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EXHIBIT 10-23
PARTNERSHIP INTEREST PURCHASE AGREEMENT
This PARTNERSHIP INTEREST PURCHASE AGREEMENT (this "AGREEMENT") is made
this 16th day of September, 2002, by and among GENESEE SYRACUSE PROPERTIES, INC.
("SELLER"), a New York corporation having an office at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 1993 LIMITED PARTNERSHIP, a New
York limited partnership having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇"), ▇▇▇▇▇ NATAPOW VENTURES LTD., having an
office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("SPALL
NATAPOW"), NATAPOW REALTY CORPORATION, having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("NATAPOW REALTY"), and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇., having an address of ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("SPALL").
R E C I T A L S:
A. Seller is both a general partner and a limited partner of
▇▇▇▇▇▇▇▇▇ and is the owner of 1 general partnership Unit and 49 limited
partnership Units (collectively, the "GENESEE UNITS") in ▇▇▇▇▇▇▇▇▇.
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Ventures Ltd., a general partner of ▇▇▇▇▇▇▇▇▇,
Natapow Realty Corp., a limited partner of ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇., a limited partner of ▇▇▇▇▇▇▇▇▇, are the only other partners of ▇▇▇▇▇▇▇▇▇
other than Seller (collectively, the "OTHER PARTNERS").
▇. ▇▇▇▇▇▇▇▇▇, Seller, in its capacity as a general partner and a
limited partner, and the Other Partners executed a Limited Partnership Agreement
(the "LIMITED PARTNERSHIP AGREEMENT") effective as of December 20, 1993.
▇. ▇▇▇▇▇▇▇▇▇ is indebted to Manufacturers and Traders Trust
Company ("M&I") pursuant to a Mortgage Note in the principal amount of
$8,800,000 dated November 29, 1993, and ▇▇▇▇▇▇▇▇▇ and Seller have executed
certain other agreements, instruments and documents in connection therewith,
including, but not limited to, a Restated Mortgage Note dated December 29, 1993
(collectively, the "M& T FINANCING DOCUMENTS").
E. The Other Partners desire to have ▇▇▇▇▇▇▇▇▇ purchase the
Genesee Units, and Seller is willing to sell to ▇▇▇▇▇▇▇▇▇ the Genesee Units, on
the terms and conditions set forth herein.
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F. Concurrently herewith, Genesee Ventures, Inc. ("GENESEE
VENTURES"), Crossroads Spencerport LLC ("CROSSROADS"), Natapow Realty and Spall
have entered into a Membership Interest Purchase Agreement (the "MEMBERSHIP
INTEREST PURCHASE AGREEMENT") whereby simultaneously with the closing provided
for hereunder, Crossroads will purchase from Genesee Ventures its membership
Units (the "MEMBERSHIP UNITS") in Crossroads.
P R O V I S I O N S:
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties, intending to be legally bound, agree as
follows:
1. SALE AND ASSIGNMENT OF GENESEE UNITS AND PARTNER CONSENTS.
(a) Upon the terms and conditions set forth in this
Agreement, at the Closing (as defined below), Seller shall assign and transfer
to ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇ shall accept from Seller, the Genesee Units, free
and clear of any security interests, pledges, liens or other encumbrances, other
than under the Limited Partnership Agreement and applicable securities laws.
(b) The Other Partners hereby consent to the assignment
and transfer to ▇▇▇▇▇▇▇▇▇ of the Genesee Units and all of the other transactions
contemplated hereunder and hereby waive any rights which they may have under the
Limited Partnership Agreement to purchase the Genesee Units and agree not to
exercise any rights they have to purchase or sell the Genesee Units or to offer
to sell to Seller their Partnership Units as contemplated by the Limited
Partnership Agreement.
2. PURCHASE PRICE.
(a) In consideration of Seller selling and transferring
the Genesee Units to ▇▇▇▇▇▇▇▇▇, and Genesee Ventures selling and transferring
the Membership Units to Crossroads, ▇▇▇▇▇▇▇▇▇ and Crossroads shall pay to
Seller's nominee, Genesee Corporation, Four Million Five Hundred Thousand and
00/100 Dollars ($4,500,000.00) (the "PURCHASE PRICE").
