EXHIBIT 4.1
AMENDMENT TO PARTNERSHIP INTEREST PURCHASE AGREEMENT
AND
EXCHANGE AGREEMENT
This Amendment to Partnership Interest Purchase Agreement and Exchange
Agreement (the "Amendment") is made as of December 22, 1999 by and among
Home Properties of New York, L.P., a New York limited partnership (the
"Partnership"), Home Properties of New York, Inc., a Maryland corporation
(the "General Partner"), Home Properties Trust, a Maryland real estate
investment trust and wholly owned subsidiary of the General Partner (the
"Trust"), and the State Treasurer of the State of Michigan, Custodian of
Michigan Public School Employees' Retirement System, State Employees'
Retirement System, Michigan State Police Retirement System and Michigan
Judges' Retirement System (collectively, "SMRS") and amends, to the extent
set forth herein, and supplements the Partnership Interest Purchase
Agreement (the "Agreement"), dated as of December 23, 1996, among the
Partnership, the General Partner and SMRS, pursuant to which SMRS acquired
a Class A limited partnership interest (the "Class A Interest") in the
Partnership. Terms otherwise not defined in this Amendment shall have the
meanings ascribed to them in the Agreement.
WHEREAS, pursuant to the terms of the Agreement, SMRS purchased from
the Partnership for $35,000,000 the Class A Interest containing such
rights, preferences and terms as described in Amendment No. 9 to the
Partnership's Agreement of Limited Partnership.
WHEREAS, the Company and SMRS have determined to exchange SMRS'
Class A Interest for 1,666,667 shares of Series A Senior Convertible
Preferred Stock, par value $0.01 per share (the "Series A Preferred
Stock"), of the Company having the same rights, preferences and terms as
the Class A Interest as such are described in the Company's Articles
Supplementary relating to the Series A Preferred Stock and this Amendment;
WHEREAS, pursuant to the terms of this Amendment, SMRS has agreed to
contribute the Class A Interest to the Trust in exchange for 1,666,667
shares of Series A Preferred Stock;
WHEREAS, pursuant to the terms of the Articles Supplementary and this
Amendment, the Series A Preferred Stock shall be convertible, at the option
of the holder thereof, into shares of common stock, par value $0.01 per
share, of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Amendment, SMRS, the Partnership, the General
Partner and the Trust agree as follows:
I. EXCHANGE. On the date of this Amendment, the Trust hereby
exchanges its 1,666,667 shares of Series A Preferred Stock of the General
Partner for all of the interest of SMRS in and to the Class A Interest. To
effect the transfer, SMRS hereby assigns the Class A Interest to the Trust,
and the General Partner hereby consents to such assignment and to the
admission of the Trust as a limited partner of the Partnership holding the
Class A Interest. To reflect the withdrawal of SMRS as a partner of the
Partnership and the admission of the Trust as holder of the Class A
Interest, and to make certain changes to the rights of the holders of the
Class A Interest, the General Partner, the Trust and SMRS shall execute
Amendment No. 26 to the Partnership Agreement. The Trust herewith assigns
and delivers to SMRS a certificate representing 1,666,667 shares of the
Series A Preferred Stock of the General Partner and a stock power, executed
in blank, with respect thereto.
II. AMENDMENTS AND MODIFICATIONS TO THE AGREEMENT.
*A. The Agreement is hereby amended as follows:
*B. Unless the context shall otherwise require, each
reference to the term "Class A Interest" in the Agreement
shall be deemed to be a reference to the "Series A
Preferred Stock," as such term is defined herein.
*C. Each reference to the term "Class A Interest Holder" in
the Agreement shall be deemed to be a reference to any
Person holding all or any of the shares of Series A
Preferred Stock.
*D. The following definitions are hereby added to Section 1
of the Agreement in appropriate alphabetical order:
"Affiliate of SMRS" means any Person that
controls, is controlled by or is under common control
with SMRS, as evidenced by contract or agreement.
"Articles Supplementary" means the Articles
Supplementary to the General Partner's Articles of
Incorporation relating to the Series A Preferred Stock.
"Business Combination" has the meaning set forth
in Section 6.5 below.
"Change of Control" means the occurrence of any of
the following events: (i) the General Partner takes or
fails to take any action such that it ceases to be
required to file reports under Section 13 of the
Exchange Act, or any successor to that Section; (ii)
any "person" (as defined in Sections 13(d) and 14(d) of
the Exchange Act) is permitted by the General Partner
or any of its Qualified REIT Subsidiaries, or their
respective Boards of Directors, to become the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of either (a)
30% of more of the outstanding shares of Common Stock,
or (b) 30% or more (by right to vote or grant or
withhold any approval) of the outstanding securities of
any other class or classes which individually or
together have the power to elect a majority of the
members of such Board of Directors; (iii) the Board of
Directors of the General Partner or any of the
Qualified REIT Subsidiaries, as the case may be,
determines to recommend the acceptance of any proposal
set forth in a tender offer statement or proxy
statement filed by any person with the Securities and
Exchange Commission which indicates the intention on
the part of that person to acquire, or acceptance of
which would otherwise have the effect of that person
acquiring, control of the General Partner or any such
Qualified REIT Subsidiaries; (iv) the General Partner
ceases to be the sole general partner of the Operating
Partnership or grants or sells to any third party the
power to control or direct the actions of such
partnership as if such third party were a general
partner of such partnership; or (v) the Operating
Partnership is a party to any entity conversion or any
merger or consolidation in which such partnership is
not the surviving entity in such merger or
consolidation.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Market/Offer Price" means the product of: (i)
the greater of (a) the highest price (or value of other
consideration) per share of Common Stock agreed upon
during any 12-month period pursuant to any Business
Combination, which was made during such 12-month period
and was not terminated or withdrawn prior to the end of
such period; and (b) the average closing price per
share of Common Stock as shown on the composite tape of
the New York Stock Exchange over such 12-month period;
and (ii) the number of shares of Common Stock that
would have been received upon conversion of shares of
Series A Preferred Stock had such shares not been
repurchased by the General Partner pursuant to
Section 6.5.
"Person" means an individual, a partnership, a
corporation, a limited liability company, an
association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a
governmental entity or any department, agency or
political subdivision thereof.
"Related Entity" means the Partnership, the
General Partner or any person in which the Partnership
or the General Partner has beneficial ownership,
whether direct or indirect, of: (x) 50% or more of the
outstanding shares of any class of stock or any class
of ownership interest or (y) such lower percentage of
the outstanding shares of any class of stock or any
class of such other ownership interest as is sufficient
to render such person a subsidiary of the Partnership
or the General Partner for purposes of generally
accepted accounting principles as in effect at the time
of determination of the status of such Person for
purposes of this definition.
