PSA Galesburg Draft-Final.docx

PURCHASE AND SALE AGREEMENT

This Purchase and Sale Agreement (“Agreement”) is between the Seller and Purchaser identified in Paragraph 1.1 of this Agreement and concerns their purchase and sale transaction for the Property described in Paragraph 1.2 of this Agreement. The Seller and Purchaser so identified are the parties to the purchase and sale transaction and the parties in this Agreement. Sometimes herein Seller and Purchaser are referred to, collectively, with an initial capital letter as the “Parties” herein. Irrespective of any dates placed on the signature page(s) by individuals when signing this Agreement, and irrespective of any omission of dates on the signature page(s) when individuals signed this Agreement, this Agreement is entered into and is effective as of _____ ___, ________; that date is the “Effective Date” of this Agreement.

ARTICLE 1: BASIC TERMS / PURCHASE PRICE / PROPERTY / ETC.

1.1 Certain Basic Terms.

(a) Purchaser & its Notice Address:

Telephone: Email:

With a copy to:

Telephone: Email:

555 West Monroe, FL 13 Chicago, IL 60601 Attn.: Deputy Gen’l Counsel - Property Telephone:

Email: ____________________

555 West Monroe, FL 13 Chicago, IL 60601 Attn.: General Counsel Telephone:

Email: ____________________

1920 South 10 ½ Street Springfield, IL 62703 Attn.: Real Property Administrator Telephone: 217-720-6337

Email:Mary.Poani2@illinois.gov

Telephone: Facsimile:

Email:

Telephone:

Facsimile:

Email:

1.2 Property. Subject to the terms contained in this Purchase and Sale Agreement (this “Agreement”), Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, without any warranty whatsoever, all of Seller’s right, title and interest in and to the following property (together, the “Property”):

(a) The real property described in Exhibit A attached hereto, together with the buildings and improvements thereon (the “Improvements”), and all appurtenances of or to the above- described real property, including easements or rights-of-way relating thereto, and, without any warranty whatsoever, all right, title, and interest, if any, of Seller in and to the land lying within any street, roadway or waterway adjoining the real property described above or any vacated or hereafter vacated street or alley adjoining said real property (the foregoing, the “Real Property”).

(b) To the extent that portions of the Real Property lie within the boundaries of any street, roadway, easement, encroachment, or alley, those portions of the Real Property are hereby acknowledged by Purchaser to be subject to the other rights, including those of the public.

(c) The Tangible Personal Property and the Intangible Personal Property, as each is described below, if any (together, the “Personal Property”):

(i) Any and all furniture, fixtures and equipment, of all types, and other tangible personal property, if any, owned by Seller and presently located on the Real Property, but without any warranty whatsoever (the “Tangible Personal Property”); and

(ii) Any and all of the following items, to the extent assignable but without any warranty whatsoever (the “Intangible Personal Property”): (x) licenses and permits relating to the operation of the Real Property, and (y) the right to use the name of the Real Property and the Improvements in connection with the Real Property; except, however, specifically excluding any right, title or interest of Seller in any trademarks, service marks and trade names.

1.3 Earnest Money. The Earnest Money, in immediately available federal funds, evidencing Purchaser’s good faith commitment to perform Purchaser’s obligations under this Agreement, shall be deposited by Purchaser with the Escrow Agent not later than the next business day after the execution of this Agreement. However, to the extent Purchaser has provided the Earnest Money directly to Seller prior to the execution of this Agreement, Seller shall cause the deposit of those funds with the Escrow Agent.

In the event that Purchaser fails to timely deposit the Earnest Money with the Escrow Agent, this Agreement shall be of no force and effect.

At Closing, the Earnest Money shall be applied to the Purchase Price. Otherwise, the Earnest Money shall be delivered to the Party entitled to receive the Earnest Money in accordance with this Agreement.

1.4 Required Purchaser Disclosure Statement. Not later than the next business day after the execution of this Agreement, Purchaser shall provide Seller with a completed, executed and acknowledged Purchaser Disclosure Statement using the form of Exhibit B attached hereto in form and substance acceptable to the Seller. In the sole opinion of the Seller is the Purchase Disclosure Statement is unacceptable to Seller, the Earnest Money shall be returned, and this Agreement shall be of no further force and effect.

1.5 Independent Contract Consideration. Contemporaneously with the execution of this Agreement, Purchaser hereby delivers to Seller a check in the amount of One Thousand and No/100 Dollars ($1,000.00) (“Independent Contract Consideration”), which amount the Parties bargained for and agreed to as consideration for Seller’s act of executing and delivering this Agreement. The Independent Contract Consideration is in addition to and independent of any other consideration or payment provided in this Agreement, is nonrefundable, and shall be retained by Seller notwithstanding any other provisions of this Agreement.

