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EXHIBIT 10-22
RELEASE AND TERMINATION AGREEMENT
This RELEASE AND TERMINATION AGREEMENT ("Agreement") is effective as of
September 16, 2002 by and among GENESEE VENTURES, INC. ("GENESEE"), a New York
corporation having an office at 00 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx
Xxxx 00000, CROSSROADS SPENCERPORT LLC, a New York limited liability company
having an office at 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000
("CROSSROADS"), NATAPOW REALTY CORPORATION ("NATAPOW"), having an office at 000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000, and XXXXXXXX X. XXXXX,
XX. ("SPALL"), having an address of 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000.
RECITALS:
WHEREAS, Pursuant to a Membership Interest Purchase Agreement (the
"MEMBERSHIP INTEREST PURCHASE AGREEMENT") executed on September 16, 2002,
Genesee is selling the Genesee Units (as defined therein) and Crossroads is
purchasing the Genesee Units;
WHEREAS, Natapow and Spall (the "OTHER MEMBERS") each own 50 of
Crossroads' membership units and are the only members of Crossroads other than
Genesee;
WHEREAS, Genesee, Crossroads, and the Other Members executed an
Operating Agreement (the "OPERATING AGREEMENT") effective as of May 31, 1995;
WHEREAS, Crossroads was indebted to Amresco Capital Corporation
("AMRESCO") pursuant to a mortgage note dated February 10, 1997 in the original
principal amount of $3,500,000, and Crossroads, Genesee and the Other Members
executed certain other agreements, instruments and documents in connection
therewith, including but not limited to a Multifamily Note, Addendum to
Multifamily Note, Second Addendum to Multifamily Note, Multifamily Mortgage,
Assignment of Rents and Security Agreement, Rider to Multifamily Instrument,
Second Rider to Multifamily Instrument, and Consolidation, Extension and
Modification Agreement (the "AMRESCO FINANCIAL DOCUMENTS");
WHEREAS, Lend Lease Mortgage Capital Corporation has purchased, been
assigned and/or assumed the Amresco Financial Documents and all rights and
obligations thereunder;
WHEREAS, Genesee, Crossroads and the Other Members are parties to a
Cross Indemnification Agreement effective as of February 10, 1997 (the "CROSS
INDEMNIFICATION AGREEMENT"), whereby Genesee and the Other Members have agreed
to certain indemnification obligations relating to the Amresco Financial
Documents; and
WHEREAS, it is a condition to Closing of the transaction contemplated
under the Membership Interest Purchase Agreement that Crossroads and the Other
Members execute and deliver this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. TERMINATION OF GENESEE AS A PARTY TO CROSS-INDEMNIFICATION
AGREEMENT. Crossroads and the Other Members hereby terminate, release and
discharge Genesee as a party to the Cross-Indemnification Agreement and from its
obligations and interest in or to the Cross-Indemnification Agreement and agree
that, as a result thereof, the Cross-Indemnification Agreement is without force
or effect with respect to Genesee and is no longer binding upon Genesee.
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2. RELEASE. Crossroads and the Other Members each hereby release,
waive and discharge Genesee Corporation, Genesee and their respective directors,
officers, employees and representatives from any and all claims, actions, causes
of actions or suits, at law or in equity related to, or arising or resulting
from any and all liability for any debts or other obligations of Crossroads
arising from, related to or in connection with Crossroads (except for the
express representations and warranties made by Genesee herein or in the
Membership Interest Purchase Agreement), including, but not limited to, the
Amresco Financing Documents, the Operating Agreement and the business,
operations and assets of Crossroads, which each now has or hereafter can, shall
or may have, whether known or suspected or unknown or unsuspected, by reason of
any matter, cause or thing whatsoever from the beginning of time.
3. COVENANT NOT-TO-XXX. Crossroads and the Other Members agree
not to commence or pursue in any federal, state or other court or governmental
or regulatory authority or in any arbitration or dispute resolution proceeding
(collectively, "PROCEEDINGS") against Genesee Corporation or Genesee or any of
their respective officers, directors, employees or representatives, directly or
indirectly, any of the claims or other matters herein released and not to assert
any affirmative defense in any Proceedings involving any such parties which
defense is based on facts that would otherwise support claims or matters
released hereunder.
4. MISCELLANEOUS. This Agreement shall be governed by and
enforced in accordance with the internal laws of the State of New York, without
giving affect to the conflicts of laws principles thereof. Wherever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective or valid under applicable law and if any provision herein is found by
a court to be invalid under law on a final and non-appealable basis, then such
provision shall be stricken herefrom to the extent invalid, without invalidating
the remainder of this Agreement which shall remain in full force and effect. The
Membership Interest Purchase Agreement, and exhibits thereto, and this Agreement
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and this Assignment cannot be modified or altered in any
way without the written consent of all parties hereto. Each of the parties
hereto hereby represents and warrants that it or he is fully authorized and has
full authority to enter into and observe its or his obligations under this
Agreement. Each of the parties hereto hereby represents and warrants to the
other that this Agreement constitutes its or his valid and binding agreement and
that it is enforceable against it or him in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the first date referred to above.
GENESEE VENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
CROSSROADS SPENCERPORT LLC
By: Natapow Realty Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
NATAPOW REALTY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
/s/ Xxxxxxxx X. Xxxxx, Xx.
-----------------------------------
Xxxxxxxx X. Xxxxx, Xx.