"Total Capitalization" means the aggregate of the
Equity Capitalization plus the aggregate outstanding
principal amount at the time the determination is made
of all liabilities of the Partnership and the General
Partner arising from the borrowing of any money or the
deferral of any of the purchase price of any asset or
pursuant to any capital lease.
*A. The definitions of the following terms set forth in the
Agreement are hereby replaced in their entirety as
follows:
1.3 "Approval Breach" shall mean the taking by the
General Partner of any of the actions described in
Sections 6.4 and 6.5 of the Agreement without obtaining
the prior approvals specified in those Sections.
1.12 "Equity Capitalization" shall mean the
aggregate of the Value of the Series A Preferred Stock,
the Value of the Units not owned by the General Partner
or the Trust and the Market Value of all outstanding HP
Shares at the time that the determination is made.
1.13 "Equity Ownership" shall mean, with respect
to each Holder of Series A Preferred Stock, the
percentage obtained by dividing the sum of the Value of
the shares of Series A Preferred Stock and the Value of
the HP Conversion Shares held by that Holder on the
date that the calculation is made by the Equity
Capitalization.
1.16 "HP Conversion Shares" shall mean the HP
Shares received on conversion of all or any shares of
the Series A Preferred Stock that have not previously
been transferred on a Public Basis.
1.18 "Investor Group Representative" shall mean
the Person appointed by the Rights Holders to act as
their representative as described paragraph (d) of
Section 6.4 and paragraph (c) of Section 6.5 of this
Agreement.
1.25 "Market Value" shall have the meaning given
it in Section 2 of the Articles Supplementary, provided
that the Rights Holders, by accepting the issuance or
assignment to them of any shares of Series A Preferred
Stock or HP Conversion Shares, covenant and agree that
during the ten (10) consecutive trading days
immediately preceding the date on which the Market
Value is to be determined, they will not purchase or
sell any HP Shares, cause the purchase and sale of any
HP Shares or take any other actions that are intended
to or that actually affect the market price of HP
Shares.
1.29 "Preferred Return" shall mean the
distribution payable to the holders of Series A
Preferred Stock as described in the Articles
Supplementary.
1.39 "Rights Holders" shall mean, collectively,
the Holders of the Series A Preferred Stock and the
holders of HP Conversion Shares.
1.40 "Rights Termination Date" shall mean the date
on which the combined Value of the Series A Preferred
Stock and the Value of the HP Conversion Shares held by
the Rights Holders: (i) shall be less than $35,000,000
and (ii) shall cease to exceed 8% of the Equity
Capitalization for a period of 30 consecutive trading
days.
1.47 "Value of the Series A Preferred Stock" shall
mean the Market Value of the HP Shares into which the
Series A Preferred Stock can be converted.
*A. The following new section "Section 6.5" is hereby added
as follows:
6.5 VOTING RIGHTS.
(a) Prior to the Rights Termination Date, the
General Partner or the Partnership, as the case may be,
shall not take any of the following actions without
obtaining the prior written approval of the Rights
Holders, voting as a group:
(i) permit the outstanding principal liabilities
of the Related Entities arising from the
borrowing of any money (for this purpose, any
indebtedness or other liability which is
guaranteed, endorsed or discounted with
recourse by a Related Entity shall be deemed
to be a principal liability of such Related
Entity) or the deferral of the purchase price
of any asset or pursuant to any capital lease
to exceed 50% of the Total Capitalization;
(ii) purchase of any assets in a single
transaction or series of related transactions
(including by way of merger, consolidation or
other combination with any other Person or
the purchase of equity interests in the
entity owning such assets) if the
consideration to be paid for those assets
exceeds 25% of Total Capitalization;
(iii) sell, exchange, lease or otherwise dispose
of any assets or securities in a single
transaction or a series of related
transactions (including by way of merger,
consolidation or other combination with any
other Person or the sale of equity interests
in the entity owning such assets) if the
assets or securities to be sold, exchanged,
leased or otherwise disposed of have a value
exceeding 25% of the Total Capitalization;
(iv) amend any provision of the Articles of
Incorporation or By-laws of the General
Partner, the Partnership Agreement of the
Operating Partnership or the Articles
Supplementary if such amendment would
adversely affect the rights of the holders of
the Series A Preferred Stock;
(v) liquidate or dissolve any Related Entity;
(vi) with respect to any Related Entity, commence
a voluntary case under any applicable
bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the
entry of an order for relief in an
involuntary case under any such law;
(vii) terminate the election, or take any action
which would cause termination other than by
election, of the General Partner as a real
estate investment trust under the Code;
(viii) alter any business purpose (as may be
stated in the Articles of Incorporation of
the General Partner and the Subsidiaries, the
Partnership Agreement of the Operating
Partnership or otherwise) of, or allow a
Change of Control to occur with respect to,
any Related Entity;
(ix) create or issue any security which would be
pari passu or senior in right, either as to
distributions or upon liquidation, to the
Series A Preferred Stock or reclassify the
Series A Preferred Stock or any shares of
capital stock if such creation, issuance or
reclassification would adversely affect the
rights or benefits of the holders of the
Series A Preferred Stock;
(x) increase the size of the Board of the General
Partner, except to the extent necessary to
add an Investor Nominee pursuant to the
Agreement; and
(xi) except as otherwise provided in the Articles
Supplementary, require the exchange of the
Series A Preferred Stock for other
securities.
(b) The General Partner shall provide the Investor
Group Representative with a written request for the
approval of any matter described in paragraph (a) of
this Section 6.5. Such written notice shall include a
reasonable description of the matter for which approval
is sought and shall be made in writing and delivered
personally, sent by documented overnight delivery
service or, to the extent receipt is confirmed,
telecopy, telefax or other electronic transmission
serviced to the appropriate address or number specified
by the person to receive such notice. If the Investor
Group Representative does not respond within fifteen
(15) Business Days after the date of receipt of such a
written request the Rights Holders shall be deemed to
have approved the matter as to which their approval was
sought.
(c) With respect to their approval rights pursuant
to paragraph (a) of this Section 6.5, the Rights
Holders shall only be permitted to act as a group. In
the event that there is more than one Rights Holder,
the Rights Holders shall select one Person to act as
their Investor Group Representative and shall so notify
the General Partner. Upon failure of the Rights
Holders to select an Investor Group Representative, the
largest single holder of shares of Series A Preferred
Stock shall be designated by the General Partner as the
Investor Group Representative. The General Partner and
the Partnership shall be entitled and obligated to rely
on any and all notifications and directions given to it
by the Investor Group Representative and shall have no
obligation to verify that such notifications and
directions constitute the consensus of the Rights
Holders. In addition, upon receipt of notice from any
or all other Rights Holders that such notifications and
directions do not constitute the consensus of the
Rights Holders, the General Partner shall still be
obligated to follow the directions of the Investor
Group Representative.
