CONFORMED COPY
7,000,000 Shares
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
Class A Common Stock
UNDERWRITING AGREEMENT
October 22, 1997
XXXXX XXXXXX INC.
BT ALEX. XXXXX INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
As the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Apartment Investment and Management Company, a Maryland corporation (the
"COMPANY"), proposes to issue and sell an aggregate of 7,000,000 shares (the
"FIRM SHARES") of its Class A Common Stock, $0.01 par value per share (the
"COMMON STOCK") , to the several Underwriters named in Schedule I hereto (the
"UNDERWRITERS"). The Company also proposes to sell to the Underwriters, upon
the terms and conditions set forth in Section 2 hereof, up to an additional
1,050,000 shares (the "ADDITIONAL SHARES") of Common Stock. The Firm Shares
and the Additional Shares are hereinafter collectively referred to as the
"SHARES".
The Company through wholly-owned subsidiaries is the sole general
partner and the principal limited partner (with an aggregate approximate
85.0% ownership interest as of the date hereof) of AIMCO Properties, L.P., a
Delaware limited partnership (the "OPERATING PARTNERSHIP"). The Company's
business of owning and managing multifamily apartment properties and its
third-party property management and other businesses are principally
conducted through the Operating Partnership and other direct and indirect
subsidiaries of the Company identified in Schedule II hereto (together with
the Operating Partnership, each a "SUBSIDIARY" and collectively, the
"SUBSIDIARIES").
The Company wishes to confirm as follows its agreement with you (the
"REPRESENTATIVES") and the other several Underwriters on whose behalf you are
acting, in connection with the several purchases of the Shares by the
Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has filed with
the Securities and Exchange Commission (the "COMMISSION") a "shelf"
registration statement on Form S-3 (File No. 333-26415, including a
prospectus relating to debt securities, preferred stock, common stock and
warrants, and will promptly file with the Commission a prospectus supplement
specifically relating to the Shares pursuant to Rule 424 under the Securities
Act of 1933, as amended (together with the rules and regulations of the
Commission thereunder, the "ACT"). As used in this Agreement, (i) the term
"Registration Statement" means such registration statement, including
exhibits, financial statements, schedules and documents incorporated by
reference therein, as amended to the date hereof, and (ii) the term
"Prospectus" collectively refers to the basic prospectus dated May 22, 1997,
(the "BASIC PROSPECTUS") and prospectus supplement (the "PROSPECTUS
SUPPLEMENT") dated October 22, 1997 in the forms first used to confirm sales
of the Shares. The term "Preliminary Prospectus" means the preliminary
prospectus supplement dated October 6, 1997 specifically relating to the
Shares, together with the preliminary basic prospectus dated May 22, 1997
relating to the securities registered on the Registration Statement. As used
herein, the terms "Registration Statement", "Prospectus" and "Preliminary
Prospectus" shall in each case include the material, if any, incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act or deemed to
be a part thereof pursuant to Rule 430A under the Act. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed by the Company with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (together with the rules and regulations of the
Commission thereunder, the "EXCHANGE ACT"), subsequent to the date of the
Prospectus. As used herein, the term "Incorporated Documents" means the
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documents which at the time are incorporated by reference in the Registration
Statement, the Prospectus, the Preliminary Prospectus, or any amendment or
supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell
to each Underwriter and, upon the basis of the representations, warranties
and agreements of the Company and the Operating Partnership herein contained
and subject to all the terms and conditions set forth herein, each
Underwriter agrees, severally and not jointly, to purchase from the Company,
at a purchase price of $34.64 per Share (the "PURCHASE PRICE PER SHARE"), 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 10 hereof).
