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Exhibit 2.1
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT ("Agreement") is made as of this 31st day of
December, 1998, by and between Vornado CESCR L.L.C., a Delaware limited
liability company ("Assignor"), and Vornado Operating L.P., a Delaware limited
partnership ("Assignee").
WITNESSETH:
In consideration of TEN DOLLARS and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and the mutual
covenants and agreements set forth herein, the parties hereto do hereby agree as
follows:
1. Assignment.
Assignment of Partnership Interests. Subject to and in
accordance with the terms and conditions stated herein, Assignor hereby sells,
transfers, assigns and conveys (without any representations or warranties except
as expressly set forth herein) to Assignee and Assignee hereby accepts all of
Assignor's right, title and interest in and to THREE HUNDRED EIGHTY THOUSAND
(380,000) Class C Units of Xxxxxxx X. Xxxxx Commercial Realty L.P., a Delaware
limited partnership ("CESCR") (the "Partnership Interests"). In furtherance of
the foregoing, (i) the Assignor hereby assigns, transfers and conveys to the
Assignee the power to sell, transfer or otherwise dispose of the Partnership
Interests, and the Assignor hereby agrees to sell, transfer or otherwise dispose
of the Partnership Interests as may be directed by the Assignee (subject to any
limitations thereon that may be imposed by the applicable partnership agreement
of CESCR (the "CESCR Partnership Agreement") or any other applicable agreement,
law, regulation, rule, judgment, order or decree), (ii) the Assignor hereby
agrees to vote interests in CESCR held by it in such a way as to give effect to
the direction by the Assignee of its desire to have the Partnership Interests
voted in a specified manner on any matter submitted to the vote of the limited
partners of CESCR, and (iii) the Assignor hereby assigns, transfers and conveys
(and agrees to pay over to the Assignee to the extent received by the Assignor)
all economic attributes of the Partnership Interests relating to the period of
the ownership by the Assignee of the Partnership Interests,
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including, without limitation, the right to receive distributions from CESCR and
any proceeds from the sale, transfer or other disposition of the Partnership
Interests accruing during the period of the ownership by the Assignee of the
Partnership Interests, the right to share in the allocations of income and
losses of CESCR in respect of the Partnership Interests accruing during the
period of the ownership by the Assignee of the Partnership Interests, and the
right to exercise, or cause the exercise, of any applicable redemption rights in
respect of the Partnership Interests under the CESCR Partnership Agreement
during the period of the ownership by the Assignee of the Partnership Interests
(it being understood and agreed that the Assignee will pay over to the Assignor
any such distributions received by the Assignee in respect of the period of
ownership by the Assignor of the Partnership Interests and that the Assignor
will be entitled to such allocations and such rights during the period of the
ownership of the Partnership Interests by the Assignor). Notwithstanding the
foregoing, each of the Assignor and the Assignee agrees that (i) in the event
that the Assignor shall be deemed for any purpose to be the owner of the
Partnership Interests during the period of the ownership of the Partnership
Interests by the Assignee, the Assignor shall be deemed to be such an owner
during such period solely as a nominee for the Assignee; (ii) the Assignor and
the Assignee will notify CESCR of the assignment and transfer of the Partnership
Interests contemplated by this Agreement; (iii) no request will be made to have
the Assignee admitted as a Substitute Limited Partner (as defined in the CESCR
Partnership Agreement) of CESCR until the expiration of the right (without the
exercise thereof) of the Assignee to cause the Assignor to purchase the
Partnership Interests under the terms of the Put Agreement, dated as of December
31, 1998, between the Assignee and Vornado Realty Trust; and (iv) upon the
expiration of such right (without the exercise thereof) the Assignor will
request to have the Assignee or its assignee or transferee admitted as a
Substitute Limited Partner of CESCR.
2. Consideration.
The total consideration from Assignee in respect of the
assignment of the Partnership Interests is the sum of TWELVE MILLION, NINE
HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS ($12,920,000) (the "Acquisition
Consideration"). The Acquisition Consideration shall be paid in cash by wire
transfer of funds to an account designated by the Assignor. No additional
consideration will be paid by the Assignee in
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respect of any accrued distributions in respect of the Partnership Interests;
provided, however, that the Assignor will retain or receive, as applicable, (and
the Assignee will pay over to the Assignor if received by the Assignee) all
distributions in respect of the Partnership Interests for the period of the
ownership by the Assignor of the Partnership Interests, and the Assignee will
receive or retain, as applicable, (and the Assignor will pay over to the
Assignee if received by the Assignor) all distributions in respect of the
Partnership Interests for the period of the ownership by the Assignee of the
Partnership Interests.
3. Representations, Warranties and Indemnities of the Assignee.
The Assignee represents and warrants to the Assignor, as of the
date of this Agreement and as of the Closing, that:
(a) The Assignee is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite limited partnership power and authority to own and operate its
properties and assets and to carry on its business as presently conducted.
(b) The Assignee has requisite limited partnership power and authority
and has taken all limited partnership action necessary in order to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. This Agreement is a valid and binding
agreement of the Assignee enforceable against the Assignee in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(c) No notices, reports or other filings are required to be made by the
Assignee with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by the Assignee from, any governmental or
regulatory authority, agency, commission, court, body or other governmental
entity ("Governmental Entity") or any other third party, except those that the
failure to make or obtain are not, individually or in the aggregate, reasonably
likely to have a material adverse effect on the Assignor or prevent, materially
delay or materially impair the ability
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of the Assignee to consummate the transactions contemplated by this Agreement.
