As filed with the Securities and Exchange Commission on December 22, 1997.
Registration No. 33-96716
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 9 TO
Form S-1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ESSEX HOSPITALITY ASSOCIATES IV L.P.
(Exact name of registrant as specified in charter)
NEW YORK 7011
- ----------------------------------- ----------------------------------
(State or other jurisdiction of (Primary Standard
incorporation or organization) Industrial Classification Code No.)
16-1485632 100 Corporate Woods
- ---------------------------------- Rochester, New York 14623
(IRS Employer ID No.) (716) 272-2300
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(Address, including zip code, and
telephone number, including area code
of registrant's principal executive
offices)
Essex Partners Inc.
John E. Mooney, President
100 Corporate Woods
Rochester, New York 14623
(716) 272-2300
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(Name, address, including zip code, and telephone number, including area code,
of agent for service)
with copies to:
Thomas E. Willett, Esq.
Harris Beach & Wilcox, LLP
130 East Main Street
Rochester, New York 14604
(716) 232-4440
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission acting pursuant to Section 8(a), may
determine.
<PAGE>
Post-Effective Amendment No. 9
Deregistration of Securities
Essex Hospitality Associates IV L.P., a New York limited partnership
(the "Partnership") hereby amends its Registration Statement on Form S-1, as
amended, file number 33-96716 (the "Registration Statement") pursuant to which
it registered $5,000,000 limited partnership units (the "Units"), $10,000,000 of
the Partnership's notes secured by first mortgage liens on the Partnership's
hotels, together with improvements thereon (the "Mortgage Notes") and $6,000,000
of the Partnership's subordinated notes (the "Notes"), in accordance with the
Securities Act of 1933, as amended.
At 5:00 p.m., Eastern Standard Time, on November 24, 1997, the
Partnership had raised gross offering proceeds of $8,289,477, consisting of
$5,413,000 Notes and $2,876,477 from the sale of 2,967 Units, which were sold
subject to volume and timing discounts.
The Partnership, pursuant to this Post Effective Amendment No. 9,
hereby removes from registration the $587,000 Notes, the 2,033 Units, and the
$10,000,000 Mortgage Notes not sold under the Registration Statement.
<PAGE>
PART II
Information Not Required in Prospectus
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses in connection with the
issuance and distribution of the Units and Notes registered, other than
underwriting discounts and commissions. All amounts except the filing fee
payable to the Securities and Exchange Commission and the NASD are estimates.
SEC Filing Fee $ 7,241.42
NASD Filing Fees 2,600.00
Legal Fees and Expenses 112,000.00
Accountants Fees and Expenses 35,500.00
Printing and Engraving Fees 19,800.00
Blue Sky qualification fees and expenses 21,275.00
Miscellaneous 4,200.00
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Total $ 202,616.42
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No securities to be registered are to be offered for the account of security
holders.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Amended and Restated Partnership Agreement of the Registrant
provides that the Registrant shall indemnify the General Partner and any persons
affiliated with the General Partner for any liability, loss or damage incurred
by it or the Registrant by reason of any act performed or omitted to be
performed by it when acting in connection with the business of the Registrant
including costs, attorney's fees and amounts expended, provided that such course
of conduct did not constitute fraud or gross negligence by it. Persons
affiliated with the General Partners shall be indemnified only for liabilities
arising out of activities in which they engage on behalf of the Registrant or in
connection with its business which are permitted to be performed by them under
the Partnership Agreement and which are duly authorized by the General Partner.
No person may be indemnified from any liability, loss or damage
incurred in connection with violations of federal or securities laws, or any
liability imposed by law, such as liability for fraud, bad faith or gross
negligence; provided, however, that indemnification will be allowed in certain
instances for settlements and related expenses of lawsuits alleging securities
law violations and for expenses incurred in successfully defending such lawsuits
if: (i) there has been a successful adjudication on the merits of each count
involving alleged securities law violations; or (ii) a court dismisses such
count involving alleged securities laws violations with prejudice; or (iii) a
court approves settlement and finds that indemnification should be made.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The Registrant has made no prior offers or sales of its securities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Furnish exhibits as required by Item 601 of Regulation S-K.
1. (a) Form of Dealer Manager Agreement to be entered into between
the Registrant and Essex Capital Markets Inc.*
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(b) Form of Soliciting Dealer Agreement to be entered into
between Essex Capital Markets Inc. and other broker-dealers
selling Units and Notes.*
3. (a) Amended and Restated Limited Partnership Agreement is
appended to the Prospectus as Exhibit A.*
(b) Certificate of Limited Partnership of the Registrant.*
4. (a) Form of Subscription Agreement and
Partner Note for investors purchasing Limited Partnership
Units are appended to the Prospectus as Exhibit C.*
(b) Form of Indenture for Mortgage Notes to be entered into
between the Registrant and Manufacturers and Traders Trust
Company, as Trustee.*
(c) Form of Indenture for Subordinated Notes to be entered into
between the Registrant and Manufacturers and Traders Trust
Company, as Trustee.*
(d) Form of Subordinated Note is appended to the Prospectus as
Exhibit B.*(1)
(e) Form of Mortgage Note is appended to the Prospectus as
Exhibit B-2.*(2)
(f) Form of Fee Mortgage and Security Agreement to be granted
by the Registrant to Manufacturers and Traders Trust
Company, as Trustee.*
(g) Form of Leasehold Mortgage and Security Agreement to be
granted by the Registrant to Manufacturers and Traders
Trust Company, as Trustee.*
(h) Form of Mortgage Consolidation, Spreader, Modification,
Extension and Security Agreement to be entered into between
the Registrant and Manufacturers and Traders Trust Company,
as Trustee.*
(i) Form of Guaranty of Completion to be given by Essex
Partners Inc. to the Registrant is appended to the
Prospectus as Exhibit D.*(2)
5. Opinion of Harris Beach & Wilcox, LLP as to the legality of the
securities being registered (including consent).*
8. Opinion of Harris Beach & Wilcox, LLP as to tax matters.*
10. Form of Escrow Agreement to be entered into between the
Registrant and Manufacturers and Traders Trust Company.*
10.1 Mortgage Note given by Solon Hotel LLC to GMAC Commercial
Mortgage Corporation, dated July 7, 1997.*
10.2 Open-End Mortgage, Assignment of Leases and Profits, Security
Agreement and Fixture Filing given by Solon Hotel LLC to GMAC
Commercial Mortgage, dated July 7, 1997.*
10.3 Guaranty Agreement given by Essex Partners Inc. to GMAC
Commercial Mortgage Corporation, dated July 7, 1997.*
10.4 Pledge and Assignment of Membership Interests given by the
Partnership and Essex Hotels LLC to GMAC Commercial Mortgage
Corporation, dated July 7, 1997.*
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10.5 Pledge and Assignment of Membership Interests given by the
Partnership to GMAC Commercial Mortgage Corporation dated July
7, 1997.*
23. Consents of experts.
(a) Consent of counsel is included in Exhibit above.
(b) Consent of KPMG Peat Marwick, LLP.*
(c) Consent of Coopers & Lybrand, LLP.*
25. Statement of Eligibility and Qualification under Trust
Indenture Act of 1939 on Form T-1 for Manufacturers and Traders
Trust Company.*
27. Article 5 Financial Data Schedule*
28. (a) Forms of Agreements - Promus Hotel Corporation.*
(b) Form of Franchise Agreement - Marriott International, Inc.
(Courtyard by Marriott(R)).*
(c) Form of Franchise Agreement - Microtel Franchise and
Development Corporation.*
(d) Form of Management Agreement to be entered into between the
Registrant and Essex Partners Inc.*
(e) Form of Franchise Agreement - Marriott International, Inc.
(Fairfield Inn).*
(f) Form of Franchise Agreement - Microtel Inns and Suites
Franchising, Inc.*
99.1 Articles of Organization of Solon Hotel LLC.*
99.2 Articles of Organization of Erie Hotel LLC.*
99.3 Article of Organization of Essex Hotels LLC, as amended.*
99.4 Articles of Organization of Essex Hotels II LLC.*
99.5 Prior Performance Table VI - Essex and Affiliates Acquisitions
of Properties by Programs.*
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* Previously filed.
(1) Appended as Exhibit B-1 to the Prospectus contained in Registrant's
Registration Statement on Form S-1 (Registration No. 33-96716) and all
Post-Effective Amendments thereto up to and including Post-Effective
Amendment No. 4 to the Registrant's Registration Statement on Form S-1.
(2) Appended as Exhibits to the Prospectus contained in Registrant's
Registration Statement on Form S-1 (Registration No. 33-96716) and all
Post-Effective Amendments thereto up to and including Post-Effective
Amendment No. 4 to the Registrant's Registration Statement on Form S-1.
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ITEM 17. UNDERTAKINGS
Rule 415 Offerings:
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to the registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereto) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement:
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registration which remain unsold at the termination
of the offering.
ACCELERATION OF EFFECTIVENESS
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
GUIDE 5
The registrant undertakes: (a) to file any prospectuses required by
Section 10(a)(3) as post-effective amendments to the registration statement, (b)
that for the purpose of determining any liability under the Act each such
post-effective amendment may be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time may be deemed to be the initial bona fide offering thereof, (c)
that all post-effective amendments will comply with the applicable forms, rules
and regulations of the Commission in effect at the time such post-effective
amendments are filed, and (d) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain at
the termination of the offering.
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The registrant undertakes to send to each Limited Partner at least on
an annual basis a detailed statement of any transactions with the General
Partner or its affiliates, and of fees, commissions, compensation and other
benefits paid, or accrued to the General Partner or its affiliates for the
fiscal year completed, showing the amount paid or accrued to each recipient and
the services performed.
The registrant undertakes to provide to the Limited Partners the
financial statements required by Form 10-K for the first full year of operations
of the partnership.
The registrant undertakes to file a sticker supplement pursuant to Rule
424(c) under the Securities Act of 1933 during the distribution period
describing each property not identified in the prospectus at such time as there
arises a reasonable probability that such property will be acquired and to
consolidate all such stickers into a post-effective amendment filed at least
once every three months, with the information contained in such amendment
provided simultaneously to the existing Limited Partners. Each sticker
supplement shall also disclose all compensation and fees received by the General
Partner and its affiliates in connection with any such acquisition. The
post-effective amendment shall include audited financial statements meeting the
requirements of Rule 3-14 of Regulation S-X only for properties acquired during
the distribution period.
The registrant also undertakes to file, after the end of the
distribution period, a current report on Form 8-K containing the financial
statements and any additional information required by Rule 3-14 of Regulation
S-X, to reflect each commitment (i.e. the signing of a binding purchase
agreement) made after the end of the distribution period involving the use of 10
percent or more (on a cumulative basis) of the net proceeds of the offering and
to provide the information contained in such report to the Limited Partners at
least once each quarter after the distribution period of the offering has ended.
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SIGNATURES
Pursuant to the Securities Act of 1933, the Registrant has duly caused
this Post-Effective Amendment No. 9 to Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Rochester, State of New York on December 22, 1997.
ESSEX HOSPITALITY ASSOCIATES IV L.P.
By: Essex Partners Inc.
Its: General Partner
By: /s/ John E. Mooney
John E. Mooney
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 9 to Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Principal Executive Officer of General Partner:
Dated: December 22, 1997 /s/ John E. Mooney
John E. Mooney
President and Chief Executive Officer
Principal Financial and Accounting Officer
of General Partner:
Dated: December 22, 1997 /s/ Richard C. Brienzi
Richard C. Brienzi
Vice President and Treasurer
Executive Vice President of General Partner:
Dated: December 22, 1997 /s/ Jerald P. Eichelberger
Jerald P. Eichelberger
Executive Vice President
The Board of Directors of General Partner:
Dated: December 22, 1997 /s/ John E. Mooney
John E. Mooney, Director
Dated: December 22, 1997 /s/ Jerald P. Eichelberger
Jerald P. Eichelberger, Director
* /s/ Barbara J. Purvis
Barbara J. Purvis, Director
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Dated: December 22, 1997 /s/ Richard C. Brienzi
Richard C. Brienzi, Director
Dated: December 22, 1997 *By: /s/ John E. Mooney
John E. Mooney, as Attorney-in-Fact
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