ARTICLE 2: INFORMATION / INVESTIGATIONS

2.1 Property Information. Prior to the Date of this Agreement, Seller made available to Purchaser the information listed on Exhibit A attached hereto (“Property Information”), to the extent it is in Seller’s possession and control.

Seller makes no representations or warranties as to the accuracy or completeness of the Property Information. This Paragraph 2.1 concerns both the A-type and the B-type information described herein, i.e., the A-type being information obtained through inspection of the Property by Purchaser, the Purchaser Related Parties (as such term is defined in (b) of Paragraph 2.3) or Purchaser’s lender, if applicable, and the B-type being the Property Information and all other information, other than matters of public record, furnished by Seller to Purchaser, Purchaser Related Parties or Purchaser’s lender, if applicable. Purchaser warrants to Seller that all that information, will be treated by Purchaser, the Purchaser Related Parties and Purchaser’s lender, if any, as confidential, and will not be disclosed to anyone other than on a need-to-know basis to Purchaser’s consultants and contractors who agree in writing to maintain the confidentiality of such information, and will be returned to Seller by Purchaser if the Closing does not occur. Seller assumes no duty to furnish Purchaser with any other existing information, reports or updates of such materials. Purchaser hereby waives any and all claims against Seller arising out of the accuracy (or claimed inaccuracy), the completeness (or claimed incompleteness), or the foundation of opinions, conclusions or statements expressed in materials so furnished, and any and all claims arising out of any duty of Seller to acquire, seek or obtain such materials. The provisions in this Paragraph 2.1 shall survive the Closing or any termination of this Agreement.

2.2 Prior Investigations.

(a) Acknowledgment of Prior Investigations. Purchaser hereby acknowledges that, prior to the Date of this Agreement, (i) Purchaser was given the opportunity to make, and in fact made, a complete review, investigation and inspection of the physical, legal, and environmental condition of the Property, including, without limitation (if any of the following are actually in existence): any and all contracts affecting the Property, the books and records maintained by Seller or its agents relating to soil conditions and load bearing capacities, soil gases and groundwater, the water table, the geologic conditions, the pest prevalence (if any) at the Property, pest control matters, asbestos, PCBs, hazardous wastes, toxic substances or other environmental matters (including, without limitation, a Phase I environmental site assessment and inspection of the Property by Purchaser and Purchaser’s consultants and contractors), compliance with health, safety, land use and zoning, land development, and building laws, regulations and orders, structural, life safety, and other building system and engineering characteristics, vehicle traffic patterns in the vicinity, and all other information pertaining to the Property, and other third-party inspection reports and similar materials in Seller’s possession relating to the Property, all of which inspections were made at Purchaser’s sole risk, cost and expense.

(b) Indemnity. Purchaser shall indemnify, defend and hold harmless Seller and Seller’s directors, managers, officers, counsel, affiliates, agents, contractors, consultants, employees, successors and assigns (“Seller Related Parties” (each a Seller Related Party)) and the Property from and against any and all losses, costs, damages, claims, or liabilities arising out of or in connection with any entry upon the Property or inspections performed by Purchaser or its representatives. The foregoing indemnity shall survive the Closing or any termination of this Agreement.

2.3 Purchaser’s Reliance on Purchaser’s Own Investigations.

(a) AS-IS, WHERE IS, WITH ALL FAULTS. Purchaser acknowledges and agrees that (i) by this Agreement, the Property is being sold in “AS IS, WHERE IS, WITH ALL FAULTS” condition at the Date of Closing, with no right of setoff or reduction in the Purchase Price, and Purchaser will accept ownership and possession of the Property on the Date of Closing in that condition; and (ii) except for Seller’s representations and warranties in Paragraph 8.1 (“Seller’s Warranties”), neither Seller nor any Seller Related Party has made, or shall be deemed to have made, any oral or written representations, warranties, promises or guarantees (whether expressed or implied, statutory or otherwise) to Purchaser with respect to the Property, any matter set forth, contained or addressed in the documents delivered to Purchaser (or made available to Purchaser as part of the Property Information) in connection with the Property (including, but not limited to, the accuracy and completeness thereof) or the results of Purchaser’s own due diligence examinations and investigations.

