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G-1182 - 03/23/2021 - AGREEMENT - Ordinances Exhibits NOTICE OF SALE OF SURPLUS REAL ESTATE NOTICE IS HEREBY GIVEN by the President and the Board of Trustees of the Village of Oak Brook,Cook and DuPoge Counties,Illinois that various easements and related real property interests that are ancillary and tongentlai to the operation of a portion of the Village's water transmission located outside of the corporate limits of the Village of Oak Brook will be sold pursuant to the terms and conditions as approved by the Village Trustees and memorialized In on Asset Purchase Agreement.The Village of Oak Brook advertised for Requests for Proposals on or about August 14,2019,and has received and evaluated said proposals, the Village of Oak Brook met with and interviewed the respective companies responding to the Request for Proposal and on or about February 11,2020,the Village Board selected the highest and most qualified bidder.The Corporate Authorities now desire to finalize the transaction. The Village of Oak Brook will be adapting the final resolution regarding the sale of the easements and related real property interests on April 13,2021,in an open meeting assembled at 7:00 p.m.by Zoom Videoconference,1200 Oak Brook Road, Brook,Illinois, and welcomes any CERTIFICATE OF PUBLICATION comment.Thea Village reserves thea right to select the proposal that is in the village's best interests. Published in Daily Herald Mar.25,Apr.1,2021(4560793) Paddock Publications, Inc. DuPage County D&ReWd Corporation organized and existing under and by virtue of the laws of the State of Illinois,DOES HEREBY CERTIFY that it is the publisher of the DuPage County DAILY HERALD.That said DuPage County DAILY HERALD is a secular newspaper,published in Naperville and has been circulated daily in the Village(s)of- Addison, fAddison,Aurora,Bartlett,Bensenville,Bloomingdale,Carol Stream, Darien,Downers Grove,Elmhurst,Glen Ellyn,Glendale Heights, Hanover Park,Hinsdale, Itasca,Keeneyville,Lisle,Lombard,Medinah, Naperville,Oakbrook,Oakbrook Terrace,Plainfield,Roselle,Villa Park, Warrenville,West Chicago,Westmont,Wheaton,Willowbrook, Winfield,Wood Dale,Woodridge County(ies)of DuPage and State of Illinois, continuously for more than one year prior to the date of the first publication of the notice hereinafter referred to and is of general circulation throughout said Village(s), County(ies) and State. I further certify that the DuPage County DAILY HERALD is a newspaper as defined in "an Act to revise the law in relation to notices" as amended in 1992 Illinois Compiled Statutes,Chapter 715,Act 5, Section 1 and 5.That a notice of which the annexed printed slip is a true copy,was published 03/25/2021,04/01/2021 in said DuPage County DAILY HERALD. IN WITNESS WHEREOF,the undersigned,the said PADDOCK PUBLICATIONS, Inc.,has caused this certificate to be signed by,this authorized agent,at Arlington Heights, Illinois. PADDOCK PUBLICATIONS, INC. DAILY HERALD NEWSPAPERS BY \4" Designee of the Publisher 6nd OfficJr df the Daily Herald Control#4560793 EXECUTION VERSION ASSET PURCHASE AGREEMENT This ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into on April 27, 2021 ("Agreement Date") by and between Aqua Illinois, Inc., an Illinois corporation (`Buyer"), and the Village of Oak Brook, Illinois, an Illinois municipal corporation ("Village '). Hereinafter, Buyer and Village may be referred to individually as a "Party" or together as the "Parties". RECITALS: WHEREAS, Village currently owns and operates a water system that serves areas both inside and outside the boundaries of the Village of Oak Brook, DuPage County, Illinois. A map showing the service areas of the water system is attached hereto and incorporated here as Exhibit A. WHEREAS, Buyer is a public water utility that furnishes retail water service to the public in Illinois. WHEREAS, pursuant to the terms and conditions of this Agreement, Buyer desires to purchase from Village, and Village desires to sell to Buyer substantially all of the assets that constitute the water system located solely within the five zones that lie outside the Village's boundaries, as further detailed in Exhibit A (the "Acquired System'). WHEREAS, in 2020, Buyer paid to Village an amount equal to one hundred thousand dollars ($100,000.00) (the "Initial Deposit") to be used by Village for payment of Transaction Costs. WHEREAS, concurrently with the signing of this Agreement, Buyer has paid to Village an additional amount equal to five hundred thousand dollars($500,000.00)(the"Signing iing Deposit") to be used by Village for payment of Transaction Costs. NOW, THEREFORE, in consideration of the foregoing recitals, and the representations, warranties, and covenants contained herein, and in exchange for other consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows: ARTICLE 1. DEFINITIONS AND RELATED MATTERS For purposes of this Agreement, and all other documents executed in connection herewith, the capitalized terms used herein shall have the meanings assigned to them herein or in the attached Exhibit 1 and, the rules of construction set forth in Exhibit 1 shall govern. 735759741 ARTICLE 2. PURCHASE AND SALE OF THE ASSETS; CLOSING 2.1 Purchase and Sale; Transfer of Assets. On and subject to the terms and conditions of this Agreement,at the Closing on the Closing Date and effective as of the Effective Time, Buyer shall purchase, acquire, and accept from Village, and Village shall sell, convey, transfer, assign, and deliver to Buyer, free and clear of all Encumbrances (except Permitted Encumbrances), all of Village's right, title, and interest in, to, and under all of the assets,properties, and rights of Village in the Acquired System, to the extent such assets, properties and rights exist as of the Agreement Date, subject to acquisitions, dispositions, replacements, and other changes in such assets, properties, and rights resulting from transactions permitted under Section 6.5 (including with the Consent of Buyer), and are used, necessary, or important to the operation of the Acquired System and such assets and properties are located within the boundaries of the Acquired System (collectively, the"Acquired Assets"), including, without limitation, the following: (a) all Real Property and Improvements making up, being a part of, or relating to the Acquired System and located within the boundaries of the Acquired System, and all right, title, and interest therein; (b) all machinery, equipment, tools, vehicles, furniture, furnishings, leasehold improvements, goods, and other Tangible Personal Property exclusively relating to the Acquired System that are owned by Village and located within the boundaries of the Acquired System; (c) all right, title and interest of the Village in any easement, license, lease or other property right, including any right of tacking (to the extent assignable), relating exclusively to the location of any Acquired Assets of the Acquired System within the boundaries of the Acquired System; (d) all intangible assets relating exclusively to the Acquired System,including,without limitation, the benefit of third-party representations, warranties, guarantees, commitments, performance bonds, maintenance bonds, and correspondence; (e) all unasserted rights and causes of action of Village relating exclusively to the Acquired System to the extent arising from the ownership or operations of the Acquired System from and after the Closing; (f) any plans and specifications for the Acquired System; (g) all information, files, records, data, plans, contracts, and recorded knowledge, including customer and supplier lists and property records of Village, solely to the extent related to the foregoing; and (h) customer security deposits to the extent relating to the Acquired System. The Acquired Assets are expected to include in substantial part assets consistent with those set forth on Schedule 2.1. 2 735759741 2.2 Excluded Assets.Notwithstanding anything to the contrary contained in Section 2.1 or elsewhere in this Agreement, other than the Acquired Assets, all other assets, properties, and rights owned by Village, including, without limitation, (a) all accounts receivable relating to the Acquired System for service provided prior to the Closing and (b) those assets, properties, and rights set forth on Schedule 2.2 (collectively, the "Excluded Assets") are not part of the sale and purchase contemplated hereunder and shall remain the exclusive property of Village following the Closing. 2.3 Assumed Liabilities. On and subject to the terms and conditions of this Agreement, at the Closing on the Closing Date and effective as of the Effective Time, Buyer shall assume and accept from Village, and Village shall convey, transfer, assign, and deliver to Buyer any and all Liabilities to the extent relating to or arising out of the Acquired System or the Acquired Assets, excluding the Excluded Liabilities (collectively, the "Assumed Liabilities"), including but not limited to: (a) any Liabilities relating to the operation or ownership of the Acquired System or the Acquired Assets by Buyer after the Closing Date; and (b) any Liabilities as to the condition of the Acquired System or the Acquired Assets, whether such condition exists prior to or arises after the Closing Date. 2.4 Excluded Liabilities. Notwithstanding anything to the contrary contained in Section 2.3 or elsewhere in this Agreement, Buyer shall not assume and Village shall not assign to Buyer, the following Liabilities (the "Excluded Liabilities"), each of which shall remain the Liability of Village after the Closing: (a) any Liabilities arising from any third-party claim, Proceeding or Order to the extent relating to the ownership or operation of the Acquired System or the Acquired Assets by Village prior to the Closing Date; (b) any Liabilities relating to or arising out of(i)the employment or termination of any employee on or before the Closing or (ii) worker's compensation claims of any employee that relate to events occurring before the Closing Date; (c) any Liabilities under any collective bargaining agreement, employee benefit plan, or pension, retirement, or savings plan; (d) any Liabilities for accounts payable relating to the Acquired System in connection with service provided prior to the Closing; and (e) any other Liabilities relating to the operation or ownership of the Acquired System or the Acquired Assets by Village prior to the Closing Date, including but not limited to any third- party claims, other than Liabilities described in Section 2.3(b) above. 2.5 Assignment of Assets. (a) Notwithstanding anything to the contrary, to the extent that any of the Acquired Assets are not assignable or transferable without the Consent of any third party including, without 3 735759741 limitation, a Governmental Authority, and such Consent has not been obtained as of the Closing (the "Nonassignable Assets"), this Agreement shall not constitute an assignment or transfer of the Nonassignable Assets if such assignment or transfer or attempted assignment or transfer would constitute a breach thereof or a violation of applicable Laws. Buyer shall use reasonable efforts to obtain any Consent necessary to any such assignment. To the extent that such Consents are not obtained by Buyer on or before the Closing, Village agrees to cooperate with Buyer and to take such reasonable actions as Buyer may reasonably request in order to secure any arrangement designed to provide for Buyer the benefits of such Nonassignable Assets. Village shall further assign and deliver to Buyer any net proceeds or net receivables received by Village pursuant to the Nonassignable Assets except and to the extent that Village has previously provided Buyer with the benefits of such proceeds or receivables or to the extent the assignment is not permitted under the Nonassignable Assets. (b) To the extent Buyer receives the benefit of any Nonassignable Asset pursuant to Section 2.5(a), Buyer agrees to assume and discharge any Liability or obligation related to the benefits of such Nonassignable Asset. 2.6 Consideration; Closing_Statement; Allocation. (a) Purchase Price. The purchase price for the Acquired Assets (the "Purchase Price") shall be: (i) Twelve Million Five Hundred Thousand Dollars ($12,500,000) (the "Base Purchase Price"); (ii) minus the Closing Deposit Excess, if any. (b) Closing Statement. At least five (5) Business Days prior to the Closing Date, Village shall deliver to Buyer a statement setting forth (i) Village's good faith estimate of the Transaction Costs and the components thereof, (ii)the Closing Deposit Amount, (iii)based on the amounts in clauses i and (0 above, Village's good faith estimate of the Purchase Price, and (iv) wire transfer instructions of Village (the "Wire Instructions"). (c) Allocation. Buyer shall allocate the Purchase Price (together with any other items properly treated as purchase price for U.S. federal income tax purposes) between and among the Acquired Assets in accordance with Section 1060 of the Code and the Treasury Regulations thereunder. Buyer shall allocate a portion of the Purchase Price to the Real Property included among the Acquired Assets in an amount not less than 80% of the fair market value of such Real Property determined in connection with the appraisal obtained pursuant to Section 6.8. 2.7 Closing. Unless this Agreement is first terminated pursuant to Article 8 hereof,and subject to the satisfaction or, if permissible, waiver of each of the conditions set forth in Article 5 hereof, the Closing will take place at the offices of Mayer Brown LLP, 71 South Wacker Drive, Chicago, IL 60606, or such other place or by such other means (e.g., remotely by exchange of signatures pages by PDF transmission, facsimile and overnight delivery of original execution documents) as is agreed to by the Parties at 10:00 A.M., Central time, on (a) such date as is three (3) Business Days after the date on which all of the conditions set forth in Article 5 hereof shall have been satisfied or (to the extent permissible) waived (other than those conditions which, by 4 735759741 their nature are to be satisfied or waived at Closing but subject to their satisfaction or waiver at Closing) or, if Buyer shall so elect, the final day of Village's billing period of which such date is a part or (b) such other date as the Parties hereto may agree upon in writing. In any event, the Closing shall be effective as of the Effective Time. 2.8 Closing Obligations. In addition to any other documents to be delivered under other provisions of this Agreement, at Closing: (a) Village shall deliver or cause to be delivered to Buyer, and Buyer shall pay all funds sufficient to pay all costs necessary for the transfer, filing, or recording of, the following documents: (i) a bill of sale for all of the Acquired Assets that are Tangible Personal Property substantially in the form of Exhibit 2 (the "Bill of Sale"), duly executed by Village; (ii) an Assignment and Assumption Agreement, assigning all of the Acquired Assets that are intangible personal property, substantially in the form of Exhibit 3 (the "Assignment and Assumption Agreement"), duly executed by Village; (iii) the Wheeling Agreement, duly executed by Village and DWC; (iv) for each interest in Real Property and each easement and/or right-of-way affecting any Real Property or Acquired Asset, a recordable special warranty deed or such other appropriate document or instrument of transfer or approval, as the case may require, each in form and substance reasonably satisfactory to Buyer; (v) such other deeds, bills of sale, assignments, certificates of title, documents and other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance reasonably satisfactory to Buyer; (vi) a copy of each permit, license, easement, land-right, and other necessary authority for the operation of the Acquired Assets, in each case validly issued in the name of Village and in full force and effect; (vii) the certificate contemplated by Section 5.1(c); and (viii) a certificate, dated as of the Closing Date, by the president of the board of trustees of Village certifying as to all requisite resolutions, ordinances, and actions of Village's board of trustees approving the execution and delivery of the Agreement and the consummation of the Contemplated Transactions. (b) At or prior to the Closing, Buyer shall deliver to Village the following: (i) an aggregate amount equal to the Purchase Price in immediately available funds, in accordance with the Wire Instructions; 5 735759741 (ii) the Bill of Sale, duly executed by Buyer; (iii) the Assignment and Assumption Agreement, duly executed by Buyer; (iv) the Wheeling Agreement, duly executed by Buyer; (v) the certificate contemplated by Section 5.2(d); (vi) the Consents set forth in Section 5.3(a); and (vii) all other documents, instruments, and writings required or reasonably requested by Village to be delivered at or prior to the Closing pursuant to this Agreement or otherwise required in connection herewith. ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF VILLAGE Village hereby represents and warrants to Buyer as follows: 3.1 Organization of Village. Village is duly organized, validly existing and in good standing under the laws of the State of Illinois, with full power and authority to conduct the Acquired System as presently conducted and to own and operate the Acquired System and the Acquired Assets. 