(d) The execution, delivery and performance of this Agreement by the
Assignee and the consummation by the Assignee of the transactions contemplated
hereby will not constitute or result in (A) a breach or violation of, or a
default under, the certificate of limited partnership or agreement of limited
partnership of the Assignee, or (B) a breach or violation of, or a default or
the loss of any material benefit under, or the acceleration of any obligations
or the creation of a lien, pledge, security interest or other encumbrance on the
assets of the Assignee (with or without notice, lapse of time or both) pursuant
to, any agreement, lease, contract, note, mortgage, indenture, license,
arrangement or other obligation binding on the Assignee, except for any breach,
violation, default, loss of benefits, acceleration, creation or change that,
individually or in the aggregate, is not reasonably likely to have a material
adverse effect on the Assignor or prevent, materially delay or materially impair
the ability of the Assignee to consummate the transactions contemplated by this
Agreement.
(e) Assignee hereby agrees to indemnify and hold harmless the Assignor
from any and all claims, liabilities, damages, fees and expenses (including
attorney's fees and expenses of counsel selected by Assignor) and any and all
taxes (collectively, "Losses") incurred, assessed or asserted against the
Assignor in connection with the performance of this Agreement by the Assignor in
accordance with the instructions of the Assignee as provided herein; provided,
however, that the Assignee shall not be required to indemnify the Assignor under
this Agreement in respect of Losses incurred, assessed or asserted against the
Assignor as a result of the wilful breach of this Agreement by the Assignor.
4. Representations, Warranties and Indemnities of the Assignor.
The Assignor represents and warrants to the Assignee, as of the
date of this Agreement and as of the Closing, that:
(a) The Assignor is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite limited liability company power and authority to own and operate
its
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properties and assets and to carry on its business as presently conducted.
(b) The Assignor has requisite limited liability company power and
authority and has taken all limited liability company action necessary in order
to execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement is a valid and
binding agreement of the Assignor enforceable against the Assignor in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(c) No notices, reports or other filings are required to be made by the
Assignor with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by the Assignor from, any Governmental
Entity or any other third party, except those that the failure to make or obtain
are not, individually or in the aggregate, reasonably likely to have a material
adverse effect on the Assignee or prevent, materially delay or materially impair
the ability of the Assignor to consummate the transactions contemplated by this
Agreement.
(d) The execution, delivery and performance of this Agreement by the
Assignor, and the consummation by the Assignor of the transactions contemplated
hereby will not constitute or result in (A) a breach or violation of, or a
default under, the limited liability company agreement or certificate of
formation of the Assignor, or (B) a breach or violation of, or a default or the
loss of any material benefit under, or the acceleration of any obligations or
the creation of a lien, pledge, security interest or other encumbrance on the
assets of the Assignor (with or without notice, lapse of time or both) pursuant
to, any agreement, lease, contract, note, mortgage, indenture, license,
arrangement or other obligation binding on the Assignor, except for any breach,
violation, default, loss of benefits, acceleration, creation or change that,
individually or in the aggregate, is not reasonably likely to have a material
adverse effect on the Assignee or prevent, materially delay or materially impair
the ability of the Assignor to consummate the transactions contemplated by this
Agreement.
(e) The Assignor has good title to the Partnership Interests being
assigned free of any liens or encumbrances.
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(f) Assignor hereby agrees to indemnify and hold harmless the Assignee
from any and all Losses incurred, assessed or asserted against the Assignee
resulting from the willful breach by the Assignor of this Agreement.
5. Miscellaneous.
5.1. Notices. Any notice, request, demand, instruction or other
communication to be given to either party hereunder (except those required to be
delivered at Closing) shall be in writing, and shall be deemed to be delivered
upon the earlier to occur of (i) actual receipt if delivered by hand or by
commercial courier to the address indicated or (ii) the third (3rd) Business Day
after deposit in registered or certified United States Postal Service mail,
return receipt requested, postage prepaid, addressed as follows:
IF TO ASSIGNOR:
Vornado CESCR L.L.C.
c/o Vornado Realty Trust
Park 00 Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx
IF TO ASSIGNEE:
Vornado Operating L.P.
Park 00 Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxxx
COPIES TO:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq
The addresses and addressees for the purpose of this Paragraph may be
changed by either party by giving written notice of such change to the other
party in the manner provided herein.
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5.2. Severability. If any provision hereof shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions, or parts thereof, shall not in any way be affected or
impaired thereby.
5.3. Counterparts. This Agreement may be executed in any number of
identical counterparts, all of which shall together constitute one and the same
instrument.
5.4. Entire Agreement and Modification. This Agreement constitutes the
entire agreement between Assignor and Assignee with respect to the subject
matter hereof and supersedes all prior agreements and understandings (if any)
relating to the subject matter hereof. This Agreement cannot be amended,
modified or altered, or any provision waived, except by an agreement in writing
executed by both the Assignor and the Assignee.
5.5. Binding Effect. This Agreement shall be binding upon the parties
and their respective successors and assigns and shall inure to the benefit of
the parties hereto and their respective assigns.
5.6. No Third Part Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement.
5.7. Headings. Paragraph headings are for convenience
of reference only and shall in no way affect the
interpretation of this Agreement.
5.8. Governing Law. THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS
AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ASSIGNOR:
VORNADO CESCR L.L.C.
By: /s/ Xxxxx Xxxxxxxx
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Name:
Title:
ASSIGNEE:
VORNADO OPERATING L.P.
By: Vornado Operating Company,
General Partner
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President - Chief
Financial Officer
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