Purchaser further acknowledges and agrees that Purchaser has confirmed independently all information that it considers material to its purchase of the Property and its decisions regarding the consummation of the transaction contemplated in this Agreement; and that, except for Seller’s Warranties, Purchaser is not relying on (and Seller, for itself and on behalf of the Seller Related Parties, does hereby disclaim and renounce) any and all representations and warranties of any kind or nature whatsoever, whether oral or written, express, implied, statutory or otherwise, as to: (1) the operation of the Property or the income potential, uses, or the merchantability, habitability or fitness of any portion of the Property for a particular purpose; (2) the physical condition of the Property or the condition or safety of the Property or any component thereof, including, but not limited to, plumbing, sewer, heating, air handling and air conditioning, ventilating and electrical systems, roofing, foundations, soils and geology, including hazardous materials, lot size, or suitability of the Property or any component thereof for a particular purpose; (3) the presence or absence, location or scope of any hazardous materials in, at, about or under the Property; (4) whether the appliances, if any, plumbing or utilities are in working order; (5) the habitability or suitability for occupancy of any structure or the quality of its construction; (6) whether the Improvements are structurally sound, in good condition, or in compliance with applicable laws; (7) the accuracy of any statements, calculations or conditions stated or set forth in the Seller’s or the Seller Related Parties’ books and records concerning the Property or set forth in any offering materials with respect to the Property; (8) the dimensions or boundaries of the Property or the dimensions or boundaries of any portions of the Property; (9) the accuracy of any floor plans, square footage, abstracts, sketches, or revenue or expense projections related to the Property; (10) the operating performance, the income and expenses of the Property or the economic status of the Property; (11) the ability of Purchaser to obtain any and all necessary governmental approvals or permits for Purchaser’s intended use and development of the Property; (12) except as set forth among Seller’s Warranties the leasing status of the Property or the intentions of any parties with respect to the negotiation and/or execution of any lease for any portion of the Property; and (13) Seller’s ownership of any portion of the Property.

Purchaser further acknowledges and agrees that Seller is under no duty to update any information furnished to Purchaser, and except for Seller’s Warranties, Seller is under no duty to make any affirmative disclosures or inquiries regarding any matter which may or may not be known to Seller or the Seller Related Parties; Purchaser, for itself and for the Purchaser Related Parties, as that term is defined in Paragraph 2.3(b), and for its and their respective successors and assigns, hereby specifically waives and releases Seller and each of the Seller Related Parties from any such duties that otherwise might exist.

(b) Release. Purchaser, for itself and its partners, members, shareholders, directors, officers, affiliates, agents, contractors, consultants, employees, and their respective successors and assigns (“Purchaser Related Parties”), hereby releases Seller and each of the Seller Related Parties from, and hereby waives all claims and liability against Seller and each of the Seller Related Parties for or attributable to, the following, or any thereof: (1) any and all statements or opinions heretofore or hereafter made, or information furnished, by the Seller or any of the Seller Related Parties to Purchaser or any of the Purchaser Related Parties; and (2) any and all losses, costs, claims, liabilities, expenses, demands or obligations of any kind or nature whatsoever attributable to the Property, whether arising or accruing before, on or after the date hereof and whether attributable to events or circumstances which have heretofore or may hereafter occur, including, without limitation, (i) all losses, costs, claims, liabilities, expenses, demands and obligations with respect to the structural, physical, or environmental condition of the Property; (ii) all losses, costs, claims, liabilities, expenses, demands and obligations relating to the release of or the presence, discovery or removal of any hazardous materials in, at, about or under the Property, or for, connected with or arising out of any and all claims or causes of action based upon CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§9601 et seq., as amended by SARA (Superfund Amendment and Reauthorization Act of 1986) and as may be further amended from time to time), the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901 et seq., or any related claims or causes of action or any other federal, state or municipal based statutory or regulatory causes of action for environmental contamination at, in, about or under the Property; and (iii) any tort claims made or brought with respect to the Property or the use or operation thereof.

The provisions of this Paragraph 2.3 shall survive the Closing or termination of this Agreement and shall not be merged into the Deed or any of the other closing documents.

2.4 Disclosure Regarding Special Taxing Districts. Seller hereby makes the following specific disclosure to Purchaser: Special taxing districts may be subject to general obligation indebtedness that is paid by revenues produced from annual tax levies on the taxable property within such districts. Property owners in such districts may be placed at risk for increased mill levies and additional tax burdens to support the servicing of such debt where circumstances arise resulting in the inability of such a district to discharge such indebtedness without such an increase in mill levies. Purchaser hereby acknowledges that it investigated and has approved of the debt financing requirements of the authorized general obligation indebtedness of such districts, existing mill levies of such district servicing such indebtedness, and the potential for an increase in such mill levies, as may be applicable to the Property.