3.2 Enforcement; Authority; No Conflict. (a) This Agreement constitutes the legal, valid and binding obligation of Village, enforceable against Village in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, or other similar Laws affecting the rights of creditors generally and by general principles of equity. Village has the power and authority to execute and deliver this Agreement and the Transaction Documents and to consummate the Contemplated Transactions. The president and board of trustees of Village have duly authorized the execution, delivery, and performance of this Agreement by Village and no other municipal proceeding on the part of Village is necessary to authorize the execution, delivery, and performance of this Agreement. (b) This Agreement has been, and the Transaction Documents will be, duly executed and delivered by Village. (c) Except as set forth in Schedule 3.2(c), neither the execution, delivery, or performance by Village of this Agreement or the Transaction Documents nor the consummation by it of the Contemplated Transactions will (i)contravene, conflict with, or result in a violation of, any ordinance, regulation, resolution, or other governing law of Village, (ii) contravene, conflict with, result in a violation of, or give any Governmental Authority or other Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or obtain any relief under,any Laws or any Order to which Village or any of the Acquired Assets may be subject, (iii) contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, 6 735759741 any permit or other authorization by a Governmental Authority that is held by Village or that otherwise relates to any of the Acquired Assets, (iv)contravene, conflict with, result in a violation or breach of any provision of, require the Consent of any Person under, or give any Person the right to declare a default or exercise any remedy under or to accelerate the maturity or performance of or to cancel, terminate or modify, any Contract, indenture, mortgage, note, lease or other instrument or document to which Village is a party or by which any of the Acquired Assets are bound, or(v) result in the imposition or creation of any Encumbrance upon or with respect to any of the Acquired Assets. (d) Except as set forth in Schedule 3.2(c) and in Section 5.3(a), no filings or registrations with, notifications to, or authorizations, Consents or approvals of, a Governmental Authority or third party are required to be obtained or made by Village in connection with the execution, delivery, or performance by Village of this Agreement or the Transaction Documents or the consummation by Village of the Contemplated Transactions other than those related to the ICC approval. 3.3 Assets. Village has good, and marketable title to, or a valid leasehold interest in, all of the Acquired Assets,free and clear of all Encumbrances,other than Permitted Encumbrances. None of the Acquired Assets are leased or on loan by Village to any third party. The Acquired Assets constitute all of the assets and property that, together with the rights granted or conveyed under the Transaction Documents, are necessary for the operation of the Acquired System and the Acquired Assets as conducted as of the Agreement Date. Upon the Closing, Buyer shall continue to be vested with good title or a valid leasehold interest in all the Acquired System and the Acquired Assets. 3.4 Real PropertX. (a) Set forth on Schedule 3.4(a) is a complete and accurate listing of all Real Property owned by Village (the "Owned Real Property"). Village owns and will have at Closing good and marketable title to the Owned Real Property, free and clear of all Encumbrances other than Permitted Encumbrances. Village has made available to Buyer copies of all title reports, surveys, and title policies relating to the Owned Real Property in its possession. To Village's Knowledge, all Improvements on the Owned Real Property are in good condition and repair(normal wear and tear excepted) and are in material compliance with applicable Laws. (b) There is no unpaid property Tax, levy, or assessment against the Owned Real Property (except for Encumbrances relating to Taxes not yet due and payable), nor is there any pending or,to Village's Knowledge,threatened condemnation Proceeding against the Owned Real Property or any portion thereof. 3.5 Personal Property. To Village's Knowledge (i) no Acquired Asset which is personal property is in the possession of others (other than immaterial items temporarily in the possession of others for maintenance or repair), and (ii) Village does not hold any such property on consignment. 3.6 No Undisclosed Liabilities. To Village's Knowledge, except (a) to the extent and for the amount reflected as a Liability on the Financial Statements, (b) Liabilities incurred in the 7 735759741 Ordinary Course of Business,or(c)as set forth on Schedule 3.6,Village does not have any material Liabilities related to the Acquired System or the Acquired Assets, whether known or unknown, asserted or unasserted, liquidated or unliquidated, accrued, absolute, contingent, or otherwise that would be required to be set forth on a Village balance sheet as of December 31, 2020 prepared in accordance with the Accounting Principles. 3.7 Litigation and Proceedings. There are no undisclosed Proceedings, either pending or, to Village's Knowledge,threatened, anticipated, or contemplated, against Village or involving the operation of the Acquired System, the Acquired Assets, or any of Village's officials, employees,officers, agents or other personnel in their capacity as such,which could directly affect the Acquired System or any of the Acquired Assets. Village has not been charged with, nor, to Village's Knowledge, is it under investigation with respect to, any charge which has not been resolved to its favor concerning any violation of any applicable Law with respect to the Acquired System or any of the Acquired Assets and, to Village's Knowledge,there is no valid basis for any such charge or investigation. Village has not been subject to or, to Village's Knowledge, threatened to be subject to any Proceeding or Order relating to personal injury, death, or property or economic damage arising from products sold, licensed, or leased and services performed by Village with respect to the Acquired System. No judgment, Order, writ, injunction, or decree of any Governmental Authority affecting Village, the Acquired System, or any of the Acquired Assets has been entered which is presently in effect. There is no Proceeding pending or, to Village's Knowledge, threatened which challenges the validity of this Agreement or the Contemplated Transactions or otherwise seeks to prevent,directly or indirectly,the consummation of the Contemplated Transactions, nor, to Village's Knowledge, is there any valid basis for any such Proceeding. 3.8 No Other Representations and Warranties. Except as set forth in this Article 3, Village makes no representations or warranties with respect to the Acquired Assets and Village hereby disclaims any such other representations and warranties, including any representations or warranties with respect to (a)merchantability or fitness for any particular use or purpose, (b) the probable success or profitability of the Acquired System after the Closing, (c) any projections, forecasts, or forward-looking statements provided or made to Buyer, its Affiliates, or their respective Representatives, or (d) any memoranda, charts, summaries, schedules, or other information about the Acquired System or the Acquired Assets provided to Buyer, its Affiliates, or their respective Representatives. ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF BUYER Buyer hereby makes the following representations and warranties to Village: 4.1 Organization. Buyer is a duly organized and validly existing corporation in good standing under the Laws of Illinois. 4.2 Regulated Water Utility. Buyer owns and operates one or more water utilities that are regulated by the ICC and has obtained one or more certificates of public convenience and necessity in connection therewith. To Buyer's Knowledge, there exists no condition, event or 8 735759741 occurrence that would reasonably be expected to cause the ICC to revoke, suspend or terminate such certificate(s). 4.3 Enforcement; Authority; No Conflict. (a) This Agreement constitutes the legal, valid and binding obligation of Buyer and is enforceable against Buyer in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency or other similar Laws affecting the rights of creditors generally and by general principles of equity. Buyer has the absolute and unrestricted right, power and authority to execute and deliver this Agreement and the Transaction Documents to which it is a party and to perform its obligations hereunder and thereunder. (b) This Agreement has been, and the Transaction Documents will be, duly executed and delivered by Buyer. (c) Except as set forth in Schedule 4.3(c), neither the execution or delivery of this Agreement nor the consummation of the Contemplated Transactions shall result in: (i) a violation of or a conflict with any provision of the articles of incorporation or the bylaws of Buyer; (ii) a material breach of or default under any term, condition, or provision of any Contract to which Buyer is a party, or an event which, with the giving of notice, lapse of time, or both, would result in any such breach or default; or(iii) a material violation of any applicable Law, Order,judgment, writ, injunction, decree, or award, or any event which, with the giving of notice, lapse of time, or both, would result in any such violation. (d) Except as set forth in Schedule 4.3(c) and in Section 5.3(a), no filings or registrations with, notifications to, or authorizations, Consents or approvals of, a Governmental Authority or third party are required to be obtained or made by Buyer in connection with the execution, delivery or performance by Buyer of this Agreement or the Transaction Documents or the consummation by Buyer of the Contemplated Transactions other than those related to the ICC approval. 4.4 Proceedings. There are no Proceedings pending or, to Buyer's Knowledge, threatened, anticipated, or contemplated against Buyer or any of its Affiliates with respect to this Agreement or the Contemplated Transactions by this Agreement or that, if determined adversely to Buyer, would reasonably be expected to have a material adverse effect on Buyer's ability to consummate the Contemplated Transactions. 4.5 Availability of Funds. Buyer has as of the date of this Agreement, and will have at the Closing, sufficient cash, available lines of credit, or other sources of immediately available funds to enable it to pay when due the Purchase Price and all other amounts required to be paid by it under this Agreement and the Transaction Documents, to pay all related fees and expenses in connection with this Agreement and Transaction Documents, to pay, perform, and discharge the Assumed Obligations when due, and to otherwise consummate the Contemplated Transactions. 4.6 Brokers. No broker, finder, or investment bank is entitled to any brokerage, finder's, or other fee or commission in connection with the Contemplated Transactions based upon arrangements made by or on behalf of Buyer. 9 735759741 4.7 Solvency. Immediately after giving effect to the consummation of the Contemplated Transactions, assuming the representations and warranties set forth in Article 4 are true and correct, (i) the amount of the "present fair saleable value" (as such term is generally determined in accordance with applicable Laws governing determinations of the insolvency of debtors) of Buyer's assets will exceed the amount of all of its Liabilities, (ii) Buyer will not have an unreasonably small amount of capital for the business in which it is engaged or will be engaged, and (iii) Buyer will be able to pay its debts as they mature. Buyer is not making any transfer of property and is not incurring any Liability in connection with the Contemplated Transactions with the intent to hinder, delay, or defraud present or future creditors of Buyer. 4.8 Investigation and Reliance. (a) Buyer is a sophisticated buyer and has conducted to its satisfaction an independent investigation,review,and analysis of the Acquired Assets,and the results of operations,Liabilities, and prospects of the Acquired Assets, which investigation, review, and analysis were conducted by Buyer together with expert advisors, including legal counsel, that it engaged for such purpose. Buyer acknowledges that, in entering into this Agreement and agreeing to proceed with the consummation of the Contemplated Transactions, it has relied solely on(i)the representations and warranties of Village set forth in Article 3 and(ii)the results of its own investigation, review, and analysis. (b) Buyer acknowledges that, except for the representations and warranties of Village set forth in Article 3, none of Village, any of its Affiliates, or any of their respective Representatives has made, or is making, any representation or warranty, express or implied, regarding the Acquired Assets, the Assumed Liabilities, or the results of operations, Liabilities, or prospects of the Acquired Assets, including any representations or warranties with respect to (i) merchantability or fitness for any particular use or purpose, (ii) the probable success or profitability of the Acquired Assets after the Closing, (iii) any projections, forecasts, or forward- looking statements provided or made to Buyer, its Affiliates, or their respective Representatives, or (iv) any memoranda, charts, summaries, schedules, or other information about the Acquired Assets, the Assumed Liabilities, or the Contemplated Transactions (collectively, the "Business Information") provided to Buyer or its Representatives (including the Requested for Proposal, dated August 2019,provided to Buyer in connection with the Contemplated Transactions and any information, documents, or materials provided to Buyer or its Representatives, whether orally or in writing, management presentations, functional "break-out" discussions, responses to questions submitted on behalf of Buyer or its Representatives, or any other form in connection with the Contemplated Transactions). Buyer agrees that none of Village, any of its Affiliates, or any of their respective Representatives will have any Liability to Buyer or its Representatives relating to or resulting from the use of the Business Information or any errors, inaccuracies, or omissions in the Business Information,or for any other matter relating to the Contemplated Transactions,except for any Liability resulting from any breach of or inaccuracy in the representations and warranties of Village expressly set forth in Article 3,but subject to the limitations set forth in this Agreement. ARTICLE 5. CONDITIONS PRECEDENT TO CLOSING 10 735759741 5.1 Conditions Precedent to the Obligations of Buyer. Buyer's obligations to consummate the Contemplated Transactions are subject to the satisfaction in full,unless expressly waived in writing by Buyer, of each of the following conditions: (a) Representations and Warranties. Each of the representations and warranties of Village contained in this Agreement or in any Transaction Document shall have been true, correct, and accurate in all respects on and as of the Agreement Date and shall also be true, correct, and accurate in all material respects (other than representations and warranties qualified as to materiality, which shall have been true, correct, and accurate in all respects) on and as of the Closing Date with the same force and effect as though made by Village on and as of the Closing Date (except to the extent that any such representation or warranty is made solely as of the Agreement Date or as of another date earlier than the Closing Date, which shall be accurate as of such date); (b) Covenants. Village shall have performed, observed, and complied in all material respects with all of their respective obligations, covenants, undertakings, and agreements contained in this Agreement or any Transaction Document and required to be performed,observed, or complied with by Village prior to or at the Closing; (c) Certificates. Village shall have delivered to Buyer a certificate, dated as of the Closing Date and executed by an officer of Village, to the effect that the conditions set forth in Sections 5.1(a) and (b)have been satisfied; (d) Proceedings. No provision of any Law or Order shall be in effect, and no Proceeding by any Person shall be pending before any Governmental Authority that would: (i) prevent consummation of the Contemplated Transactions; (ii)would reasonably be likely to cause the Contemplated Transactions to be rescinded following consummation; or (iii) materially and adversely affect the right of Buyer to own any of the Acquired Assets; (e) Closing Deliveries. Village shall have delivered or caused to be delivered to Buyer each of the items set forth in Section 2.8(a),- (f) .8(a);(f) No Encumbrances. The Acquired Assets shall be free and clear of any and all Encumbrances (except for Permitted Encumbrances); (g) No Loss Event. Since the Agreement Date, there shall not have occurred a Loss Event; (h) Nonassignable Assets. The Nonassignable Assets with respect to which Buyer will not receive the benefits following the Closing shall not have a material adverse effect on the continued operation of the Acquired System; (i) DWC Agreement. DWC shall have entered into the DWC Agreement with Buyer; and (j) Wheeling Agreement.The Wheeling Agreement shall have been duly enacted and executed by Village and DWC. 11 735759741 5.2 Conditions Precedent to Obligations of Village. Village's obligation to consummate the Contemplated Transactions is subject to the satisfaction in full, unless expressly waived in writing by Village, of each of the following conditions: (a) Representations and Warranties. Each of the representations and warranties of Buyer contained in this Agreement or in any Transaction Document shall have been true, correct, and accurate in all respects on and as of the Agreement Date and shall also be true, correct, and accurate in all material respects (other than representations and warranties qualified as to materiality, which shall have been true, correct, and accurate in all respects) on and as of the Closing Date with the same force and effect as though made by Buyer on and as of the Closing Date (except to the extent that any such representation or warranty is made solely as of the Agreement Date or as of another date earlier than the Closing Date, which shall be accurate as of such date); (b) Covenants. Buyer shall have performed, observed, and complied in all material respects with all of its obligations, covenants, undertakings, and agreements contained in this Agreement or any Transaction Document and required to be performed, observed, or complied with by Buyer prior to or at the Closing; (c) Proceedings. No provision of any Law or Order shall be in effect which would prevent consummation of the Contemplated Transactions; (d) Certificates. Buyer shall have delivered to Village a certificate, dated as of the Closing Date and executed by and officer of Buyer, to the effect that the conditions set forth in Sections 5.2(a), (b) and U have been satisfied; (e) Closing_Deliveries. Buyer shall have delivered or caused to be delivered to Village each of the items set forth in Section 2.8(b); and (f) Wheeling Agreement.The Wheeling Agreement shall have been duly enacted and executed by Buyer and DWC. (g) Purchase Price Allocation. Buyer shall have allocated a portion of the Purchase Price to the Real Property included among the Acquired Assets in an amount not less than 80% of the fair market value of such Real Property determined in connection with the appraisal obtained pursuant to Section 6.8. 