EXHIBIT 10.2
------------
THIS ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST ("Assignment")
is made effective as of April __, 1998, by and between CARLYLE REAL ESTATE
LIMITED PARTNERSHIP-VII, an Illinois limited partnership ("Assignor") and
XXXX CAPTIAL CORPORATION, a California corporation ("Assignee") with
reference to the following matters:
A. PARTNERSHIP. Assignor and TrizecHahn Centers Inc., a
California corporation ("TrizecHahn"), an affiliate of Assignee, are
general partners in Oakridge Associates, a California general partnership
(the "Partnership").
B. PURCHASE AGREEMENT. Assignor and TrizecHahn entered into that
certain Oakridge Agreement for Purchase and Sale of Partnership Interest
(the "Purchase Agreement") on April 3, 1998 (the "Effective Date"),
regarding the purchase and sale of all of Assignor's interest in the
Partnership, including, without limitation, all of its interest in capital,
profits, liquidation proceeds, distributions and all other rights and
interests under the Partnership Agreement or relating to the Partnership
(collectively, the "Partnership Interest"). TrizecHahn has assigned its
interest in the Purchase Agreement to Assignee.
C. PURPOSE. Pursuant to the Purchase Agreement, Assignor desires
to assign its Partnership Interest to Assignee, and Assignee desires to
accept such assignment and assume all obligations and responsibilities of
Assignor with respect to its Partnership Interest, as hereinafter provided.
NOW, THEREFORE, the parties agree as follows:
1. ASSIGNMENT. Assignor hereby assigns, conveys, transfers
and delivers all of the Partnership Interest to Assignee.
2. ACCEPTANCE OF ASSIGNMENT AND ASSUMPTION.
2.1 Assignee hereby accepts the foregoing assignment of
the Partnership Interest, and assumes all liabilities associated with the
Partnership Interest arising after the date of this Assignment (excepting
only such matters, if any, as may be expressly provided in the Purchase
Agreement).
2.2 Assignee acknowledges having read and understood
the Partnership's Articles of Partnership made and entered into as of
October 15, 1977 (the "Partnership Agreement"), and hereby agrees to be
bound by each and every term thereof.
3. GENERAL PROVISIONS.
3.1 NECESSARY ACTS. Each party agrees to perform any
further acts, and to execute and deliver any further documents, that may be
reasonably necessary or appropriate to carry out this Assignment.
3.2 AMENDMENT. Any oral representations or
modifications concerning this Assignment shall be of no force or effect.
This Assignment may be amended only in a writing, signed by the party to be
charged.
3.3 CAPTIONS. Paragraph headings or captions are
inserted as a matter of convenience and reference, and in no way define,
limit, extend or describe the scope of this Assignment or any provision
hereof.
3.4 GOVERNING LAW. This Assignment shall be governed
by the laws of the State of California.
3.5 COUNTERPARTS AND FACSIMILES. This Assignment may
be executed in multiple copies, each of which will be deemed an original,
but all of which will constitute one Assignment after each party has signed
such a counterpart. An executed counterpart may be delivered by
transmission of a facsimile copy, promptly followed by delivery of the
original in accordance with this Agreement, and in such a case, delivery
shall be deemed effective upon transmission of the facsimile copy.
3.6 SUCCESSORS AND ASSIGNS. This instrument shall bind
and inure to the benefit of the respective heirs, personal representatives,
grantees, successors and assigns of the parties hereto.
3.7 INCORPORATION BY REFERENCE. The covenants,
agreements and limitations (including, but not limited to, the limitations
of liability provided in Section 12.20 of the Purchase Agreement) provided
in the Purchase Agreement with respect to the Partnership Interest are
incorporated herein by this reference as if set out in full herein.
IN WITNESS WHEREOF, Assignor and Assignee have caused this
Assignment to be executed effective as of the date and year first above
written.
