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HomeMy WebLinkAboutRESOLUTION - 39-24 - 6/18/2024 - 1201 BUSSE ROAD, PROLOGIS, PURCHASE AND SALE AGREEMENTRESOLUTION NO. 39-24 A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A PURCHASE AND SALE AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND PROLOGIS, A MARYLAND REAL ESTATE INVESTMENT TRUST C/O PROLOGIS, L.P. FOR PROPERTY LOCATED AT 1201 BUSSE 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: PURCHASE AND SALE AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND PROLOGIS, L.P. (1201 BUSSE ROAD) 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: 6 NAYS: 0 ABSENT: 0 PASSED this 18' day of June 2024 APPROVED this 1811 day of June 2024 APPROVED: Mayor Craia B. Johnson Village of Elk Grove Village ATTEST: Loretta M. Murphy, Village Clerk PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS [1201 Busse Rd, Elk Grove Village, IL] ARTICLE 1: PROPERTY/PURCHASE PRICE 1.1 Certain Basic Terms. (a) Buyer and Notice Address. Village of Elk Grove Village Attn: Matthew J. Roan 901 Wellington Ave Elk Grove Village, IL 60007 Telephone/Email: 847/357-4004 / mroan@elkgrove.org With a copy to: Village of Elk Grove Village Attn: George Knickerbocker 901 Wellington Ave Elk Grove Village, Illinois 60007 Telephone/Email: 847/357-4000 / gknickerbocker@elkgrove.org and Ancel Glink, P.C. Attn: Gregory W. Jones 140 S. Dearborn Street, 6th Floor Chicago, Illinois 60603 Telephone/Email: 312/604-9195 / gjones@ancelglink.com (b) Seller and Notice Address. Prologis, a Maryland real estate investment trust c/o Prologis, L.P. Attn: Anisha Yadav, Megan Robert, Duke Hindman, Jack Alexander, Tim Peters and Gayle Orman 1800 Wazee Street, Suite 500 Denver, Colorado 80202 Telephone/Email (AY): 317/533-6014 / ayadav4@prologis.com Telephone/Email (MR): 303/567-5613 / mrobert@prologis.com Telephone/Email (DH): 303/567-5019 / mhindman@prologis.com Telephone/Email UA): 303/567-5333 / jlexander@prologis.com Telephone/Email (TP): 303/567-5186 / Tpeters@prologis.com Telephone/Email (GO): 303/567-5128 / gorman@prologis.com (c) Purchase Price. $2,760,000.00. (d) Earnest Money. $125,000.00 (the "Deposit"), in immediately available federal funds, evidencing Buyer's good faith to perform Buyer's obligations under this Agreement, shall be deposited within 3 days after the Effective Date. In the event Buyer fails to timely deposit the Deposit with the Escrow Agent, Seller may terminate this Agreement by providing Buyer written notice and, thereafter, this Agreement shall be of no force and effect and neither party shall have any further rights or liabilities hereunder except as provided in Sections 2.25 2_3 and 10.2 of this Agreement. References to Earnest Money shall include the Deposit and interest thereon, and exclude $100.00 (the "Independent Contract Consideration") therefrom. The Independent Contract Consideration, a non-refundable portion of the Earnest Money, is consideration for Buyer's right to inspect and purchase the Property pursuant to this Agreement and shall be delivered to Seller under all circumstances. (e) I:?ffectiye Date. The last date of execution by the Seller or the Buyer, as indicated on the signature page. (� Due Diligence Period. The period ending June 19, 2024. (g) Closing Date. June 26, 2024. (h) Title Company. Land Services USA, Inc. Attn: Cori Connors 1 South Church Street, Suite 300 West Chester, Pennsylvania 19382 Telephone/Email: 484.885.2898 / CConnors@lsutitle.com (i) Escrow Agent. Same as Sectio��1.1 . 0) $roster. Lee & Associates. 1.2 Proper . Subject to the terms of this Purchase and Sale Agreement (the "Aareement"), Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the following property (the "Proper "): (a) The real property described in Exhibit (the Tgal_Prnperty"), together with any and all buildings, infrastructure, and improvements thereon (the "Improvements"), and all appurtenances of the above -described Real Property, including easements or rights -of -way relating thereto, and, without warranty, all right, title, and interest, if any, of Seller in and to the land lying within any street or roadway adjoining the Real Property or any vacated or hereafter vacated street or alley adjoining said Real Property. (b) All of Seller's right, title and interest, in and to all fixtures, furniture, equipment, and other tangible personal property, if any, owned by Seller (the "Personal Property") presently located on the Real Property and used exclusively in the operation or maintenance of the Real Property, but specifically excluding any items of personal property owned by tenants and any signage with the name "ProLogis", "Prologis", "AMB", "Liberty", "LPT", "IPT", "KTR", "DCT" and/or "Duke" on it. (c) All of Seller's interest, as landlord, in all leases of the Improvements, any and all guaranties of the leases, and all leases which may be made by Seller as permitted under Section 4.3 of the Agreement, including all amendments thereto (collectively, the "Leases"). (d) All of Seller's right, title and interest, if any, in and to all of the following items, to the extent assignable and without warranty (the "In tan bl Personal Pr er "): (A) licenses, and permits relating to the operation of the Property, and (B) if still in effect and at Buyer's cost, if required, guaranties and warranties received by Seller from any contractor, manufacturer or other person in connection with the construction or operation of the Property. Notwithstanding the foregoing, the following are excluded from the definition of Intangible Personal Property under this Agreement: any trade names, trademark, service marks, logos, graphics and other rights with respect to the name "ProLogis", "Prologis", "AMB", "Liberty", "LPT", "IPT", "KTR", "DCT" and/or "Duke". ARTICLE 2: INSPECTIONS 2.1 Property Information. Seller shall provide copies to Buyer, within 5 days after the Effective Date, to the extent in Seller's possession, the following: (a) year to date operating statements in form and content used by Seller for its internal purpose (the "Operating Statements'; (b) the Leases including all amendments listed on Schedule 2.1 U �- (c) any current service or maintenance agreements, if any, relating to the Property listed on Schedule 2.14 ("Service Contracts'; (d) most recent utility bills for the Property, including water, electricity, and gas; (e) any existing land title survey of the Property; (f) the environmental and other reports set forth on Schedule 2.1(0; and (g) Any written violation notices concerning or involving the Property including, without limitation, building, zoning, environmental, and health code violations, which have not been previously cured, but expressly excluding any notices issued by the Seller. The items enumerated in Section 2.1 and other documentation and information provided or otherwise made available by Seller are collectively referred to as the "Property Information." Except as otherwise expressly provided herein, Seller makes no representations or warranties as to the accuracy or completeness of the Property Information. 2.2 Inspections. (a) During the Due Diligence Period, Buyer, its employees, contractors, consultants and agents (collectively, "Buyer's Agents") shall have the right to enter upon the Property for the purpose of inspecting the Property. In connection with any such entry, Buyer (i) acknowledges that all entry is at Buyer's sole risk, cost and expense and subject to the rights of tenants under their Leases, (ii) shall give Seller reasonable advance notice of such entry or any discussions with tenants and shall conduct such entry and any inspections or discussions with tenants in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller, and (iii) Seller or its representatives shall have the right to accompany Buyer and Buyer's Agents or participate in any discussions with tenants or any testing or other inspection performed on the Property. Without expanding or limiting the foregoing, Buyer specifically agrees that prior to any entry to perform any invasive on -site testing, Buyer shall notify Seller and provide the identity of the company or persons who will perform and the proposed scope of such invasive testing. Seller shall approve or disapprove the scope and methodology of such proposed testing within 3 business days after receipt of such notice, such approval shall not be unreasonably withheld in Seller's sole and absolute discretion. Seller's failure to provide such approval or disapproval notice shall be deemed disapproval. If Buyer or Buyer's Agents take any sample from the Property in connection with any such approved testing, Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. (b) Buyer shall, or shall cause Buyer's Agents to, maintain commercial general liability insurance, including broad form property damage, with limits of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate in form and substance adequate to insure against all liability of Buyer and/or Buyer's Agents, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Buyer shall provide Seller with evidence of such insurance coverage before any such entry, including evidence that Seller is an additional insured on the commercial general liability policy. If any inspection or test disturbs the Property, Buyer will promptly restore the Property to the same condition as existed before the inspection or test. EXCEPT FOR BUYER'S MERE DISCOVERY (WITHOUT EXACERBATION) OF PRE- EXISTING CONDITIONS ON THE PROPERTY, BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER, SELLER'S AFFILIATES, PARTNERS, MEMBERS, SHAREHOLDERS, INVESTMENT MANAGERS, PROPERTY MANAGERS, TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF EACH OF THEM AND THEIR RESPECTIVE HEIRS, SUCCESSORS, PERSONAL REPRESENTATIVES AND ASSIGNS (COLLECTIVELY, "SELLER PARTIES") AND THE PROPERTY HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, LOSSES, CLAIMS, LIENS, COST OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES) ARISING OUT OF OR RELATING TO ANY ENTRY ON THE PROPERTY BY BUYER OR BUYER'S AGENTS IN THE COURSE OF PERFORMING THE INSPECTIONS, TESTING OR INQUIRIES PROVIDED FOR IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION DAMAGE TO THE PROPERTY OR RELEASE OF HAZARDOUS SUBSTANCES OR MATERIALS ONTO THE PROPERTY. THE FOREGOING INDEMNITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 2.3 Termination During Due Diligence Period. If Buyer determines, in its sole discretion, before the expiration of the Due Diligence Period that the Property is unacceptable for Buyer's purposes, Buyer shall have the right to terminate this Agreement by giving to Seller notice of termination before the expiration of the Due Diligence Period. Upon such termination, Buyer shall promptly return to Seller the Property Information, the Escrow Agent is authorized to refund the Earnest Money to Buyer, and neither party shall have any further rights or liabilities hereunder except as provided in Sections 2.2, 2_3 and 10.2 of this Agreement. Buyer's obligation to return the Property Information and repair any damage to the Property caused by Buyer or Buyer's Agents shall survive the termination of this Agreement. 2.4 Buyer's Reliance on its Investigations and Release. The provisions of this Section 2.4 shall survive indefinitely the Closing, close of escrow and recordation of the Deed, and shall not be deemed merged into any of the Closing documents. (a) Buyer acknowledges and agrees, by consummating the Closing, it will be deemed to have been given a full opportunity to inspect and investigate each and every aspect of the Property, either independently or through agents of Buyer's choosing. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, SELLER AND BUYER AGREE THAT EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 BELOW AND IN THE CLOSING DOCUMENTS EXECUTED AND DELIVERED TO BUYER BY SELLER (COLLECTIVELY, "SELLER'S WARRANTIES"), SELLER IS SELLING AND BUYER IS PURCHASING AND TAKING THE PROPERTY ON AN "AS IS" BASIS, WITH ANY AND ALL LATENT AND PATENT DEFECTS. BUYER ACKNOWLEDGES THAT IT IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY AND, EXCEPT FOR SELLER'S WARRANTIES, IT IS NOT RELYING UPON ANY REPRESENTATION, STATEMENT OR OTHER ASSERTION OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ITS AGENTS OR BROKERS AS TO ANY MATTER CONCERNING THE PROPERTY, INCLUDING, WITHOUT LIMITATION: (I) THE QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ACCESS, THE STRUCTURAL ELEMENTS, FOUNDATION, ROOF, APPURTENANCES, ACCESS, PARKING FACILITIES AND THE ELECTRICAL, MECHANICAL, HVAC, PLUMBING, SEWAGE, AND UTILITY SYSTEMS, FACILITIES AND APPLIANCES, (II) THE QUALITY, NATURE, ADEQUACY, AND PHYSICAL CONDITION OF SOILS, GEOLOGY AND ANY GROUNDWATER, (III) THE EXISTENCE, QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION OF UTILITIES SERVING THE PROPERTY, (IV) THE DEVELOPMENT POTENTIAL OF THE PROPERTY, AND THE PROPERTY'S USE, HABITABILITY, MERCHANTABILITY, SUITABILITY, VALUE OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE, (V) THE ZONING OR OTHER LEGAL STATUS OF THE PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON USE OF THE PROPERTY, (VI) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES, COVENANTS, CONDITIONS AND RESTRICTIONS OF ANY GOVERNMENTAL OR QUASI -GOVERNMENTAL ENTITY OR OF ANY OTHER PERSON OR ENTITY, (VII) THE PRESENCE OF HAZARDOUS MATERIALS ON, UNDER OR ABOUT THE PROPERTY OR THE ADJOINING OR NEIGHBORING PROPERTY, (VIII) THE QUALITY OF ANY LABOR AND MATERIALS USED IN ANY IMPROVEMENTS ON THE REAL PROPE , ( ),THE CONDITION OF TITLE TO THE PROPERTY, AND (X) THE ECONOMIC F TH P RATION OF THE PROPERTY. Buyer's Ini als (b) WITHOUT LIMITING THE ABOVE EXCEPT WITH RESPECT TO A BREACH BY SELLER OF ANY OF THE SELLER'S WAR TIES, BUYER, FOR AND ON BEHALF OF ITSELF, ANY ENTITY AFFILIATED WITH BUYER AND ITS SUCCESSORS AND ASSIGNS, WAIVES ITS RIGHT TO RECOVER FROM AND FOREVER RELEASES AND DISCHARGES THE SELLER PARTIES FROM AND AGAINST ANY AND ALL DEMANDS, CLAIMS, LEGAL OR ADMINISTRATIVE PROCEEDINGS, LOSSES, LIABILITIES, DAMAGES, PENALTIES, FINES, LIENS, JUDGMENTS, COSTS OR EXPENSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COSTS) OF WHATEVER KIND OR NATURE, DIRECT OR INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, EXISTING OR FUTURE, CONTINGENT OR OTHERWISE (INCLUDING ANY ACTION OR PROCEEDING, BROUGHT OR THREATENED, OR ORDERED BY ANY APPROPRIATE GOVERNMENTAL ENTITY) THAT MAY ARISE ON ACCOUNT OF OR IN ANY WAY CONNECTED WITH OR RELATING TO THE PROPERTY OR ITS CONDITION OR ANY LAW OR REGULATION APPLICABLE THERETO, INCLUDING WITHOUT LIMITATION, THE PRESENCE, MISUSE, USE, DISPOSAL, RELEASE OR THREATENED RELEASE OF ANY HAZARDOUS OR TOXIC MATERIALS, CHEMICALS OR WASTES AT THE PROPERTY AND ANY LIABILITY OR CLAIM RELATED TO THE PROPERTY ARISING UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980, AS AMENDED BY THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986 (42 U.S.C. SECTION 9601 ET SEQ.), THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976 (42 U.S.C. SECTION 6901 ET SEQ.), THE CLEAN WATER ACT (33 U.S.C. SECTION 1251 ET SEQ.), THE SAFE DRINKING WATER ACT (42 U.S.C. SECTION 30OF ET SEQ.), THE HAZARDOUS MATERIALS TRANSPORTATION ACT (49 U.S.C. SECTION 5101 ET SEQ.), THE TOXIC SUBSTANCES CONTROL ACT (15 U.S.C. SECTION 2601 ET SEQ.), EACH AS AMENDED, OR ANY OTHER CAUSE OF ACTION BASED ON ANY OTHER STATE, LOCAL, OR FEDE ENVIRONMENTAL LAW, RULE OR REGULATION (COLLECTIVELY, "ENVIRON EN AL LAWS"); PROVIDED HOWEVER, THE FOREGOING RELEASE SHALL NOT O RA TO RELEASE ANY CLAIM BY BUYER AGAINST ANY PERSON OR ENTITY OTH R T �ELLER PARTIES. Buyer's Initials! 2.5 Service Contracts. On or prior �t 1 e last day o'the Due Diligence Period, Buyer will notify Seller of the Service Contracts it will assume. Buyer will assuml the obligations arising from and after the Closing Date under those Service Contracts that Buyer has elected to assume; provided, however, that to the extent that any such Service Contracts are part of portfolio agreements, they shall not be assignable. Buyer's failure to notify Seller in accordance with this Section shall be deemed an election by Buyer not to assume the Service Contracts and, in such event, Seller shall, at Seller's sole cost, terminate such Service Contracts on or before the Closing Date. ARTICLE 3: TITLE AND SURVEY REVIEW 3.1 Delivery of Title Report. Within 10 days after the Effective Date, Seller shall cause to be delivered to Buyer or to provide Buyer and its designee access to a preliminary report or title commitment issued by the Title Company (the "Title Report"), covering the Real Property, together with copies of all documents referenced in the Title Report. Buyer, at its option and expense, may obtain a survey or updates to an existing survey (the "S�ev") of the Property. 3.2 Title Review and Cure. Buyer shall notify Seller of any tide or survey objections (i) at least 5 business days prior to the expiration of the Due Diligence Period with respect to items disclosed in the Tide Report or die Survey, if any, and (ii) at or prior to Closing with respect to any items which: (1) are first raised by the Tide Company following the expiration of the Due Diligence Period and prior to Closing, and (2) are not the result of Buyer's acts. Failure to timely provide such a notice of objections shall constitute an approval by Buyer of all matters disclosed in the Tide Report and any matters that would have been disclosed by an accurate survey of the Property. Except for mortgages, deeds of trust or mechanics liens created or caused by Seller (collectively, the "Required Cure Items"), Seller may, but shall not be obligated to, attempt to cure by the Closing Date any tide objections noted by Buyer. If Seller elects not to cure any tide objection (failure to make such election with regard to any tide objection within 2 business days shall be deemed an election not to cure such tide objection), or fails to cure any tide objection it has elected to cure by the Closing Date, then Buyer shall either (x) terminate this Agreement in its entirety upon notice to Seller given on or before the expiration of the Due Diligence Period, or, in the event Seller has elected to cure a tide objection, but is unable to do so, the Closing Date, as applicable, the Escrow Agent shall refund the Earnest Money to Buyer, and neither party shall have any further rights or liabilities hereunder except as provided in Sections 2.2, 2_3 and 10.2 of this Agreement, or (y) waive such tide objections, in which event the Closing shall occur and Buyer shall accept tide to the Property subject to such tide condition and without adjustment to Purchase Price. Failure to so terminate shall constitute waiver of tide objections. Those items approved by Buyer or deemed approved by Buyer are hereinafter referred to as the "Permitted Exceptions." 3.3 Tide Policy. Delivery of tide in accordance with the foregoing shall be evidenced by the willingness of the Tide Company to issue, at Closing, an owner's policy of tide insurance in the form of proforma policy or marked -up commitment approved or deemed approved by Buyer in accordance with Section 3.2 (the "Tide Policy"). ARTICLE 4: OPERATIONS AND RISK OF LOSS 4.1 Ongoing Operations, Insurance. During the pendency of this Agreement, Seller shall carry on its business and activities relating to the Property substantially in the same manner as it did before the Effective Date; provided that Seller shall not be obligated to make any extraordinary repairs or make any capital improvements to the Property except to comply with the terms of the Leases. Through the Closing Date, Seller shall maintain or cause to be maintained, at Seller's sole cost and expense, Seller's existing policy or policies of insurance insuring the Property. 