5.3 Conditions Precedent to Each Party's Obligations. The obligations of each Party to consummate the Contemplated Transactions are subject to the satisfaction in full, unless expressly waived in writing by each of Village and Buyer, of each of the following conditions: (a) Governmental Approval. (i) The ICC shall have issued an Order authorizing the Contemplated Transactions in accordance with the Illinois Systems Viability Act, on terms generally consistent with other similar transactions or otherwise reasonably acceptable to Buyer; and 12 735759741 (ii) any waiting periods under existing Laws, and all extensions thereof, the passing of which is necessary to consummate the Contemplated Transactions, shall have expired. 5.4 Frustration of Closing Conditions. Notwithstanding anything in this Agreement to the contrary, no Party may rely on the failure of any condition set forth in this Article 5 to be satisfied if such failure was caused by such Party's failure to act in good faith or to use its commercially reasonable efforts to cause the Closing to occur. ARTICLE 6. COVENANTS AND SPECIAL AGREEMENTS 6.1 Access to Information; Confidentiality (a) Access. Between the date of this Agreement and the Closing Date, Buyer may, directly and through its representatives, make reasonable confirmatory investigation of the Acquired Assets. In furtherance of the foregoing, (i) Buyer and its Representatives shall have reasonable access, upon reasonable notice during normal business hours, to all employees, properties,books, Contracts, commitments, and records of the Acquired System, (ii)Village shall furnish and cause to be furnished to Buyer and its Representatives such financial and operating data and other information as may from time to time be reasonably requested relating to the Acquired Assets, (iii) Village shall permit Buyer or its Representatives to conduct such non- invasive physical inspections and environmental compliance audits of the Owned Real Property as reasonably requested by Buyer(any invasive testing shall be subject to the prior written approval of Village in its sole discretion)and(iv)Village shall permit Buyer or its representatives to conduct interviews of employees of or servicing the Acquired System. Village and the management, employees, accountants, and attorneys of or servicing the Acquired Assets shall cooperate with Buyer and its representatives in connection with such investigation. 6.2 Cooperation; Government Consents. (a) Subject to the terms and conditions of this Agreement, the Parties shall cooperate fully with each other and their respective counsel and accountants in connection with, and take or cause to be taken and do or cause to be done, any actions required to be taken under applicable Law to make effective the Contemplated Transactions as promptly as practicable. From and after the Closing, the parties shall do such acts and execute such documents and instruments as may be reasonably required to make effective the Contemplated Transactions. On or after the Closing Date, the parties shall, on request, cooperate with one another by furnishing any additional information, executing and delivering any additional documents and instruments, including contract assignments, and doing any and all such other things as may be reasonably required by the parties or their counsel to consummate or otherwise implement the Contemplated Transactions. Should Village, in its reasonable discretion, determine after the Closing that books, records, or other materials constituting Acquired Assets are still in the possession of Village, Village shall promptly deliver them to Buyer at no cost to Buyer. Village hereby agrees to cooperate with Buyer to ensure a proper transition of all customers with respect to billing and customer service activities. Buyer shall take the lead in obtaining ICC approval with respect to the Contemplated Transactions, and shall pay all costs associated therewith. 13 735759741 (b) Prior to the Closing, the Buyer shall make such filings and take such other actions as may be necessary to satisfy the conditions to Closing set forth in Section 5.3(a). Any and all filing fees in respect of such filings shall be paid by Buyer. 6.3 Exclusivity. Village will not,at any time prior to the termination of this Agreement, directly or indirectly, (i) take any action to solicit, initiate or encourage the making of any Acquisition Proposal,or(ii)discuss or engage in negotiations concerning any Acquisition Proposal with, or further disclose any non-public information relating to Village to, any person or entity in connection with an Acquisition Proposal, in each case, other than Buyer and its representatives. 6.4 No Inconsistent Action. Prior to the Closing Date, no Party shall take any action, and each Party will use its commercially reasonable efforts to prevent the occurrence of any event (but excluding events which occur in the Ordinary Course of Business and events over which such Party has no control), which would result in any of its representations, warranties, or covenants contained in this Agreement or in any Transaction Document not to be true and correct, or not to be performed as contemplated, at and as of the time immediately after the occurrence of such action or event. If at any time prior to the Closing Date, a Party obtains knowledge of any facts, circumstances, or situation which constitutes a breach, or will with the passage of time or the giving of notice constitute a breach, of any representation, warranty, or covenant of such Party under this Agreement or any Transaction Document, or will result in the failure of any of the conditions contained in Article 5 to be satisfied, such Party shall give the other Party prompt written notice thereof; provided, however, that no such notice shall cure any breach of any representation, warranty, or covenant contained herein or therein or will relieve any such Party of any obligations hereunder or thereunder unless specifically agreed to in writing by the other Party. 6.5 Conduct of Business. Between the date of this Agreement and the Closing Date, Village shall carry on the operation of the Acquired System and the Acquired Assets in the Ordinary Course of Business and in material compliance with Law, not introduce any materially new method of management or operation, use reasonable best efforts to preserve the Acquired System and the Acquired Assets, conserve the goodwill and relationships of its customers, suppliers, Governmental Authorities, and others having business relations with it, maintain in full force and effect all policies of insurance now in effect for the benefit of Village, maintain supplies at a level which is sufficient to operate the Acquired System in accordance with past practice, and maintain the Acquired Assets in substantially the condition currently existing, normal wear and tear excepted. By way of illustration and not limitation, Village will not,between the Agreement Date and the Closing Date, directly or indirectly do, or prepare to do, any of the following with respect to the Acquired System without the prior written Consent of Buyer, (a) sell, lease,transfer, otherwise dispose of, license, mortgage, otherwise encumber, or give a security interest in, or subject to any Encumbrances, any of the Acquired Assets, (b)merge, consolidate with, or acquire, or agree to merge,consolidate with,or acquire(by merging or consolidating with,or by purchasing a substantial portion of the stock or assets of, or by any other manner); any business, corporation, partnership,joint venture,association,or other business organization or division thereof that would change the overall character of the Acquired System in any material way, (c) enter into any Contract with respect to the Acquired System other than in the Ordinary Course of Business, (d) abandon, sell, license, transfer, convey, assign, fail to maintain, or otherwise dispose of any item of the intangible assets to be assigned to Buyer, (e) make any change in any of its present accounting methods and practices regarding the Acquired System, (f) engage in any transactions 14 735759741 with any Related Person which would survive Closing with respect to the Acquired System, (g) waive any material benefits of, or agree to modify any material confidentiality, standstill, non- solicitation or similar agreement with respect to the Acquired System to which Village is a party, (h) engage in any activity with the purpose or intent of(A) accelerating the collection of accounts receivable or (B) delaying the payment of the accounts payable, in each case with respect to the Acquired System (i) create or issue or grant an option or other right to subscribe, purchase, or redeem any of its securities or other equity interests (other than with Buyer) in the Acquired System, 0) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or dissolution, merger, consolidation, restructuring, recapitalization or reorganization or (k) enter into any agreement (conditional or otherwise) to do any of the foregoing. 6.6 No Transfer at Odds with Law. Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall be deemed to require the conveyance, assignment, or transfer of any Acquired Asset that by operation of applicable Law cannot be conveyed, assigned, transferred, or assumed. Each Party shall continue to use reasonable best efforts to obtain at the earliest practicable date all unobtained Consents or approvals required to be obtained by it in connection with the transfer of the Acquired Assets or performance of any Transaction Document. If and when any such Consents or approvals shall be obtained, then Village shall promptly, and hereby does, assign its rights thereunder to Buyer without payment of consideration and Buyer shall, and hereby does, without the payment of any consideration therefor, (i) assume such rights or(ii)perform(or agree to perform)under such Transaction Document, as applicable. Each Party shall execute such good and sufficient instruments as may be necessary to evidence such assignment and assumption. The entire beneficial interest in and to, and the risk of loss with respect to, the Acquired Assets shall, regardless of when legal title thereto shall be transferred to Buyer, pass to Buyer at Closing as of the Effective Time, and Village shall, without consideration therefor, pay, assign, and remit to Buyer all monies, rights, and other consideration received in respect of such performance. To the extent permitted by Law, Village shall exercise or exploit their rights in respect of such Acquired Assets only as directed by Buyer. 6.7 Retention of Records. Subject to applicable Law and, subject to any applicable restrictions as to confidentiality(as to which Buyer does not provide indemnification,or the waiver of which Village shall not have obtained after using reasonable best efforts),Village shall preserve any books and records relating to the Acquired System that are not delivered to Buyer hereunder for a period no less than five (5) years after the Closing Date (or such longer period as shall be required by applicable Law), and Village shall make available such books and records for review and copying to Buyer and its authorized representatives following the Closing at Buyer's expense upon reasonable notice during normal business hours. During such period, Village shall permit, to the extent permitted by applicable Law and upon request of Buyer, Buyer and any of its agents, representatives, advisors, or consultants reasonable access to employees of or servicing the Acquired System for information related to periods up to and including the Closing. Buyer shall preserve any books and records relating to the Acquired System that are delivered by Village hereunder for a period no less than five (5) years after the Closing Date (or such longer period as shall be required by applicable Law), and Buyer shall assist Village in responding to any Freedom of Information Act requests regarding such records after the Closing Date. 15 735759741 6.8 Appraisal. Prior to the Closing, Buyer shall obtain an appraisal of the fair market value of the Acquired Assets in accordance with the appraisal process set forth in the Illinois Systems Viability Act. Buyer shall request that the ICC use the procedures set forth under the Illinois Systems Viability Act to establish the ratemaking rate base of the Acquired Assets. The costs and expenses related to such appraisal shall be paid by Buyer. 6.9 Deposits. Within thirty(30) days following the end of any calendar quarter ending between the Agreement Date and the Closing Date, Village shall deliver to Buyer a statement setting forth the Remaining Deposit as of the last day of the previous calendar quarter. 6.10 Wheeling Agreement; DWC Agreement. As promptly as practicable following the Agreement Date, (a) Buyer and Village shall cooperate fully and use their respective best efforts to negotiate the Wheeling Agreement among themselves and DWC,to be entered into and effective upon the Closing and (b) Buyer shall use its best efforts to negotiate and enter into the DWC Agreement, to become effective upon the Closing Buyer shall keep Village apprised of its negotiations with the DWC with regard to the Wheeling Agreement and the DWC Agreement, and any material developments with respect thereto, on a reasonably current basis. ARTICLE 7. INDEMNIFICATION 7.1 Survival of Representations and Warranties and Covenants. All of the representations and warranties made by Village and Buyer pursuant to Article 3 and Article 4, the related Schedules, and any certificates or documents delivered hereunder shall survive the Closing Date and consummation of the Contemplated Transactions for a period of one (1) year; provided, however, that the Fundamental Representations shall survive the Closing Date for a period of six (6)years. Neither Party shall have Liability under this Agreement for any breach of or inaccuracy in any representation or warranty unless a notice regarding such breach or inaccuracy is given to the applicable Party in accordance with Section 7.4 prior to 5:00 p.m. Central time, on the last day of the applicable survival period specified in this Section 7.1. 