ASSIGNOR: CARLYLE REAL ESTATE LIMITED PARTNERSHIP-VII,
an Illinois limited partnership
By: JMB Realty Corporation,
a Delaware corporation,
General Partner
By:
Name: ________________________
Title: _______________________
By:
Name: ________________________
Title: _______________________
ASSIGNEE: XXXX CAPITAL CORPORATION,
a California corporation
By:
Name: ________________________
Title: _______________________
By:
Name: ________________________
Title: _______________________
JMB AUTHORIZING RESOLUTION
The undersigned, ____________________________________________,
Secretary to JMB REALTY CORPORATION, a Delaware corporation (the
"Corporation"), hereby certifies as follows:
1. The undersigned is the duly elected, qualified and acting
Secretary of the Corporation, and as such has custody and control of the
records and seal of the Corporation.
2. The undersigned has full power and authority to execute
and deliver this Certificate.
3. The Corporation is the sole General Partner of CARLYLE
REAL ESTATE LIMITED PARTNERSHIP-VII, an Illinois limited partnership
("Carlyle"). Carlyle is a general partner in OAKRIDGE ASSOCIATES, a
California general partnership (the "Partnership").
4. The following Resolutions are a true, complete and
correct copy of the Resolutions duly authorized and adopted by the Board of
Directors of the Corporation on or before the date hereof, are now in full
force and effect and have not been amended or revoked:
RESOLVED, that the Corporation hereby approves of the
sale by Carlyle of all its partnership interests in the Partnership , to
TRIZECHAHN CENTERS, INC., a California corporation ("Buyer") or its
affiliate, for the price and on the other terms and conditions
substantially as set forth in that certain Oakridge Agreement for Purchase
and Sale of Partnership Interest (the "Purchase Agreement") on April 3,
1998 (the "Effective Date"), by and between Carlyle and Buyer. The
consummation of all transactions contemplated in the Purchase Agreement,
and the execution and delivery of each of the documents required to be
delivered thereunder, are hereby approved.
RESOLVED FURTHER, that either (a) ___________________________,
as __________________ of the Corporation, acting alone, or
(b) ________________________________, as __________________ of the
Corporation, acting alone, or (c) any two officers of the Corporation,
acting together, are each authorized, empowered and directed to take
further action and to execute, make oath to, acknowledge and deliver, from
time to time in the name and on behalf of the Corporation, and the
Corporation is authorized, empowered and directed to take further action
and to execute, make oath to, acknowledge and deliver, from time to time in
the name and on behalf of Carlyle, such other agreements, instruments,
certificates or documents and to do or to cause to be done any and all such
other acts and things as such officer or officers may deem necessary,
proper, appropriate or advisable to consummate the transactions
contemplated by the Purchase Agreement and to carry out the intent of the
forgoing resolutions, the taking of such actions to be conclusive
evidence that the same have been authorized and approved by the Board
of Directors of the Corporation and by Carlyle.
RESOLVED FURTHER, that, by these Resolutions, all such actions
as may be necessary pursuant to the partnership agreement of Carlyle have
now been taken, to authorize Carlyle's execution and delivery of the
Purchase Agreement, consummation of the transactions contemplated thereby
and execution and delivery of each of the documents required to be
delivered thereunder, and Buyer may rely thereon.
RESOLVED FURTHER, that all acts and things previously done and
performed (or caused to be done and performed) in the name and on behalf of
the Corporation and Carlyle prior to the date of these resolutions in
connection with the transactions contemplated by the Purchase Agreement are
hereby ratified, confirmed and approved.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
seal of the Corporation on _____________, 1998.
Name: ___________________________________
Title: Secretary
[CORPORATE SEAL]
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee
of a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform XXXX CAPITAL CORPORATION, a California
corporation ("Transferee"), that withholding of tax is not required upon
the disposition of a U.S. real property interest by CARLYLE REAL ESTATE
LIMITED PARTNERSHIP-VII, an Illinois limited partnership ("Carlyle"), the
undersigned hereby certifies the following on behalf of Carlyle:
1. Carlyle is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined
in the Internal Revenue Code and Income Tax Regulations).
2. Carlyle's U.S. employer identification number is
______________.
3. Carlyle's office address is:
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-VII
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xx. Xxxxx Xxxx
Xxxxxxx understands that this certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true,
correct and complete and I further declare that I have authority to sign
this document on behalf of Carlyle.
Date: April __, 1998
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-VII,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
Name: _________________________
Title: ________________________
By:
Name: _________________________
Title: ________________________