The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company and the Operating
Partnership herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right to purchase from the
Company, at the purchase price per share, pursuant to an option (the
"OVER-ALLOTMENT OPTION") which may be exercised at any time (but not more
than once) by notice to the Company given 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), up to an
aggregate of 1,050,000 Additional Shares. Additional Shares may be purchased
only for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. Upon any exercise of the over-allotment option,
each Underwriter, severally and not jointly, agrees to purchase from the
Company the number of Additional Shares (subject to such adjustments as you
may determine in order to avoid fractional shares) which bears the same
proportion to the number of Additional 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 10 hereof) bears to the aggregate number of Firm Shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that
the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and
initially to offer the Shares upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office
of
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Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M.,
New York City time, on October 27, 1997 (the "CLOSING DATE"). The place of
closing for the Firm Shares and the Closing Date may be varied by agreement
between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to
be purchased by the Underwriters shall be made at the aforementioned office
of Xxxxx Xxxxxx Inc. at such time on such date (the "OPTION CLOSING DATE"),
which may be the same as the Closing Date but shall in no event be earlier
than the Closing Date nor earlier than two nor later than ten business days
after the giving of the notice hereinafter referred to, as shall be specified
in a written notice from you on behalf of the Underwriters to the Company of
the Underwriters' determination to purchase a number, specified in such
notice, of Additional Shares. The place of closing for any Additional Shares
and the Option Closing Date for such Shares may be varied by agreement
between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 9:30 A.M., New York City time, on
the second business day preceding the Closing Date or any Option Closing
Date, as the case may be. Such certificates shall be made available to you
in New York City for inspection and packaging not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date or the
Option Closing Date, as the case may be. The certificates evidencing the
Firm Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the case
may be, against payment to the Company of the purchase price therefor in
immediately available funds.
5. AGREEMENTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. The
Company and the Operating Partnership agree with the several Underwriters as
follows:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the Company will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon
as possible and will advise you promptly and, if requested by you, will
confirm such advice in writing, when the Registration Statement or such
post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing:(i) of any request by the
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Commission for amendment of or a supplement to the Registration
Statement, the Prospectus, the Preliminary Prospectus or for additional
information;(ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(iii) within the period of time referred to in paragraph (f) below, of
any change in the Company's financial condition, business, properties or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires
the making of any additions to or changes in the Registration Statement
or the Prospectus (as then amended or supplemented) in order to state a
material fact required by the Act or the regulations thereunder to be
stated therein or necessary in order to make the statements therein not
misleading, or of the necessity to amend or supplement the Prospectus
(as then amended or supplemented) to comply with the Act or any other
law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal of such order
at the earliest possible time.
(c) The Company will furnish to you, without charge (i) one signed
copy of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements
and all exhibits to the registration statement, which shall be delivered
to counsel for the Underwriters,(ii) such number of conformed copies of
the registration statement as originally filed and of each amendment
thereto, but without exhibits, as you may reasonably request,(iii) such
number of copies of the Incorporated Documents, without exhibits, as you
may reasonably request, and (iv) up to six copies of the exhibits to the
Incorporated Documents, as you may request.
(d) Prior to the end of the period of time referred to in the
first sentence in subsection (f) below, the Company will inform you of
its intent to file any amendment to the Registration Statement or make
any amendment or supplement to the Prospectus or file any document
which, upon filing becomes an Incorporated Document, and the Company
will furnish you with copies of any such amendment, supplement or
document in advance of filing; PROVIDED, the Company will not file any
such amendment, supplement or document to which you shall reasonably
object unless such amendment, supplement or document is required to be
filed by applicable law.