7.2 Indemnification by Bum. (a) Buyer hereby agrees to fully pay,protect, defend, indemnify and hold harmless the Village Indemnified Persons from any and all Damages (whether or not in connection with a Third Person Claim) incurred by any of them arising out of, resulting from, relating to or caused by: (i) Buyer's operation and maintenance of the Acquired System or the Acquired Assets after the Closing, including with respect to any Order or Proceeding (including any class action Proceeding) brought against Buyer with respect to the Acquired System or the Acquired Assets in which Village is a named party; (ii) all Transaction Costs and expenses incurred by or on behalf of Buyer in connection with this Agreement or the Contemplated Transactions; (iii) all of the Assumed Liabilities, and all other Liabilities arising from operation of the Acquired System at any time after Closing (other than the Excluded Liabilities); 16 735759741 (iv) Buyer's and its representative's inspections under Section 6.1(a); and (v) Any Transfer Taxes arising in connection with this Agreement or the Contemplated Transactions. (b) Subject to the terms of Section 7.2(c), Buyer hereby agrees to fully pay, protect, defend, indemnify and hold harmless the Village Indemnified Persons from any and all Damages (whether or not in connection with a Third Person Claim) incurred by any of them arising out of, resulting from, relating to or caused by (i) any inaccuracy in or breach of any representation or warranty of Buyer contained in this Agreement or any other Transaction Document, or (ii) any failure to perform or nonfulfillment of any provision or covenant contained in this Agreement or any other Transaction Document by Buyer. (c) Notwithstanding anything to the contrary in this Agreement or any right or remedy available under any Law: (i) other than with respect to inaccuracies and breaches of Fundamental Representations, Buyer will have no Liability under Section 7.2(b)(i) in excess of six hundred twenty-five thousand dollars ($625,000.00) in the aggregate and (ii) Buyer will have no Liability under Section 7.2(b), including with respect to inaccuracies and breaches of Fundamental Representations under Section 7.2(b)(i), in excess of the Purchase Price in the aggregate;provided that nothing in this Section 7.2(c) shall limit in any respect Buyer's obligations or Liability under Section 7.2(a), Section 2.8(a), Section 2.8(b)(i), or Section 9.7. 7.3 Indemnification by Villaize. (a) Village hereby agrees to fully pay, protect, defend, indemnify, and hold harmless the Buyer Indemnified Persons from any and all Damages (whether or not in connection with a Third Person Claim) incurred by any of them arising out of, resulting from, relating to, or caused by, the Excluded Liabilities. (b) Subject to the terms of Section 7.3(c), Village hereby agrees to fully pay, protect, defend, indemnify, and hold harmless the Buyer Indemnified Persons from any and all Damages (whether or not in connection with a Third Person Claim) incurred by any of them arising out of, resulting from, relating to, or caused by, (i) any inaccuracy in or breach of any representation or warranty of Village contained in this Agreement or any other Transaction Document, or (ii) any failure to perform or nonfulfillment of any provision or covenant contained in this Agreement or any other Transaction Document by Village. (c) Notwithstanding anything to the contrary in this Agreement or any right or remedy available under any Law: (i)the Buyer Indemnified Persons will not be entitled to indemnification under Section 7.3(b) unless the Buyer Indemnified Persons have incurred, as to all claims under Section 7.3(b), Damages in excess of one hundred twenty-five thousand dollars ($125,000.00) in the aggregate (the "Deductible"), in which case the Buyer Indemnified Persons will be entitled to indemnification under Section 7.3(b) only to the extent the aggregate Damages with respect to such claims exceed the Deductible; (ii) other than with respect to inaccuracies and breaches of Fundamental Representations, Village will have no Liability under Section 7.3(b)(i) in excess of six hundred twenty-five thousand dollars ($625,000.00) in the aggregate; and (iii) Village will have no Liability under Section 7.3(b), including with respect to inaccuracies and breaches of 17 735759741 Fundamental Representations under Section 7.3(b)(i), in excess of the Purchase Price in the aggregate; provided that nothing in this Section 7.3(c) shall limit in any respect Village's obligations or Liability under Section 7.3(a). 7.4 Limitation of Liability. IN NO EVENT WILL ANY PARTY HERETO HAVE ANY LIABILITY UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE CONTEMPLATED TRANSACTIONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, SPECULATIVE, INDIRECT, REMOTE, OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOST PROFITS, DAMAGES BASED UPON A MULTIPLE OF EARNINGS, OR DIMINUTION IN VALUE, OR ANY SIMILAR DAMAGES, EXCEPT IN EACH CASE TO THE EXTENT OF ANY AMOUNTS PAYABLE TO THIRD PARTIES THAT ARE AWARDED PURSUANT TO A THIRD PARTY CLAIM. 7.5 Notice of Claim. In the event that either Party seeks indemnification on behalf of itself or, on behalf of a Buyer Indemnified Person (in the case of Buyer) on behalf of a Village Indemnified Person (in the case of Village), such Party seeking indemnification(the"Indemnified PArty") shall give reasonably prompt written notice to the indemnifying Party(the "Indemnifying PArty") specifying the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted; provided, however, that the right of a person or entity to be indemnified hereunder shall not be adversely affected by a failure to give such notice unless, and then only to the extent that,an Indemnifying Party is actually irrevocably and materially prejudiced thereby. Subject to the terms hereof, the Indemnifying Party shall pay the amount of any valid claim not more than 10 days after the Indemnified Party provides notice to the Indemnifying Party of such amount. 7.6 Third Person Claims. (a) If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any Third Person, the Indemnified Party shall deliver to the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the Indemnified Party, including a description of facts underlying such claim and the basis for indemnification hereunder; provided, however, that the right of a Person to be indemnified hereunder in respect of claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, an Indemnifying Party is actually materially prejudiced thereby. (b) In the event that an Indemnified Party has delivered notice of a Third Person Claim to the Indemnifying Party pursuant to Section 7.6(a), the Indemnifying Party shall be entitled to participate in such proceeding and, to the extent that it wishes, to assume the defense of such proceeding, if(i) the Indemnifying Party provides written notice to the Indemnified Party that the Indemnifying Party intends to undertake such defense, (ii) the Indemnifying Party conducts the defense of the Third Person Claim actively and diligently with counsel reasonably satisfactory to the Indemnified Party and (iii) if the Indemnifying Party is a party to the proceeding, the Indemnifying Party or the Indemnified Party has not determined in good faith that joint representation would be inappropriate because of a conflict in interest. The Indemnified Party shall, in its sole discretion,have the right to employ separate counsel (who may be selected by the Indemnified Party in its sole discretion)in any such action and to participate in the defense thereof, and the fees and expenses of such counsel shall be paid by such Indemnified Party. The 18 735759741 Indemnified Party shall fully cooperate with the Indemnifying Party and its counsel in the defense or compromise of such Third Person Claim. If the Indemnifying Party assumes the defense of a Proceeding, no compromise or settlement of such Third Person Claim may be effected by the Indemnifying Party without the Indemnified Party's consent unless (A) there is no finding or admission of any violation of Law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party. (c) If (i) notice is given to the Indemnifying Party of the commencement of any Proceeding with regard to a Third Person Claim and the Indemnifying Party does not,within thirty (30) days after the Indemnified Party's notice is given, give notice to the Indemnified Party of its election to assume the defense of such legal proceeding, (ii) any of the conditions set forth in clauses i through Ciiij of Section 7.6(b) above become unsatisfied or (iii) an Indemnified Party determines in good faith that there is a reasonable probability that a legal proceeding may adversely affect it other than as a result of monetary damages for which it would be entitled to indemnification from the Indemnifying Party under this Agreement, then the Indemnified Party shall (upon notice to the Indemnifying Party)have the right to undertake the defense, compromise or settlement of such Third Person Claim; provided, however, that the Indemnifying Party shall reimburse the Indemnified Party for the costs of defending against such Third Person Claim (including reasonable attorneys' fees and expenses)and shall remain otherwise responsible for any liability with respect to amounts arising from or related to such Third Person Claim, in both cases to the extent it is ultimately determined that such Indemnifying Party is liable with respect to such Third Person Claim for a breach under this Agreement and the Indemnified Party may not settle such Third Person Claim without the consent of the Indemnifying Party not to be unreasonably withheld. The Indemnifying Party may elect to participate in such legal proceedings, negotiations or defense at any time at its own expense. ARTICLE 8. TERMINATION 8.1 Termination. This Agreement may be terminated at any time prior to the Closing only (a) by mutual written Consent of Village and Buyer, (b) by Village or Buyer upon written notice to the other, if the Closing, including due to any failure of a condition in Article 5 to be satisfied, shall not have occurred on or prior to October[23], 2022 (the"Outside Date");provided, however,that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any Party whose breach under this Agreement has caused or resulted in the failure of the Closing to occur on or before such date, (c) by Buyer, if Buyer is not in material breach of any of its representations,warranties, covenants, and agreements under this Agreement and there has been a material breach of any representation, warranty, covenant, or agreement contained in this Agreement on the part of Village and Village has not cured such breach within thirty(30)Business Days after receipt of notice of such breach (provided however, that, no cure period shall be required for a breach which by its nature cannot be cured), (d) by Village if Village is not in material breach of any of its representations, warranties, covenants, and agreements under this Agreement and there has been a material breach of any representation, warranty, covenant, or agreement contained in this Agreement on the part of Buyer and Buyer has not cured such breach within thirty (30) Business Days after receipt of notice of such breach (provided however, that, no cure period shall be required for a breach which by its nature cannot be cured), or(e)by Village 19 735759741 or Buyer upon written notice to the other,if any court of competent jurisdiction or other competent Governmental Entity shall have issued a statute, rule, regulation, Order, decree, or injunction or taken any other action permanently restraining, enjoining, or otherwise prohibiting the Contemplated Transactions,and such statute,rule,regulation, Order, decree, or injunction or other action shall have become final and non-appealable. 8.2 Effect of Termination. (a) If this Agreement is terminated pursuant to Section 8.1, all further obligations of the Parties under this Agreement will terminate, except that the obligations set forth in this Section 8.2 ("Effect of Termination") or Article 9 ("General Provisions") will survive. (b) In the event that this Agreement is terminated: (i) by Buyer pursuant to Section 8.1(c)due to a knowing and willful breach of a representation, warranty, covenant or agreement contained in this Agreement on the part of Village,then Village shall pay to Buyer an amount equal to the Full Deposit; (ii) by Village pursuant to Section 8.1(d) due to a knowing and willful breach of a representation, warranty, covenant or agreement contained in this Agreement on the part of Buyer, then Village shall be entitled to retain the Full Deposit and Buyer shall pay to Village an amount equal to the excess of the Transaction Costs incurred by Village as of the termination date of the Agreement over the amount of the Full Deposit, if any; or (iii) by either Party other than as described by clauses i and (iq above, then if the amount of the Full Deposit exceeds the amount of the Transaction Costs incurred by Village as of the termination date of the Agreement,Village shall pay to Buyer an amount equal to the Full Deposit minus amount of such Transaction Costs. ARTICLE 9. GENERAL PROVISIONS 9.1 Amendment and Modification. No amendment,modification or supplement of any provision of this Agreement will be effective unless the same is in writing and is signed by the Parties. 9.2 Assignments. Village may not assign or transfer any of its rights or obligations under this Agreement to any other Person without the prior written Consent of Buyer. Buyer may not assign its rights and obligations under this Agreement to any third party, without the prior written Consent of Village, but may assign its rights and obligations under this Agreement to any Related Person or successor in interest without the Consent of Village. Subject to this Section 9.2, all provisions of this Agreement are binding upon, inure to the benefit of, and are enforceable by or against the Parties hereto and their respective heirs, executors, administrators or other legal representatives, and permitted successors and assigns. 9.3 Captions; Construction. Captions contained in this Agreement and any table of contents preceding this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any 20 735759741 provision hereof In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement. 9.4 Counterparts; Facsimile. This Agreement may be executed by the Parties hereto on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the Parties hereto notwithstanding that all the Parties hereto are not signatories to the same counterpart. For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by facsimile machine, telecopier, or e-mail is to be treated as an original document. 9.5 Entire Agreement. This Agreement and the other Transaction Documents constitute the entire agreement among the Parties hereto pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations, and discussions of the Parties hereto, whether oral or written, executed by the Parties pertaining to the subject matter hereof All of the Exhibits and Schedules attached to this Agreement are deemed incorporated herein by reference. 9.6 Governing Law. This Agreement and the rights and obligations of the Parties hereunder are to be governed by and construed and interpreted in accordance with the Laws of the State of Illinois applicable to Contracts made and to be performed wholly within Illinois, without regard to choice or conflict of laws rules. 9.7 Fees, Costs and Expenses. Subject to Section 8.2(b)(i), all legal, consulting, and advisory fees and other costs and expenses incurred by the Parties in connection with this Agreement, the other Transaction Documents, and the Contemplated Transactions other than Village's Transaction Costs, will be borne by Buyer including all documentary stamps, recording costs, and title company fees, and any costs incurred in connection with obtaining any necessary approval of the Contemplated Transactions from the ICC, Illinois Environmental Protection Agency, or Illinois Department of Natural Resources. The Village's Transaction Costs shall be covered by the Initial Deposit and Signing Deposit as contemplated by this Agreement. 9.8 Transfer Taxes. All transfer, documentary, sales,use, stamp, registration, and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement ("Transfer Taxes") shall be paid by Buyer when due, and Buyer shall, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Law. 9.9 Notices. All notices, Consents, requests, demands, and other communications hereunder are to be in writing and are deemed to have been duly given,made or delivered: (i)when delivered in person, (ii) three (3) Business Days after deposited in the United States mail, first class postage prepaid,or(iii)in the case of telegraph or overnight courier services,one(1)Business Day after delivery to the telegraph company or overnight courier service with payment provided, in each case addressed as follows below or to such other address as any Party hereto may designate by notice to the other Parties in accordance with the terms of this Section 9.9: 21 735759741 (a) If to Village, to: Village of Oak Brook 1200 Oak Brook Road Oak Brook, IL 60523 Attention: Village Manager Email: rginex@oak-brook.org with a copy(which shall not constitute notice)to: Mayer Brown LLP 71 South Wacker Drive Chicago, IL 60606 Attention: Joseph Seliga Frederick Lark Email: jseliga@mayerbrown.com flark@mayerbrown.com (b) If to Buyer, to: Aqua Illinois, Inc. 1000 S. Schuyler Avenue Kankakee, IL 60901 Attention: President with a copy(which shall not constitute notice)to: Aqua Illinois, Inc. c/o Legal Department 762 W Lancaster Ave Bryn Mawr, PA 19010 9.10 Severability. This Agreement shall be deemed severable; the invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of this Agreement or of any other term hereof, which shall remain in full force and effect, for so long as the economic or legal substance of the Contemplated Transactions is not affected in any manner materially adverse to any Party. 