Home Properties of New York, Inc.
1,000,000 Shares*
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
October 7, 1997
BancAmerica Xxxxxxxxx Xxxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Home Properties of New York, Inc., a Maryland corporation (the
"Company") and the general partner of Home Properties of New York, L.P., a
New York limited partnership (the "Operating Partnership"), proposes to
sell to you (the "Underwriters"), shares of Common Stock, $.01 par value
("Common Stock") of the Company (said shares to be issued and sold by the
Company being hereinafter called the "Underwritten Securities"). The
Company also proposes to grant to the Underwriters an option to purchase up
to 150,000 additional shares of Common Stock (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being
hereinafter called the "Securities"). To the extent there are no
additional Underwriters other than you, the term "Representatives" as used
herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context
requires. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the Effective Date of the
Registration Statement or the issue date of such Preliminary Prospectus or
the Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date
of any Preliminary Prospectus or the Prospectus, as the case may be, deemed
to be incorporated therein by reference.
1. REPRESENTATIONS AND WARRANTIES. The Company and the Operating
Partnership represent and warrant to, and agree with, each Underwriter as
set forth below in this Section. Certain terms used in this Section 1 are
defined in Section 16 hereof.
_________________________
* Plus an option to purchase from Home Properties of New York, Inc., up to
150,000 additional shares to cover over-allotments.
(a) The Company meets the requirements for use of Form S-3 under
the Act and has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (file number 333- 02674) on
such Form, including a related preliminary prospectus, for the
registration under the Act of the offering and sale of the Securities.
The Company (i) has been subject to the requirements of Section 12 of
the Exchange Act for a period of at least 36 months, (ii) has filed in
a timely manner all the material required to be filed pursuant to
Sections 12, 13 or 15(d) of the Exchange Act for a period of at least
12 months, and (iii) has outstanding an aggregate market value of
voting common equity securities held by non-affiliates of $150 million
or more. The Company may have filed one or more amendments thereto,
including a related preliminary prospectus, each of which has
previously been furnished to you. The Company will next file with the
Commission one of the following: (i) prior to the Effective Date of
such registration statement, a further amendment to such registration
statement, including the form of final prospectus, (ii) a final
prospectus in accordance with Rules 430A and 424(b)(1) or (4), or
(iii) a final prospectus in accordance with Rules 415 and 424(b)(2) or
(5). In the case of clause (ii), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified by
Regulation S-K Item 512(a), the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined
herein) and on any date on which shares sold in respect of the
Underwriters' over-allotment option are purchased, if such date is not
the Closing Date (a "settlement date"), the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that the Company makes
no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished herein or in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(c) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and, to the
knowledge of the Company, no proceeding for that purpose has been
instituted or threatened by the Commission or by the state securities
or Blue Sky authority of any jurisdiction. No order preventing or
suspending the use of the Prospectus has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission or by the state securities or
Blue Sky authority of any jurisdiction.
(d) Coopers & Xxxxxxx, L.L.P., the accounting firm that certified
the financial statements included in the Registration Statement, is an
independent public accountant as required by the Act and the rules and
regulations thereunder.
(e) The financial statements (including all notes and schedules
thereto) included in the Registration Statement and Prospectus present
fairly in all material respects the financial position, the results of
operations and cash flows and the changes in net assets (deficiency)
and stockholders' and partner's equity and the other information
purported to be shown therein of the entities purported to be shown
thereby at the respective dates and for the respective periods to
which they apply; and such financial statements have been prepared in
conformity with generally accepted accounting principles consistently
applied throughout the periods involved, and all adjustments necessary
for a fair presentation of the results for such periods have been
made. Pro forma financial information included in the Prospectus has
been prepared in accordance with the applicable requirements of the
Act, the rules and regulations thereunder and the American Institute
of Certified Public Accountants guidelines with respect to pro forma
financial information and includes all adjustments necessary to
present fairly the pro forma financial position of the respective
entity or entities presented therein at the respective dates indicated
and the results of their operations for the respective periods
specified.
(f) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Maryland. The Company has no subsidiary or subsidiaries and does not
control, directly or indirectly, any corporation, partnership, joint
venture, association or other business organization whose operations
are consolidated with those of the Company for financial reporting
purposes, except (i) the Operating Partnership, Home Properties Trust,
a Maryland real estate investment trust ("Home Properties QRS"),
Home Properties Management, Inc., a Maryland corporation ("HP
Management"), and Conifer Realty, Inc. ("Conifer"), a Maryland
corporation (collectively, the "Management Companies"), of which the
Operating Partnership owns all of the issued and outstanding shares of
non-voting common stock, and (ii) Valley Park South Partnership, a New
York general partnership, Home Properties/Olde Mill Partnership, a New
York general partnership, Home Properties/Fairways at Village Green
Partnership, a New York general partnership, HME/Fairways at Village
Green Partnership, a New York general partnership, Sunset Gardens
Limited Partnership, a New York limited partnership, and Royal Gardens
Associates, L.L.C., a New York limited liability company, each as
described on SCHEDULE A hereto (individually, a "Subsidiary," and
collectively, the "Subsidiaries"). The Company is duly qualified and
in good standing as a foreign corporation in each jurisdiction in
which the character or location of any of its assets or properties
(owned or leased) or the nature of its business makes such
qualification necessary, except for such jurisdictions where the
failure to so qualify would not have a material adverse effect on the
assets or properties, business, results of operations, prospects,
earnings or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole. Neither the Company nor the
Subsidiaries own or lease any asset or property located outside the
United States of America, or conducts any business outside the United
States of America. Each of the Company and the Subsidiaries have all
requisite power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and
from all governmental or regulatory bodies or any other person or
entity, to own, lease and license their assets and properties and
conduct their business as now being conducted and as described in the
Registration Statement and the Prospectus, except for such
authorizations, approvals, consents, orders, licenses, certificates
and permits the failure of which to have would not have material
adverse effect on the assets or properties, business, results of
operations, prospects, earnings or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole; no such
authorization, approval, consent, order, license, certificate or
permit contains a materially burdensome restriction on the conduct of
the Company's and the Subsidiaries' business, taken as a whole, as now
being conducted and as described in the Registration Statement and the
Prospectus, other than as disclosed in the Registration Statement and
the Prospectus; and each of the Company and the Operating Partnership
have all such power and authority, and such authorizations, approvals,
consents, orders, licenses, certificates and permits, to enter into,
deliver and perform their respective obligations under this Agreement
and, with respect to the Company, to issue and sell the Shares (except
as may be required under the Act and state and foreign Blue Sky laws
and except for the listing of such shares on the New York Stock
Exchange (the "NYSE"), provided that on or prior to the Closing Date
the listing of the shares on the NYSE will have been approved, subject
only to official notice of issuance).