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(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you
have requested, copies of each form of Preliminary Prospectus. The
Company consents to the use, in accordance with the provisions of the
Act and with the securities or Blue Sky or real estate syndication laws
of the jurisdictions in which the Shares are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of
each Preliminary Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the
Act to be delivered in connection with sales by any Underwriter or
dealer, the Company will expeditiously deliver to each Underwriter and
each dealer, without charge, as many copies of the Prospectus (and of
any amendment or supplement thereto) as you may reasonably request. The
Company consents to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act and
with the securities or Blue Sky or real estate syndication laws of the
jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold, both in
connection with the offering and sale of the Shares and for such period
of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales of Shares by any Underwriter or
dealer. If during such period of time any event shall occur as a result
of which it is necessary in the judgment of the Company or in the
opinion of counsel for the Underwriters and counsel for the Company to
amend or supplement the Prospectus (as then amended or supplemented) in
order that the Prospectus will not include any untrue statement of
material fact or omit to state a fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or amend
the Prospectus (or to file under the Exchange Act any document which,
upon filing, becomes an Incorporated Document) in order to comply with
the Act or any other law, the Company will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the
Commission an appropriate supplement or amendment thereto (or to such
document), and will expeditiously furnish to the Underwriters and
dealers a reasonable number of copies thereof.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky or real estate syndication laws of such
jurisdictions as you may designate and will file such consents to
service of
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process or other documents necessary or appropriate in order to effect
such registration or qualification; PROVIDED that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would subject it
to taxation or to service of process in suits, other than those arising
out of the offering or sale of the Shares, in any jurisdiction where it
is not now so subject.
(h) The Company will make generally available to its security
holders an earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter,
as soon as practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter, the Company will
furnish to you as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 10 hereof or by notice given by you
terminating this Agreement pursuant to Section 10 or Section 11 hereof)
or if this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company or the Operating
Partnership to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to reimburse the Representatives for
all out-of-pocket expenses (including the reasonable fees and expenses
of counsel for the Underwriters) incurred by you in connection herewith.
(k) The Company will contribute the net proceeds from the sale of
the Shares to the Operating Partnership and the Company and the
Operating Partnership will apply such net proceeds substantially in
accordance with the description set forth under the caption "Use of
Proceeds" in the Prospectus Supplement.
(l) The Company will use its best efforts to meet the requirements
to maintain its qualification for the fiscal year ending December 31,
1997 (and each fiscal quarter of such year), as a "real estate
investment trust" (a "REIT") under the Internal Revenue Code of 1986, as
amended (the "CODE").
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(m) Except as stated in this Agreement and in the Preliminary
Prospectus and Prospectus, the Company has not taken, nor will it take,
directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the Shares
in violation of Regulation M under the Exchange Act.
(n) The Company will use its reasonable efforts to accomplish the
listing of the Shares on the New York Stock Exchange.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE OPERATING
PARTNERSHIP. The Company and the Operating Partnership represent and warrant
to each Underwriter that:
(a) Each prospectus or preliminary prospectus included as part of
the registration statement as originally filed, or as part of any
amendment or supplement thereto that is related to the Shares, or filed
pursuant to Rule 424 under the Act that is related to the Shares,
complied when so filed in all material respects with the provisions of
the Act, except that this representation and warranty does not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by or on
behalf of any Underwriter through you expressly for use therein. The
Commission has not issued any order preventing or suspending the use of
the Prospectus or any Preliminary Prospectus.
(b) The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Act. The
Registration Statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the Prospectus and any
supplement or amendment thereto when filed with the Commission under
Rule 424(b) under the Act, complied or will comply in all material
respects with the provisions of the Act and will not at any such times
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, except that this representation and
warranty does not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Company in writing by or on behalf of any Underwriter through you
expressly for use therein.
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(c) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), complied in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder, and any further Incorporated Documents so filed will, when
they are filed, comply in all material respects with the requirements of
the Exchange Act and the rules and regulations thereunder; no such
document when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further document, when it
is filed, will contain an untrue statement of a material fact or will
omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading.
(d) All the outstanding shares of common stock of the Company
(including Class B Common Stock of the Company) have been duly
authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive or similar rights; the Shares have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and free of any preemptive or
similar rights; and the capital stock of the Company conforms in all
material respects to the description thereof in the Registration
Statement and the Prospectus. Except as described in the Registration
Statement and the Prospectus, there are no outstanding options,
convertible or exchangeable securities, warrants or other rights calling
for the issuance of Common Stock or Class B Common Stock of the Company
or equity, partnership, membership or beneficial interests in the
Subsidiaries.