4.2 New Contracts. During the pendency of this Agreement, Seller will not, without the prior consent of Buyer (which shall not be unreasonably withheld or delayed), enter into any contract that will be an obligation affecting the Property subsequent to the Closing, except contracts entered into in the ordinary course of business that are terminable without cause on not more than 30 days' notice. 4.3 Leasing Arrangements. Seller shall not into new Lease, amendment, expansion, renewal, modification, termination or other similar agreement (collectively, "New Lease Agreements") without first obtaining Buyer's approval prior to the Closing Date. Seller shall provide Buyer with actual copies of any proposed New Lease Agreements for Buyer's review and approval, which shall not be unreasonably withheld or delayed; provided, however, that Buyer's consent shall not be required if Seller is required to enter into the New Lease Agreement pursuant to the terms and conditions of any Leases in effect as of Effective Date. Buyer shall be deemed to have consented to any New Lease Agreement if it has not notified Seller specifying with particularity the matters to which Buyer reasonably objects, within 4 business days after its receipt of Seller's written request for consent, together with a copy of the proposed New Lease Agreement. 4.4 Damage or Condemnation. If before the Closing the Property or any portion thereof shall be materially damaged, or the commencement of condemnation proceedings shall affect all or a material portion of the Property, then Buyer may terminate this Agreement upon notice to Seller given within 10 days of Seller's notice of the occurrence of the damage or taking. In the event of such termination, the Escrow Agent shall refund the Earnest Money to Buyer, and neither party shall have any further rights or liabilities hereunder except as provided in Sections 2.2, 2_3 and 10.2 of this Agreement. For the purposes of this Section, the phrases "material damage" and "materially damaged" means damage reasonably exceeding 10% of the Purchase Price to repair or restore. If the Closing Date is within the aforesaid 10-day period, then Closing shall be extended to the next business day following the end of said 10-day period. If no such election is made, and in any event if the damage is not material, this Agreement shall remain in full force and effect and the purchase contemplated herein, less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and upon the Closing of this purchase, Seller shall (i) assign, transfer and set over to Buyer all of the right, title and interest of Seller in and to any awards that have been or that may thereafter be made for such taking, or any insurance proceeds that may thereafter be made for such damage or destruction, (ii) give Buyer a credit at Closing for an amount equal to any condemnation awards or insurance proceeds collected by Seller prior to the Closing as a result of any such condemnation or damage or destruction, and the amount of any insurance deductible under such policies (but in no event shall the amount of such credit to Buyer exceed the Purchase Price), and (iii) receive a credit at Closing for any sums expended by Seller toward the restoration or repair of the Property. In the event the amount of awards or proceeds subsequently received by Buyer exceeds the Purchase Price, then Buyer shall pay to Seller any such excess within 10 days after Buyer's receipt of such awards or proceeds. The provisions of this Section 4.4 shall survive indefinitely the Closing, close of escrow and recordation of the Deed, and shall not be deemed merged into any of the Closing documents. ARTICLE 5: CLOSING 5.1 Closing and Escrow Instructions. (a) The consummation of the transaction contemplated herein ("Closin'� shall occur on the Closing Date at the offices of the Escrow Agent. If Buyer's funds are received on the scheduled Closing Date but after 1:00 P.M., then the Closing Date shall be automatically adjusted to the next business day. (b) Seller and Buyer agree to execute such reasonable additional and supplemental escrow instructions as may be appropriate to enable the Escrow Agent to comply with the terms of this Agreement; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of this Agreement shall control. 5.2 Conditions to the Parties' Obligations to Close. (a) The obligations of Seller, on the one hand, and Buyer, on the other hand, to consummate the transaction contemplated hereunder are contingent upon the following conditions (collectively, the "Closin Conditions"): (1) The other party's representations and warranties contained herein shall be true and correct in all material respects as of the date of this Agreement and the Closing Date, subject to any Seller modifications hereafter made to a Property Representation (as defined and provided for in Section 7.1); (2) As of the Closing Date, the other party shall have performed its obligations hereunder in all material respects and all deliveries to be made at Closing have been tendered; (3) Receipt of estoppel certificates (consistent with the information in the Leases and substantially in the form attached hereto as Exhibit 5.2(a)(3) or such form as may be required under the applicable Leases) for Leases covering all of the leased floor area of the Property (the "Estoppel Requirement"). Buyer shall notify Seller, either by the Closing Date or within 4 business days following Buyer's receipt of an estoppel certificate (pdf copy via email), whichever is earlier, of Buyer's disapproval of any materially adverse matter(s) contained therein as determined in Buyer's reasonable business judgment, and the basis of such disapproval (`Buyer's Disapproval Notice"). Seller shall have 10 business days from Seller's receipt of the Buyer's Disapproval Notice within which to cure such materially adverse matter(s), and the Closing Date shall be extended, at Seller's option, to allow for up to the full 10-business day cure period; (4) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against the other party that would materially and adversely affect the other party's ability to perform its obligations under this Agreement; and (5) There shall exist no pending or threatened action, suit or proceeding with respect to the other party before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transaction contemplated hereby. Sections 5.2(a)(1) through 5.2 a 2 are collectively referred to as "Performance Conditions". (b) If any Closing Condition to a party's obligation to proceed with Closing hereunder (the "Benefitted Party") has not been satisfied as of the Closing Date, then the Benefitted Party may, in its sole discretion, elect to: (i) terminate this Agreement in its entirety upon notice to the other party delivered on or before the Closing Date, or (ii) close, notwithstanding the non -satisfaction of such condition, and waive any claim for breach of representation and warranties of which the Benefitted Party had knowledge. In the event of a termination other than the non -satisfaction of a Performance Condition by Buyer, the Escrow Agent shall refund the Earnest Money, and neither party shall have any further rights or liabilities hereunder except as provided in Sections 2.2, 2_3 and 10.2 of this Agreement. In the event of a termination due to the non - satisfaction of a Performance Condition, then the Benefitted Party may instead elect to enforce its rights and remedies under Article 8. 5.3 Seller's Deliveries in Escrow. On or before the Closing Date, Seller shall deliver in escrow to the Escrow Agent the following: (a) Deed. A deed in the form attached hereto as Exhibit 5.3(a) (the "Deed"), executed and acknowledged by Seller; (b) Assignment of Leases and Contracts and Bill of Sale. An Assignment of Leases and Contracts and Bill of Sale in the form of Exhibit 5.3(b) attached hereto (the "Assignment', executed by Seller; (c) FIRPTA. A Foreign Investment in Real Property Tax Act affidavit executed by Seller; (d) Notice to Tenants. A notice regarding the sale in substantially the form of Exhibit 5.3(d) attached hereto, or such other form as may be required by applicable state law for delivery by Buyer to each tenant immediately after the Closing; (e) State Specific Closing Documents. Any additional closing documents required by the applicable state, county, city or municipality for the proper consummation of the transaction contemplated by this Agreement; and (f) Additional Documents. Any additional documents that Escrow Agent or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement. 5.4 Buyer's Deliveries in Escrow. On or before the Closing Date, Buyer shall deliver in escrow to the Escrow Agent the following: (a) Purchase Price. The Purchase Price, less the Earnest Money that is applied to the Purchase Price, plus or minus applicable prorations, deposited by Buyer with the Escrow Agent in immediate, same -day federal funds into the Escrow Agent's escrow account; (b) Assignment of Leases and Contracts and Bill of Sale. The Assignment, executed by Buyer; (c) Additional Documents. Any additional documents that Escrow Agent or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement. 