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EXHIBIT 10-26
TRANSFER AGREEMENT
This AGREEMENT is made as of the 31st day of May, 2002, by and between
GENESEE VENTURES, INC., a New York corporation, with an office at 00 Xxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("Seller") and HOME LEASING
CORPORATION, a New York corporation with an office at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000, XXXXXX XXXXXXXXX, an individual having an office
address of 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 and XXXXXX X.
XXXXXXXXX, an individual having an office address of 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (collectively "Buyer").
WHEREAS, Seller is the holder of that certain Amended and Restated Note A
dated February 17, 1999 in the original principal amount of $2,877,510.16 made
by Clinton Broad Street Associates, L.P. in favor of Seller ("Note A");
WHEREAS, Seller owns a one half of one percent (.5%) general partnership
interest in Clinton Asset Holding Associates, L.P., a New York limited liability
company ("CAHA") through its wholly-owned subsidiary Genesee Rochester
Properties II, Inc., a New York corporation ("GRP II");
WHEREAS, Seller owns a four and one half of one percent (4.5%) limited
partnership interest (the "CAHA LP Interest") in CAHA through its wholly-owned
subsidiary Genesee Rochester Properties, Inc., a New York corporation ("GRP");
WHEREAS, Clinton Broad Street Associates, L.P., a New York limited
partnership ("CBSA") owns a fifty percent (50%) limited partnership is CAHA;
WHEREAS, Seller owns a one percent (1%) general partnership interest in
CBSA through its wholly-owned subsidiary GRP;
WHEREAS, Seller owns a nine percent (9%) limited partnership interest (the
"CBSA LP Interest") in CBSA through its wholly-owned subsidiary GRP;
WHEREAS, Seller is one of the beneficiaries of that certain Guarantee Fee
Agreement (the "Guarantee Fee Agreement") made as of September 25, 1997 among
Genesee Corporation, Xxxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx,
Xxxxxxx Square Builders, L.P., Xxxxxxxxx Columbus Venture, CSB Limited
Partnership, Home Leasing Corporation ("Home Leasing") and Clinton Broad Street
Associates, L.P.;
WHEREAS, Genesee Corporation, a New York corporation ("Genesee") executed
and delivered to The Chase Manhattan Bank, N.A. ("Chase") its corporate limited
guarantee (the "Gap Loan Guarantee"), which was limited in amount to $2,750,000,
as an inducement to make a term loan to CBSA in the amount of $5,500,000 (the
"Gap Loan") as part of the restructuring of
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debt related to that certain fourteen story office building in Rochester, New
York and known as Clinton Square;
WHEREAS, Buyer desires to cause Seller to transfer all of its right, title
and interest in and to Note A and the Guarantee Fee Agreement (collectively, the
"Purchased Assets") to Home Leasing, and, subject to the further terms,
covenants and conditions of this Agreement, Seller is willing to convey the
Purchased Assets to Home Leasing;
WHEREAS, Buyer requires as a condition to the purchase of the Purchased
Assets that Seller cause (a) GRP to assign all of its right, title and interest
in and to the CAHA LP Interest to Xxxxxxxxx Ventures, a New York general
partnership ("Xxxxxxxxx Ventures") and (b) GRP to assign all of its right, title
and interest in and to the CBSA LP Interest to Xxxxxxxxx Ventures;
WHEREAS, as part consideration for the transactions contemplated by this
Agreement, Seller is willing to cause (a) GRPII to assign to CS Broad Street,
Inc., a New York corporation ("CS Broad Street") the economic interest it holds
as general partner of CAHA and (b) GRP to assign to 000 Xxxxx Xxxxxx, Inc., a
New York corporation ("200 Broad Street") the economic interest it holds as
general partner of CBSA;
WHEREAS, as part consideration for the transactions contemplated by this
Agreement, Seller is willing to cause (a) GRPII to give CS Broad Street a proxy
to vote its interests as general partner in CAHA and (b) GRP to give 000 Xxxxx
Xxxxxx a proxy to vote its interest as a general partner of CBSA;
WHEREAS, as part consideration for the transactions contemplated by this
Agreement, Buyer is willing to cause (a) CS Broad Street to assume all of the
economic obligations of GRPII as a general partner in CAHA and (b) 000 Xxxxx
Xxxxxx to assume all of the economic obligations of GRP as a general partner in
CBSA;
WHEREAS, as part consideration for the transactions contemplated by this
Agreement, Xxxxxx Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx and Home Leasing are willing to
(a) indemnify Genesee from and against any and all obligations under the Gap
Loan Guarantee and (b) indemnify GRP and GRP II from and against any and all
obligations as a general partner in either CAHA or CBSA.
