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HomeMy WebLinkAboutRESOLUTION - 36-22 - 7/19/2022 - 800 Higgins Road, Mike & Daves LLC, Sale AgreementRESOLUTION NO.36-22 A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A REAL ESTATE OWNED PURCHASE AND SALE AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND MIKE & DAVES LLC (800 HIGGINS ROAD) NOW, THEREFORE, 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 document marked: REAL ESTATE OWNED 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 document 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 191h day of July 2022. APPROVED this 191h day of July 2022. APPROVED: Mayor Craig B. Johnson Village of Elk Grove Village ATTEST: Loretta M. Murphy, Village Clerk REAL ESTATE OWNED PURCHASE AND SALE AGREEMENT Between Mike & Daves LLC, an Illinois Limited Liability Company ('Sellef') and Village of Elk Grove Village ("Purchaser') 39214423.9 REAL ESTATE OWNED PURCHASE AND SALE AGREEMENT This REAL ESTATE OWNED PURCHASE AND SALE AGREEMENT ("Agreement") dated and effective as of July 19, 2022 (the "Effective Date"), between Mike & Dave LLC, an Illinois Limited Liability Company ("Seller") with its principal place of business at 800 Higgins Road, Elk Grove Village, IL 60007 (08-22-300-009-0000) and the Village of Elk Grove Village, an Illinois municipal corporation ("Purchaser"). WITNESSETH: WHEREAS, Seller is the fee owner of the certain improved real property commonly known as 800 Higgins Road, Elk Grove Village, Illinois, as more particularly described Schedule A attached hereto and made a part hereof (the "Property"), and WHEREAS, Seller desires to sell and Purchaser desires to purchase Seller's right, title and interest in and to the Property. NOW, THEREFORE, for certain good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE I DEFINTI'IONS Section 1.1. Definitions. As used in this Agreement, the following terms have the meanings specified below. "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person. "Closin " has the meaning set forth in Section 6.5. "Coutineency Period" has the meaning set forth in Section 2.4. "_Date of Acceptance" is the date on which the Seller accepts the terms of the Agreement and executes same, such date being the date immediately following Seller's signature on the signature page of this Agreement. "Deed" has the meaning set forth in Section 6.1. "Escrow Agent" shall mean the Rolling Meadows Office of Chicago Title Company located at 1701 Golf Road, Tower 1, Suite 101 in Rolling Meadows, 1L_ "Hazardous Substances" means those substances included within the definitions of any one or more of the terms "hazardous substances," "hazardous materials," "toxic substances," and "hazardous waste" in any federal, state or local law or regulation relating to materials causing a threat to human health or safety or the environment, including CERCLA (42 U.S.C. Section 9601 et sM.), RCRA (42 Page 1 of23 39214423.9 U.S.C. Section 6901 et seg.), the Hazardous Materials Transportation Act (49 U.S.G. Section 1801 et sM.) and the Clean Water Act (13 U.S.C. Section 1321 et sec .). "Person" means an individual, corporation, limited Iiability company, partnership, joint venture, trust or unincorporated organization or a federal, state, city, municipal or foreign government or an agency or political subdivision thereof. "Purchase Price" has the meaning set forth in Section 2.2. "Property" is defined in the recitals above. For avoidance of doubt, "Proper " includes any and all furniture, fixtures, trade goods, appliances, equipment, machinery, goods, owned or leased by Seller and used exclusively for the operation, maintenance, management and occupancy of the Property. "Sale Date" or "Closing Date" means the date on which the Purchase Price for the Property is received by Seller in the form of a wire transfer, such date to be on or before the first (I") day of September, 2022. "Title Company" has the meaning set forth in Section 2.3. Section 1.2. Other Definitional Provisions; Terms of Construction. (a) Accounting terms not otherwise defined in this Agreement have the meanings given to those terms under Generally Accepted Accounting Principles. (b) Defined terms may be used in the singular or the plural, as the context requires. (c) References to Sections, Exhibits, Schedules and like references are to Sections, Exhibits, Schedules and the like of this Agreement unless otherwise expressly provided. (d) The words "include," "includes" and "including" are deemed to be followed by the phrase "without limitation." (e) Unless the context in which it is used otherwise clearly requires, the word "or" has the inclusive meaning represented by the phrase "and/or." (f) Unless the context in which it is used otherwise clearly requires, all references to days, weeks and months mean calendar days, weeks and months. ARTICLE II PURCHASE AND SALE OF THE PROPERTY Section 2.1. Purchase and Sale of the Property. Seller hereby agrees on Sale Date and upon payment by Purchaser of the Purchase Price, to sell, assign, transfer, convey and deliver or cause to be sold, assigned, transferred or conveyed to Purchaser, and Purchaser hereby agrees to purchase from Seller, all of Seller's right, title and interest in and to the Property. Section 2.2. Purchase Price. The purchase price shall be One Million Two Hundred Thousand and 00/100 Dollars ($1,200,000.00) ("Purchase Price"), subject to the adjustments, pro - rations and credits set forth in this Agreement_ Section 2.3. Deposit; Payment. Page 2 of 23 39214423.9 (a) Within two (2) business days of execution of this Agreement, Purchaser shall transfer Fifty Thousand and 00/100 Dollars ($50,000.00) to Escrow Agent by wire transfer in immediately available United States funds to hold as an earnest money deposit ("Deposit"). The Deposit shall be held by the Escrow Agent in a strict joint order escrow for the mutual benefit of the parties pursuant to the terms of a customary strict joint order escrow agreement ("Escrow A eement") in such form used by the Escrow Agent and as approved by both Parties which shall conform to this Section 2.3 and other applicable terms of this Agreement. Seller's attorney shall set up the Escrow Agreement with the Escrow Agent's office located at 1701 Golf Road, Tower I, Suite 101 in Rolling Meadows (the "Title Company")_ The Deposit shall be applied toward the Purchase Price at Closing. Except in the event of a termination of this Agreement by Purchaser as expressly permitted by the terms hereof, the Deposit shall be non-refundable to Purchaser. Any escrow fee charge by the Escrow Agent for holding the Deposit shall be split equally between the parties. (b) The balance of the Purchase Price shall be paid on the Sale Date by wire transfer in immediately available United States funds. Section 2.4. Contineency Period. Purchaser shall have a period of Thirty (30) days following the Date of Acceptance ("Contingency Period") to complete all tests, studies, inspections and investigations (individually and collectively, the "Investigations") of the Property. Purchaser shall have the right at any time before the end of the Contingency Period to cancel this Agreement and receive a full refund of its Initial Deposit. Such notice of cancellation must be in writing and delivered pursuant to the notice provisions of this Agreement. If the Purchaser has not cancelled this Agreement prior to the end of the Contingency Period, the Deposit shall become non-refundable and Escrow Agent, without further instruction or approval by Purchaser or Seller, the terms of this Section 2.4 being deemed due authorization to Escrow Agent, shall deliver said Deposit to Seller upon a default by Purchaser, or applied as credit at Closing to the Purchase Price. Purchaser shall at all times conduct such Investigations as Purchaser's sole risk and in compliance with applicable laws