ARTICLE 3: TITLE REVIEW

3.1 Title Review. Purchaser has reviewed that certain Title Commitment dated [ ] (the “Title Report”) issued by the Title Company with respect to the Real Property Purchaser may, at its sole expense, obtain any additional title commitment(s) or report(s) or survey desired by Purchaser. Purchaser shall have the right to request that the Title Company provide, but only at Purchaser’s sole cost and expense, any reinsurance or endorsements Purchaser shall desire to request, provided that the issuance of such reinsurance or endorsements shall not be a condition to or delay the Closing.

3.2 Removal of Liens; Affidavits. Seller shall have no obligation to remove any exceptions to title other than those pertaining to real estate taxes lawfully assessed and owed by Seller, if applicable, and mortgages of record made or assumed by Seller, if any. Seller shall have no obligation to execute any affidavits or indemnifications in connection with the issuance of Purchaser’s title insurance policy, excepting only affidavits in form satisfactory to Seller as to Seller’s authority and the status of mechanics’ liens.

ARTICLE 4: OPERATIONS AND RISK OF LOSS

4.1 Ongoing Operations. During the pendency of this Agreement, Seller shall carry on its business and activities relating to the Property substantially in the same manner as Seller did before the Date of this Agreement; provided, however, in no event shall Seller be obligated to make any capital repairs or replacements, or any repairs or replacements of any other kind whatsoever.

4.2 New Contracts. During the pendency of this Agreement, Seller will not, without the prior consent of the Purchaser, which shall not be unreasonably withheld, conditioned 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. For the avoidance of doubt, no consent of the Purchaser is required for such contracts as those described in the preceding sentence.

4.3 Damage or Condemnation. Risk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened before the Closing shall remain with Seller, but any risk of loss to the Property due to damage caused by fire, flood or any other cause before the Closing, shall be at Purchaser’s sole risk.

If before the Closing more than twenty percent (20%) of the square footage of the land of the Real Property (and, for clarity, twenty percent (20%) of the square footage of such land is here defined as a “Material Portion of the Real Property”) shall be subjected to a bona fide threat of condemnation or shall become the subject of any proceedings, judicial, administrative or otherwise, with respect to a taking by eminent domain or condemnation, then Purchaser may terminate this Agreement by written notice to Seller given within five days after Purchaser learns about that, in which event the Earnest Money shall be returned to Purchaser. If the Closing Date is within the aforementioned 5-day period, then Purchaser may elect to have the Closing extended to the next business day following the end of said 5-day period. If no such election is made, and in any event if the eminent domain taking affects only a portion of the Property but not more than a Material Portion of the Real Property, 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 consummated with no further adjustment, and upon the Closing of this purchase, Seller shall assign, transfer and set over to Purchaser 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. For the purposes of this paragraph, the phrases “material damage” and “materially damaged” refer only to damage involving a Material Portion of the Real Property or more. The provisions of this Paragraph 4.3 supersede the provisions of any applicable laws with respect to the subject matter of this Paragraph 4.3.

ARTICLE 5: CONDITIONS PRECEDENT

5.1 Purchaser’s Conditions. Notwithstanding anything in this Agreement to the contrary, Purchaser’s obligation to purchase the Property shall be subject to and contingent upon the satisfaction or waiver of the following conditions precedent:

(a) Performance. Seller’s performance or tender of performance of all its material obligations under this Agreement and the material truth and accuracy of Seller’s express representations and warranties contained in this Agreement as of the Closing Date, unless such representations and warranties have changed by reason of facts or circumstances which pursuant to the terms of this Agreement are permitted to have occurred, and subject to Paragraph 9.3(a) below.

5.2 Seller’s Conditions. Notwithstanding anything in this Agreement to the contrary, Seller’s obligation to sell the Property shall be subject to and contingent upon the satisfaction or waiver of all of the following conditions precedent:

(a) Performance. Purchaser’s performance or tender of performance of all its material obligations under this Agreement and the material truth and accuracy of Purchaser’s express representations and warranties in this Agreement as of the Closing Date.