(e) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Maryland with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to qualify
does not have a material adverse effect on the financial condition,
business, properties or results of operations of the Company and the
subsidiaries taken as a whole.
(f) Each Subsidiary is a corporation, limited partnership, limited
liability company or trust, as the case may be, duly organized or formed
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and validly existing under the laws of its jurisdiction of organization
or formation, with corporate, limited partnership, limited liability
company or trust power and authority, as the case may be, to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus, and is duly qualified to
conduct its business in each jurisdiction or place where the nature of
its properties or the conduct of its business requires such
qualification, except where the failure so to qualify does not have a
material adverse effect on the financial condition, business, properties
or results of operations of the Company and the subsidiaries taken as a
whole.
(g) All of the shares of capital stock, partnership interests,
limited liability company membership interests or trust beneficial
interests, as the case may be, issued by the Subsidiaries or created by
agreements to which the Subsidiaries are parties,(i) have been duly and
validly issued or created (and in the case of capital stock are fully
paid and nonassessable) and (ii) are owned or held, directly or
indirectly through Subsidiaries, by the Company in the percentage
amounts set forth on Schedule II hereto free and clear of any security
interest, lien, adverse claim, equity or other encumbrance (each of the
foregoing, a "LIEN"), except for such Liens as (i) are described in the
Registration Statement or the Prospectus or, (ii) are set forth in
Schedule II, or (iii) would not have a material adverse effect on the
financial condition, business, properties or results of operations of
the Company and its subsidiaries taken as a whole.
(h) As of September 30, 1997, the Company indirectly owned an
aggregate approximate 85.0% partnership interest in the Operating
Partnership free and clear of all Liens. A wholly-owned subsidiary of
the Company is the sole general partner of the Operating Partnership.
(i) The Company has corporate power and authority to enter into
this Agreement and to issue, sell and deliver the Shares to the
Underwriters as provided herein. This Agreement has been duly
authorized, executed and delivered by the Company and the Operating
Partnership.
(j) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, against the Company or any of
the Subsidiaries, or to which the Company or any of the Subsidiaries, or
to which any of their respective properties is subject, that are
required to be described in the Registration Statement or the Prospectus
but are not described as required, and there are no agreements,
contracts, indentures, leases or other instruments that are required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the
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Registration Statement or any Incorporated Document that are not
described or filed as required by the Act or the Exchange Act.
(k) Neither the Company nor any of the Subsidiaries is (i) in
violation of its certificate or articles of incorporation or by-laws or
certificates or agreements of limited partnership, limited liability
company or trust or other organizational documents, or (ii) in violation
of any law, ordinance, administrative or governmental rule or regulation
applicable to the Company or the Subsidiaries or of any decree of any
court or governmental agency or body having jurisdiction over the
Company or the Subsidiaries, or (iii) in default in any material respect
in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in
any material agreement, indenture, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties is bound, except, with
respect of clauses (ii) and (iii) above, for any defaults which, singly
or in the aggregate, would not have a material adverse effect on the
financial condition, business, properties or results of operations of
the Company and its subsidiaries taken as a whole.
(l) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company or the
Operating Partnership nor the consummation by the Company or the
Operating Partnership of the transactions contemplated hereby (i)
requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except such as
may be required for the registration of the Shares under the Act and the
Exchange Act and compliance with the securities or Blue Sky or real
estate syndication laws of various jurisdictions, to the extent
applicable, all of which have been or will be effected in accordance
with this Agreement) or conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, the certificate or
articles of incorporation or bylaws or certificates or agreements of
limited partnership, limited liability company or trust or other
organizational documents of the Company or the Subsidiaries or (ii)
conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, any agreement, indenture, lease or other
instrument to which the Company or the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound, or
violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Company or the
Subsidiaries or any of their respective properties, or will result in
the creation or imposition of any Lien upon any property or assets of
the Company or the Subsidiaries pursuant to the terms of any agreement
or instrument to which any of them is a party or
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by which any of them may be bound or to which any of the property or
assets of any of them is subject.