(d) If the General Partner solicits the approval
of the Rights Holders for any of the matters described in
paragraph (b) of Section 6.4 of the Agreement or this
Section 6.5 and is informed by the Investor Group
Representative that the Rights Holders do not approve of
the matter submitted, then the General Partner
shall have the right to purchase the remaining shares of
Series A Preferred Stock from the holders thereof at a
price (the "Series A Purchase Price") that is equal to 105%
of the greater of: (i) the Value of the Series A
Preferred Stock as of the date of purchase (the "Purchase
Closing"), including any Accrued Return; and (ii)
$35,000,000, plus any Accrued Return, times the percentage
of the 1,666,667 shares of Series A Preferred Stock
originally issued that has not been converted to shares of
Common Stock. Upon full payment of the purchase
right described in this paragraph (d) of Section 6.5
(the "Purchase Right"), the holder of any HP Conversion
Shares shall cease to be a Rights Holder for purposes hereof
and of the Agreement. If the General Partner
intends to exercise its Purchase Right, it shall so notify
the holders of Series A Preferred Stock in writing
within five (5) Business Days after receipt of notice
that the Rights Holders have not approved any matter
submitted to them for approval pursuant to this Section 6.5
or Section 6.4 of the Agreement. Payment of the
Series A Purchase Price as described above shall be made
in cash within twenty (20) Business Days after receipt
of that notice by the holders of the Series A Preferred
Stock. In the event that the General Partner exercises
its Purchase Right in connection with the refusal of the
Rights Holders to approve any tender or exchange offer
or merger, consolidation, share exchange, business
combination, or similar transaction involving the General
Partner (each, a "Business Combination"), then at the
completion of the 12-month period following the Purchase
Closing, the General Partner shall determine the
Market/Offer Price for shares of Common Stock. If the
Market/Offer Price is higher than the Series A Purchase
Price paid at the Purchase Closing, the General Partner
shall pay over to the holders of record of the Series A
Preferred Stock as of the date of the Purchase Closing,
an additional amount (the "Additional Amount") equal to
such difference. The payment of the Additional Amount
shall be due on the earlier of: (i) ten days after the
end of such 12-month period; or (ii) the closing date of
any Business Combination Transaction closed during such
period. In the event that the Rights Holders on two
occasions do not approve a matter submitted for their
approval pursuant to paragraph (b) of Section 6.4 of the
Agreement or this Section 6.5 and the General Partner
does not exercise its Purchase Right, then the Rights
Holders may request from the General Partner a waiver
of the Volume Limitation, as defined in the letter
agreement from SMRS to the General Partner whereby SMRS
acknowledges certain restrictions on the sale of the HP
Conversion Shares. The General Partner shall not
unreasonably withhold its approval of such a waiver,
provided that it shall not be unreasonable for the
General Partner to withhold its approval if the sale of
shares of Common Stock beyond the Volume Limitation is
reasonably anticipated to have a material negative effect
on the market for, and the market price of, shares of
Common Stock.
*A. The rights and obligations of each SMRS, the General Partner
and the Partnership contained in the Agreement are hereby
modified as follows:
*B. To the extent that any rights and/or obligations or SMRS,
the General Partner and the Partnership contained in the
Agreement conflict with any of the rights and/or
obligations contained in the Articles Supplementary such
terms and/or obligations contained in the Articles
Supplementary shall be deemed to govern; provided,
however, that this provision shall not be deemed to apply
to any rights and/or obligations contained in Sections 6
or 7 of the Agreement; and
*C. To the extent that the Agreement provides rights to, or
imposes obligations on, SMRS, the General Partner and the
Partnership which are not set forth in the Articles
Supplementary, such terms and/or obligations contained in
the Agreement shall continue to remain in full force and
effect.
*D. Except as otherwise amended or modified in this Section 2,
the Agreement shall remain in full force and effect and, as
amended and modified, is hereby ratified by SMRS, the
General Partner and the Partnership. Further, the parties
hereto acknowledge and agree that nothing contained herein
or in the Articles Supplementary shall be deemed or
construed to modify, alter or amend the rights and
obligations or each of SMRS, the General Partner and the
Partnership contained in Sections 6 and 7 of the Agreement.
II. REPRESENTATIONS AND WARRANTIES OF THE GENERAL PARTNER AND THE
PARTNERSHIP. The General Partner, the Partnership and the Trust hereby
represent and warrant as follows:
**1. ORGANIZATION AND QUALIFICATION.
*B. The General Partner is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Maryland. The General Partner has all requisite
corporate power and authority to enter into this Amendment,
the Articles Supplementary, the Amendment to the
Registration Rights Agreement and the Amendment to the Lock-
Up Letter and to perform its obligations hereunder and
thereunder. The General Partner has all the requisite
governmental licenses, authorizations, consents and
approvals to own, operate, lease and encumber its properties
and carry on its business as now conducted, except where the
failure to do so could not, individually or in the
aggregate, reasonably be expected to result in a material
adverse effect.
*C. The Partnership is a limited partnership duly organized,
validly existing and in good standing under the laws of the
State of New York. The Partnership is duly qualified and in
good standing in each jurisdiction in which it owns real
property. The Partnership has all requisite partnership
power and authority to enter into this Amendment, to consent
to the transfer of the Class A Interest to the Trust and to
admit the Trust as the holder of the Class A Interest. The
Partnership has all the requisite governmental licenses,
authorizations, consents and approvals to own, operate,
lease and encumber its properties and carry on its business
as now conducted, except where the failure to do so could
not, individually or in the aggregate, reasonably be
expected to result in a material adverse effect.
*D. The Trust is a Maryland real estate investment trust duly
organized and validly existing under the laws of the State
of Maryland. The Trust has all requisite power and
authority to enter into this Amendment and to perform its
obligations hereunder.
