Exhibit 99.3
PARTNERSHIP INTEREST PURCHASE
AND SALE AGREEMENT
This Partnership Interest Purchase
and Sale Agreement (this “Agreement”) is executed and
delivered as of July 28, 2005, by and between Fore Holdings,
LLC , an Illinois limited liability company (the
“Seller”), and Clinton Industries L.L.C., an
Illinois limited liability company (“Clinton”), Lake
D.G.R. Associates I, LLC, an Illinois limited liability company
(“DGR”) and L.L.L. Partnership, LLC , an
Illinois limited liability company (“LLL”; collectively
with DGR and Clinton referred to herein as
“Buyers”).
WHEREAS, the Seller owns a fifty-one
percent (51%) partnership interest (the “Purchased
Interest”) in Overlook Associates, an Illinois general
partnership (the “Company”);
WHEREAS, the Seller desires to sell,
assign and transfer unto the Buyers all of the Purchased Interest,
all on the terms and conditions set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
SALE OF PARTNERSHIP
INTEREST
1.1. Sale, Assignment and
Transfer . Upon the terms and subject to the conditions of this
Agreement, on the Closing Date (as defined in Section 1.5 hereof),
the Seller shall sell, assign, transfer and set over unto the
Buyers, and the Buyers shall purchase the Purchased Interest, free
and clear of all liens, claims, security interests, pledges and
encumbrances of every kind.
1.2. Percentages . Clinton
shall purchase fifty percent (50%) of the Purchased Interest, DGR
shall purchase twenty-five percent (25%) of the Purchased Interest
and LLL shall purchase twenty-five percent (25%) of the Purchased
Interest.
1.3. Purchase Price . The
purchase price (the “Purchase Price”) for the Purchased
Interest shall be Three Million Eight Hundred Forty-Six Thousand
Seventy-Six Dollars ($3,846,076), to be paid as follows:
(a) Payment by Clinton .
Clinton shall pay Seller One Million Nine Hundred Twenty-Three
Thousand Thirty Eight Dollars ($1,923,038) on the Closing
Date;
(b) Payment by DGR . DGR
shall pay Seller Nine Hundred Sixty-One Thousand Five Hundred
Nineteen Dollars ($961,519) on the Closing Date; and
(c) Payment by LLL . LLL
shall pay Seller Nine Hundred Sixty-One Thousand Five Hundred
Nineteen Dollars ($961,519) on the Closing Date.
1.4. Liquidation, Distribution of
Company Assets and Payment of Company Liabilities .
Simultaneously with the Closing hereunder, a final accounting of
the assets and liabilities of the Company (exclusive of the
Company’s interests in WN Overlook Associates, the owner of
the real property located in Lincolnshire, Illinois commonly known
as 300 Tower
Parkway (the “Property”)) shall be
taken and the Company shall distribute all of its cash and other
assets other than the Escrowed Funds (as hereinafter defined) to
Seller and Tower Parkway Associates L.L.C. (“Tower”;
together with Seller referred to as the “Partners”) in
accordance with their partnership interests in the Company
immediately prior to Closing. All costs and expenses related to the
operation of the Company and attributable to the properties
commonly known as One Overlook, Two Overlook or Three Overlook in
Lincolnshire, Illinois shall be paid by the Partners in accordance
with their partnership interests in the Company immediately prior
to Closing, regardless of when such expenses are incurred. All
costs and expenses related to the operation of the Company and
attributable to the Property that are incurred prior to the Closing
Date and that are ascertainable as of the Closing Date shall be
paid by the Partners in accordance with their partnership interests
in the Company immediately prior to Closing. In connection
therewith, the amount of $250,000 (the “Escrowed
Funds”) shall be deposited by the Partners, in proportion
with their partnership interests in the Company immediately prior
to Closing, into escrow at the time of the Closing, which Escrowed
Funds shall be used to pay costs and expenses related to the
operation of the Company that were incurred prior to the Closing
Date but will not be ascertainable until after the Closing Date.
All Escrowed Funds remaining in the escrow on September 30, 2005
shall be distributed to the Partners in proportion with their
partnership interests in the Company immediately prior to Closing.
Seller shall have no responsibility with respect to costs or
expenses related to the operation of the Company or attributable to
the Property that are attributable to periods subsequent to the
Closing Date. Such costs and expenses shall be paid by Tower and
the Buyers.
