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Exhibit 2.2
PUT AGREEMENT
PUT AGREEMENT (this "Agreement"), dated as of December 31,
1998, by and between VORNADO REALTY TRUST, a Maryland real estate investment
trust ("Vornado"), and Vornado Operating L.P., a Delaware limited partnership
("Operating").
W I T N E S S E T H
WHEREAS, pursuant to the Assignment Agreement, dated as of
December 31, 1998, Vornado CESCR L.L.C. sold, assigned, transferred and conveyed
to Operating all of its beneficial interest in THREE HUNDRED EIGHTY THOUSAND
(380,000) Class C Units of Xxxxxxx X. Xxxxx Commercial Realty L.P., a Delaware
limited partnership (the "Assigned Interests"); and
WHEREAS, Operating desires to acquire from Vornado, and
Vornado desires to grant to Operating, a put option on the Assigned Interests on
the terms herein described.
NOW, THEREFORE, the parties, intending to be bound, hereby
agree as follows:
ARTICLE I
PUT OPTION
Section 1.1 Grant. Vornado hereby grants to Operating an
option to require Vornado or a designated affiliate of Vornado to purchase all
(but not less than all) of the Assigned Interests (the "Put Option"), which
obligation, subject to the terms and conditions hereof, shall be irrevocable and
unconditional, on the terms set forth below.
Section 1.2 Exercise of Put Option; Option Price. (a) The Put
Option shall be exercisable in the manner described in Section 2.1 below at any
time during the period (the "Exercise Period") from the date hereof through
December 31, 1999.
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(b) Upon exercise of the Put Option, the purchase price per unit payable for the
Assigned Interests shall be equal to the excess, if any, of (i) the sum of (x)
TWELVE MILLION, NINE HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS ($12,920,000)
purchase price plus (y) a cumulative, quarterly compounded, return on such
amount at a rate of 10% per annum (taking into account the timing and amounts of
all previous distributions in respect of the Assigned Interests received or
receivable by Operating) in respect of the period in which the Assigned
Interests are owned by Operating minus (ii) the sum of all distributions
received by Operating in respect of the Assigned Interests from the date hereof
through the date of such exercise (the "Option Price"). Any overpayments or
underpayments of the Option Price resulting from receipt of distributions in
respect of the Assigned Interests after the Closing Date will be subject to a
true-up after the receipt of such distributions. In the event that the Assigned
Interests are converted or otherwise changed into other securities, there is a
distribution of partnership units or other securities in respect of the Assigned
Interests, or there is a reclassification, recapitalization or similar
transaction involving the Assigned Interests, the term "Assigned Interests"
shall be deemed to mean (or include, as applicable) any such other securities
into which the Assigned Interests are converted or changed, any such securities
received in respect of the Assigned Interests and any such securities received
in any such transaction, as applicable, and the Option Price payable upon
exercise of the Put Option shall be equitably adjusted to give effect to any
such transaction or event.
ARTICLE II
EXECUTION OF OPTION
Section 2.1 Exercise Mechanics. (a) Operating may (upon the
approval of the disinterested directors of Operating) exercise the Put Option in
respect of all (but not less than all) of the outstanding Assigned Interests on
any business day during the Exercise Period (the "Exercise Date") by giving
notice of demand, which notice shall specify the Exercise Date and the Closing
Date (which date shall be not less than 60, and not more than 90, days after the
date such notice is received by Vornado), in accordance with the requirements of
Section 4.1 hereof. Such notice, once given, shall be irrevocable.
(b) On the Closing Date:
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(i) Vornado shall pay the Option Price in cash in immediately
available funds to an account designated by Operating;
(ii) Operating shall deliver to Vornado an assignment, in form
and substance reasonably satisfactory to Vornado, of the Assigned Interests,
together with any certificate or certificates representing the Assigned
Interests then in the possession of Operating; and
(iii) Operating hereby covenants that upon assignment of any
of the Assigned Interests to Vornado pursuant to the Put Option and payment
therefor by Vornado, Vornado will receive all of Operating's right, title and
interest in and to such Assigned Interests free and clear of any security
interest or other lien.