**1. AUTHORITY RELATIVE TO AGREEMENTS; BOARD APPROVAL.
*E. The execution, delivery and performance of this Amendment,
the Amendment to the Registration Rights Agreement, and the
Amendment to the Lock- Up Letter by the General Partner, the
Partnership and the Trust, as the case may be, the execution
and filing with the State Department of Assessment and
Taxation of Maryland of the Articles Supplementary by the
General Partner and the issuance and delivery of the
1,666,667 shares of Series A Preferred Stock and the
issuance of shares of Common Stock on conversion of such
Series A Preferred Stock in accordance with the Articles
Supplementary have been duly and validly authorized by all
necessary corporate action on the part of the General
Partner. This Amendment and the transactions contemplated
thereby have been duly authorized by the Trust. This
Amendment and Amendment No. 26 and the transactions
contemplated hereby and thereby have been duly authorized by
all necessary partnership action on the part of the
Partnership. Each of this Amendment, the Amendment to the
Registration Rights Agreement, and the Amendment to the
Lock-Up Letter has been duly executed and delivered by the
General Partner for itself and as the general partner of the
Partnership and by the Trust, to the extent each is a party
thereto, and constitutes the valid and legally binding
obligations of the General Partner, the Partnership and the
Trust, respectively, enforceable against the General
Partner, the Partnership and the Trust to the extent such
entity is a party thereto, in accordance with their
respective terms.
*F. The Board has, as of the date hereof, approved the
transactions contemplated hereby, the filing of the Articles
Supplementary, the issuance of the 1,666,667 shares of
Series A Preferred Stock to the Trust and the exchange of
such shares by the Trust for the Class A Interest, and the
Registration Rights Agreement, as amended, and the Lock-Up
Letter, as amended.
*G. The shares of Series A Preferred Stock to be acquired
pursuant to this Amendment have been duly authorized for
issuance by the General Partner, and upon issuance will be
duly and validly issued, fully paid and nonassessable. The
shares of Common Stock issuable by the General Partner upon
conversion of the shares of Series A Preferred Stock, or any
portion thereof, have been duly and validly reserved for
such issuance and, when issued upon such conversion in
accordance with the Articles Supplementary, will be duly and
validly issued, fully paid and nonassessable.
*H. The issuance of the Series A Preferred Stock and the
issuance of shares of Common Stock by the General Partner
upon conversion of the Series A Preferred Stock or any
portion thereof will not: (i) require the approval of any
partner of the Partnership or any stockholder of the General
Partner; (ii) result in the violation or a breach of any
provision of the Partnership Agreement of the Partnership,
the Articles of Incorporation or By-laws of the General
Partner or the General Corporation Law of the State of
Maryland; or (iii) require the additional approval of any
stockholder of the General Partner under, or result in the
violation or a breach of any provision of, the rules,
regulations or requirements of the New York Stock Exchange.
**1. CAPITAL STOCK AND UNITS.
*I. The authorized capital stock of the General Partner on the
date hereof consists of 50,000,000 shares of Common Stock,
par value $0.01 per share, 10,000,000 shares of Preferred
Stock, par value $0.01 per share, and 10,000,000 shares of
Excess Stock, par value $.01 per share. Of the authorized
Preferred Stock, 1,666,667 shares have been designated in
the Articles Supplementary as Series A Preferred Stock and
2,000,000 have been designated as Series B Convertible
Cumulative Preferred Stock, par value $0.01 per share.
*J. The only Class A Interest in the Partnership is the Class A
Interest issued to SMRS.
*K. SMRS has been exempted from the "Ownership Limit" set forth
in Article VII of the Articles of Incorporation with respect
to the Series A Preferred Shares and the Common Stock
issuable upon conversion of the Series A Preferred Shares
with the result that the issuance of the Series A Preferred
Shares to SMRS and the conversion of the Series A Preferred
Shares to Common Stock will not violate the Ownership Limit.
*L. The General Partner has taken all steps that may be
necessary to irrevocably exempt SMRS and the present or
future affiliates or associates of SMRS or any other person
acting in concert or as a group with any of the foregoing
from the business combination provisions of Section 3-601 et
seq. and from the control share provisions of Section 3-701
et seq. of the Maryland General Corporation Law or any
successor statutory provisions.
*M. As of the date of this Amendment, the Common Stock is
approved for listing on the New York Stock Exchange subject
to official notice of issuance. The General Partner will
hereafter continue the listing of the Common Stock required
to be delivered upon conversion of all or any portion of the
Class A Preferred Shares, on the New York Stock Exchange or
on each national securities exchange, if any, upon which the
outstanding Common Stock are listed as the time of delivery.
**1. NO CONFLICTS; NO DEFAULTS; REQUIRED FILINGS AND CONSENTS.
Except as contemplated hereby, neither the execution and delivery
by the General Partner, the Partnership or the Trust of this
Amendment nor the consummation by the General Partner, the
Partnership or the Trust of the transactions contemplated hereby in
accordance with the terms hereof will:
*N. conflict with or result in a breach of any provisions of the
Articles of Incorporation as amended by the Articles
Supplementary or by-laws of the General Partner or the
Partnership Agreement of the Partnership or the
organizational documents of the Trust;
*O. result in a breach or violation of, a default under, or the
triggering of any payment or other obligations pursuant to,
or accelerate vesting under the stock option plan of the
General Partner, or similar compensation plan, or any grant
or award made under the foregoing;
*P. violate or conflict with any statute, regulation, judgment,
order, writ, decree or injunction applicable to the General
Partner, the Partnership or the Trust;
*Q. violate or conflict with or result in a breach of any
provision of, or constitute a default (or any event which,
with notice or lapse of time or both, would constitute a
default) under, or result in the termination or in a right
of termination or cancellation of, or accelerate the
performance required by, or result in the creation of any
Lien upon any of the Properties of the General Partner, the
Partnership or the Trust under, or result in being declared
void, voidable or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust or any license, franchise, permit,
lease, contract, agreement or other instrument, commitment
or obligation to which the General Partner, the Partnership
or the Subsidiaries is a party, or by which the General
Partner, the Partnership or the Subsidiaries or any of their
Properties is bound or affected; or
*R. require any consent, approval or authorization of, or
declaration, notice to, filing or registration with, any
Governmental or Regulatory Authority, except for the filing
of a Current Report on Form 8-K with the SEC and the NYSE
disclosing this Amendment and the Articles Supplementary and
the consummation of the transactions contemplated hereby.
**1. SEC AND OTHER DOCUMENTS.
*S. The General Partner has made available to SMRS each of its
registration statements, reports, proxy statements and
exhibits thereto (the "Company Reports") filed with the
Securities and Exchange Commission (the "SEC") pursuant to
the Securities Act of 1933 or the Securities Exchange Act of
1934 (the "Securities Laws") since January 1, 1997. The
Company Reports were filed with the SEC in a timely manner
and constitute all forms, reports and documents required to
be filed by the General Partner under the Securities Laws
through the date of this Amendment. As of their respective
dates, the Company Reports (i) complied as to form in all
material respects with the applicable requirements of the
Securities Laws; and (ii) did not contain any untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances
under which they were made, not misleading. There is no
unresolved comments issued or violation asserted by the SEC
or any other Governmental or Regulatory Authority with
respect to any of the Company Reports.