(b) The parties hereto acknowledge and agree that the
Purchase Price shall constitute a payment in exchange for Seller's interest in
the property of ▇▇▇▇▇▇▇▇▇, and Genesee Ventures' interest in the property of
Crossroads, under Section 736(b) of the Internal Revenue Code of 1986, as
amended (the "CODE").
3. DISTRIBUTIVE SHARE. The distributive share of Seller's items
of income, losses, deductions and credit for the Genesee Units, as computed for
tax purposes, shall be allocated between Seller and the Other Partners,
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based on an interim closing of the books of ▇▇▇▇▇▇▇▇▇ pursuant to Section
706(c)(2) of the Code, as of the Closing. ▇▇▇▇▇▇▇▇▇ shall take such actions as
necessary to effect this Section 3.
4. CLOSING.
(a) The purchase and sale of the Genesee Units as set
forth in Sections 1 and 2 (the "CLOSING") shall take place and be effective on
the second business day after the closing conditions set forth under Section 8
are satisfied (the "CLOSING DATE"). At the Closing, (i) Seller shall execute and
deliver an Assignment of Partnership Units in the form annexed hereto as Exhibit
A (the "ASSIGNMENT"); (ii) the Other Partners shall make the Financing
Contribution so that ▇▇▇▇▇▇▇▇▇ may pay the Purchase Price; (iii) ▇▇▇▇▇▇▇▇▇ shall
pay the Purchase Price by wire transfer of immediately available funds to an
account designated by Seller in writing to ▇▇▇▇▇▇▇▇▇; and (iv) the parties
hereto shall execute and deliver a Release Agreement (the "RELEASE AGREEMENT")
in the form annexed hereto as EXHIBIT B.
(b) From time to time, at a party's reasonable request,
the other party shall execute and deliver such further instruments of
conveyance, transfer and assignment, and take such other action as may be
reasonably requested in order to complete and effect the transactions
contemplated herein.
5. REPRESENTATION AND WARRANTIES OF SELLER. Seller represents and
warrants to the Other Partners as follows and Seller makes no other
representations or warranties of any kind, whether express or implied:
(a) Seller has taken all corporate action necessary for
it to execute, deliver and perform its obligations under this Agreement, and
that this Agreement constitutes its valid and binding obligation, enforceable in
accordance with its terms, subject to the laws affecting creditors' rights.
(b) Seller is not subject to or bound by any agreement,
judgment, order or decree of any court or governmental agency which prevents the
execution of this Agreement and the consummation of the transactions
contemplated hereunder.
(c) Seller is the sole owner of the Genesee Units.
(d) The Genesee Units are not subject to any liens,
pledges or encumbrances of any kind whatsoever, except for restrictions under
the Limited Partnership Agreement and applicable securities laws.
(e) No agent, broker, investment banker, consultant,
representative or other person acting on behalf of Seller or under the authority
of Seller is or shall be entitled to any commission, broker's or finder's fee or
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any other form of compensation or payment from Seller relating to this Agreement
or the transactions contemplated hereby other than the attorneys, accountants
and tax or financial advisors of Seller 'in connection with this Agreement and
the transactions contemplated hereby.
6. REPRESENTATIONS, WARRANTIES AND ACKNAWLEDREMENT OF ▇▇▇▇▇▇▇▇▇
AND OTHER PARTNERS.
(a) ▇▇▇▇▇▇▇▇▇ and the Other Partners hereby jointly and
severally represent and warrant to Seller that ▇▇▇▇▇▇▇▇▇ has taken all limited
partnership action required for it to execute, deliver and perform its
obligations under this Agreement and this Agreement constitutes the valid and
binding obligation of ▇▇▇▇▇▇▇▇▇, enforceable in accordance with its terms,
subject to the laws affecting creditors' rights and equitable remedies.
(b) ▇▇▇▇▇▇▇▇▇ hereby represents and warrants to Seller
that:
(i) As of the execution of this Agreement,
▇▇▇▇▇▇▇▇▇ is Solvent and, upon the Closing of the transactions contemplated
hereunder (including the contributions or loans to be provided by the Other
Partners to ▇▇▇▇▇▇▇▇▇ to fund payment of the Purchase Price), ▇▇▇▇▇▇▇▇▇ will be
Solvent. For purposes hereof, "SOLVENT" means that (A) the aggregate fair
saleable value of ▇▇▇▇▇▇▇▇▇'▇ assets exceeds its liabilities (whether
contingent, subordinated, unmatured, unliquidated or otherwise), (B) ▇▇▇▇▇▇▇▇▇
has sufficient cash flow to enable it to pay its debts as they mature and (C)
▇▇▇▇▇▇▇▇▇ does not have unreasonably small capital to conduct its business.
(ii) ▇▇▇▇▇▇▇▇▇ is not subject to or bound by any
agreement, judgment, order or decree of any court or governmental agency which
prevents the execution and delivery of this Agreement by it and its consummation
of the transactions contemplated hereunder, except for the consent of M&T
required under the M&T Financing Documents (the "M& T CONSENT").
(iii) ▇▇▇▇▇▇▇▇▇ is not a party to any agreement
that contemplates the sale or issuance of Partnership Units in ▇▇▇▇▇▇▇▇▇, the
sale of the Genesee Units or to otherwise sell ▇▇▇▇▇▇▇▇▇ or any of its assets,
and it has not in the past twelve (12) months received any offers or expressions
of interest to purchase such units or property and is not aware of anyone
interested in making such any such offers to purchase.
(iv) No agent, broker, investment banker,
consultant, representative or other person acting on behalf of ▇▇▇▇▇▇▇▇▇ or
under the authority of ▇▇▇▇▇▇▇▇▇ is or shall be entitled to any commission,
broker's or finder's fee or any other form of compensation or payment from
▇▇▇▇▇▇▇▇▇ relating to this Agreement or
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the transactions contemplated hereby other than the attorneys, accountants and
tax or financial advisors of ▇▇▇▇▇▇▇▇▇ in connection with this Agreement and the
transactions contemplated hereby.
(c) Spall Natapow hereby represents and warrants to
Seller as follows:
(i) Spall Natapow continues to hold all of its
Partnership Units in ▇▇▇▇▇▇▇▇▇, and no other party has any right or interest
therein and it, Natapow Realty and Spall are the only partners of ▇▇▇▇▇▇▇▇▇
other than Seller.
(ii) Spall Natapow is not subject to or bound by
any agreement, judgment, order or decree of any court or governmental agency
which prevents the execution and delivery of this Agreement by it and its
consummation of the transactions contemplated hereunder.
(iii) Spall Natapow has taken all actions required
for it to execute, deliver and perform its obligations under this Agreement and
this Agreement constitutes the valid and binding obligation of Spall Natapow,
enforceable in accordance with its terms, subject to the laws affecting
creditors' rights and equitable remedies.
(iv) Spall Natapow is not a party to any
agreement that contemplates the sale of its Partnership Units in ▇▇▇▇▇▇▇▇▇ or
the Genesee Units or to sell ▇▇▇▇▇▇▇▇▇ or any of its assets, and it has not in
the past twelve (12) months received any offers or expressions of interest to
purchase such Units or property and is not aware of anyone interested in making
such any such offers to purchase.
(v) No agent, broker, investment banker,
consultant, representative or other person acting on behalf of Spall Natapow or
under the authority of Spall Natapow is or shall be entitled to any commission,
broker's or finder's fee or any other form of compensation or payment from Spall
Natapow relating to this Agreement or the transactions contemplated hereby other
than the attorneys, accountants and tax or financial advisors of the Other
Partners in connection with this Agreement and the transactions contemplated
hereby.
(vi) Spall Natapow has available to it, either
through accounts maintained at financial institutions or existing credit
facilities, sufficient funds to make its Financing Contribution (as defined in
Section 7(a)(i)) prior to the Closing Date.
(d) Natapow Realty hereby represents and warrants to
Seller as follows:
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(i) Natapow Realty continues to hold all of its
Partnership Units in ▇▇▇▇▇▇▇▇▇, and no other party has any right or interest
therein and it, Spall Natapow and Spall are the only partners of ▇▇▇▇▇▇▇▇▇ other
than Seller.
(ii) Natapow Realty is not subject to or bound by
any agreement, judgment, order or decree of any court or governmental agency
which prevents the execution and delivery of this Agreement by it and its
consummation of the transactions contemplated hereunder.
(iii) Natapow Realty has taken all corporate
action required for it to execute, deliver and perform its obligations under
this Agreement and this Agreement constitutes the valid and binding obligation
of Natapow Realty, enforceable in accordance with its terms, subject to the laws
affecting creditors' rights and equitable remedies.
(iv) Natapow Realty is not a party to any
agreement that contemplates the sale of its Partnership Units in ▇▇▇▇▇▇▇▇▇ or
the Genesee Units or to sell ▇▇▇▇▇▇▇▇▇ or any of its assets, and it has not in
the past twelve (12) months received any offers or expressions of interest to
purchase such units or property and is not aware of anyone interested in making
such any such offers to purchase.
(v) No agent, broker, investment banker,
consultant, representative or other person acting on behalf of Natapow Realty or
under the authority of Natapow Realty is or shall be entitled to any commission,
broker's or finder's fee or any other form of compensation or payment from
Natapow Realty relating to this Agreement or the transactions contemplated
hereby other than the attorneys, accountants and tax or financial advisors of
▇▇▇▇▇▇▇▇▇ and the Other Partners in connection with this Agreement and the
transactions contemplated hereby.
(vi) Natapow realty has available to it, either
through accounts maintained at financial institutions or existing credit
facilities, sufficient funds to make its Financing Contribution (as defined in
Section 7(a)(i)) prior to the Closing Date.
(e) Spall hereby represents and warrants to Seller as
follows:
(i) He continues to hold all of his Partnership
Units in ▇▇▇▇▇▇▇▇▇, and no other party has any right or interest therein and he,
Spall Natapow and Natapow Realty are the only partners of ▇▇▇▇▇▇▇▇▇ other than
Seller.
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(ii) Spall is not subject to or bound by any
agreement, judgment, order or decree of any court or governmental agency which
prevents the execution and delivery of this Agreement by him and his
consummation of the transactions contemplated hereunder.
(iii) Spall has the full capacity to enter into
this Agreement and carry out the terms hereof and this Agreement constitutes his
valid and binding obligation, enforceable in accordance with its terms, subject
to the laws affecting creditors' rights and equitable remedies.
(iv) Spall is not a party to any agreement that
contemplates the sale of his Partnership Units in ▇▇▇▇▇▇▇▇▇ or the Genesee Units
onto sell ▇▇▇▇▇▇▇▇▇ or any of its assets, and he has not in the past twelve (12)
months received any offers or expressions of interest to purchase such units or
property and is not aware of anyone interested in making such any such offers to
purchase.
(v) No agent, broker, investment banker,
consultant, representative or other person acting on behalf of Spall or under
the authority of Spall is or shall be entitled to any commission, broker's or
finder's fee or any other form of compensation or payment from Spall relating to
this Agreement or the transactions contemplated hereby other than the attorneys,
accountants and tax or financial advisors of the Other Partners in connection
with this Agreement and the transactions contemplated hereby.
(vi) Spall has available to him, either through
accounts maintained at financial institutions or existing credit facilities,
sufficient funds to make his Financing Contribution (as defined in Section
7(a)(i)) prior to the Closing Date.
(f) ▇▇▇▇▇▇▇▇▇ and the Other Partners acknowledge that
Seller makes no representations or warranties of any kind, whether express or
implied, other than as set forth in Section 5.
7. OTHER PARTNERS AND SELLER'S COVENANTS.
(a) The Other Partners hereby jointly and severally
covenant that they shall:
(i) Take all actions necessary to make the
required equity contributions or loans to ▇▇▇▇▇▇▇▇▇ necessary to fully fund the
payment at Closing of the Purchase Price by ▇▇▇▇▇▇▇▇▇ in immediately available
funds (the "FINANCING CONTRIBUTION
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(ii) Use their best efforts to obtain as soon as
practical from the date hereof the Consent and release of Seller from any and
all liabilities or obligations which Seller may have with respect to the
Financing Documents.
(iii) Take all actions necessary to cause
▇▇▇▇▇▇▇▇▇ to fulfill its obligations hereunder.
(iv) Pay any transfer fee, release fee,
prepayment penalty or any other fee, cost or monies which is due or may become
due as a result of the transactions contemplated under this Agreement and/or the
M&T Consent.
(b) Seller hereby convenants that it shall pay at Closing
any New York State real property transfer tax which is due or may become due as
a result of the transactions contemplated under this Agreement.
8. CONDITIONS TO CLOSING.
(a) The obligations of ▇▇▇▇▇▇▇▇▇ to proceed with the
Closing are subject to the satisfaction at or prior to the Closing of all of the
following conditions:
(i) Seller shall have complied in all material
respects with its covenants and agreements contained herein, including the
deliveries it is required to make at Closing.
(ii) Seller's representations and warranties
contained herein, or in any exhibits, certificate or similar instrument required
to be delivered by or on behalf of Seller pursuant hereto shall be true and
correct in all material respects on and as of the Closing, with the same effect
as though made at such time.
(iii) The M&T Consent shall have been obtained and
be in full force and effect.
(iv) No order, writ, injunction or decree shall
have been entered and be in effect by any court of competent jurisdiction or any
governmental or regulatory instrumentality or authority, and no statute, rule,
regulation or other requirement shall have been promulgated or enacted and be in
effect, that restrains, enjoins or invalidates the transactions contemplated
hereby.
(v) No suit or other proceeding shall be pending
or threatened by any third party before any court or governmental agency seeking
to restrain or prohibit or declare illegal, or seeking substantial damages in
connection with, the transactions contemplated by this Agreement.
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(vi) Seller shall have provided to ▇▇▇▇▇▇▇▇▇, at
Seller's expense, New York State and Monroe County UCC searches against Seller,
showing no liens against the Genesee Units, and bankruptcy and tax lien searches
against Seller, showing no tax liens against Seller or the Genesee Units and
that Seller has not been declared bankrupt.
(vii) The Membership Interest Purchase Agreement
shall be executed, and all conditions to Crossroads' obligation to close the
Membership Interest Purchase Agreement shall have been satisfied or waived by
Crossroads.
(b) The obligations of Seller to proceed with the Closing
are subject to the satisfaction at or prior to the Closing of all of the
following conditions:
(i) ▇▇▇▇▇▇▇▇▇ and the Other Partners shall have
complied in all material respects with its covenants and agreements contained
herein, including the deliveries they are required to make at Closing.
(ii) The representations and warranties contained
herein, or in any exhibits, certificate or similar instrument required to be
delivered by or on behalf of each of ▇▇▇▇▇▇▇▇▇ and the Other Partners pursuant
hereto shall be true and correct in all material respects on and as of the
Closing Date, with the same effect as though made at such time.
(iii) M&T shall have executed and delivered the
M&T Consent and shall have provided Seller with a complete release of Seller
from any liability it may have with respect to the M&T Financing Documents in
form and substance satisfactory to Seller, and a copy of both the M&T Consent
and release shall have been delivered to Seller.
(iv) No order, writ, injunction or decree shall
have been entered against ▇▇▇▇▇▇▇▇▇ or Seller and be in effect by any court of
competent jurisdiction or any governmental or regulatory instrumentality or
authority, and no statute, rule, regulation or other requirement shall have been
promulgated or enacted and be in effect, that restrains, enjoins or invalidates
the transactions contemplated hereby.
(v) No suit or other proceeding shall be pending
or threatened against ▇▇▇▇▇▇▇▇▇ or Seller by any third party before any court or
governmental agency seeking to restrain or prohibit or declare illegal, or
seeking substantial damages in connection with, the transactions contemplated by
this Agreement.
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(vi) ▇▇▇▇▇▇▇▇▇ shall provide a legal opinion from
its counsel, in form satisfactory to Seller and Seller's counsel, concerning the
transactions contemplated hereunder.
(vii) The Other Partners shall provide a letter to
Seller in the form annexed hereto as EXHIBIT C.
(viii) The Membership Interest Purchase Agreement
shall be executed, and all conditions to Genesee Ventures' obligation to close
the Membership Interest Purchase Agreement shall have been satisfied or waived
by Genesee Ventures.
9. INDEMNIFICATION.
(a) Following the Closing, ▇▇▇▇▇▇▇▇▇ shall indemnify,
defend and hold harmless Genesee Corporation, Genesee Ventures, Inc. and Seller,
and their directors, officers, employees and representatives (collectively,
"Seller's Indemnitees"), from and against any and all actual or threatened
losses, claims, demands, damages, awards, liabilities, obligations, judgments,
settlements, fines, penalties, interest, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) (a "Loss") related to or
arising from (i) any inaccuracy or breach of any representation or warranty of
▇▇▇▇▇▇▇▇▇ or the Other Partners set forth in this Agreement or any exhibit
hereto; (ii) any breach of a covenant of ▇▇▇▇▇▇▇▇▇ or any Other Partner set
forth in this Agreement or any exhibit hereto; or (iii) any and all liability
for any debts or other obligations of ▇▇▇▇▇▇▇▇▇, to the extent that they arise
from, relate to or are in connection with ▇▇▇▇▇▇▇▇▇ (except for the express
representations and warranties made by Seller herein), including, but not
limited to, the M&T Financing Documents, the Limited Partnership Agreement or
the business, operations or assets of ▇▇▇▇▇▇▇▇▇, whether occurring at any time
prior to, at or after the Closing, whether known or suspected or unknown or
unsuspected. In the event any Seller's Indemnitees are entitled to
indemnification under this Section 9(a), ▇▇▇▇▇▇▇▇▇ will pay the amount due for
such Loss promptly, but in no event more than five days after demand therefor by
the Seller Indemnitee entitled thereto.
(b) Following the Closing, Spall Natapow shall indemnify,
defend and hold harmless Seller's Indemnitees, from and against a Loss related
to or arising from (i) any inaccuracy or breach of any representation or
warranty of Spall Natapow set forth in this Agreement or any exhibit hereto; and
(ii) any breach of a covenant of Spall Natapow set forth in this Agreement or
any exhibit hereto. In the event any Seller's Indemnitees are entitled to
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indemnification under this Section 9(b), Spall Natapow will pay the amount due
for such Loss promptly, but in no event more than five days after demand
therefor by the Seller Indemnitee entitled thereto.
(c) Following the Closing, Natapow Realty shall
indemnify, defend and hold harmless Seller's Indemnitees, from and against a
Loss related to or arising from (i) any inaccuracy or breach of any
representation or warranty of Natapow Realty set forth in this Agreement or any
exhibit hereto; and (ii) any breach of a covenant of Natapow Realty set forth in
this Agreement or any exhibit hereto. In the event any Seller's Indemnitees are
entitled to indemnification under this Section 9(c), Natapow Realty will pay the
amount due for such Loss promptly, but in no event more than five (5) days after
demand therefor by the Seller Indemnitee entitled thereto.
(d) Following the Closing, Spall shall indemnify, defend
and hold harmless Seller's Indemnitees, from and against a Loss related to or
arising from (i) any inaccuracy or breach of any representation or warranty of
Spall set forth in this Agreement or any exhibit hereto; and (ii) any breach of
a covenant of Spall set forth in this Agreement or any exhibit hereto. In the
event any Seller's Indemnitees are entitled to indemnification under this
Section 9(d), Spall will pay the amount due for such Loss promptly, but in no
event more than five (5) days after demand therefor by the Seller Indemnitee
entitled thereto.
10. TERMINATION OF AGREEMENT. This Agreement may be terminated:
(a) At the request of Seller if the Closing does not
occur by September 13, 2002;
(b) At the request of the other Partners if the Closing
does not occur by the one hundred eightieth (180& day from the date of execution
of this Agreement;
(c) By Seller, in the event of a breach of any
representation, warranty or covenant of ▇▇▇▇▇▇▇▇▇ or any Other Partner under
this Agreement or any exhibit hereto if such breach is not cured within ten (10)
days after being given written notice thereof by Seller; or
(d) By ▇▇▇▇▇▇▇▇▇, in the event of a breach of any
representation or warranty of Seller under this Agreement or any exhibit hereto
if such breach is not cured within ten (10) days after being given written
notice thereof by ▇▇▇▇▇▇▇▇▇.
Termination of this Agreement shall terminate all of the
parties' obligations hereunder, except for any breaches with have occurred prior
to the date of termination. All such breaches shall survive any such termination
and the breaching party shall remain fully liable therefor.
11. MISCELLANEOUS.
Page 80 of 95
(a) This Agreement, together with the exhibits hereto to
be executed, when delivered:
(i) shall constitute the entire agreement
between the parties hereto and supersedes all prior agreements, written or oral,
concerning the subject matter hereof (including, but not limited to, the Limited
Partnership Agreement), and there are no oral understandings, statements or
stipulations bearing upon the effect of this Agreement which have not been
incorporated herein.
(ii) may be modified or amended only by a written
instrument signed by each of the parties hereto.
(iii) shall bind and inure to the benefit of the
parties hereto and their respective heirs, successors and permitted assigns.
(iv) shall be construed in accordance with and
governed by the laws of the State of New York without reference to conflict of
laws principles.
(v) may not be assigned by either party without
a written agreement signed by all parties hereto. Any assignment not signed by
all parties is null and void.
(b) The representations and warranties set forth in
Sections 5 and 6 shall survive the Closing.
(c) Any litigation involving this Agreement shall be
adjudicated in a court with jurisdiction located in Monroe County, New York and
the parties irrevocably consent to the personal jurisdiction and venue of such
court.
(d) If any provision of this Agreement shall be held
invalid or unenforceable by competent authority, such provision shall be
construed so as to be limited or reduced to be enforceable to the maximum extent
compatible with the law as it shall then appear. The total invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the other provisions hereof and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
(e) This Agreement may be executed simultaneously in one
or more counterparts, each one of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(f) Any notice required or permitted to be given under
this Agreement shall be in writing and shall be delivered personally or sent by
certified or registered United States mail, postage prepaid, or sent by
nationally recognized overnight express courier and addressed as follows:
Page 81 of 95
If to Seller:
Genesee Syracuse Properties, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention:
With copies to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Forth, Esq.
If to ▇▇▇▇▇▇▇▇▇, to:
▇▇▇▇▇▇▇▇▇ 1993 Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Partner
with a copy to:
Boylan, Brown, Code, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to a Other Partner, to the address set forth
above.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Page 82 of 95
IN WITNESS WHEREOF, each of the parties have duly executed this
Agreement on the date first written above.
SELLER: GENESEE SYRACUSE PROPERTIES, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
PURCHASER: ▇▇▇▇▇▇▇▇▇ 1993 LIMITED PARTNERSHIP
SPALL NATAPOW VENTURES LTD.,
MANAGING GENERAL PARTNER
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
OTHER PARTNERS: SPALL NATAPOW VENTURES LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
NATAPOW REALTY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
EXHIBITS
EXHIBIT A - Assignment
EXHIBIT B - Release Agreement
EXHIBIT C - Resale Letter