Exhibit 2.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of
December 26, 2001, by and between Xxxxxxx Eastgar LLC ("Eastgar"), a Delaware
limited liability company, Xxxxxxx Partner Interest LLC ("Partner" and together
with Eastgar, "Assignors"), a Delaware limited liability company, The Xxxxxxx
Master Limited Partnership ("Parent"), a Delaware limited partnership and
Xxxxxxx MLP Unit LLC ("Assignee"), a Delaware limited liability company that is
wholly-owned by Parent.
RECITALS
WHEREAS, Eastgar owns a .05% special limited partnership interest (the
"Special Interest") in Eastgar Associates Limited Partnership and Assignors own
the number of units of limited partnership interest as listed on Schedule A
hereto (together with the Special Interest, the "LP Units") in Eastgar
Associates Limited Partnership, Cenland Associates Limited Partnership, Renex
Associates Limited Partnership, Xxxxx Associates Limited Partnership, Autolane
Associates Limited Partnership and Gocar Associates Limited Partnership
(collectively, the "Partnerships"); and
WHEREAS, Assignors desire to transfer and assign their respective LP Units
to Assignee and Assignee desires to accept such assignment and assume the
obligations of Assignors with respect to the LP Units, 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 Parent, 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 LP Units,
Parent will issue units of limited partner interest in Parent ("MLP Units") to
Eastgar.
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. Each Assignor hereby sells, assigns and
transfers to Assignee all of its right, title and interest in and to the LP
Units owned by such Assignor, as well as such Assignor's rights under the
limited partnership agreements (the "Partnership Agreements") of the
Partnerships in which such Assignor currently owns LP Units, such sale,
assignment and transfer to be effective as of the Effective Time.
2. Assumption of Interests. Assignee hereby (i) accepts the foregoing
sales and assignments, and (ii) agrees that it is bound by, and assumes all of
the obligations of each Assignor to be performed after the Effective Time with
respect to the LP Units under the Partnership Agreements.
3. Consideration. In consideration of the sales, assignments and transfers
of the LP Units, Parent shall, at the Effective Time, issue 30,931.4154 MLP
Units to Eastgar.
4. Partnership Agreement. By executing this Agreement, Eastgar shall 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 Parent (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. 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.
6. Amendment. This Agreement may be amended only by a written instrument
that shall have been signed by the parties hereto.
7. Governing Law. This Agreement shall be governed by the laws of the
State of Connecticut, without regard to the conflicts of law principles of such
State.
8. Binding. This Agreement shall become binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
9. 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.
2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
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 EASTGAR LLC
By: Xxxxxxx Manager (NV) Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXXXX PARTNER INTEREST LLC
By: Xxxxxxx Manager (NV) Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXXXX MLP UNIT LLC
By: MLP Manager Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
3
SCHEDULE A
Number of
Number of LP Units
LP Units Owned by Owned by
Name of Partnership Eastgar Partner
------------------- ------- -------
Cenland Associates Limited Partnership 0 0.1167
Eastgar Associates Limited Partnership 10.1336 0
Renex Associates Limited Partnership 0 0.35
Autolane Associates Limited Partnership 0 0.1167
Gocar Associates Limited Partnership 0 0.5834
Xxxxx Associates Limited Partnership 0 0.175