*T. Each of the consolidated balance sheets of the General
Partner included in or incorporated by reference into the
Company Reports (including the related notes and schedules)
fairly presented the consolidated financial position of the
General Partner or other entities to which it relates as of
its date and each of the statements or operations,
stockholders' equity (deficit) and cash flows included in or
incorporated by reference into the Company Reports
(including any related notes and schedules) fairly presented
the results of operations, retained earnings or cash flows,
as the case may be, of the General Partner on a consolidated
basis for the periods set forth therein, in each case in
accordance with GAAP consistently applied during the periods
involved, except as may be noted therein and except, in the
case of any unaudited statements, normal recurring year-end
adjustments which would not, individually or in the
aggregate, reasonably be expected to result in a Material
Adverse Effect.
**1. LITIGATION; COMPLIANCE WITH LAW.
*U. There are no legal actions pending or, to the General
Partner's knowledge, threatened against the General Partner,
the Partnership or any Subsidiaries that would, individually
or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, or to result in any material change
in the equity ownership of the General Partner, the
Partnership or any Subsidiaries, or which question the
validity of this Amendment, the Articles Supplementary, the
Registration Rights Agreement, as amended, Amendment No. 26
or the Lock-Up Letter, as amended, or any action taken or to
be taken in connection herewith or therewith.
*V. None of the General Partner, the Partnership or any of the
Subsidiaries is in violation of any statute, rule,
regulation, order, writ, decree or injunction of any
Governmental or Regulatory Authority or any body having
jurisdiction over them or any of their respective Properties
which, if enforced, could, individually or in the aggregate,
reasonably be expected to result in a Material Adverse
Effect.
**1. INVESTMENT COMPANY. The General Partner and the Partnership
are not, and after giving effect to the sale and issuance of the
Series A Preferred Stock, will not be, an "investment company"
required to be registered under the Investment Company Act of 1940,
as amended.
**2. SOLICITATION; ACCESS TO INFORMATION. No form of general
solicitation or general advertising was used by the General Partner
or the Partnership or any other person acting on their behalf in
respect of or in connection with the offer and sale of the Series A
Preferred Stock.
**3. TAX MATTERS; REIT AND PARTNERSHIP STATUS.
*W. Each of the General Partner, the Partnership and the Trust
has timely filed with the appropriate taxing authority all
tax returns required to be filed by it or has timely
requested extensions and any such request has been granted
and has not expired. Each such tax return is true, complete
and correct in all respects. Each of the General Partner,
the Partnership and the Trust have paid within the time and
manner prescribed by law, all taxes that are due and
payable.
*X. The General Partner: (i) was eligible and has elected in its
federal income tax return for its taxable year ended
December 31, 1994 to be taxed as a REIT and such election
has and will continue to remain in effect for each of the
General Partner's subsequent taxable years and has complied
(or will comply) with all applicable provisions of the Code
relating to a REIT, for each of its taxable years; (ii) has
operated, and intends to continue to operate, in such a
manner as to qualify as a REIT for each of its taxable
years; (iii) has not taken or omitted to take any action
which would reasonably be expected to result in a challenge
to its status as a REIT, and, to the General Partner's
knowledge, no such challenge is pending or threatened; and
(iv) assuming the accuracy of SMRS' representation in
Section 4.5, will not be rendered unable to qualify as a
REIT for federal income tax purposes as a consequence of the
transactions contemplated hereby.
**1. EMPLOYEE BENEFIT PLANS. All of the employee benefit plans (as
defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")), and plans, programs, policies,
practices, arrangements or contracts (whether group or individual)
providing for payments, benefits or reimbursements to employees,
former employees and independent contractors, or their
beneficiaries and dependents, under which such employees, former
employees or independent contractors, or their beneficiaries or
dependents, are covered due to an employment or other contractual
relationship with the General Partner, the Partnership or any
entity required to be aggregated in a controlled group or
affiliated service group with the General Partner for purposes of
ERISA or the Code, including without limitation, under
Section 414(b), (c), (m) or (o) of the Code or Section 4001 of
ERISA, at any relevant time are referred to herein as the "Benefit
Plans". With respect to each Benefit Plan, to the extent
applicable: (i) Such Benefit Plan has been maintained and operated
in material compliance with its terms and with the applicable
provisions of ERISA, the Code and all other applicable governmental
laws and regulations; each such Benefit Plan intended to qualify
under Section 401(a) of the Code is the subject of a favorable
unrevoked determination letter issued by the IRS as to its tax-
qualified status under the Code; (ii) There is no material suit,
action, dispute, claim, arbitration or legal, administrative or
other proceeding or governmental investigation pending, or
threatened, alleging any breach of the terms of any such Benefit
Plan or of any fiduciary duties thereunder or violation of any
applicable statute, law, rule or regulation with respect to any
Benefit Plan; (iii) No Benefit Plan is or has ever been subject to
Title IV of ERISA or Section 412 of the Code; and (iv) None of the
General Partner, the Partnership or any Subsidiary, or any "party
in interest" (as defined in Section 3(14) of ERISA) or any
"disqualified person" (as defined in Section 4975 of the Code) with
respect to any such Benefit Plan, has engaged in a non-exempt
"prohibited transaction" within the meaning of Section 4975 of the
Code or Section 406 of ERISA. SMRS nor any plan maintained by SMRS
or any of its Affiliates shall be subject to any tax, fine, penalty
or other liability of any kind whatsoever, that would not have been
incurred by SMRS or any of its Affiliates but for the transactions
contemplated hereby.
**2. DEFAULTS UNDER AGREEMENTS. Neither the General Partner nor the
Trust is in default under or in violation of any provision of its
Articles of Incorporation or by-laws. The Partnership is not in
default under or in violation of the Partnership Agreement. None
of the General Partner, the Partnership or the Trust is in default
under or violation of any agreement filed as an exhibit to the
Company Reports except where such default or violation would not
result in a Material Adverse Effect.
I. REPRESENTATIONS AND WARRANTIES OF SMRS. SMRS hereby represents and
warrants to the General Partner and the Partnership as follows:
**(1) ORGANIZATION. SMRS is a government sponsored retirement
system, duly created, validly existing and in good standing under
the laws of the State of Michigan. SMRS has all requisite power and
authority to enter into this Amendment, Amendment No. 26, the
Amendment to the Registration Rights Agreement and the Amendment to
the Lock-Up Letter and to perform its obligations hereunder and
thereunder.
**(2) DUE AUTHORIZATION. The execution, delivery and performance of
this Amendment, Amendment No. 26, the Amendment to the Registration
Rights Agreement, and the Amendment to the Lock-Up Letter have been
duly and validly authorized by all necessary action on the part of
SMRS. This Amendment, Amendment No. 26, the Amendment to the
Registration Rights Agreement and the Amendment to the Lock-Up
Letter have been duly executed and delivered by and constitute the
valid and legally binding obligations of SMRS, enforceable against
SMRS in accordance with their terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating
to creditors' rights or general principles of equity.