Section 2.2 Default Interest. If Vornado shall fail to pay the
Option Price on the Closing Date, Vornado shall pay interest on the Option Price
at a rate of 15% per annum, from and including the Closing Date to but excluding
the date of actual payment of the Option Price. Such interest shall be
compounded daily and calculated on the basis of actual days elapsed in a year of
365 days.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each party represents and warrants to the other party as
follows as of the date of this Agreement:
Section 3.1 Organization. It is a real estate investment trust
or limited partnership, as applicable, duly organized, validly existing and in
good standing under the laws of the State of Maryland or the State of Delaware,
as applicable. It has the requisite trust or limited partnership, as applicable,
power and authority to enter into this Agreement and the other agreements
contemplated hereby to which it is a party, to exercise its rights hereunder and
thereunder and to perform and comply with its obligations hereunder and
thereunder.
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Section 3.2 Authorization and Validity of Agreements. Each of
this Agreement and the other agreements contemplated hereby to which it is a
party has been duly authorized, executed and delivered by it and (assuming that
it is a valid and binding agreement of the other party hereto and thereto)
constitutes a valid and binding agreement of it enforceable in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
Section 3.3 Non-Contravention. The execution, delivery and
performance by it of this Agreement and the other agreements contemplated hereby
to which it is a party do not and will not (i) violate any provision of its
organizational documents, (ii) conflict with, or result in a breach of, or
constitute a default under, or result in the termination, cancellation or
acceleration (whether after notice or lapse of time or both) of any right or
obligation of it under, any agreement, license, permit or undertaking to which
it is a party or by which it is bound or to which any of its assets are subject,
result in the creation of any liens, charges, encumbrances, security interests,
options, pledges, restrictions or any other claims or third party rights upon
said assets, or (iii) violate or result in a breach of or constitute a default
under any judgment, order, injunction, decree, law, rule, regulation or other
restriction of any court or governmental or monetary authority to which it is
subject.
Section 3.4 Authorizations. There is no authorization,
approval, consent or waiver required to have been obtained by it from, or notice
or filing required to have been given by it to or made by it with, any
governmental authority or other person or entity in connection with the
execution, delivery and performance of this Agreement and the other agreements
contemplated hereby to which it is a party other than those that have been
obtained or made prior to the date hereof or relate to the ongoing
administration of it.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1 Notices. Any notice pursuant to this Agreement
shall be in writing signed by or on behalf of the party giving it and may be
served by sending it by confirmed facsimile, prepaid recorded delivery or
registered post to the address of the other party set forth below (or
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to such other address as such other party shall have specified by a notice given
in accordance with this Section 4.1). Notices will be effective when received.
The details for notices are:
IF TO VORNADO:
Vornado Realty Trust
Park 00 Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx
IF TO OPERATING:
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.
Section 4.2 Assignment; Certain Matters Relating to Exercise
of Put Option. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Nothwithstanding the foregoing, (i) neither
this Agreement nor any of the rights granted herein, nor any of the other
interests and obligations created hereunder, shall be assigned or delegated in
whole or in part by Operating (whether directly or indirectly or by sale,
transfer, merger or otherwise) without the prior express written consent of
Vornado, and any such attempted assignment or delegation shall be void and (ii)
Vornado may delegate or assign the obligation to acquire the Assigned Interests
upon exercise of the Put Option to a third party (provided that notwithstanding
any such delegation or assignment, Vornado shall remain liable for its
obligations hereunder). Without limitation of the foregoing, in the event of any
sale, transfer, disposition or similar transaction involving the Assigned
Interests by or at the direction of Operating (other than any transfer of an
interest in the Assigned Interests to Operating as
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contemplated by the Assignment Agreement), the Put Option shall lapse and be of
no further force or effect.
Section 4.3 Governing Law; Jurisdiction. This Agreement is
governed by, and shall be construed in accordance with, the laws of the State of
New York, without regard to the conflicts of laws principles thereof.
Section 4.4 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have hereunto signed their
names in the space provided below as of the date first above written.
VORNADO REALTY TRUST
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President -
Chief Financial
Officer
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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