NOW, THEREFORE, in consideration of one dollar ($1.00) and other good and
valuable consideration, the mutual receipt and sufficiency of which is hereby
acknowledged, each of Seller and Buyer hereby covenants and agrees as follows:
1. PURCHASE PRICE AND PAYMENT TERMS. The purchase price for the Purchased
Assets shall be Two Million Three Hundred Seventy Thousand and No/100 Dollars
($2,370,000.00) payable as follows:
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a. By a non-refundable cash deposit of $25,000.00 (the "Deposit"),
to be held by Seller pursuant to the terms of this Agreement, and to be applied
to the purchase price upon closing and transfer or returned to Buyer if this
transaction shall fail to close other than through the default of Buyer.
b. By Buyer paying the balance of the purchase price, as adjusted
pursuant to Paragraph 3 of this Agreement, in United States funds by certified
check or wire transfer to an account designated by Seller at Closing (as
hereinafter defined).
2. CLOSING. The closing of the transaction contemplated hereby ("Closing")
shall take place at 10:00a.m. on May 31, 2001 (the "Closing Date"), WITH TIME
BEING OF THE ESSENCE, at the offices of Boylan, Brown, Code, Xxxxxx & Xxxxxx,
LLP, 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000.
3. CLOSING ADJUSTMENTS. There shall be prorated and adjusted between
Seller and Buyer any and all amounts due and payable under the Guarantee Fee
Agreement as of the Closing Date.
4. SELLER DOCUMENTS. At Closing, the Seller shall deliver to Buyer the
following instruments:
a. Original Note A;
b. Allonge to Note A in the form attached hereto as Exhibit A and
made a part hereof executed by Seller ("Allonge");
c. Assignment and Assumption of CAHA LP Interest in the form
attached hereto as Exhibit B and made a part hereof executed by GRP, in its
capacity as a limited partner, and GRP II, in its capacity as a general partner
together with the original certificates evidencing the CAHA LP Interest endorsed
to Xxxxxxxxx Ventures without recourse representation or warranty by GRP;
d. Assignment and Assumption Agreement relative to Seller's economic
interest in CAHA as a general partner in the form attached hereto as Exhibit C
and made a part hereof executed by GRP II;
e. Assignment and Assumption of CBSA LP Interest in the form
attached hereto as Exhibit D and made a part hereof, executed by GRP in its
capacities as a limited partner and general partner together with the original
certificates evidencing the CBSA LP Interest endorsed to Xxxxxxxxx Ventures
without recourse, representation or warranty by GRP;
f. Assignment and Assumption Agreement relative to Seller's economic
interest in CBSA as a general partner in the form attached hereto as Exhibit E
and made a part hereof, executed by GRP;
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g. Assignment and Assumption of Guarantee Fee Agreement in the form
attached hereto as Exhibit F and made a part hereof, executed by Genesee;
h. Termination of the Home Leasing Corporation Pledge and Security
Agreement (Relating to Note A) dated as of September 25, 1997 in the form
attached hereto as Exhibit H and made a part hereof, executed by Seller;
i. Termination of the CS Broad Street, Inc. Pledge and Security
Agreement (Relating to Note A) dated as of September 25, 1997 in the form
attached hereto as Exhibit I and made a part hereof, executed by Seller;
j. Assignment and Assumption of the Clinton Asset Holding
Associates, L.P. Pledge and Security Agreement (Relating to Note A) dated as of
September 25, 1997 in the form attached hereto as Exhibit J and made a part
hereof, executed by Seller;
k. Assignment and Assumption of the Clinton Broad Street Associates,
L.P. Pledge and Security Agreement (Relating to Note A) dated as of September
25, 1997 in the form attached hereto as Exhibit K and made a part hereof,
executed by Seller;
l. Assignment and Assumption of Guarantee (Note A) dated September
25, 1997 in the form attached hereto as Exhibit L and made a part hereof,
executed by Seller;
m. Conditional Assignment and Assumption of (i) that certain Clinton
Asset Holding Associates, L.P. Pledge and Security Agreement (Relating to
Guarantee Accommodations) dated as of September 25, 1997, (ii) that certain CS
Broad Street, Inc. Pledge and Security Agreement (relating to Guarantee