9.11 Specific Performance and Injunctive Relief, Remedies. (a) The Parties hereto recognize that if any or all of them fail to perform, observe or discharge any of their respective obligations under this Agreement, a remedy at law may not provide adequate relief to the other Parties hereto. Therefore, in addition to any other remedy provided for in this Agreement or under applicable Law, any Party hereto may demand specific performance of this Agreement,and such Party shall be entitled to seek a temporary and permanent injunctive relief in a court of competent jurisdiction at any time when any of the other Parties 22 735759741 hereto fail to comply with any of the provisions of this Agreement applicable to such Party. Except as otherwise provided herein, all rights and remedies of the parties under this Agreement are cumulative and without prejudice to any other rights or remedies under Law. (b) Notwithstanding any other provisions of this Agreement, each of the Parties agrees that(i) from and after the Closing Date, the remedies provided for under Article 7 shall be the sole and exclusive remedies of the Buyer Indemnified Persons and the Village Indemnified Persons with respect to this Agreement and the Contemplated Transactions and (ii) in the event that this Agreement is terminated, the payments provided for under Section 8.2(b1 as applicable, shall be the sole and exclusive remedies of the Parties with respect to this Agreement and the Contemplated Transactions. 9.12 No Third-Party BeneficiarX. This Agreement is solely for the benefit of the Parties hereto and their respective successors and permitted assigns (and those Persons entitled to recover under the indemnity provisions hereof), and no other Person (other than those Persons entitled to recover under the indemnity provisions hereof) has any right, title, priority or interest under this Agreement or the existence of this Agreement. 9.13 Waiver of Compliance, Consents. Any failure of a Party to comply with any obligation, covenant, agreement, or condition herein may be waived by the other Party only by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Whenever this Agreement requires or permits Consent by or on behalf of any Party hereto, such Consent shall be given in writing in a manner consistent with the requirements for a waiver of compliance as set forth in this Section 9.13. 9.14 Jurisdiction,Venue; Consent to Service of Process. Each of the Parties irrevocably and unconditionally submits to the non-exclusive jurisdiction of the DuPage County Circuit Court in DuPage County, Illinois or, if such court will not accept jurisdiction, the Supreme Court of the State of Illinois. In any action, suit, or other Proceeding, each of the Parties irrevocably and unconditionally waives and agrees not to assert by way of motion, as a defense, or otherwise, any claims that it is not subject to the jurisdiction of the above courts,that such action or suit is brought in an inconvenient forum, or that the venue of such action, suit, or other Proceeding is improper. Each of the Parties also hereby agrees that any final and unappealable judgment against a Party in connection with any action,suit,or other Proceeding shall be conclusive and binding on such Party and that such award or judgment may be enforced in any court of competent jurisdiction. Each Party irrevocably consents to service of process in the manner provided for the giving of notices pursuant to Section 9.9. Nothing in this Section 9.14 shall affect the right of any Party to serve process in any other manner permitted under applicable Law. 9.15 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW,EACH OF THE PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS. 23 735759741 9.16 Schedules. Village shall continue in good faith to prepare Schedule 3.4(a) to this Agreement (the "Property Schedule") after the Agreement Date and shall deliver the Property Schedule to Buyer as soon as reasonably practicable after the Agreement Date. Upon delivery to Buyer of the Property Schedule, the Property Schedule and the disclosures provided therein shall be deemed to have been delivered to Buyer on the Agreement Date for all purposes of this Agreement. [Remainder ofpage intentionally left blank;signature page attached.] 24 735759741 IN WITNESS WHEREOF, the Parties have executed this Asset Purchase Agreement as of the date first set forth above: Aqua Illinois, Inc., an Illinois corporation Village of Oak Brook, an Illinois municipal corporation BY Y:B ' Attest: Attest: Village Clerk 735759741 Exhibit A The System (See attached.) 735759741 t pF pAy Water System • .-._.,, ,,.-•" Z Transfer Zones %43009•Ibne D>monM' t v k11Fr I 00.a4U 'V Ac Ie O) Village of Oak Brook System Valve +3� Ownership c"mm A- 0 "n •'"' I """"" �� � ` t 1.700 9,1—p ® System Valve-Other Ownersh p �" •• • • ���•'•- ••r_ � �—�." PE Cou"T'13yy ® Possible System Valve(Requires Verification) «..,., Private Hydrant ,,•� it--, —� I Jlyi J t t y Village of Oak Brook Hydrant Village of Oak Brook Water Main r....J Water System Transfer Zone LO4 Ii _I� Ihls'!" ..� li a `� ..I p•, �r�y\ p)\\ ��_I ' -w...°„CI ........-r.r Total Monthly Usage Total Services !-� {�l{_�_ I 16,122,992 1949 residential accounts I z— ll / gallons/month 71 commercial accounts ana..a.erAm.r �, tdmmo� _(�� I 0 \� -, 1 tollway maintenance building CCC\ ^� ./ i/ • 00.xkImWlN.cwrN .�tm' ,z -0j——r, j. — 0200 Rt00941.muN `y 1 r Co"n,e calAesinb 2 , albnt qr mpT e ILI r ,n y t• EL, A __ - —_ - - - i J - e. wa' y�z. V / Zone 1 �I��� y E Or O,t,y - 00 Water System Village of Oak Brook System Valve § } i fB System Valve-Other Ownership �cF (➢ Possible System Valve(Requires Verification) y T — � - J OOUxtt1` `�� I --� ♦ Private Hydrant I I } • Village of Oak Brook Hydrant Village of Oak Brook Water Main Village Owned Hydrant Maintenance _ :.�. I I r Hydrant maintenance is done on an annual basis(Sept-Dec).This involved the opening of each hydrant,flowing water,and making sure the hydrant drains.All isneehydrant ports are greased and an t shave been p filled out for _ 1�—I� �_ • } 'I -j any hydrants needing repair.When all hydrants have been Inspected,all non- J draining hydrants are checked to see Hthey were just slow to dein.If the • barrel has still not drained then we pump out the barrels to prevent freezing. .? +tl 1 Then,any remaining issues like hard to open,broken stems,etc-these ) I I I } • repairs are made until the list has been completed. f r _I • •) Village Owned Valve Exercising Valve exercising is done on an annual basis()an-April).This involved - -- . opening all vaults,5 X"boxes and exercising all valves(except private [ '� �--I. valves).Lids get painted as well as the curbs marking their location.An i � -_ � � . •�.e:` inspection form is filled out for any valve that have an issue(missing -J operating nuts,packing leaks.)When all valves have been exercised repairs J s are then made until the list has been completed. 2016 Leak Survey Was Completed x. All Village owned and private main leaks have been repaired. Services Hydrants 1,329 residential accounts 125 i 46 commerical accounts Valves -J Valve count 4" 6" 8" 10" 12" —T �J by diameter 89 37 61 26 7 -j Estimated" MBIDS Q S feet of pipe 4" 6" 8.. 10" 12" per diameter 19760 ft 10440 ft 18520 ft 14070 ft 3370 ft '°•'" _ J • • ('• A Monthly Usage Maintireaks 'i • • 9,654,292 241 froms J LA • gallons/month 1990-2018 1 J ♦ • } ,:�oisu.".�apo.v��ym,..n�xn�,� • fes•f. v'i i..' W, I — • ~ -• I � s A l ` Zone 2 j ; ,Of OA+.' Water System .,�,� / apa 4 -,J _J J ''• / + i a y r _• ,� , Village of Oak Brook System Valve - I` oei J 0"`•r. J J J J J J I J + //er<` System Valve-Other Ownership / gLgwNliRd (D Possible System Valve(Requires Verification) •+ f -� + - �� ♦ Private Hydrant r/ leo )b Village of Oak Brook Hydrant i , -. .7.� / / + / r•/ / 441.1 Village of Oak Brook Water Mains J J / / ! / // �' •• �`£, Village Owned Hydrant Maintenance / ,� J �' ,' ' % % Hydrant maintenance is done on an annual basis(Sept-Dec).This involved the opening of each hydrant,flowing water,and making sure the hydrant . ) J > _ •: drains.All hydrant ports are greased and an inspection form is filled out for any hydrants needing repair.When all hydrants have been inspected,all non- J J '•�. / / -�` draining hydrants are checked to see if they were just slow to drain.If the J barrel has still not drained then we pump out the barrels to prevent freezing. �� Then,any remaining issues like hard to open,broken stems,etc-these J-1 I r j } r/ / '`�•••` repairs are made until the list has been completed. +/ Village Owned Valve Exercising Valve exercising is done on an annual basis(Jan-April).This involved `k , �� -✓ / > j j>jI / / �' Y openin gall vauks,5 X"boxes and exercising all valves(except private i, , ♦ / ,j gad"" I / / valves).Lids get painted as well as the curbs marking their location.An ,•y ON inspection form is filled out for any valve that have an issue(missing ,, ! gyp' -, / S + r `` '� r r -'� / ! r�• operating nuts,packing leaks.)When all valves have been exercised repairs •. / / / \ ` a} lff.! are then made until the list has been completed. 2016 Leak Survey Was Completed All Village owned and private main leaks have been repaired. Services Hydrants " x r 12 commercial accounts 21 } r '•� •�) . 1 r� � � � •'.. Valves ° `� , ..••"' Valve count 8" 10" 12" m •"•HN,,. by diameter 1 13 1 r J r' / r! / J t•• EstimatedMains 10" 12" feet of pipee _ I _ per diameter 5570 h 170 h -- J •� y� ;►1 J 'bp /'� ' '> II ..,-` Monthly Usage Mainbreaks ...�' � �...q` ••,.•�o.,•�! / `� —� � '•��� / �.••� 3 o 1,792,600 None between �""•I....,,,,,,�,M.,,�,..w• gallons/month 1990 and 2018 y ^awe.•smw.a looupedw•rw,.me�,.,canxw•e.Ny eis.y.�.,..e nve��n,..nm.,e e.°.na..l on m.aca,.cyw...p•.ap•...vu�"cls rn"" _- ."may„a."r.<.�nr>,i � i = ...........................,... f ' ...max... I.�..�.. r. ....................... ............. 72ad . t S22nd sl ou...�.M.o.�..w x�ne sr ......, A IJIZ £ 1 P c 5nyn ' M 9ro wx i a ', .... N � a ,is tw sora r,u � �•. ...•- •• I a6 � I Be Zone 3 ek pf 04¢, Water System I x�xx.xrt Aa.... �o\ Village of Oak Brook System Valve A e0 System Valve-Other Ownership (D Possible System Valve(Requires Verification) i eco A Private Hydrant )9 Village of Oak Brook Hydrant A Village of Oak Brook Water Main Village Owned Hydrant Maintenance Hydrant maintenance is done on an annual basis(Sept–Dec).This Involved A the opening of each hydrant,flowing water,and making sure the hydrant drains.All hydrant pons are greased and an inspection form is filled out for any hydrants needing repair.When all hydrants have been inspected,all non- draining hydrants are checked to see if they were just slow to drain.if the 1 barrel has still not drained then we pump out the barrels to prevent freezing. Then,any remaining issues like hard to open,broken stems,etc–these repairs are made until the list has been completed. Village Owned Valve Exercising A Valve exercising is done on an annual basis(Jan–April).This involved opening all vaults,5 J4"boxes and exercising all valves(except private g valves).Lids get painted as well as the curbs marking their location.An inspection form is filled out for any valve that have an issue(missing } n•,:'��«�..`.we•M• operating nuts,packing leaks.)When all valves have been exercised repairs J�. are then made until the list has been completed. A } 2016 Leak Survey Was Completed All Village owned and private main leaks have been repaired. Services Hydrants A f 13 commercial accounts 9 { C Valves Valve count 8" 101, by diameter 7 1 It Estimated— Mains feet of pipe 8" 10" per diameter 2840 ft 880 ft 'J Monthly Usage Mainbreaks 2,061,700 10 from .. .• gallons/month 1990-2018 0 y�w��..b,gm•..xm , wa:l F ff Jt AL i J� t �rww d ' I B7 \ Zone 4 V VE OF 04+0' Water System �Z Village of Oak Brook System Valve le0• ® System Valve-Other Ownership c `D Possible System Valve(Requires Verification) rf yi ,couu� ♦ Private Hydrant } Village of Oak Brook Hydrant Village of Oak Brook Water Main Village Owned Hydrant Maintenance e Hydrant maintenance is done on an annual basis(Sept–Dec).This involved the opening of each hydrant,flowing water,and making sure the hydrant drains.All hydrant ports are greased and an inspection form is filled out for any hydrants needing repair.When all hydrants have been inspected,all non- i draining hydrants are checked to see if they were just slow to drain.If the .. barrel has still not drained then we pump out the barrels to prevent freezing. If Then,any remaining issues like hard to open,broken stems,etc–these repairs are made until the list has been completed. Village Owned Valve Exercising Valve exercising is done on an annual basis(Jan–April).This involved ; opening all vaults,5%•boxes and exercising all valves(except private _ valves).Lids get painted as well as the curbs marking their location.An inspection form is filled out for any valve that have an issue(missing f OP erating nuts,packing leaks.)When all valves have been exercised repairs 6)j are then made until the list has been completed. 2016 Leak Survey Was Completed jjjt ! All Village owned and private main leaks have been repaired. Services Hydrants ! 130 residential accounts 18 Valves Wive count 6" 8" 10" ! J bydiameter 4 4 1 9 i Estimated- Mains 3 3 feet of pipe 6" 8„ 10" f 7 per diameter 5640 ft 840 It 270 It S 1 Monthly Usage Mainbreaks 594,300 None since 2007 gallons/month replacement History 6 Water main for entire zone replaced in 2007 Other Notes j 1 Commercial Tollway Building ./ "NOR.estlmeted laauge d pye b,eaN dfenwa rs--d usn9 G6yare,erad PIP..1q-adYN re i dpeMed on Ma actuary d w pye's represenRRin R GIs mese v/ues sNdd ne ie.en a^7 as genxel eslmeRs. i • t i N � t i 1 J 1 A 1 t o 'Ns i N zso sao rlar n •� .,..a.....a.�>.«a,+..w..+.. Of OqZone 5 6E q, f.� J �o Water System r d d Village of Oak Brook System Valve + ® System Valve-Other Ownership / ! Possible System Valve(Requires Verification) � ®OUNt, Private Hydrant r✓ } VNlage of Oak Brook Hydrant ' - Village of Oak Brook Water Main Village Owned Hydrant Maintenance Hydrant maintenance is done on an annual basis(Sept—Dec).This involved .�,,. the opening of each hydrant,flowing water,and making sure the hydrant drains.All hydrant ports are greased and an inspection form is filled out for any hydrants needing repair.When all hydrants have been inspected,all non- draining on draining hydrants are checked to see if they were just slow to drain.If the \ barrel has still not drained then we pump out the barrels to prevent freezing. Then,any remaining issues like hard to open,broken stems,etc—these - I - repairs are made until the list has been completed. Village Owned Valve Exercising Y } Valve exercising is done on an annual basis(tan—April).This involved opening all vaults,5 Y.'boxes and exercising all valves(except private I \ - valves).lids get painted as well as the curbs marking their location.An j inspection form is filled out for any valve that have an issue(missing I JI Y operating nuts,packing leaks.)When all valves have been exercised repairs are then made until the list has been completed. 2016 Leak Survey Was Completed All Village owned and private main leaks have been repaired. Y Y Services Hydrants Y 490 residential accounts 64 y Valves Y Valve count 6" 8" 10" 12" by diameter qs 16 u 5 Mains Estimated— - feet of pipe 6" 8" 10" 12" Y Y per diameter 14300 ft 5960A 3150It 3030 It Monthly Usage Mainbreaks Y I Y 2,020,100 97 from gallons/month 1990-2018 History Ave Barbizon replaced from Ave Normandy E to Ave Cherbourg in 2005 ^Nae.emm.Na r,oNye av4.ra am a..ei®�:�.twea�us�ee.a nV.��z w.m.. agave o.ur ara..gau.cyas.wrn...m�r,rvs.m. eeiaw awy.:gan>a evMrn Y ......_..._................... ... .. w �................._....._ N Exhibit I Definitions "Accounting Principles" means the accounting principles and procedures followed by Village in the preparation of the Financial Statements, consistently applied. The Accounting Principles may differ from generally accepted accounting principles in material respects. "Acquired Assets" has the meaning set forth in Section 2.1. "Acquired System"has the meaning set forth in the recitals of this Agreement. "Acquisition Proposal" means any offer or proposal for the acquisition of the Acquired System, the Acquired Assets or any portion thereof. "Affiliate" means, with respect to any specified Person, any other Person that, directly or indirectly, controls, is under common control with or is controlled by such specified Person. The term "control" (including its correlative meanings "under common control with" and "controlled by") as used in the preceding sentence means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of securities or partnership or other interests, by contract or otherwise. "Assignment and Assumption Agreement"has the meaning set forth in Section 2.8(a)(ii). "Assumed Liabilities"has the meaning set forth in Section 2.3. "Base Purchase Price"has the meaning set forth in Section 2.6(a)(i). "Bill of Sale" has the meaning set forth in Section 2.8(a)(i). "Business Day(s)" means any day other than (i) Saturday or Sunday, or (ii) any other day on which governmental offices in the State of Illinois are permitted or required to be closed. "Business Information"has the meaning set forth in Section 4.8(b). "Buyer Indemnified Persons"means Buyer and Buyer's Affiliates and the past,present and future officers, directors, shareholders, partners, employees, agents, attorneys, representatives, successors and assigns of each of them in their capacities as such. "Closing"means the closing of the Contemplated Transactions. "Closing Date"means the date on which the Closing actually occurs. "Closing Deposit Amount"means the Remaining Deposit Amount on the Closing Date. "Closing Deposit Excess" means the Closing Deposit Amount in excess of Transaction Costs payable and outstanding by Village at Closing. 