Exhibit 2.5
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of
December 26, 2001, and effective as of the Effective Time (as defined below) by
and between Xxxxxxx RE Associates LLC ("Assignor"), a Delaware limited liability
company, The Xxxxxxx Master Limited Partnership ("Assignee"), a Delaware limited
partnership, Xxxxxxx RE Holdings LLC ("Xxxxxxx RE"), a Delaware limited
liability company, and Vornado Xxxxxxx L.L.C. ("VN LLC"), a Delaware limited
liability company.
RECITALS
WHEREAS, Assignor is the sole member of NK-Remainder Interest LLC
("Remainder") and NK-Leasehold II LLC, ("Leasehold", and together with
Remainder, the "Companies"), each a Delaware limited liability company; and
WHEREAS, Assignor desires to transfer and assign Assignor's limited
liability company interests in each of Remainder (the "Remainder Interest") and
Leasehold (the "Leasehold Interest", and together with the Remainder Interests,
the "Interests") to Assignee and Assignee desires to accept such assignment and
assume the obligations of Assignor with respect to the Interests, in each case,
effective concurrently with the effective time (the "Effective Time") of the
"Mergers" described in the Agreement and Plan of Merger, dated as of December 6,
2001, among Assignee, the Merger Partnerships and the Merger Subs (as each such
term is defined therein); and
WHEREAS, in consideration of the assignment and transfer of the Interests,
Assignee will issue units of limited partner interest in Assignee ("MLP Units")
to Xxxxxxx RE and VN LLC, beneficial owners of Assignor, as directed by
Assignor.
NOW THEREFORE, INTENDING TO BE LEGALLY BOUND and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
subject to the terms and conditions set forth below, the parties agree as
follows:
AGREEMENT
1. Assignment of Interests. Assignor hereby sells, assigns and transfers
to Assignee all of Assignor's right, title, and interest in and to the
Interests, as well as Assignor's rights under the respective limited liability
agreements of the Companies, as amended from time to time (the "LLC
Agreements"), such sale, assignment and transfer to be effective as of the
Effective Time, notwithstanding any provision of the LLC Agreements.
2. Assumption of Interests. Notwithstanding any provision of the LLC
Agreements, effective as of the Effective Time, Assignee hereby (i) accepts the
foregoing sale and assignment, and (ii) agrees that it is bound by, and assumes
all of Assignor's obligations to be performed after the Effective Time with
respect to the Interests under, the respective LLC Agreements.
3. Consideration.
Remainder Interest. In consideration of the sale, assignment and transfer
of the Remainder Interest, Assignee shall, at the Effective Time, issue an
aggregate of 140,460 MLP Units, 98,322 of which MLP Units shall be issued to
Xxxxxxx RE and 42,138 of which MLP Units shall be issued to VN LLC.
Leasehold Interest. In consideration of the sale, assignment and transfer
of the Leasehold Interest, Assignee shall, at the Effective Time, issue an
aggregate of 64,378 MLP Units, 45,065 of which MLP Units shall be issued to
Xxxxxxx RE and 19,313 of which MLP Units shall be issued to VN LLC.
4. Partnership Agreement. By executing this Agreement, Xxxxxxx RE and VN
LLC shall each be deemed to have executed, as of the Effective Time, a
counterpart to the Agreement of Limited Partnership, dated as of October 23,
2001, of Assignee (the "MLP Agreement") and to have agreed to be bound by all
the terms and conditions of the MLP Agreement from and after the Effective Time,
as such terms and conditions relate to MLP Units and holders thereof.
5. Admission; Resignation; Continuation. Notwithstanding any provision of
the LLC Agreements, the parties hereto agree that, effective as of the Effective
Time, (i) Assignee is admitted to each of the Companies as a substitute member
of each Company, (ii) Assignor ceases to be a member of, and ceases to have or
exercise any right or power as a member of, each of the Companies, (iii)
Assignee is continuing each of the Companies without dissolution, and (iv) each
of the LLC Agreements is hereby amended to reflect the foregoing, and all
references in each LLC Agreement to Assignor are hereby amended to refer to
Assignee.
6. Further Cooperation. Each of the parties hereto agrees to cooperate at
all times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases, assumptions
and amendments in respect of this Agreement and other documents as may be
reasonably requested for the purpose of giving effect to, or evidencing or
giving notice of, the transactions contemplated by this Agreement.
7. Amendment. This Agreement may be amended only by a written instrument
that shall have been signed by the parties hereto.
8. Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without regard to the conflicts of law principles of such
State.
9. Binding. This Agreement shall become binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
10. Counterparts. This Agreement may be executed in any number of
facsimile counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXXXX RE ASSOCIATES LLC
By: Xxxxxxx Manager Corp., its Manager
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Executive Vice President
THE XXXXXXX MASTER LIMITED PARTNERSHIP
By: MLP GP LLC, its general partner
By: Xxxxxxx MLP Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXXXX RE HOLDINGS LLC
By: Xxxxxxx Manager (NV) Corp.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
VORNADO XXXXXXX L.L.C.
By: Vornado Realty L.P., its member
By: Vornado Realty Trust, its general partner
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Executive Vice President - Finance and
Administration, Chief Financial Officer
ACKNOWLEDGED AND AGREED:
XXXXXXX MANAGER CORP.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
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