(g) The Operating Partnership and the Subsidiaries (collectively,
the "Partnerships") have been duly formed and are validly existing as
limited partnerships or limited
liability companies under the laws of their respective states of
formation. The Partnerships are duly qualified to transact business
in each jurisdiction in which the character or location of any of
their respective assets or properties (owned or leased) or the nature
of their respective business makes such qualification necessary,
except for such jurisdictions where the failure to so qualify would
not have a material adverse effect on the assets, properties,
business, results of operations, prospects, earnings or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as
a whole.
(h) The Company and the Subsidiaries own, or possess adequate and
enforceable rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, copyrights,
copyright applications and other similar rights (collectively,
"Intangibles") necessary for and material to the conduct of their
business, taken as a whole, as described in the Registration Statement
and the Prospectus. To the best knowledge of the Company and the
Operating Partnership, no infringement has occurred or is occurring
with respect to any Intangible, and neither the Company nor the
Operating Partnership knows of any basis therefor.
(i) The Partnerships have, directly or indirectly, good and
marketable title in fee simple to the real property described in the
Prospectus as being owned by them (collectively, such properties are
referred to herein as the "Properties"), and good title to all
personal property owned or proposed to be owned by it as is material
to the business of the Company and the Subsidiaries, taken as a whole,
in each case free and clear of all liens, encumbrances and defects,
except such as are described in the Prospectus or such as do not
materially affect the value of any such property and do not interfere
with the use made and proposed to be made of any such property by the
Company and the Subsidiaries; (ii) any real property held under lease,
directly or indirectly, by the Operating Partnership is held by it
under leases which are valid, subsisting, enforceable against the
Operating Partnership, and no default by the Operating Partnership has
occurred and is continuing thereunder, with such exceptions as are not
material and do not interfere in any material respect with the use
made and proposed to be made of such property by the Company and the
Subsidiaries; (iii) the operation of the buildings, fixtures and other
improvements (the "Improvements") located on or comprising any portion
of the Properties as presently conducted is not in violation of any
applicable building code, zoning ordinance or other law or regulation,
except where such violation of any other law or regulation, except
where such violation of any applicable building code, zoning ordinance
or other law or regulation would not, singly or in the aggregate, have
a material adverse effect on the Company and the Subsidiaries, taken
as a whole; (iv) neither the Company nor the Operating Partnership has
received notice of any proposed special assessment or any proposed
material change in any property tax, zoning or land use laws or
availability of water affecting all or any portion of the Properties
which would, singly or in the aggregate, have a material adverse
effect on the Company and the Subsidiaries, taken as a whole; (v)
there do not exist any material violations of any declaration of
covenants, conditions and restrictions (the "CC&R's") with respect to
any of the Properties, nor is there any existing state of facts or
circumstances or condition or event which could, with the giving of
notice or passage of time, or both, constitute such a violation which
would, singly or in the aggregate, have a material adverse effect on
the Company and the Subsidiaries, taken as a whole; and (vi) the
Improvements are free of any and all material physical, mechanical,
structural, design and construction defects and the Improvements
(including, without limitation, all water, electric, sewer, plumbing,
heating, ventilation, gas and air conditioning servicing the
Improvements), are in good condition, reasonable wear and tear
excepted, and are in proper working order, except where the failure of
such Improvements to be in good condition and working order would not
have a material adverse effect on the Company and the Subsidiaries,
taken as a whole.
(j) There is no litigation or governmental or other proceeding or
investigation before any court or before or by any public body or
board pending or, to the Company's and the Operating Partnership's
best knowledge, threatened (and neither the Company nor the Operating
Partnership knows of any reasonable basis therefor) against, or
involving the assets, properties or business of, the Company or any
Subsidiary (including without limitation any such litigation,
proceeding or investigation regarding the ADA or the FHAA (as such
terms are defined in the Prospectus) or with respect to discrimination
against any protected class), which could materially adversely affect
the assets or properties, business, results of operations, prospects,
earnings or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole.