735759741 "Code" means the Internal Revenue Code of 1986, as amended, and the regulations and other guidance promulgated thereunder. "Confidential Information" means (i) information not available to the general public concerning the System and financial affairs with respect to a Party hereto or its Affiliates, and (ii) analyses, compilations, forecasts, studies and other documents prepared on the basis of such information by the Parties or their agents, representatives, any Related Person, employees or consultants. "Consent"means any approval, consent, ratification, waiver or other authorization. "Contemplated Transactions"means the transactions contemplated by this Agreement and the Transaction Documents. "Contract" means any agreement, contract, obligation, legally binding commitment or undertaking (whether written or oral and whether express or implied). "Damages"means any and all claims,losses and other liabilities,plus reasonable attorneys' fees and expenses, including court costs and expert witness fees and costs, incurred in connection with such claims, losses and other liabilities and/or enforcement of this Agreement. "DWC" means DuPage Water Commission. "DWC Agreement" means an agreement between Buyer and DWC pursuant to which Buyer will acquire its supply of water for the Acquired System, on terms that are not materially unfavorable to Buyer as compared to terms that would be available to a similarly situated Buyer at the time of the Closing, it being agreed that any "buy-in"required to be paid by Buyer shall not constitute a materially unfavorable term if it is less than$2,750,000.00;provided,that if the"buy- in" amount exceeds the foregoing amount, the Parties agree to discuss in good faith any potential alternatives to mitigate the impact of such buy-in. "Effective Time"means 12:01 a.m. (Central time) on the Closing Date. "Encumbrance" means any charge, claim, community property interest, condition, easement, equitable interest, encumbrance, lien, mortgage, option, pledge, security interest, right of first refusal, right of way, servitude or restriction of any kind, including any restriction on use, transfer, receipt of income or exercise of any other attribute of ownership, or any repayment obligation under any grant. "Environment" means soil, land surface or subsurface strata, surface waters (including navigable waters, ocean waters, streams, ponds, drainage basins and wetlands), groundwater, drinking water supply, stream sediments, ambient air (including indoor air), plant and animal life and any other environmental medium or natural resource. "Environmental Law" means any Law relating to pollution, protection of human health from pollution, the Environment, natural resources or releases or threatened releases of pollution or otherwise relating to the environmental aspects of manufacture, processing, distribution, use, treatment, storage, release, transport or handling of potential pollutants. 735759741 "Excess Transaction Costs" means amount of Transaction Costs outstanding and payable by Village at Closing in excess of the Closing Deposit Amount. "Excluded Assets"has the meaning set forth in Section 2.2. "Financial Statements" means the unaudited balance sheets delivered by Village to Buyer on December 31, 2020. "Full Deposit"means the Initial Deposit plus the Signing Deposit. "Fundamental Representations" means the representations and warranties set forth in Sections 3.1, 12W,, 3.2 b , 4_1, 4.2(41 4.?(b) and 4_6. "Governmental Authority(ies)" means any (a) nation, state, county, Village, village, district or other jurisdiction of any nature, (b) federal, state, local, municipal, foreign or other government, (c) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official or entity and any court or other tribunal), (d) multi-national organization or body or (e) body exercising, or entitled to exercise, any administrative, executive,judicial, legislative, police, regulatory or taxing authority or power of any nature. "Hazardous Materials" means any waste or other substance that is listed, defined, designated or classified as, or otherwise determined to be, hazardous, radioactive or toxic or a pollutant or a contaminant under or pursuant to any Environmental Law, including any admixture or solution thereof, and specifically including petroleum and all derivatives thereof or synthetic substitutes therefor and asbestos or asbestos-containing materials. "ICC"means the Illinois Commerce Commission. "Illinois Systems Viability Act" means 220 ILCS 5/9-210.5 and 5/9-210.6, et seq. "Improvements"means all buildings, structures, fixtures,building systems and equipment, and all components thereof,including the roof, foundation, load-bearing walls,and other structural elements thereof,heating,ventilation,air conditioning,mechanical,electrical,plumbing,and other building systems, environmental control, remediation, and abatement systems, sewer, storm, and waste water systems, irrigation and other water distribution systems, parking facilities, fire protections, security, and surveillance systems, and telecommunications, computer, wiring, and cable installations, included in the Real Property. "Indemnified Party"has the meaning set forth in Section 7.5. "Indemnif nng Party"has the meaning set forth in Section 7.5. "Initial Deposit"has the meaning set forth in the recitals of this Agreement. "Knowledge"means the actual knowledge of a particular fact by any of the Persons listed on Schedule B. The words "know," "knowing" and"known" shall be construed accordingly. 735759741 "Law (s)"means any law,rule,regulation or ordinance of any federal, foreign, state or local Governmental Authority or other provisions having the force or effect of law,including all judicial or administrative Orders and determinations, and all common law. "Liability" or "Liabilities" means any liability, indebtedness or obligation of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of a Person. "Loss Event"means all or a substantial part of the Acquired System is damaged, destroyed or rendered inoperable by major casualty or is subject to condemnation, and (a) in the case of a major casualty,the damage will not be adequately repaired prior to the Outside Date or in the case of a condemnation, the assets subject of the condemnation cannot be adequately replaced prior to the Outside Date and (b) the cost of restoring such damaged or destroyed assets in the aggregate or replacing such condemned assets in the aggregate with all other such damaged, destroyed or condemned assets prior to the Closing,to,in the case of damaged and destroyed assets, a condition reasonably comparable to their prior condition (such cost as estimated by a qualified firm reasonably acceptable to Buyer and Village),net of any restoration work or replacement costs paid by Village related thereto, exceeds $500,000. "Nonassignable Assets"has the meaning set forth in Section 2.5(a). "Order" means any award, decision, injunction, judgment, order, ruling, subpoena or verdict entered, issued, made or rendered by any court, administrative agency or other Governmental Authority or by any arbitrator. "Ordinary Course of Business" means, with respect to the Acquired Assets, only the ordinary course of commercial operations customarily engaged in by the Acquired Assets consistent with past practices, and specifically does not include (a) activity (i) involving the purchase or sale of the Acquired Assets or any product line or business unit thereof, or (ii) that requires approval by the board of aldermen (or other governing persons) of Village or any of its Affiliates, or(b)the incurrence of any Liability for any tort or any breach or violation of or default under any Contract or Law. "Outside Date"has the meaning set forth in Section 8.1. "Owned Real Property"has the meaning set forth in Section 3.4(a). "Permitted Encumbrances" means any and all (a) recorded easements, reservations, restrictions, and other matters of record; (b) matters which would be shown by an accurate survey or inspection of the Real Property; (c) all existing zoning ordinances, laws, codes, statutes and subdivision regulations and other governmental laws, rules, codes, statutes and regulations; (d) Encumbrances for or in respect of Taxes or other governmental charges that are not yet delinquent (or which may be paid without interest or penalties) or that are being contested in good faith by appropriate proceedings; (e) workers', mechanics', materialmen's, repairmen's, suppliers', carriers', tenants', or similar Encumbrances arising in the ordinary course of business or by 735759741 operation of law with respect to obligations that are not yet delinquent or that are being contested in good faith by appropriate proceedings; (f) Encumbrances that secure any Assumed Liabilities; (g) all other Encumbrances that do not materially impair the value of the property subject to such Encumbrances or the use of such property in the Acquired System; (h)Encumbrances arising from leases of personal property; and (i) variations, if any, between tax lot lines and property lines. "Person"means any individual,corporation(including any non-profit corporation),general or limited partnership, limited liability company, joint venture, cooperative, estate, trust, association, organization, labor union or other entity or Governmental Authority. "Proceeding" means any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or before,or otherwise involving,any Governmental Authority or arbitrator. "Property Schedule"has the meaning set forth in Section 9.16. "Real Property" means those parcels of real property and those easements or any right-of- way used exclusively in the operation of the Acquired System, together with all fixtures, fittings, buildings, structures and other Improvements erected therein or thereon. "Related Person"means: (a) with respect to a particular individual, (i) each other member of such individual's Family, (ii) any Person that is directly or indirectly controlled by such individual or one or more members of such individual's Family, (iii) any Person in which such individual or members of such individual's Family hold (individually or in the aggregate) a Material Interest; and (iv) any Person with respect to which such individual or one or more members of such individual's Family serves as a director, officer, partner, executor or trustee (or in a similar capacity) and (b) with respect to a specified Person other than an individual, (i) any Person that directly or indirectly controls, is directly or indirectly controlled by, or is directly or indirectly under common control with such specified Person, (ii) any Person that holds a Material Interest in such specified Person, (iii) each Person that serves as a director, officer, partner, executor or trustee of such specified Person (or in a similar capacity), (iv) any Person in which such specified Person holds a Material Interest, (v)any Person with respect to which such specified Person serves as a general partner or a trustee(or in a similar capacity)and(vi)any Related Person of any individual described in clause (ii) or(iii). For purposes of this definition, (x)the "Family" of an individual includes (A) the individual, (B) the individual's spouse, (C) any other natural person who is related to the individual or the individual's spouse within the second degree, and (D) any other natural person who resides with such individual; and (y) "Material Interest" means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of voting securities or other voting interests representing at least five percent(5%)of the outstanding equity securities or equity interests in a Person. "Remaining Deposit" means, at any time, the amount equal to the Initial Deposit plus the Signing Deposit minus any Transaction Costs incurred and paid by Village. "Signing iing Deposit"has the meaning set forth in the recitals of this Agreement. "Tangible Personal Property" means all water mains, wastewater mains, water pipes, wastewater pipes, water lines, wastewater lines, service lines, laterals, valves, meters, vaults, 735759741 hydrants, pumps, water towers, boosters, lift stations, water treatment plants, wells, wastewater treatment plants, machinery, equipment, tools, furniture, office equipment, computer hardware, supplies (including chemicals and spare parts), materials, vehicles and other items of tangible personal property of every kind owned or leased by Village(wherever located and whether or not carried on Village's books), together with any express or implied warranty by the manufacturers or lessors of any item or component part thereof, and all maintenance records and other documents relating thereto. "Tax" or"Taxes"means all taxes, charges, withholdings, fees, duties, levies, or other like assessments including,without limitation,income,gross receipts, ad valorem,value added, excise, property, sales, employment, withholding, social security, Pension Benefit Guaranty Corporation premium, environmental (under Section 59A of the Code) occupation, use, service, service use, license, payroll, franchise, transfer and recording taxes, fees and charges, windfall profits, severance, customs, import, export, employment or similar taxes, charges, fees, levies or other assessments, imposed by any Governmental Authority, whether computed on a separate, consolidated, unitary, combined or any other basis, and shall include any interest, fines,penalties, assessments, or additions to tax resulting from, attributable to, or incurred in connection with any such Tax or any contest or dispute thereof, and including any Liability for the Taxes of another Person under Treasury Regulation section 1.1502-6 (or any similar provisions of state, local, or foreign Law), as transferee or successor, by Contract or otherwise. "Tax Return" or "Tax Returns"means any return, declaration, report, claim for refund, or information return or statement relating to, or required to be filed in connection with any Taxes, including any schedule or attachment thereto and including any amendment thereof "Third Person" means a claimant other than an indemnified person hereunder. "Third Person Claim"means a claim alleged by a Third Person. "Transaction Costs" means the reasonable documented fees and expenses incurred by Village in connection with the preparation, negotiation, and consummation of the Transaction Documents and the Contemplated Transactions, including attorneys' fees and other legal costs and expenses, accountants' fees and other accounting costs and expenses, and other documented fees and expenses paid or payable to third party advisors and consultants engaged by Village in connection with the Contemplated Transactions. Village has provided a budget estimate of such Transaction Costs attached hereto as Exhibit 4, it being understood that such budget estimate shall not be construed as a cap on such costs. "Transaction Documents" means this Agreement, the Bill of Sale, the Assignment and Assumption Agreement and all other documents, certificates, assignments and agreements executed and/or delivered in connection with this Agreement in order to consummate the Contemplated Transactions,as the same may be amended,restated,modified or otherwise replaced from time to time. "Transfer Taxes"has the meaning set forth in Section 9.8. 735759741 "Village Indemnified Persons"means Village and Village's Affiliates and the past,present and future officers,directors, shareholders,partners,employees,agents,attorneys,representatives, successors and assigns of each of them in their capacities as such. "Wire Instructions"has the meaning set forth in Section 2.6(b). "Wheeling Agreement" means a wheeling agreement among DWC, Village and Buyer, substantially in the form attached hereto as Exhibit 5, with such changes to form and substance as (i)have been agreed by Village and Buyer, acting reasonably and(ii) have been initiated by DWC upon its review and negotiation of the agreement (the Parties acknowledging that DWC has not had the opportunity to comment on the form of Wheeling Agreement attached hereto; provided that, in the case of this clause (ii), that such changes do not have a materially unfavorable impact on the Village (which may be waived by Village) or Buyer (which may be waived by Buyer), it being acknowledged and agreed that a change to the term of the Wheeling Agreement will not necessarily have a materially unfavorable impact on either Party. Rules of Construction For purposes of this Agreement and the other documents executed in connection herewith, the following rules of construction shall apply, unless specifically indicated to the contrary: (i) wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine,the feminine and the neuter; (ii)the term"or"is not exclusive; (iii) the term "including" (or any form thereof) shall not be limiting or exclusive; (iv) the terms "hereof," "herein" and "herewith" and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including the Schedules and Exhibits hereto) and not to any particular provision of this Agreement; (v) all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations as well as all rules and regulations promulgated thereunder, unless the context otherwise requires; (vi) all references in this Agreement or in the Schedules to this Agreement to sections, schedules, exhibits and attachments shall refer to the corresponding sections, schedules, exhibits and attachments of or to this Agreement; and (vii) all references to any instruments or agreements, including references to any of the documents executed in connection herewith, shall include any and all modifications or amendments thereto and any and all extensions or renewals thereof. 