5.3 Failure or Waiver of Conditions Precedent. In the event any of the conditions set forth in Paragraphs 5.1 or 5.2 are not fulfilled or waived, the Party benefited by such conditions may, by written notice to the other Party, terminate this Agreement, whereupon all rights and obligations hereunder of each Party shall be at an end except those that expressly survive any termination. Either Party may, at its election, at any time on or before the date specified for the satisfaction of the condition, waive in writing the benefit of any of the conditions set forth in Paragraphs 5.1 and 5.2 above. In the event this Agreement is terminated as a result of any condition set forth in Paragraph 5.1, Purchaser shall be entitled to a refund of the Earnest Money, unless Purchaser is in default, in which case Paragraph 9.1 shall apply. In any event, Purchaser’s consent to the close of escrow pursuant to this Agreement shall constitute a waiver of any remaining unfulfilled conditions, and a waiver of any liability on the part of Seller for breaches of representations, warranties and covenants, to the extent the same survive the Closing, of which Purchaser had knowledge as of the Closing.

ARTICLE 6: CLOSING

6.1 Closing. The consummation of the transaction contemplated in this Agreement (“Closing”) shall occur on the Closing Date through the Escrow Agent. Upon completion of the deliveries pursuant to Paragraphs 6.2 and 6.3, satisfaction of the other conditions to Closing herein set forth and performance by each party of its obligations required to be performed prior to or at the Closing, the Parties shall direct the Escrow Agent to make such deliveries and disbursements according to the terms of this Agreement.

6.2 Seller’s Deliveries in Escrow. On or before the Closing Date (as the same may be extended as provided herein), Seller shall deliver in escrow to the Escrow Agent the following:

(a) Deed. A Quit Claim Deed (the “Deed”) in the form attached hereto as Exhibit C, conveying and quitclaiming to Purchaser the title of Seller to the Property;

(b) Bill of Sale. A Quit Claim Bill of Sale (the “Assignment”) with respect to the Personal Property, which Assignment shall be in the form of Exhibit D attached hereto, executed by the Seller;

(c) State Law Disclosures. Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property;

(d) FIRPTA. An affidavit (known as a FIRPTA affidavit) executed by Seller setting forth Seller's U.S. taxpayer identification number and stating that Seller is not a "foreign person" as defined in subsection (f) of 26 U.S.C. § 1445.

(e) Additional Documents. Any additional documents that the Escrow Agent or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement.

6.3 Purchaser’s Deliveries in Escrow. On or before the Closing Date, Purchaser shall deliver in escrow to the Escrow Agent the following:

(a) Purchase Price. The Purchase Price, less the Earnest Money that is to be applied to the Purchase Price, plus or minus applicable prorations, deposited by Purchaser with the Escrow Agent in immediate, same-day federal funds by wire transfer through the Federal Reserve system, for prompt credit into the Escrow Agent’s escrow account;

(b) Bill of Sale. The Assignment (in the form of Exhibit D), executed by Purchaser;

(c) State Law Disclosures. Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property;

(d) Additional Documents. Any additional documents that the Seller, the Escrow Agent or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Agreement.

6.4 Closing Statement/Escrow Fees. At the Closing, Seller and Purchaser shall deposit with the Escrow Agent an executed closing statement consistent with this Agreement in the form required by the Escrow Agent.

6.5 Possession. Seller shall deliver possession of the Property to Purchaser at the Closing.

6.6 Post-Closing Deliveries. Immediately after the Closing, Seller shall deliver the following, to the extent in Seller’s possession or control, to the offices of Purchaser’s property manager: copies or originals of all contracts, receipts for deposits, and unpaid bills; all keys, if any, used in the operation of the Property; and any “as-built” plans and specifications of the Improvements.

6.7 Intentionally Omitted.

6.8 Closing Costs; Reimbursements. At Closing, Seller and Purchaser shall pay the costs of closing the transaction contemplated hereby as provided on Schedule 2 attached hereto. At Closing, Seller and Purchaser shall each pay one-half of any escrow fees. Each party shall pay its own attorneys’ fees.

6.9 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 Purchaser.

ARTICLE 7: PRORATIONS

7.1 Taxes. Notwithstanding anything to the contrary contained in this Agreement, Seller and Purchaser hereby acknowledge and agree that Seller is a governmental body exempt from any obligation to pay real estate taxes and assessments imposed by a governmental authority (collectively, “Taxes”) and that, accordingly, no proration of Taxes will be made at Closing. Purchaser hereby acknowledges and agrees that Purchaser will be obligated to pay any and all Taxes or levies with respect to this transaction and the Property.

7.2 Utility Deposits. Purchaser shall be responsible for making any deposits required with utility companies.

7.3 Sale Commissions - Seller. Seller represents and warrants to Purchaser that Seller has not dealt with any real estate broker, salesperson or finder in connection with the sourcing, negotiation, execution or consummation this transaction, and that Seller believes it has not incurred or caused any liability to any real estate broker, salesperson, finder or other person arguably able to claim fees or commissions with respect to that.