(k) None of the Company, the Operating Partnership or any
Subsidiary is, and after giving effect to the offering and sale of the
securities and the application of the proceeds thereof as described in
the Prospectus will not be, an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(l) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
described therein, there has not been any material adverse change in
the assets or properties, business, results of operations, prospects,
earnings or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, and neither the
Company nor any Subsidiary has sustained any material loss or
interference with its assets, business or properties from fire,
explosion, earthquake, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree; and since the date of the
latest balance sheet included in the Registration Statement and the
Prospectus, except as reflected therein, neither the Company nor any
Subsidiary has undertaken any liability or obligation, direct or
contingent (other than the Company's $50 million unsecured credit
facility provided by The Chase Manhattan Bank and Manufacturers and
Traders Trust Company entered into on September 4, 1997), that is
material to the Company and the Subsidiaries, taken as a whole, except
for liabilities or obligations undertaken in the ordinary course of
business.
(m) No default exists, and no event has occurred which
with notice or lapse of time, or both, would constitute a default, in
the due performance and observance of any term, covenant or condition
by the Company or any Subsidiary of any indenture, mortgage, deed of
trust, note or other agreement or instrument to which either the
Company or any Subsidiary is a party or by which any of them, their
business or any of their assets or properties are bound or affected,
which default or event would have a material adverse effect on the
assets or properties, business, results of operations, prospects,
earnings or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole. The mortgages and deeds of trust
encumbering the Properties are not be cross-defaulted or cross-
collateralized with any other property not owned directly or
indirectly by any of the Company or the Subsidiaries.
(n) Neither the Company nor HP Management is in violation of any
term or provision of its certificate of incorporation or by-laws (or,
in the case of the Partnerships, the certificate of limited
partnership or partnership agreement of the Partnerships or the
operating agreement, if a limited liability company (the "Partnership
Agreements" and, in the case of the Operating Partnership, the "OP
Partnership Agreement")) or of any franchise, license, permit,
judgment, decree, order, statute, rule or regulation, where the
consequences of such violation would have a material adverse effect on
the assets or properties, business, results of operations or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as
a whole.
(o) All necessary corporate and partnership action has been duly
and validly taken by the Company and the Operating Partnership,
respectively, to authorize the execution, delivery and performance of
this Agreement and the issuance and sale of the Securities by the
Company. This Agreement has been duly and validly executed and
delivered by the Company and the Operating Partnership and constitutes
and will constitute the legal, valid and binding obligation of the
Company and the Operating Partnership, respectively, enforceable
against the Company and the Operating Partnership in accordance with
its terms, except (A) as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles and (B) to the extent that rights to
indemnity or contribution hereunder may be limited by federal and
state securities laws or the public policy underlying such laws.
(p) Neither the execution, delivery or performance of this
Agreement by the Company and the Operating Partnership nor the
consummation of any of the transactions contemplated hereby and by the
Prospectus (including, without limitation, the issuance and sale by
the Company of the Securities to be sold by the Company) will give
rise to a right to terminate or accelerate the due date of any payment
due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with notice
or lapse of time or both would constitute a default) under, or require
any consent or waiver under, or result in the execution or imposition
of any lien, charge or encumbrance upon any properties or assets of
the Company or any Subsidiary pursuant to the terms of, any indenture,
mortgage, note or other agreement or instrument to which the Company
or any Subsidiary is a party or by which any of them, their business
or any of their assets or properties are bound, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation,
or violate any provision of their certificates of incorporation or
by-laws (or, in the case of a Partnership, the certificate of limited
partnership of such Partnership or the applicable Partnership Agreement),
except for such consents or waivers which have already been obtained
and are in full force and effect or will be obtained on or prior to the
Closing or are required under instruments which will be paid with the
proceeds of the Offering and discharged at the Closing.
(q) There is no document or contract of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which is not
described or filed as required. All contracts described in the
Prospectus or included as exhibits to the Registration Statement to
which the Company or any Subsidiary is a party constitute, or upon
their execution and delivery will constitute, valid and binding
agreements of the Company or such Subsidiary and are enforceable
against the Company or such Subsidiary in accordance with the terms
thereof, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles.
(r) The Company has the authorized and outstanding capital stock
as set forth under the caption "Description of Capital Stock" in the
Prospectus. All such stock (including without limitation the capital
stock issued under the Stock Purchase Plan described in the
Prospectus) has been validly issued, is fully paid and nonassessable.
The issuance and financing of stock issued under the Stock Purchase
Plan has been duly authorized by all corporate action and does not
violate any law or regulation applicable to or agreement binding on
the Company. The Securities, when issued and sold pursuant to this
Agreement, will be duly and validly issued, fully paid and
nonassessable and none of them will be issued in violation of any
preemptive or other similar right binding on the Company. Except as
disclosed in the Registration Statement and the Prospectus, there is
no outstanding option, warrant or other right calling for the issuance
of, and no commitment, plan or arrangement to issue, any share of
stock of the Company or any security convertible into, or exercisable
or exchangeable for, such stock. The Common Stock conforms in all
material respects to all statements in relation thereto contained in
the Registration Statement and the Prospectus. The Company has
reserved a sufficient number of shares for issuance upon redemption of
limited partnership units in the Operating Partnership.
(s) All of the partnership interests of the Operating Partnership
("OP Units") are validly issued, fully paid by the Company, the Home
Leasing Group (as defined in the Prospectus) and other third persons,
and the OP Units held by the Company are free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity. Such OP Units have been offered and sold in compliance with
all federal and applicable state securities laws. The Company is the
sole general partner of the Operating Partnership.
