EXHIBIT 2.2
AGREEMENT TO PURCHASE
LIMITED PARTNERSHIP INTEREST
THIS AGREEMENT TO PURCHASE LIMITED PARTNERSHIP INTEREST (this "Agreement")
effective as of June 27, 2003 (the "Effective Date"), is entered into by and
among ▇▇▇▇▇▇ Financial, Inc. (the "Seller") and Monro Muffler Brake, Inc. (the
"Buyer").
WHEREAS, the Seller is the owner of one hundred percent (100%) of the
limited partnership interest in Brazos Automotive Properties, L.P. (the "Limited
Partnership");
WHEREAS, the Seller desires to sell and the Buyer desires to buy one
hundred percent (100%) of the Seller's limited partnership interest (the
"Limited Partnership Interest") in the Limited Partnership;
WHEREAS, the Seller and the Buyer have each agreed to the sale and purchase
of the Limited Partnership Interest, subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, the undersigned parties agree as follows:
Section 1. Defined Terms. All capitalized terms used in this Agreement but
not defined in this Agreement shall have the meanings set forth in that certain
First Amended and Restated Agreement of Limited Partnership of Brazos Automotive
Properties, L.P., dated as of September 15, 1998 (the "Partnership Agreement"),
by and among Brazos Automotive Properties Management, Inc., a Delaware
corporation, as general partner (the "General Partner") and the Seller, as sole
limited partner.
Section 2. Purchase and Sale.
(a) Subject to the terms and conditions of this Agreement, the Seller
hereby transfers and conveys the Limited Partnership Interest to the Buyer
free and clear of all liens, claims, and encumbrances arising through
Seller.
Section 3. Purchase Price. Upon the terms and subject to the conditions
contained in this Agreement, in consideration for the sale, assignment,
transfer, and delivery of the Limited Partnership Interest, the Buyer agrees to
pay Eight Hundred Seventy-Eight Thousand Three Hundred Sixty-Eight Dollars and
76/100 ($878,368.76) to Seller (the "Purchase Price"). The Purchase Price shall
be paid to Seller on the date hereof in immediately available funds by wire
transfer to the bank account of Seller as set forth below:
Bank: Deutsche Bank
One Bankers Trust Plaza
New York, New York
ABA No.: ▇▇▇-▇▇▇-▇▇▇
Account Name: GE Capital, Stamford, Connecticut
Account No.: ▇▇-▇▇▇-▇▇▇
Reference: Brazos Automotive Properties
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Section 4. Representations and Warranties of the Seller. The Seller hereby
represents, warrants, and covenants as follows:
(a) Ownership. The Seller is the owner, both equitably and legally, of
the Limited Partnership Interest which it is offering to sell to the Buyer
pursuant to this Agreement, free and clear of all liens, encumbrances,
security agreements, equities, options, claims, charges, and restrictions
or other obligations of any kind or character arising through Seller.
(b) Legal Capacity and Authority. The Seller has the right, power,
legal capacity, and authority to enter into and perform its obligations
under this Agreement and any and all documents executed in connection with
this Agreement (the "Transaction Documents"), and no approvals or consents
of any persons are necessary in connection therewith that have not been
obtained.
(c) Due Organization; Good Standing and Power. The Seller is duly
organized, validly existing, and in good standing under the laws of the
state of its organization. The execution, delivery and performance of this
Agreement and the Transaction Documents, as applicable, by the Seller and
the consummation by the Seller of the transactions contemplated hereby and
thereby have been duly authorized by all requisite action on its part and
in accordance with Applicable Law. No other action is necessary for the
authorization, execution, delivery, and performance by the Seller of this
Agreement and the Transaction Documents and the consummation by the Seller
of the transactions contemplated hereby and thereby.
(d) Validity of Agreement. This Agreement and the Transaction
Documents have been duly executed and delivered by the Seller and
constitute a legal, valid, and binding obligation of it, enforceable
against it in accordance with their terms, except as the same may be
limited by bankruptcy, insolvency, or other similar laws affecting
creditors' rights generally and by general equity principles. Upon
consummation of the transactions contemplated hereby, the Buyer will
acquire the Limited Partnership Interest clear of all liens, claims, and
encumbrances arising through Seller, other than those that may arise by
virtue of any actions taken by or on behalf of the Buyer.
(e) No Approvals or Notices Required; No Conflict with Instruments.
The execution, delivery, and performance of this Agreement and the
Transaction Documents by the Seller and the consummation by them of the
transactions contemplated hereby will not violate (with or without the
giving of notice or the lapse of time or both) or require any consent,
approval, filing, or notice under any provision of any statute, law, rule
or regulation or any judgment, order, writ, injunction or decree of any
governmental entity to which a specified person or property is subject
("Applicable Law"). To the best of Seller's knowledge, the Limited
Partnership Interest is transferable and assignable to the Buyer as
contemplated by this Agreement without the waiver of any right of first
refusal or the consent of any party other than the Seller and the General
Partner being obtained, and, to the best of Seller's knowledge, there
exists no preferential right of purchase in favor of any person with
respect of any of the Limited Partnership Interest.
Section 5. Representations and Warranties of the Buyer. The Buyer hereby
represents and warrants that:
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(a) Legal Capacity and Authority. The Buyer has the right, power,
legal capacity, and authority to enter into and perform its obligations
under this Agreement and the Transaction Documents, and no approvals or
consent of any person are necessary in connection therewith.
(b) Due Organization; Good Standing and Power. The Buyer is duly
organized, validly existing, and in good standing under the laws of the
state of its organization. The execution, delivery and performance of this
Agreement and the Transactional Documents by the Buyer and the consummation
by the Buyer of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on its part. No other
corporate action is necessary for the authorization, execution, delivery,
and performance by the Buyer of this Agreement and the Transactional
Documents and the consummation by the Buyer of the transactions
contemplated hereby.
(c) Validity of Agreement. This Agreement and the Transactional
Documents have been duly executed and delivered by the Buyer and constitute
a legal, valid, and binding obligation of the Buyer, enforceable against
the Buyer in accordance with their terms, except as the same may be limited
by bankruptcy, insolvency, or other similar laws affecting creditors'
rights generally and by general equity principles.
(d) No Approvals or Notices Required; No Conflict with Instruments.
The execution, delivery, and performance of this Agreement by the Buyer and
the consummation by it of the transactions contemplated hereby (i) will not
violate (with or without the giving of notice or the lapse of time or
both), or require any consent, approval, filing or notice under any
provision of any law, rule or regulation, court order, judgment or decree
applicable to the Buyer; and (ii) will not conflict with, or result in the
breach or termination of any provision of, or constitute a default under,
or result in the acceleration of the performance of the obligations of the
Buyer, under, the bylaws of the Buyer or any material agreement to which
the Buyer is a party or by which the Buyer or any of its assets or
properties is bound.
Section 6. General Provisions.
(a) Survival of Representations and Warranties. The representations,
warranties and agreements of the Parties contained herein shall survive the
execution of this Agreement and shall continue to remain in full force and
effect.
(b) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State.
(c) Binding. This Agreement shall inure to the benefit of and be
binding upon the Parties, their respective successors, administrators,
representatives, heirs and assigns.
(d) Counterparts. This Agreement may be executed simultaneously in one
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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(e) Entire Agreement. This Agreement embodies the entire agreement and
understanding of the Parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties,
covenants, or understandings, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the Parties with respect to such subject matter. No
supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both Parties hereto.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
SELLER:
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BUYER:
MONRO MUFFLER BRAKE, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: CFO
AGREED AND ACCEPTED:
BRAZOS AUTOMOTIVE
PROPERTIES MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Date: June 27, 2003
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