Exhibit 10.4
[Letterhead of State of Michigan Retirement Systems]
517/373-0702
December 19, 1996
Home Properties of New York, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We are on this date, entering into a Partnership
Interest Purchase Agreement (the "Purchase Agreement")
whereby the undersigned agrees to acquire a Class A
Limited Partnership Interest (the "Class A Interest") in
Home Properties of New York, L.P. (the "Partnership").
Pursuant to Amendment No. 9 (the "Amendment") to the
Amended and Restated Agreement of Limited Partnership of
the Partnership (as amended, the "Partnership
Agreement"), the Class A Interest is convertible into
shares of common stock, par value $.01 per share ("HP
Shares"), of Home Properties of New York, Inc., the
general partner of the Partnership (the "General Partner").
As a condition and in consideration of the issuance of
the Class A Interest to the undersigned, the General Partner
has required that the undersigned agree to certain
restrictions on the sale of HP Shares by the undersigned
(and certain of its successors as described below) in the
event that the undersigned elects to convert all or any
portion of the Class A Interest into HP Shares.
The undersigned hereby acknowledges and agrees that prior
to the second year anniversary of the Closing Date (as
defined in the Purchase Agreement) (the "Lock-Up Date"),
any HP Shares that it may receive upon conversion of the
Class A Interest will not be registered under federal
or state securities laws and will therefore be subject
to certain transfer restrictions. Pursuant to the
Registration Rights Agreement, dated the date of this
letter, by and between the General Partner and the
undersigned, the undersigned has the right to require the
General Partner to register from and after the Lock-Up
Date, the HP Shares received upon conversion of the
Class A Interest.
Furthermore, the undersigned hereby agrees that upon
receipt of registered HP Shares or the registration of any
HP Shares in its possession, it will not sell, through the
means of any public stock exchange, such as the New York
Stock Exchange, more than 416,667 HP Shares during any 90
day period (the "Volume Limitation"). The Volume
Limitation shall expire on the fifth anniversary of the
Closing Date. The undersigned also agrees that it will
provide the General Partner with no less than five (5)
business days prior written notice before selling HP
Shares having a then current market value in excess of
2.5% of the Total Capitalization (as defined in the Purchase
Agreement) (the "Notice Requirement"). The Notice
Requirement shall continue after the expiration of the
Volume Limitation until such time as the then current
market value of the Class A Interest and the HP
Shares received on conversion of the Class A Interest
held by the undersigned shall be less than 2.5% of the
Total Capitalization.
Page 1
The undersigned acknowledges and agrees that the
Volume Limitation shall be binding on any purchaser who
acquires 20% or more of the Class A Interest originally
issued to the undersigned on the Closing Date, whether
such purchaser purchases the Class A Interest from the
undersigned or from a prior purchaser from the undersigned.
It is also understood and agreed that the Volume
Limitation shall be in the aggregate in that the
undersigned and any purchaser of 20% or more of the Class
A Interest shall together not sell more than 416,667 HP
Shares through the means of any public stock exchange in any
90 day period.
Prior to reflecting on its books and records, a transfer
of more than 20% of the Class A Interest to one person
or entity, the Partnership may require the purchaser
to acknowledge that the HP Shares that it may acquire
upon conversion shall be subject to the Volume Limitation.
Very truly yours,
STATE TREASURER OF THE STATE OF
MICHIGAN, CUSTODIAN OF THE MICHIGAN
PUBLIC SCHOOL EMPLOYEES' RETIREMENT
SYSTEM, STATE EMPLOYEES' RETIREMENT
SYSTEM, MICHIGAN STATE POLICE RETIREMENT
SYSTEM AND MICHIGAN JUDGES' RETIREMENT
SYSTEM
By: /s/ Xxxxxx X. Xxx Xxxxxx
Xxxxxx X. Xxx Xxxxxx, Administrator
STATE OF MICHIGAN )
COUNTY OF XXXXXX ) SS:
On this 23rd day of December, 1996, before me the
subscriber personally appeared Xxxxxx X. Xxx Xxxxxx, who
being by me duly sworn deposes and says that he
resides at Dowling, Michigan; that he is the
Administrator of the Mortgage and Real Estate Division
of the State Treasurer of the State of Michigan,
Custodian of the Michigan Public School Employees'
Retirement System, State Employees' Retirement
System, Michigan State Police Retirement System and
Michigan Judges' Retirement System and as such is
authorized to sign the within document on behalf of that
entity.
/s/ Xxxx Dell Xxxxx
Xxxx Dell Xxxxx, Notary Public
Xxxxx County, State of Michigan
My Commission Expires 2/18/97
Page 2
The undersigned hereby acknowledges receipt of and
agrees with the terms of the above letter.
HOME PROPERTIES OF NEW YORK, INC.
/s/ Xxx X. Xxxx
Xxx X. Xxxx
Executive Vice President
STATE OF NEW YORK)
COUNTY OF MONROE ) ss:
On this ____ day of December, 1996, before me the
subscriber personally appeared Xxx X. Xxxx, who being by
me duly sworn deposes and says that she resides in
Brighton, New York; that she is the Executive Vice
President of Home Properties of New York, Inc., the
corporation described in and which executed the above
acknowledgment and agreement and that she did so by order
of the Board of Directors of said corporation.
________________________________
Notary Public
Page 3
