EXHIBIT 10.48
CONSULTING AGREEMENT
This Agreement (the "Agreement") is made as of the 14{th} day of
February, 2001 to be effective as of February 15, 2001, between Home
Properties of New York, L.P. (the "Company"), a New York limited
partnership, and Xxx X. Xxxx ("Consultant").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to establish a formal and
continuing consulting relationship for the period after Consultant ceases
to be an officer and employee of the Company;
NOW, THEREFORE, the Company and Consultant hereby agree as follows
1. Definitions
"Affiliate" means any person, corporation, company, partnership or
other legal entity which controls, is controlled by or is under common
control with the Company.
"Board of Directors" means the Board of Directors of Home Properties
of New York, Inc.
"Business" means the acquisition, financing, operation and management
of multifamily apartment communities and management, financing and
operation of the Company and its Affiliates and such other activities as
are of strategic importance to the Company or any of its Affiliates.
"Person" shall mean an individual, a corporation, trust, partnership,
sole proprietorship and other legal entity.
2. Consulting Duties and Obligations. Effective the 15th day of
February, 2001 (the "Effective Date"), the Company hereby engages
Consultant as a consultant, and Consultant hereby accepts such engagement
on the following terms and conditions:
A. Duties.
(a) As Reasonably Needed. During the term of Consultant's engagement
under this Agreement, Consultant shall be reasonably available
during normal business hours on a reasonable "as-needed" basis at
such times and places as shall be reasonably requested by the
executive officers to assist the Company as a general advisor to
its Business and such other projects as may be requested of
Consultant by the executive officers or Board of Directors.
(b) Location. Consultant will be provided an office as needed and access
to support staff to perform the services requested of Consultant at
the headquarters of the Company.
B. Limitations. Consultant's services shall be those of an
independent contractor rather than an employee or agent of Company, and
Consultant is not be authorized to bind Company or to act on behalf of
Company. Consultant shall perform the services requested pursuant to this
Agreement in accordance with Consultant's own methods and judgment.
Consultant may, during the term of this Agreement, act as an officer or
director of any other business or activity except as expressly prohibited
by this Agreement.
3. Confidential Information. Consultant acknowledges that by reason
of this Consulting Agreement, she may have access to confidential
information of the Company and any of its Affiliates, including, without
limitation, customer lists, information pertaining to acquisitions,
services, developments, improvements in existing services and financial
information of the Company or any such Affiliate. Consultant agrees that
she will not, for any reason whatsoever, directly or indirectly, use or
benefit from, or disclose to any Person, any confidential information
relating to the Business without the express written authorization of
appropriate officers of the Company. This covenant shall survive the
expiration or earlier termination of this Agreement.
4. Non-compete. From and after the Effective Date to and including
February 15, 2002, Consultant agrees that she will not directly or
indirectly, without the written consent of the Board, own, manage, operate,
control, be employed by, or participate in or be connected with (excluding
the ownership of less than a 5% limited partnership interest in the case of
a partnership and less than 5% of the outstanding voting shares in the case
of a corporation) any entity owning or having a financial interest in,
whether direct or indirect, a business entity which is in the business of
owning, operating, acquiring, developing or otherwise dealing in
multifamily residential real properties in any area within a 200 mile
radius of any real property owned by the company or any of its affiliates.
This covenant shall survive the expiration or earlier termination of this
Agreement.
5. Compensation. In consideration of the performance by Consultant
of her obligations under this Agreement, including but not limited to the
non-compete agreement set forth in paragraph 4 above, Consultant shall
receive compensation of $198,000 payable in twelve monthly installments of
$16,500 each, beginning on March 1, 2001 and continuing on the first day of
each month thereafter. Payments shall be made by check payable to
Consultant. In addition, on or about February 15, 2001 and to induce
Consultant to execute this Agreement, the Company shall pay Consultant a
one time fee equal to $127,000.
6. Term. The term of this Agreement shall commence on February 15,
2001, and end on February 15, 2002, unless sooner terminated as provided
below.
7. Termination. The Company may terminate this Agreement by written
notice (the "Termination Notice") upon the occurrence of any one of the
following events of default (each, an "Event of Default"):
(A) the failure by Consultant to perform any of Consultant's
obligations under this Agreement and to cure such failure within 10 days
after written notice thereof;
(B) the death or disability of Consultant. As used in this
Agreement, the term "disability" means the Consultant's inability to engage
in substantial gain or activity with respect to the Company by reason of
any medically determined physical or mental impairment which is expected to
last for a continuous period of three (3) months. The Company shall
determine such disability by such objective proof as it shall reasonably
require.
This Agreement shall terminate on the date specified by the Company in any
notice of termination given in accordance with this Agreement and the
Company shall thereafter have no further liability or obligation to the
Consultant under this Agreement and, expressly, no obligation to make the
payments described in Section 5 above, and this Agreement, together with
such payment obligation, shall be terminated, cancelled and of no further
force or effect.
8. Miscellaneous Terms. This Agreement shall be subject to the
following terms and conditions:
(A) Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and deemed to have been duly given or
made if delivered personally or by facsimile on a business day, or sent by
certified mail or recognized overnight courier and will be given when
received by the addressee:
If to Company:
Home Properties of New York, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile:
Attn: Xxx X. XxXxxxxxx
If to Consultant:
Xx. Xxx X. Xxxx
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
(B) Assignment. This Agreement is personal to Consultant and
Consultant may not assign or delegate the rights or obligations hereunder,
other than to Xxxx Realty Advisors, LLC, without first obtaining the
written consent of the Company.
(C) Severability. Each paragraph of this Agreement is severable and
should any court or other governmental body or competent jurisdiction
declare any provision of this Agreement invalid or unenforceable by reason
of any rule of law or public policy, all other provisions hereunder shall
remain in full force and effect.
(D) Waiver of Breach. The waiver by the Company of a breach by
Consultant of any provision of this Agreement shall not operate to be
construed as a waiver of any subsequent breach by Consultant.
(E) Binding Effect. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company, including any acquirer of
substantially all of the business or assets of the Company and its
Affiliates.
(F) Entire Agreement and Changes. This Agreement contains the entire
agreement of the parties and may be changed only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
(G) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall constitute one and the same
instrument
(H) Applicable Law; Jurisdiction. This Agreement shall be governed
of the State of New York both as to interpretation and performance and
without regard to its principles on conflicts of laws. The parties submit
to the exclusive jurisdiction of the Courts of the State of New York,
federal and state, located in Monroe County for the resolution of any
dispute which does or may arise under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc., General Partner
By: _/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx, Chairman
By:/s/ Xxxxx X. Xxxxxxx /s/ Xxx X. Xxxx
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Xxxxx X. Xxxxxxx, Xxx X. Xxxx
Senior Vice President
