Exhibit 2.6
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 Associates LLC ("Assignor"), a Delaware limited liability
company, The Xxxxxxx Master Limited Partnership ("Assignee"), a Delaware limited
partnership, Xxxxxxx XX Holdings LLC ("Xxxxxxx XX"), 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-Cenland LP LLC, NK-Cenland GP
LLC, Xxxxxxx Xxxxx LLC, NK-Leyden GP LLC, NK-Dautec GP LLC, NK First Loan E Cert
LLC, NK First Loan F Cert LLC and NK-First Loan G Cert LLC, (the "Companies"),
each of which is a Delaware limited liability company; and
WHEREAS, Assignor is the holder of a 96.324% limited partnership interest
in NK-Dautec Loan, L.P. ("DL") and a 96.22% limited partnership interest in
NK-Leyden Loan, L.P. ("LL" and, together with DL, the "Partnerships"), each of
which is a Delaware limited partnership; and
WHEREAS, Assignor desires to transfer and assign Assignor's limited
liability company interests in the Companies and limited partner interests in
the Partnerships (collectively, 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 XX 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 all of Assignor's rights under the respective limited liability
company agreements of the Companies, as amended from time to time (the "LLC
Agreements") and the limited partnership agreements of the Partnerships, as
amended from time to time (the "LP Agreements"), such sale, assignment and
transfer to be effective as of the Effective Time, notwithstanding any provision
of the LLC Agreements or the LP Agreements.
2. Assumption of Interests. Notwithstanding any provision of the LLC
Agreements or the LP 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 and LP Agreements.
3. Consideration. In consideration of the sale, assignment and transfer of
the Interests, Assignee shall issue to Xxxxxxx XX and VN LLC the number of LP
Units so indicated on Schedule A hereto.
4. Partnership Agreement. By executing this Agreement, Xxxxxxx XX and VN
LLC 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 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. Notwithstanding any provision of the LP Agreements, the parties hereto
agree that, effective as of the Effective Time, (i) Assignee is admitted to the
Partnerships as a substitute limited partner of the Partnerships, (ii) Assignor
ceases to be a limited partner of, and ceases to have or exercise any right or
power as a limited partner of, the Partnerships, (iii) the business of each of
the Partnerships is continued without dissolution, and (iv) each of the LP
Agreements is hereby amended to reflect the foregoing, and all references in
each LP 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.
2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXXXX ASSOCIATES LLC
By: Xxxxxxx Manager Corp., its Manager
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: 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 XX HOLDINGS LLC
By: Xxxxxxx Manager (NV) Corp., its manager
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
AGREED AND ACKNOWLEDGED:
XXXXXXX MANAGER CORP.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
NK-DAUTEC GP LLC
By: Xxxxxxx Manager Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
NK-LEYDEN GP LLC
By: Xxxxxxx Manager Corp., its manager
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President
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SCHEDULE A
Number of MLP Number of MLP
Assigned Company or Units Issuable Units Issuable
Partnership Interest to Xxxxxxx XX to VN LLC
-------------------- ------------- ---------
NK-Cenland LP LLC 14,267 6,114
NK-Cenland GP LLC 143 61
Xxxxxxx Xxxxx LLC 271,199 47,990
NK-Leyden GP LLC 172 74
NK-Dautec GP LLC 83 36
NK First Loan E Certificate LLC 32,822 14,067
NK First Loan F Certificate LLC 26,385 11,308
NK First Loan G Certificate LLC 39,603 16,973
NK-Dautec Loan L.P. 8,022 3,438
NK-Leyden Loan L.P. 16,538 7,088
Total: 409,234 107,149