5.5 Closing Statements/Escrow Fees. At the Closing, Seller and Buyer shall deposit with the Escrow Agent executed closing statements consistent with this Agreement in the form required by the Escrow Agent. 5.6 Possession. Seller shall deliver possession of the Property to Buyer at the Closing, subject to the Permitted Exceptions. 5.7 Post -Closing Deliveries. Immediately after the Closing, Seller shall deliver the following to the Buyer: the Leases; copies of all assumed contracts and unpaid bills; all keys, if any, used in the operation of the Property; and, if in Seller's possession or control, any "as -built" plans and specifications of the Improvements. 5.8 Closing Costs. At Closing, Seller shall pay '/z of the transfer taxes due in connection with this transaction, the cost of the premium for the standard coverage portion of the Title Policy, the cost of recording the Deed, and'/2 of the escrow fees due in connection with the transaction contemplated by this Agreement. At Closing, Buyer shall pay 1/2 of the transfer taxes due in connection with this transaction, the cost of the additional premium for any extended coverage portion of the Title Policy, and any endorsements thereto, all costs of recording (excluding the cost of recording the Deed), and'/2 of the escrow fees due in connection with the transaction contemplated by this Agreement. Each party shall pay its own attorneys' fees. Other costs, charges, and expenses shall be borne and paid as provided in this Agreement or in the absence of such provision, in accordance with local custom. 5.9 Close of Escrow. Upon satisfaction or completion of the foregoing conditions and deliveries, the parties shall direct the Escrow Agent to immediately record and deliver the documents described above to the appropriate parties and make disbursements according to the closing statements executed by Seller and Buyer. ARTICLE 6: PRORATIONS 6.1 Prorations. The day of Closing shall belong to Seller and all prorations hereinafter provided to be made as of the Closing shall each be made as of the end of the Closing Date. In each such proration set forth below, the portion thereof applicable to periods beginning as of Closing shall be credited to Buyer or charged to Buyer as applicable and the portion thereof applicable to periods ending as of Closing shall be credited to Seller or charged to Seller as applicable. (a) Collected Rent. All collected rent (excluding tenant reimbursements for Operating Costs, which is the subject of Section 6.1U) and other collected income (and any applicable state or local tax on rent) under Leases in effect on the Closing Date shall be prorated as of the Closing. Seller shall be charged with any rent and other income collected by Seller before Closing but applicable to any period of time after Closing. Uncollected rent and other income shall not be prorated. Any prepaid rents for the period following the Closing Date shall be paid over by Seller to Buyer. Buyer covenants and agrees to use its commercially reasonable efforts after the Closing to collect and deliver to Seller all rents or other payments that were applicable to the period 9 before Closing. Seller may pursue collection as to any delinquent rent or Expense Reimbursements (as hereinafter defined), provided that Seller shall have no right to terminate any Lease or any tenant's occupancy under any Lease in connection therewith. All rents received by Buyer following the Closing shall be applied against the most recently accrued rent unless a tenant has specified in writing that such payment relates to a particular amount due to Seller. (b) Operating Costs. With respect to any reconciliations of reimbursable expenses under the Leases for the year of Closing (collectively, "Expense Reimbursements") to cover taxes, insurance, utilities (to the extent not paid directly by tenants), common area maintenance and other operating costs and expenses (collectively, "Operating Costs' in connection with the ownership, operation, maintenance and management of the Property, Seller and Buyer shall each receive a debit or credit, as the case may be, for the difference between the aggregate tenants' current account balances for Operating Costs and amount of Operating Costs reimbursable to Seller; provided, however, that (i) in no event shall Seller be required to credit Buyer for any uncollected Expense Reimbursements for any tenant and the same shall be treated in the same manner as uncollected rent is treated in Section 6.1 (a), and (ii) all Expense Reimbursements received by Buyer following the Closing shall be applied against the most recently accrued Operating Costs unless a tenant has specified in writing that such payment relates to an amount due prior to the Closing. Operating Costs for Seller's period of ownership shall be reasonably estimated by the parties if final bills are not available. Operating Costs that are payable by tenants directly to the applicable service providers shall not be prorated between Seller and Buyer. (c) Taxes and Assessments. Real estate taxes and assessments imposed by any governmental authority that are not yet due and payable and that are not payable by tenants under the Leases directly to the governmental authorities during the year in which Closing occurs, shall be prorated on a cash basis as of the Closing Date based upon the most recent ascertainable assessed values and tax rates. By way of example, if the Closing were to occur on Thursday, June 20, 2024, Seller would be responsible for 171/366 of the real estate taxes due and payable in 2024 (2023 taxes) and Buyer would be responsible for 195/366 of the real estate taxes due and payable in 2024 (2023 taxes). Buyer would be responsible for 100% of the real estate taxes due and payable in 2025 (2024 taxes). Seller shall receive a credit for any taxes and assessments paid by Seller and applicable to any period after the Closing. Notwithstanding anything seemingly to the contrary contained herein, Buyer shall be solely responsible for and shall assume any and all ad valorem taxes relating to a subsequent change in usage or ownership of the Property, whether by reason of this conveyance or otherwise. (d) Service Contracts and Utilities. Seller shall arrange for a billing under all those Service Contracts for which fees are based on usage and with utility companies for a billing for utilities, to include all utilities or service used up to the day Closing occurs, and Seller shall pay the resultant bills. In the event any Service Contracts extend over periods beyond the Closing the same shall be prorated on a per diem basis. (e) Final Prorations. All prorations made at Closing are final. 6.2 Intentionally Left Blank. 6.3 Tenant DQosits. (a) All tenant security deposits actually received by Seller and not theretofore applied to tenant obligations under the Leases shall be transferred or credited to Buyer at Closing or placed in escrow if required by law. As of the Closing, Buyer shall assume Seller's obligations related to tenant security deposits but only to the extent of the tenant security deposits transferred to Buyer at Closing. (b) BUYER WILL INDEMNIFY, DEFEND, AND HOLD SELLER HARMLESS FROM AND AGAINST ALL DEMANDS AND CLAIMS MADE BY TENANTS ARISING OUT OF THE APPLICATION OR DISPOSITION OF ANY SECURITY DEPOSITS WHICH ARE MADE AFTER THE TRANSFER TO AND RECEIPT BY THE BUYER OF THE SECURITY DEPOSITS, AND WILL REIMBURSE SELLER FOR ALL ATTORNEYS' FEES INCURRED OR THAT MAY BE INCURRED AS A RESULT OF ANY SUCH CLAIMS OR DEMANDS AS WELL 10 AS FOR ALL LOSS, EXPENSES, VERDICTS, JUDGMENTS, SETTLEMENTS, INTEREST, COSTS AND OTHER EXPENSES INCURRED OR THAT MAY BE INCURRED BY SELLER AS A RESULT OF ANY SUCH CLAIMS OR DEMANDS BY TENANTS. 6.4 Utility Deposits. Buyer shall be responsible for making any deposits required with utility companies. Seller shall receive a credit at Closing for any utility deposits transferred or assigned to Buyer. 6.5 Sale Commissions. Seller and Buyer represent and warrant each to the other that they have not dealt with any real estate broker, sales person or finder in connection with this transaction other than Broker. If this transaction is closed, Seller shall pay Broker in accordance with their separate agreement. Broker is an independent contractor and is not authorized to make any agreement or representation on behalf of either party. EXCEPT AS EXPRESSLY SET FORTH ABOVE, IF ANY CLAIM IS MADE FOR BROKER'S OR FINDER'S FEES OR COMMISSIONS IN CONNECTION WITH THE NEGOTIATION, EXECUTION OR CONSUMMATION OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, EACH PARTY SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY FROM AND AGAINST ANY SUCH CLAIM BASED UPON ANY STATEMENT, REPRESENTATION OR AGREEMENT OF SUCH PARTY. 