(t) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
described or referred to therein, none of the Company or the
Subsidiaries has (i) issued any securities or incurred any liability
or obligation, direct or contingent, for borrowed money, (ii) entered
into any transaction not in the ordinary course of business or (iii)
declared or paid any dividend or made any distribution on any shares
of its stock (or, in the case of the Operating Partnership, any OP
Units), or redeemed, purchased or otherwise acquired, or agreed to
redeem, purchase or otherwise acquire, or any contractual right to
redeem, purchase or otherwise acquire, any shares of its stock (or, in
the case of the Operating Partnership, any OP Units).
(u) Based upon your letter limiting the size of the Offering, no
holder of any security of the Company or any Subsidiary of the Company
has the right to have such security included in the Registration
Statement. The Company has obtained from Xxxxxx Xxxxxxxxx and Xxxxxx
Xxxxxxxxx the enforceable written agreement that, for a period of at
least five years after August 4, 1994, such persons will not, without
the prior written consent of the Representatives, sell, grant any
option for the sale of, or otherwise dispose of, directly or
indirectly, any shares of Common Stock (or any securities convertible
into or exercisable or exchangeable for any shares of Common Stock)
owned by them, except as otherwise provided in the letters dated
August 4, 1994 previously delivered to you.
(v) The OP Partnership Agreement has been duly and validly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the other parties
thereto, is a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms. The
execution, delivery and performance of the OP Partnership Agreement
does not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or the certificate of
limited partnership of the Operating Partnership or any agreement or
other instrument binding upon the Company and the Operating
Partnership that is material to Company and the Subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over any of the Company and the
Operating Partnership and no consent, approval, authorization or order
of or qualification with any governmental body or agency is required
for the performance by the Company or the Operating Partnership of
their obligations under the OP Partnership Agreement.
(w) Neither the Company nor any Subsidiary is involved in any
labor dispute and, to the best knowledge of the Company, no such
dispute is threatened, which dispute would have a material adverse
effect on the assets or properties, business, results of operations,
prospects, earnings or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole.
(x) No transaction has occurred between or among the Company or
the Subsidiaries and any of its or their officers, directors,
stockholders, partners, or affiliates that is required to be described
in and is not described in the Registration Statement and the
Prospectus.
(y) The Company and the Subsidiaries have not taken, and they
will not take, directly or indirectly, any action designed to or which
might reasonably be expected to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of any of the Securities.
(z) The Company and the Subsidiaries have filed all federal,
state, local and foreign tax returns required to have been filed
through the date hereof, and all taxes shown on such returns have been
paid and all assessments received with respect to them to the extent
that the same are material have been paid.
(aa) The Securities have been duly authorized for listing, upon
notice of issuance, on the NYSE.
(bb) In connection with the ownership, operation and use of the
Properties, the Company has no knowledge of any material failure to
comply with any applicable local, state or federal civil or criminal
laws, statutes, regulations, ordinances, codes, permits, rules, common
law or administrative or judicial orders relating to the generation,
treatment, recycling, handling, reuse, sale, storage, handling,
transport and disposal of any Hazardous Materials or the protection of
human health and the environment (collectively, "Environmental Laws").
As used herein, the term "Hazardous Materials" means any petroleum,
petroleum hydrocarbons, petroleum waste or petroleum products,
underground storage tanks, asbestos or asbestos-containing materials,
pesticides, lead and lead-containing materials, urea formaldehyde
insulation and polychlorinated biphenyl (PCBs), ionizing and non-
ionizing radiation including radon and electromagnetic frequency
radiation; and any chemicals, materials, substances or wastes in any
amount or concentration which are now or hereafter become defined as
or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants"
or words of similar import, under any Environmental Law.
(i) Except as disclosed in the Environmental Reports, there
are no facts, circumstances or conditions that could reasonably
be expected to restrict, encumber or result in the imposition of
special conditions or liens under any Environmental Law or
environmental permits with respect to the ownership, occupancy,
development, use or transferability of the Properties.
(ii) The Company has not and will not use, store, treat,
handle, manufacture, process, generate or dispose of, nor will it
permit the use, storage, treatment, handling, manufacturing,
processing, generation, disposal or other disposition of,
Hazardous Materials at the Properties, except as permitted by
applicable Environmental Laws.
(cc) Commencing with the Company's taxable year ending
December 31, 1994, the Company has been organized in conformity
with the requirements for qualification as, and elects to qualify
as, a real estate investment trust (a "REIT") under Sections 856
through 860 of the Internal Revenue Code and the rules and
regulations thereunder (the "Code"), and the Company's method
of operation enables it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(dd) The Company and the Subsidiaries have and will maintain
liability, property, casualty and other insurance policies with
respect to each of the Properties, insuring them against the risks
of loss arising out of or related to their businesses as described
in the Registration Statement and the Prospectus, in an amount and
on such terms as is reasonably adequate and appropriate for such
businesses.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby,
to each Underwriter.
2. PURCHASE AND SALE. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees to purchase from the Company, at a purchase price
of $25.75 per share, the Underwritten Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters to purchase, severally
and not jointly, up to 150,000 shares of Option Securities at the same
purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any
time (but not more than once) on or before the 2nd day after the date
of the Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of shares of
the Option Securities as to which the several Underwriters are
exercising the option and the settlement date. Delivery of
certificates for the shares of Option Securities, and payment
therefor, shall be made as provided in Section 3 hereof.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided
for in Section 2(b) hereof shall have been exercised) shall be made at
10:00 AM, New York City time, on October 10, 1997, or at such time on such
later date not more than three Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed
by agreement between the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Underwriters against payment by the
Underwriters of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified
in writing by the Company at least three business days prior to the Closing
Date. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless
the Representatives shall otherwise instruct.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Prospectus.
