AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON NOVEMBER 23, 1998
REGISTRATION NO.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HOME PROPERTIES OF NEW YORK, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
MARYLAND 16-1455126
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
850 CLINTON SQUARE
ROCHESTER, NEW YORK 14604
(716) 546-4900
(ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ANN M. MCCORMICK, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
HOME PROPERTIES OF NEW YORK, INC.
850 CLINTON SQUARE
ROCHESTER, NEW YORK 14604
(716) 246-4105
FACSIMILE: (716) 546-5433
(NAME, ADDRESS, INCLUDING ZIP CODE,
AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
COPIES TO:
DEBORAH MCLEAN QUINN, ESQ.
NIXON, HARGRAVE, DEVANS & DOYLE LLP
1300 CLINTON SQUARE
ROCHESTER, NEW YORK 14604
(716) 263-1307
FACSIMILE: (716) 263-1600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box./ /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
CALCULATION OF REGISTRATION FEE
Title of each Proposed Proposed
class of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered per unit offering price fee
- ------------- ---------- -------------- ----------------- ------------
Common stock,
par value
$.01 1,500,000 sh. $ 25.0625 (1) $37,593,750 (1)(2) $10,452 (2)
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 and based
upon prices on the New York Stock Exchange on November 19,1998.
(2) Pursuant to Rule 429 under the Securities Act of 1933, as of the date
hereof, (a) 445,168 shares of the Registrant's Common Stock were still
available for sale under the Registrant's Registration Statement on Form S-3,
No. 333-58799 and a registration fee of $9,431.82 was paid on July 9, 1998 with
respect to such shares; and (c) 689,448 shares of the Registrant's Common Stock
were still available for sale under the Registrant's Registration Statement on
Form S-3, No. 33-96004 and a registration fee of $5,158.23 was paid on August
16, 1995 with respect to such shares. The Prospectus contained in this
Registration Statement is also the Prospectus under the Registrant's
Registration Statements on Form S-3, Nos.33-96004 and 333-58799 for purposes of
Section 10 of the Securities Act of 1933, as amended, pursuant to Rule 429
under such Act.
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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PROSPECTUS SUPPLEMENT
HOME PROPERTIES OF NEW YORK, INC.
DIVIDEND REINVESTMENT AND
DIRECT STOCK PURCHASE PLAN
[LOGO] HOME PROPERTIES
This supplements the Prospectus of Home Properties of New York, Inc.
("Home Properties" or the "Company") dated July 20, 1998. The Board of
Directors has increased the number of shares of Common Stock which are
available for purchase under the Home Properties of New York, Inc. Dividend
Reinvestment and Reinvestment and Direct Stock Purchase Plan with optional cash
payments by 1,500,000 shares to 6,650,000 shares. Home Properties will receive
the proceeds of the sale of the newly issued shares of Common Stock. The
aggregate number of shares of Common Stock available under the Plan is
increased to 7,550,000 shares. As of the date of this Prospectus Supplement,
an aggregate of 4,704,832 shares have been purchased through voluntary cash
purchases and 161,513 shares have been purchased through the dividend
reinvestment feature of the Plan.
The Prospectus is further amended by:
(a ) Amending the section of the Prospectus on page 13 regarding independent
public accountants, so that the section shall read as follows:
INDEPENDENT PUBLIC ACCOUNTANTS
The financial statements incorporated by reference in this Prospectus
or elsewhere in the Registration Statement have been incorporated
herein in reliance on the reports of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as
experts in accounting and auditing.
(b) Amending the information on page 13 regarding the documents incorporated
by reference to read as follows:
Annual Report on Form 10-K for the year ended 12/31/97.
Quarterly Reports on Form 10-Q for the quarters ended 3/31/98, 6/30/98
and 9/30/98.
Current Reports on Form 8-K, as amended, filed on 1/12/98, 2/20/98,
3/24/98, 3/26/98, 4/15/98, 5/22/98, 6/2/98, 6/4/98, 6/19/98, 7/13/98
and 8/6/98.
Home Properties Proxy Statement dated March 27, 1998.
NEITHER THE SECURITES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
REGULATOR HAS APPROVE OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This Prospecuts Supplement is dated _______________, 1998.
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
DIVIDEND REINVESTMENT AND
DIRECT STOCK PURCHASE PLAN
[LOGO] HOME PROPERTIES
6,050,000 Shares of Common Stock
Prospectus - July 20, 1998
PLAN HIGHLIGHTS
* Purchase Home Properties common stock at a discount
* Increase ownership through monthly optional cash
purchases
* Automatically reinvest quarterly dividends and/or
partnership distributions
* Transfer shares and move your money electronically
* Own stock without receiving certificates
Home Properties is a publicly traded company with a large amount of information
available. Our shares are traded on the New York Stock Exchange under the
ticker symbol HME. The closing price of the common stock on July 6, 1998 was
$25.9375 per share. Investment in Home Properties common stock involves certain
risks including those described on pages 11-12.
Neither the Securities and Exchange Commission nor any state securities
regulator has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
<PAGE>
Plan Service Fees
Enrollment Fee for New Investors No Charge
Purchase of Shares
Direct Issue from Home Properties No Charge
Open Market Purchase Fee $0.04 per share
Sale of Shares
Open Market Sale Fee $0.04 per share
Reinvestment of Dividends No Charge
Optional Cash Purchase No Charge
Gift or Transfer of Shares No Charge
Safekeeping of Stock Certificates No Charge
Certificate Issuance No Charge
Duplicate Statements
Current Year No Charge
Prior Year(s) No Charge
Returned Checks or Rejected Auto Withdrawals $20.00 per item
The agent charges the applicable fee to your plan account.
TABLE OF CONTENTS
Information About Home Properties................1
Purpose of the Plan..............................2
Home Properties' and the Agent's Responsibilites.2
Dividends Paid by Home Properties................2
Plan Features/Benefits to You....................3
Details About the Plan...........................4
Miscellaneous Information........................10
Income Tax Information...........................10
Risk Factors.....................................11
Governing Law....................................12
Legal Opinion....................................12
Independent Public Accountants...................13
Compliance Information...........................13
<PAGE>
INFORMATION ABOUT HOME PROPERTIES
Home Properties is a real estate investment trust (REIT) that owns,
manages, acquires, and develops apartment communities in the Northeast,
Midwest and Mid-Atlantic United States. Our communities are predominantly
suburban, garden-style apartments with brick exteriors, which appeal to a
broad range of middle income and senior residents.
Headquartered in Rochester, New York, Home Properties and its predecessors
have operated multifamily properties since 1967. Our strategy is to acquire
apartment communities at prices significantly below new construction costs and
then improve and manage these communities for long term growth. We refer to
this strategy as "repositioning". We also generate fee income through the
development, rehabilitation and management of apartment communities supported
by various forms of government assistance. Home Properties' expertise in both
market rate and government-assisted housing strengthens our market position and
enhances our future opportunities.
Our mission is to provide investors with dependable, above average returns
and to be the first choice of renters in our chosen markets. We serve our
residents with integrity and respect while providing value and service that
is intended to exceed expectations. Home Properties provides employees with
a secure environment that fosters freedom for growth, creativity and the
achievement of excellence.
For information or copies of our Annual Report to Shareholders, Proxy
Statement, and 10-Q or 10-K Reports, as well as other documents incorporated by
reference in this prospectus, please visit our Internet address,
www.homeproperties.com, or contact:
Home Properties
Investor Relations Department
850 Clinton Square
Rochester, New York 14604
(716)546-4900
HME
Listed
NYSE
The New York Stock Exchange
You should rely only on the information incorporated by reference or
provided in this prospectus or in any prospectus supplement. Home
Properties has authorized no one to provide you with different information.
Home Properties is not making an offer to sell stock in any state or
country where the offer is not permitted. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as
of any date other than the date on the front of the document.
In this prospectus, "Home Properties" means Home Properties of New York, Inc.,
a Maryland corporation.
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PURPOSE OF THE PLAN
The Home Properties Dividend Reinvestment and Direct Stock Purchase Plan
was established to promote long-term ownership in Home Properties and is
designed to give our shareholders, residents, employees, limited partners
and others a simple, convenient, and economical way to purchase Home
Properties common stock. The plan is also designed to enable Home
Properties to efficiently raise capital to fund our continued growth
through the direct sale of newly issued shares.
In 1998, we revised the plan to provide new features, amend existing
features, and to clarify it. If you have previously participated in the
plan, you may participate in its amended version without any further action
on your part.
Please read this booklet carefully before you invest. Once you begin
participating in the plan, store this booklet with your investment records
relating to the plan. If you require an additional plan prospectus, enrollment
form, or further assistance, simply contact us or the plan's agent.
HOME PROPERTIES' AND THE AGENT'S RESPONSIBILITIES
The agent is designated by Home Properties to administer the plan and act
as administrator for the participants. The agent purchases and holds shares
of stock for plan participants, keeps records, mails statements, and
performs other duties required by the plan.
Neither Home Properties nor the agent is liable for any act, or for any
failure to act, as long as we make good faith efforts to carry out the
terms of the plan as described in this prospectus and on the forms that
accompany each investment or activity. This release from liability does not
apply to violation of federal securities laws.
Neither Home Properties nor the agent promises a profit or protects against
a loss on the common stock purchased under the plan.
DIVIDENDS PAID BY HOME PROPERTIES
Home Properties normally pays dividends four (4) times a year, in February,
May, August and November. Record dates on which you must be a shareholder are
approximately eight business days prior to the dividend payment dates.
Dividends are declared by the Board of Directors.
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PLAN FEATURES
Purchase Home Properties common stock by completing an Enrollment Form
and send a check, money order, or wire transfer; or arrange for the
agent to automatically withdraw from your bank account.
If you are not a Home Properties registered shareholder, community
resident, limited partner or employee, you must invest at least $2,000
initially. If you own Home Properties shares in an account with a
stock broker, request the broker to enroll you, request a certificate
for your shares or move those shares electronically into the plan.
Make optional cash purchases once each month for a minimum of $50 up
to a maximum $5,000. You purchase shares at 97% of the plan purchase
price. You may make larger optional cash purchases with the prior
approval of Home Properties.
Automatically reinvest all or some of your quarterly dividends or
limited partnership distributions into Home Properties common stock.
The shares you purchase with reinvested dividends/distributions are at
97% of the plan purchase price.
Purchase both full and fractional shares, and receive dividends on
full and fractional shares.
Receive a statement detailing your account activity each time you
invest.
Deposit your Home Properties stock certificates in the plan for
safekeeping at no cost.
Authorize the agent to sell your plan shares for a nominal fee without
requesting a specific sale date or price. If you prefer to decide the time and
price of the sale, you may withdraw your shares in certificate form or move
your shares electronically to your own brokerage account.
BENEFITS TO YOU
You purchase shares at a discount directly from Home Properties without a
broker, even if you are not a current shareholder. The Enrollment Form is
designed to guide you in setting up your plan account.
You begin with a relatively small amount invested, which may help you
diversify your financial assets. In addition, you can move shares from
your brokerage account into your plan account, or the reverse, at any
time without fees.
You conveniently add to your investment over time.
Your investment continues to build until you decide to stop. Then,
your dividends are mailed to you or deposited directly in your bank
account.
You enjoy the full reinvestment of your dividends.
You monitor your investment and make new transactions efficiently by
using the detachable form at the bottom of your plan statement.
You eliminate worry over lost or stolen certificates. Gifting or
transferring your stock is easier.
You have flexibility and control over your sale when using the plan's
electronic feature and your personal investment advisor.
Please see additional details on the following pages.
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<PAGE>
DETAILS ABOUT THE PLAN
WHO MAY PARTICIPATE
All U.S. citizens are eligible to join the plan, whether or not they
are currently Home Properties shareholders.
Foreign citizens are eligible to participate as long as their
participation does not violate any laws in their home countries.
HOW TO ENROLL
Join the plan at any time by completing an Enrollment Form and
returning it to the agent in the courtesy envelope.
If you are a Home Properties shareholder of record, a Home Properties
community resident, a Home Properties limited partner or a Home
Properties employee, complete and return the Enrollment Form to the
agent to reinvest dividends or to purchase shares with optional cash
payments. If you own shares in a brokerage account, request the broker
to enroll you, request a certificate for your shares or move shares
electronically into the plan and complete and return the Enrollment
Form. Be sure to select one of the following investment options when
enrolling.
INVESTMENT OPTIONS
FULL DIVIDEND REINVESTMENT
If you select full dividend reinvestment, all dividends payable on
your registered shares or your plan shares acquired through optional
cash purchases, will purchase additional shares of common stock at 97%
of the plan purchase price. Your reinvested dividends will purchase
whole and fractional shares, computed to three decimal places, on the
dividend payment date.
PARTIAL DIVIDEND REINVESTMENT
If you select partial dividend reinvestment, the portion of dividends
payable on your registered shares or your plan shares acquired through
optional cash purchases that you specify will purchase additional
shares of common stock at 97% of the plan purchase price. Your
reinvested dividends will purchase whole and fractional shares,
computed to three decimal places, on the dividend payment date.
OPTIONAL CASH PURCHASE ONLY
If you select optional cash purchase only, you may purchase shares once a month
for 97% of the plan purchase price by investing a minimum of $50 up to a
maximum of $5,000. You will purchase whole and fractional shares, computed to
three decimal places. You will not receive interest on optional cash amounts
held pending a purchase. Your dividends will be paid directly to you or
deposited into your bank account.
4
<PAGE>
IMPORTANT: According to Internal Revenue Service regulations regarding
discounts on optional cash purchases in the plan, the actual discount
you receive on shares purchased may not exceed 5% of the one-day New
York Stock Exchange trading average on the optional cash purchase
date. The agent for the plan will calculate the discounted purchase
price at 97% of the five-day average and test for the 5% rule. The
actual price will be the higher of the two amounts for that purchase
date.
WAIVER PURCHASE
OPTIONAL CASH PURCHASE IN EXCESS OF $5,000
Home Properties considers monthly requests for optional cash purchases
greater than $5,000 on a case-by-case basis and approves requests
based on various corporate factors and market conditions. Waiver
purchases may be denied by Home Properties for any reason and require
a signed Waiver Purchase Form from you stating:
* you are not purchasing the shares to engage in arbitrage activities
* you will not sell Home Properties common stock or cause it to be sold
during the plan's five day pricing period
* you are not engaging in underwriting activities as defined under
applicable law
Waiver purchases greater than $5,000 may receive a discount between 0%
and 3% from the plan purchase price. Home Properties reserves the
right to review and adjust the waiver discount each month.
Waiver purchases greater than $25,000 are also subject to a
discretionary "Threshold Price" that may be set each month by Home
Properties. The discounted purchase price must meet or exceed the
Threshold Price for the purchase date. If the Threshold Price is not
met, waiver payments are returned to you in full without interest. The
Threshold Price only applies to optional cash purchases greater than
$25,000.
If you select optional cash purchase and want to purchase more than
$5,000 worth of our stock:
1. Contact the Investor Relations Department of Home
Properties at 716-546-4900 with your request.
Ask for that month's Threshold Price and Waiver
Purchase Form.
2. If approved, complete the Waiver Purchase Form that
we supply and return it to us before the pricing period
begins.
3. Send your optional cash payment to the agent before
the pricing period begins.
5
<PAGE>
HOW TO MAKE AN OPTIONAL CASH PAYMENT OR AN AUTOMATIC OPTIONAL CASH
PAYMENT FROM YOUR BANK ACCOUNT
Make an optional cash payment by sending a check, money order, or wire
transfer to the agent or authorize the agent to automatically withdraw
from your bank account. Do not send cash to the agent. If you pay by
check or money order, please use the transaction stub located on the
bottom of your plan statement, make your check or money order payable
to the agent and mail to the agent's address. Always write our New
York Stock Exchange symbol, HME, on your check, money order or wire.
To authorize an automatic optional cash payment from your bank
account, complete section five of the Enrollment Form or contact the
agent for additional information or assistance. Funds will be
withdrawn from your bank account on the first business day of the
month. If this date falls on a bank holiday or weekend, funds will be
withdrawn on the next business day. Please allow 4-6 weeks for
withdrawals from your bank account to begin. You must notify the agent
in writing to change or terminate automatic withdrawals from your bank
account.
THE SOURCE OF PLAN SHARES
Home Properties common stock purchased in the plan is either issued
directly by Home Properties from our authorized, unissued shares or
purchased by the agent on the New York Stock Exchange in open trading.
Home Properties designates the source of the shares but cannot change
the source more than once every three months and only if required by
law or other valid reason. We anticipate that Home Properties will
issue shares directly from our authorized, unissued shares.
THE PLAN PURCHASE PRICE
The plan purchase price is calculated differently depending upon
whether Home Properties issues new shares or the shares are bought by
the agent in open trading.
NEWLY ISSUED SHARES - the price of shares purchased directly from Home
Properties is the average of the daily high and low trading prices of
Home Properties common stock reported on the New York Stock Exchange
for the five business days just before the purchase date. You are not
charged a fee for newly issued shares.
OPEN MARKET PURCHASES - the price of shares purchased in open market
trading is the weighted average price for all shares purchased by the
agent for the plan on the purchase date. You are charged a fee for
open market purchases.
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THE PURCHASE DATE AND THE PRICING PERIOD
* The purchase date for optional cash payments is the tenth day of
each month (or the next business day if the tenth is a weekend day or
bank holiday).
* The purchase date for the reinvestment of dividends is the
declared quarterly dividend payment date.
* The period when we calculate the plan purchase price for each
purchase date is the five business days just before, and not
including, the purchase date.
PAYMENT DUE DATE FOR OPTIONAL CASH PURCHASES
Your optional cash purchase payment must be received by the agent
before the five day pricing period begins. You do not earn any
interest on your payment, and you bear the risk associated with price
changes in Home Properties common stock during the pricing period.
TRACKING YOUR INVESTMENT IN THE PLAN
If you participate in dividend reinvestment, the agent mails you a
quarterly statement showing all transaction details for your account
including year-to-date and other information. The agent sends
supplemental statements or notices when you make an initial or
optional cash purchase or a deposit, transfer, sale or withdrawal of
shares. If you do not participate in dividend reinvestment, you
receive a statement or notice confirming any transaction you make. An
annual statement of your holdings is sent even if there was no
activity during the year in your account.
Please notify the agent in writing if the address on your account
changes.
Remember to save your account statements, along with this prospectus
and other pertinent tax information related to Home Properties
Dividend Reinvestment and Direct Stock Purchase Plan, to establish the
cost basis of your common stock purchased in the plan.
OPTIONAL CASH PURCHASE DELAY NOTIFICATION
Home Properties notifies you of an optional cash purchase delay if the
maximum number of shares available for this plan under our
registration statement with the Securities and Exchange Commission
(SEC) needs to be increased. If you are notified, then you may elect
to have the agent hold your money until additional shares for the plan
are available or you may have the agent return your money without
interest. If your money is held, the plan purchase price is
recalculated and you will receive the lower of the original or
deferred purchase price, less the discount.
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SAFEKEEPING YOUR STOCK CERTIFICATES
Home Properties shares you purchase in the plan are maintained in your
plan account for safekeeping in book-entry form. You do not receive a
certificate for those shares unless you request one in writing. You do
receive a monthly or quarterly statement detailing the status of your
holdings.
Any Home Properties shareholder may use the plan's safekeeping service
for Home Properties stock certificates. Safekeeping is beneficial
since you do not bear the risk and cost associated with the loss,
theft, or destruction of stock certificates. With safekeeping, you
retain the option to receive cash dividends or reinvest your
dividends.
To deposit Home Properties shares in the plan's safekeeping service,
send the stock certificates to the agent by registered mail with
written instructions to deposit them in safekeeping. Do not endorse or
assign your certificates.
OBTAINING STOCK CERTIFICATES
You can withdraw shares in certificate form from your plan account
without charge by writing to the agent. The agent issues certificates
in the name registered on the account, unless you instruct the agent
to issue them in another person's name or deliver a stock power to the
agent with your instructions. In order for certificates to be issued
to another person, the signature on the stock power must be guaranteed
by a financial institution. This ensures that the individual signing
a stock certificate or stock power is in fact the registered owner
named on the stock certificate or stock power. Contact your bank or
broker for more information regarding this guarantee.
The agent issues certificates for whole shares only. The agent mails a
check for the value of the fractional shares to you or your designate
within two to three weeks, or you may arrange for the agent to deposit
your money directly into your bank account.
SELLING SHARES IN YOUR PLAN ACCOUNT
You can sell any number of shares held in your plan account by writing
to the agent. The agent sells shares weekly. The sales price for the
shares the agent sells for you is the price received in open trading
by the agent. You receive the proceeds of the sale less a small fee
per share, and any required tax withholdings.
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CLOSING YOUR PLAN ACCOUNT
You may stop participating in the plan at any time by notifying the
agent in writing or by completing and returning the transaction stub
of your most recent plan account statement.
To stop automatic optional cash payments that are withdrawn from your
bank account, contact the agent at least one week before the last
business day of the month.
When you close your account, you may receive:
* certificates for full shares in your account and cash for
remaining fractional shares
* certificates for any portion of full shares and cash for
remaining full and fractional shares
* cash for all full and fractional shares
Please note that all sale proceeds are less a service fee.
CHANGES/TERMINATION OF THE PLAN
Home Properties reserves the right to amend or discontinue the plan at
any time. The agent will send you written notice of any significant
changes to the plan.
If we discontinue the plan, the agent returns any unused optional cash
payments in your account, issues a certificate for whole shares in
your account, and pays you cash for any fractional shares in your
account.
SUSPENSION/TERMINATION OF YOUR PARTICIPATION
Home Properties also reserves the right to deny, suspend or terminate
your participation in the plan if, in our sole discretion, you use the
plan in a manner inconsistent with its intended purpose, such as
excessive activity through multiple accounts. If we exercise this
right, the agent notifies you in writing and continues to safekeep
your shares but does not accept optional cash payments from you or
reinvest your dividends. The agent can issue a certificate to you or
transfer your shares electronically only upon your written request.
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MISCELLANEOUS INFORMATION
VOTING OF SHARES
For each shareholder meeting, you receive proxy materials and a proxy
card representing shares you own in certificate form and/or for whole
and fractional shares owned in your plan account. The proxy allows you
to indicate how you want your shares to be voted. Your shares are
voted only as you indicate. However, you must sign your proxy card or
your shares will not be voted. You may wait to vote or revote your
shares in person at the shareholder meeting.
HANDLING OF STOCK SPLITS, STOCK DIVIDENDS AND OTHER DISTRIBUTIONS
If Home Properties declares a stock split or stock dividend, the agent
credits your plan account with the appropriate number of shares on the
payment date.
In the event of a stock subscription or other offering of rights to
shareholders, you are entitled to these rights based on the number of
shares in your account on the record date for these transactions.
INCOME TAX INFORMATION
RELATING TO DIVIDENDS AND TRADING FEES
A portion of your dividends, whether or not they are reinvested, are considered
taxable income in the year you receive them, and a portion of your dividends
are considered return of capital. You receive an annual statement from the
agent indicating the amount of dividends reported as taxable dividend income to
the IRS on Form 1099.
The amount of the discount on any additional shares you purchase in the plan
through a purchase price discount is reported to the IRS as taxable income.
Consequently, your initial tax basis for those shares is the full purchase
price before the discount. This information is also reported on your annual
Form 1099.
RELATING TO TRANSFER OF SHARES
You do not realize a gain or loss for U.S. federal income tax purposes when you
transfer shares into the plan or when you withdraw whole shares from the plan.
You realize a gain or loss when you sell shares held in the plan, including
cash received for fractional shares. You are required to report this gain or
loss on your federal income tax return.
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WITHHOLDING TAXES
If you are a non-resident alien or a non-U.S. corporation, partnership, or
other entity, you are subject to a withholding tax on dividends earned on your
plan shares. The agent withholds the required amount determined according to
U.S. Treasury regulations. This withholding amount is reflected in your plan
account.
RISK FACTORS
ACQUISITION OF APARTMENT COMMUNITIES
DEBT FINANCING
Home Properties is subject to the customary risks associated with debt
financing, including the potential inability to refinance existing mortgage
indebtedness when it becomes due. The Board of Directors has adopted a policy
of limiting our Company's indebtedness to approximately 50% of our market
capitalization, although Home Properties' organizational documents contain no
limitation on debt percentages. If the Board of Directors changes its position,
we could increase our debt level.
General Real Estate Conditions
Home Properties' investment in real estate involves certain risks including
general economic and local real estate conditions; other conditions that might
affect operating expenses at our apartment communities, such as severe weather;
the timely completion of renovation activities at our apartment communities,
within anticipated budgets; the illiquid nature of real estate assets; and
compliance with federal and state laws governing our properties.
OTHER RISK FACTORS
FAILURE TO QUALIFY AS A REIT
We cannot assure that Home Properties will remain qualified as a real estate
investment trust (REIT) under the Internal Revenue Code of 1986, as amended. If
Home Properties is disqualified as a REIT, Home Properties would not be allowed
a deduction for distributions to shareholders in computing our taxable income
and we would be subject to federal income tax (including any applicable
alternative minimum tax) on our taxable income at regular corporate rates. The
result may be a reduction in dividends to shareholders in the disqualified
taxable year, and potentially for four taxable years following the
disqualification.
To continue to be taxed as a REIT, no more than fifty percent (50%) in value of
the outstanding Home Properties common stock may be owned, directly or
indirectly, by five or fewer individuals at any time during the last six months
of our taxable year. Home Properties limits ownership by any single stockholder
to 8% of the outstanding common shares in an effort to prevent this restriction
from being violated.
11
<PAGE>
PROPERTY MANAGEMENT'S CONFLICTS OF INTEREST
Our executive officers own the majority of their interest in Home Properties
through our UPREIT structure. This may create a conflict of interest between
the officers and stockholders with respect to business decisions affecting Home
Properties, and conflicts of interest as they relate to contracts and sales of
properties managed by Home Properties. Please contact the Investor Relations
department at our company headquarters for information on the UPREIT structure.
Governing Law
New York State law governs the terms and conditions of the plan, the Enrollment
Form, the account statements, and other documents relating to the plan.
Legal Opinion
Nixon, Hargrave, Devans & Doyle LLP, Rochester, New York has passed upon the
validity of the common stock being offered under this plan prospectus.
12
<PAGE>
INDEPENDENT PUBLIC ACCOUNTANTS
The audited financial statements and schedule incorporated by reference in this
Prospectus to the extent and for the periods indicated in their report have
been audited by Coopers & Lybrand L.L.P., independent public accountants, and
are incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said report.
COMPLIANCE INFORMATION
We must comply with the Securities and Exchange Act of 1934. Accordingly, we
file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any reports, proxy statements
or other information we file at the SEC's public reference rooms, including its
public reference room at 450 Fifth Street, NW, Washington, D.C. 20549. You can
request copies of these documents, upon payment of a duplicating fee, by
writing to the SEC. Please call the SEC at 800-SEC-0330 for further information
on its public reference rooms. You may also access our SEC filings at the SEC's
Internet address (http://www.sec.gov), or Home Properties' Internet address
(http://www.homeproperties.com).
This prospectus is part of a registration statement that we filed with the SEC
to register the shares offered under the plan. It does not repeat important
information that you can find in our registration statement, reports and other
documents that we file with the SEC. The SEC allows us to "incorporate by
reference", which means that we can disclose important information to you by
referring you to other documents which are legally considered to be a part of
this prospectus, and any later information filed with the SEC which updates and
supersedes this information. The documents that we are incorporating by
reference are:
Annual Report on Form 10-K for the year ended 12/31/97.
Quarterly Report on Form 10-Q for the quarter ended 3/31/98.
Current Reports on Form 8-K, as amended, filed on 1/12/98,
2/20/98, 3/24/98, 3/26/98, 5/22/98 and 6/2/98.
Home Properties Proxy Statement dated March 27, 1998.
The description of the common stock set forth in Home Properties' Registration
Statement on Form 8-A, dated June 8, 1994 and the information incorporated by
reference set forth in the Registration Statement on Form S-11 (No. 33-78862),
as amended, or a prospectus subsequently filed under the heading "Description
of Capital Stock."
All documents filed by Home Properties under Sections 13(a), 13(c), 14, and
15(d) of the Exchange Act of 1934 after the date of this Prospectus and prior
to termination of this offering.
13
<PAGE>
[LOGO]
HOME PROPERTIES
Dividend Reinvestment and
Direct Stock Purchase Plan
Plan Agent: American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
800-278-4353
NYSE Ticker Symbol: HME
Company Internet www.homeproperties.com
Address:
Dates to Remember:
Dividends Paid and Reinvested Quarterly in February,
May, August and November
Optional Cash Purchase Date The tenth day of each
calendar month
Optional Cash Payment Date Prior to the five day
pricing period
immediately preceding
each optional cash
purchase date
Automatic Bank Account The first day of each
Withdrawal calendar month
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table is an itemized listing of expenses to be incurred by the
Company in connection with the issuance and distribution of the shares of
Common Stock being registered hereby, other than discounts and commissions:
SEC Registration Fee $10,452.00
NYSE Listing Fee 1,500.00 *
Legal Fees and Expenses 500.00 *
Accounting Fees and Expenses 500.00 *
Blue Sky Fees and Expenses 250.00 *
---------
Total $13,202.00 *
=========
*Estimate
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's officers and directors are and will be indemnified under Maryland
law, the Articles of Incorporation of Home Properties and the Partnership
Agreement ("Operating Partnership Agreement") of Home Properties of New York,
L.P., a New York limited partnership of which the Company is the general
partner, against certain liabilities. The Articles of Incorporation require
the Company to indemnify its directors and officers to the fullest extent
permitted from time to time by the laws of Maryland. The Bylaws contain
provisions which implement the indemnification provisions of the Articles of
Incorporation.
The Maryland General Corporation Law ("MGCL") permits a corporation to
indemnify its directors and officers, among others, against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made a party by reason
of their service in those or other capacities unless it is established that the
act or omission of the director or officer was material to the matter giving
rise to the proceeding and was committed in bad faith or was the result of
active and deliberate dishonesty, or the director or officer actually received
an improper personal benefit in money, property or services, or in the case of
any criminal proceeding, the director or officer had reasonable cause to
believe that the act or omission was unlawful. No amendment of the Articles of
Incorporation of Home Properties shall limit or eliminate the right to
indemnification provided with respect to acts or omissions occurring prior to
such amendment or repeal. Maryland law permits Home Properties to provide
indemnification to an officer to the same extent as a director, although
additional indemnification may be provided if such officer is not also a
director.
The MGCL permits the articles of incorporation of a Maryland corporation to
include a provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, subject to specified
restrictions. The MGCL does not, however, permit the liability of directors
and officers to the corporation or its stockholders to be limited to the extent
that (1) it is proved that the person actually received an improper benefit or
profit in money, property or services (to the extent such benefit or profit was
received) or (2) a judgment or other final adjudication adverse to such person
is entered in a proceeding based on a finding that the person's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. The Articles of
Incorporation of Home Properties contain a provision consistent with the MGCL.
No amendment of the Articles of Incorporation shall limit or eliminate the
limitation of liability with respect to acts or omissions occurring prior to
such amendment or repeal.
The Operating Partnership Agreement also provides for indemnification of Home
Properties and its officers and directors to the same extent indemnification is
provided to officers and directors of the Company in its
Articles of Incorporation, and limits the liability of Home Properties and its
officers and directors to the Operating Partnership and its partners to the
same extent liability of officers and directors of the Company to Home
Properties and its stockholders is limited under Home Properties' Articles of
Incorporation.
Home Properties has entered into indemnification agreements with each of Home
Properties' directors and officers. The indemnification agreements require,
among other things, that Home Properties indemnify its directors and officers
to the fullest extent permitted by law, and advance to the directors and
officers all related expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted. Home Properties also must
indemnify and advance all expenses incurred by directors and officers seeking
to enforce their rights under the indemnification agreements, and cover
directors and officers under Home Properties' directors' and officers'
liability insurance. Although the form of indemnification agreement offers
substantially the same scope of coverage afforded by provisions in the Articles
of Incorporation and the Bylaws and the Operating Partnership Agreement of the
Operating Partnership, it provides greater assurance to directors and officers
that indemnification will be available, because, as a contract, it cannot be
modified unilaterally in the future by the Board of Directors or by the
stockholders to eliminate the rights it provides.
Home Properties has purchased insurance under a policy that insures both Home
Properties and its officers and directors against exposure and liability
normally insured against under such policies, including exposure on the
indemnities described above.
ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION
4.1 Amended and Restated Dividend Reinvestment, Stock Purchase,
Resident Stock Purchase and Employee Stock Purchase Plan
4.2 Amendment No. One to the Amended and Restated Dividend
Reinvestment, Stock Purchase, Resident Stock Purchase and
Employee Stock Purchase Plan
4.3 Amendment No. Two to the Amended and Restated Dividend
Reinvestment, Stock Purchase, Resident Stock Purchase and
Employee Stock Purchase Plan
4.4 Amendment No. Three to the Amended and Restated Dividend
Reinvestment, Stock Purchase, Resident Stock Purchase and
Employee Stock Purchase Plan
5 Opinion of Nixon, Hargrave, Devans & Doyle LLP regarding
the validity of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Nixon, Hargrave, Devans & Doyle LLP
(included as part of Exhibit 5).
25 Power of Attorney (included on signature page)
ITEM 17. UNDERTAKINGS
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
Securities 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
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post
effective amendment to this Registration Statement 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 post-effective amendment that contains a form of prospectus
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 a post-effective amendment any of
the securities registered which remain unsold at the termination of the
offering.
(4) That for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rochester, New York, on the 23RD day of November,
1998.
HOME PROPERTIES OF NEW YORK, INC.
By: /S/ AMY L. TAIT
----------------------
Amy L. Tait
Executive Vice President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby severally constitutes and appoints Norman P. Leenhouts, Nelson B.
Leenhouts, Richard J. Crossed and Amy L. Tait, and each of them, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments (including post-effective amendments)
to the Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that each said attorneys-in-
fact and agents or any of them or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
-------------------- ----
/S/ NORMAN P. LEENHOUTS Director, Chairman November 23 , 1998
Norman P. Leenhouts and Co-Chief Executive
Officer (Principal
Executive Officer)
/S/ NELSON B. LEENHOUTS Director, President November 23 , 1998
Nelson B. Leenhouts and Co-Chief Executive
Officer (Principal
Executive Officer)
/S/ RICHARD J. CROSSED Director, Executive Vice November 23 , 1998
Richard J. Crossed President
/S/ AMY L. TAIT Director, Executive November 23 , 1998
Amy L. Tait Vice President and
Chief Operating Officer
/S/ DAVID P. GARDNER Vice President, Chief November 23 , 1998
David P. Gardner Financial Officer and
Treasurer
(Principal Financial and
Accounting Officer)
/S/ BURTON S. AUGUST, SR. Director November 23 , 1998
Burton S. August, Sr.
/S/ WILLIAM BALDERSTON, III Director November 23 , 1998
William Balderston, III
/S/ ALAN L. GOSULE Director November 23 , 1998
Alan L. Gosule
/S/ LEONARD F. HELBIG, III Director November 23 , 1998
Leonard F. Helbig, III
/S/ ROGER W. KOBER Director November 23 , 1998
Roger W. Kober
/S/ CLIFFORD W. SMITH, JR. Director November 23 , 1998
Clifford W. Smith, Jr.
/S/ PAUL L. SMITH Director November 23 , 1998
Paul L. Smith
<PAGE>
Home Properties of New York, Inc.
EXHIBIT INDEX
to
Registration Statement on Form S-3
File No. 333-
Exhibit DESCRIPTION Location
No.
4.1 Amended and Restated Dividend Incorporated by
Reinvestment, Stock Purchase, reference to Form 8-K
Resident Stock Purchase and dated December 23, 1997
Employee Stock Purchase Plan
4.2 Amendment No. One to Amended Incorporated by
and Restated Dividend Reinvestment, reference to Form S-3
Stock Purchase, Resident Stock (333-49781) filed April
Purchase and Employee Stock 9, 1998
Purchase Plan
4.3 Amendment No. Two to Amended Incorporated by
and Restated Dividend Reinvestment, reference to Form S-3
Stock Purchase, Resident Stock (333-58799) filed
Purchase and Employee Stock July 9, 1998
Purchase Plan
4.4 Amendment No. Three to Amended Filed herewith
and Restated Dividend Reinvestment,
Stock Purchase, Resident Stock
Purchase and Employee Stock
Purchase Plan
5 Opinion of Nixon, Hargrave, Devans Filed herewith
& Doyle LLP regarding the validity
of the securities being registered
23.1 Consent of PricewaterhouseCoopers, Filed herewith
LLP
23.2 Consent of Nixon, Hargrave, Devans Included as part
& Doyle LLP of Exhibit 5
25 Power of Attorney Included on
signature page
Exhibit 4.4
AMENDMENT NO. THREE TO THE AMENEDED
AND RESTATED DIVIDEND REINVESTMENT,
STOCK PURCHASE, RESIDENT STOCK PURCHASE
AND EMPLOYEE STOCK PURCHASE PLAN
The Dividend Reinvestment, Stock Purchase, Resident Stock Purchase and Employee
Stock Purchase Plan (the "Plan") of Home Properties of New York, Inc. is hereby
amended to
1. provide that the maximum number of shares of Common Stock
which are available for purchase under the Plan with optional
cash paymentis is 6,650,000 shares and that the aggregate number of
shares of Common Stock available under the Plan is 7,550,000 shares; and
2. provide that Section 6 of the Plan is amended to read as
follows:
6. STOCK PURCHASE PLAN.
As Participant's Agent, Agent will receive monthly or other, as
determined by the Participant, voluntary cash investments from all other
Participants. Agent will apply such funds towards the purchase of shares
of Common Stock for the Participant's account. The Purchase Date with
respect to voluntary cash payments shall be once per month on or about
the tenth of each month. Optional cash payments received by the Agent
prior to the beginning of the five (5) day pricing period of each month
will be invested on the applicable Purchase Date. The purchase price per
share for shares purchased for the Plan with optional cash payments made
by stockholders of record of Home Properties ("Stockholders") and limited
partners of record of Home Properties of New York, L.P. ("Operating
Partnership"), and all affiliate owned limited partnerships ("Partners")
shall be 97% of the Plan Purchase Price for the applicable Purchase Date,
subject to the conditions of paragraph 18(b) below. The purchase price
per share for shares purchased for the Plan with optional cash payments
made by persons who are not Stockholders, Partners, Residents or
Employees on the Purchase Date shall be 97% of the Plan Purchase Price
for the applicable Purchase Date. Subject to the provisions of paragraph
7 below, any optional cash payments by Participants who are Stockholders,
Partners, Residents or Employees may be no less than $50 and no more than
$5,000 in the aggregate in any one month. Subject to the provisions of
paragraph 7 below, any optional cash payments by persons who are not
Stockholders, Partners, Residents or Employees may be no less than $2,000
and no more than $5,000 in the aggregate in any one month. No interest
will be paid on funds held by the Agent prior to investment. Voluntary
cash investments received by the Agent will be returned to Participant
upon written request received by the Agent at least two (2) business days
prior to the applicable Purchase Date.
Exhibit 5
Nixon, Hargrave, Devans & Doyle LLP
Attorneys and Counsellors at Law
Clinton Square
Post Office Box 1051
Rochester, New York 14603-1051
(716) 263-1000
Fax: (716)263-1600
November 23, 1998
Home Properties of New York, Inc.
850 Clinton Square
Rochester, New York 14604
Gentlemen:
We have acted as counsel to Home Properties of New York, Inc. (the
"Company") in connection with the Registration Statement on Form S-3
(the "New Registration Statement") which relates to the issuance of an
additional 1,500,000 shares (the "Additional Shares") of Common Stock,
par value $.01 per share, under the Company's Dividend Reinvestment,
Stock Purchase, Resident Stock Purchase and Employee Stock Purchase Plan
(the "Plan"). The prospectus forming a portion of the New Registration
Statement supplements and replaces the prospectus contained Registration
Statement on Form S-3, Registration No. 333-58799 filed by the Company
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended. We have examined the originals or copies, certified or otherwise
identified to our satisfaction, of all such records of the Company and all
such agreements, certificates of public officials, certificates of officers
or other representatives of the Company, and such other documents,
certificates and corporate or other records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein, including (i)
the Articles of Incorporation of the Company, as amended to the date hereof,
(ii) the By-Laws of the Company, as amended to the date hereof, (iii)
certified copies of certain resolutions duly adopted by the Board
of Directors and stockholders of the Company, and (iv) the Plan.
Based upon the foregoing, it is our opinion that the Additional Shares have
been duly authorized, and, after the Additional Shares shall have been issued
and delivered as described in such New Registration Statement and the
Plan and the consideration therefor shall have been received by the Company,
such Additional Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the above-
referenced New Registration Statement and to the use of our name as it appears
under the caption "Legal Matters" in the prospectus contained in such
Registration Statement.
Very truly yours,
/s/ Nixon, Hargrave, Devans & Doyle LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
this Form S-3 to be filed by Home Properties of New York, Inc. of our reports,
(1) dated February 2, 1998, on our audits of the consolidated financial
statements and financial statement schedule of Home Properties of New York,
Inc. as of December 31, 1997 and 1996, and for the three years in the period
ended December 31, 1997, which report was included in the 1997 Annual Report on
Form 10-K, (2) dated December 23, 1997 on our audit of the Detroit Acquisition
Properties for the year ended December 31, 1996, which report is included in
Form 8-K/A Amendment No. 1 dated October 7, 1997 and filed on January 12, 1998,
(3) dated March 16, 1998 and March 18, 1998 on our audits of Candlewood
Apartments and Park Shirlington and Braddock Lee Apartments, respectively, for
the year ended December 31, 1997, which reports are included in Form 8-K, dated
March 23, 1998 and filed on March 24, 1998, (4) dated May 15, 1998 on our
audits of the Acquisition Portfolio for the year ended December 31, 1997, the
Baltimore Portfolio for the year ended September 30, 1997, and dated May 20,
1998 on our audit of the Pines of Perinton for the year ended September 30,
1997, respectively, which reports are included in Forms 8-K dated May 21, 1998
and filed on May 22, 1998, (5) dated May 28, 1998 on our audit of the
Colonies' Apartments for the year ended December 31, 1997 which report is
included in Form 8-K dated March 17, 1998 and filed on June 2, 1998, and (6)
dated August 6, 1998 on our audit of Racquet Club East for the year ended
December 31, 1997, which report is included in Form 8-K dated May 28, 1998 and
filed August 6, 1998. We also consent to the reference to our firm under the
caption "Experts".
/s/ PricewaterhouseCoopers LLP
------------------------------
PRICEWATERHOUSECOOPERS LLP
Rochester, New York
November 23, 1998