7.4 Sale Commissions – Purchaser. Purchaser represents and warrants to Seller that Purchaser has not dealt with any real estate broker, salesperson or finder in connection with the sourcing, negotiation, execution or consummation this transaction, and that Purchaser believes it has not incurred or caused any liability to any real estate broker, salesperson, finder or other person arguably able to claim fees or commissions with respect to that. Purchaser shall defend, indemnify and hold harmless the Seller, including reasonable attorney's fees for counsel acceptable to Seller, from any and all claims made for commissions or finder's fees that have been induced or incurred or caused by the words or actions of Purchaser. The foregoing indemnity shall survive the Closing or any earlier termination of this Agreement.

7.5 Contracts. Any and all payments under the Contracts shall be prorated as of the Closing Date. Purchaser will assume at Closing any and all of the Contracts affecting the Property.

7.6 Survival. The provisions of this Article 7 shall survive the Closing.

ARTICLE 8: REPRESENTATIONS AND WARRANTIES

8.1 Seller’s Representations and Warranties. As a material inducement to Purchaser to execute this Agreement and consummate this transaction, Seller represents and warrants to Purchaser as follows:

(a) Organization and Authority. Seller is a validly existing Department of the government of the State of Illinois. Seller has the 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 Seller at the Closing will be, authorized and properly executed and will constitute 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, that is binding on Seller, which is in conflict with this Agreement. To Seller’s knowledge there is no action or proceeding pending or threatened in writing against Seller or the Property, including condemnation proceedings, which either challenges or impairs Seller’s ability to execute and perform its obligations under this Agreement.

(c) Leases. As of the Closing, Seller will not be a party to any occupancy leases, subleases or other tenancies, written or oral, in effect pertaining to the Property (“Leases”).

(d) Contracts. As of the Closing, Seller will not be a party to any service contracts for or affecting the Property (“Contracts”).

Seller’s representations and warranties set forth in this Paragraph 8.1 shall merge with the Deed and other documents executed at Closing and shall terminate at Closing and shall not survive the Closing.

8.2 Purchaser’s Representations and Warranties. As a material inducement to Seller to execute this Agreement and consummate this transaction, Purchaser represents and warrants to Seller that:

(a) Organization and Authority. Purchaser has been duly organized and is validly existing as a ___________ in good standing in the State of and is qualified to do business in the State of Illinois, the state in which the Property is located. Purchaser has the full right and authority and has obtained all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated by this Agreement. This Agreement has been, and all of the documents to be delivered by Purchaser at the Closing will be, authorized and properly executed and will constitute the valid and binding obligation of Purchaser, enforceable in accordance with their terms.

(b) Conflicts and Pending Action. There is no agreement to which Purchaser is a party or, to Purchaser’s knowledge, that is binding on Purchaser which is in conflict with this Agreement. There is no action or proceeding pending or, to Purchaser’s knowledge, threatened against Purchaser which either challenges or impairs Purchaser’s ability to execute and perform its obligations under this Agreement.

(c) ERISA. Purchaser does not hold the assets of any employee benefit plan within the meaning of 29 CFR 2501.3-101(a)(2).

(d) Blocked Persons. Purchaser is not (i) a person appearing on the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control in the United States Department of the Treasury, (ii) a person with whom a transaction is otherwise prohibited by applicable provisions of Executive Order 13224, the USA PATRIOT Act, the Trading with the Enemy Act, the International Emergency Economic Powers Act, or the Executive Orders or regulations promulgated pursuant to any of the above (including but not limited to the foreign assets control regulations of the United States Treasury Department), in each case as amended from time to time, or (iii) a person owned 50 percent or more by one or more of the persons described in the foregoing items (i) or (ii) or controlled by any person described in the foregoing items (i) or (ii) (with ownership of twenty percent (20%) or more of outstanding voting securities being presumptively a control position).

ARTICLE 9: DEFAULT AND DAMAGES

9.1 Default by Purchaser. If Purchaser defaults in any of its covenants, agreements or representations under this Agreement, Purchaser agrees that Seller shall have the right to have the Escrow Agent deliver the Earnest Money to Seller as liquidated damages to recompense Seller for time spent, labor and services performed, and the loss of its bargain. Purchaser and Seller agree that it would be impracticable or extremely difficult to affix damages if Purchaser so defaults and that the Earnest Money, together with the interest thereon, represents a reasonable estimate of Seller’s damages. Seller agrees to accept the Earnest Money as Seller’s total damages and relief hereunder if Purchaser defaults in any of its covenants, agreements or representations under this Agreement. If Purchaser does so default, this Agreement shall be terminated, and Purchaser shall have no further right, title or interest in this Agreement or rightful claim to the Property.