6.6 Survival. The provisions of this Article 6 shall survive indefinitely the Closing, close of escrow and recordation of the Deed, and shall not be deemed merged into any of the Closing documents. ARTICLE 7: REPRESENTATIONS AND WARRANTIES 7.1 Seller's Representations and Warranties. As a material inducement to Buyer to execute this Agreement and consummate this transaction, Seller represents and warrants to Buyer that: (a) Organization and Authority. Seller has been duly organized and is validly existing and in good standing in the jurisdiction of its formation, and is qualified to do business in the state in which the Property is located. Seller has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby, and this Agreement has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Seller, enforceable in accordance with their terms. (b) Conflicts and Pending Action. There is no agreement to which Seller is a party or to Seller's knowledge binding on Seller which is in conflict with this Agreement. To Seller's knowledge, Seller has not received written notice from any applicable governmental authority of any pending or threatened action against Seller or the Property, including condemnation proceedings, which challenges or impairs Seller's ability to execute or perform its obligations under this Agreement. There are no insurance claims by Seller pending with regard to the Property. (c) Leases. The copies of the Leases provided to Buyer pursuant to Section 2.1(b) are true, correct and complete as of the date of its delivery. Seller's representation in this Section 7.1(c) shall be void and no claim shall be actionable or enforceable with respect to any Lease for which a tenant estoppel complying with the requirements of Section 5.2(a)(3) is obtained in connection with this transaction. (d) Service Contracts. Schedule 2.1(c) is true, correct, and complete list of the Service Contracts as of the date of its delivery. Neither Seller nor, to Seller's knowledge, any other party is in material default under any Service Contract. (e) Compliance with Law. To Seller's knowledge, Seller has not received any written notice, addressed specifically to Seller and sent by any governmental authority or agency having jurisdiction over the Property, that the Property or its use is in material violation of any law, ordinance or regulation, including any applicable Environmental Laws. 11 (f) OFAC Compliance. Seller is currently in compliance with and shall at all times during the term of this Agreement remain in compliance with the regulations of the Office of Foreign Assets Control ("OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List) and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto. "Seller's knowledge," as used in this Agreement means the current actual knowledge of Megan Robert, Senior Vice President, Investment Services, of Seller, without any duty of inquiry or investigation and without personal liability whatsoever. Seller's representations and warranties concerning the Property (collectively, the "Prol2er Representations") are qualified by any knowledge obtained by Buyer (including Buyer's receipt of any tenant estoppel certificates) by the expiration of the Due Diligence Period, and in the event Buyer's election to proceed with the purchase of the Property pursuant to Section 2.3 above, then Buyer shall be deemed to have accepted such qualification, and the Property Representations will automatically be made subject thereto without any adjustment to the Purchase Price. Seller may further qualify the Property Representations by notice delivered to Buyer before the Closing Date, specifying with reasonable particularity the facts and circumstances known to Seller that make the applicable Property Representation false, misleading or inaccurate. If either a Seller Property Representation notice or if Buyer obtains knowledge of any facts or circumstances that makes any Property Representation materially and adversely false, misleading or inaccurate (herein collectively referred to as "Exception Matters"), then Buyer, as its sole remedy, may terminate this Agreement within 3 business days after receipt of the Property Representation notice or after obtaining knowledge of such Exception Matters, receive a refund of the Earnest Money and neither party shall have any further rights and obligations under this Agreement except as provided in Sections 2.2, 2_3 and 10.2 of this Agreement. Notwithstanding the foregoing, if Buyer so elects to terminate this Agreement, Seller shall have the right, but not the obligation, to cure such Exception Matters within 30 days (and the Closing shall be delayed to the extent necessary to allow Seller the entire 30-day period within which to effect such cure) and if Seller cures such Exception Matters, then Buyer's right to terminate this Agreement as a result of such Exception Matters shall be revoked, null and void and this Agreement shall continue without termination (and, if the Closing Date is extended, Closing shall occur on the date that is 5 days after Seller cures such Exception Matters). 7.2 Buyer's Representations and Warranties. As a material inducement to Seller to execute this Agreement and consummate this transaction, Buyer represents and warrants to Seller that: (a) Organization and Authority. Buyer has been duly organized and is validly existing and in good standing in the state of its formation, and is qualified to do business in the state in which the Property is located. Buyer has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Buyer at the Closing will be, authorized and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Buyer, enforceable in accordance with their terms. (b) Conflicts and Pending Action. There is no agreement to which Buyer is a party or to Buyer's knowledge binding on Buyer which is in conflict with this Agreement. There is no action or proceeding pending or, to Buyer's knowledge, threatened against Buyer which challenges or impairs Buyer's ability to execute or perform its obligations under this Agreement. (c) OFAC Compliance. Buyer is currently in compliance with and shall at all times during the term of this Agreement remain in compliance with the regulations of the OFAC (including those named on OFAC's Specially Designated and Blocked Persons List) and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto. 12 ARTICLE: 8: DEFAULT AND DAMAGES 8.1 Default by Buyer. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A FAILURE TO CONSUMMATE THE SALE DUE TO BUYER'S DEFAULT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE EARNEST MONEY IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN THE EVENT OF BUYER'S DEFAULT. IN THE EVENT BUYER FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY, THE EARNEST MONEY MADE BY BUYER SHALL BE FORFEITED TO SELLER AS LIQUIDATED DAMAGES AND THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THIS SECTION 8.1 IS NOT INTENDED TO LIMIT SELLER'S S UNDER SECTIONS 2.2, 2_3 AND 10.2 OF THIS AGREEMENT. -r Initials: Buv¢r Seller 8.2 Default by Seller. If Seller defaults its obligation under this Agreement, including, without limitation, its obligation to sell and convey the Pr pergT to Buyer pursuant to this Agreement, Buyer's sole remedy shall be to elect one of the following: (a) to terminate this Agreement, in which event Buyer shall be entitled to the return by the Escrow Agent to Buyer of the Earnest Money, in which event neither party shall have any further rights or obligations under this Agreement except as provided in Sections 2.2, 2_3 and 10.2 of this Agreement, or (b) to bring a suit for specific performance provided that any suit for specific performance must be brought within 30 days of Seller's default and Buyer shall have fully satisfied all conditions to Closing except for Seller's performance hereunder. To the extent permitted by law, Buyer hereby expressly waives the right to bring suit at any later date. This Agreement confers no present right, title or interest in the Property to r er si filar notice against the Property except in connection Buyer and Buyer agrees not to file a lis pendens o with, and after, the proper filing of a suit for cific �fance. Initials: Buffer Seller ARTICLE 9: -DINT ESCROW INSTRUCTIONS 9.1 Joint Instructions to Escrow Agent. Buyer and Seller hereby instruct the Escrow Agent to comply with the joint instructions set forth on Schedule 9.1 concerning the handling of Earnest Money. ARTICLE 10: GENERAL PROVISIONS 10.1 Parties Bound. Except for an assignment expressly permitted under this Section or pursuant to Section 10.16. Buyer shall not assign this Agreement without the prior written consent of Seller, in its sole discretion. Buyer may assign this Agreement to an affiliate or subsidiary of Buyer, over which Buyer or its parent company owns a majority interest (directly or indirectly) and has management control. In no event shall Buyer be released from any of its obligations or liabilities hereunder if Seller approves of any assignment of this Agreement. Any prohibited assignment shall be void. Subject to the foregoing, this Agreement shall be binding 13 upon and inure to the benefit of the respective legal representatives, successors, assigns, heirs, and devisees of the parties. 10.2 Confidentiality and Public Announcement or Disclosure. Except as expressly provided in this Section, this Section 10.2 shall survive indefinitely the Closing, close of escrow and recordation of the Deed, and shall not be deemed merged into any of the Closing documents, or any termination of this Agreement. (a) Buyer shall not record this Agreement or any memorandum of this Agreement. (b) Prior to Closing, the Property Information and all other information, other than matters of public record, furnished to, or obtained through inspection of the Property by, Buyer, its affiliates, lenders, employees or Buyer's Agents relating to the Property, will be treated by Buyer, its affiliates, lenders, employees and Buyer's Agents as confidential, and will not be disclosed to anyone other than on a need -to -know basis to Buyer's consultants who agree to maintain the confidentiality of such information, or as required by law, and will be returned to Seller by Buyer if the Closing does not occur. The confidentiality of Property Information shall expire if Buyer acquires the Property from Seller. (c) Buyer shall not make any public announcement, press release or similar disclosure of this Agreement or any information related to this Agreement or Closing before the Closing Date, if any, to outside brokers or third parties, without the prior written consent of Seller; provided, however, that Buyer may disclose the transaction to the extent disclosure is legally required through its municipal notice, consideration, and approval processes. 