EX-2.5 7 ex2-5.txt ASSIGNMENT AND ASSUMPTION AGREEMENT Exhibit 2.5 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 Newkirk RE Associates LLC ("Assignor"), a Delaware limited liability company, The Newkirk Master Limited Partnership ("Assignee"), a Delaware limited partnership, Newkirk RE Holdings LLC ("Newkirk RE"), a Delaware limited liability company, and Vornado Newkirk L.L.C. ("VN LLC"), a Delaware limited liability company. RECITALS WHEREAS, Assignor is the sole member of NK-Remainder Interest LLC ("Remainder") and NK-Leasehold II LLC, ("Leasehold", and together with Remainder, the "Companies"), each a Delaware limited liability company; and WHEREAS, Assignor desires to transfer and assign Assignor's limited liability company interests in each of Remainder (the "Remainder Interest") and Leasehold (the "Leasehold Interest", and together with the Remainder Interests, 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 Newkirk RE 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 Assignor's rights under the respective limited liability agreements of the Companies, as amended from time to time (the "LLC Agreements"), such sale, assignment and transfer to be effective as of the Effective Time, notwithstanding any provision of the LLC Agreements. 2. Assumption of Interests. Notwithstanding any provision of the LLC 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. 3. Consideration. Remainder Interest. In consideration of the sale, assignment and transfer of the Remainder Interest, Assignee shall, at the Effective Time, issue an aggregate of 140,460 MLP Units, 98,322 of which MLP Units shall be issued to Newkirk RE and 42,138 of which MLP Units shall be issued to VN LLC. Leasehold Interest. In consideration of the sale, assignment and transfer of the Leasehold Interest, Assignee shall, at the Effective Time, issue an aggregate of 64,378 MLP Units, 45,065 of which MLP Units shall be issued to Newkirk RE and 19,313 of which MLP Units shall be issued to VN LLC. 4. Partnership Agreement. By executing this Agreement, Newkirk RE and VN LLC shall each 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. 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. NEWKIRK RE ASSOCIATES LLC By: Newkirk Manager Corp., its Manager By: /s/ Peter Braverman ----------------------------------------------- Peter Braverman Executive Vice President THE NEWKIRK MASTER LIMITED PARTNERSHIP By: MLP GP LLC, its general partner By: Newkirk MLP Corp., its manager By: /s/ Peter Braverman ----------------------------------------------- Name: Peter Braverman Title: Executive Vice President NEWKIRK RE HOLDINGS LLC By: Newkirk Manager (NV) Corp. By: /s/ Peter Braverman ----------------------------------------------- Name: Peter Braverman Title: Executive Vice President VORNADO NEWKIRK L.L.C. By: Vornado Realty L.P., its member By: Vornado Realty Trust, its general partner By: /s/ Joseph Macnow ----------------------------------------------- Name: Joseph Macnow Title: Executive Vice President - Finance and Administration, Chief Financial Officer ACKNOWLEDGED AND AGREED: NEWKIRK MANAGER CORP. By: /s/ Peter Braverman ------------------------------- Name: Peter Braverman Title: Executive Vice President 3