(m) Ernst & Young LLP and Xxxxxx Xxxxxxxx LLP who have certified
the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto) are independent public accountants with respect to
the Company as required by the Act.
(n) The financial statements, together with related schedules and
notes, of the Company and of any properties acquired by the Company
included or incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), present fairly
(i) the consolidated financial position, results of operations and
changes in financial position of the Company and its subsidiaries and
(ii) the combined revenues and certain expenses of the properties
acquired by the Company, as the case may be, on the basis stated in the
Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data included or incorporated by reference
in the Registration Statement and the Prospectus (or any amendment or
supplement thereto) are accurately presented and prepared on a basis
consistent with such financial statements and the books and records (i)
of the Company and its subsidiaries and (ii) the properties acquired by
the Company, as the case may be. The selected historical financial data
of the Company set forth under the caption "Selected Pro Forma and
Historical Financial Information" in the Prospectus Supplement, present
fairly, on the basis stated in the Prospectus Supplement, the historical
financial information of the Company included therein. The unaudited
pro forma financial statements included in the Prospectus Supplement
comply in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of that data.
(o) Except as disclosed in or contemplated by the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
subsequent to the respective dates as of which such information is given
in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), neither the Company nor any of the Subsidiaries has
incurred any liability or obligation, direct or contingent, or entered
into any transaction, not in the ordinary course of business, that is
material to the
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Company and the Subsidiaries taken as a whole, and there has not been
any change in (or repurchase or declaration of dividends or
distributions on) the capital stock, or material increase in the
short-term debt or long-term debt, of the Company or any of its
subsidiaries, or any material adverse change, or any development
involving or which may reasonably be expected to involve, a prospective
material adverse change, in the financial condition, business,
properties or results of operations of the Company and its subsidiaries
taken as a whole.
(p) The Company and each Subsidiary (i) is in compliance with all
applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"),(ii) has received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) is in compliance with all terms and
conditions of any such permit, license or approval, except, with respect
to clauses (i), (ii) and (iii) above, where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals are otherwise disclosed in or
contemplated by the Prospectus or would not, singly or in the aggregate,
have a material adverse effect on the financial condition, business,
properties or results of operations of the Company and its subsidiaries
taken as a whole.
(q) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties or in connection with off-site disposal of
hazardous substances) that would, singly or in the aggregate, have a
material adverse effect on the financial condition, business, properties
or results of operations of the Company and its subsidiaries taken as a
whole.
(r) (i)The Company and the Subsidiaries have good and marketable
title in fee simple to all parcels of real property (except for those
easement parcels that are appurtenant to the real property owned in fee
simple by the Company and its subsidiaries) and good and marketable
title to all personal property owned by them which is material to the
business of the Company and its subsidiaries taken as a whole, in each
case free and clear of all Liens, except such as are described in the
Prospectus or such as do not, singly or in the aggregate, materially
affect the value of
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such real and personal property taken as a whole and do not materially
interfere with the use made and proposed to be made of such real and
personal property by the Company and the Subsidiaries,(ii) any real
property and buildings held under lease by the Company and the
Subsidiaries are held under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by the
Company and the Subsidiaries, in each case except as described in the
Prospectus, (iii)the construction, management or operation of the
buildings, fixtures and other improvements located on the Company's
"Owned Properties" (as such term is defined in the Prospectus
Supplement) as presently conducted or existing is not in violation of
any applicable building code, zoning ordinance or other law or
regulation, except where any such violation would not, singly or in the
aggregate, have a material adverse effect on the Company and the
Subsidiaries taken as a whole, (iv)neither the Company nor any
Subsidiary has received notice of any proposed special assessment or any
proposed change in any property tax, zoning or land use laws affecting
all or any portion of the Owned Properties, except where any such
assessment or change would not, singly or in the aggregate, have a
material adverse effect on the Company and the Subsidiaries taken as a
whole,(v) there do not exist any violations of any declaration of
covenants, conditions and restrictions with respect to any of the Owned
Properties, nor is there any existing state of facts or circumstances or
condition or event which could, with the giving of notice or passage of
time, or both, constitute such a violation, except where any such
violation would not, singly or in the aggregate, have a material adverse
effect on the Company and the Subsidiaries taken as a whole, and (vi)
the improvements comprising any portion of the Owned Properties (the
"IMPROVEMENTS") are free of any and all material physical, mechanical,
structural, design and construction defects and the mechanical,
electrical and utility systems servicing the Improvements (including,
without limitation, all water, electric, sewer, plumbing, heating,
ventilation, gas and air conditioning) are in good condition and proper
working order and are free of material defects, except for any such
defects or failures to be in good condition or proper working order
which do not, singly or in the aggregate, have a material adverse effect
on the value of the Owned Properties taken as a whole.