9.2 Default by Seller. If prior to Closing Seller defaults in any of its covenants, agreements or representations under this Agreement, Purchaser’s sole and exclusive remedy shall be to elect one of the following: (a) to terminate this Agreement, in which event Purchaser shall be entitled to the return of the Earnest Money by the Escrow Agent, or (b) to bring a suit for specific performance provided that any suit for specific performance must be brought within five business days of Seller’s default, and only if and to the extent permitted by law.

Purchaser hereby waives the right to bring a suit for specific performance at any later date than is allowed in this Paragraph 9.2. As a condition precedent to any suit for specific performance, Purchaser must have tendered all of its deliveries on or before the Closing Date, including the Purchase Price. Purchaser hereby waives any other rights or remedies, including, without limitation, the right to seek money damages. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages. This Agreement confers no present right, title or interest in the Property to Purchaser and Purchaser agrees not to file a lis pendens or other similar notice against the Property except in connection with, and after, the filing by Purchaser of a suit for specific performance.

9.3 Limitations.

(a) Disclosure / Discovery. Notwithstanding any contrary provision of this Agreement, if during the pendency of this Agreement, but prior to Closing, Seller discloses to Purchaser any matters which make any of Seller’s representations and warranties untrue in any material respect (a “Seller Disclosed Matter”) or in the event that Purchaser otherwise becomes aware of (discovers) during the pendency of this Agreement, but prior to Closing, any matters which make any of Seller’s representations or warranties untrue in any material respect (a “Purchaser Discovered Matter”), such representations and warranties of Seller shall be deemed modified to reflect such matters and Seller shall bear no liability for such matters; however Purchaser shall have the right to elect, by written notice (“Election Notice”) given to Seller within two business days after the disclosure of a Seller Disclosed Matter or the discovery of a Purchaser Discovered Matter, but in no event later than the Closing Date,

(i) to waive such matter and complete the purchase of the Property without reduction of the Purchase Price accordance with the terms of this Agreement, or

(ii) as to any matter that first becomes known by Purchaser after the date which is 21 calendar days after the Effective Date (with the first day being the day following the Effective Date), Purchaser may elect by a promptly given Election Notice to Seller to terminate this Agreement (in which event, Purchaser shall be entitled to a refund of the Earnest Money). For purposes of this Paragraph 9.3(a), a promptly given Election Notice of termination by Purchaser is one given no later than the second business day after the matter giving rise to Purchaser’s Election Notice of termination first becomes known by Purchaser.

Any failure by Purchaser to timely give notice under clause (ii) above shall be deemed to constitute a waiver under clause (i).

Notwithstanding any of the foregoing, Purchaser acknowledges that Seller is a governmental body that is subject to the state Freedom of Information Act (5 ILCS 140 et. seq.) and other transparency in government policies that restrict or limit Seller’s ability to limit disclosures. For all purposes hereunder, Purchaser shall be deemed to have knowledge of all matters set forth in the Property Information as and when made available to Purchaser.

ARTICLE 10: EARNEST MONEY PROVISIONS

10.1 Investment and Use of Funds. The Escrow Agent shall invest the Earnest Money in government insured interest-bearing accounts satisfactory to Purchaser and Seller, shall not commingle the Earnest Money with any funds of the Escrow Agent or others, and shall promptly provide Purchaser and Seller with confirmation of the investments made. If the Closing under this Agreement occurs, the Escrow Agent shall apply the Earnest Money to the Purchase Price on the Closing Date.

10.2 Termination. Except as otherwise expressly provided herein, upon not less than five business days’ prior written notice to the Escrow Agent and the other party, Escrow Agent shall deliver the Earnest Money to the party requesting the same; provided, however, that if the other party shall, within said five business day period, deliver to the requesting party and the Escrow Agent a written notice that the other party disputes the claim to the Earnest Money, Escrow Agent shall retain the Earnest Money until Escrow Agent receives written instructions executed by both Seller and Purchaser 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.

10.3 Interpleader. Seller and Purchaser 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 Earnest Money’s disposition, 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 Purchaser, 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.

