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EXHIBIT 2.9
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Transfer of 1% Interest in REIT Management Assets and Third-Party Management
Assets from Mendik/FW LLC to Management Corporation)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made and
entered into as of April 15, 1997, by and between FW/Mendik REIT, L.L.C., a
Delaware limited liability company ("Assignor"), and Mendik Management Company
Inc., a New York corporation (the "Management Corporation" or "Assignee").
WHEREAS, pursuant to Contribution Agreements dated as of the date
hereof by and between Mendik Holdings LLC and Assignor, Assignor has acquired
the rights and obligations with respect to the REIT Management Assets (as
defined below) and the Third-Party Management Assets (as defined below); and
WHEREAS, Assignor desires to sell, transfer and convey to Assignee, and
Assignee desires to acquire from Assignor, all of Assignor's right and interest
in and to a one percent (1%) undivided interest in the REIT Management Assets
and to the Third-Party Management Assets, in return for the consideration
described herein;
NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1. Assignment and Assumption. Assignor hereby sells, transfers and
conveys to Assignee, its successors and its assigns, without recourse or
warranty, (i) the rights of Assignor under the property management contracts
listed on Schedule 1A hereto (the "Management Agreements") (which rights were
acquired by Acquiror indirectly from Mendik Realty Company, Inc., a New York
corporation ("Mendik Realty"), and Mendik Managing Agent Company, Inc., a New
York corporation ("Mendik Management"), and which rights are exclusive of the
right of Mendik Realty or Mendik Management, as applicable, to receive
management fees and leasing commissions under the Management Agreements that
are earned as of the date hereof but not yet paid), (ii) the rights to receive
income earned from and after the date hereof under the agreements listed on
Schedule 1B hereto and all successors thereto (which rights are exclusive of
the right of Mendik Realty or Mendik Management, as applicable, to receive
management fees and leasing commissions under such agreements that are earned
as of the date hereof but not yet paid) (the "Beneficial Interests"), (iii) on
an "as is" basis, the furniture furnishings, fixtures, machinery, equipment and
other tangible personal property, and replacements thereof, set forth on
Schedule 2 hereto (the "Property Assets" and, together with the Management
Contracts and the Beneficial Interests, the "Third-Party Management Assets")
and (iv) an undivided one percent (1%) interest in the rights of Assignor under
the property management contracts listed on Schedule 3 hereto (the "REIT
Management Assets"). Assignee hereby accepts and assumes from and after the
date hereof the obligations of Assignor with respect to the Third-Party
Management Assets and, to the
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extent of its interest in the REIT Management Assets, the obligations of
Assignor with respect to the REIT Management Assets.
2. CONSIDERATION. In consideration for an undivided 1% interests in
the REIT Management Assets and the Third-Party Management Assets, the
Management Corporation hereby issues to Assignor (i) 74 shares of voting Class
A common stock, par value $.01 per share, of the Management Corporation (the
"Voting Stock"), which, together with the one share of Voting Stock previously
issued to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, represents 100% of the voting capital stock of
the Management Corporation, (ii) 1,425 shares of nonvoting Class B common
stock, par value $.01 per share, of the Management Corporation (the "Nonvoting
Stock"), and (iii) a promissory note in the amount of SIX MILLION DOLLARS
($6,000,000) (the "Note"). Concurrently with the execution and delivery of this
Agreement, Assignee is delivering to Assignor stock certificates representing
the Voting Stock and the Nonvoting Stock, and is executing and delivering to
Assignor the Note in the form attached hereto as EXHIBIT A. Assignee represents
and warrants that the Voting Shares and Nonvoting Shares are validly issued,
fully paid and non-assessable.
3. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered on its behalf as of the date first
above written.
FW/MENDIK REIT, L.L.C.