(s) The direct and indirect subsidiaries of the Company have
obtained Extended Coverage Owner's Policies of Title Insurance, to the
extent available in the pertinent jurisdiction (other than in connection
with real property located in Texas, with respect to which the Company
and the Subsidiaries have obtained Texas Form T-1 Policies of Title
Insurance)
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from title insurers of recognized financial responsibility on all of the
Owned Properties and such policies are in full force and effect.
(t) The Company and the Subsidiaries self-insure or are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are customary in the businesses in which
they are engaged; and neither the Company, nor any Subsidiary has any
reason to believe that it will not be able to renew that coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the financial condition,
business or results of operations of the Company and its subsidiaries
taken as a whole, except as described in or contemplated by the
Prospectus.
(u) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of
the Shares, will not distribute any offering material in connection with
the offering and sale of the Shares other than the Registration
Statement, the Preliminary Prospectus, the Prospectus or other
materials, if any, permitted by the Act.
(v) (i)The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("PERMITS") as are necessary to own its respective
properties and to conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the
Prospectus,(ii) the Company and each of the Subsidiaries has fulfilled
and performed all its material obligations with respect to such permits
and to the Company's knowledge no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of the
holder of any such permit, subject in each case to such qualification as
may be set forth in the Prospectus and (iii) except as described in the
Prospectus, none of such permits contains any restriction that is
materially burdensome to the Company or any of the Subsidiaries, except,
with respect to clauses (i), (ii) and (iii) above, for any such failure
to obtain permits or failure to fulfill or perform obligations, or the
occurrence of events, or such restriction that would, singly or in the
aggregate, not have a material adverse effect on the financial
condition, business, properties or results of operations of the Company
and its subsidiaries taken as a whole.
(w) The Company and each of the Subsidiaries have filed all tax
returns required to be filed and have paid all taxes shown thereon as
due
15
and there is no tax deficiency that has been or to the knowledge of the
Company, is threatened to be asserted that could reasonably be expected
to have a material adverse effect on the financial condition, business,
properties or results of operations of the Company and its subsidiaries
taken as a whole.
(x) No holder of any security of the Company or the Operating
Partnership has any unwaived right to require registration of shares of
Common Stock or any other security of the Company or OP Units because of
the filing of the Registration Statement or consummation of the
transactions contemplated by this Agreement.
(y) The Company and the Subsidiaries are not now, and after the
sale of the Shares to be sold hereunder and application of the net
proceeds from such sale as described in the Prospectus Supplement under
the caption "Use of Proceeds," none of them will be, an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
(z) The Company has complied with all provisions of Florida
Statutes, Section 517.075, relating to issuers doing business in Cuba.
(aa) The Company has since July 29, 1994 been organized and
qualified as a REIT under Sections 856 through 860 of the Code, has
elected to be taxed as a REIT under the Code for the taxable year ended
December 31, 1994, and currently expects to continue to be organized and
to operate in a manner so as to qualify as a REIT in the taxable year
ending December 31, 1997 and succeeding taxable years.
(bb) Except for this Agreement, there are no contracts, agreements
or understandings between the Company and any person that would give
rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finders fee or other like payment with respect to
the consummation of the transactions contemplated by this Agreement.