5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement to the
Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to
Rule 430A, or filing of the Prospectus is otherwise required under
Rule 424(b), the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, shall have become effective,
(ii) when the Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (iii) when, prior to termination of the offering of
the Securities, any amendment to the Registration Statement shall have
been filed or become effective, (iv) of any request by the Commission
or its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the
Prospectus or of any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will either (i)
prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance, or
(ii) prepare and file with the Commission an appropriate filing under
the Exchange Act which shall be incorporated by reference in the
Prospectus.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Company will furnish to the Underwriter and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of the Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will cooperate with the Underwriter, if
necessary, for the qualification of the Securities for sale under the
laws of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Securities; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(f) The Company will continue to elect to qualify as a REIT under
the Code and will use its best efforts to continue to meet the
requirements to qualify as a REIT for the foreseeable future.
(g) The Company will apply the net proceeds from the sale of the
Securities for the purposes set forth under the caption "Use of
Proceeds" in the Prospectus.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwritten Securities and
the Option Securities, as the case may be, shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened by the Commission or any state or Blue Sky
authority, and any request on the part of the Commission or any state
or Blue Sky authority for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have
been complied with to the reasonable satisfaction of the
Representatives. There shall not have come to the attention of the
Representatives any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to a purchaser
of the Securities, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Company has elected to rely upon
Rule 430A, the Rule 430A Information shall have been transmitted to
the Commission for filing pursuant to Rule 424(b) within the
prescribed time period, and before the Closing Date the Company shall
have provided evidence satisfactory to the Representatives of such
timely filing, or a post-effective amendment providing the Rule 430A
Information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A.
(b) The Company shall have furnished to the Representatives the
opinion of Nixon, Hargrave, Devans & Xxxxx LLP, counsel for the
Company, or, with respect to clauses or paragraphs (ii)(B), (iv)(x),
(vi), (vii)(B) and (x) below, inside counsel for the Company, dated
the Closing Date, to the effect that:
(i) The Company and the Management Companies have been duly
incorporated and, based solely on certificates of public
officials, are validly existing as corporations in good standing
under the laws of the State of Maryland, have the corporate power
and authority to own, lease and operate their respective
properties and to conduct their respective businesses as
described in the Prospectus. The Partnerships have been duly
formed and, based solely on certificates of public officials, are
validly existing as limited partnerships or limited liability
companies under the laws of their respective states of formation,
have the power and authority to own, lease and operate their
respective properties and to conduct their respective businesses
as described in the Prospectus. The Company and the Subsidiaries
are duly qualified and, based solely on certificates of public
officials, in good standing, in each jurisdiction in which the
character or location of any of their assets or properties
(owned, leased or licensed) or the nature of their businesses
makes such qualification necessary, except for such jurisdictions
where the failure to so qualify would not have a material adverse
effect on the assets or properties, business, results of
operations, prospects, earnings or conditions (financial or
otherwise) of the Company and the Subsidiaries, taken as a whole.
The Company and the Operating Partnership have the power and
authority to enter into, deliver and perform their respective
obligations under this Agreement and, in the case of the Company,
to issue and sell the Securities, other than those required under
the Act and state and foreign securities or Blue Sky laws.
(ii) (A) The Company's authorized capital stock consists of
30,000,000 shares of Common Stock, 10,000,000 shares of excess
stock and 10,000,000 shares of preferred stock, $.01 par value
per share. The capital stock of the Company conforms in all
material respects to the description thereof in the Prospectus
under the caption "Description of Capital Stock." The form of
certificates evidencing the Securities complies in all material
respects with the requirements of the General Corporation Law of
the State of Maryland and the Securities have been duly
authorized for issuance by the Company. (B) All such stock
(including without limitation the capital stock issued under the
Stock Purchase Plan described in the Prospectus) has been validly
issued, is fully paid and nonassessable. The issuance and
financing of stock issued under the Stock Purchase Plan have been
duly authorized by all corporate action and does not violate any
law or regulation applicable to or agreement binding on the
Company. The Securities to be sold by the Company, when issued,
sold and paid for pursuant to this Agreement, will be duly and
validly issued, outstanding, fully-paid and nonassessable and
none of them will have been issued in violation of any statutory
preemptive or, to such counsel's knowledge, other similar right
presently in effect and binding on the Company. To such
counsel's knowledge, except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of capital
stock of the Company or any security convertible into or
exercisable or exchangeable for capital stock of the Company.
The Company has reserved a sufficient number of shares for
issuance upon conversion of limited partnership interests in the
Operating Partnership outstanding on the Closing Date. Based
upon your letter limiting the size of the Offering, neither the
filing of the Registration Statement or any amendment thereto nor
the offer and sale of the Securities by the Company to the
Underwriters as contemplated by this Agreement gives rise to any
right for or relating to the registration under the Act of any
shares of capital stock of the Company (including shares issuable
upon the exercise of outstanding option, warrants or other rights
to purchase, or other obligations or securities convertible into
or exercisable or exchangeable for, shares of such capital stock)
or any other securities of the Company or any Subsidiary, either
by law or, to such counsel's knowledge, pursuant to any contract
or other arrangement or agreement other than pursuant to a
registration rights' agreement among the Company and the officers
named therein. (C) Upon delivery of certificates for the
Securities being sold by the Company under this Agreement and
payment therefor in accordance with the terms hereof, the
Underwriters will own such Securities, free and clear of any
adverse claims, except for those created or imposed by the
Underwriters or those of which the Underwriters are otherwise
aware.