10.4 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 or omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for Escrow Agent’s negligent acts and for any loss, cost or expense incurred by Seller or Purchaser resulting from the Escrow Agent’s mistake of law respecting the Escrow Agent’s scope or nature of its duties. Seller and Purchaser 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.

ARTICLE 11: MISCELLANEOUS

11.1 Parties Bound. Purchaser may not assign this Agreement without the prior written consent of Seller, and any such assignment without such Seller consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties’ respective legal representatives, successors, assigns, heirs, and devisees.

11.2 Confidentiality; Press Release. Until the Closing, neither Seller nor Purchaser will give any media interviews or release or cause or permit to be released any press notices, or publicity (oral or written) or advertising promotion relating to, or otherwise disclose or announce or cause or permit to be disclosed or announced, in any manner whatsoever, the terms, conditions or substance of this Agreement without first obtaining the written consent of the other Party. The foregoing shall not preclude either Party from discussing the substance or any relevant details of the purchase and sale transaction of this Agreement with any of its attorneys, accountants, professional consultants, lenders, partners, investors, or any prospective lender, partner or investor, as the case may be, or prevent either Party hereto from complying with laws, rules, regulations and court orders, including without limitation, governmental regulatory, disclosure, tax and reporting requirements.

Any Party to this purchase and sale transaction (and each employee, agent or representative of the foregoing) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided to them relating to such tax treatment and tax structure except to the extent maintaining such confidentiality is necessary to comply with any applicable federal or state securities laws. The authorization in the preceding sentence is not intended to permit disclosure of any other information unrelated to the tax treatment and tax structure of the transaction including (without limitation) (i) any portion of the transaction documents or related materials to the extent not related to the tax treatment or tax structure of the transaction, (ii) the existence or status of any negotiations unrelated to the tax issues, or (iii) any other term or detail not relevant to the tax treatment or the tax structure of the transaction. In addition to any other remedies available to a Party, each Party shall have the right to seek equitable relief, including without limitation injunctive relief or specific performance, against the other Party in order to enforce the provisions of this Paragraph 11.2.

Notwithstanding any of the foregoing, Purchaser acknowledges that Seller is a governmental body that is subject to the Freedom of Information Act (5 ILCS 140 et. seq.) and other transparency-in-government policies that restrict Seller’s ability to limit disclosures.

11.3 Headings. The article and paragraph headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language thereof.

11.4 The Meaning of Certain Terms. “Seller’s knowledge” as used in this Agreement means the current actual knowledge of the Department of Central Management Services of the State of Illinois, without any duty of inquiry or investigation.

Wherever in this Agreement Purchaser is obligated to “defend” Seller, that means Purchaser shall engage, at Purchaser’s sole cost and expense, and shall fully and promptly compensate, defense attorneys and consultants found to be acceptable by Seller.

In this Agreement the term “business day” means any day on which Seller is officially open for business, which includes every day except Saturdays, Sundays and State Holidays; and the term “State Holidays” means the holidays listed at the following internet URL: https://www2.illinois.gov/cms/personnel/employeeresources/Pages/StateHolidays.aspx

11.5 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 that is reasonably found to be 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.

11.6 Governing Law. This Agreement shall, in all respects, be governed, construed, applied, and enforced in accordance with the law of the State of Illinois.

11.7 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.

11.8 Entirety and Amendments. This Agreement embodies the entire agreement between the Parties and supersedes all prior agreements and understandings relating to the Property except for any confidentiality agreement binding on Purchaser, which shall not be superseded by this Agreement. This Agreement may be amended or supplemented only by a document in writing executed by the Party against whom enforcement is sought.

11.9 Time is of the Essence. Time is of the essence in the performance of this Agreement.

11.10 Attorneys’ Fees. For all aspects of this Agreement and the purchase and sale transaction contemplated hereby, both before and after Closing, each Party shall be responsible to pay the fees and expenses of its own attorneys, and not the fees and expenses of the other Party.

11.11 Notices. All notices required or permitted hereunder shall be in writing and shall be served on the Parties at the addresses set forth in Paragraph 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 facsimile, with written confirmation by overnight or first class mail, in which case notice shall be deemed delivered upon receipt of confirmation of transmission of such facsimile notice, or (c) sent by personal delivery, in which case notice shall be deemed delivered upon receipt. Any notice sent by facsimile or personal delivery and delivered after 5:00 p.m., prevailing Central Time, shall be deemed received on the next business day. A party’s address may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice.

11.12 Construction. The Parties acknowledge that the Parties and their counsel have reviewed and revised this Agreement and 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.

11.13 Calculation of Time Periods. 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 a Saturday, Sunday…