735759741 Exhibit 2 Form of Bill of Sale BILL OF SALE 1. Sale and Transfer of Assets. For good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, and as contemplated by that certain Asset Purchase Agreement dated as of , 2021 (the "Purchase Agreement") by and between Aqua Illinois, Inc., an Illinois corporation ("Assignee'), and the Village of Oak Brook, Illinois, an Illinois municipal corporation ("Assignor'), Assignor hereby sells, conveys, transfers, assigns and delivers to Assignee, and Assignee hereby purchase, accepts and assumes, effective as of the Effective Time, all of Assignor's right, title and interest in and to all of the Acquired Assets, including without limitation those assets listed on Exhibit A attached hereto. 2. Further Actions. Assignor covenants and agrees to warrant and defend the sale, transfer, assignment, conveyance, grant and delivery of the Acquired Assets hereby made against all persons whomsoever, to take all steps reasonably necessary to establish the record of Assignee's title to the Acquired Assets and, at the request of Assignee, to execute and deliver further instruments of transfer and assignment and take such other action as Assignee may reasonably request to more effectively transfer and assign to and vest in Assignee each of the Acquired Assets, all at the sole cost and expense of the Assignor. 3. Power of Attorney. Without limiting Section 2 hereof, Assignor hereby constitutes and appoints Assignee the true and lawful agent and attorney in fact of Assignor, with full power of substitution and resubstitution, in whole or in part, in the name and stead of Assignor but on behalf and for the benefit of Assignee and its successors and assigns, from time to time: (a) to demand, receive and collect any and all of the Acquired Assets and to give receipts and releases for and with respect to the same, or any part thereof, (b) to institute and prosecute, in the name of Assignor or otherwise, any and all proceedings at law, in equity or otherwise, that Assignee or its successors and assigns may deem proper in order to collect or reduce to possession any of the Acquired Assets and in order to collect or enforce any claim or right of any kind hereby assigned or transferred, or intended so to be; and (c) to do all things legally permissible, required or reasonably deemed by Assignee to be required to recover and collect the Acquired Assets and to use Assignor's name in such manner as Assignee may reasonably deem necessary for the collection and recovery of same, Assignor hereby declaring that the foregoing powers are coupled with an interest and are and shall be irrevocable by Assignor. 4. Terms of the Purchase Agreement. The terms of the Purchase Agreement, including but not limited to Assignor's representations, warranties, covenants, agreements and indemnities relating to the Acquired Assets, are incorporated herein by this reference. Assignor acknowledges and agrees that the representations, warranties, covenants, agreements and indemnities contained in the Purchase Agreement shall not be superseded hereby but shall 735759741 remain in full force and effect to the full extent provided therein. In the event of any conflict or inconsistency between the terms of the Purchase Agreement and the terms hereof, the terms of the Purchase Agreement shall govern. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Purchase Agreement. [Remainder ofpage intentionally left blank;signature page attached.] 735759741 IN WITNESS WHEREOF, Assignor and Assignee have executed this Bill of Sale as of 202_. VILLAGE OF OAK BROOK, ILLINOIS By: Name: [o] Title: [e] AQUA ILLINOIS, INC. By: Name: [9] Title: [�] 735759741 Exhibit 3 Form of Assignment and Assumption Agreement ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made as of this _ day of , 202_ by and between Aqua Illinois, Inc., an Illinois corporation("Assignee"), and the Village of Oak Brook, Illinois, an Illinois municipal corporation ("Assignor"). WHEREAS, Assignee and Assignor have entered into that certain Asset Purchase Agreement dated April [o], 2021 (the "Asset Purchase Agreement") pursuant to which Assignee agreed to purchase the Acquired System from the Assignor, on the terms and subject to the conditions set forth in the Asset Purchase Agreement. WHEREAS, Assignor desires to irrevocably grant, transfer and assign to Assignee, and Assignee desires to accept the grant,transfer and assignment of any and all Acquired Assets which are intangible assets, including without limitation those assets listed on Exhibit B attached hereto (collectively, "Intangibles"). NOW, THEREFORE, for and in consideration of the mutual covenants contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged: 1. Assignor hereby irrevocably sells, conveys, assigns, transfers and delivers to Assignee, and Assignee hereby purchases, acquires and accepts the grant, transfer and assignment of, all of Assignor's right, title and interest in, to and under the Intangibles, the same to be held and enjoyed by the said Assignee, its successors and assigns from and after the date hereof as fully and entirely as the same would have been held and enjoyed by the said Assignor had this assignment not been made. Assignor agrees to execute any and all applications, assignments or other instruments which Assignee reasonably deems necessary to protect Assignee's interests in the Intangibles. Assignor hereby authorizes all appropriate governmental entities to record this Assignment, and to issue or transfer all said Intangibles to the Assignee as owner of all right, title and interest therein, or otherwise as the Assignee may direct, in accordance with the terms of this Agreement. 2. Assignor and Assignee agree (i) to use commercially reasonable efforts to take, or cause to be taken, all actions reasonably necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement, (ii) to execute any documents, instruments or conveyances of any kind which may be reasonably necessary or advisable to carry out any of the transactions contemplated hereunder and (iii) to cooperate with the other Party in connection with the foregoing. 3. Capitalized terms used herein that are used herein but not defined herein shall have the meanings assigned to them in the Asset Purchase Agreement. 735759741 4. Except to the extent that federal law preempts state law with respect to the matters covered hereby, this Assignment shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflicts of law principles. [Remainder of page intentionally left blank;signature page follows] 735759741 IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption Agreement to be duly executed and delivered as of the day and year first set forth above. "Assignor" "Assignee" VILLAGE OF OAK BROOK, ILLINOIS AQUA ILLINOIS, INC. By: By: Name: Name: Title: Title: STATE OF ILLINOIS } STATE OF ILLINOIS } } ss: } ss: COUNTY OF COUNTY OF } On this day of , 202_, On this day of , 202_, before me, a Notary Public, personally before me, a Notary Public, personally appeared , appeared , personally known to me (or proven to me on personally known to me (or proven to me on the basis of satisfactory evidence) to be the the basis of satisfactory evidence)to be the person whose name is subscribed to the person whose name is subscribed to the within instrument and acknowledged to me within instrument and acknowledged to me that he/she executed the same in his/her that he/she executed the same in his/her authorized capacity, and that by his/her authorized capacity, and that by his/her signature on the instrument the person, or the signature on the instrument the person, or the entity upon behalf of which the person acted, entity upon behalf of which the person acted, executed the instrument. executed the instrument. Witness my hand and official seal. Witness my hand and official seal. Notary Public in and for said Village and Notary Public in and for said Village and State State My Commission Expires My Commission Expires 735759741 Exhibit 4 Estimated Transaction Costs Budget Service Amount Notes Engineering Services $33,3863.75 Valuation study, develop RFP, assist the Village in the review of the RFP and presentation to the Board. Engineering Services $19,646.00 Water modeling data supplied to Aqua. Review water model data to determine Emergency Interconnect Master Meter sites. Engineering Services $81,000.00 Estimate per meter per site,the meter count is unknown at this time. Design, documentation, permitting and construction of Emergency Interconnect Master Meters. These sites will be used as Master Meters to meter the water delivered to the 5 zones,until Aqua completes their final Master Meter connections with DWC. After those connections, these meters will become metered emergency Interconnects. Legal Services, estimated cap $285,000.00 735759741 Exhibit 5 Form of Wheeling Agreement (See attached.) 735759741 AGREED FORM [FORM OF] WATER TRANSMISSION AND DELIVERY AGREEMENT AMONG THE VILLAGE OF OAK BROOK, AQUA ILLINOIS, INC., AND THE DUPAGE WATER COMMISSION This Water Transmission and Delivery Agreement (the "Agreement"), dated as of , 2021, by and among the VILLAGE OF OAK BROOK, a municipal corporation of the State of Illinois existing by virtue of its creation consistent with the Illinois Municipal Code set forth in 65 ILCS 511-1-1 et seq. (the "Village"), and AQUA ILLINOIS, INC, an Illinois Corporation ("Aqua"), a public utility regulated by the Illinois Commerce Commission within the meaning of Section 3-105 of the Public Utilities Act, 220 ILCS 511-101 et seq., and the DUPAGE WATER COMMISSION, DuPage, Cook, and Will Counties, State of Illinois, a county water commission and public corporation under Division 135 of Article 11 of the Illinois Municipal Code, 65 ILCS 5/11-135-1 et seq., and the Water Commission Act of 1985, 70 ILCS 3720/0.01 et seq. (the "Commission"). WITNESSETH: WHEREAS, the Commission owns and maintains water treatment system as a supplier of potable water to member customers that contract for such service ("Commission's Waterworks System"); and WHEREAS, the Village has entered into a Water Purchase and Sale Contract dated , 19_ (the "Charter Customer Contract") with the Commission and is a charter customer of the Commission; and WHEREAS, the Village owns and operates a water distribution system, which system is supplied with Lake Michigan (the "Lake") water by the Commission pursuant to the terms of the Charter Customer Contract; and 740496890 WHEREAS, Aqua is a public utility that furnishes water service to the public in various service territories throughout Illinois; and WHEREAS, Aqua and the Village have entered into that certain Asset Purchase Agreement dated , 2021 (the "APA") pursuant to which Aqua is acquiring certain assets owned by the Village and used solely in connection with the water distribution services provided to customers outside the boundaries of the Village located in non-contiguous areas to one another and separate zones of service both inside and outside the boundaries of the Village. A map showing the service areas of the water system to be acquired by Aqua is attached hereto and incorporated here as Exhibit A (the "Aqua System") ; and WHEREAS, the Village will continue to own and operate its water distribution system serving the incorporated areas of the Village (the "Village System") and remain a customer of the Commission for the Village System; and WHEREAS, Aqua has entered into a Water Purchase and Sale Contract, dated , 2021 (the "Aqua Customer Contract"), with the Commission for sale by the Commission of Lake water to Aqua for the Aqua System, subject to the consummation of the transactions contemplated by the APA (the "Closing"); and WHEREAS, the Aqua System currently serves five discrete and non-contiguous service areas, referred to as Unincorporated Oak Brook Zones ("Aqua System Zones"); and WHEREAS, the Aqua Customer Contract provides in Subsection _ that Aqua may negotiate for the alternate delivery of Lake water to one or more or all of its service areas (i.e. Aqua System Zones) through a charter or subsequent customer of the Commission in lieu of a direct connection between the Commission's Waterworks System and the Aqua System Zones, -2- 740496890 which permits the delivery of Lake water to the Aqua System Zones in accordance with this Agreement; and WHEREAS, the Aqua System Zones are adjacent to the Village System and will remain hydraulically connected after Closing and the Village System is currently serving and capable of serving the Aqua System Zones with water from the Commission's Waterworks System through the Village System; and WHEREAS, Aqua and the Village desire to enter into a water transmission and delivery agreement for the delivery of water from the Commission's Waterworks System through the Village's System to the Aqua System Zones ("Wheeling") in the form of this Agreement; and WHEREAS, Aqua shall, in a phased approach, connect the Aqua System Zones directly into the Commission's Waterworks System ("Direct Connection"), such that as each Aqua System Zone connects to the Commission's Waterworks System facilities (the "Commissions Facilities") the Aqua water requirements for such Aqua System Zone shall no longer Wheel through the Village System and such water shall not be subject to this Agreement; and WHEREAS, the Commission has reviewed and approved this Agreement in accordance with the requirements of Subsection of the Aqua Customer Contract. NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual covenants and agreements herein contained, Aqua, the Village, and the Commission hereby agree as follows: Section 1. Agreement to Deliver. Effective upon Closing and throughout the Term of this Agreement, subject to the terms hereof, the Village agrees to transmit and deliver (i.e. Wheel) water purchased by Aqua from the Commission through the Village System to the -3- 740496890 portions of the Aqua System serving the Aqua System Zones (which are not in Direct Connection with the Commission's Waterworks System), subject to availability of such water from the Commission. Notwithstanding any requirement of the Aqua Customer Contract to the contrary, the Commission shall bear no responsibility for the contamination of such Lake water or deterioration of water quality occurring beyond the Commission's point of delivery to the Village System. Subject to the terms and conditions of this Agreement, the Village will deliver the full water supply from the Commission to the portion of the Aqua System serving the Aqua System Zones through existing interconnection points currently serving the Aqua System Zones at the time of execution of this Agreement. The interconnections points between the Village System and the Aqua System Zones ("Interconnections") as shown on Exhibit Notwithstanding any requirement of the Aqua Customer Contract to the contrary, title to all water supplied by the Commission shall remain in the Commission to the point of delivery to the Village System and thereupon shall pass to the Village and Aqua as their interests may appear. Section 2. Interconnection. A. The Interconnections are those currently existing Interconnections between the Village System and the Aqua System shown on Exhibit . Notwithstanding any requirement of the Aqua Customer Contract to the contrary, the Commission shall not be required to connect the Commission's Waterworks System to the portion of the Aqua System serving the Aqua System Zones nor furnish, install, own, operate, maintain, or replace at the Interconnection a metering station or point of delivery or any other Connection Facilities for the Aqua System Zones so long as this Agreement is in effect. For purposes of the Aqua Customer Contract, the "Point(s) of Delivery" to the portion of the Aqua System serving the Aqua System Zones shall, -4- 740496890 as related to this Agreement, be at the existing Interconnections. Nothing herein shall prohibit Aqua or the Commission, from establishing a Direct Connection to the Commission's Waterworks System, at Aqua's cost, subject to Commission approval. B. Aqua System Zones/ Interconnection to Village. Aqua shall, when necessary, further design, construct, operate, maintain, and replace the Interconnections to the extent such are necessary for Wheeling water from the Village pursuant to Subsection of the Aqua Customer Contract, except that such facilities shall be as described in Exhibit to this Agreement rather than as described in Exhibit to the Aqua Customer Contract. Notwithstanding any requirement of the Aqua Customer Contract to the contrary, Aqua shall not be required to construct a pressure adjusting station so long as this Agreement remains in effect. Subject to normal operating constraints, adequate delivery and pressure of the supply of water delivered to Village, Village will supply water at the Delivery Points at a reasonably constant pressure. C. Direct Interconnection of Aqua System and Commission Facilities. Within Aqua shall make Direct Connection in a phased approach. Aqua shall be responsible for