(iii) The Company is the sole general partner of the
Operating Partnership.
(iv) The Company has taken all necessary corporate action
and the Operating Partnership has taken all necessary action, in
each case, to duly and validly authorize the execution, delivery
and performance of this Agreement and, in the case of the
Company, to issue and sell the Securities. This Agreement has
been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership. This Agreement
constitutes the legal, valid and binding obligation of the
Company and the Operating Partnership, enforceable against each
thereof in accordance with its terms, except (A) as the
enforceability hereof and thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by
general equitable principles and (B) to the extent that rights to
indemnity or contribution hereunder may be limited by federal or
state securities laws or the public policy underlying such laws.
The performance by the Company and the Operating Partnership of
this Agreement and the consummation of the transactions
contemplated hereby will not (w) violate or conflict with the
certificate of incorporation or by-laws of the Company, the
certificate of limited partnership of the Operating Partnership
or the OP Partnership Agreement, (x) to such counsel's knowledge,
result in a breach or violation (or, with notice or lapse of time
or both, constitute a breach or a violation) of any of the terms
or provisions of, or constitute a default under, or give any
other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under, any
indenture, mortgage, deed of trust, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument to which the
Company or any Subsidiary is a party, or by which any of its
assets or properties or business is bound or affected, where the
consequences of such breach, violation or default would have a
material adverse effect on the business, results of operations,
prospects, earnings or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, except where
consents or waivers have heretofore been obtained, (y) require
any consent, approval, authorization or order of, or
qualification with, and governmental body or agency except as
required under the Act or the Exchange Act (provided, however,
that no opinion need be rendered concerning state or foreign
securities or Blue Sky laws), or (z) to such counsel's knowledge,
violate or conflict with any judgment, ruling, decree or order of
any court or other governmental agency or body applicable to the
assets or properties or business of the Company or any Subsidiary
where the consequences of such violation or conflict would have a
material adverse effect on the business, results of operations,
prospects, earnings or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole.
(v) Each of the Company and the Operating Partnership has
all corporate or partnership power and authority, as appropriate,
to enter into, deliver and perform its obligations under the OP
Partnership Agreement, and each of the Company and the Operating
Partnership has taken all necessary corporate or partnership
action to authorize the execution, delivery and performance
by it of the OP Partnership Agreement. The OP Partnership
Agreement has been validly executed and delivered and,
assuming due authorization, execution and delivery
by the other parties thereto, the OP Partnership Agreement is a
valid and binding obligation of the Company and the Operating
Partnership, enforceable in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
affecting creditors' rights generally and by general equitable
principles. The execution, delivery and performance of the OP
Partnership Agreement and compliance by the Company and the
Operating Partnership, to the extent a party thereto, with their
obligations thereunder, did not and do not contravene any
provision of applicable law or the certificate of incorporation
or by-laws of the Company or the certificate of limited
partnership of the Operating Partnership or, to such counsel's
knowledge, any agreement or other instrument binding upon the
Company or the Operating Partnership that is material to the
Company and the Subsidiaries, taken as a whole, or, to such
counsel's knowledge, any judgment, or decree of any governmental
body, agency or court having jurisdiction over the Company and
the Subsidiaries, and no consent, approval, authorization or
order of or qualification with any governmental body or agency is
required for the performance by the Company or the Operating
Partnership of their respective obligations under the OP
Partnership Agreement.
(vi) To counsel's knowledge, no default exists, and no event
has occurred which with notice or lapse of time, or both, would
constitute a default, in the due performance and observance of
any term, covenant or condition by the Company or any Subsidiary
of any agreement or instrument filed as an exhibit to the
Registration Statement to which the Company or any Subsidiary is
a party or by which any of them or any of their assets,
properties or business are bound or affected, where the
consequences of such default would have a material adverse effect
on the business, results of operations, prospects, earnings or
condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, except where consents or waivers
have been obtained.
(vii) (A) To counsel's knowledge, the Company is not in
violation of any term or provision of its certificate of
incorporation or by-laws. (B) To such counsel's knowledge, none
of the Partnerships is in violation of any term or provision of
its certificate of limited partnership or Partnership Agreement.
(viii) To such counsel's knowledge, there is no litigation
or governmental or other proceeding or investigation before any
court or before or by any public body or board pending or
threatened against, or involving the assets, properties or
business of, the Company or any Subsidiary which is required to
be described in the Prospectus but is not so described.
(ix) The statements in the Prospectus under the captions
"Description of Capital Stock", "Description of Debt Securities",
"Federal Income Tax Considerations", "ERISA Considerations" and
"Recent Legislation", insofar as such statements constitute
summaries of the legal documents or proceedings or matters of law
referred to therein, are fair summaries of such documents,
proceedings and matters of law and accurately present the
information required with respect thereto. To such counsel's
knowledge, all contracts and other documents required to be
described in the Registration Statement or to be filed as
exhibits to the Registration Statement have been so described or
filed.
(x) Commencing with the Company's taxable year ending
December 31, 1994, the Company has been and is organized in
conformity with the requirements for qualification as a REIT
under the Code. The Company's method of operation enables and
will enable the Company to meet the requirements for taxation as
a REIT under the Code.