and shall not cause damage, loss, cost or expense to Seller and/or the Property. Seller shall have the right to have a representative present during Purchaser's and its consultants' entry onto the Property. Purchaser may conduct such Investigations as Purchaser deems fit during such times as Seller shall reasonably approve, which approval shall not be unreasonably withheld, and prior written notice to Seller of at least twenty-four (24) hours_ However, Purchaser shall not have the right to conduct any sampling or other invasive testing of the water, soil, air or building improvements on or beneath the Property without Seller's express prior written consent, which consent may be granted or withheld by Seller in its sole discretion. Purchaser shall immediately restore (and in any event, prior to the expiration of the Contingency Period) at Purchaser's sole cost and expense the Property to the same condition that existed immediately prior to such Investigations in the event any damage is caused by Purchaser or Purchaser's agents while on the Property. Purchaser shall insure that any party entering onto the Property for purposes of inspection maintains commercial general liability insurance with coverage amounts of not less than $1,000,000 per occurrence, from an insurer that is licensed and in good standing in the State of Illinois reasonably acceptable to Seller, and in such form as are reasonably acceptable to Seller_ Prior to any such party entering onto the Property, Purchaser shall deliver to Seller a certificate of insurance evidencing that such insurance is in place and naming Seller as an additional insured thereon. Purchaser shall indemnify, defend (with counsel reasonably acceptable to Seller) and hold Seller harmless from and against any loss, cost, liability, claim, or expense Seller may incur resulting either directly or indirectly Page 3 of 23 39214423.9 from any such Investigations. Purchaser shall have until the expiration of the Contingency Period to terminate this Agreement by delivering written notice to Seller resulting from Purchaser's objection to any matter relating to its Investigations in its reasonable discretion. If Purchaser does not deliver a written notice to Seller before the expiration of the Contingency Period terminating this Agreement pursuant to this Section 2.4, then Purchaser is deemed to have waived this inspection contingency and any right to object to the condition of the Property. In no event shall Seller be required to cure any matter to which the Purchaser objects relating to the condition of the Property. If this Agreement is terminated by Purchaser for any reason other than a default by Seller, then, as a condition to the return of the Deposit hereunder, Purchaser shall, within five (5) business days after termination of this Agreement, cause to be delivered to Seller copies of any and all non-proprietary reports, tests, results and analyses in Purchaser's possession or under Purchaser's control, including, but not limited to, all title reports, surveys, environmental reports, geotechnical analyses, and traffic reports, at no cost or expense to Seller. Seller's rights and Purchaser's obligations and liabilities under this Section 2.4 shall survive the Closing or any termination of this Agreement. Purchaser shall not subject the Property to any final change in the current zoning classification or modify the existing land use entitlements and zoning and building permits or approvals governing the Property or the current uses and business operations thereat unless and until the Closing of this transaction has been fully consummated by the parties hereto. Seller shall have the right to review and approve, which approval may be withheld in Seller's sole discretion, all petitions, submittals and applications for any rezoning, special use, building or other land use entitlements and approvals for the Property or the current uses and business operations thereat before being submitted by Purchaser to any applicable governing authorities, as applicable. The provisions of this Section 2.4 shall expressly survive the closing or the earlier termination of this Agreement. Section 2.5. Apportionment. General taxes, prorated as of the Closing Date at the time of Closing, and other similar items ("Costs") shall be credited at 105% of the last ascertainable full year's real estate tax bill, regardless of any change in real estate tax assessment Section 2.6. Title Policy. Purchaser acknowledges and confirms receipt from Seller, prior to the Effective Date, of a commitment to issue a title policy for the Property ("Title Commitment") from the Title Company. SelIer's delivery of a "mark up" owner's title insurance policy for the Property shall be a condition to Closing. Purchaser is solely responsible for obtaining extended coverage over matters of survey and shall be responsible for the cost of all endorsements and title coverage requested by Purchaser or Purchaser's lender other than the base owner's title insurance policy in the amount of the Purchase Price. The following matters shall be deemed "Permitted Exceptions" of title at Closing and Purchaser shall have no right to object to any of said matters on the Title Commitment or any survey: (a) county and municipal subdivision, building, health, and zoning ordinances and agreements entered under them; (b) agreements with any municipality regarding the development of the Property; (c) building and use restrictions and covenants; (d) state, county, local and/or Federal statutes, ordinances, regulations and plat acts, including, but not limited to, all Environmental Laws; (e) easements for the distribution of utility and municipal services; (f) all property taxes, assessments and special assessments; (g) annexation agreements, development agreements, recapture agreements, private agreements and leases pertaining to the Property (if any); (h) such other matters as disclosed by the Title Commitment; (i) the Page 4 of 23 39214423.9 standard or general exceptions contained in the Title Commitment and all matters of public record; 6) acts done or suffered to be done by Purchaser or its affiliates or anyone claiming by, through or under Purchaser or its affiliates; (k) any flood plain areas and wetlands on the Real Estate; and (1) matters of survey which an accurate survey would reveal, including, without limitation, the Existing Survey and/or the New ALTA Survey (as each such term is defined, respectively, in Section 7.2 of this Agreement). Notwithstanding anything to the contrary herein, Seller shall have no obligation to cure any title or survey defects raised by Purchaser and neither shall the same be a condition precedent to Purchaser's obligation to consummate the Closing unless the new matter to which Purchaser so objects as a title or survey objection shall have both: (1) first occurred or arisen after the expiration of the Contingency Period, excluding any matter, if any, which could have been discoverable had Purchaser procured the New ALTA Survey prior to the expiration of the Contingency Period, and (2) been caused solely by the actions or omissions of Seller. Section 2.7 "AS IS" SALE, FOR AVOIDANCE OF DOUBT, AND EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER IN THIS AGREEMENT OR IN THE DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING, IF ANY, PURCHASER EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE CONVEYANCE OF THE PROPERTY SHALL BE MADE BY SELLER TO PURCHASER ON AN "AS IS, WHERE IS" BASIS, AND "WITH ALL FAULTS." EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER IN THIS AGREEMENT OR IN THE DOCUMENTS TO - BE DELIVERED BY SELLER AT CLOSING, IF ANY, PURCHASER ACKNOWLEDGES THAT PURCHASER HAS AGREED TO BUY THE PROPERTY IN ITS PRESENT CONDITION (SUBJECT TO PURCHASER'S RIGHT OF INSPECTION AND REVIEW AS PROVIDED HEREIN) AND THAT PURCHASER IS RELYING SOLELY ON ITS OWN