1.5. Closing Date . The
completion of the purchase, sale and assignment of the Purchased
Interest (the “Closing”) shall occur immediately
following the closing contemplated in that certain Real Estate
Purchase Agreement between Seller, Clinton, DGR and LLL,
collectively as sellers, and The Northwestern Mutual Life Insurance
Company, a Wisconsin corporation (“Northwestern”), as
buyer, dated as of July 28, 2005, for the purchase of real property
commonly known as Two Overlook Point and Three Overlook Point (the
“2/3 Purchase Agreement”) and the closing contemplated
in that certain Real Estate Purchase Agreement between the Company,
as seller, and Corporate Overlook Campus, LLC, as buyer, dated as
of July 28, 2005, for the purchase of an undivided eighty and 4/100
percent (80.4%) tenancy-in-common interest in the real property
commonly known as One Overlook Point (the “1 Purchase
Agreement”). Such date upon which the Closing occurs shall be
the “Closing Date.” In the event Closing does not occur
on or before July 28, 2005, for any reason, this Agreement shall
automatically terminate unless the parties agree in writing to
extend it.
1.6. Closing Deliveries . At
Closing, the parties shall make the deliveries listed below, each
signed by the appropriate parties and dated as of the
Closing:
(a) The Seller :
(i) an Assignment and Assumption
Agreement, in the form attached hereto as Exhibit A (the
“Assignment”), assigning to the Buyers all of the
Seller’s interest in and to the Purchased Interest, free and
clear of all liens and encumbrances;
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(ii) Strict Joint Order Escrow
Instructions signed by Seller or Seller’s attorney regarding
the Escrowed Funds; and
(iii) such other documents and
instruments as the Buyers may reasonably request to vest control of
the Purchased Interest in them and to otherwise carry out the
intentions of the parties as memorialized in this
Agreement.
(b) The Buyers :
(i) a counterpart of the
Assignment;
(ii) the Purchase Price, in cash or
cash equivalent;
(iii) Strict Joint Order Escrow
Instructions signed by Tower, of which Buyers are the members, or
Tower’s attorney regarding the Escrowed Funds; and
(iv) such other documents and
instruments as the Seller may reasonably request to secure the
performance to Seller of the payments and the other obligations of
the Buyers under this Agreement and to otherwise carry out the
intentions of the parties as memorialized in this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SELLER
2.1 Representations and
Warranties of Seller . Subject to the limitations set forth in
Section 5.1, Seller hereby represents and warrants to Buyers that,
to Seller’s knowledge as of the date hereof:
(a) Seller has not received any
written notice, not subsequently cured, from any governmental
entity citing Seller for any material violation of any law,
ordinance, order, or regulation which is applicable to the present
use and occupancy of the Property;
(b) Seller has not been served in
any litigation, arbitration or other judicial, administrative, or
other similar proceedings involving, related to, or arising out of
the Property which is currently pending, and which would have a
material impact on Buyers’ ownership interest in the
Property;
(c) Seller, and the individuals
signing this Agreement on behalf of Seller, have the full legal
power, authority, and right to execute and deliver, and to perform
their legal obligations under this Agreement, and Seller’s
performance hereunder and the transactions contemplated hereby,
have been duly authorized by all requisite action on the part of
Seller and no remaining limited liability company action is
required to make this Agreement binding on Seller;
(d) Seller has not received any
official governmental notice of any actual condemnation of the
Property or any part thereof;
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(e) Seller has not received a
written notice from any governmental agency with respect to any
Hazardous Material contamination on the Property, or with respect
to any investigation, administrative order, consent order or
agreement, litigation, or settlement with respect to Hazardous
Material or Hazardous Material contamination that is in existence
with respect to the Property. As used herein, “Hazardous
Material” means any hazardous, toxic or dangerous waste,
substance, or material, as currently defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or any other federal, state, or local law,
ordinance, rule, or regulation, applicable to the Property, and
establishing liability standards or required action as to
reporting, discharge, spillage, storage, uncontrolled loss,
seepage, filtration, disposal, removal, use, or existence of a
hazardous, toxic, or dangerous waste, substance or
material;
(f) there are no employees of Seller
working at the Property; and
(g) Seller represents and warrants
that Seller, all persons and entities owning (directly or
indirectly) a ten percent (10%) or greater ownership interest in
Seller, all guarantors and/or indemnitors of the obligations of
Seller (if any) in favor of Buyer in connection with the sale of
the Property: (i) are not, and shall not become, a person or entity
with whom Buyers are restricted from doing business with under
regulations of the Office of Foreign Assets Control
(“OFAC”) of the Department of the Treasury (including,
but not limited to, those named on OFAC’s S
