Exhibit 99.1
2,087,000 Shares
9.00% Series F Preferred Stock
($.01 Par Value)
HOME PROPERTIES OF NEW YORK, INC.
UNDERWRITING AGREEMENT
March 18, 2002
BEAR, XXXXXXX & CO. INC
X.X. XXXXXXX & SONS, INC.
BB&T CAPITAL MARKETS
MCDONALD INVESTMENTS INC.
XXXXXXX, XXXXXXXX & COMPANY, INCORPORATED
U.S. BANCORP XXXXX XXXXXXX
FIRST UNION SECURITIES, INC.
c/o BEAR, XXXXXXX & CO. INC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Home Properties of New York, Inc., a Maryland corporation (the
"Company"), and Home Properties of New York, L.P., a New York limited
partnership subsidiary of the Company (the "Operating Partnership"), confirm
their agreement with the underwriters named in Schedule I hereto (the
"Underwriters"), as follows:
1. Description of Shares.
(a) The Company proposes to issue and sell to the
Underwriters, severally and not jointly, 2,087,000 shares (the "Firm
Shares") of 9.00% Series F Preferred Stock, par value $0.01 per share
(the "Preferred Shares"), of the Company.
(b) In addition, the Company is granting to the
Underwriters an option to purchase up to an additional 313,050
Preferred Shares on the terms and for the purposes set forth in Section
12 hereof (the "Option Shares" and, together with the Firm Shares, the
"Shares").
(c) The dividend payment dates, redemption provisions,
sinking fund requirements, conversion provisions and other terms of the
Preferred Shares are set forth in Articles Supplementary relating to
the Preferred Shares to be filed with the State Department of
Assessments and Taxation of Maryland (the "Articles Supplementary").
2. Representations and Warranties of the Company and the
Operating Partnership. The Company and the Operating Partnership represent and
warrant to and agree with the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-52601), with respect to the Shares, including a prospectus, has
been prepared by the Company and the Operating Partnership in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the
"Securities Act Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, has been filed with the
Commission and has been declared effective. The registration statement
and prospectus may have been amended or supplemented prior to the date
of this Agreement; any such amendment or supplement was prepared and
filed, and any such amendment filed after the effective date of such
registration statement has been declared effective. No stop order
suspending the effectiveness of the registration statement has been
issued, and no proceeding for that purpose has been instituted or
threatened by the Commission. A prospectus supplement (the "Prospectus
Supplement") setting forth the terms of the offering, sale and plan of
distribution of the Shares and additional information concerning the
Company and its business has been or will be prepared and, together
with the prospectus included in the registration statement, will be
filed pursuant to Rule 424(b) of the Securities Act Rules and
Regulations on or before the second business day after the date hereof
(or such earlier time as may be required by the Securities Act Rules
and Regulations). The registration statement, as it may have heretofore
been amended, is referred to herein as the "Registration Statement,"
and the final form of prospectus included in the Registration
Statement, as supplemented by the Prospectus Supplement, in the form
filed by the Company with the Commission pursuant to Rule 424(b) under
the Securities Act Rules and Regulations, is referred to herein as the
"Prospectus." Copies of the Registration Statement and the Prospectus,
any amendments or supplements thereto and all documents incorporated by
reference therein that were filed with the Commission on or prior to
the date of this Agreement (including one fully executed copy of the
Registration Statement and of each amendment thereto) have been
delivered to the Underwriters and their counsel. Any reference herein
to the Registration Statement, the Prospectus, any preliminary
prospectus or any amendment or supplement thereto shall be deemed to
refer to and include the documents incorporated by reference therein,
and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Prospectus
or any preliminary prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein. For purposes
of this Agreement, all references to the Registration Statement, the
Prospectus, any preliminary prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System (XXXXX), and such copy shall be identical in content
to any Prospectus delivered to the Underwriters for use in connection
with the offering of the Shares.
(b) Each part of the Registration Statement, when such
part became or becomes effective, and the Prospectus and any amendment
or supplement thereto, on the date of filing thereof with the
Commission and at the Closing Time (as hereinafter defined) and, if
later, at an Option Closing Time (as hereinafter defined), conformed or
will conform in all material respects with the requirements of the
Securities Act and the Securities Act Rules and Regulations; each part
of the Registration Statement, when such part became or becomes
effective, or when such part was filed with the Commission, did not or
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; the Prospectus and any
amendment or supplement thereto, on the date of filing thereof with the
Commission and at the Closing Time and, if later, at an Option Closing
Time, did not or will not include an untrue statement of a material
fact or omit to state a
2
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; except
that the foregoing shall not apply to statements in, or omissions from,
any such document in reliance upon, and in conformity with, written
information concerning the Underwriters that was furnished to the
Company by the Underwriters specifically for use in the preparation
thereof.
(c) The documents incorporated by reference in the
Registration Statement, the Prospectus or any amendment or supplement
thereto, when they became or become effective under the Securities Act
or were or are filed with the Commission under the Securities Act or
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as the case may be, conformed or will conform in all material respects
with the requirements of the Securities Act, the Securities Act Rules
and Regulations, the Exchange Act and/or the rules and regulations of
the Commission under the Exchange Act (the "Exchange Act Rules and
Regulations"), as applicable.
(d) The consolidated financial statements of the Company,
together with the related schedules and notes thereto, in the
Registration Statement and Prospectus fairly present the financial
condition of the Company and its consolidated subsidiaries as of the
dates indicated and the results of operations, changes in financial
position, stockholders' equity and cash flows for the periods therein
specified, in conformity with generally accepted accounting principles
consistently applied throughout the periods involved (except as
otherwise stated therein). The selected financial and statistical data
in the Registration Statement and the Prospectus present fairly the
information shown therein and, to the extent based upon or derived from
the financial statements, have been compiled on a basis consistent with
the financial statements presented therein. In addition, to the extent
applicable, the pro forma financial statements of the Company, and the
related notes thereto, in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
basis described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein. No other financial statements are required to be set forth or
to be incorporated by reference in the Registration Statement or the
Prospectus under the Securities Act or the Securities Act Rules and
Regulations.
(e) To the best of the Company's and the Operating
Partnership's knowledge, PricewaterhouseCoopers LLP, whose reports are
incorporated by reference in the Registration Statement, are and,
during the periods covered by their reports, were independent public
accountants as required by the Securities Act and the Securities Act
Rules and Regulations.
(f) The Company has been duly formed and is validly
existing as a corporation in good standing under the laws of the State
of Maryland, is duly qualified to do business and is in good standing
in each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification (except where the
failure to be so qualified would not have a material adverse effect on
the earnings, assets, properties, business, results of operations, or
condition (financial or otherwise) of the Company, the Subsidiaries (as
hereinafter defined) and the GP Entities (as hereinafter defined),
taken as a whole (a "Material Adverse Effect")), and has full corporate
power and authority necessary to own or hold its properties, assets and
interests in its subsidiaries, to conduct the business in which it is
engaged and to enter into and perform its obligations under this
Agreement. Except as disclosed in the Prospectus, the Company owns no
direct or indirect material equity or other beneficial interest in any
corporation, partnership, joint venture or other business entity.
3
(g) The Operating Partnership has been duly formed and is
validly existing as a limited partnership under the laws of the State
of New York, is duly qualified to do business as a foreign limited
partnership in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification
(except where the failure to be so qualified would not have a Material
Adverse Effect), and has all partnership power and authority necessary
to own or hold its properties, assets and interests in its
subsidiaries, to conduct the business in which it is engaged and to
enter into and perform its obligations under this Agreement. The
Company is the sole general partner of the Operating Partnership. The
Second Restated and Amended Agreement of Limited Partnership of the
Operating Partnership, as amended (the "Operating Partnership
Agreement"), is in full force and effect, and the aggregate percentage
interests of the Company, Home Properties Trust, a wholly-owned
Maryland real estate trust and qualified REIT subsidiary of the Company
(the "QRS"), and the other third-party limited partners in the
Operating Partnership are approximately 1%, 62% and 37%, respectively.