(xi) The Operating Partnership will be treated as a
partnership, rather than as an association or publicly traded
partnership taxable as a corporation, for federal income tax
purposes.
(xii) The Registration Statement and the Prospectus and each
amendment or supplement thereto (except for the financial
statements and schedules and other financial and statistical data
included therein, as to which such counsel need not express any
opinion) comply as to form in all material respects with the
requirements of the Act.
In addition, such counsel shall state that they have participated in
the preparation of the Registration Statement and the Prospectus and,
although such counsel need not pass upon, and does not assume any
responsibility for, the accuracy, completeness and fairness of the
statements contained in the Prospectus, and such counsel has made no
independent check or verification thereof, during the course of such
participation (taking into account as to materiality the statements of
officers and other representatives of the Company) nothing has come to
their attention which has caused them to believe that, as of the
Effective Date, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel has not been requested to and need not
express any comment as to the financial statements and schedules or
other financial or statistical data included in the Registration
Statement or Prospectus or the financial information under the caption
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" in the Prospectus).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction
other than the State of Maryland or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe
to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials. References to the Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, counsel for the Underwriters, such
opinion, dated the Closing Date, with respect to the issuance and sale
of the Securities and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(d) The Company shall have furnished to the Representatives (i)
customary closing certificates, signed by an appropriate officer of
the Company on its own behalf and on behalf of the Operating
Partnership, with respect to (A) the Certificate of Incorporation and
by-laws of the Company and the certificate of limited partnership of
the Operating Partnership, (B) the authorizing resolutions of the
Company on its own behalf and on behalf of the Operating Partnership,
(C) the incumbency of officers of the Company who have executed the
Registration Statement, this Agreement, and any certificates delivered
pursuant hereto, (D) copies of all correspondence with the Commission
and the NYSE with respect to the registration or listing, as the case
may be, of the Underwritten Securities and (E) such other matters as
may be reasonably requested by the Representatives or their counsel,
(ii) certificates from the transfer agent for the Common Stock as to
the number of shares of Common Stock outstanding on the date of the
Prospectus and each Closing Date, and (iii) a certificate, addressed
to the Representatives and dated such Closing Date, signed by one of
the co-chief executive officers and the chief financial officer of the
Company on its own behalf and on behalf of the Operating Partnership,
signing in their capacities as such officers, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the
representations and warranties of the Company and the Operating
Partnership in this Agreement are true and correct in all material
respects on and as of such Closing Date with the same effect as if
made on such Closing Date and the Company and the Operating
Partnership have performed all covenants and agreements and satisfied
all conditions contained in this Agreement required to be performed or
satisfied by them at or prior to such Closing Date, and that:
(A) The representations and warranties of the Company
and the Operating Partnership contained in this Agreement
and in the certificates delivered pursuant to this Section
6(d) shall be true and correct in all material respects when
made and on and as of each Closing Date as if made on such
date, and the Company and the Operating Partnership shall
have performed all covenants and agreements and satisfied
all conditions contained in this Agreement required to be
performed or satisfied by them at or before such Closing
Date.
(B) No order preventing or suspending the use of the
Prospectus shall have been or shall be in effect, and no
order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such
purpose shall be pending before or threatened by the
Commission, and any requests for additional information on
the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of
the Representatives.
(C) Since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the assets or properties,
business, results of operations, prospects, earnings or
condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus.
References to the Prospectus in this paragraph (d) include any
supplement thereto at the date of the letter.
(e) At the Execution Time and at the Closing Date, Coopers &
Xxxxxxx, L.L.P. shall have furnished to the Representatives a letter
or letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the
Representatives, stating in effect that:
(i) They are independent certified public accountants with
respect to the Company and the Properties within the meaning of
the Act and the rules and regulations thereunder, and the
information set forth in the Registration Statement in response
to Item 10 of Form S-3 under the Act is correct insofar as it
relates to them;
(ii) In their opinion, the financial statements audited by
them and included in the Prospectus and the unaudited interim
financial statements reviewed by them and included in the
Prospectus comply as to form in all material respects with the
applicable accounting retirements of the Act and the rules and
regulations thereunder;
(iii) On the basis of procedures referred to in such letter,
including, but not limited to, a reading of the latest available
interim financial statements of the Company and the Properties
and inquiries of officials of the Company responsible for
financial and accounting matters, nothing caused them to believe
that:
(A) The unaudited interim financial statements for the
Properties for the six month period ended June 30, 1997
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the Act and the rules and regulations
thereunder, or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with the basis for the audited financial
statements included in the Prospectus;
(B) At the date of the latest available internal
balance sheet of the Company (which balance sheet shall be
as of a date not earlier than August 31, 1997) and at a
subsequent specified date not more than five days prior to
the date of such letter, there was any change in the assets,
stockholders' equity or debt of the Company as compared with
amounts shown in the June 30, 1997 balance sheet included in
the Prospectus, except in all cases for changes or decreases
that the Prospectus discloses have occurred or may occur or
as may be set forth in such letter; and
(C) For the period from June 30, 1997, to the date of
the latest available internal combined financial information
of the Properties (which combined financial information will
include revenues, property operating and maintenance
expense, real estate taxes and general and administrative
expenses, which shall be for the period ended June 30,
1997), and to a subsequent specified date not more than five
days prior to the date of such letter, there was any
decrease, as compared with the corresponding period of the
previous year, in revenues or net revenues after subtracting
property operating and maintenance expense, real estate
taxes and general and administrative expenses from
operations of the Properties, except in all cases for
decreases that the Prospectus discloses have occurred or may
occur or as may be set forth in such letter.