(cc) The Shares have been approved for listing on the New York
Stock Exchange, subject to notice of issuance.
(dd) The Agreement and Plan of Merger, dated as of April 21, 1997
by and among AIMCO, AIMCO/NHP Acquisition Corp., and NHP Incorporated,
as amended, is in full force and effect, subject to the conditions set
forth therein.
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7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Operating Partnership agree, jointly and
severally, to indemnify and hold harmless each of you and each other
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation) arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectus or
any Preliminary Prospectus, or in any amendment or supplement thereto,
or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are
based upon any untrue statement or omission or alleged untrue statement
or omission which has been made therein or omitted therefrom in reliance
upon and in conformity with the information relating to such Underwriter
furnished in writing to the Company by or on behalf of any Underwriter
through you expressly for use in connection therewith; PROVIDED,
however, that the indemnification contained in this paragraph (a) with
respect to any Preliminary Prospectus shall not inure to the benefit of
any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Shares by such Underwriter to any
person if a copy of the Prospectus shall not have been delivered or sent
to such person within the time required by the Act and the regulations
thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus, PROVIDED that
the Company has delivered the Prospectus to the several Underwriters in
requisite quantity on a timely basis to permit such delivery or sending.
The foregoing indemnity agreement shall be in addition to any liability
which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against the Company or the Operating
Partnership, such Underwriter or such controlling person shall promptly
notify the Company and the Operating Partnership and the Company and the
Operating Partnership shall assume the defense thereof, including the
employment of counsel and payment of all reasonable fees and expenses.
Such Underwriter or any such controlling person shall have the right to
employ separate counsel in any such action, suit or proceeding and to
17
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling
person unless (i) the Company and the Operating Partnership have agreed
in writing to pay such reasonable fees and expenses,(ii) the Company and
the Operating Partnership have failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include such Underwriter or
such controlling person, the Company and the Operating Partnership, and
such Underwriter or such controlling person shall have been advised by
its counsel that representation of such indemnified party, the Company
and the Operating Partnership by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Company
and the Operating Partnership shall not have the right to assume the
defense of such action, suit or proceeding on behalf of such Underwriter
or such controlling person). It is understood, however, that the
Company and the Operating Partnership shall, in connection with any one
such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for all such Underwriters and
controlling persons, which firm shall be designated in writing by Xxxxx
Xxxxxx Inc., and that all such reasonable fees and expenses shall be
reimbursed as they are incurred. The Company and the Operating
Partnership shall not be liable for any settlement of any such action,
suit or proceeding effected without its written consent, but if settled
with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the Company and the
Operating Partnership agree to indemnify and hold harmless any
Underwriter, to the extent provided in the preceding paragraph, and any
such controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Operating Partnership,
the Company's directors, the Company's officers who sign the
Registration Statement, and any person who controls the Company or the
Operating Partnership within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Operating Partnership to each
Underwriter, but only with respect to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the
Prospectus or any Preliminary Prospectus, or
18
any amendment or supplement thereto. If any action, suit or proceeding
shall be brought against the Company and the Operating Partnership, any
of the Company's directors, any such officer, or any such controlling
person based on the Registration Statement, the Prospectus or any
Preliminary Prospectus, or any amendment or supplement thereto, and in
respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph (c), such Underwriter shall have the rights
and duties given to the Company and the Operating Partnership by
paragraph (b) above (except that if the Company and the Operating
Partnership shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter's expense), and the Company
and the Operating Partnership, the Company's directors, any such
officer, and any such controlling person shall have the rights and
duties given to the Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is
applicable in accordance with its terms but is determined to be legally
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Operating Partnership on the one hand
and the Underwriters on the other hand from the offering of the Shares,
or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Operating Partnership on the one
hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the
Operating Partnership bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of
the Company and the Operating Partnership on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
19
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company and the Operating