To the extent the Shares are issued in accordance with this Agreement,
(i) the percentage interest of the partners in the Operating
Partnership will be adjusted accordingly and (ii) the Company will
contribute the proceeds from the sale of the Shares to the QRS, which
in turn will contribute such proceeds to the Operating Partnership in
exchange for a number of units of limited partner interest equal to the
number of Shares issued.
(h) The QRS has been duly formed and is validly existing
as a real estate trust under the laws of the State of Maryland, is duly
qualified to do business in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification (except where the failure to be so qualified would not
have a Material Adverse Effect), and has all power and authority
necessary to own or hold its assets and to conduct the business in
which it is engaged.
(i) Each of the consolidated subsidiaries of the Company,
including the Operating Partnership and the QRS, are listed on Schedule
A hereto (collectively, the "Subsidiaries"). Each of the Subsidiaries
has been duly incorporated or formed, as the case may be, and is an
existing corporation, general or limited partnership, or other legal
entity, as the case may be, in good standing (to the extent such
concept is applicable) under the laws of its jurisdiction of
incorporation or formation, as the case may be. Each of the
Subsidiaries has full power (corporate and other) and authority to own
or hold its properties and to conduct the business in which it is
engaged, and is duly qualified or registered to do business in each
jurisdiction in which it owns or leases real property or in which the
conduct of its business requires such qualification or registration,
except where the failure to be so qualified or registered, considering
all such cases in the aggregate, would not have a Material Adverse
Effect.
(j) The Company and the Subsidiaries hold general partner
or other controlling interests in an aggregate of 168 general or
limited partnerships or other entities owning apartment communities
and/or other real estate assets (the "GP Entities"). Each of the GP
Entities has been duly incorporated or formed, as the case may be, and,
to the knowledge of the Company, is an existing corporation, general or
limited partnership, or other legal entity, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
formation, as the case may be. Each of the GP Entities has full power
(corporate and other) and authority to own or hold its properties and
to conduct the business in which it is engaged, except where the
failure to have such power or authority would not have a Material
Adverse Effect.
(k) All of the issued and outstanding capital stock or
ownership interests of each Subsidiary have been duly authorized and
are validly issued, fully paid and nonassessable and, except as
specified on Schedule B hereto, are wholly-owned by the Company,
directly or
4
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(l) As of the date hereof, the Company has authorized
capital stock consisting of 80 million shares of common stock, 10
million shares of preferred stock, par value $0.01 per share, and 10
million shares of excess stock, par value $0.01 per share, of which
24,968,808 shares of common stock and 2,150,000 shares of preferred
stock are issued and outstanding. All of the issued and outstanding
shares of capital stock of the Company have been duly authorized and
are validly issued, fully paid and nonassessable, conform to the
description thereof in the Registration Statement and the Prospectus
and have been offered and sold or exchanged by the Company in
compliance with all applicable laws (including, without limitation,
federal and state securities laws). None of the outstanding shares of
capital stock of the Company were issued in violation of the preemptive
or other similar rights of any securityholder of the Company. The
stockholders of the Company and the holders of interests in the
Operating Partnership have no preemptive rights with respect to the
issuance of the Shares.
(m) The Preferred Shares will be, as of the Closing Time,
and the Option Shares will be as of any Option Closing Time, duly
authorized by the Company for issuance and sale pursuant to this
Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration therefor specified
herein, will be validly issued, fully paid and nonassessable. The
Shares conform to the description thereof in the Registration Statement
and the Prospectus.
(n) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no change in the earnings,
assets, properties, business, results of operations, or condition
(financial or otherwise) of the Company, the Subsidiaries and the GP
Entities, taken as a whole, which has had or would reasonably be
expected to have a Material Adverse Effect, (B) there has been no
casualty, loss, condemnation or other adverse event with respect to any
property or interest therein owned, directly or indirectly, by the
Company or any Subsidiary which has had or would reasonably be expected
to have a Material Adverse Effect, (C) there have been no transactions
entered into by the Company or any Subsidiary, other than those in the
ordinary course of business, which are material with respect to the
Company and the Subsidiaries, taken as a whole, (D) except for regular
quarterly distributions on the common stock which have been publicly
announced through the date of this Agreement, regular quarterly
distributions on the Company's preferred stock and regular quarterly
distributions on the common and preferred units of the Operating
Partnership, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock
or any distribution by the Operating Partnership with respect to its
common or preferred units, and (E) there has been no material increase
in long-term debt or decrease in the capital of the Company, the
Subsidiaries or the GP Entities, taken as a whole, other than in the
ordinary course of their businesses.
(o) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened any litigation,
action, suit or proceeding to which the Company or any of the
Subsidiaries or any of their officers or directors is a party, or that
any of their properties or other assets is the subject of, before or by
any court or governmental agency or body, that is reasonably likely to
have a Material Adverse Effect.
(p) During the period of at least the last 24 calendar
months prior to the date of this Agreement, the Company has timely
filed with the Commission all documents and other material required to
be filed pursuant to Sections 13, 14 and 15(d) under the Exchange Act.
During the period of at least the last 36 calendar months preceding the
filing of the Registration
5
Statement, the Company has filed all reports required to be filed
pursuant to Sections 13, 14 and 15(d) under the Exchange Act.
Immediately preceding the filing of the Registration Statement, the
aggregate market value of the Company's voting stock held by
nonaffiliates of the Company was equal to or greater than $150 million.
(q) There are no contracts or documents of the Company
that are required to be filed as exhibits to the Registration Statement
or to any of the documents incorporated by reference therein by the
Securities Act or the Exchange Act or by the Securities Act Rules and
Regulations and the Exchange Act Rules and Regulations that have not
been so filed. All of the contracts to which any of the Company or the
Subsidiaries is a party and which are material to the business and
operations of the Company and the Subsidiaries, taken as a whole, (i)
have been duly authorized, executed and delivered by such entity,
constitute valid and binding agreements of such entity and are
enforceable against such entity in accordance with the terms thereof,
except as such enforcement may be limited by (A) bankruptcy,
insolvency, reorganization or similar other laws affecting creditors'
rights generally and (B) general equity principles and limitations on
the availability of equitable relief, or (ii) in the case of any
contract to be executed on or before the Closing Time, will on the
Closing Time be duly authorized, executed and delivered by the Company
and/or a Subsidiary, and constitute valid and binding agreements of
such entity enforceable against each entity in accordance with the
terms thereof, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization or similar other laws affecting
creditors' rights generally and (B) general equity principles and
limitations on the availability of equitable relief.
(r) The Company and the Operating Partnership have full
power and authority, corporate or otherwise, to enter into this
Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(s) The execution and performance of this Agreement, and
the consummation of the transactions contemplated herein, including the
issuance of the Shares, will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, (i) any
agreement or instrument to which the Company or the Subsidiaries is a
party or by which they are bound or to which any of the property or
other assets of the Company or the Subsidiaries is subject, except
where such breach, violation or default would not have a Material
Adverse Effect, (ii) the articles of incorporation, charter, by-laws,
certificate of general or limited partnership, partnership agreement or
other organizational document, as applicable, of the Company or the
Subsidiaries or (iii) any statute, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or the Subsidiaries or any of their properties or other assets.
No consent, approval, authorization or order of, filing with, or notice
to any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Shares by the Company,
except such as may be required under the Securities Act and applicable
state securities, blue sky, or real estate syndication laws, if any, or
pursuant to the listing requirements of the New York Stock Exchange,
Inc. ("NYSE"). The Company has full power and authority to authorize,
issue and sell the Shares as contemplated by this Agreement.