EXAMINATION AND INSPECTIONS OF THE PROPERTY AND NOT ON ANY MATERIALS OR INFORMATION (INCLUDING BUT NOT LIMITED TO ANY REPORTS, INVESTIGATIONS OR ASSESSMENTS) FURNISHED OR STATEMENTS OR REPRESENTATIONS MADE, BY SELLER OR ANY AGENTS OR REPRESENTATIVES OF SELLER PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER IN THIS AGREEMENT OR IN THE DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING, IF ANY, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY OR ANY PORTION THEREOF, OR WITH RESPECT TO THE ECONOMICAL, FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL CONDITION, COMPLIANCE WITH ALL APPLICABLE LAWS, ORDINANCES AND REGULATIONS, OR ANY OTHER ASPECT, OF OR AFFECTING THE PROPERTY. ADDITIONALLY, EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER IN THIS AGREEMENT, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OF IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION (INCLUDING, BUT NOT LIMITED TO, ANY REPORTS, INVESTIGATIONS OR ASSESSMENTS) FURNISHED TO PURCHASER PURSUANT TO THIS AGREEMENT, IF ANY. EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER IN THIS AGREEMENT OR IN THE DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING, IF ANY, SELLER HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY; GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING: (i) THE NATURE AND CONDITION OF THE PROPERTY, THE Page 5 of 23 39214423.9 FIXTURES, OR ANY PART THEREOF, INCLUDING BUT NOT BY WAY OF LIMITATION, AS TO ENVIRONMENTAL CONDITION, PHYSICAL CONDITION, WATER, SOIL OR GEOLOGY, OR THE SUITABILITY THEREOF, FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, OR ANY IMPROVEMENTS PURCHASER MAY ELECT TO CONSTRUCT THEREON, OR ANY INCOME TO BE DERIVED THEREFROM OR EXPENSES TO BE INCURRED WITH RESPECT THERETO, OR ANY OBLIGATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE SAME; Oi) THE ABSENCE OF ASBESTOS OR ANY ENVIRONMENTALLY HAZARDOUS SUBSTANCES ON, IN OR UNDER THE PROPERTY OR ON, IN OR UNDER ANY PROPERTY ADJACENT TO OR ABUTTING THE PROPERTY; (iii) THE MANNER OF CONSTRUCTION OR CONDITION OR STATE OF REPAIR OR LACK OF REPAIR OF ANY RVIPROVEMENTS CONSTITUTING PART OF OR LOCATED WITHIN THE PROPERTY; (iv) THE NATURE OR EXTENT OF ANY EASEMENT, RESTRICTIVE COVENANT, RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER SIMILAR MATTER PERTAINING TO THE PROPERTY, OR PORTION THEREOF; AND (v) THE COMPLIANCE OF THE PROPERTY OR THE OPERATION OF THE PROPERTY OR PORTION THEREOF WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER BODY. THE PROVISIONS OF THIS SECTION 2.7 SHALL SURVIVE THE EXECUTION AND DELIVERY OF THE DEED BY SELLER AND THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. PURCHASER ACKNOWLEDGES AND AGREES THAT IT HAS HAD, OR WILL HAVE HAD AS OF THE SALE DATE, AN ADEQUATE OPPORTUNITY TO CONDUCT ALL SUCH INSPECTIONS AND DUE DILIGENCE ACTIVITIES AS PURCHASER SHALL REQUIRE IN ORDER TO MAKE AN INFORMED AND INDEPENDENT DECISION AS TO WHETHER OR NOT TO PURCHASE THE PROPERTY OR TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT SUBJECT TO THE REPRESENTATIONS AND WARRANTIES OF SELLER AS PROVIDED HEREIN AND IN ANY OTHER DOCUMENT EXECUTED AT CLOSING, IF ANY, ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTIES WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION. PURCHASER ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION WITH RESPECT TO SELLER IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT, THAT PURCHASER FREELY AND FAIRLY AGREED TO THIS ACKNOWLEDGMENT AS PART OF THE NEGOTIATIONS FOR THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT; THAT PURCHASER IS A KNOWLEDGEABLE AND COMMERCIALLY SOPHISTICATED BUSINESS PERSON AND IS REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THIS TRANSACTION. THE PROVISIONS OF THIS SECTION 2.7 SHALL EXPRESSLY SURVIVE THE CLOSING OR EARLIER TERMINATION OF THIS AGREEMENT, Section 2.8 Purchaser's Release. Purchaser on behalf of itself and its successors and assigns forever and irrevocable waives its right to recover from, and forever and irrevocably releases and discharges, Seller, and each of the Seller Parties (as hereinafter defined) from any and all demands, Page 6 oi23 39214.423.9 claims, objections, complaints, legal or administrative proceedings, losses, liabilities, damages, penalties, causes of action, fines, liens, judgments, costs and expenses known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected with the Property (including, without limitation in connection with any conditions (including its physical condition and its compliance with applicable laws, and the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Substances) that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws, regulations or guidelines), valuation, salability or utility of the Property, or its suitability for any purpose whatsoever), except such as arises out of (i) a breach of any of the representations and warranties of Seller set forth in Articles III or IV (as limited and modified by the terms of such Articles, respectively) and (ii) any of the provisions of this Agreement that specifically survive Closing pursuant to the provisions of this Agreement below. As used in this Agreement, "Seller Parties" shall mean Seller's affiliates, investment manager, property manager, partners, trustees, shareholders, members, managers, investors, beneficiaries, directors, officers, employees, attorneys and agents of each of them, and their respective heirs, successors, personal representatives and assigns. The terms and provisions of this Section 1.8 shall survive Closing and/or termination of this Agreement without limitation. ARTICLE III GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER Seller represents and warrants to Purchaser as of the Effective Date: Section 3.1. Due Formation and Good -Standing Seller is duly organized, validly existing and in good standing under the laws of its state of organization. Section 3.2. Authority and Capacity. Seller has all requisite power, authority and capacity to enter into this Agreement and to perform its obligations hereunder. Seller has the right to sell its interest in the Property. The execution and delivery of this Agreement, and any related agreements or instruments and the consummation of the transactions contemplated hereby and thereby, have been duly and validly authorized by all necessary entity action. This Agreement is the binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, receivership, conservatorship, reorganization, fraudulent conveyance or other similar laws relating to or affecting creditor's rights generally and moratorium laws from time to time in effect, and by equitable principles restricting availability of equitable remedies. Section 3.3. Litigation. To Seller's knowledge, there is no litigation, proceeding, claim, demand or governmental investigation pending or threatened, nor is there any order, injunction or decree outstanding against or relating to Seller, which would materially impair the ability of Seller to perform its obligations hereunder_ For purposes of this Section 3.3, the phrase "to Seller's knowledge" means the current, actual knowledge only (without inquiry) and not any implied, imputed or constructive knowledge, of Seller; provided however that nothing in this Agreement shall be deemed to create any personal liability or responsibility on Seller. The representations and warranties of Seller under this Article III shall not survive the Closing and shall merge with the Deed. Page 7 of 23 39214123.9 ARTICLE IV SPECIFIC REPRESENTATIONS AND WARRANTIES AS TO THE PROPERTY With respect to the Property, Seller, to its knowledge, without an independent duty of investigation or inquiry, represents to Purchaser as of the Effective Date, and again as of the Sale Date: Section 4.1. Liens and Encumbrances. The Property is free and clear of all encumbrances and liens except for the following: (a) covenants, conditions and restrictions, rights of way, easements and all other matters of public record as of the Sale Date; (b) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the owner thereof or the use or enjoyment of the Property as determined by Seller in its sole discretion; and (c) the Permitted Exceptions_ Section 4.2. Title. As of the Effective Date, the Property has not been assigned or pledged by Seller, and Seller is the owner of record of the Property. Section 4.3. No Litigation. There is no pending, or to the knowledge of Seller, threatened, claims or litigation involving Seller and/or related to the Property that could materially and adversely affect the value of the Property or Purchaser's right, title or interest in the Property as determined by Seller in its sole discretion. Section 4.4. Leases. Seller does not have any knowledge of any leases related to the Property_ Section 4.5. Code Violations. Seller makes no representation or warranty as to any code violations with respect to the Property or the use, business operations or conduct of any business thereat. The Property is being sold "as is, where is, with all faults". For the purposes of this Article IV, the phase "to Seller's knowledge" or words of similar import or construct means to the current, actual knowledge only (without inquiry) and not any implied, imputed or constructive knowledge, of Mike & Daves LLC; provided however that nothing in this Agreement shall be deemed to create or impose any personal liability on Mike & Dave's LLC. The representations and warranties of Seller under this Article IV shall not survive the Closing and shall merge with the delivery of the Deed. Notwithstanding anything to the contrary contained herein_ Purchaser acknowledges that Purchaser shall not be entitled to rely on any representation or warranty made by Seller in Article HI and/or this Article IV to the extent, prior to or at Closing, Purchaser shall have or obtain actual knowledge of any information that was contradictory to such representation or warranty; provided, however, if Purchaser determines prior to Closing that there is or shall be as of the Closing Date, a breach of any of the representations and warranties made by Seller in Article III and/or this Article IV, or if prior to Closing, Seller should gain such knowledge or such facts should occur which would cause any of the representations and/or warranties set forth in Article III and/or this Article IV to become untrue (and except for those arising out of or from the acts of Purchaser, its contractors or agents), Seller shall so notify Purchaser in writing prior to the Closing Date, and in either event, Purchaser may elect, as its sole remedy in lieu of all others, to either: (x) close the transaction Page 8 of23 39214423.9 contemplated hereby, in which event Purchaser will be conclusively deemed to have accepted the change in condition of such representation or warranty, or (y) terminate this Agreement by giving notice thereof to Seller no later than five (5) business days after the date which is the first to occur whereby: (1) Purchaser determines that there is a breach of any of Seller's representations and/or warranties set forth in Article III and/or this Article IV; or (2) Seller gives the aforesaid notice of change in condition to Purchaser_ Purchaser's failure to timely terminate this Agreement by delivering to Seller written notice thereof in accordance with the provisions of this paragraph shall be deemed Purchaser's election to close the transaction contemplated hereby. Further, Seller shall have no liability with respect to any of the foregoing representations and warranties contained in Article III and/or this Article IV or any representations and warranties made in any other document executed and delivered by Seller to Purchaser, to the extent that, prior to the Closing, Purchaser discovers or learns of information (from whatever source, including, without limitation the property manager, any tenant estoppel certificates, as a result of Purchaser's Investigations of the Property, or disclosure by Seller or Seller's agents and employees) that contradicts any such representations and warranties, or renders any such representations and warranties untrue or incorrect, and Purchaser nevertheless consummates the transaction contemplated by this Agreement. ARTICLE V GENERAL REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser represents and warrants to Seller as of the Effective Date and again as of the Sale Date: Section 5.1. Due Formation and Good Standing. Purchaser is duly organized, validly existing and in good standing under the laws of its state of organization. Section 5.2. Authority and CaRacity. Purchaser has all requisite power, authority, and capacity to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement and any related agreements or instruments and the consummation of the transactions contemplated hereby and thereby, each has been duly and validly authorized by all necessary company action. This Agreement and any related agreements or instruments each constitute a valid and legally binding agreement of Purchaser enforceable in accordance with its terms. Purchaser is solvent and financially able to fulfill its commitments under this Agreement. Section 5.3. No Conflict. None of the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or compliance with its terms and conditions, violates, conflicts with, results in the breach of or constitutes a default under, is prohibited by, or requires any additional approval under any of the terms, conditions or provisions of Purchaser's articles of organization or operating agreement, or any other agreement or instrument to which Purchaser is now a party or by which it is bound, or of any order, judgment or decree of any court or governmental authority applicable to Purchaser. Each representation and warranty made by Purchaser hereunder shall survive the Closing. Page 9 of 23 39214423.9 ARTICLE VI TRANSFER OF INTEREST Section 6.1. Relive of Seller Documents and Other Items. On the Sale Date, Seller shall execute and deliver to Purchaser the following in form and substance required by Seller (collectively, "Seller's Closing Documents"): (a) An original, duly executed Trustee's deed for the Property, in recordable form (the "Deed"), conveying to Purchaser such title of Seiler, as applicable, in and to the Property, together with any documents or forms customarily prepared and executed by a Seller of real property as may be applicable, as part of recording the Deed or payment or assessment of any taxes associated therewith. (b) A title commitment for an owner's title insurance policy issued by the Title Company in the amount of the Purchase Price, covering title to the Property, showing title in the intended grantor subject only to (a) the general exceptions contained in the policy; (b) the Permitted Exceptions set forth above or elsewhere in this Agreement; and (c) title exceptions pertaining to Seller's liens or encumbrances of a definite or ascertainable amount which may be removed by the payment of money at the time of Closing and which the Seller may so remove at that time by using the funds to be paid upon the delivery of the Deed (all of which are herein included as Permitted Exceptions)_ The title commitment shall be conclusive evidence of good title as therein shown as to all matters insured by the policy, subject only to the exceptions as therein stated. (c) A certificate from Seller certifying that it is not a foreign person or foreign corporation as defined in the Internal Revenue Code of 1986, as amended. (d) Evidence reasonably satisfactory to the Purchaser that the Person executing the Deed on behalf of Seller has the full power and authority to do so and that the delivery of such documents has been fully authorized. (e) "Mark Up" owner's title policy pursuant to