SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF INTERESTS
EXHIBIT
10.15
SECOND
AMENDMENT
TO AGREEMENT FOR PURCHASE AND SALE OF INTERESTS
THIS
SECOND
AMENDMENT
TO AGREEMENT FOR PURCHASE AND SALE OF INTERESTS
(this
“Second Amendment”),
is
made as of the 16th
day of
May, 2006, by and between HOME
PROPERTIES, L.P., a New York limited partnership (“Home
Properties")
and
HOME PROPERTIES WMF I, LLC, a New York limited liability company (“Home
Properties WMF”;
and
together with Home Properties, as “Sellers”),
and THE
LIGHTSTONE GROUP,
LLC, a
New Jersey limited liability company (as “Buyer”).
RECITALS
WHEREAS,
Sellers
and Buyer have entered into that certain Agreement For Purchase and Sale of
Interests (South Michigan Portfolio), dated as of April 26, 2006, as amended
by
that certain First Amendment to Agreement For Purchase and Sale of Interests,
dated as of May 12, 2006 (collectively, the “Contract”),
covering the sale and purchase of certain entities as more particularly
described therein; and
WHEREAS,
the
parties hereto wish to amend the Contract as set forth in this Second
Amendment.
NOW,
THEREFORE,
in
consideration of Ten Dollars ($10.00) each to the other in hand paid, and for
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, the
parties hereto agree as follows:
AGREEMENT
1. Definitions.
All
capitalized terms used in this Second Amendment shall have the same meanings
ascribed to them in the Contract, unless otherwise herein defined.
2. Modifications.
Effective as of the date hereof, the Contract is hereby modified and amended
by:
(i) Deleting
Section 2(a) of the Contract and replacing same with the following language:
“ (a) The
aggregate purchase price (“Purchase
Price”)
payable by Buyer for the Interests is Two Hundred Twenty-Eight Million Seven
Hundred Thirty-Eight Thousand Five Hundred and No/100 Dollars ($228,738,500),
subject to such apportionments, adjustments and credits as are provided in
this
Agreement.”
(ii) Adding
the following at the end of Section 5:
“ (d) From
May
16, 2006 until the date that is six (6) months after the Closing, neither
Sellers nor any affiliate of Sellers, will directly or indirectly, solicit
(except for job postings by Sellers available to the general public) or hire
for
employment any Employee or any employee from any regional office from which
any
of the Properties is being managed (but excluding Xxxxx Xxxx, Xxxxx Xxxxxxx,
Xxx
Xxxxx, Xxxx Xxxxx and Xxxx Xxxxxxxxx), without the prior written consent of
the
Buyer, which consent may be withheld in Buyer’s sole and absolute discretion.”
(iii) Adding
the following at the end of Section 7:
“ (d) Notwithstanding
anything to the contrary set forth herein, Sellers shall be responsible for
all
litigation against each Property and each Company which arises or results from
occurrences prior to the Closing, and each Seller, jointly and severally, shall
indemnify, hold harmless and defend the Buyer and the Companies and their
respective successors and assigns from and against any Claim relating or
attributable thereto. Notwithstanding anything to the contrary set forth herein,
Sellers liability for Claims under this Section 7(d) shall be unlimited and
shall survive the Closing without limitation.”
(iv) Deleting
the first sentence on Section 13 of the Contract and replacing same with the
following language:
“If
this
Agreement shall not have been terminated by Sellers or Buyer, for any of the
reasons set forth in this Agreement, and within the time(s) herein limited,
the
closing of the conveyance of the Interests of the New Companies (the
"Closing")
shall
occur on June 23, 2006; provided, however, that Buyer shall be entitled, upon
written notice to the Sellers given no later than June 23, 2006, to postpone
such original closing date to no later than June 30, 2006, as to which TIME
SHALL BE OF THE ESSENCE (such date, as same may be postponed pursuant to this
Section 13, being hereinafter referred to as the “Closing
Date”).”
(v) Deleting
Section 15(a)(i) of the Contract and replacing same with the following
language:
“ (i) Real
estate and personal property taxes based on the concurrent fiscal year
method, whereby taxes for each taxing jurisdiction are
deemed applicable to the fiscal year of such jurisdiction during which the
tax is levied;”
(vi) Adding
the following at the end of Section 9:
“ (d) Without
limiting any of the rights of Buyer elsewhere set forth in this Agreement and
in
additional to the Buyer’s Conditions applicable with respect to the Property
known as Springwells Park (“Springwells”),
it is
agreed that the obligations of Buyer under this Agreement to purchase and pay
for the Interests applicable to the New Company holding fee title to Springwells
shall be subject to the satisfaction on or prior to the Closing of the following
conditions (the “Springwells
Buyer’s Conditions”):
(i)
completion of all life and safety repairs (the “Life/Safety
Repairs”)
required by the applicable municipality having jurisdiction over Springwells
(the “Springwells
Municipality”)
to
such municipality’s satisfaction pursuant to a written notice thereof; and (ii)
there being no reasonable risk that the Springwells Municipality shall take
steps to prohibit Buyer’s operation of Springwells as a multi-tenant facility
for non-completion of other repairs being required by such municipality;
provided, however, that if all the Springwells Buyer’s Conditions are not
satisfied on or prior to the Closing, then the Closing, with respect to
Springwells only, shall be postponed for up to sixty (60) days during which
time
Buyer and Sellers shall work together, at Seller’s sole cost and expense, to
satisfy the Springwells Buyer’s Conditions. In such event, the parties shall
close the transaction with respect to the Interests in all New Companies with
the exception of Springwells on the original Closing Date and the Purchase
Price
shall be reduced by the amount allocated to Springwells, as agreed by Buyer
and
Sellers, and the portion of the Xxxxxxx Money Deposit allocated to Springwells,
as agreed by Buyer and Sellers, shall continue to be held in escrow, to be
released at the Springwells closing or returned to Buyer in the event of
termination as described in the next sentence. If the Springwells Buyer’s
Conditions are not satisfied within such additional time period, then either
party may terminate this Agreement with respect to Springwells and the
provisions of Section 33 shall apply.”
