) "Title Commitment" means a commitment dated after the Effective Date for an extended coverage owner's policy of title insurance (ALTA Form 2006), in the amount of the Price, naming Purchaser as the proposed insured and covering the title to the Real Property and each of the Appurtenances, if any, comprising an Insurable Easement; (kk) "Title Matter" means a matter which is disclosed in the Title Commitment and to which Purchaser specifically objects by Notice to Seller; (11) "Title Insurer" shall mean Stewart Title Guaranty Company; (mm) "Title Policy" means the policy described in the Title Commitment. [NO FURTHER TEXT ON THIS PAGE] 17 IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement as of the Effective Date. PURCHASER: THE VILLAG F ELK G OVE VILLAGE, an Illinois icipal cor ration By: Name: Its: SELLER: ILLINOIS I&L LL, LLC, a Delaware limited liability company By: Name: Its: 18 EXHIBIT A Description of the Land LOT 3 IN REGENT OFFICE CENTER-PHASE11, BEING A SUBDIVISION IN TIIE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 22. TOWNSHIP 41 NORTH, RANGE I 1 AS'1` Ol' `1`1It✓' "I'1 ]11t13111UNC=IP.AL. MERIDIAN, IN COOK: COUNTY, ILI-INOIS. Common Address: 1500 East Higgins Road, Elk Grove Village, Illinois PIN: 08-22-403-015-0000 19 EXHIBIT B Schedule of Property Documents All Leases. All Service Contracts. Existing title commitments and surveys for the Property.