By: Mendik Holdings LLC
By: Mendik Holdings, Inc., Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
MENDIK MANAGEMENT COMPANY INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
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EXHIBIT A
PROMISSORY NOTE
$6,000,000 , 1997
FOR VALUE RECEIVED, MENDIK MANAGEMENT COMPANY, INC., a New York
corporation (the "Maker"), promises to pay to the order of FW/MENDIK REIT,
L.L.C., a Delaware limited liability company, its successors and assigns (the
"Holder"), at such place as the Holder of this Note may from time to time
designate, the principal amount of SIX MILLION DOLLARS ($6,000,000), together
with interest on the unpaid principal amount hereof from the date hereof, until
paid in full at a fixed rate of twelve (12%) per annum. An initial payment of
accrued interest in the amount of $ shall be due and payable on ,
1997, and thereafter accrued interest shall be due and payable in equal monthly
payments of $60,000 on the last day of each month, beginning on , 1997.
The entire unpaid principal balance of this Note, together with all accrued and
unpaid interest thereon, shall be due and payable in full on , 2007.
All payments hereunder shall be made in lawful money of the United States of
America.
This Note may be prepaid in whole or in part at any time or times without
premium or penalty. Each payment hereunder (including any prepayments) shall be
applied first to the payment of all interest and other amounts accrued
hereunder, and the balance of any such prepayment shall be applied to the
principal amount hereof. No prepayment shall entitle any person to be
subrogated to the rights of the Holder unless and until this Note has been paid
in full.
This Note serves as partial consideration in exchange for the business and
assets sold by the Holder to the Maker as purchaser, as set forth in the
Assignment and Assumption Agreement dated as of the date hereof among the
Maker, the Holder and certain other parties.
It shall be an event of default ("Event of Default") hereunder if Maker
shall fail to pay, when due, the principal, any interest, or any other sum
payable hereunder, and continuance of such failure for ten (10) business days
after the date on which such principal, interest or other sum is due (whether
upon maturity hereof, upon any installment payment date, upon any prepayment
date, upon acceleration, or otherwise).
Upon the occurrence of such Event of Default, the entire principal amount
hereof, and all accrued and unpaid interest thereon, and any other amounts due
hereunder or under the Agreement, shall be accelerated, and shall be
immediately due and payable, at the option of the Holder, without demand or
notice, and in addition thereto, and not in substitution therefor, the Holder
shall be entitled to exercise any one or more of the rights and remedies
provided by applicable law. Failure to exercise said option or to pursue such
other rights and remedies shall
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not constitute a waiver of such option or such other rights or
remedies or of the right to exercise any of the same in the event of
any subsequent Event of Default.
The Maker promises to pay all reasonable costs and expenses
(including without limitation reasonable attorneys' fees and
disbursements) incurred in connection with the collection hereof or
in the protection or realization of any collateral hereafter given as
security for the repayment hereof, and to perform each and every
covenant or agreement to be performed by the Maker under this Note,
the Agreement, and any other instrument evidencing or securing the
obligation represented by this Note.
Any payment on this Note coming due on a Saturday, a Sunday, or
a day which is a legal holiday in the place at which a payment is to
be made hereunder shall be made on the next succeeding day which is a
business day in such place, and any such extension of the time of
payment shall be included in the computation of interest hereunder.
Each Obligor (which term shall include the Maker and all makers,
sureties, guarantors, endorsers, and other persons assuming
obligations pursuant to this Note) under this Note hereby waives
presentment, protest, demand, notice of dishonor, and all other
notices, and all defenses and pleas on the grounds of any extension
or extensions of the time of payments or the due dates of this Note,
in whole or in part, before or after maturity, with or without
notice. No renewal or extension of this Note, no release or surrender
of any collateral given as security for this Note, no release of any
Obligor, and no delay in enforcement of this Note or in exercising
any right or power hereunder, shall affect the liability of any
Obligor. The pleading of any statute of limitations as a defense to
any demand against any Obligor is expressly waived.
No single or partial exercise by the Holder of any right
hereunder, under the Agreement, or under any other agreement given as
security for this Note or pertaining hereto, shall preclude any other
or further exercise thereof or the exercise of any other rights. No
delay or omission on the part of the Holder in exercising any right
hereunder shall operate as a waiver of such right or of any other
right under this Note.
This Note and all agreements between the Maker and the Holder
relating hereto are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration or
otherwise, shall the amount paid or agreed to be paid to the Holder
for the use, forbearance or detention of money hereunder exceed the
maximum amount permissible under applicable law. If from any
circumstance whatsoever fulfillment of any provision hereof, at the
time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law, then, ipso
facto, the obligation to be fulfilled shall be reduced to the
limit of such validity, and if from any such circumstance the Holder
shall ever receive interest, or anything which might be deemed
interest under applicable law, which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied
to the reduction of the principal amount owing on account of this
Note and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal of this Note, such
excess shall be refunded to the Maker. The terms and provisions of
this paragraph shall control and supersede every other provision of
this Note and all other agreements between the Maker and the Holder.
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Whenever used herein, the words "Maker" and "Holder"and "Obligor" shall
be deemed to include their respective successors and assigns.
This Note shall be governed by and construed under and in accordance
with the laws of the State of New York (but not including the choice of law
rules thereof).
IN WITNESS WHEREOF, the undersigned have duly executed this Note, or
have caused this Note to be duly executed on their behalf, as of the day and
year first hereinabove set forth.
[SEAL] MENDIK MANAGEMENT COMPANY, INC.
ATTEST:
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
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Schedule 1A to
Contribution Agreement
(Transfer of Third-Party Management Assets)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Management and Leasing Agreement between 570 Lexington Company, L.P.
and Mendik Realty Company, Inc., dated as of October 31, 1994.
550 AND ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Management Agreement between Mendik Real Estate Limited Partnership
and Mendik Realty Company, Inc., dated as of September 4, 1986.
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Management Agreement between Mendik Real Estate Limited Partnership
and Mendik Realty Company, Inc., dated as of April 23, 1987.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Management Agreement between ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Company and Mendik Realty Company,
Inc., dated as of January __, 1984.
▇ ▇▇▇▇ ▇▇▇▇▇▇
Management Agreement between Two Park Company and Mendik Realty Company Inc.,
dated as of December 22, 1986.
WESTPORT OFFICE PARK
Right to receive fees for providing management services to Westport Office Park.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Management Agreement dated as of January 1, 1997 between 330 Madison Company and
Mendik Realty Company, Inc.
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Schedule 1B to
Contribution Agreement
(Transfer of Third-Party Management Assets)
▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ PROPERTIES
▇▇▇▇▇▇▇▇▇▇▇ & Mendik Company Restated Partnership Agreement, dated as of
February 15, 1997 between ▇▇▇▇▇▇▇▇▇▇▇ Properties, Inc. and Mendik Realty
Company, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Management Agreement between 909 Third Company and Mendik Realty
Company, Inc., dated as of June 6, 1983.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Management Agreement between 100 Church Company and Mendik Realty
Company, Inc., dated as of October 15, 1985.
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Schedule 2 to
Contribution Agreement
(Transfer of Third-Party Management Assets)
[OMITTED]
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Schedule 3 to
Contribution Agreement
(Transfer of REIT Management Assets)
▇▇▇ ▇.▇. ▇▇▇▇▇
Management Agreement between 866 U.N. Plaza Associates and Mendik Realty
Company, Inc., dated as of June 1, 1978.
▇▇▇▇ ▇▇▇▇▇▇▇▇
Management Agreement between ▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates L.P. and Mendik Realty
Company, Inc., dated as of December 17, 1990.
TWO PENN PLAZA
Management Agreement between Two Penn Plaza Associates and Mendik Realty
Company, Inc., dated as of January 1, 1979.
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Management Agreement between 393 Seventh Associates (now known as
Eleven Penn Plaza Company) and Mendik Realty Company, Inc., dated as of January
1, 1982, as amended by First Amendment to Real Estate Management Agreement ,
dated as of September 30, 1994.