**(3) CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither the
execution and delivery of this Amendment, Amendment No. 26, the
Amendment to the Registration Rights Agreement, and the Amendment
to the Lock-Up Letter nor the performance by SMRS of its
obligations herein or thereunder will conflict with, result in a
breach of the terms, conditions or provisions of, constitute a
default under, result in the creation of any mortgage, security
interest, encumbrance, lien or charge of any kind upon any of the
properties or assets of SMRS, pursuant to, or require any consent,
approval or other action by or any notice to or filing with any
government authority other than those consents or approvals that
have already been obtained or actions that have already been taken
as of the date hereof.
**(4) ACQUISITION FOR INVESTMENT; SOPHISTICATION. SMRS is acquiring
the shares of Series A Preferred Stock for its own account for the
purpose of investment and not with a view to or for sale in
connection with any distribution thereof, and SMRS has no present
intention or plan to effect any distribution of the shares of
Series A Preferred Stock; provided, however, that the disposition
of the Series A Preferred Stock and the shares of Common Stock to
which the shares of Series A Preferred Stock can be converted shall
at all times be and remain within its control, subject to the
provisions of this Amendment, the Agreement, the Registration
Rights Agreement, as amended, and the Lock-Up Letter, as amended.
SMRS is able to bear the economic risk of the acquisition of the
shares of Series A Preferred Stock pursuant hereto and can afford
to sustain a total loss on such investment, and has such knowledge
and experience in financial and business matters that it is capable
of evaluating the merits and risks of the proposed investment, and
therefore has the capacity to protect its own interests in
connection with the acquisition of the Series A Preferred Stock
pursuant hereto.
**(5) REIT QUALIFICATION MATTERS. SMRS is a "qualified trust"
described in Section 401(a) of the Code and exempt from tax under
Section 501(a) of the Code. Under Section 856(h) of the Code, SMRS
will not be treated as an "individual" for purposes of Section
542(a)(2) of the Code (as modified by Section 856(h) of the Code)
and no "individual" owns or would be considered to own (taking into
account the ownership attribution rules under Section 544 of the
Code, as modified by Section 856(h) of the Code) in excess of 5.0%
of the value of the outstanding equity interests in SMRS.
**(6) TAX MATTERS. SMRS acknowledges that none of the General
Partner, the Partnership, the Trust nor their respective officers,
directors, employees or agents have provided advice to SMRS
regarding the tax consequences of its investment in the Class A
Interest, the exchange of the Class A Interest for the shares of
Series A Preferred Stock, or shares of Common Stock into which it
may be converted, and SMRS has consulted with its tax advisors
regarding such consequences.
II. CERTAIN ADDITIONAL COVENANTS.
**(a) RESALE. SMRS acknowledges and agrees that the shares of Series A
Preferred Stock that SMRS will acquire will not be registered
under the Securities Act or the securities laws of any state and
that it may be sold or otherwise disposed of only in one or more
transactions registered under the Securities Act and, where
applicable, such state securities laws or as to which an exemption
from the registration requirements of the Securities Act and,
where applicable, such state securities laws is available.
**(b) TAKING OF NECESSARY ACTION. Each party hereto agrees to use
their best efforts promptly to take or cause to be taken all
action and promptly to do or cause to be done all things
necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Amendment, the Articles Supplementary, the
Amendment to the Registration Rights Agreement, the Amendment to
the Lock Up Letter and Amendment No. 26, subject to the terms and
conditions hereof and thereof.
**(c) CONVERSION. The General Partner hereby covenants and agrees
that it shall take, or refrain from taking, as the case may be,
any and all actions reasonably necessary or appropriate to allow
the holders of the Series A Preferred Stock to convert all or a
portion of the shares of the Series A Preferred Stock into HP
Shares as described in the Articles Supplementary.
**(a) PUBLIC ANNOUNCEMENTS; CONFIDENTIALITY.
*B. Subject to each party's disclosure obligations imposed by
law and any stock exchange or similar rules and the
confidentiality provisions contained in Section 5.4(b), the
General Partner, the Partnership and SMRS will cooperate
with each other in the development and distribution of all
news releases and other public information disclosures with
respect to this Amendment, the amendment to the Registration
Rights Agreement, Amendment No. 26, the amendment to the
Lock-Up Letter and any of the transactions contemplated
hereby or thereby.
*C. The General Partner, the Partnership and the Trust agree
that all information provided to them or any of their
representatives pursuant to this Amendment shall be kept
confidential, and the General Partner, the Partnership and
the Trust shall not disclose such information to any persons
other than the directors, officers, employees, financial
advisors, legal advisors, accountants, consultants and
affiliates of the General Partner, the Partnership or the
Trust, as the case may be, who reasonably need to have
access to the confidential information and who are advised
of the confidential nature of such information; provided,
however, the foregoing obligation of the General Partner,
the Partnership and the Trust shall not: (i) relate to any
information that: (1) is or becomes generally available
other than as a result of unauthorized disclosure by the
General Partner, the Partnership and the Trust or by persons
to whom they have made such information available; or (2) is
or becomes available to the General Partner, the Partnership
and the Trust on a non-confidential basis from a third party
that is not, to the knowledge of the General Partner, the
Partnership and the Trust, bound by any other
confidentiality agreement with SMRS; or (ii) prohibit
disclosure of any information if required or requested by
law, rule, regulation, court order or other legal or
governmental process.
*D. SMRS covenants and agrees that all information provided to
them and their representatives pursuant to this Amendment
shall be kept confidential and that SMRS shall not disclose
such information to any persons other than its directors,
officers, employees, financial advisors, legal advisors,
accountants, consultants and affiliates, as the case may be,
who reasonably need to have access to the confidential
information and who are advised of the confidential nature
of such information; provided, however, the foregoing
obligation of SMRS shall not: (i) relate to any information
that: (1) is or becomes generally available other than as a
result of unauthorized disclosure by SMRS or by persons to
whom they have made such information available; or (2) is or
becomes available to SMRS on a non-confidential basis from a
third party that is not, to the knowledge of SMRS, bound by
any other confidentiality agreement with the General Partner
and the Partnership; or (ii) prohibit disclosure of any
information if required or requested by law, rule,
regulation, court order or other legal or governmental
process.