Accommodations) dated as of September 25, 1997, (iii) that certain Clinton Broad
Street Associates, L.P. Pledge and Security Agreement (Relating to Guarantee
Accommodations) dated as of September 25, 1997; and (iv) that certain Guarantee
Contribution and Indemnification Agreement dated as of September 25, 1997, in
the form attached hereto as Exhibit M and made a part hereof, executed by
Genesee;
n. Assignment and Assumption of that certain Loan Agreement and Loan
Assumption Agreement dated as of September 25, 1997 by and between CBSA, Xxxxxx
X. Xxxxxxxxx, Xxxxxx Xxxxxxxxx and Seller, in the form attached hereto as
Exhibit N and made a part hereof, executed by Seller;
o. Termination of that certain Loan Participation Agreement dated as
of September 25, 1977 by and between Seller and Xxxxxx Xxxxxxxxx and Xxxxxx X.
Xxxxxxxxx in the form attached hereto as Exhibit O and made a part hereof,
executed by Seller;
p. Any and all UCC-3 termination and/or assignment statements
necessary to effectuate the transactions contemplated by this Agreement;
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q. Assignment and Assumption of the Acknowledgement and Waiver with
respect to Fiduciary Duties dated as of September 25, 1997 in the form attached
hereto as Exhibit P and made a part hereof, executed by Seller;
r. Proxy and Agreement relative to the general partner interest of
GRP II in CAHA in the form attached hereto as Exhibit Q and made a part hereof,
executed by GRP II; and
s. Proxy and Agreement relative to the general partner interest of
GRP in CBSA in the form attached hereto as Exhibit R and made a part hereof,
executed by GRP.
5. BUYER DOCUMENTS. At Closing, the Buyer shall deliver to Seller the
following instruments:
a. Assignment and Assumption of CAHA LP Interest in the form
attached hereto as Exhibit B and made a part hereof executed by Xxxxxxxxx
Ventures, as assignee, and 000 Xxxxx Xxxxxx, Inc., a New York corporation, in
its capacity as a general partner;
b. Assignment and Assumption Agreement in the form attached hereto
as Exhibit C and made a part hereof executed by CS Broad Street, Inc., a New
York corporation, as assignee and in its capacity as managing general partner of
CAHA;
c. Assignment and Assumption of CBSA LP Interest in the form
attached hereto as Exhibit D and made a part hereof, executed by Xxxxxxxxx
Ventures, as assignee, and 000 Xxxxx Xxxxxx, Inc., a New York corporation, in
its capacity as a general partner;
d. Assignment and Assumption Agreement in the form attached hereto
as Exhibit E and made a part hereof, executed by 000 Xxxxx Xxxxxx, Inc., a New
York corporation, as assignee and in its capacity as managing general partner of
CBSA;
e. Assignment and Assumption of Guarantee Fee Agreement in the form
attached hereto as Exhibit F and made a part hereof, executed by Home Leasing,
Xxxxxx Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx;
f. Indemnification Agreement in the form attached hereto as Exhibit
G and made a part hereof, executed by Buyers and Home Leasing;
g. Assignment and Assumption Agreement of the Clinton Asset Holding
Associates, L.P. Pledge and Security Agreement (Relating to Note A) dated as of
September 25, 1997 in the form attached hereto as Exhibit J and made a part
hereof, executed by Buyer;
h. Assignment and Assumption of the Clinton Broad Street Associates,
L.P. Pledge and Security Agreement (Relating to Note A) dated as of September
25, 1997 in the form attached hereto as Exhibit K and made a part hereof,
executed by Home Leasing;
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i. Assignment and Assumption of Guarantee (Note A) dated September
25, 1997 in the form attached hereto as Exhibit L and made a part hereof,
executed by Home Leasing;
j. Conditional Assignment and Assumption of (i) that certain Clinton
Asset Holding Associates, L.P. Pledge and Security Agreement (Relating to
Guarantee Accommodations) dated as of September 25, 1997, (ii) that certain CS
Broad Street, Inc. Pledge and Security Agreement (relating to Guarantee
Accommodations) dated as of September 25, 1997, (iii) that certain Clinton Broad
Street Associates, L.P. Pledge and Security Agreement (Relating to Guarantee
Accommodations) dated as of September 25, 1997; and (iv) that certain Guarantee
Contribution and Indemnification Agreement dated as of September 25, 1997, in