Section 2.6. (f) Any keys or alarm/lock combinations for the Property which are in Seller's actuai possession. (g) A subordination, non -disturbance and attornment agreement as duly executed by Seller with Purchaser and Purchaser's lender(s), in form and content reasonably acceptable to Seller (the "SNDA'), if Purchaser is financing the acquisition of the Property with loan proceeds from any lender(s). (h) Such other documents as may be required to be provided by Seller pursuant to this Agreement (i) Seller will deliver_ (a) a closing statement and (b) City, State and County Transfer Tax Declarations and the Village of Elk Grove Village Real Estate Transfer Tax Stamp/Exempt Declaration. Page 10 of 23 39214423.9 Section 6.2. Delivery of Purchaser Documents and Other Items. On the Sale Date, Purchaser will execute and/or deliver to Seller or to other applicable parties the following (collectively, "Purchaser's Closing Documents"). - (a) The Purchase Price in accordance with Article II of this Agreement along with a settlement statement and the apportionments agreed upon in the Apportionment Schedule and any other adjustments, pro -rations or credits contemplated by this Agreement ("Final Settlement Statement"). (b) Evidence reasonably satisfactory to the Title Company that the Person executing the Purchaser CIosing Documents on behalf of Purchaser has the full power and authority to do so and that the delivery of such documents has been fully authorized. (c) Such Affidavits of Purchaser or other documents, if any, as may reasonably be required by the Title Company to record Seller's Closing Documents. (d) The SNDA as counter -executed by Purchaser and Purchaser's lender(s), if any, duly executed by Purchaser if Purchaser is financing the acquisition of the Property with any lender(s). (e) Such other documents as may be required to be provided by Purchaser pursuant to this Agreement or as required by the Title Company. (f) Purchaser will deliver: (a) a counter -executed closing statement and (b) counter - executed City, State and County Transfer Tax Declaration(s) and the Village of Elk Grove Village Real Estate Transfer Tax Stamp/Exempt Declaration. Section 6.3. Further Assurances. Each of Seller and Purchaser agrees to take, or cause to be taken, such acts, including execution and delivery of additional documents, instruments and agreements, as may be reasonably necessary or desirable, without cost or expense, to carry out the purposes of this Agreement and to consummate the transaction contemplated hereby. Section 6.4. Expenses; Liabilities. (a) Seller and Purchaser will, except as otherwise specifically provided herein, bear their respective expenses incurred in connection with the preparation, execution and performance of this Agreement and the transactions contemplated hereby, including all fees and expenses of their agents, representatives, counsel and accountants. (b) Purchaser shall pay for the cost of recording the Deed. Except as otherwise provided in this Agreement, escrow fees, fees, costs and expenses for the title search and the Title Commitments charged by the Title Company and other customary closing costs associated with transferring the Property from Seller to Purchaser will be shared equally by the Seller and Purchaser. However, in the event that Purchaser obtains financing for this transaction then Purchaser shall be solely responsible for all closing escrow fees charged by the Title Company and for all lender costs and fees whatsoever in nature, including, but not limited to all "Gap" and "New York Style" closing fees, and the cost of the lender's or lenders' policy(ies) of title insurance and all endorsements required thereunder by such lender(s). The cost of the owner's title insurance policy shall be paid for by the Seller. If no lender financing is utilized by Purchaser then all closing escrow fees charged by the Title Page I 1 of 23 392144219 Company shall be split equally by the parties. The parties acknowledge that as the Purchaser is an Illinois municipal corporation, the conveyance of the Property is exempt from any State, County or local real estate transfer tax. For avoidance of doubt, there is no financing contingency as a condition precedent to or related to Purchaser's obligations and liabilities under this Agreement. (c) Seller shall pay or cause to be paid all charges for water, electricity, gas, trash removal, sewer, telephone and other utility services furnished to or in connection with the Property prior to the Closing. Unless provided otherwise in this Agreement, such other utility or service items which are customarily prorated in a purchase and sale of the type contemplated hereunder shall be prorated as of the Closing Date. For purposes of calculating prorations, Purchaser shall be deemed to be in title to the Property for the entire day upon which the Closing occurs. All such prorations shall be made on the basis of the actual number of days of the year and month which shall have elapsed as of the Closing Date. To the extent not ascertainable at the Closing Date, the amount of such prorations shall be adjusted in cash after Closing, as and when complete and accurate information becomes available. Seller and Purchaser agree to cooperate and use their diligent and good faith efforts to make such adjustments no later than thirty (30) days after the Closing (or after the date complete and accurate information becomes available). Items of income and expense for the period prior to the Closing Date will be for the account of Seller and items of income and expense for the period from and after the Closing Date will be for the account of Purchaser, all as determined by the accrual method of accounting. This provision shall survive Closing. (d) Notwithstanding anything herein to the contrary, Purchaser shall be responsible for the payment of the cost associated with providing an extended coverage endorsement for the owner's policy of title insurance. Any additional title endorsements requested by Purchaser or Purchaser's lender shall be at the Purchaser's expense. Seller is shall pay for the owner's policy of title insurance at the Closing. This provision shall survive Closing. Section 6.5. The Closing. The consummation of the transaction contemplated by this Agreement (the "Closing') by delivery of documents and payments of money shall take place on September 1, 2022 (unless on a date earlier than September 1, 2022, as mutually agreed in writing by Seller and Purchaser), at the offices of the Title Company's office in Rolling Meadows, Illinois, located at I701 Golf Road, Tower 1, Suite 101. This provision shall survive Closing. ARTICLE V11 REMEDIES Section 7.1. Default If before the Closing, Purchaser defaults in the full and timely performance of any of its obligations hereunder, Seller shall be entitled to cancel this Agreement and receive and retain the Initial Deposit deposited hereunder as liquidated damages, the parties agreeing that in the event of a default hereunder before the Closing, actual damages would be impossible to calculate, provided, however, notwithstanding the foregoing or anything contained herein to the contrary, nothing contained in this Section 7.1 shall: (i) limit Seller's rights or remedies with respect to a breach or default by Purchaser after the Closing of a covenant or obligation that survives the Closing; (ii) limit Seller's rights or remedies with respect to a breach or default by Purchaser of a covenant or obligation that survives a termination of this Agreement; (iii) INTENTIONALLY DELETED; or (iv) Iimit Purchaser's indemnification obligations under this Agreement, and Seller shall be entitled to any and all rights and remedies available at law and/or in equity if Purchaser defaults in the full and timely payment and performance of Purchaser's Pagc 12 of 23 39214423.9 indemnification and hold harmless obligations under this Agreement, or any of Purchaser's covenants or obligations that survive the Closing, or any of Purchaser's covenants or obligations that survive the termination of this Agreement. Notwithstanding anything to the contrary herein this Agreement, all remedies and rights of Seller are cumulative and no delay or omission in the exercise of any right or remedy accruing to Seller upon the breach by Purchaser shall impair such right or remedy or be construed as a waiver of any such breach theretofore or thereafter accruing_ If before the Closing Seller breaches any representation or warranty set forth in this Agreement or defaults in the full and timely performance of any of its obligations hereunder, within fifteen (15) business days following Seller's receipt of written notice of default from Purchaser, Purchaser, as its sole and exclusive remedy, in lieu of all others, may elect to terminate this Agreement and receive a refund of the Initial Deposit (in which case the parties shall have no further obligations hereunder except those provisions that expressly survive); provided, however, if Seller's default is due to Seller's sale or attempted sale of the Property to a third parry not arising out of or caused by the default of Purchaser under this Agreement, Purchaser shall be entitled to exercise as its sole and exclusive remedy, in lieu of all others, the remedy of specific performance. Otherwise, Purchaser hereby expressly waives, relinquishes and releases any other right or remedy available to it at law, in equity or otherwise by reason of Seller's default of its obligations hereunder, including, without limitation, any rights Purchaser may have to bring an action to recover direct, consequential, punitive or any other damages. This Section 7.1 shall survive the Closing and not merge with the recording of the Deed. Section 7.2. Seller Diligence Documents. Seller shall deliver or cause to be delivered to Purchaser or Purchaser's attorney, at Seller's expense following the expiration of the Contingency Period, a current ALTA survey dated after the Seller's acceptance date of this Contract. Seller may provide Purchaser with any other documentation relating to the Property in Seller's actual possession (the "Property Information Materials") in its sole discretion, excluding any appraisals, valuations, or other Property Information Materials that Seller determines to be proprietary or confidential as determined in Seller's sole determination. Purchaser specifically releases Seller from all liability in connection with any claims, demands, causes of action, judgments, losses, damages, liabilities, costs and expenses (including attorneys' fees), whether known or unknown, liquidated or contingent, asserted against or incurred by Purchaser by reason of the information contained in, or that should have been contained in, the Property Information Materials. In the event that this Agreement is terminated by either party, Purchaser shall return to Seller, within five (5) business days of the effective date of termination, all Property Information Materials, without retaining any copies thereof. The provisions of this paragraph shall survive the Closing (and shall not merge into the Deed) or the earlier termination of this Agreement. Section 7.3. Indemnification by Purchaser. Purchaser indemnifies and holds Seller, its Affiliates and each of the Seller Parties, harmless from and against, and must reimburse it or them for, any and all losses, damages, deficiencies, claims, costs or expenses, including reasonable attorney's fees, and defend it or them against any third -party claim, demand, or litigation arising out of, in connection with or to the extent resulting from: (a) any misrepresentation made by Purchaser, or any breach of warranty by Purchaser, contained in this Agreement, or in any schedule, exhibit, report, written statement or certificate Page 13 of23 39214423.9 furnished by Purchaser pursuant to this Agreement, which misrepresentation or breach of warranty materially and adversely affects the interest of Seller; or (b) the breach, default, non -fulfillment or non-performance of any covenant, condition or action required of Purchaser pursuant to this Agreement. The terms of this Section 7.3 shall expressly survive the Closing or the earlier termination of this Agreement_ ARTICLE VIII MISCELLANEOUS Section 8.1. Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Section 8.2. Counterparts. This Agreement may be executed manually or by electronic signature or facsimile signature, and in one or more counterparts, each of which shall be deemed to be an original, but all of which shall be considered one and the same instrument. For purposes hereof, electronically or facsimile transmitted signatures shall be deemed original signatures_ Section 8.3. Entire Agreement. This Agreement incorporates by this reference the recitals set forth above, contains the entire agreement between the parties and supersedes all prior agreements, arrangements and understandings relating to the subject matter thereof. There are no written or oral agreements, understandings, representations or warranties between the parties other than those set forth herein. The provisions of this Section 8.3 shall expressly survive the Closing or the earlier termination of this Agreement. Section 8.4. Rights Cumulative: Waivers. The rights of each of the parties under this Agreement are cumulative, may be exercised as often as any party considers appropriate and are in addition to each of such party's rights under any other documents executed between the parties or, except as otherwise modified herein, under law. The rights of each of the parties hereunder shall not be capable of being waived or varied otherwise than by an express waiver or variation in writing. Any failure to exercise or any delay in exercising any such rights shall not preclude any other or further exercise of that or any other such right. No act or course of conduct or negotiation on the part of any party shall in any way preclude such party from exercising any such right or constitute a suspension or any variation of any such right. The provisions of this Section 8.4 shall expressly survive the Closing or the earlier termination of this Agreement. Section 8.5. Notices. All notices and other communications under this Agreement must be in writing (including a writing delivered by electronic transmission) and are deemed to have been duly given: (a) when delivered, if sent by registered or certified mail (return receipt requested); (b) when delivered, if delivered personally, or if delivered by facsimile or email (so long as such delivery by facsimile or email is followed by a copy of the same being delivered to the other party by first class mail or reputable overnight courier); or (c) on the first following business day, if sent by United States Express Mail or other reputable overnight courier, in each case to the parties at the addresses set forth below or at such other addresses as shall be specified by like notice: If to Purchaser: George B. Knickerbocker Page 14 of 23 39214423.9 Village Attorney Village of Elk Grove Village 901 Wellington Avenue Elk Grove Village, IL 60007 Telephone: (847) 357-4032 Fax: (847) 357-4022 gknickerbocker@elkgrove_org With a copy to: Matthew J. Roan Deputy Village Manager Village of Elk Grove Village 901 Wellington Avenue Elk Grove Village, IL 60007 Telephone: (847) 357-4004 Fax: (847) 357-4022 mroan@elkgrove.org elkgrove.org With a copy to: William J. Payne Attorney at Law 1100 W. Northwest Hwy., #103 Mount Prospect, IL 60056 Telephone: (847) 483-5027 Fax: (847) 483-5029 Witliamjpayne7@aol.com If to Seller: Name Address City, State ZIP Telephone. - Fax: E-mail: With a concurrent copy to: Name Address City, State ZIP Telephone: Fax: E-mail,- With a concurrent copy to: Name Name Address City, State ZIP Telephone: Fax: E-mail: Pap 15 of 23 39214423.9 Section 8.7. Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Illinois without reference to the choice of law principles thereof. The provisions of this Section 8.7 shall expressly survive the Closing or the earlier termination of this Agreement. Section 8.8. Waiver of Jury Trial. EACH OF THE PARTIES HERETO WAIVES ITS RESPECTIVE RIGHTS TO A 'TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL, WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS PARAGRAPH AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 8.8 SHALL EXPRESSLY SURVIVE THE CLOSING OR THE EARLIER TERMINATION OF THIS AGREEMENT. Section 8.9. Attornev's Fees. If either party becomes involved in litigation (including bankruptcy proceedings) or other proceedings arising out of or relating to this Agreement, the court will award legal expenses (including reasonable attorney's fees, court costs and other legal expenses) to the prevailing pasty. The award for legal expenses will not be computed in accordance with any court schedule, but will be as necessary to fully reimburse all reasonable out of pocket attorney's fees and other legal expenses paid or incurred in good faith, regardless of the size of the judgment or award, it being the intention of the parties to fully compensate for all the reasonable out of pocket attorney's fees and other Iegal expenses paid or incurred in good faith_ For the purpose of this Agreement, the terms "attorney's fees" or "attorney's fees and costs" mean the fees and expenses. The terms "attorney's fees" or "attorney's fees and costs" also include all reasonable out of pocket fees and expenses incurred with respect to appeals, bankruptcy and other proceedings, and whether or not any action or proceeding is brought with respect to the matter for which said fees and expenses were incurred. The provisions of this Section 9.9 shall expressly survive the Closing or the earlier termination of this Agreement. Section 8.10. Seve_rability. In the case any provision in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision will be construed and enforced as if it had been more narrowly drawn so as not to be invalid, illegal or unenforceable, and the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. The provisions of this Section 8.10 shall expressly survive the Closing or the earlier termination of this Agreement. Section 8.11. Successors and Assigns. This Agreement is binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns. Purchaser may assign all or any portion of this Agreement. The provisions of this Section 8.11 shall expressly survive the Closing or the earlier termination of this Agreement. Pace 16 o123 39214423.9 Section 8.12. Environmental. (A) Purchaser will cause such examination(s) or inspection(s) of the Property as Purchaser deemed sufficient to evaluate the environmental condition of the Property. Purchaser hereby releases Seller and each of the Seller Parties, from any and all claims, causes of action, damages, obligations, penalties, property or bodily injury and/or liabilities at any time and from time to time arising out of, or relating directly or indirectly to, any known or unknown Environmental Hazard at, in, on, adjacent to, emanating from, or under the Property or related to the operations thereon As used herein_ the term "Environmental Hazard" shall mean any Hazardous Material, or the storage, handling, use, manufacturing, generation, recycling, migration, production, disposal, treatment or release thereof; and the term "Hazardous Material" shall mean: (a) any hazardous waste, any extremely hazardous waste, or any restricted hazardous waste, or words of similar import, as defined in the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); (b) any hazardous substances as defined in the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.); (c) any toxic substances as defined in the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.); (d) any pollutant as defined in the Clean Water Act (33 U.S.C. Section 1251 et seq.); (e) gasoline, petroleum, or other hydrocarbon products or by-products; (f) asbestos; (g) any other materials, substances, or wastes subject to environmental regulation under any applicable federal, state, or local law, regulation, or ordinance now or hereafter in effect; and (h) any gas, solid, or liquid on, and/or released from, the Property. The term "Environmental Laws" shall mean all statutes specifically described in the foregoing sentence and all federal, state and local environmental health and safety statutes, ordinances, codes, rules, regulations, orders and decrees regulating, relating to or imposing liability or standards concerning or in connection with Hazardous Materials or the protection of the environment or worker health or safety. (B) Purchaser shall indemnify Seller and the Seller Parties and hold Seller and the Seller Parties harmless from and against any and all claims, demands, causes or action, losses, damages, liabilities, costs and expenses (including without limitation, attorneys' fees and disbursements), suffered or incurred by Seller and arising out of or in connection with (a) Purchaser's and/or Purchaser's representatives' entry upon the Property, (b) any Investigations or other activities conducted thereon by Purchaser or Purchaser's representatives, (c) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations or any and all other activities undertaken by Purchaser or Purchaser's representatives, or (d) any and all other activities undertaken by Purchaser or Purchaser's representatives with respect to the Property, including, without limitation any development or redevelopment of the Property. This Section 8.12 shall survive the Closing and not merge with the delivery and recording of the Deed, and shall be binding on Purchaser and its successors and assigns. Section 8.13. Destruction or Loss of Pronerty. If, between the Date of Acceptance and the Closing Date, all or any portion of the Property is damaged by fire, casualty or other causes beyond Seller's control ("Damage"), or all or any portion of the Property is taken or made subject to condemnation, eminent domain or other governmental acquisition proceedings by any governmental or quasi -governmental agency or entity other than the Village of Elk Grove Village (or any municipal agencies or entities affiliated with the Village of Elk Grove Village (collectively, a "Takinu')), then the following procedures shall apply: Page 17 of 23 39214423.9 (a) If the cost of required repair or replacement related to or arising out of the Damage or if the value of the Taking is Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) or less as determined by Purchaser, Purchaser shall proceed to close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the final payment otherwise due at Closing, which reduction shall be equal to the full repair or replacement cost of the Damage or the value of the Taking as determined by Purchaser, but which shall not exceed Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00). All insurance proceeds on account of the Damage (less Seller's deductible) or awards on account of the Taking shall belong to Seller. Purchaser shall cooperate with the assignment of any such proceeds to Seller prior to and after CIosing as may be required. (b) If the cost of repair or replacement related to or arising out of the Damage or if the value of the Taking is greater than Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) as determined by Purchaser, then Purchaser: (1) in the case of a Taking only, may, at its sole option, elect either to: (i) terminate this Agreement by written notice to Seller given within five (5) business days after the occurrence of Taking or five (5) business days prior to the Closing Date, whichever last occurs (and the Closing Date shall be extended as reasonably necessary, as applicable, to accommodate the expiration of such five (5) business day period); or (ii) accept a reduction in the Purchase Price in an amount equal to the value of the Taking as determined by Seller or accept an assignment the award(s) on account of the Taking, in each case, such amount not to exceed the amount of the Purchase Price, and proceed to close in accordance with this Agreement. In the event Purchaser does not elect to accept a reduction in the Purchase Price as set forth in (ii) above, but elects to accept an assignment of any such award(s), all award(s) on account of the Taking shall belong to Purchaser, up to the amount of the Purchase Price; and (2) in the case of Damage, may, at its sole option, either elect to accept a reduction in Purchase Price in an amount equal to the full repair or replacement cost of the Damage or accept an assignment of the insurance proceeds for the Damage, in each case, such amount not to exceed the amount of the Purchase Price, and proceed to close in accordance with this Agreement. In the event Purchase does not elect to accept a reduction in the Purchase Price as described in this paragraph (2), but elects to accept an assignment of such insurance proceeds, all insurance proceeds on account of the Damage shall belong to Purchaser, up to the amount of the Purchase Price. For avoidance of doubt, in no event shall Purchaser have any right to terminate this Agreement as a result of any Damage to the Property. This Section 813 shall survive the Closing and delivery of the Deed without limitation and shall be binding on Purchaser and its successors and assigns. Section 8.14. Confidentiality. The provisions of this Section 8.14 shall in no event apply to any information which is a matter of public record and shall not prevent Purchaser from complying with laws, including, without limitation, governmental regulatory, disclosure, tax and reporting requirements. Purchaser expressly acknowledges and agrees that the transactions contemplated by this Agreement, the Property Information Material and the terms, conditions and negotiations concerning the same shall be held in the strictest confidence by Purchaser and shall not be disclosed by Purchaser except to a Purchaser Party/Representative (as hereinafter defined), and except and only to the extent that such disclosure may be necessary for its performance hereunder. As used in this Section 8.14, Page 18 of 23 39214423.9 "Purchaser Party/Representative" shall mean: (x) Purchaser's prospective lenders, members, managers, partners or other co -venturers or investors, in connection with the proposed purchase of the Properties and their respective representatives; and (y) Purchaser's directors, officers, partners, members, managers, affiliates, shareholders, employees, legal counsel, accountants, engineers, architects, financial advisors and similar professionals and consultants. Purchaser agrees that it shall instruct each of its Purchaser Party/Representatives to maintain the confidentiality of such information and at the request of Seller, to promptly inform Seller of the identity of each such Purchaser PartyrRepresentative. Purchaser further acknowledges and agrees that, unless and until the Closing occurs, all information and materials obtained by Purchaser in connection with the Property that are not otherwise known by or readily available to the public will not be disclosed by Purchaser to any third persons (other than to its Purchaser Party/Representatives) without the prior written consent of Seller_ If the transaction contemplated by this Agreement does not occur for any reason whatsoever, Purchaser shall promptly return to Seller, and shall instruct its Purchaser Party/Representatives to return to Seller, all copies and originals of all documents and information provided to Purchaser, specifically including, without limitation the Existing Survey and the Property Information Materials. The provisions of this Section 8.14 shall survive any termination of this Agreement without limitation. Section 8.15. 1031 Exchange. Seller and Purchaser shall cooperate with the other and shall execute any and all documents necessary to allow such parity (or its affiliates) to effectuate the conveyance of the Property as an exchange, whether simultaneous or a deferred, forward or reverse exchange, pursuant to Section 1031 of the Internal Revenue Code as amended, and the regulations promulgated thereafter; provided however, that at no time shall the cooperating party be required to take title to real estate other than the Property or incur any obligations other than those set forth elsewhere in this Agreement. Each party agrees to execute such documents as are reasonably necessary to implement such an exchange. The exchanging party shall pay all reasonable out of pocket costs which may be incurred by the cooperating party in connection with such tax free exchange, and the exchanging party shall indemnify the cooperating party and hold it harmless from any reasonable out of pocket loss, cost, damage, expense or liability incurred in connection therewith.. The provisions of this Section 8.15 shall survive any termination of this Agreement without limitation. Section 8.16 Business Day; Legal Holiday. As used herein, the term "business day" shall mean any day that is not a 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 where the Property is located. If the last day allowed for compliance by either party with any provision of this Agreement shall fall on a day other than a business day, then compliance with such provisions shall be deemed acceptable if same is fully made or performed on the next business day immediately following such required day of performance. Section SA7. Brokers. Seller and Purchaser represent and warrant to each other that no broker was the procuring cause of this transaction other than Tom Traina of EatZ Real Estate Group (collectively, "Seller's Broker"). Seller shall pay the Seller's Broker a commission pursuant to a separate agreement between Seller and Seller's Broker upon the full consummation and funding of this transaction at Closing. Each party shall indemnify and hold the other harmless from any other real estate commission claimed through its respective actions. The respective indemnity and hold harmless obligations of Seller and Purchaser under this Section 8.17 shall survive the Closing and not merge with the Deed. Paste 19 of 23 39214423.9 Section 8.18. Approval of Agreement by Purchaser's Village Board. Purchaser shall present this Agreement to the Village Board for its review, consideration and approval at the July 19, 2022 Village Board meeting. In the event that the Purchaser fails to obtain Village Board approval on July 19, 2022, Purchaser shall deliver written notice to Seller of such failure (the "Approval Failure Notice') on or before 5;00 pm on July 20, 2022, and this Agreement shall be canceled. [Balance of Page Intentionally Blank] Page 20 of 23 39214421.9 IN WITNESS WHEREOF, each of the undersigned parties to this Agreement has caused this Agreement to be duly executed by one of its duly authorized officers or members, all as of the date first written above. SELLER -- Mike & Daves LLC, an Illinois Limited Liability Company By: NAME: Mike O'Brien ITS: Manager DATED: 07 / 18 / 2022 (the "Date of Acceptance") 39234423.9 PURCHASER: VILLAGE OF ELK GROVE VILLAGE Its: Mayor DATED: ATTEST: By: Loretta Murphy, Villake Ckrk Page 21 of 22 Doc ID: 49eO526ebd9c927e3b569bbb5f37fa56db88ee6i SCHEDULE A LEGAL DESCRIPTION OF PROPERTY NEED LEGAL DESCRIPTION OF PROPERTY Situated in the County of Cook and State of Illinois The above legal description is subject to confirmation and verification by the Title Company in the Title Commitment Common Address: 800 E. Higgins Road, Elk Grove Village, IL 60007 PIN: Parcel 1: 08-22-300-009-0000 Page 22 of 23 392 A423.9