(iv) In addition to the audits referred to in their reports
included in the Registration Statement and Prospectus and the
procedures referred to in clause (iii) above, they have carried
out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and other
financial information that are included in the Registration
Statement and the Prospectus and which have been specified by the
Representatives and have found such amounts, percentages and
other financial information to be in agreement with the relevant
accounting, financial and other records of the entities
identified in such letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof after the date of this Agreement) and the
Prospectus (exclusive of any supplement thereto after the date of this
Agreement), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of
this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company, the
Subsidiaries or the Properties, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto after the date of this Agreement) the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement and the Prospectus.
(g) The Company shall have caused the Securities to be eligible
for trading upon issuance.
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be
given to the Company in writing or by telephone or facsimile confirmed in
writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through BancAmerica Xxxxxxxxx Xxxxxxxx
on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Operating Partnership agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement made by the Company or the Operating Partnership in Section 1
hereof, (ii) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus, or in any
amendment thereof or supplement thereto, or (iii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that the Company and the Operating Partnership
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Company and the Operating Partnership by or on behalf of
any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability
which the Company or the Operating Partnership may otherwise have.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company and the Operating Partnership, each director of the Company
and the Operating Partnership, each officer of the Company and the
Operating Partnership who signs the Registration Statement, and each
person who controls the Company and the Operating Partnership within
the meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company and the Operating
Partnership to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company and
the Operating Partnership by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise
have. The Company and the Operating Partnership acknowledge that the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities, the stabilization legend in block capital
letters on page 2 and under the heading "Underwriting", (i) the
sentences related to concessions and reallowances and (ii) the
paragraph related to stabilization in any Preliminary Prospectus and
the Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); PROVIDED, HOWEVER, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the
other, agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively
"Losses") to which the Company and the Operating Partnership and the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Operating Partnership and by the Underwriters from the offering of the
Securities; PROVIDED, HOWEVER, that in no case shall any Underwriter
be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Operating Partnership and the Underwriters shall contribute in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and the Operating
Partnership on the one hand, and of the Underwriters, on the other, in
connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Operating Partnership shall
be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on
the cover page of the Prospectus. Relative fault shall be determined
by reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by
the Company and the Operating Partnership on the one hand or the
Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the
Operating Partnership and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company and the Operating Partnership within the meaning of either the
Act or the Exchange Act, each officer of the Company and the Operating
Partnership who shall have signed the Registration Statement and each
director of the Company and the Operating Partnership shall have the
same rights to contribution as the Company and the Operating
Partnership, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the NYSE or trading in securities
generally on the NYSE shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or
war or other calamity or crisis the effect of which on financial markets is
such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the BancAmerica Xxxxxxxxx Xxxxxxxx
General Counsel (fax no.: (000) 000-0000) and confirmed to the General
Counsel, care of BancAmerica Xxxxxxxxx Xxxxxxxx, at Seven Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel; or, if sent
to the Company, will be mailed, delivered or telefaxed to it at the address
of the Company set forth in the Registration Statement, Attention: Xxxxxx
Xxxxxxxxx, Chief Executive Officer, with copies to Nixon, Hargrave, Devans
& Xxxxx LLP, attention Xxxxxxx Xxxxx, Esq., at the address set forth in the
Registration Statement.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. HEADINGS. The section headings used herein are for convenience
only and shall not affect the construction hereof.
16. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City
or Maryland.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that
omits Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution Time.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any
Rule 462(b) Registration Statement becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to
Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration
statement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
HOME PROPERTIES OF NEW YORK, INC.
By: /S/ XXX X. XXXX
Xxx X. Xxxx
Executive Vice President
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York,
Inc.,
its general partner
By: /S/ XXX X. XXXX
Xxx X. Xxxx
Executive Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BancAmerica Xxxxxxxxx Xxxxxxxx
By: /S/ XXX XXXXXXXXXXX
Name: Xxx Xxxxxxxxxxx
Title: Managing Director
SCHEDULE A
Valley Park South Partnership - A New York general partnership that owns an
apartment community in Bethlehem, Pennsylvania, qualified to do business in
Pennsylvania. Owned 99.9% by the Operating Partnership and .10% by HME.
Home Properties/Olde Mill Partnership - A New York general partnership that
owns an apartment community in Syracuse, New York. Owned 99.9% by the
Operating Partnership and .10% by HME.
Home Properties/Fairways at Village Green Partnership - A New York general
partnership that owns an apartment community in Syracuse, New York. Owned
99.9% by the Operating Partnership and .10% by HME.
HME/Fairways at Village Green Partnership - A New York general partnership
that owns a .01% general partnership interest in Home Properties/Fairways
at Village Green Partnership. Owned 99.9% by the Operating Partnership and
.10% by HME.
Sunset Gardens Limited Partnership - A New York limited partnership that
owns an apartment community in Kingston, New York. Owned 1.0% general
partnership interest and 98.9% limited partner interest by the Operating
Partnership and .10% limited partner interest by HME.
Royal Gardens Associates, L.L.C. - A New York limited liability company
that owns an apartment community in Piscataway, New Jersey. Qualified to
do business in New Jersey. Sole member is the Operating Partnership.