the form attached hereto as Exhibit M and made a part hereof, executed by Home
Leasing;
k. Assignment and Assumption of that certain Loan Agreement and Loan
Assumption Agreement dated as of September 25, 1997 by and between CBSA, Xxxxxx
X. Xxxxxxxxx, Xxxxxx Xxxxxxxxx and Seller, in the form attached hereto as
Exhibit N and made a part hereof, executed by Home Leasing;
l. Assignment and Assumption of the Acknowledgement and Waiver with
respect to Fiduciary Duties dated as of September 25, 1997 in the form attached
hereto as Exhibit P and made a part hereof, executed by Xxxxxx Xxxxxxxxx and
Xxxxxx X. Xxxxxxxxx; and
m. Any and all third-party consents which Buyer deems necessary to
accomplish the intent of this Agreement, including, but not limited to, the
consents of The Chase Manhattan Bank, N.A. and Xxxxxx, Xxxxxxx Mortgage Capital,
Inc., or their successors and/or assigns;
n. Proxy and Agreement relative to the general partner interest of
GRP II in CAHA in the form attached hereto as Exhibit Q and made a part hereof,
executed by CS Broad Street; and
o. Proxy and Agreement relative to the general partner interest of
GRP in CBSA in the form attached hereto as Exhibit R and made a part hereof,
executed by 000 Xxxxx Xxxxxx.
6. MISCELLANEOUS.
a. Headings in this Agreement are for convenience of reference only
and in no way define, limit or describe the scope of this Agreement and shall
not be used to interpret or construe this Agreement or any of its provisions.
b. This Agreement is intended for the exclusive benefit of the
parties hereto and shall not be for the benefit of, and shall not create any
rights in, or be enforceable by, any other person or entity.
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c. All prior understandings, agreements, representations and
warranties, oral or written, between Seller and Buyer are merged in this
Agreement which Agreement completely expresses their full agreement and has been
entered into after full investigation, neither party relying upon any statement
made by anyone else that is not set forth in this Agreement.
d. This Agreement shall be interpreted and construed according to
its fair meaning and neither for nor against any party hereto irrespective of
which party caused the same to be drafted. Each of the parties acknowledges that
it has been or has had the opportunity to be represented by an attorney in
connection with the preparation and execution of this Agreement.
e. This Agreement shall be interpreted, construed and enforced in
accordance with and governed by the internal laws of the State of New York
without reference to the principles of conflicts of laws.
f. This Agreement may not be modified, amended or terminated nor may
any of its provisions be waived except by an agreement in writing signed by the
party against whom enforcement of any such modification, amendment, termination
or waiver is sought, and then such modification, amendment, termination or
waiver shall be effective only in the specific instance and for the specific
purpose for which given.
g. Subject to the terms and conditions hereof, the covenants,
agreements, terms, provisions and conditions contained in this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective distributees, heirs, legal representatives, successors and assigns
except that neither party may assign its rights hereunder or any interest
herein, directly or indirectly, by operation of law or otherwise, without the
prior written consent of the other party hereto.
h. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute but one and the same instrument and shall be binding upon each of the
undersigned as fully and completely as if all had signed the same instrument.
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i. Notwithstanding anything to the contrary contained herein, Seller
shall have no obligations under this Agreement unless and until Seller shall
obtain the consent of the Board of Directors of Genesee to this Agreement and
the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
Seller:
GENESEE VENTURES, INC.,
a New York corporation
By: /s/ Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx, Secretary
Buyer:
HOME LEASING CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------
Name:
Title:
/s/ Xxxxxx Xxxxxxxxx
--------------------------------
XXXXXX XXXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
XXXXXX X. XXXXXXXXX