(t) The Company, the Subsidiaries and the GP Entities have
complied in all material respects with all laws, regulations and orders
applicable to them or their respective businesses. The Company, the
Subsidiaries and the GP Entities are not in default under any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or evidence of indebtedness,
lease, contract or other agreement or instrument to which they are a
party or by which they or any of their properties or other assets are
bound, violation of
6
which would individually or in the aggregate have a Material Adverse
Effect, and no other party under any such agreement or instrument to
which the Company, the Subsidiaries or the GP Entities are a party is,
to the knowledge of the Company, in default in any material respect
thereunder. The Company, the Subsidiaries and the GP Entities are not
in violation of their respective articles of incorporation, charter,
by-laws, certificate of general or limited partnership, partnership
agreement or other organizational documents, as the case may be. To the
knowledge of the Company, no liability (financial or otherwise) exists
for the Company or the Subsidiaries with respect to any GP Entity,
except for those liabilities which would not have a Material Adverse
Effect.
(u) The Company and each of the Subsidiaries and the GP
Entities have good and marketable title to all properties and assets
owned by them, free and clear of all liens, charges, encumbrances,
claims, restrictions or defects, except such as are (i) described in
the Prospectus, (ii) not material in relation to the business or
operations of the Company, the Subsidiaries and the GP Entities, taken
as a whole, or (iii) with respect to the GP Entities, related to, or a
consequence of, any commercially reasonable mortgage indebtedness on
the properties or assets of such GP Entities. The Company, the
Subsidiaries and the GP Entities have valid, subsisting and enforceable
leases for the properties listed on Schedule C hereto as leased to the
Company, the Subsidiaries and the GP Entities, with such exceptions as
are not material and do not interfere with the use made and proposed to
be made of such properties by the Company, the Subsidiaries and the GP
Entities. All liens, charges, encumbrances, claims or restrictions on
or affecting any of the properties or the assets of the Company, the
Subsidiaries and the GP Entities which are required to be disclosed in
the Prospectus are disclosed therein. No tenant under any of the leases
pursuant to which the Company, the Subsidiaries or the GP Entities
lease apartment units at their properties has an option or right of
first refusal to purchase the premises demised under such lease; the
use and occupancy of each of the properties of the Company, the
Subsidiaries and, to the knowledge of the Company, the GP Entities
comply in all material respects with all applicable codes and zoning
laws and regulations. The Company and the Subsidiaries have no
knowledge of any pending or threatened condemnation or zoning change
that will in any material respect affect the size of, use of,
improvement of, construction on, or access to any of the properties of
the Company, the Subsidiaries and the GP Entities. The Company and the
Subsidiaries have no knowledge of any pending or threatened proceeding
or action that will in any manner materially affect the size of, use
of, improvements or construction on, or access to any of the properties
of the Company, the Subsidiaries or the GP Entities.
(v) Except for those properties listed on Schedule D
hereto, title insurance in favor of the Company and the Subsidiaries is
maintained with respect to each of the properties described in the
Prospectus in an amount at least equal to the cost of acquisition of
such property.
(w) Except as disclosed in the Registration Statement, the
Prospectus and any amendment or supplement thereto, there are no
mortgages or deeds of trust encumbering any of the properties. The
mortgages encumbering the properties are not convertible into any
equity securities of the Company or the Operating Partnership, nor does
the Company or any of the Subsidiaries or the GP Entities hold a
participating interest therein and, except as disclosed in the
Registration Statement, the Prospectus and any amendment or supplement
thereto, such mortgages are not cross-defaulted or cross-collateralized
to any party other than the Company and the Subsidiaries.
(x) Except as would not, singularly or in the aggregate,
have a Material Adverse Effect, (i) there does not exist on any of the
properties described in the Prospectus or in any document incorporated
therein by reference any Hazardous Materials (as hereinafter defined)
7
in unlawful quantities, (ii) there has not occurred on or off such
properties any unlawful spills, releases, discharges or disposal of
Hazardous Materials, and (iii) the Company, the Subsidiaries and the GP
Entities have not failed to comply with all applicable local, state and
Federal environmental laws, regulations, ordinances and administrative
and judicial orders relating to the generation, recycling, sale,
storage, handling, transport and disposal of any Hazardous Materials.
As used herein, "Hazardous Material" shall include,
without limitation, any flammable explosives, radioactive materials,
oil, petroleum, petroleum products, hazardous materials, hazardous
wastes, hazardous or toxic substances, asbestos or any material as
defined by any environmental laws, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Section 9601, et seq.) (CERCLA), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Section
1801, et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S C. Section 6901, et seq.), and in the regulations adopted
pursuant to each of the foregoing or by any Federal, state or local
governmental authority having jurisdiction over the properties as
described in the Prospectus.
Except for three wholly owned properties, all of the
properties of the Company and the Subsidiaries have been, and it is
contemplated that all future acquisitions will be, subjected to a Phase
I or similar environmental assessment (which generally includes a site
inspection, interviews and a records review, but no subsurface
sampling). These assessments and follow-up investigations, if any, of
the properties (including, as appropriate, asbestos, radon and lead
surveys, additional public record review, subsurface sampling and other
testing), of the properties have not revealed any environmental
liability that the Company believes would have a Material Adverse
Effect.
(y) The Company has and maintains property and casualty
insurance in favor of the Company and the Subsidiaries with respect to
such entities and each of the properties owned, directly or indirectly,
by the Company, in an amount and on such terms as is reasonable and
customary for businesses of the type proposed to be conducted by the
Company and the Subsidiaries. Neither the Company nor any of the
Subsidiaries or the GP Entities has received from any insurance company
written notice of any material defects or deficiencies affecting the
insurability of any such properties.
(z) No holder of outstanding shares of capital stock or
securities in any Subsidiary, including units in the Operating
Partnership, representing rights to acquire shares of capital stock of
the Company has any rights to the registration of shares of capital
stock of the Company which would or could require such securities to be
included in the Registration Statement.
(aa) The Company has filed all Federal, state and foreign
income and franchise tax returns required to be filed on or prior to
the date hereof and has paid taxes shown as due thereon (or otherwise
due and payable), other than taxes which are being contested in good
faith and for which adequate reserves have been established in
accordance with generally accepted accounting principles; and the
Company has no knowledge, after due inquiry, of any tax deficiency
which has been asserted or threatened against the Company (except as
otherwise described in the Prospectus). To the knowledge of the
Company, there are no tax returns of the Company or any of the
Subsidiaries or the GP Entities that are currently being audited by
state, local or Federal taxing authorities or agencies which would have
Material Adverse Effect.
(bb) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in
8
connection with the execution and delivery by the Company and the
Operating Partnership of this Agreement and the consummation of the
transactions herein contemplated has been obtained or made and is in
full force and effect.
(cc) No material labor dispute with the employees of the
Company or any of the Subsidiaries exists or, to the knowledge of the
Company, is imminent or threatened.
(dd) The Company and the Subsidiaries own, or are licensed
or otherwise have the right to use, the material patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names (collectively, "proprietary rights") presently
employed by them or which are necessary in connection with the conduct
of the business now operated by them, and neither the Company nor any
of the Subsidiaries has received any written notice or otherwise has
actual knowledge after due inquiry of any infringement of rights of
others or any other claims with respect to any material proprietary
rights. The Company and the Subsidiaries hold all material permits from
governmental authorities which are necessary to conduct their
businesses and are in compliance with the terms and conditions of such
permits.
(ee) No transaction has occurred between or among the
Company and any of its officers or directors or any affiliate or
affiliates of any such officer or director that is required to be
described in and is not described or incorporated by reference into the
Registration Statement and the Prospectus.
(ff) None of the Company or the Operating Partnership, nor
any of their respective trustees, directors, officers, members or
controlling persons, has taken or will take, directly or indirectly,
any action resulting in a violation of Regulation M under the 1934 Act,
or designed to cause or result in, or which has constituted or that
reasonably might be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
(gg) Commencing with the Company's taxable year ended
December 31, 1994, the Company has been, and upon the sale of the
Shares will continue to be, organized and operated in conformity with
the requirements for qualification and taxation as a "real estate
investment trust" (a "REIT") under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"). The proposed
method of operation of the Company as described in the Prospectus will
enable the Company to continue to meet the requirements for
qualification and taxation as a REIT under the Code. The Company
intends to continue to operate in a manner which would permit it to
qualify as a REIT under the Code. The Company has no present intention
of changing its operations or engaging in activities which would cause
it to fail to qualify, or make economically undesirable its continued
qualification, as a REIT.