all construction and costs associated with the Direct Connection, subject to Commission Approval, not to be unreasonably withheld conditioned or delayed. At the time of completion of all Direct Connection of the Aqua System to the Commission System such that all the Aqua Zones will be directly supplied by the Commission Facilities, this Agreement shall terminate, except that nothing herein shall prohibit the parties continuing the physical interconnection of the Existing Connection points with proper shut off and backflow as emergency interconnection points, subject to a separate emergency intercommunication -5- 740496890 agreement. Unless otherwise agreed, neither the Commission nor the Village shall be required to construct or fund any connection to the Commission's Facilities to the Aqua System serving the Aqua System Zones. All design and construction plans and specifications for such Direct Connection shall require the written approvals of the Commission before commencement of any construction. Village agrees and hereby grants to Aqua the right to use any Right of Way to lay and repair any pipe, main or facilities in the Village reasonably necessary to make such Direct Connection, subject to generally applicable permitting requirements of the Village. Section 3. Metering Station Access. The Commission shall provide access to the Commission's Metering Stations applicable to Aqua and the Village at reasonable times for purposes of examination and inspection, but the readings of each meter for billing purposes, calibration, and adjustment of the equipment therein shall be done only by the employees or agents of the Commission. Section 4. Meter Readings. The Commission shall read the meters at the applicable Commission's Metering Station(s) and shall provide the Village and Aqua with copies of the readings. Section 5. Prices; Terms of Payment. A. Aqua's Payments to the Commission. Aqua shall make all required payments to the Commission in accordance with the terms of the Aqua Customer Contract. For water wheeled through the Village pursuant to this Agreement, the volume of water determined to have been delivered to the Aqua System Zones on a basis -6- 740496890 shall be determined based on the total volume of metered water Aqua delivers to its customers in the Aqua System Zones that are not served by a Direct Connection ("Aqua System Volume"). In order to determine the Aqua System Volume, Aqua shall provide to the Village and Commission a report showing the volume of metered water passing through the Aqua Zone Customers on a basis on . Such report shall show an aggregate amount of volume in total, for each Aqua System Zone and for each individual meter. B. Village's Payments to the Commission. To the extent that the Village's payments to the Commission depend on the amount of Lake water delivered to the Village System, the Aqua System Volume shall be deducted from the volume of water metered and delivered to the Village System by the Commission on the same basis to determine the total Village System Volume ("Village System Volume"). If, for any billing period, the actual flow billed by Aqua to residents in the Aqua System Zones exceeds the measurement of the amount of Lake water delivered through the Village System Meters, then the difference between such readings shall be deemed to be zero. The Commission's determination of such difference shall be conclusive and binding upon the parties to this Agreement in the absence of manifest error. C. Village Wheeling. Village will charge Aqua a wheeling rate based on the below percentage times the charges by DWC to Aqua for the amount of water subject to -7- 740496890 such Wheeling charge based upon Aqua System Volume (not to include any taxes, capital casement's or other charges not directly based on the Aqua System Volume: a. Years 1-2 0% b. Years 3-4 5% c. Years 5-6 10% d. Years 7-8 15% e. Years 9-through term of Agreement 20% Section 6. Water Storage Capacity. The Village shall maintain, during the entire term of this Agreement and any renewal or extension of it, effective water storage capacity equal to the water storage capacity required by the Charter Customer Contract for the Village System. To the extent that such effective water storage capacity requirement depends upon the amount of Lake water delivered to the Village System, such storage capacity requirement shall be based upon the Village System Volume. The Commission's calculation of such storage capacity requirement shall be conclusive and binding upon the parties to this Agreement in the absence of manifest error. Aqua shall maintain, during the entire term of this Agreement and any renewal or extension of it, effective water storage capacity equal to the water storage capacity required by the Aqua Customer Contract for the Aqua System pursuant to Subsection of the Aqua Customer Contract. -8- 740496890 To the extent that such effective water storage capacity requirement depends upon the amount of Lake water delivered to the portion of the Aqua System serving the Aqua System Zones, such storage capacity requirement shall be based upon the actual Aqua System Volume. The Commission's calculation of such storage capacity requirement shall be conclusive and binding upon the parties to this Agreement in the absence of manifest error. Section 7. Limitations on Supply of Water. A. Curtailment. If at any time it becomes necessary for the Commission to limit generally its delivery of Lake water to its customers for any reason, then the Village and Aqua together shall take all reasonable and appropriate actions to provide that such Lake water as is delivered by the Commission is shared by the Village and Aqua on a pro rata basis in accordance with their respective contracts with the Commission. B. Limitation on Supply to Village. If at any time it becomes necessary for the Commission to limit its delivery of Lake water to the Village System (but not to the Aqua System) for any reason pursuant to the Charter Customer Contract and specifically related to the Village, then the Village shall take all reasonable and appropriate actions, including without limitation the imposition of water use limitations on customers of the Village System, to limit the use of Lake water in the Village System so that the Lake water to which the portion of the Aqua System serving the Aqua System Zones is entitled is delivered by the Village to the Aqua System Zones Connection Facilities. C. Limitation on Supply to Aqua. If at any time it becomes necessary for the Commission to limit its delivery of Lake water to the Aqua System (but not to the Village System) for any reason pursuant to the Aqua Customer Contract and specifically related to Aqua, -9- 740496890 then Aqua shall take all reasonable and appropriate actions, including without limitation the imposition of water use limitations on customers of the Aqua System, and the Village shall, and shall be entitled to, make all necessary and appropriate adjustments to the Village System and the Commission may, and shall be entitled to, make all necessary and appropriate adjustments to the Aqua System Zones Connection Facilities, to assure that the appropriate amount of Lake water to which the Village System is entitled is delivered to the Village System during such period of curtailment to Aqua. D. No Liability of Commission. Aqua and the Village each hereby acknowledge and agree that the Commission shall not be obligated to enforce the provisions of this Section 7 but may do so in its sole discretion and that the Commission shall not be liable either to Aqua or to the Village for any damages occasioned by or in any way related to any limitation on, or delay in, the delivery of Lake water to them or to either one of them. E. Rate of Withdrawal. The rate of flow that the Village may withdraw from the Commission for the portion of the Aqua System serving the Aqua System Zones shall be limited to 1.7 times the allocation rate for such service area. The rate of flow that the Village may withdraw from the Commission for the Village System shall be limited to 1.7 times the allocation rate for such system. Section 8. Releases and Indemnification. Other than in the case of intentional misconduct by the Commission or the Village, as applicable, Aqua hereby releases and holds harmless the Commission and the Village, and their respective officers, agents and employees, from, and agrees that neither the Commission nor the Village, nor their respective officers, agents or employees, shall be liable for, any damages resulting from failure to supply Lake water -10- 740496890 or for any interruption of the Lake water supply to the fullest extent allowed by law; provided that the foregoing shall not excuse the Commission or the Village from using their good faith efforts to comply with their respective obligations pursuant to Section 1 of this Agreement. Aqua hereby agrees to indemnify, save, and hold harmless the Commission and the Village, and their respective officers, agents and employees, from and against all claims, litigation, and liability, including legal defense costs and expenses and attorneys' fees, asserted against the Commission and the Village, or any of their respective officers, agents or employees, for any loss or damage to any real or personal property caused by, connected with, or in any way attributable to the installation, maintenance, or operation of the portion of the Aqua System serving the Aqua System Zones or the Interconnection to the fullest extent allowed by law. In connection with any such claims, litigation or liabilities, the Commission, the Village, and their respective officers, agents, employees, representatives, and assigns shall have the right to defense counsel of their choice. Aqua shall be solely liable for all costs of such defense and for all expenses, fees,judgments, settlements, and all other costs arising out of such claims, litigation, or liabilities. Aqua shall have the right to participate in the defense of any such claim, or litigation and, upon request by the Commission or the Village, as applicable, shall undertake the defense of the Commission or the Village, as applicable, as well as the officers, agents, and employees of the Commission or the Village, as applicable. The Village hereby agrees to indemnify, save, and hold harmless the Commission, and its officers, agents and employees, from and against all claims, litigation, and liability, including legal defense costs and expenses and attorneys' fees, asserted against it or any of them for injury to or the death of any person or persons whomsoever or for any loss or damage to any real or -11- 740496890 personal property caused by, connected with, or in any way attributable to any exercise by the Village of any right or duty herein granted or any failure by the Village to exercise any such right or duty, or to comply with any of the terms or conditions hereof to the fullest extent allowed by law. The Village shall have the right to participate in the defense of any such claim or litigation and, upon request by the Commission, shall undertake the defense of the Commission, as well as its officers, agents, and employees. Aqua hereby agrees to indemnify, save, and hold harmless the Commission, and its officers, agents and employees, from and against all claims, litigation, and liability, including legal defense costs and expenses and attorneys' fees, asserted against it or any of them for injury to or the death of any person or persons whomsoever or for any loss or damage to any real or personal property caused by, connected with, or in any way attributable to any exercise by Aqua of any right or duty herein granted or any failure by Aqua to exercise any such right or duty, or to comply with any of the terms or conditions hereof to the fullest extent allowed by law. Aqua shall have the right to participate in the defense of any such claim or litigation and, upon request by the Commission, shall undertake the defense of the Commission, as well as the Commission's officers, agents, and employees. Section 9. Interpretation: Compliance with Existing Contracts. This Agreement shall be deemed to be a separate written contract between the Commission and Aqua required by Subsection 4B of the Aqua Customer Contract for the Alternate Delivery of Lake water. Except where expressly provided in this Agreement, nothing in this Agreement shall be construed to be, or applied in any manner, inconsistent with the terms of the Charter Customer Contract or the Aqua Customer Contract, and if there is any conflict or inconsistency between the terms of this -12- 740496890 Agreement and the terms of either one or both of those Contracts, then the terms of those Contracts shall control. The Village shall at all times comply with all terms and conditions of this Agreement and the Charter Customer Contract, and Aqua shall at all times comply with all terms and conditions of this Agreement and the Aqua Customer Contract, including without limitation the making of all payments due thereunder or hereunder promptly to the Commission and the development of the Aqua System Zones Connection Facilities in accordance with the timetable established therein. Under no circumstances shall any dispute of any nature under this Agreement or Aqua's inability to receive water through the Interconnection provided by this Agreement, excuse, delay, or in any other way affect the Village's or Aqua's performances under such Contracts or this Agreement, including without limitation the making of all such payments. Section 10. Term. Subject to the receipt of a water allocation for the portion of the Aqua System serving the Aqua System Zones, the term of this Agreement shall be from the date first above written until the sooner of: (a) twenty (20) years ("Initial Term") and shall automatically renew for five (5) years unless a party provides notice to the other parties of its intent not to renew at least one hundred and eighty(180) days prior to end of the Initial Term; or (b) Upon notice by Aqua to the Village that Direct Connection of all of the Aqua System Zones as stated in Section 2 has been completed. Section 11. Governing Law. This Agreement shall be construed exclusively under the applicable laws of,but not the conflict of law rules of, the State of Illinois. -13- 740496890 Section 12. Amendment. This Agreement shall not be modified, revised, amended, or annulled in any way except in writing approved by all parties hereto. Section 13. Notices. All notices or communications provided for herein shall be in writing and shall be delivered in person or by certified United States mail, return receipt requested, postage prepaid, addressed as follows: To the Village: Village Administrator Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60523 To Aqua: Aqua Illinois, Inc. President 1000 S. Schuyler Avenue Kankakee, IL 60901 To the Commission: General Manager DuPage Water Commission 600 East Butterfield Road Elmhurst, IL 60126 until and unless other addresses are specified by notice given in accordance herewith. Section 14. Legal Authority. Each party represents and warrants to the others that it has full legal authority to enter this Agreement; that the officers and representatives signing this Agreement have been duly authorized to sign by their respective party; that entering this Agreement will not conflict with or violate the terms of any other agreement or obligation to which each respective party hereto is obligated or bound. -14- 740496890 Section 15. Regulatory Approval. This Agreement is subject to all governmental authorizations needed for, including, but not necessarily limited to, adoption and approval from Illinois Commerce Commission. Section 16. Cooperation. The parties agree to cooperate with each other and to use commercially reasonable efforts in the implementation of this Agreement, and to sign or cause to be signed, in a timely fashion, any and all necessary instruments, documents and petitions, and to take such other actions as may be reasonably necessary in order to effectuate the purposes of this Agreement. Section 17. Execution in Counterparts. This Agreement may be executed in any number of counterparts (including by means of email or other electronic signature), each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. Execution and delivery by facsimile or in any electronic (i.e., "pdf' or "tif') format shall be effective as delivery of a manually executed counterpart of this Agreement. To the extent applicable, the foregoing constitutes the election of the parties to invoke any applicable law authorizing electronic signatures. [Remainder ofpage intentionally left blank] -15- 740496890 IN WITNESS WHEREOF, the Village, Aqua, and the Commission have caused this Agreement to be properly signed and attested to by their respective officers, and their seals affixed hereto, all as of the day and date first hereinabove set forth. VILLAGE OF OAK BROOK By: Name: [*] Title: [�] (Corporate Seal) ATTEST: Village Clerk [Signature Page to Water Transmission and Delivery Agreement] AQUA ILLINOIS, INC By: Name: [e] Title: [9] [Signature Page to Water Transmission and Delivery Agreement] COUNTY OF DuPAGE By: Name: [e] Title: [�] (Corporate Seal) ATTEST: Clerk DuPAGE WATER COMMISSION By: Name: [9] Title: [�] (Corporate Seal) ATTEST: Clerk [Signature Page to Water Transmission and Delivery Agreement] EXHIBIT A to EXECUTION COPY EXHIBIT A Aqua System Zones Connection Facilities