**(a) INFORMATION AND ACCESS. Prior to the Rights Termination Date,
the General Partner, the Partnership and each of the Subsidiaries
shall afford to SMRS and its accountants, counsel and other
representatives full and reasonable access during normal business
hours (and at such other times as the parties may mutually agree)
to its Properties, books, contracts, commitments, records and
personnel and, during such period, shall furnish promptly to SMRS
(i) a copy of each report, schedule, and other document filed or
received by it pursuant to the requirements of the Securities
Laws; and (ii) all other information concerning its business,
personnel and properties as SMRS may reasonably request. SMRS and
its accountants, counsel and other representatives shall, in the
exercise of the rights described in this Section, not unduly
interfere with the operation of the business of the General
Partner, the Partnership or the Trust.
**(b) REVOCATION OF EXEMPTION. The Board has approved the exemption
of SMRS from the Ownership Limit, as defined in the Articles of
Incorporation, with respect to (i) the Class A Interest and the
Common Stock into which the Class A Interest can be converted and
(ii) the Series A Preferred Stock and the Common Stock into which
the Series A Preferred Stock can be converted. In the event that
the exemption is revoked for any reason, other than the fact that
a re-structuring or re-organization of SMRS causes it to cease to
be entitled to "look-through" treatment pursuant to
Section 856(h)(3) of the Code ("SMRS Change"), then, at the
request of SMRS, the General Partner shall purchase all of the
Common Stock or Series A Preferred Stock then held by SMRS that
shall have become Excess Stock, as defined in the Articles of
Incorporation (the "Exemption Right"). Such request by SMRS shall
be made within twenty (20) Business Days of the receipt of written
notice by SMRS from the General Partner that the exemption
described above has been revoked. The purchase price (the
"Exemption Purchase Price") for the Common Stock or Series A
Preferred Stock, as the case may be, to be so purchased pursuant
to this Section 5.6 shall be 110% of the greater of: (i) the Value
of the Common Stock or the Value of the Series A Preferred Stock,
as the case may be, as of the date of purchase; and (ii) the
Original Investment, including any Accrued Return, times the
percentage of the number of shares of Series A Preferred Stock
originally issued hereby still held by SMRS (with all shares of
Common Stock issued upon conversion of Series A Preferred Stock
held by SMRS being treated for the purposes of this calculation as
if they had not been converted), with the result multiplied by the
percentage of the number of shares of Series A Preferred Stock
originally issued hereby or shares of Common Stock issued upon
conversion of Series A Preferred Stock, as the case may be, still
held by SMRS that have become Excess Stock. Payment of the
Exemption Purchase Price shall be made in cash within twenty (20)
Business Days after receipt by the General Partner of notice from
SMRS that SMRS is requiring the General Partner to purchase the
Common Stock or Series A Preferred Stock, as the case may be, that
have become Excess Stock. In the event that the exemption is
revoked as a result of a SMRS Change, then SMRS shall still have
the Exemption Right, but the Exemption Purchase Price shall be
100% of the greater of: (i) Value of the Series A Preferred Stock
or the Value of the Common Stock into which it has been converted,
as the case may be, as of the date of purchase; and (ii) the
Original Investment, including any Accrued Return, times the
percentage of the number of shares of Series A Preferred Stock
still held by SMRS (with all shares of Common Stock which the
Series A Preferred Stock has been converted held by SMRS being
treated for purposes of this calculation as if they had not been
converted), with the result multiplied by the percentage of the
number of shares of Series A Preferred Stock originally issued
hereby or shares of Common Stock into which the Series A Preferred
Stock has been converted, as the case may be, still held by SMRS
that have become Excess Stock.
**(c) NEW YORK STOCK EXCHANGE LISTING. The General Partner will
confirm the approval for listing on the New York Stock Exchange of
the shares of Common Stock into which the Series A Preferred Stock
may be converted subject to official notice of issuance. The
General Partner will cause to be continued such listing on the New
York Stock Exchange or on each national securities exchange, if
any, upon which the outstanding shares of Common Stock are listed
at the time of delivery of the shares of Common Stock required to
be delivered upon conversion of all or any portion of the shares
of Series A Preferred Stock.
I. MISCELLANEOUS PROVISIONS.
**(a) SURVIVAL. All representations, warranties and covenants and
agreements of the parties contained herein, including indemnity or
indemnification agreements contained herein, or in any Schedule or
Exhibit hereto, or any certificate, documents or other instrument
delivered in connection herewith shall survive the transfer of the
Class A Interest to the Trust and the delivery of the Shares of
Series A Preferred Stock to SMRS.
**(b) INDEMNIFICATION BY THE GENERAL PARTNER AND THE PARTNERSHIP.
From and after the date of this Amendment, the General Partner and
the Partnership shall indemnify and hold harmless SMRS, its
successors and assigns, from and against any and all loss and
expenses (including, without limitation, reasonable attorneys'
fees and expenses), suffered, directly or indirectly, by SMRS by
reason of, or arising out of: (i) any breach as of the date made
or deemed made or required to be true of any representation or
warranty made by the General Partner or the Partnership in or
pursuant to this Amendment and any statements made in any
certificate delivered pursuant to this Amendment; or (ii) any
failure by the General Partner or the Partnership to perform or
fulfill any of their covenants or agreements set forth herein, or
in any other agreement contemplated hereby. Notwithstanding any
other provision of this Amendment to the contrary, in no event
shall loss and expenses include a party's incidental or
consequential damages.
**(c) THIRD-PARTY CLAIMS. If a claim by a third party is made against
an indemnified party and if such indemnified party intends to seek
indemnity with respect thereto under Section 6.2, such indemnified
party shall promptly notify the General Partner and the
Partnership in writing of such claims setting forth such claims in
reasonable detail. The General Partner and the Partnership shall
have 10 days after receipt of such notice to undertake, through
counsel of its own choosing and at its own expense, the settlement
or defense thereof, and the indemnified party shall cooperate with
it in connection therewith. Notwithstanding the above, the
indemnified party may participate in such settlement or defense
through counsel chosen by such indemnified party, provided that
the fees and expenses of such counsel shall be borne by such
indemnified party, unless: (i) the employment of counsel by the
indemnified party has been authorized by the General PARTNER and
the Partnership; or (ii) the indemnified party shall have
reasonably concluded that there may be a conflict of interest
between the General Partner and the Partnership on the one hand
and the indemnified party on the other in the conduct of the
defense of such action which would materially hinder the ability
of counsel to the General Partner and the Partnership to
represent the indemnified party. The indemnified party shall not
pay or settle any claim which the General Partner or the
Partnership is contesting. Notwithstanding the foregoing, the
indemnified party shall have the right to pay or settle any such
claim, provided that in such event it shall waive any right to
indemnity therefor by the General Partner and the Partnership. If
the General Partner or the Partnership does not promptly notify
the indemnified party within 10 days after the receipt of the
indemnified party's notice of a claim of indemnity hereunder that
it elects to undertake the defense thereof, the indemnified party
shall have the right to contest, settle or compromise the claim at
the expense of the General Partner and the Partnership, but
shall not thereby waive any right to indemnity therefor pursuant
to this Amendment.