(hh) Each of the Company and the Subsidiaries is not, and
upon the issuance and sale of the Shares as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the 1940 Act.
(ii) The Shares will be approved for listing on the NYSE
within 30 days of the Closing Time, subject to official notice of
issuance.
(jj) The Company and the Subsidiaries maintain a system of
internal accounting controls which the Company believes is sufficient
to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific
9
authorization; (ii) transactions are recorded as necessary to permit
the preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to financial assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(kk) Neither the Company nor any of the Subsidiaries, nor
to the knowledge of the Company, any employee or agent of the Company
or any Subsidiary, has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any law,
rule or regulation or of a character required to be disclosed in the
Prospectus.
(ll) The Company has not distributed and, prior to the
Closing Time, will not distribute any offering material in connection
with the offering and sale of the Shares other than the Registration
Statement, the Prospectus or other materials, if any, permitted by the
Securities Act.
3. Purchase, Sale and Delivery of the Firm Shares. On the
basis of the representations, warranties and agreements contained herein, but
subject to the terms and conditions set forth herein, the Company agrees to
issue and sell the Firm Shares, severally and not jointly, to the several
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, the number of Firm Shares set forth opposite that
Underwriter's name in Schedule I hereto, at a purchase price of $24.2125 per
share.
The Firm Shares to be purchased by the Underwriters will be
delivered by the Company to the office of the Bear, Xxxxxxx & Co. Inc. at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in accordance with the terms of this
Agreement and against payment of an aggregate purchase price of $50,531,487.50
therefor by wire transfer of same day funds payable to the order of the Company
at the bank account designated in writing by the Company at least one business
day prior to the Closing Time, at 11:00 a.m., New York City time, on March 25,
2002 (or if the NYSE or commercial banks in the City of New York are not open on
such day, the next day on which such exchanges and banks are open) (any such day
being a "Business Day"), or at such other time not later than eight full
business days thereafter as the Underwriters and the Company mutually agree,
such time being herein referred to as the "Closing Time." If requested by the
Underwriters, the Firm Shares will be prepared in definitive form and in such
authorized denominations and registered in such names as the Underwriters may
request upon at least two Business Days' prior notice to the Company and will be
made available for checking and packaging at the office of the Bear, Xxxxxxx &
Co. Inc. at least one Business Day prior to the Closing Time.
4. Covenants. The Company and the Operating Partnership, as
the case may be, covenant and agree with the Underwriters that:
(a) The Company will cause the Prospectus Supplement to be
filed as required by Section 2(a) hereof (but only if the Underwriters
or their counsel have not reasonably objected thereto by notice to the
Company after having been furnished a copy a reasonable time prior to
filing) and will notify the Underwriters promptly of such filing.
During the period in which a prospectus relating to the Shares is
required to be delivered under the Securities Act or such date which is
90 days after the Closing Time, whichever is later, the Company will
notify the Underwriters promptly of the time when any subsequent
amendment to the Registration Statement has become effective or any
subsequent supplement to the Prospectus has been filed, or of any
request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information;
the Company will prepare and file with the Commission, promptly upon
the Underwriters' request, any amendments or supplements to
10
the Registration Statement or the Prospectus that, in the Underwriters'
opinion, may be necessary or advisable in connection with the
Underwriters' distribution of the Shares; and the Company will file no
amendment or supplement to the Registration Statement or the Prospectus
(other than any prospectus supplement relating to the offering of other
securities registered under the Registration Statement or any document
required to be filed under the Exchange Act that upon filing is deemed
to be incorporated by reference therein) to which the Underwriters or
their counsel shall reasonably object by notice to the Company after
having been furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the Underwriters, promptly
after it shall receive notice or obtain knowledge thereof, of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the suspension of the
qualification or registration of the Shares for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for
any such purpose; and it will promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(c) The Company will comply with all requirements imposed
upon it by the Securities Act, the Securities Act Rules and
Regulations, the Exchange Act and the Exchange Act Rules and
Regulations as from time to time in force, so far as necessary to
permit the continuance of sales of, or dealings in, the Shares as
contemplated by the provisions hereof and the Prospectus. If during
such period where a prospectus relating to the Shares is required to be
delivered under the Securities Act, any event occurs as a result of
which, in the opinion of the Underwriters' counsel, the Registration
Statement contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or the Prospectus as then
amended or supplemented contains an untrue statement of a material fact
or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if during such period it is necessary to amend or
supplement the Registration Statement or the Prospectus to comply with
the Securities Act, the Company will promptly notify the Underwriters
and will amend or supplement the Registration Statement or the
Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance.
(d) The Company will furnish to the Underwriters copies of
the Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and all amendments and supplements
to the Registration Statement and the Prospectus that are filed with
the Commission during the period in which a prospectus relating to the
Shares is required to be delivered under the Securities Act or such
date which is 90 days after the Closing Time, whichever is later
(including all documents filed with the Commission during such period
that are deemed to be incorporated by reference therein), in each case
as soon as available and in such quantities as the Underwriters may
from time to time reasonably request.
(e) During the period of five years commencing on the date
upon which the Prospectus Supplement is filed pursuant to Rule 424(b)
under the Securities Act, the Company will furnish the Underwriters
with copies of filings of the Company under the Securities Act and the
Exchange Act and with all other financial statements and periodic and
special reports it distributes generally to the holders of any class of
its capital stock.
(f) The Company will make generally available to its
stockholders as soon as practicable, and in the manner contemplated by
Rule 158 of the Securities Act Rules and Regulations but in any event
not later than 15 months after the end of the Company's current fiscal
quarter, an earning statement (which need not be audited) covering a
12-month period
11
beginning after the date upon which the Prospectus Supplement is filed
pursuant to Rule 424(b) under the Securities Act that shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Securities Act Rules and Regulations.
(g) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company
will pay, or reimburse if paid by the Underwriters, all costs and
expenses incident to the performance of the obligations of the Company
under this Agreement, including but not limited to costs and expenses
of or relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits thereto, the Prospectus, each
preliminary prospectus and any amendment or supplement to the
Registration Statement or the Prospectus, (ii) the preparation and
delivery of certificates representing the Shares, (iii) the printing
and reproduction of this Agreement, (iv) the costs incurred by the
Company in furnishing (including costs of shipping, mailing and
courier) such copies of the Registration Statement, the Prospectus and
any preliminary prospectus and all amendments and supplements thereto,
as may be requested for use in connection with the offering and sale of
the Shares by the Underwriters, (v) the listing of the Shares on the
NYSE, (vi) if and to the extent required, the registration or
qualification of the Shares for offer and sale under the securities or
blue sky laws of such jurisdictions designated by the Underwriters or
the notification with respect thereto required by any such
jurisdiction, including the fees, disbursements and other charges of
the Underwriters' counsel in connection therewith, and the preparation
and printing of blue sky memoranda; provided, however, that no such
registration or qualification would subject the Company to service of
process or require it to qualify to do business in any such
jurisdiction, (vii) counsel to the Company, (viii) the transfer agent
for the Shares, and (ix) the accountants of the Company.
(h) If this Agreement shall be terminated pursuant to
Section 8 hereof or if for any reason the Company shall be unable to
perform its obligations hereunder, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the fees,
disbursements and other charges of the Underwriters' counsel)
reasonably incurred by the Underwriters in connection herewith.
(i) The Company will not at any time, directly or
indirectly, take 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, a violation of Regulation M
under the 1934 Act, or the stabilization of the price of its capital
stock to facilitate the sale or resale of any of the Shares.
(j) The Company will use its best efforts to continue to
meet the requirement to qualify as a REIT under the Code for each of
its taxable years for so long as the board of directors deems it in the
best interests of the Company's stockholders to remain so qualified.
(k) The Company will use its best efforts to effect the
listing of the Shares on the New York Stock Exchange.
(l) The Company will not be or become, at any time prior
to the expiration of three years after the date of the Agreement, an
"investment company," as such term is defined in the 1940 Act.
(m) The Company and the Operating Partnership will apply
the net proceeds from the sale of the Shares as set forth under the
caption "Use of Proceeds" in the Prospectus Supplement.
12
5. Conditions of Underwriters' Obligations. The Underwriters'
obligation to purchase and pay for the Shares as provided herein shall be
subject to the accuracy, as of the date hereof and the Closing Time (as if made
at the Closing Time), of the representations and warranties of the Company
herein, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Registration Statement shall have been declared
effective under the Securities Act; the Prospectus shall have been
filed as required by Section 2(a) hereof; and no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceeding for that purpose shall have been instituted or, to
the Underwriters' knowledge or the knowledge of the Company, threatened
by the Commission, nor has any state securities authority suspended the
qualification or registration of the Shares for offering or sale in any
jurisdiction and any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the
satisfaction of the Underwriters and the Underwriters' counsel.
(b) The Underwriters shall not have advised the Company
that the Registration Statement or any amendment thereto contains an
untrue statement of fact that in the opinion of the Underwriters or the
Underwriters' counsel is material or omits to state a fact that in the
opinion of the Underwriters or their counsel is material and is
required to be stated therein or is necessary to make the statements
therein not misleading, or that the Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact that in the
opinion of the Underwriters or the Underwriters' counsel is material or
omits to state a fact that in the opinion of the Underwriters or the
Underwriters' counsel is material and is necessary, in the light of the
circumstances under which they were made, to make the statements
therein not misleading.
(c) Except as contemplated in the Prospectus Supplement,
subsequent to the respective dates as of which information is included
or incorporated by reference into the Registration Statement and the
Prospectus, there shall not have been any change, on a consolidated
basis, in the equity capitalization, short-term debt or long-term debt
of the Company, or any Material Adverse Effect, or any development
involving a prospective Material Adverse Effect or any adverse change
in the rating assigned to any securities of the Company, that, in the
Underwriters' judgment, makes it impractical or inadvisable to offer or
deliver the Shares on the terms and in the manner contemplated in the
Prospectus.
(d) Xxxxx Xxxxxxx LLP, counsel for the Company, shall have
furnished to the Underwriters its written opinion, as counsel to the
Company, addressed to the Underwriters and dated the Closing Time, as
to which for matters of Maryland law Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
may rely upon, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) Each of the Company, the Operating Partnership
and the QRS has been duly incorporated or formed, as the case
may be, and is validly existing as a corporation, general or
limited partnership, or other legal entity, as the case may
be, in good standing (to the extent such concept is
applicable) under the laws of its jurisdiction of
incorporation or formation, as the case may be, and has full
power (corporate or other) and authority to own, lease and
operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus,
and to enter into and perform its obligations under this
Agreement and is duly qualified or registered to do business
in each jurisdiction in which it owns or leases real property
or in which the conduct of its business requires such
qualification or registration, except where the failure to be
so qualified or registered would not result in a Material
Adverse Effect;
13
(ii) The Company has authorized capital stock as set
forth in or incorporated by reference into the Prospectus. The
Shares have been duly authorized by the Company for issuance
and sale and when issued and sold pursuant to this Agreement
will be duly and validly issued, fully paid and nonassessable
and none of them will have been issued in violation of any
preemptive or other similar right under the charter documents
of the Company or the laws of the State of Maryland, as the
case may be. The issued and outstanding capital stock of the
Company and the Shares conform, or will conform, in all
material respects to the descriptions thereof contained in, or
incorporated by reference into, the Registration Statement and
the Prospectus and the Shares will conform in all material
respects to the descriptions thereof contained in the Articles
Supplementary. The form of certificate used to evidence the
Shares is in due and proper form and complies with all
applicable statutory requirements, with any applicable
requirements of the Company's organizational documents and
with the requirements of the NYSE;
(iii) The Registration Statement has become effective
under the Securities Act, the Prospectus Supplement has been
filed as required by Section 2(a) hereof and, to the best
knowledge of such counsel, after due inquiry, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(iv) Each part of the Registration Statement, when
such part became effective, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission and at the Closing Time, complied as to
form in all material respects with the requirements of the
Securities Act and the Securities Act Rules and Regulations;
it being understood that such counsel need express no opinion
as to the financial statements, financial schedules or other
financial or statistical data included in, or incorporated by
reference into, the Registration Statement or the Prospectus;
(v) The descriptions in the Registration Statement
and the Prospectus of statutes, legal and governmental
proceedings, contracts and other documents are accurate and
fairly present the information required to be shown in all
material respects; and such counsel does not know of any
statutes or legal or governmental proceedings required to be
described in the Prospectus that are not described as
required, or of any contracts or documents of a character
required to be described that are not described as required,
in the Registration Statement or Prospectus;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company and the Operating
Partnership and constitutes the legal, valid and binding
obligations of the Company and the Operating Partnership
enforceable against them in accordance with its terms, except
as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles; the execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated herein will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (a) any statute
or any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or
evidence of indebtedness, lease, contract or other agreement
or instrument filed as an exhibit to the Registration
Statement or any filing under the Exchange Act incorporated
therein by reference, except where such breach, violation or
default would not have a Material Adverse Effect, (b) the
articles of
14
incorporation, by-laws, certificate of general or limited
partnership, partnership agreement, or other organizational
document of the Company, the Operating Partnership or the QRS,
as applicable, or (c) any order, rule or regulation known to
such counsel of any court or governmental agency or body
having jurisdiction over the Company, the Operating
Partnership or the QRS or any of their properties or other
assets; and except as may be required under any securities or
blue sky laws, no consent, approval, authorization, notice to,
order of, or filing with, any court or governmental agency or
body is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Shares by the Company, except such as have been
obtained (or, with respect to filings, made) under the
Securities Act or from the NYSE;
(vii) The disclosure contained in the Prospectus
under the captions "Description of Capital Stock," "Certain
Other Provisions of Maryland Law and Our Articles of
Incorporation" and "Federal Income Tax Considerations," to the
extent such information constitutes matters of law, summaries
of legal matters or legal conclusions, has been reviewed by
such counsel and are accurate in all material respects.
(viii) Commencing with the Company's taxable year
ending December 31, 1994, the Company has been organized and
operated in conformity with the requirements for qualification
as a REIT under the Code, and its method of operation through
the date of this letter and its proposed method of operation,
will continue to enable it to meet the requirements for
qualification and taxation as a REIT.
(ix) 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 businesses of, the Company or any of the
Subsidiaries, involving the Company's or any of its
Subsidiaries' officers or directors or to which any of the
Company's or any of its Subsidiaries' properties or other
assets are subject which might reasonably be expected to have
a Material Adverse Effect or to affect the consummation of the
transactions contemplated herein or the performance by the
Company of its obligations hereunder.
(x) Neither the Company nor any of its Subsidiaries
is an "investment company" or an entity "controlled" by an
"investment company" within the meaning of the 1940 Act and
the rules and regulations thereunder.
Such counsel shall also include a statement to the effect that
such counsel has participated in the preparation of the Registration Statement
and the Prospectus and participated in discussions with certain officers,
trustees and employees of the Company, representatives of the independent
accountants who examined the financial statements of the Company included or
incorporated by reference in the Registration Statement and the Prospectus, and
you and your representatives and such counsel has reviewed certain Company and
Operating Partnership records and documents. While such counsel has
independently verified and is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the information
contained in the Registration Statement and the Prospectus (including any of the
documents incorporated by reference therein except as set forth in opinion (vii)
above), on the basis of such participation and review, nothing has come to such
counsel's attention that would lead it to believe that the Registration
Statement (except for financial statements, supporting schedules and other
financial data included or incorporated by reference therein or omitted
therefrom and for statistical information derived from such financial
statements, supporting schedules or other financial data, as to which such
counsel need not express any belief), at the time such Registration Statement
became effective, contained an untrue statement of a material fact or omitted to
state a material fact
15
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (except for financial statements, supporting
schedules and other financial data included or incorporated by reference therein
or omitted therefrom and for statistical information derived from such financial
statements, supporting schedules or other financial data, as to which such
counsel need not express any belief), at the time the Prospectus was issued, or
at the Closing Time, included or includes an untrue statement of a material fact
or omitted or omits 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.
(e) Xxx X. XxXxxxxxx, Esq., General Counsel of the
Company, shall have furnished to the Underwriters her written opinion
addressed to the Underwriters and dated such Closing Time, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) Each of the Subsidiaries (other than the
Operating Partnership and the QRS) and the GP Entities has
been duly incorporated or formed, as the case may be, and is
an existing corporation, general or limited partnership, or
other legal entity, as the case may be, in good standing under
the laws of its jurisdiction of incorporation or formation, as
the case may be, and has full power (corporate and other) and
authority to own or hold its properties and to conduct the
business in which it is engaged, and is duly qualified or
registered to do business in each jurisdiction in which it
owns or leases real property or in which the conduct of its
business requires such qualification or registration, except
where the failure to be so qualified or registered,
considering all such cases in the aggregate, would not have a
Material Adverse Effect;
(ii) The Company has authorized, issued and
outstanding capital stock as set forth in the Prospectus. All
of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued, and
all of the issued and outstanding shares of capital stock of
the Company are fully paid and nonassessable and none of them
was issued in violation of any preemptive or other similar
right under the charter documents of the Company, the laws of
the State of Maryland or any contract to which the Company is
a party, as the case may be. The Shares will not have been
issued in violation of any preemptive or other similar right
under any contract to which the Company is a party. 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 shares of capital stock of the Company, or any
security convertible into, exercisable for, or exchangeable
for shares of capital stock of the Company. No holder of any
security of the Company has the right to have any security
owned by such holder included for registration in the
Registration Statement or otherwise registered by the Company
under the Securities Act in connection with the issuance and
sale of the Shares. All of the issued and outstanding capital
stock or ownership interests of each of the Subsidiaries has
been duly authorized and are validly issued, fully paid and
nonassessable and, except as specified on Schedule A hereto,
are wholly owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(iii) The documents incorporated by reference in the
Registration Statement and the Prospectus or any amendment or
supplement thereto, when they became effective under the
Securities Act or were filed with the Commission under the
Securities Act or Exchange Act, as the case may be, complied
as to form, in all material respects, with the requirements of
the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder;
16
(iv) There are no contracts or documents of a
character (1) to be filed under the Exchange Act if upon such
filing they would be incorporated by reference in the
Registration Statement or the Prospectus or (2) to be filed as
exhibits to the Registration Statement, that are not described
and filed as required;
(v) The execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated herein will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, (a) any statute, indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note
agreement or evidence of indebtedness, lease, contract or
other agreement or instrument to which the Company, the
Subsidiaries or the GP Entities are a party or by which they
are bound or to which any of the property or other assets of
the Company, the Subsidiaries or the GP Entities is subject,
except where such breach, violation or default would not have
a Material Adverse Effect, (b) the articles of incorporation,
by-laws, certificate of general or limited partnership,
partnership agreement, or other organizational document of the
Subsidiaries (other than the Operating Partnership or the QRS)
or the GP Entities, as applicable, or (c) any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Subsidiaries
(other than the Operating Partnership or the QRS) or the GP
Entities or any of their properties or other assets;
(vi) Neither the Company nor any of the Subsidiaries
or the GP Entities is in violation of any term or provision of
their respective articles of incorporation, charter, by-laws,
certificate of general or limited partnership, partnership
agreement or other organizational document, as applicable, or
in violation of or default under any indenture, mortgage, deed
of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or evidence of indebtedness, lease,
contract, permit, judgment, decree, order, statute, rule or
regulation; where such violation or default would have a
Material Adverse Effect; and
(vii) 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 businesses of, the GP
Entities, involving the Company's or any of its Subsidiaries'
officers or directors or to which any of the Company's or any
of its Subsidiaries' properties or other assets are subject
which might reasonably be expected to have a Material Adverse
Effect or to affect the consummation of the transactions
contemplated herein or the performance by the Company of its
obligations hereunder.
(f) The Underwriters shall have received from Xxxxxxxx
Chance Xxxxxx & Xxxxx LLP, the counsel to the Underwriters, such
opinion or opinions, dated the Closing Time, with respect to the
validity of the Shares, the Registration Statement, the Prospectus and
other related matters as the Underwriters reasonably may request, and
such counsel shall have received such papers and information as they
request to enable them to pass upon such matters.
(g) At the time of execution of this Agreement and at the
Closing Time, the Underwriters shall have received a letter, dated the
date of delivery thereof, from PricewaterhouseCoopers LLP, the
independent public accountants of the Company, in the form previously
agreed to by the Underwriters.
(h) The Underwriters shall have received from the Company
a certificate, signed by the Chairman, the President, either of the
Co-Chief Executive Officers, the Executive
17
Vice President or a Senior Vice President and by the principal
financial or accounting officer of the Company, dated the Closing Time,
to the effect that, to the best of their knowledge based upon
reasonable investigation:
(i) The representations and warranties of the Company
in this Agreement are true and correct, as if made at and as
of the Closing Time, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Time;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or, to such officer's
knowledge, is threatened by the Commission nor has any state
securities authority suspended the qualification or
registration of the Shares for offering or sale in any
jurisdiction;
(iii) Since the effective date of the Registration
Statement, there has occurred no event required to be set
forth in an amendment or supplement to the Registration
Statement or Prospectus that has not been so set forth, and
there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules and Regulations of the
Commission thereunder that upon such filing would be deemed to
be incorporated by reference in the Prospectus that has not
been so filed;
(iv) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, (a) there has not been, and no development has
occurred which could reasonably be expected to result in, a
Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, in each case
other than as set forth in or contemplated by the Registration
Statement and the Prospectus and (b) neither the Company nor
any of the Subsidiaries or the GP Entities has sustained any
material loss or interference with its business or properties
from fire, explosion, flood or other casualty, whether or not
covered by insurance, or from any labor dispute or any court
or legislative or other governmental action, order or decree,
which is not set forth in the Registration Statement and the
Prospectus; and
(v) such other matters as the Underwriters or their
counsel may reasonably request.
(i) Prior to the Closing Time, the Shares shall have been
duly authorized for listing by the NYSE, subject to official notice of
issuance.
(j) All such opinions, certificates, letters and other
documents will be in compliance with the provisions hereof only if they
are satisfactory in form and substance to the Underwriters or their
counsel. The Company will furnish the Underwriters with such conformed
copies of such opinions, certificates, letters and other documents as
the Underwriters shall reasonably request and the Company shall furnish
to the Underwriters such further certificates and documents as the
Underwriters shall have reasonably requested.
(k) Subsequent to the execution and delivery of this
Agreement (i) no downgrading or adverse change shall have occurred in
the rating accorded any security of the Company by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) of the Securities Act
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any security of the Company, that,
in either
18
event, makes it impractical or inadvisable, in the Underwriters'
judgment, to offer or deliver the Shares on the terms and in the manner
contemplated in the Prospectus.
(l) Prior to the Closing Time, the Company shall have duly
filed the Articles Supplementary with the State Department of
Assessments and Taxation of Maryland.
6. Indemnification and Contribution.
(a) The Company and the Operating Partnership agree to
indemnify and hold harmless the Underwriters, the directors, officers,
employees and agents of the Underwriters and each person who controls
the Underwriters within the meaning of either the Securities 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 Securities 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 any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, any
preliminary prospectus or in the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon 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 by or on
behalf of the Underwriters 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) The Underwriters agree to indemnify and hold harmless
the Company and the Operating Partnership, each of their directors,
each of their officers who sign the Registration Statement, and each
person who controls the Company or the Operating Partnership within the
meaning of either the Securities Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Operating
Partnership to the Underwriters, but only with reference to written
information relating to the Underwriters furnished to the Company by or
on behalf of the Underwriters specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which the Underwriters
may otherwise have. The Underwriters confirm to the Company and the
Company and the Operating Partnership acknowledge that (i) the name of
the Underwriters contained on the front cover page and back cover page
of the Prospectus Supplement and (ii) the sixth, ninth, tenth, eleventh
and thirteenth paragraphs contained in the Prospectus Supplement under
the caption "Underwriting," constitute the only information furnished
in writing by or on behalf of the Underwriters for inclusion in the
Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 6 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 6, 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
19
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 (based on advice of counsel) 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 reasonably 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. It is understood that the
indemnifying party or parties shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than
one additional firm admitted to practice in such jurisdiction at any
one time for all such indemnified parties. 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 6 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the
Operating Partnership and the Underwriters 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, 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 on the one hand and by the
Underwriters on the other from the offering of the Shares. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, 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 or elsewhere in 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 or the Operating
20
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, 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), in no case shall an Underwriter (except as may be
provided in any agreement among underwriters relating to the offering
of the Shares) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Shares purchased
by such Underwriter hereunder. 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 6, each person who
controls the Underwriters within the meaning of either the Securities
Act or the Exchange Act and each director, officer, employee and agent
of the Underwriters shall have the same rights to contribution as the
Underwriters, and each person who controls the Company or the Operating
Partnership within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company or the Operating Partnership
who shall have signed the Registration Statement and each director of
the Company 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).
(e) The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the Company
and the Operating Partnership contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of the Underwriters, (ii) acceptance
of the Shares and payment therefor or (iii) any termination of this
Agreement.
7. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Company and the Operating
Partnership contained herein or in certificates delivered pursuant hereto, and
the Underwriters' agreements contained in Sections 4(g) and 6 hereof, shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Underwriters or any of its controlling persons, or
the Company or any of its officers, directors or any controlling persons, and
shall survive delivery of and payment for the Shares hereunder.
8. Termination. The Underwriters shall have the right by
giving notice as hereinafter specified at any time at or prior to the Closing
Time, to terminate this Agreement if (i) the Company shall have failed, refused
or been unable, at or prior to the Closing Time, to perform any material
agreement on its part to be performed hereunder, (ii) any condition of the
Underwriters' obligations specified in Section 5 hereof is not fulfilled when
due, (iii) trading on the NYSE shall have been wholly suspended, (iv) minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for the common stock shall have been required, on the NYSE by the NYSE or by
order of the Commission or any other governmental authority having jurisdiction,
(v) a banking moratorium shall have been declared by Federal or New York
authorities or if there has occurred a material disruption in commercial banking
in the United States, or (vi) an outbreak or escalation of major hostilities in
which the United States is involved, a declaration of national emergency or war
by the United States, any other substantial national or international calamity
or any other event or occurrence of a similar character shall have occurred
since the execution of this Agreement that, in the Underwriters' sole judgment,
makes it impractical or inadvisable to offer or deliver the Shares on the terms
and in the manner contemplated in the Prospectus. Any such termination shall be
without liability of any party to any other party with respect to Shares not
purchased by reason of such termination except that the provisions of Sections
4(g), 4(h) and 6 hereof shall at all times be effective. If the Underwriters
elect to terminate this Agreement as
21
provided in this Section 8, the Company shall be notified promptly by the
Underwriters by telephone, telex or telecopy, confirmed by letter.
9. Notices. All notices or communications hereunder shall be
in writing and if sent to the Underwriters shall be mailed, delivered, telexed
or telecopied and confirmed to the Underwriters in care of Bear, Xxxxxxx & Co.
Inc. at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, (with copy to Xxxxxxx X. Xxxxx,
Esq., c/o Clifford Chance Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 10166), or if sent to the Company, shall be mailed, delivered, telexed or
telecopied and confirmed to Xxx X. XxXxxxxxx, Esq., c/o the Company at 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (with copy, which shall not constitute
notice, to Xxxxxxx XxXxxx Xxxxx, Esq., c/o Nixon Peabody LLP, 0000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000). Any party to this Agreement may change such
address for notices by sending to the other party to this Agreement written
notice of a new address for such purpose.
10. Parties. This Agreement shall inure to the benefit of,
and be binding upon, the Company and the Underwriters and their respective
successors and the controlling persons, officers, directors, employees and
representatives referred to in Section 6 hereof, and no other person will have
any right or obligation hereunder.
11. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
12. Option Shares.
(a) Upon written notice from the Underwriters given to the
Company prior to 9:00 P.M., New York City time, on the 30th day after
the date of the Prospectus (or, if such 30th day shall be a Saturday or
Sunday or a holiday, on the next business day thereafter when the New
York Stock Exchange is open for trading), the Underwriters may purchase
all or less than all of the Option Shares at the purchase price per
share to be paid for the Firm Shares. No Option Shares shall be sold or
delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered. The right to purchase the
Option Shares or any portion thereof may be surrendered and terminated
at any time upon notice by the Underwriters to the Company. The
preparation, registration, checking and delivery of, and payment for,
the Option Shares shall occur or be made in the same manner as provided
in Section 3 hereof for the Firm Shares, except as the Underwriters and
the Company may otherwise agree.
(b) Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from the
Company the number of Option Shares (subject to such adjustments as the
Underwriters may determine in order to avoid fractional shares) which
bears the same proportion to the number of Firm Shares to be purchased
by the Underwriters as the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto (or such number of Firm
Shares increased as set forth in Section 13 hereof) bears to the
aggregate number of Firm Shares.
(c) Delivery to the Underwriters of and payment for any
Option Shares to be purchased by the Underwriters shall be made at the
aforementioned office of Bear, Xxxxxxx & Co. Inc. at such time on such
date (the "Option Closing Time"), which may be the same as the Closing
Time but shall in no event be earlier than the Closing Time nor earlier
than two nor later than ten business days after the giving of the
written notice described above, as shall be specified in such written
notice. The place of closing for any Option Shares and the Option
Closing Time may be varied by agreement between the Underwriters and
the Company.
(d) The conditions to the Underwriters' obligations set
forth in Section 5 shall be deemed to be conditions to the
Underwriters' obligation to purchase and pay for the Firm
22
Shares and the Option Shares to be purchased on the Closing Time and
references to the "Shares" in Section 5 hereof shall be deemed to be
references to the Firm Shares and the Option Shares to be purchased on
the Closing Time. A termination of this Agreement as to the Option
Shares after the Closing Time will not terminate this Agreement as to
the Firm Shares.
13. Default by One or More of the Underwriters. If, on either
the Closing Time or the Option Closing Time, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Shares which the
defaulting Underwriter agreed but failed to purchase on such Closing Time or
Option Closing Time, as the case may be, in the respective proportions which the
number of Firm Shares set forth opposite the name of each remaining
non-defaulting Underwriter in Schedule I hereto bears to the total number of
Firm Shares set forth opposite the names of all the remaining non-defaulting
Underwriters in Schedule I hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the Shares
on such Closing Time or Option Closing Time, as the case may be, if the total
number of Shares which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date exceeds 10% of the total number of Shares to be
purchased on such Closing Time or Option Closing Time, as the case may be, and
any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of Shares which it agreed to purchase on such Closing
Time. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Underwriters who
so agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Shares to be purchased on
such Closing Time or Option Closing Time, as the case may be. If the remaining
non-defaulting Underwriters or other underwriters satisfactory to the
Underwriters do not elect to purchase the Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Closing Time,
this Agreement (or, with respect to the Option Closing Time, the obligation of
the Underwriters to purchase, and of the Company to sell, the Option Shares)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 4(g) and 4(h). As used
in this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule I hereto who, pursuant to this Section 13, purchases Shares which a
defaulting Underwriter agreed but failed to purchase.
23
If the foregoing correctly sets forth the understanding among
the Company, the Operating Partnership and the Underwriters, please so indicate
in the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement between the Company, the Operating Partnership
and the Underwriters.
Very truly yours,
HOME PROPERTIES OF NEW YORK, INC.
By:/s/Xxxx X. XxXxxxxxx
----------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Vice President
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.,
its general partner
By:/s/Xxxx X. XxXxxxxxx
----------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Vice President
ACCEPTED as of the date first above written:
BEAR, XXXXXXX & CO. INC.
By: /x/ Jacques De Saint Phalle
--------------------------------
Name: Jacques De Saint Phalle
Title: Senior Managing Director
X.X. XXXXXXX & SONS, INC.
By: /x/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
BB&T CAPITAL MARKETS
By: /x/ Xxxxx X. Xxxxx Xx.
--------------------------------
Name: Xxxxx X. Xxxxx Xx.
Title: Senior Vice President
24
MCDONALD INVESTMENTS INC.
By: /x/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
XXXXXXX, XXXXXXXX & COMPANY,
INCORPORATED
By: /x/ T. Xxxxxxx Xxxxxxxx IV
--------------------------------
Name: T. Xxxxxxx Xxxxxxxx IV
Title: Senior Vice President
U.S. BANCORP XXXXX XXXXXXX
By: /x/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
FIRST UNION SECURITIES, INC.
By: /x/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
25
SCHEDULE A
SUBSIDIARIES
Home Properties of New York, L.P. New York limited partnership
1% owned by Home Properties of
New York, Inc. ("HME"); 62%
owned by Home Properties Trust
Home Properties Trust Maryland real estate trust
100% owned by HME
Home Properties Management, Inc. Maryland Corp. Home Properties
of New York, L.P. ("OP") owns
the non-voting shares (95% of
total shares)/Xxxxxx and
Xxxxxx Xxxxxxxxx own the
voting shares (5% of total
shares)
Home Properties Resident Services, Inc. Maryland Corp. OP owns the
non-voting shares (99% of
total shares)/Xxxxxx Xxxxxxxxx
and Xxxxxx Xxxxxxxxx own the
voting shares (1% of total
shares)
NOTE: The operations of Home Properties Management, Inc. and Home Properties
Resident Services, Inc. are not consolidated with those of the Company.
Home Properties Blackhawk, L.P. New York
Valley Park South Partnership New York
HME/Fairways at Village Green New York
P-K Partnership Pennsylvania
Xxxxxx Xxxx Associates New York
Home Properties/Fairways at Village Green New York
Home Properties Canterbury No. 1 Limited Partnership Maryland
Home Properties Canterbury No. 2 Limited Partnership Maryland
Home Properties Canterbury No. 3 Limited Partnership Maryland
Home Properties Gateway Village Limited Partnership Maryland
Home Properties of Newark Limited Partnership Maryland
Home Properties Xxxxxx Run Limited Partnership Maryland
Home Properties Xxxxxx Run 2 Limited Partnership Maryland
Home Properties Shakespeare Park Limited Partnership Maryland
Home Properties/Olde Mill New York
Home Properties Southern Xxxxxxx, Inc. New York
Perinton Development Corp. New York
LIMITED LIABILITY COMPANIES:
Carriage Hill Venture, LLC Michigan
Carriage Park Associates, LLC Michigan
Century Investors, LLC New York
Cherry Hill Village Venture, LLC Michigan
The Colony of Home Properties, LLC New York
Curren Terrace, LLC New York
Deerfield Xxxxx Home Properties LLC Michigan
Home Properties Bayberry Place, LLC New York
Home Properties Xxxxxx Xxxxx LLC Maryland
Home Properties Broadlawn, LLC New York
Home Properties Canterbury No. 4, LLC Maryland
Home Properties Carriage Hill, LLC Virginia
Home Properties Carriage House LLC Maryland
Home Properties Castle Club, LLC New York
Home Properties Colonies, LLC New York
Home Properties Country Village LLC Maryland
Home Properties Courtyard Village, LLC New York
Home Properties Cypress Place LLC New York
Home Properties of Devon, LLC New York
Home Properties Elmwood Terrace, LLC Maryland
Home Properties Falcon Crest Townhouses, LLC Maryland
Home Properties Golf Club, LLC New York
Home Properties Hampton Court, LLC New York
Home Properties Hauppauge, LLC New York
Home Properties Lake Grove, LLC New York
Home Properties Manor, LLC New York
Home Properties Mansion House, LLC New York
Home Properties Maple Lane I, LLC New York
Home Properties Maple Lane II, LLC New York
Home Properties Maryland, LLC Maryland
Home Properties Maryland II, LLC Maryland
Home Properties Maryland III, LLC Maryland
Home Properties Maryland IV, LLC Maryland
Home Properties Xxxxxxx, LLC New York
Home Properties Michigan Management, LLC Michigan
Home Properties Morningside Heights LLC Maryland
Home Properties Morningside North, LLC Maryland
Home Properties Morningside Six, LLC Maryland
Home Properties Orleans Village, LLC New York
Home Properties Parkview Gardens, LLC New York
Home Properties Pavilion, LLC Maryland
Home Properties Pines of Perinton, LLC New York
Home Properties Racquet Club East, LLC New York
Home Properties Rolling Park, LLC Maryland
Home Properties Sandalwood, LLC New York
Home Properties Seminary Hills, LLC Virginia
Home Properties Seminary Towers, LLC Virginia
Home Properties Selford Townhouses, LLC Maryland
Home Properties Sherwood Gardens, LLC New York
Home Properties South Bay Manor, LLC New York
Home Properties Southern Xxxxxxx, LLC New York
Home Properties Tamarron, LLC Maryland
Home Properties Timbercroft I, LLC Maryland
Home Properties Timbercroft III, LLC Maryland
27
Home Properties Xxxxxxx Park, LLC New York
Home Properties Virginia Village, LLC New York
Home Properties Wellington, LLC New York
Home Properties Xxxxxxx Xxxxx, LLC New York
Home Properties Xxxxxxx Xxxxx XX, LLC New York
Home Properties Xxxxxxx Xxxxx III, LLC New York
Home Properties WMF I, LLC New York
Home Properties Woodholme Manor, LLC New York
Macomb Apartments Home Properties, LLC Michigan
Royal Gardens Associates, LLC New York
Woodgate Place Associates, LLC New York
28
SCHEDULE B
Home Properties Management, Inc. Xxxxxx and Xxxxxx Xxxxxxxxx
each own five voting shares
(or 2.5% each).
Home Properties Resident Services, Inc. Xxxxxx Xxxxxxxxx and Xxxxxx
Xxxxxxxxx each own 24 voting
shares (or 0.5% each).
00
XXXXXXXX X
Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxx, Xxx Xxxx
30
SCHEDULE D
Northgate Manor, Rochester, New York 000 Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 448 Units
Westminster, Syracuse, New York 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00 Xxxxx
Xxxxxxxx Xxxx xx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 324 Units
0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 120 Units
31
Schedule I
Underwriter Number of Shares
----------- ----------------
BEAR, XXXXXXX & CO. INC 298,143
X.X. XXXXXXX & SONS, INC. 298,143
BB&T CAPITAL MARKETS 298,143
MCDONALD INVESTMENTS INC. 298,143
XXXXXXX, XXXXXXXX & COMPANY, INCORPORATED 298,143
U.S. BANCORP XXXXX XXXXXXX 298,143
FIRST UNION SECURITIES, INC. 298,142
2,087,000