10.3 Headings. The article, section and other headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language hereof. 10.4 Invalidity and Waiver. If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and operative, and effect shall be given to the intent manifested by the portion held invalid or inoperative. The failure by either party to enforce against the other any term or provision of this Agreement shall not be deemed to be a waiver of such party's right to enforce against the other party the same or any other such term or provision in the future. 10.5 Governing Law. This Agreement shall, in all respects, be governed, construed, applied, and enforced in accordance with the law of the state in which the Property is located. Venue for all disputes arising from or related to this Agreement shall be the Cook County Circuit Court, Cook County, Illinois. 10.6 Survival, Limitation of Liability. Unless otherwise expressly stated in this Agreement, each of the covenants, obligations, representations, and agreements contained in this Agreement shall survive the Closing and the execution and delivery of the Closing documents required hereunder only for a period of 6 months immediately following the Closing Date (the "Survival Period'; provided, however the indemnification provisions of Sections 2.2, 2_3 and 6_5 and the provisions of Section 6.1(e) shall survive the termination of this Agreement or the Closing, whichever occurs, and shall not be merged, until the applicable statute of limitations with respect to any claim, cause of action, suit or other action relating thereto shall have fully and finally expired. Any claim based upon a misrepresentation or a breach of a covenant or warranty under this Agreement shall be actionable or enforceable if and only if. (i) notice of such claim is given to the party which allegedly made such misrepresentation or breached such covenant, obligation, warranty or agreement within the Survival Period; (ii) the amount of damages or losses as a result of such claim suffered or sustained by the party making such claim exceeds $25,000.00 (the "Liability Floor"), and (iii) the aggregate liability of Seller for any and all such breaches or misrepresentation shall be limited to an amount equal to 3% of the Purchase Price (the "Liability Ceiling"), provided that if the party's liability shall exceed the Liability Floor, such party shall be liable for the entire amount thereof up to the Liability Ceiling. 14 10.7 No Third Party Beneficiary. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, actions, or remedies to any person or entity as a third party beneficiary, decree or otherwise. 10.8 Entirety and Amendments. This Agreement, together with the exhibits and schedules attached hereto, embody the entire agreement between the parties and supersedes all prior agreements and understandings relating to the Property except for any confidentiality agreement binding on Buyer, which shall not be superseded by this Agreement. This Agreement may be amended or supplemented only by an instrument executed by the party against whom enforcement is sought. 10.9 Time. Time is of the essence in the performance of this Agreement. 10.10 Attorneys' Fees. Should either party employ attorneys to enforce any of the provisions hereof, the party against whom any final judgment is entered agrees to pay the prevailing party in such action or dispute, whether by final judgment or out of court settlement all reasonable costs, charges, and expenses, including reasonable attorneys' fees, expended or incurred in connection therewith. The prevailing party in any such final judgment or out of court settlement shall be the party in whose favor the majority of claims were determined. Any judgment or order entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit, including actual attorneys' fees (collectively "Costs' incurred in enforcing, perfecting and executing such judgment. For the purposes of this Section, Costs shall include, without limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (i) post judgment motions; (ii) contempt proceeding; (iii) garnishment, levy, and debtor and third party examination; (iv) discovery; and (v) bankruptcy litigation. This Section shall survive indefinitely the Closing, close of escrow and recordation of the Deed, and shall not be deemed merged into any of the Closing documents, or the termination of this Agreement. 10.11 Notices. All notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth in Section 1.1. Any such notices shall be either (a) sent by overnight delivery using a nationally recognized overnight courier, in which case notice shall be deemed delivered one business day after deposit with such courier, (b) sent by email, in which case notice shall be deemed delivered upon receipt of confirmation of transmission of such email notice, or (c) sent by personal delivery, in which case notice shall be deemed delivered upon receipt. Any notice sent by email or personal delivery and delivered after 5:00p.m. Central Time shall be deemed received on the next business day. Notices given by counsel to the Buyer shall be deemed given by Buyer and notices given by counsel to the Seller shall be deemed given by Seller. 10.12 Construction. The parties acknowledge that this Agreement has been freely negotiated by both parties, that the parties and their counsel have reviewed and revised this Agreement and agree that the normal rule of construction - to the effect that any ambiguities are to be resolved against the drafting party - shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto. Where the context so requires, the use of the singular shall include the plural and vice versa and the use of the masculine shall include the feminine and the neuter. The term "person" shall include any individual, partnership, joint venture, corporation, trust, unincorporated association, any other entity and any government or any department or agency thereof, whether acting in an individual, fiduciary or other capacity. 10.13 Calculation of Time Periods. All references to time are to Central time zone ("Central Time") unless expressly stated otherwise. References to "day" shall mean calendar days and references to "business day" shall mean a day that is neither a Saturday, Sunday or legal holiday for national banks in the location where the Property is located. Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a business day, in which event the period shall run until the end of the next business day. The last day of any period of time described herein shall be deemed to end at 5:00 p.m. Central Time. 15 10.14 Procedure for Indemnity. Promptly after receipt by an indemnitee of notice of any claim, such indemnitee will notify the indemnitor and the indemnitor shall have the right to participate in and, if the indemnitor accepts such tender in writing with counsel mutually satisfactory to the parties; provided, however, that an indemnitee shall have the right to retain its own counsel, with reasonable fees and expenses to be paid by the indemnitor, if the indemnitee reasonably believes that representation of such indemnitee by the counsel retained by the indemnitor would be inappropriate due to actual or potential differing interests between such indemnitee and any other parry represented by such counsel in such proceeding. The failure of indemnitee to notify the indemnitor within a reasonable time after indemnitee receives notice of any such claim shall relieve such indemnitor of any liability to the indemnitee under this indemnity only if and to the extent that such failure is prejudicial to its ability to defend such action. If an indemnitee settles a claim without the prior written consent of the indemnitor, then the indemnitor shall be released from liability with respect to such claim unless the indemnitor has unreasonably withheld such consent. 10.15 Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all counterparts shall constitute one Agreement. To facilitate execution of this Agreement, the parties may execute and exchange by email in PDF format counterparts of the signature pages, which shall be deemed an original. Further, notwithstanding anything herein to the contrary, unless any of the documents being delivered or obtained pursuant to this Agreement are to be recorded in the applicable real property records (or required in order to allow the recorder's office to record such documents), no originals of such documents shall be required and pdf copies of such executed documents (which may be executed via electronic signature) shall be sufficient. 10.16 Section 1031 Exchange. Each party may consummate the purchase and sale of all or a portion of the Property as part of a so-called like kind exchange (the "Exchange' pursuant to Section 1031 of the Code, provided that: (a) the Closing shall not be delayed or affected by reason of the Exchange nor shall the consummation or accomplishment of the Exchange be a condition precedent or condition subsequent to the exchanging party's obligations under this Agreement; (b) the exchanging party shall effect the Exchange through an assignment of all or a portion of this Agreement, or its rights under this Agreement, to a qualified intermediary; (c) the non -exchanging party shall not be required to take an assignment of the purchase agreement for the relinquished property or be required to acquire or hold title to any real property for purposes of consummating the Exchange; and (d) the exchanging parry shall pay any additional costs that would not otherwise have been incurred by either party had the exchanging party not consummated its purchase through the Exchange. The non -exchanging party shall not by this agreement or acquiescence to the Exchange (x) have its rights under this Agreement affected or diminished in any manner, or (y) be responsible for compliance with or be deemed to have warranted to the exchanging party that the Exchange in fact complies with Section 1031 of the Code. 10.17 JURY TRIAL WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING (I) BROUGHT BY EITHER PARTY OR ANY OTHER PARTY, RELATING TO (A) THIS AGREEMENT AND/OR ANY UNDERSTANDINGS OR PRIOR DEALINGS BETWEEN THE PARTIES HERETO, OR (B) THE PROPERTY OR ANY PART THEREOF, OR (II) TO WHICH SELLER IS A PARTY. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT CONSTITUTES A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY PURSUANT TO ANY APPLICABLE STATE STATUTES. 10.18 Si ngnage. Seller shall remove or paint over any and all signs and brands on the exterior of the building or on the Property that identify Seller, at Seller's cost, within 45 days after the Closing, and Buyer hereby consents to Seller's access to the Property for such removal of or repainting over any and all Prologis signs and/or brands on the Property. The provisions of this Section 10.18 shall survive indefinitely the Closing, close of escrow and recordation of the Deed, and shall not be deemed merged into any of the Closing documents. 16 10.19 Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additional liability, on or after the Closing, any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the conveyance, transfer and assignment of the Property to Buyer. ARTICLE 11: SPECIAL PROVISIONS Seller hereby makes the following disclosures solely with respect to the Property located in the state referenced below: 11.1 Illinois. Seller shall, at least 5 days prior to the Closing, deliver to Buyer evidence that the sale of the Property to Buyer hereunder is not subject to, and does not subject Buyer to liability under 35 ILCS 5/920(d) or 35 ILCS 120/5j (herein collectively referred to as the "Act'. Seller has filed ITR-1 forms notifying the Illinois Department of Revenue (herein referred to as the "Department") of the intended sale and requested the Department to make a determination as to whether the Seller has any assessed, but unpaid, amount of tax, penalties, or interest under the Act. [Signature page to follow.] 17 SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written below. SELLER: PROLOGIS, a Maryland real estate investment trust, successor by name change to PROLOGIS TRUST, successor by dissolution and merger to MIT SECURED LP, successor by name change to PROGRESS CENTER/ALABAMA LIMITED PARTNERSHIP By: . Nan Title Dat( BUYER: VIL By: Nan Title Date Signature to Purchase and Sale Agreement - Page 1 ACKNOWLEDGEMENT BY TITLE COMPANY Escrow Agent has executed this Agreement in order to confirm that Escrow Agent shall act as escrowee with respect to and hold in escrow the Earnest Money and the interest earned thereon, and shall disburse the Earnest Money and the interest earned thereon, pursuant to the provisions of Article 9. LAND SERVICES USA, INC. By: _ Name: Title: Date: Title Company Acknowledgement - Page 1 EXHIBIT 1.2(a) - Legal Description of the Real PropgM LOT 98 IN CENTEX INDUSTRIAL PARK UNIT 10, BEING A SUBDIVISION IN SECTION 26, TOWNSHIP 41 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS. P.I.N.: 08-26-303-013 Address: 1201 Busse Road, Elk Grove Village, Illinois Property Description - Page 1 EXHIBIT 5.2(a)(3) - Form of Tenant Estoppel TENANT ESTOPPEL CERTIFICATE TO: and: [Landlord] c/o Prologis, L.P. 1800 Wazee Street, Suite 500 Denver, Colorado 80202 The undersigned, the tenant ("Tenant") under a certain lease agreement, a true copy of which, with all amendments thereto, is attached hereto as Exhibit A ("Lease', does hereby certify as follows: (a) The Tenant is , a The landlord ("Landlord ') is The property occupied by the Tenant is ("Premises"). (b) The Lease is presently in effect and unmodified and, except by such writings as are identified on Exhibit A hereto, has not been modified, assigned, supplemented or amended since its original execution, nor are there any other agreements between Landlord and Tenant concerning the space rented under the Lease, whether oral or written, nor has Tenant given Landlord notice of termination. (c) There has not been and is now no subletting of the Premises, or any part thereof. (d) The Lease term commenced on (e) Tenant has accepted possession of the leased premises under the Lease and any improvements required by the terms of the Lease to be made by the Landlord have been completed. (f) The Tenant is paying $ [rental amount] per [month/quarter/year] as rent to Landlord under the Lease. The estimated additional rent payable pursuant to the Lease on account of real estate taxes, insurance, common area maintenance expenses and operating expenses in the amount of $ has been paid through and including , 201_. (g) No rent under the Lease has been paid more than thirty (30) days in advance of its due date. (h) Tenant is not in default under the Lease. Tenant has not assigned, transferred, or hypothecated its interest, or any part thereof under the Lease. (i) No uncured default, event of default, or breach by Landlord exists under the Lease, no facts or circumstances exist that, with the passage of time, will or could constitute a default, event of default, or breach under the Lease. Tenant has made no claim against Landlord alleging Landlord's default under the Lease, and Tenant has no claim, charge, defense, or offset under the Lease. 0) Tenant has not made any payment to Landlord as a security deposit or rental deposit except any payment expressly provided for in the Lease as follows: [describe amount and nature of payment]. Form of Tenant Estoppel - Page 1 (k) The undersigned representative of Tenant is duly authorized and fully qualified to execute this instrument on behalf of Tenant thereby binding Tenant; 0) Tenant acknowledges that the term of the Lease shall expire on , unless sooner terminated in accordance with the terms of the Lease. (m) Tenant has no option or right to purchase the Property, or any part thereof. (n) Tenant has notice that the Lease and the rent and all other sums due thereunder have been assigned or are to be assigned to Buyer. Form of Tenant Estoppel - Page 2 The foregoing provisions may be relied on by and shall inure to the benefit of the addressee set forth above and its successors, assigns, and mortgagees and shall be binding upon the undersigned and its successors and assigns. DATED: Acknowledged and Agreed to by: [Guarantor Name] By: Name: Title: [Tenant Name] By: Na: Form of Tenant Estoppel - Page 3 Exhibit A List and Copies of Lease [List on the exhibit cover sheet each lease, amendment (including commencement letters, landlord waivers, SNDA's)] [Note: Attach complete copies of the Lease to estoppel certificate] Form of Tenant Estoppel - Page 4 EXHIBIT 5.3(a.) - Form of Deed PREPARED BY: WHEN RECORDED RETURN TO: ATTN: MAIL TAX STATEMENTS TO: SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE SPECIAL WARRANTY DEED THIS INDENTURE WITNESSETH THAT a , whose address is ("Grantor"), for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid, the receipt, adequacy and sufficiency of which is hereby acknowledged, by these presents does GRANT, CONVEY, BARGAIN AND SELL unto the Village of Elk Grove Village, an Illinois municipal corporation and home rule unit of local government whose address is 901 Wellington Avenue, Elk Grove Village, Illinois 60007 ("Grantee"), the following described real property located in the County of Cook, State of Illinois and legally described as follows: See Legal Description attached hereto as Exhibit A and hereby made a part hereof. Together with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, all the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim or demand whatsoever, of Grantor, either in law or equity, of, in and to the above described property, with the hereditaments and appurtenances: TO HAVE AND TO HOLD said property, with the appurtenances, unto Grantee, its successors and assigns forever. Form of Deed - Page 1 And Grantor, for itself, and its successors, does covenant, promise and agree, to and with Grantee, its successors and assigns, that it has not done or suffered to be done, anything whereby the property hereby granted is, or may be, in any manner encumbered or charged, except as herein recited; and that said property against all persons lawfully claiming, or to claim the same, by through and under Grantor, but not otherwise, Grantor will WARRANT AND DEFEND. SUBJECT TO: taxes not yet due and payable as of the date hereof; all zoning and building laws, ordinances, maps, resolutions and regulations of all governmental authorities having jurisdiction which affect the Property and the use and improvement thereof; the leases, if any, all matters of record; any state of facts which an accurate survey made of the Property as of the date hereof would show; any state of facts which a personal inspection of the Property made as of the date hereof would disclose; the Permitted Exceptions set forth on Exhibit B, attached hereto and made a part hereof. Permanent Index Number(s): 08-26-303-013 Common Address: 1201 Busse Road, Elk Grove Village, Illinois [Signature Page Follows] Form of Deed - Page 2 [Signature Page to Special Warranty Deed] IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be executed as of this day of , 20_. GRANTOR: LN [Insert Notary acknowledgment for state/county where the document is physically executed/notarized OR use Multi -state acknowledgment approved by Title Company] STATE OF COLORADO CITY/COUNTY OF DENVER etc.]