**(d) COUNTERPARTS. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more
counterparts have been signed by each party hereto and delivered
to the other party. Copies of executed counterparts transmitted
by telecopy, telefax or other electronic transmission SERVICE
shall be considered original executed counterparts for purposes
of this Section, provided receipt of copies of such counterparts
is confirmed.
**(e) GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York
without reference to the choice of law principles thereof.
**(f) ENTIRE AGREEMENT. This Amendment, the ARTICLES Supplementary,
the Agreement, the Partnership Agreement, Amendment No. 26, the
Registration Rights Agreement, as amended, the Lock-up Letter, as
amended, and all other agreements or other instruments executed by
the parties hereto on or prior to the date of this Amendment and
referred to herein contain the entire agreement between the
parties with respect to the subject matter hereof and there are no
agreements, understandings, representations or warranties between
the parties other than those set forth or referred to herein.
This Amendment is not intended to confer upon any person not a
party hereto (and their successors and assigns) any rights or
remedies hereunder.
NOTICES. All notices and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing and
delivered personally, sent by documented overnight delivery
service or, to the extent receipt is confirmed, telecopy, telefax
or other electronic transmission service to the appropriate
address or number as set forth below. Notices to the General
Partner and the Partnership shall be addressed to:
Home Properties of New York, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxx
(000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
Xxx X. XxXxxxxxx, Esq.
c/o Home Properties of New York, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
(000) 000-0000
Telecopier No.: (000) 000-0000
or at such other address and to the attention of such other person
as the General Partner or the Partnership may designate by written
notice to SMRS. Notices to SMRS shall be addressed to:
Express Mail:
Michigan Department of Treasury
Bureau of Investments
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Administrator
(000) 000-0000
Telecopy No: (000) 000-0000
Other Mail:
Michigan Department of Treasury
Bureau of Investments
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Administrator
with a copy to:
Michigan Department of Attorney General
Finance Division
One Michigan Avenue Building
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Assistant in Charge
(000) 000-0000
Telecopy No: (000) 000-0000
and an additional copy to:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxx Xxxxxxxxx
or at such other address and to the attention of such other person
as SMRS may designate by written notice to the General Partner.
Notices to other Rights Holders, the Holders and the Investor
Group Representative shall be by the above means and to such
addresses and to the attention of such person as the Rights
Holders, Holders and the Investor Group Representative may
designate by written notice to the General Partner.
For purposes of this Agreement, the Investor Group Representative
and SMRS will only be deemed to have received any notice upon the
written acknowledgment by one individual designated by the
Investor Group Representative with authority to acknowledge such
receipt or upon refusal by any such designee to accept receipt of
any notice. The Investor Group Representative shall at all times
provide the General Partner with a written designation of at least
two individuals or titles of positions that are so designated with
authority to acknowledge receipt of written notices.
In all cases where a failure by the Rights Holders, the Holders
and/or the Investor Group Representative to respond within a
specified time frame shall be deemed to be their approval pursuant
to this Agreement or to mean that they do not wish to purchase
securities pursuant to this Agreement, then the written notice or
request provided by the General Partner as described in this
agreement hereof shall specifically state that a failure to
respond within the indicated time frame shall be deemed to be an
approval of the matter for which approval was sought.
**(a) SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their
respective SUCCESSORS. It is hereby agreed that any internal re-
structuring or re-organization of SMRS shall not be deemed to be
an assignment to a third party.
**(b) HEADINGS. The Section, Article and other headings contained in
this Amendment are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Amendment.
All references to Sections or Articles contained herein mean
Sections or Articles of this Amendment unless otherwise stated.
**(c) AMENDMENTS AND WAIVERS. This Amendment may not be modified or
amended except by an instrument or instruments in writing signed
by the party against whom enforcement of any such modification or
amendment is sought. Either party hereto may, only by an
instrument in writing, waive compliance by the other party hereto
with any term or provision hereof on the party of such other party
hereto to be performed or complied with. The waiver by any party
hereto of a breach of any term or provision hereof shall not be
construed as a waiver of any subsequent breach.
**(d) INTERPRETATION. For the purposes hereof: (i) words in the
singular shall be held to include the plural and vice versa and
words of one gender shall be held to include the other gender as
the context requires; (ii) terms "hereof", "herein", and
"herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Amendment as a whole and not
to any particular provision of this Amendment, and Article,
Section, references are to the Articles, Sections, paragraphs,
Exhibits and Schedules to this Amendment unless otherwise
specified; (iii) the word "including" and words of similar import
when used in this Amendment shall mean "including, without
limitation," unless the context otherwise requires or unless
otherwise specified; (iv) the word "or "shall not be exclusive;
and (v) provisions shall apply, when appropriate, to successive
events and transactions.
**(e) SEVERABILITY. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such
invalidity or un-enforceability, without affecting in any way the
remaining provisions hereof.
**(f) FURTHER ASSURANCES. The General Partner, the Partnership and
SMRS agree that, from time to time, each of them will execute and
deliver such further instruments of conveyance and transfer and
take such other action as may be necessary to carry out the
purposes and intents hereof.
**(g) SPECIFIC PERFORMANCE. The General Partner, the Partnership, the
Trust and SMRS each acknowledge that, in view of the uniqueness of
the parties hereto, the parties hereto would not have an adequate
remedy at law for money damages in the event that this Amendment
were not performed in accordance with its terms, and therefore
agree that the parties hereto shall be entitled to specific
enforcement of the terms hereof in addition to any other remedy
to which the parties hereto may be entitled at law or in equity.
IN WITNESS WHEREOF, this Amendment has been signed by or on behalf of each
of the parties hereto on the dates set forth below to be effective as of
August 1, 1999 as of the day first above written.
HOME PROPERTIES OF NEW YORK, INC.
By:
Xxx X. Xxxx, Executive Vice President
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
General Partner
By:
Xxx X. Xxxx, Executive Vice President
STATE TREASURER OF THE STATE OF MICHIGAN,
CUSTODIAN OF MICHIGAN PUBLIC SCHOOL
EMPLOYEES' RETIREMENT SYSTEM, STATE,
EMPLOYEES' RETIREMENT SYSTEM, MICHIGAN STATE
POLICE RETIREMENT SYSTEM AND MICHIGAN JUDGES'
RETIREMENT SYSTEM
By:
Xxx Xxxxxxxxxx
Administrator
