EXHIBIT 10.2.
ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST
-------------------------------------------------
(First Interstate Center)
THIS ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST (this
"ASSIGNMENT AND ASSUMPTION") is made as of December 15, 1995, by
and between CARLYLE SEATTLE ASSOCIATES, an Illinois general
partnership ("ASSIGNOR"), to XXXXXX RUNSTAD PROPERTIES, L.P., a
Delaware limited partnership ("ASSIGNEE").
W I T N E S S E T H, T H A T W H E R E A S:
-----------------------------------------------
A. Assignor is a limited partner of that certain Washington
limited partnership known as "XXXXXX-XXXXXXX SEATTLE LIMITED
PARTNERSHIP" (the "PARTNERSHIP"), which Partnership is currently
governed by that certain partnership agreement captioned "AGREEMENT
OF LIMITED PARTNERSHIP OF XXXXXX-XXXXXXX SEATTLE LIMITED
PARTNERSHIP, dated as of November 30, 1994, by and between Assignor
and Assignee (the "PARTNERSHIP AGREEMENT"), the sole asset of the
Partnership being that certain land and improvements located in the
City of Seattle, State of Washington, consisting principally
of an office complex commonly known as the "First Interstate
Center" (the "PROPERTY").
B. Pursuant to that certain agreement (the "OPTION LETTER")
captioned "LETTER RE SALE/OPTION AND PARTNERSHIP AGREEMENT, dated
as of May 15, 1994, by and between Assignor and 000 Xxxxx Xxxxxx
Ltd. ("999 THIRD AVENUE"), a Washington limited partnership
(predecessor in interest to Assignee under the Option Letter),
Assignor and Assignee entered into that certain agreement (the
"PRIOR ASSIGNMENT") captioned "ASSIGNMENT AND ASSUMPTION OF
PARTNERSHIP INTEREST", dated as of November 30, 1994, whereby
Assignor assigned to Assignee and Assignee assumed an undivided
portion of Assignor's interest in the Partnership.
C. Assignor desires to assign the remaining interest of
Assignor under the Partnership Agreement, as more particularly
described in the Partnership Agreement (the "SUBJECT PARTNERSHIP
INTEREST") to Assignee, Assignee desires to assume the Subject
Partnership Interest, and Assignor desires to withdraw as a partner
of the Partnership.
NOW, THEREFORE, THESE PRESENTS WITNESS, that for good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. ASSIGNMENT. Assignor hereby assigns, transfers and sets
over unto Assignee the entire Subject Partnership Interest. This
Assignment and Assumption, when taken together with the Prior
Assignment, constitute the assignment by Assignor to Assignee of
the entirety of Assignor's interest in and to the Partnership, and
accordingly, Assignor hereby withdraws as a partner in the
Partnership as of the date hereof.
2. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor
represents and warrants to Assignee the following: (i) the Subject
Partnership Interest is free and clear of any liens, encumbrances,
claims or liabilities of any kind or nature created by, through or
under Assignor, except as created by the Partnership Agreement;
(ii) this Assignment and Assumption is duly authorized, executed
and delivered by and is binding upon Assignor; and (iii) Assignor
is a partnership, duly organized, validly existing and in good
standing under the laws of the State of Illinois, and
has the capacity and authority to enter into this Assignment and
Assumption.
3. "AS IS" NATURE OF ASSIGNMENT. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN PARAGRAPH 2 ABOVE, ASSIGNEE HEREBY
ACKNOWLEDGES AND AGREES THAT THE ASSIGNMENT OF THE SUBJECT
PARTNERSHIP INTEREST IS ON AN "AS IS, WHERE IS" BASIS AND THAT
ASSIGNOR HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR OTHERWISE, OF,
AS TO, CONCERNING OR WITH RESPECT TO THE PROPERTY, THE PARTNERSHIP
OR THE SUBJECT PARTNERSHIP INTEREST. ASSIGNEE ACKNOWLEDGES THAT (A)
ASSIGNEE OR AN AFFILIATE OF ASSIGNEE HAS BEEN A GENERAL PARTNER IN
THE PARTNERSHIP SINCE MARCH 10, 1982, AND IT HAS HAD FULL AND
ADEQUATE OPPORTUNITY TO COMPLETE ALL PHYSICAL, FINANCIAL AND
OTHER EXAMINATIONS AND DUE DILIGENCE RELATING TO THE ACQUISITION OF
THE SUBJECT PARTNERSHIP INTEREST HEREUNDER PRIOR TO THE DATE
HEREOF, AND IT HEREBY ACCEPTS THE SUBJECT PARTNERSHIP INTEREST,
APPROVES OF SUCH MATTERS AND AGREES TO PURCHASE THE SUBJECT
PARTNERSHIP INTEREST ON AN "AS IS" BASIS; AND (B) IT WILL ACQUIRE
THE SAME SOLELY ON THE BASIS OF SUCH EXAMINATIONS AND NOT ON ANY
INFORMATION PROVIDED BY ASSIGNOR (OTHER THAN AS EXPRESSLY PROVIDED
IN PARAGRAPH 2 ABOVE).
4. ASSUMPTION. Assignee hereby accepts the assignment of
the Subject Partnership Interest, agrees to be bound by the terms
of the Partnership Agreement, and assumes the performance of all of
the obligations of Assignor under the Partnership Agreement to the
extent related to the Subject Partnership Interest first arising or
accruing on and after the date of this Assignment and Assumption of
Partnership Interest (including, without limitation, obligations
under contracts, leases and other agreements entered into by the
Partnership prior to date hereof, to the extent such obligations
relate to the period commencing on the date hereof). Since
Assignee will be the sole remaining partner in the Partnership
after the delivery of this Assignment, Assignee shall take such
steps as necessary to terminate the Partnership (including
execution of a certificate of cancellation of the Certificate of
Limited Partnership of the Partnership) and reflect such
termination by recording an instrument conveying title to the
Property to Assignee in the appropriate land records
of the county in which the Property is situated.
5. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. Assignee
represents and warrants to Assignor the following: (i) this
Assignment and Assumption is duly authorized, executed and
delivered by and is binding upon Assignee; and (ii) Assignee is a
limited partnership, duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has the
capacity and authority to enter into this Assignment and
Assumption.
6. INDEMNIFICATION BY ASSIGNEE AND THE PARTNERSHIP.
Assignee and the Partnership shall jointly and severally hold
harmless, indemnify and defend Assignor from and against: (i) any
and all "Claims" (as hereinafter defined) whether direct,
contingent or consequential and no matter how arising, in any way
and to the extent related to the Subject Partnership Interest, the
Partnership or the Property and arising or accruing on and
after the date hereof (including, without limitation, Claims
related to obligations under contracts, leases and other agreements
entered into by the Partnership prior to date hereof, to the extent
such obligations relate to the period commencing on the date
hereof, but excluding any Claims to the extent arising from
Assignor's gross-negligence or wilful misconduct during such
period). The indemnity provided for under this paragraph shall
be subject to the following provisions:
A. The indemnity shall cover the costs and expenses of the
indemnitee, including reasonable attorneys' fees, related to any
actions, suits or judgments incident to any of the matters covered
by such indemnity.
B. The indemnitee shall notify the indemnitor of any Claim
against the indemnitee covered by the indemnity within 45 days
after it has notice of such Claim, but failure to notify the
indemnitor shall in no case prejudice the rights of the indemnitee
under this Agreement unless the indemnitor shall be prejudiced by
such failure and then only to the extent the indemnitor shall be
prejudiced by such failure. Should the indemnitor fail to
discharge or undertake to defend the indemnitee against such
liability upon learning of the same, then the indemnitee may settle
such liability, and the liability of the indemnitor hereunder shall
be conclusively established by such settlement, the amount of such
liability to include both the settlement consideration and the
reasonable costs and expenses, including attorneys' fees, incurred
by the indemnitee in effecting such settlement.
C. The rights to indemnification under this paragraph shall
also extend to the present or future direct or indirect partners in, or
agents or affiliates of, Assignor, the affiliates of any of
the foregoing, and the officers, directors, shareholders, partners,
trustees, beneficiaries, advisors, and employees of any of the
foregoing.
D. As used herein, "CLAIM" means any obligation, liability,
claim (including any claim for damage to property or injury to or
death of any persons), lien or encumbrance, loss, damage, cost or
expense.
7. BINDING EFFECT. This Assignment and Assumption shall be
binding upon and shall inure to the benefit of the respective
parties hereto and their respective legal representatives,
successors and assigns.
8. GOVERNING LAW. THIS ASSIGNMENT AND ASSUMPTION SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF ILLINOIS (WITHOUT REGARD TO CONFLICTS OF LAW).
9. NO THIRD PARTY BENEFICIARIES. Except as provided in
paragraph 6 hereof, nothing in this Assignment and Assumption,
expressed or implied, is intended to confer any rights or remedies
upon any person, other than the parties hereto and their respective
successors and assigns.
10. LIMITATION OF LIABILITY. Notwithstanding anything to the
contrary in this Assignment and Assumption, the Partnership
Agreement, the Option Letter or any agreement, instrument or
certificate evidencing, securing or otherwise executed in
connection therewith, in no event shall any present or future
direct or indirect partner in, or agent or affiliate of, Assignor,
nor any officer, director, shareholder, partner, trustee,
beneficiary, advisor, or employee of any of the foregoing have any
personal liability, directly or indirectly, under or in connection
with this Assignment and Assumption, the Partnership Agreement, the
Option Letter, or any agreement, instrument or certificate
evidencing, securing or otherwise executed in connection therewith,
or any amendment or modification of any of the foregoing
instruments made at any time or times, heretofore and hereafter;
the recourse of Assignee and each of its successors and all
other persons and entities in connection with the foregoing being
limited to the solely to assets of Assignor for the payment of any
claim or for any performance, and each of Assignee and its
successors hereby waives such personal liability. In no event
shall any contribution obligation of any partner in Assignor
(including, without limitation, any obligation to fund a negative
capital account) be considered an asset of Assignor for purposes
of this paragraph. The limitations of liability provided in this
paragraph are in addition to, and not in limitation of, any
limitation on liability applicable to Assignor or such parties
provided by law or by any other contract, agreement or instrument.
11. MUTUAL RELEASE. Each of Assignor and Assignee, for
itself and its successors and assigns, hereby absolutely and irrevocably
waives, releases and forever discharges the other party
and its affiliates and their respective partners, trustees,
beneficiaries, officers, shareholders, directors, agents, servants,
contractors and employees, from any and all claims, rights,
demands, actions, suits, causes of action, damages, counterclaims,
defenses, losses, costs, obligations, liabilities and expenses of
every kind or nature, known or unknown, suspected or unsuspected,
fixed or contingent, foreseen or unforeseen, arising out of or
relating directly or indirectly to any facts or circumstances
existing on or before the date hereof and relating to the
Partnership, the Property or the operation thereof; provided,
however, that the foregoing shall in no event release or otherwise
limit any party's rights or obligations under this Assignment and
Assumption, the Prior Assignment or the Option Letter. Each of 999
Management Limited and 000 Xxxxx Xxxxxx, by execution hereof,
hereby provide the same release as that set forth above by
Assignor.
12. COUNTERPARTS. This Assignment and Assumption may be
executed in multiple counterparts, all of which when taken together
shall deem to constitute one instrument.
IN WITNESS WHEREOF, the Assignor and Assignee have executed
and delivered this Assignment and Assumption as of the day, month
and year first above written.
ASSIGNOR:
CARLYLE SEATTLE ASSOCIATES,
a general partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XII,
a limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ___________________________
Name: _________________________
Title: ________________________
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-X,
a limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By: ___________________________
Name: _________________________
Title: __________________________
ASSIGNEE:
XXXXXX RUNSTAD PROPERTIES L.P.,
a Delaware limited partnership
By: XXXXXX RUNSTAD ASSET MANAGEMENT L.P.
a Washington limited partnership,
General Partner
By: WRAM, INC.,
a Washington corporation,
General Partner
By:___________________________________
Name:_________________________________
Title:________________________________
JOINDER
The undersigned hereby joins in the execution of this
Assignment and Assumption solely for the purpose of agreeing to
indemnify, defend and hold harmless, jointly and severally with
Assignee, each person or entity entitled to indemnification
pursuant to the terms of paragraph 6 of this Assignment and
Assumption, to consent to the assignment and assumption
provided for herein and the withdrawal of Assignor as a partner in
the Partnership as required pursuant to Section 7.1 of the
Partnership Agreement, and to agree to be bound by the release
contained in paragraph 11 of hereof.
XXXXXX-XXXXXXX SEATTLE LIMITED PARTNERSHIP,
a Washington limited partnership
By: XXXXXX RUNSTAD PROPERTIES L.P.,
a Delaware limited partnership
General Partner
By: XXXXXX RUNSTAD ASSET MANAGEMENT L.P.
a Washington limited partnership,
General Partner
By: WRAM, INC.,
a Washington corporation,
General Partner
By:___________________________________
Name:_________________________________
Title:________________________________
JOINDER
The undersigned, 999 Management Limited, a Washington limited
partnership, hereby joins in this Assignment and Assumption for the
purpose of agreeing to the release contained in paragraph 11 hereof.
999 MANAGEMENT LIMITED,
a Washington limited partnership
By: XXXXXX RUNSTAD ASSOCIATES LIMITED
PARTNERSHIP,
a Washington limited partnership,
General Partner
By: XXXXXX RUNSTAD & COMPANY,
a Washington corporation,
General Partner
By:
Name:
Title:
JOINDER
The undersigned, 000 Xxxxx Xxxxxx, Ltd., a Washington limited
partnership, hereby joins in this Assignment and Assumption for the
purpose of agreeing to the release contained in paragraph 11
thereof.
000 XXXXX XXXXXX, LTD.,
a Washington limited partnership
By: XXXXXX RUNSTAD ASSOCIATES LIMITED
PARTNERSHIP,
a Washington limited partnership,
General Partner
By: XXXXXX RUNSTAD & COMPANY,
a Washington corporation,
General Partner
By:
Name:
Title:
March 4, 1996
Securities and Exchange Commission
000 Xxxxx Xxxxxx, X.X.
Xxxxxxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Re: Carlyle Real Estate Limited Partnership - X
Commission File No. 0-9726
Form 8K
Gentlemen:
Transmitted, for the above-captioned registrant, is the electronically
filed executed copy of registrant's current report on Form 8K dated March
4, 1996.
Thank you.
Very truly yours,
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - X
By: JMB Realty Corporation
Corporate General Partner
By: XXXXXX X. XXXX
Xxxxxx X. Xxxx
Senior Vice President
GJH/rs
Enclosures