. The foregoing instrument was acknowledged before me this day of , 20_, by as of , a on behalf of said [corporation/LLC, Notary Public My Commission Expires: EXEMPT UNDER PROVISIONS OF 35 IL.CS 200/31-45, PARAGRAPH (b), REAL ESTATE TRANSFER ACT SIGNATURE OF BUYER, SELLER OR REPRESENTATIVE Form of Deed - Page 3 Exhibit A Legal Description LOT 98 IN CENTEX INDUSTRIAL PARK UNIT 10, BEING A SUBDIVISION IN SECTION 26, TOWNSHIP 41 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS. P.I.N.: 08-26-303-013 Address: 1201 Busse Road, Elk Grove Village, Illinois Form of Deed - Page 4 EXHIBIT 5.3(b) - Form of Assignment of Leases and Contracts and Bill of Sale ASSIGNMENT OF LEASES AND CONTRACTS AND BILL OF SALE This instrument is executed and delivered as of the day of , 20_ (the "Effective Date") pursuant to that certain Purchase and Sale Agreement and Joint Escrow Instructions dated as of , 20_ (as the same may be amended from time to time, the "Agreement', by and between _ a ("Seller"), and , a covering the real property described in Exhibit A attached hereto ("Real Property"). 1. Sale of Personalty. For good and valuable consideration, Seller hereby sells, transfers, sets over and conveys, without warranty from Seller, to Buyer the following (the "Personal Property"): (a) Tangible Personalty. All of Seller's right, title and interest, if any, in and to all the furniture, fixtures, equipment and other tangible personal property owned by Seller used for the operation, ownership, use, maintenance, and repair of the Real Property and located in or on the Real Property except any such personal property belonging to tenants under the Leases or the management agent and any signage with the name "ProLogis", "Prologis", "AMB, "Liberty", "I"', "IPT", "KM", "DCT" and/or "Duke'; and (b) Intangible Personalty. All the right, title and interest of Seller, if any, in and to assignable licenses and permits relating to the operation of the Real Property, and assignable guaranties and warranties from any contractor, manufacturer or other person in connection with the construction or operation of the Real Property. Notwithstanding the foregoing, the following are not included in this assignment: any trade names, trademarks, service marks, logos, graphics and other rights with respect to the name "ProLogis", "Prologis", "AMB", "Liberty", "LPT", "IPT", "KTR", "DCT" and/or "Duke". 2. Assignment. For good and valuable consideration, Seller hereby assigns, transfers, sets over and conveys to Buyer, and Buyer hereby accepts the following: (a) Leases. All of the landlord's right, title and interest in and to the tenant leases more specifically set out in the Rent Roll attached hereto and made a part hereof as Exhibit B ("Leases") from and after the Effective Date; and (b) Contracts. Seller's right, title and interest in and to the contracts described in Exhibit C attached hereto (the "Contracts"). 3. Assumption. Buyer hereby assumes the obligations of Seller under the Leases and Contracts (including the obligation for the payment of leasing commissions due thereunder as a result of any renewal or expansion of a Lease) arising from and after the Effective Date (collectively, the "Assumed Obligations"). 4. Agreement Applies. The covenants, agreements, disclaimers, representations, warranties, indemnities and limitations provided in the Agreement with respect to the Real Property (including, without limitation, the limitations of liability provided in the Agreement), are hereby incorporated herein by this reference as if herein set out in full and shall inure to the benefit of and shall be binding upon Seller and Buyer and their respective successors and assigns. Form of Assignment of Leases and Contracts and Bill of Sale - Page 1 IN WITNESS WHEREOF, the undersigned have caused this instrument to be executed as of the date written above. SELLER: By: Name: Title: BUYER: By: Na Form of Assignment of Leases and Contracts and Bill of Sale - Page 2 EXHIBIT 5 3( ) - Form of Tenant Notice Letter [Date [Tenant Name] [Address] Re: Property Address City. State Please be advised that the premises of which you are a tenant at the above -referenced property have been acquired by, and the landlord's interest in your lease has been assigned to, (`Buyer"). You are further notified that any security deposits were transferred to Buyer and all payments, rent and otherwise, for period after the date referenced above, should be made payable to Buyer and directed to ("Property Manager") at: [Property Manager Company Name] [Address] [City, State, ZIP] [Contact Name] [Contact Phone] [Contact Fax] [Contact Email] If you have any questions, please contact Property Manager at the address set forth above. Very truly yours, [Landlord Name] By:_ Name: Title: Form of Tenant Notice Letter - Page I Schedule 2.1(b) - List of Leases List of Leases - Page 1 Schedule 2.1(c) - List of Service Contracts List of Service Contracts - Page 1 Schedule 2.1 M - List of Leasing Commission Agreements None. List of Leasing Commission Agreements - Page 1 Schedule 2.1(f - List of Environmental and Other Reports List of Environmental Reports - Page 1 Schedule 9.1 --joint Escrow Instructions 1. Investment and Use of Funds. The Escrow Agent shall invest the Earnest Money in government insured interest -bearing accounts satisfactory to Buyer and Seller, shall not commingle the Earnest Money with any funds of the Escrow Agent or others, and shall promptly provide Buyer and Seller with confirmation of the investments made. If the Closing under this Agreement occurs, the Escrow Agent shall apply the Earnest Money against the Purchase Price due Seller at Closing. 2. Agreement Termination. Upon a termination of this Agreement, either party to this Agreement may notify the Escrow Agent and the other party of such termination and the reason for such termination. Such request shall also constitute a request for the release of the Earnest Money in accordance with the terms of this Agreement. In the event of a dispute concerning the disbursement of the Earnest Money by either party within 5 business days following the termination, then the Escrow Agent shall retain the Earnest Money until it receives written instructions executed by both Seller and Buyer as to the disposition and disbursement of the Earnest Money, or until ordered by final court order, decree or judgment, which is not subject to appeal, to deliver the Earnest Money to a particular party, in which event the Earnest Money shall be delivered in accordance with such notice, instruction, order, decree or judgment. 3. Interpleader. Seller and Buyer mutually agree that in the event of any controversy regarding the Earnest Money, unless mutual written instructions are received by the Escrow Agent directing the disposition of the Earnest Money, the Escrow Agent shall not take any action, but instead shall await the disposition of any proceeding relating to the Earnest Money or, at the Escrow Agent's option, the Escrow Agent may interplead all parties and deposit the Earnest Money with a court of competent jurisdiction in which event the Escrow Agent may recover all of its court costs and reasonable attorneys' fees. Seller or Buyer, whichever loses in any such interpleader action, shall be solely obligated to pay such costs and fees of the Escrow Agent, as well as the reasonable attorneys' fees of the prevailing party in accordance with the other provisions of this Agreement. 4. Reporting Person Responsibilities. The "Reporting Person" within the meaning of Section 1.6045-4(e)(5) of the Regulations (the "Regulations") of the Internal Revenue Code (the "Code"), as may be amended from time to time with respect to the transactions contemplated by this Agreement shall be Escrow Agent. It is agreed that Escrow Agent is an eligible person under Section 1.6045-4(e)(5)(ii) of the Regulations. Escrow Agent hereby agrees to be responsible for complying with the reporting and other requirements of Section 6045(e) of the Code. Pursuant to the Regulations, the address for the transferor and transferee are as set forth for Seller and Buyer in this Agreement, and the identifying information regarding the real estate transferred is the legal description for the Property set forth in this Agreement. Escrow Agent agrees to file the form required by the Regulations between the end of the calendar year in which the Closing Date occurs and February 28 of the following calendar year. Buyer and Seller agree to cooperate with Escrow Agent and with each other in completing any report and/or other information required to be delivered to the Internal Revenue Service pursuant to Section 6045(e) of the Code regarding the real estate sales transaction contemplated by this Agreement, including without limitation, Internal Revenue Service Form 1099-S as such may be hereafter modified or amended by the Internal Revenue Service, or as may be required pursuant to any Regulation now or hereafter promulgated by the Treasury Department with respect thereto. 5. Liability of Escrow Agent. The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties for any action List of Pending Litigation - Page 1 or omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for its negligent acts and for any loss, cost or expense incurred by Seller or Buyer resulting from the Escrow Agent's mistake of law respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses, including reasonable attorneys' fees, incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent.