Exhibit 10.3
PUT-CALL
OPTION AGREEMENT
This PUT-CALL OPTION AGREEMENT (the "Agreement"), dated as of
January 1, 2002, is made by and among THE XXXXXXX MASTER LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Master Partnership"), NK-CR HOLDINGS LLC, a
Delaware limited liability company ("NK-CR"), and HOLDINGS SUBSIDIARY LLC, a
Delaware limited liability company wholly-owned, directly and indirectly, by
NK-CR ("Holdings").
WHEREAS, (i) NK-CR is the sole limited partner of, and holder of 99%
of the economic interests in, T-Two Partners, L.P., a Delaware limited
partnership ("T-Two Partners"), and (ii) Holdings is the sole general partner
of, and holder of 1% of the economic interests in, T-Two Partners;
WHEREAS, T-Two Partners is the sole beneficial and record owner of
the Grantor Trust T-2 Certificate (the "T-2 Certificate") issued under the
Second Amended and Restated Grantor Trust Agreement, dated as of April 1,1999,
among NK-CR T-1 Seller LLC, T-Two Partners, Midland Loan Services, Inc. and
LaSalle National Bank, as Grantor Trust Trustee (the "Grantor Trust Agreement"),
which Certificate represents indirect interests in second mortgages of 74
partnerships owning commercial net lease properties and managed by The Xxxxxxx
Group (the "Xxxxxxx Partnerships") and 11 other partnerships owning commercial
net lease properties and managed by The Xxxxxxx Group;
WHEREAS, the Xxxxxxx Partnerships, the Master Partnership and the
Xxxxxxx Group are on the date hereof consummating the Exchange (as defined in
the Consent Solicitation Statement/Offering Circular of the Xxxxxxx Partnerships
and the Master Partnership dated October 23, 2001; hereinafter the "Consent
Solicitation Statement"), pursuant to which, among other things, (i) 90 of the
Xxxxxxx Partnerships will be merged into subsidiaries of the Master Partnership,
(ii) certain limited partners in non-participating Xxxxxxx Partnerships who
voted in favor of the Exchange will contribute to the Master Partnership their
limited partnership interests in those Xxxxxxx Partnerships, and (iii) the
Xxxxxxx Group will contribute various other assets to the Master Partnership; in
each case, in exchange for units of limited partnership interests in the Master
Partnership ("Units"); and
WHEREAS, in connection with the Exchange, the parties wish to
provide for the Put Option and Call Option described below on the terms and
subject to the conditions set forth in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE X.
XXXXX OF PUT AND CALL OPTIONS
Section 1.01 Grant of Put Option. The Master Partnership hereby
irrevocably grants to NK-CR and Holdings the right and option (the "Put
Option"), exercisable by NK-CR and Holdings jointly and not severally in the
manner provided in Section 2.01 below, to cause the Master Partnership to
acquire from NK-CR and Holdings all of their respective partnership interests in
T-Two Partners (whether now owned or hereafter acquired, collectively, the
"Option Interests"), including, without limitation, the right of NK-CR and
Holdings to cause the Master Partnership and/or its designee(s) to be
substituted as sole general partner and sole limited partner of T-Two Partners.
Section 1.02 Grant of Call Option. NK-CR and Holdings hereby,
jointly and severally, irrevocably grant to the Master Partnership the right and
option (the "Call Option"), exercisable by the Master Partnership in the manner
provided in Section 2.02 below, to acquire from NK-CR and Holdings,
respectively, the Option Interests, including, without limitation, the right of
the Master Partnership and/or its designee(s) to be substituted as sole general
partner and sole limited partner of T-Two Partners. The Call Option shall only
be exercisable if NK-CR and Holdings shall not have exercised the Put Option
prior thereto in accordance with the terms of this Agreement.
Section 1.03 Issuance of Units as Consideration. In consideration of
the sale and transfer of the Option Interests to the Master Partnership pursuant
to NK-CR's and Holdings' exercise of the Put Option, the Master Partnership
shall issue to NK-CR and Holdings and/or their respective designees, the
aggregate number of Units determined in accordance with the first sentence of
Section 1.04(a). In consideration of the sale and transfer of the Option
Interests to the Master Partnership pursuant to its exercise of the Call Option,
the Master Partnership shall issue to NK-CR and Holdings and/or their respective
designees, the aggregate number of Units determined in accordance with the
second sentence of Section 1.04(a).
Section 1.04 Determination of Number of Units to be Issued.
(a) The aggregate number of Units to be issued to NK-CR and Holdings
and/or their respective designees upon the exercise by NK-CR and Holdings of the
Put Option shall equal 100% of the quotient of (i) T-2 Value, divided by (ii)
the Per Unit Value (each as defined below). The aggregate number of Units to be
issued to NK-CR and Holdings and/or their respective designees upon the exercise
by the Master Partnership of the Call Option shall equal 115% of the quotient of
(i) T-2 Value, divided by (ii) the Per Unit Value.
(b) As used in this Section 1.04, "T-2 Value" means an amount equal
to the excess of (A) the sum of (1) the outstanding balance of all Contract
Receivables (as defined in the Grantor Trust Agreement) at the time of the
Closing (as defined in Section 2.03), plus (2) the amount of cash held at the
time of the Closing by T-Two Partners and by the Grantor Trust (as defined in
the Grantor Trust Agreement) for the benefit of the holder of the T-2
Certificate, plus (3) the aggregate assumed value of all properties foreclosed
on by the Grantor Trust or T-Two Partners prior to the Closing that had
previously secured any Contract Receivables, which for this purpose, shall equal
the allocable scheduled balance of the Contract Receivables that would have been
outstanding at the time of the Closing had such foreclosures not occurred, over
(B) the sum of (1) the outstanding balance at the time of the Closing of the
Grantor Trust T-1 Certificate (as defined in the Grantor Trust Agreement),
including, without limitation, any accrued and unpaid interest thereon and any
other amounts due thereunder, plus (2) the aggregate amount (if any) owed at the
time of the Closing by the Grantor Trust to the trustee or servicer under the
Grantor Trust Agreement or to other third parties, plus (3) the aggregate amount
of all other liabilities (other than contingent liabilities) of T-Two Partners
outstanding at the time of the Closing.
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(c) As used in this Section 1.04, "Per Unit Value" means an amount
equal to the quotient of (A) an amount equal to the excess of (a) the sum of (1)
$798,177,089, plus (2) the value ascribed by the Master Partnership as of the
date of acquisition of all additional non-cash assets acquired by the Master
Partnership following the consummation of the Exchange, other than to the extent
acquired with sales or financing proceeds or in exchange for securities that are
not equity securities (i.e., securities conferring creditors' rights on the
holders thereof at the time of issuance), but including assets acquired in
exchange for securities that may be converted into or are exchangeable for Units
or other equity securities of the Master Partnership at the option of either (or
both) of the Master Partnership or the holders of such securities, plus (3) the
amount of net current assets (i.e., cash (other than from sales or financing
proceeds) and current receivables, less current payables) of the Master
Partnership at the time of the Closing, plus (4) the aggregate amount of
principal payments made from cash derived from the operations of the Master
Partnership with respect to (x) the loan to the Master Partnership (the "Fleet
Loan") contemplated to be made by Fleet National Bank and the other lenders
(collectively, "Fleet"), (y) any other loan to the Master Partnership the
proceeds of which were distributed to the holders of Units and (z) any loan to
the extent the proceeds of such loan are used to refinance a loan described in
(x) or (y) of this clause (4), over (b) the sum of (1) the aggregate amount of
sales and financing proceeds distributed to holders of the Units at any time
following the consummation of the Exchange, including, without limitation,
distributions made to the holders of Units from the proceeds of the Fleet Loan,
plus (2) the aggregate liquidation preference amount of all equity securities
(other than Units) of the Master Partnership that are not convertible into or
exercisable or exchangeable for Units, divided by (B) the sum of (1) the number
of Units outstanding at the time of the Closing, plus (2) the number of Units
that may be issued with respect to any convertible or exchangeable securities,
options, warrants or similar rights which are then outstanding that entitle the
holder thereof to acquire Units.
(d) For purposes of determining the Per Unit Value under Section
1.04(c), the following assumptions shall be made: (i) all distributions by the
Master Partnership (other than from proceeds of the Fleet Loan and any other
loan the proceeds of which enable the Master Partnership to make an
extraordinary distribution to its partners) shall be deemed to have been made
first from the Master Partnership's cash flow from operations during the
preceding twelve (12) month period; (ii) all scheduled principal payments made
out of funds previously reserved therefor, including "balloon" payments to the
extent reserves for such payment shall have been maintained, shall be deemed to
have been made first from the Master Partnership's cash flow from operations for
the period to which such payment relates; and (iii) all principal prepayments,
"balloon" payments or other unscheduled principal amortization payments (other
than payments made from reserves as provided in (ii) above) made by the Master
Partnership shall be deemed to have been made first from sales and financing
proceeds received by the Master Partnership during the preceding twelve (12)
month period.
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Section 1.05 Reorganization, Reclassification, Consolidation,
Merger, Incorporation or Conversion; Other Actions Affecting Units.
(a) If the Master Partnership shall reorganize its capital,
reclassify its Units, consolidate or merge with or into another person or entity
(where the Master Partnership is not the survivor), incorporate or convert into
another entity and, pursuant to the terms of such reorganization,
reclassification, consolidation, merger, incorporation or conversion, equity
securities of the Master Partnership or the successor entity ("Equity
Securities") are to be received by or distributed to the holders of Units, then
NK-CR and Holdings and/or their respective designees shall have the right to
receive, upon the effectiveness of the exercise of the Put Option or Call
Option, the number and type of Equity Securities of the Master Partnership or
the successor entity, as applicable that, in the good faith reasonable judgment
of the general partner of the Master Partnership or its successor, most nearly
equals the value of the number of Units to which NK-CR and Holdings would have
been entitled had such reorganization, reclassification, consolidation, merger,
incorporation or conversion not occurred. In the event of any such
reorganization, reclassification, consolidation, merger, incorporation or
conversion, the successor person or entity (if other than the Master
Partnership) shall expressly assume the due and punctual observance and
performance of each and every covenant and condition of this Agreement to be
performed and observed by the Master Partnership and all the obligations and
liabilities hereunder. The foregoing provisions of this Section 1.05 shall
similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, incorporations or conversions.
(b) If any event affecting the Units occurs as to which the
provisions of Section 1.05(a) are not strictly applicable or if strict
application would not protect fairly the rights of NK-CR or Holdings in
accordance with the essential intent and principles of the provisions of this
Article I, the Master Partnership (or its successor) shall in good faith take
such action as may be necessary or appropriate to protect the rights of NK-CR
and Holdings as set forth herein against impairment.
ARTICLE II.
EXERCISE AND CLOSING OF PUT AND CALL OPTIONS
Section 2.01 Method of Exercise of Put Option. NK-CR and Holdings
may exercise the Put Option by giving prior written notice of such exercise to
the Master Partnership at any time during October 2007. Such notice shall set
forth the date on which NK-CR and Holdings intend for the Master Partnership to
acquire the Option Interests, which date shall be no earlier than December 1,
2007 and no later than December 31, 2007. Any such exercise of the Put Option
shall be effective, and the closing of the acquisition of the Option Interests
upon such exercise (the "Put Option Closing") shall occur, on the later to occur
of (x) the date specified in such notice or (y) the first day following the
expiration of all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), if applicable to the
acquisition of the Option Interests (the "Put Option Closing Date").
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Section 2.02 Method of Exercise of Call Option. The Master
Partnership may exercise the Call Option by giving prior written notice of such
exercise to NK-CR and Holdings at any time during December 2007. Such notice
shall set forth the date on which the Master Partnership intends to acquire the
Option Interests, which date shall be no earlier than January 1, 2008 and no
later than January 31, 2008. Any such exercise of the Call Option shall be
effective, and the closing of the acquisition of the Option Interests upon such
exercise (the "Call Option Closing") shall occur, on the later to occur of (x)
the date specified in such notice or (y) the first business day following the
expiration of all waiting periods under the HSR Act, if applicable (the "Call
Option Closing Date"); provided, however, that the exercise of the Call Option
shall not be effective and the Call Option Closing shall not occur if a notice
of exercise of the Put Option shall have been given pursuant to Section 2.01 and
either an exercise of the Put Option shall have become effective prior thereto
in accordance with the provisions of this Agreement or the parties shall then be
awaiting clearance or approval under the HSR Act.
Section 2.03 Closing. The Put Option Closing and the Call Option
Closing, as applicable (each such closing, the "Closing"), shall be held at the
offices of the Master Partnership, at 10:00 a.m. local time, on the Put Option
Closing Date or Call Option Closing Date, as applicable, or at such other place
or at such other time as the parties agree in writing. At the Closing, (i) NK-CR
and Holdings shall deliver to the Master Partnership (x) an executed assignment
of partnership interests in T-Two Partners, in the form attached hereto as
Exhibit A, pursuant to which the Master Partnership shall acquire all of the
then outstanding limited and general partnership interests in T-Two Partners,
(y) an executed written withdrawal in the form attached hereto as Exhibit B,
pursuant to which each of NK-CR and Holdings shall withdraw as limited partner
and general partner, respectively, of T-Two Partners and (z) all documents and
instruments required under the limited partnership agreement of the Master
Partnership for admission as a limited partner of the Master Partnership, duly
executed by NK-CR and Holdings and/or their respective designees, as applicable
and (ii) the Master Partnership shall issue to NK-CR and Holdings and/or their
respective designees (x) the aggregate number of Units determined in accordance
with the applicable provisions of Section 1.04(a), which Units shall be validly
issued, fully paid and nonassessable and free and clear of any liens, claims,
encumbrances, charges, security interest, options, rights of first refusal or
restriction of any kind of nature (collectively, "Liens") (other than those
granted by NK-CR and Holdings and/or their respective designees), and (y) an
executed written acceptance of substitution in the form attached hereto as
Exhibit C, pursuant to which the Master Partnership and/or its designees agree
to be substituted as sole general partner and limited partner of T-Two Partners.
Notwithstanding the foregoing or anything to the contrary that may be set forth
in this Agreement, there shall be no requirement for the Option Interests or the
T-2 Certificate to be free of any Liens at the time of the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF NK-CR AND HOLDINGS
Each of NK-CR and Holdings hereby represents and warrants, jointly and
severally, to the Master Partnership as follows:
Section 3.01 Organization, Good Standing and Qualification. Each of
NK-CR and Holdings is a limited liability company duly organized, validly
existing and in good standing
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under the laws of the State of Delaware and each has all requisite limited
liability company power and authority to carry on its business as now conducted
and as proposed to be conducted and to own or lease all of the assets owned or
leased by it. T-Two Partners is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite partnership power and authority to own the T-2 Certificate. Each
of NK-CR, Holdings and T-Two Partners is duly qualified to transact business and
is in good standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its respective assets or businesses.
Section 3.02 Organizational Documents; Ownership of T-Two Partners.
NK-CR and Holdings have provided to the Master Partnership true and complete
copies of the Certificate of Limited Partnership and Limited Partnership
Agreement of T-Two Partners as currently in effect. NK-CR is the record and
beneficial owner of a 99% interest in T-Two Partners, and Holdings is the record
and beneficial owner of a 1% interest in T-Two Partners, in each case, free and
clear of all Liens other than the Liens granted to (i) Capital Trust pursuant to
the Pledge and Security Agreement dated as of August 1, 1998 by NK-CR in favor
of Capital Trust (the "Cap Trust Pledge Agreement") and (ii) Fleet under an
Ownership Pledge and Security Agreement by NK-CR in favor of Fleet (the "Fleet
Pledge Agreement"). NK-CR is the sole limited partner of T-Two Partners and
Holdings is the sole general partner of T-Two Partners.
Section 3.03 Options or Other Rights. There is no outstanding right,
subscription, warrant, call, unsatisfied preemptive right, option or other
agreement of any kind to purchase or otherwise to receive from T-Two Partners or
from NK-CR or Holdings any voting or economic interests in T-Two Partners or any
interest in the T-2 Certificate, except for this Agreement.
Section 3.04 Ownership of T-2 Certificate; No Other Business or
Assets. T-Two Partners is the sole record and beneficial owner of the T-2
Certificate. The sole business activity of T-Two Partners is to act as an
investment vehicle to own the T-2 Certificate. T-Two Partners does not conduct
any other business activity and does not own or have any beneficial interest in
any asset other than the T-2 Certificate. T-2 Partners has no employees.
Section 3.05 Authority; Enforceability. Each of NK-CR and Holdings
has full limited liability company power and authority to enter into this
Agreement and all of the other documents contemplated hereby and to consummate
the transactions contemplated hereby, including, without limitation, the ability
to transfer their respective partnership interests in T-Two Partners to the
Master Partnership. The execution, delivery and performance by each of NK-CR and
Holdings of this Agreement and all of the other documents contemplated hereby
have been duly authorized by all requisite limited liability company action.
This Agreement has been duly executed and delivered by each of NK-CR and
Holdings and constitutes a valid and binding obligation of each of NK-CR and
Holdings, enforceable against each of them in accordance with its terms.
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Section 3.06 No Violation; Consents. Except for the Cap Trust Pledge
Agreement, neither NK-CR or Holdings nor T-Two Partners is subject to or bound
by any portion of:
(i) any law, statute, rule, regulation or judicial or
administrative decisions,
(ii) any certificate of limited partnership, certificate of
formation, limited liability company agreement or limited
partnership agreement,
(iii) any mortgage, deed of trust, lease, note, bond, indenture,
other instrument or agreement, license, permit, trust,
custodianship or other restriction, or
(iv) any judgment, order, writ, injunction or decree,
that would prevent or be violated by or that would result in the creation of any
Lien as a result of, or under which there would be a default or right of
termination as a result of, the execution, delivery and performance by either
NK-CR or Holdings of this Agreement or the consummation of the transactions
contemplated hereby. No consent, approval or authorization of or declaration or
filing with any person or entity or any governmental or regulatory body is
required for the valid execution, delivery and performance by NK-CR or Holdings
of this Agreement or the consummation of the transactions contemplated hereby,
except for any filings that may be required in connection with the exercise of
the Put Option or Call Option under the HSR Act.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE MASTER PARTNERSHIP
The Master Partnership represents and warrants to NK-CR and Holdings as
follows:
Section 4.01 Organization, Good Standing and Qualification. The
Master Partnership 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 carry on its business as now
conducted and as proposed to be conducted and to own or lease all of the assets
owned or leased by it. The Master Partnership is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure to so
qualify would have a material adverse effect on its assets or business.
Section 4.02 Organizational Documents. The Master Partnership has
provided NK-CR and Holdings true and complete copies of the Certificate of
Limited Partnership and the Limited Partnership Agreement of the Master
Partnership as currently in effect.
Section 4.03 Authority; Enforceability. The Master Partnership has
full limited partnership power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by the Master Partnership of this Agreement and all of the other
documents contemplated hereby has been duly authorized by all requisite limited
partnership action. This Agreement has been duly executed and delivered by the
Master Partnership and constitutes a valid and binding obligation of the Master
Partnership, enforceable against it in accordance with its terms.
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Section 4.04 No Violation; Consents. The Master Partnership is not
subject to or bound by any provision of:
(i) any law, statute, rule, regulation or judicial or
administrative decision,
(ii) any certificate of limited partnership or limited partnership
agreement,
(iii) any mortgage, deed of trust, lease, note, bond, indenture,
other instrument or agreement, license, permit, trust,
custodianship or other restriction, or
(iv) any judgment, order, writ, injunction or decree,
that would prevent or be violated by or that would result in the creation of any
Lien as a result of, or under which there would be a default or right of
termination as a result of, the execution, delivery and performance by the
Master Partnership of this Agreement or the consummation of the transactions
contemplated hereby. No consent, approval or authorization of or declaration or
filing with any person or entity or any governmental or regulatory body is
required for the valid execution, delivery and performance by the Master
Partnership of this Agreement or the consummation of the transactions
contemplated hereby, except for any filings that may be required in connection
with the exercise of the Put Option or Call Option under the HSR Act.
ARTICLE V.
COVENANTS OF NK-CR AND HOLDINGS
Section 5.01 Fulfillment of Conditions. NK-CR and Holdings shall
cause (i) all of the representations and warranties of NK-CR and Holdings
contained in Article III hereof to be true and correct at and as of the time of
the Closing as though such representations and warranties were made at and as of
such time (except as otherwise set forth in the proviso contained in Section
7.01) and (ii) all of the conditions to the Master Partnership's obligations set
forth in Article VII of this Agreement to be fulfilled; provided, however, that
neither NK-CR nor Holdings shall be deemed to be in breach of this Section 5.01
for failing to cause any such representation or warranty to be true and correct
at and as of the time of the Closing or for any such condition to be so
fulfilled if to do so would violate applicable law.
Section 5.02 HSR Act. Promptly following its giving of a notice of
exercise of the Put Option to the Master Partnership pursuant to Section 2.01 or
its receipt of a notice of exercise of the Call Option pursuant to Section 2.02,
NK-CR and Holdings shall, if required by applicable laws to consummate the
exercise of either such option, promptly file with the United States Department
of Justice and the United States Federal Trade Commission any information and
documents required under the HSR Act in connection with such exercise and shall
promptly notify the Master Partnership of any communications in respect of such
filing(s) from the Department of Justice or the Federal Trade Commission. NK-CR
and Holdings shall promptly furnish to the Master Partnership (a) copies of all
pleadings, notices or other communications received by NK-CR and Holdings that
relate to the transactions contemplated by this Agreement and (b) all other
information in their possession as may be necessary for completion of the
reports or notifications to be filed by the Master Partnership under the HSR
Act.
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ARTICLE VI.
COVENANTS OF THE MASTER PARTNERSHIP
Section 6.01 Fulfillment of Conditions. The Master Partnership shall
cause (i) all of its representations and warranties contained in Article IV
hereof to be true and correct at and as of the time of the Closing as though
such representations and warranties were made at and as of such time and (ii)
all of the conditions to NK-CR's and Holdings' obligations set forth in Article
VIII of this Agreement to be fulfilled; provided, however, that the Master
Partnership shall not be deemed to be in breach of this Section 6.01 for failing
to cause any such representation or warranty to be true and correct at and as of
the time of the Closing or for any such condition to be so fulfilled if to do so
would violate applicable law.
Section 6.02 HSR Act. Promptly following its receipt of a notice of
exercise of the Put Option from NK-CR and Holdings pursuant to Section 2.01 or
its giving of a notice of exercise of the Call Option pursuant to Section 2.02,
the Master Partnership, if required by applicable law to consummate the exercise
of either such option, shall promptly file with the United States Department of
Justice and the United States Federal Trade Commission any information and
documents required under the HSR Act in connection with the transactions
contemplated hereby and shall promptly notify NK-CR and Holdings of any
communications in respect of such filing(s) from the Department of Justice or
the Federal Trade Commission. The Master Partnership shall promptly furnish to
NK-CR and Holdings (a) copies of all pleadings, notices or other communications
received by the Master Partnership that relate to the transactions contemplated
by this Agreement and (b) all other information in its possession as may be
necessary for completion of the reports or notifications to be filed by NK-CR
and Holdings under the HSR Act.
ARTICLE VII.
CONDITIONS TO THE MASTER PARTNERSHIP'S OBLIGATIONS
All obligations of the Master Partnership under this Agreement to
effect the Closing are subject to the fulfillment of each of the following
conditions, any or all of which may be waived in whole or in part by the Master
Partnership in its sole discretion:
Section 7.01 Representations and Warranties True at the Closing
Date. The representations and warranties of NK-CR and Holdings contained in
Article III hereof shall be true in all respects at and as of the time of the
Closing as though such representations and warranties were made at and as of
such time; provided, however, that (i) there shall be no requirement for any
Liens to be outstanding at the time of the Closing in favor of Cap Trust or
Fleet as set forth in Section 3.02 or for the T-2 Certificate or the Option
Interests to be free of any Liens at the time of the Closing and (ii) the assets
of T-Two Partners at the time of the Closing may consist of the T-2 Certificate,
cash and properties foreclosed on by the Grantor Trust or T-Two Partners which
had previously secured any Contract Receivables.
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Section 7.02 NK-CR's and Holdings' Performance. NK-CR and Holdings
shall have performed and complied with all covenants and agreements on their
part required by this Agreement to be performed or complied with by them prior
to or at the time of the Closing.
Section 7.03 Certificates. The Master Partnership shall have
received (1) a certificate of the managing member of each of NK-CR and Holdings,
dated as of the date of the Closing, certifying to the fulfillment on the part
of NK-CR and Holdings of the conditions specified in Sections 7.01 and 7.02 and
(2) a certificate of the managing member of each of NK-CR and Holdings, dated as
of the date of the Closing, setting forth the resolutions approving this
Agreement and all other documents required hereby and authorizing the
transactions contemplated hereby.
Section 7.04 Removal of Restrictions. NK-CR and Holdings shall have
caused the termination or elimination of all prohibitions, restrictions or
limitations contained in any agreement to which either is a party (including,
without limitation, the Cap Trust Pledge Agreement and any successor or
replacement agreement) which prohibits or adversely affects either the
transferability of the Option Interests or the T-2 Certificate or the ability of
NK-CR or Holdings to effect the Closing.
Section 7.05 Indemnification Agreement. NK-CR and Holdings shall
have executed and delivered to the Master Partnership the indemnification
agreement in substantially the form of Exhibit D hereto (the "Indemnification
Agreement"), pursuant to which NK-CR and Holdings jointly and severally agree to
indemnify the Master Partnership against all losses, damages, costs and other
expenses suffered or incurred by the Master Partnership as a result of (i) any
contingent obligations of T-Two Partners that exist as of the time of the
Closing, and (ii) any exercise following the Closing by any secured party
(including, without limitation, Cap Trust under the Cap Trust Pledge Agreement)
of its rights against the Option Interests or the T-2 Certificate with respect
to Liens that exist as of the time of the Closing (other than Liens granted by
NK-CR or Holdings to secure obligations of the Master Partnership, including,
without limitation, obligations of the Master Partnership under the Fleet Loan).
Section 7.06 Pledge Agreement. NK-CR, Holdings and their respective
designees, if any, to whom Units are to be issued at the Closing pursuant to
Section 2.03 shall have executed and delivered to the Master Partnership the
pledge agreement in substantially the form of Exhibit E hereto, pursuant to
which NK-CR, Holdings and such designees shall pledge such Units to the Master
Partnership as security for the obligations of NK-CR and Holdings under the
Indemnification Agreement.
Section 7.07 HSR Act. All notification filings required to be made
under the HSR Act shall have been made, all applicable waiting periods
thereunder shall have expired or been terminated without any request from any
appropriate governmental agency for additional information or, if additional
information has been requested, all applicable extended waiting periods shall
have expired; provided, however, that the Master Partnership may not rely on the
condition set forth in this Section 7.07 if the failure to obtain the requisite
approvals or clearances under the HSR Act is a result of the Master
Partnership's failure to take all necessary action in accordance with Section
6.02.
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ARTICLE VIII.
CONDITIONS TO NK-CR'S AND HOLDINGS' OBLIGATIONS
All obligations of NK-CR and Holdings under this Agreement to effect
the Closing are subject to the fulfillment of each of the following conditions,
any or all of which may be waived in whole or in part by NK-CR and Holdings in
their sole discretion:
Section 8.01 Representations and Warranties True at the Closing
Date. The representations and warranties of the Master Partnership contained in
Article IV hereof shall be true in all respects at and as of the time of the
Closing as though such representations and warranties were made at and as of
such time.
Section 8.02 The Master Partnership's Performance. The Master
Partnership shall have performed and complied with all covenants and agreements
on its part required by this Agreement to be performed or complied with by them
prior to or at the time of the Closing.
Section 8.03 Certificates. NK-CR and Holdings shall have received
(1) a certificate of the general partner of the Master Partnership, dated as of
the date of the Closing, certifying to the fulfillment of the conditions
specified in Sections 8.01 and 8.02, and (2) a certificate of the general
partner of the Master Partnership, dated as of the date of the Closing, setting
forth the resolutions approving this Agreement and all other documents required
hereby and authorizing the transactions contemplated hereby.
Section 8.04 HSR Act. All notification filings required to be made
under the HSR Act shall have been made, all applicable waiting periods
thereunder shall have expired or been terminated without any request from any
appropriate governmental agency for additional information or, if additional
information has been requested, all applicable extended waiting periods shall
have expired; provided, however, that NK-CR nor Holdings may not rely on the
condition set forth in this Section 8.04 if the failure to obtain the requisite
approvals or clearances under the HSR Act is a result of NK-CR's or Holdings'
failure to take all necessary action in accordance with Section 5.02.
ARTICLE IX.
RESTRICTED SECURITIES
Section 9.01 Option Interests. The Master Partnership acknowledges
and agrees that:
(a) the offer and sale of the Option Interests to be acquired by the
Master Partnership hereunder upon exercise of the Put Option or Call
Option have not been registered under the United States Securities Act of
1933, as amended, or the securities laws of any other jurisdiction;
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(b) the Option Interests will be acquired by the Master Partnership
for its own account and not on behalf of any other person or entity in a
manner that would violate, or cause the violation of, the securities laws
of any jurisdiction;
(c) the Option Interests will be acquired solely for investment and
without any present view to, or for sale in connection with, any
distribution thereof to any other person or entity; and
(d) the Master Partnership has knowledge and experience in financial
and business matters and is capable of evaluating the merits and risks of
its acquisition of the Option Interests.
Section 9.02 Offer and Sale of Units. NK-CR and Holdings each
acknowledges and agrees that:
(a) the offer and sale of the Units to be acquired by NK-CR and
Holdings and/or their respective designees hereunder have not been
registered under the United States Securities Act of 1933, as amended, or
the securities laws of any other jurisdiction;
(b) the Units will be acquired by NK-CR and Holdings and/or their
respective designees for their own account and not on behalf of any other
person or entity in a manner that would violate, or cause the violation
of, the securities laws of any jurisdiction;
(c) the Units will be acquired solely for investment and without any
present view to, or for sale in connection with, any distribution thereof
to any other person or entity; and
(d) each of NK-CR and Holdings and/or their respective designees has
knowledge and experience in financial and business matters and is capable
of evaluating the merits and risks of its acquisition of the Units.
ARTICLE X.
TERMINATION
This Agreement and the transactions contemplated hereby may be
terminated at any time prior to the Closing by prompt notice given in accordance
with the terms of Section 11.11 hereof:
(a) by the unanimous written consent of NK-CR, Holdings and the
Master Partnership; or
(b) by any of such parties if the Closing shall not have occurred on
or before February 1, 2008; provided, however, that (i) the right to
terminate this Agreement under this paragraph (b) shall not be available
to any party whose failure to fulfill any material obligation under this
Agreement has been the cause of or resulted in the failure of the Closing
to occur on or prior to the aforesaid date and (ii) such date shall be
automatically extended as necessary where the failure to close is a result
of failing to obtain the necessary clearance or approval under the HSR Act
and any of the parties is in good faith reasonably continuing to pursue
such clearance or approval.
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This Agreement shall automatically terminate without further action of the
parties if neither the Put Option nor the Call Option shall have been timely
exercised in accordance with Sections 2.01 and 2.02, respectively.
ARTICLE XI.
MISCELLANEOUS
Section 11.01 No Other Relationship; No Alteration of Contracts
Receivables. This Agreement shall not constitute any party as the legal
representative or agent of any other, nor shall any party have the right or
authority to assume, create or incur any liability or obligation, express or
implied, in the name of, or on behalf of, any other party. This Agreement is not
intended to create and shall not be construed to create, a relationship of
partnership, joint venture or association for profit between any of the parties.
This Agreement is not in any way intended to alter, and shall not be construed
to alter, the terms of the Contract Receivables, which shall remain in full
force and effect.
Section 11.02 Expenses. Each of the parties hereto shall bear its
own expenses associated with the negotiation and execution of the Agreement and
the consummation of the transactions contemplated hereby including, without
limitation, legal and accounting fees and expenses.
Section 11.03 Amendments; Waivers. The provisions of this Agreement
may be amended and each of the parties may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if each of
the other parties has consented in writing to such amendment, action or
omission. No such consent with respect to any such action or omission shall
operate as a consent to, waiver of, or estoppel with respect to, any other or
subsequent action or omission. No failure to exercise and no delay in exercising
any right, remedy or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy or power hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power provided herein or by law or at equity.
Section 11.04 Survival of Representations and Warranties. Regardless
of any examinations, inspections or investigations which the parties or their
authorized representatives shall have made prior to or on the date of this
Agreement or prior to or on the date of the Closing, the representations,
warranties and covenants set forth in this Agreement shall survive the exercise
of the Put Option or Call Option, as applicable, for the period of the
applicable statue of limitations.
Section 11.05 No Assignment; Successors and Assigns. No party shall
assign any of its rights or obligations under this Agreement without prior
written consent of each of the other parties hereto, except that the Master
Partnership may assign its rights under this Agreement to Fleet as security for
the Master Partnership's obligations to pay all amounts owed under the loan
documents with respect to the Fleet Loan. All agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and permitted assigns of the parties
hereto.
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Section 11.06 Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
Section 11.07 Descriptive Headings and Construction. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement. Unless otherwise indicated, references to
Articles and Sections herein are references to Articles and Sections of this
Agreement.
Section 11.08 Governing Law. This Agreement and the rights and
duties of the parties to this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflicts of law principles.
Section 11.09 Arbitration. Any dispute arising out of, or relating
to, this Agreement or the breach thereof, or regarding the interpretation
thereof, shall be finally settled by arbitration conducted in New York City in
accordance with the rules of the American Arbitration Association then in effect
before a single arbitrator appointed in accordance with such rules. Judgment
upon any award rendered therein may be entered in any court having jurisdiction
and enforcement may be obtained thereon in any such court. The arbitrator shall
have authority to grant any form of appropriate relief, whether legal or
equitable in nature, including specific performance. For the purpose of any
judicial proceeding to enforce such award or incidental to such arbitration or
to compel arbitration, the parties hereby submit to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, New York County, or
the United States District Court for the Southern District of New York, and
agree that service of process in such arbitration or court proceedings shall be
satisfactorily made upon it if sent by registered mail addressed to it at the
address referred to in Section 11.11.
Section 11.10 Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER.
Section 11.11 Notices. Any notice pursuant to the terms and
conditions of this Agreement shall be in writing and either (a) delivered
personally; (b) sent by certified mail, return receipt requested; (c) sent by a
recognized overnight mail or courier service with delivery receipt required; or
(d) sent by facsimile transfer and acknowledged by recipient, and will be deemed
to have been given when received by the party to whom addressed. Notices shall
be directed as follows:
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If to the Master Partnership: The Xxxxxxx Master Limited Partnership
0 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
If to NK-CR or Holdings: NK-CR Holdings LLC
Holdings Subsidiary LLC
0 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Any party may change its address or the person to notify by a notice delivered
in accordance with this Section 11.11.
Section 11.12 Costs of Enforcement. In any action brought to enforce
any right of any party to this Agreement, the prevailing party shall be entitled
to recover all of its reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees).
Section 11.13 Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, written or oral, among the
parties with respect thereto.
Section 11.14 Counterparts. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts taken together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties have caused this Put-Call Option
Agreement to be executed as of the date first above written.
THE XXXXXXX MASTER LIMITED PARTNERSHIP
By: MLP GP LLC, its general partner
By: Xxxxxxx MLP Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
NK-CR HOLDINGS LLC
By: Xxxxxxx Manager Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
HOLDINGS SUBSIDIARY LLC
By: NK-CR Holdings, LLC,
its managing member
By: Xxxxxxx Manager Corp.
it manager
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
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