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Partnership Interest Purchase Agreement

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Page 69 of 95


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 16 West Main Street, Suite 600, Rochester, New York 14614, WESTBROOK 1993 LIMITED PARTNERSHIP, a New York limited partnership having an office at 120 Corporate Woods, Suite 100, Rochester, New York 14623 ("WESTBROOK"), SPALL NATAPOW VENTURES LTD., having an office at 120 Corporate Woods, Suite 100, Rochester, New York 14623 ("SPALL NATAPOW"), NATAPOW REALTY CORPORATION, having an office at 120 Corporate Woods, Suite 100, Rochester, New York 14623 ("NATAPOW REALTY"), and THEODORE F. SPALL, JR., having an address of 30 Grove Street, Pittsford, New York 14534 ("SPALL").


R E C I T A L S:


A. Seller is both a general partner and a limited partner of Westbrook and is the owner of 1 general partnership Unit and 49 limited partnership Units (collectively, the "GENESEE UNITS") in Westbrook.


B. Spall Natapow Ventures Ltd., a general partner of Westbrook, Natapow Realty Corp., a limited partner of Westbrook, and Theodore F. Spall, Jr., a limited partner of Westbrook, are the only other partners of Westbrook other than Seller (collectively, the "OTHER PARTNERS").


C. Westbrook, 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.


D. Westbrook 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 Westbrook 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 Westbrook purchase the Genesee Units, and Seller is willing to sell to Westbrook 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 Westbrook, and Westbrook 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 Westbrook 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 Westbrook, and Genesee Ventures selling and transferring the Membership Units to Crossroads, Westbrook 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 Westbrook, 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 Westbrook pursuant to Section 706(c)(2) of the Code, as of the Closing. Westbrook 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 Westbrook may pay the Purchase Price; (iii) Westbrook shall pay the Purchase Price by wire transfer of immediately available funds to an account designated by Seller in writing to Westbrook; 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 WESTBROOK AND OTHER PARTNERS.


(a) Westbrook and the Other Partners hereby jointly and severally represent and warrant to Seller that Westbrook 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 Westbrook, enforceable in accordance with its terms, subject to the laws affecting creditors' rights and equitable remedies.


(b) Westbrook hereby represents and warrants to Seller that:


(i) As of the execution of this Agreement, Westbrook is Solvent and, upon the Closing of the transactions contemplated hereunder (including the contributions or loans to be provided by the Other Partners to Westbrook to fund payment of the Purchase Price), Westbrook will be Solvent. For purposes hereof, "SOLVENT" means that (A) the aggregate fair saleable value of Westbrook's assets exceeds its liabilities (whether contingent, subordinated, unmatured, unliquidated or otherwise), (B) Westbrook has sufficient cash flow to enable it to pay its debts as they mature and (C) Westbrook does not have unreasonably small capital to conduct its business.


(ii) Westbrook 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) Westbrook is not a party to any agreement that contemplates the sale or issuance of Partnership Units in Westbrook, the sale of the Genesee Units or to otherwise sell Westbrook 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 Westbrook or under the authority of Westbrook is or shall be entitled to any commission, broker's or finder's fee or any other form of compensation or payment from Westbrook relating to this Agreement or


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the transactions contemplated hereby other than the attorneys, accountants and tax or financial advisors of Westbrook 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 Westbrook, and no other party has any right or interest therein and it, Natapow Realty and Spall are the only partners of Westbrook 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
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