(vii) Deleting
the last sentence of the first paragraph of Section 32 of the Contract and
replacing same with the following:
“Notwithstanding
anything to the contrary set forth herein but subject to Section 9(d) of the
Contract, in the event the Springwells Municipality shall issue a conditional
certificate of occupancy which provides that repairs are to be completed after
the Closing (other than Life/Safety Repairs which shall remain the Seller’s
obligation), then Buyer agrees to accept a conditional certificate of occupancy
and will complete such repairs after the Closing at its cost (except with
respect to Life/Safety Repairs which shall continue to be the responsibility
of
Sellers) and sign any documentation requested or required by the Springwells
Municipality in connection therewith.”
(viii) Adding
a
new Section 35 as follows:
“35. LITIGATION
ASSISTANCE.
With
regard to any litigation or claims which relate to periods prior to Closing,
including without limitation the matters described on Schedule 5 and litigation
referred to in Section 7, after Closing, Buyer will cooperate with Sellers
and
their agents in assisting Sellers to investigate and defend same, at no cost
to
Buyer. Without limiting the foregoing, after Closing, Buyer will provide Sellers
and their agents reasonable access to the Properties, to documents and to
employees for consultation on any such claim or litigation matter.”
(ix) Deleting
Schedule 6 of the Contract and replacing same with Schedule 6 attached
hereto
3. Creation
of New Companies.
Sellers
acknowledge and agree that: (i) on or prior to Closing, the fee ownership of
each of the Properties will be transferred to a newly-created Delaware limited
liability company, the name and formation documentation of which shall be in
Buyer’s sole and absolute discretion (except the Operating Agreement which Buyer
may amend and restate at Closing)(the “New
Companies”);
(ii)
all references in the Contract to Seller’s obligation to transfer “Interests”
shall refer to the “Interests” in the New Companies; (iii) all references in the
Contract to “Company” shall refer to “New Company”; and (iv) prior to Closing,
Schedule 1 to the Contract will be modified to reflect the names of each New
Company and Recital (b) to the Contract shall be deemed modified in accordance
with the modified Schedule 1.
4. Board
Approval.
The
Contract, as amended by this Second Amendment, shall be subject to the approval
of the board of directors of Home Properties, Inc., (“Board”)
to be
obtained by Sellers no later than May 18, 2006 at 4 PM (Eastern Standard Time)
(“Board
Approval Deadline”).
If
the Board has not approved the Contract, as amended by this Second Amendment,
prior to the Board Approval Deadline, as to which TIME SHALL BE OF THE ESSENCE,
then either party may terminate this Contract and the Xxxxxxx Money Deposit
shall be returned immediately to Buyer and neither party shall have any further
rights or obligations under the Agreement except for those provisions that
expressly survive the termination of the Agreement.
5. Due
Diligence Period Ended.
Buyer
hereby acknowledges that the Due Diligence Period described in Section 11 of
the
Contract has ended.
6. Title/Survey
Objections.
Sellers
acknowledge and agree that Buyer reserves all rights under the Contract with
respect to the title and survey objections provided to Sellers in the letter
and
enclosures dated May 12, 2006 from Xxxxxxx Xxxxxxxxx LLP, submitted via
facsimile on May 12, 2006 and supplemented via facsimile on May 16,
2006.
7. No
Other Changes.
Except
as modified by this Second Amendment, the Contract shall remain in full force
and effect.
8. Counterparts.
This
Second Amendment may be executed in counterparts, all of which, when taken
together, shall constitute one original. Facsimile signatures shall be deemed
originals for all purposes.
[THE
SIGNATURE PAGE FOLLOWS ON THE NEXT PAGE]
IN
WITNESS WHEREOF, the parties hereto have executed this Second Amendment as
of
the date and year first above written.
| BUYER: | ||
| THE LIGHTSTONE GROUP, LLC | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxxxxxx | |
|
Xxxxx Xxxxxxxxxxxx, Chief Executive Officer |
||
| SELLER: | ||
| HOME PROPERTIES, L.P. | ||
| |
|
|
| By: |
Home Properties, Inc.,
General Partner
|
|
| By: | /s/ Xxxx X. Xxxxx | |
|
Xxxx X. Xxxxx, Senior Vice President |
||
| HOME PROPERTIES WMF I, LLC | ||
| |
|
|
| By: |
Home Properties, L.P.,
Sole Member
|
|
| By: |
Home Properties, Inc.,
General Partner
|
|
| By: | /s/ Xxxx X. Xxxxx | |
|
Xxxx X. Xxxxx, Senior Vice President |
||
SCHEDULE
6
Buyer
has
received municipal inspection reports from Sellers for the following
Properties:
|
1.
|
Carriage
Hill
|
|
2.
|
Carriage
Park
|
|
3.
|
Charter
Square
|
|
4.
|
Cherry
Hill Club
|
|
5.
|
Cherry
Hill Village
|
|
6.
|
Hampton
Court
|
|
7.
|
Oak
Park
|
|
8.
|
Scotsdale
|
|
9.
|
Springwells
|