Partnership on the one hand or by the Underwriters on the other hand and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company, the Operating Partnership and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 7 were determined by a pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such
action, suit or proceeding. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price of the Shares underwritten
by it and distributed to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
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. The
Underwriters' obligations to contribute pursuant to this Section 7 are
several in proportion to the respective numbers of Firm Shares set forth
opposite their names in Schedule I hereto (or such numbers of Firm
Shares increased as set forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution
under this Section 7 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or
expenses are incurred. The indemnity and contribution agreements
contained in this Section 7 and the
20
representations and warranties of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in
full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the
Company, the Operating Partnership, the Company's directors or officers,
or any person controlling the Company or the Operating Partnership,(ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter or any
person controlling any Underwriter, or to the Company, the Operating
Partnership, the Company's directors or officers, or any person
controlling the Company or the Operating Partnership, shall be entitled
to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to
be declared effective before the offering of the Shares may commence, such
post-effective amendment to the Registration Statement shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof,
or at such later date and time as shall be consented to in writing by you,
and all filings, if any, required by Rules 424 and 430A under the Act shall
have been timely made; 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 knowledge of the Company or
any Underwriter, threatened by the Commission, 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
your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the financial condition, business,
properties or results of operations of the Company and its subsidiaries
taken as a whole, not contemplated by the Prospectus, which in your
opinion, as Representatives of the several Underwriters, would
materially adversely affect the market for the Shares, or (ii) any event
or development relating to or involving the Company which makes any
statement made in the Prospectus untrue or which, in the opinion of the
Company and its counsel or the Underwriters and their counsel, requires
the making of any
21
addition to or change in the Prospectus in order to state a material
fact required by the Act or any other law to be stated therein or
necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or
development would, in your opinion, as Representatives of the several
Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx, Xxxxx & Xxxxxxx LLP, and other
counsel for the Company reasonably satisfactory to you, dated the
Closing Date and addressed to you, as the several Underwriters, to the
effect set forth in Exhibit A hereto.
(d) You shall have received on the Closing Date (i) an opinion of
Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing
Date and addressed to you, as the several Underwriters, to the effect
set forth in Exhibit B hereto, and (ii) such other opinions of such
counsel with respect to such other related matters as you may reasonably
request.
(e) You shall have received letters addressed to you, as the
several Underwriters, and dated the date hereof and the Closing Date
from (i) Ernst & Young LLP,(ii) Xxxxxx Xxxxxxxx LLP, and (iii) Deloitte
& Touche, independent certified public accountants, substantially in the
forms heretofore approved by you.
(f) (i)There shall not have been any material change in the
capital stock of the Company nor any material increase in the short-term
or long-term debt of the Company (other than in the ordinary course of
business) from that set forth or contemplated in the Registration
Statement or the Prospectus (or any amendment or supplement
thereto);(ii) there shall not have been, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and Prospectus (or any
amendment or supplement thereto), any material adverse change in the
financial condition, business, properties or results of operations of
the Company and its subsidiaries taken as a whole; (iii)the Company and
the Subsidiaries shall not have incurred any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken
as a whole, other than those reflected in or contemplated by the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); and (iv) all the representations and warranties of the Company
and the Operating Partnership contained in this Agreement shall be true
and correct on and as of the date hereof and on
22
and as of the Closing Date as if made on and as of the Closing Date, and
you shall have received a certificate, dated the Closing Date and signed
by the chief executive officer and the chief financial officer of the
Company (or such other officers as are acceptable to you), to the effect
set forth in this Section 8(f) and in Section 8(g) hereof.
(g) Each of the Company and the Operating Partnership shall not
have failed at or prior to the Closing Date to have performed or
complied with any of its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to the Closing
Date.
(h) The Shares shall have been listed, subject to notice of
issuance, on the New York Stock Exchange.
(i) The Company shall have furnished or caused to be furnished to
you such further certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company or
authorized representative of the Operating Partnership and delivered to you,
as Representatives of the Underwriters, or to counsel for the Underwriters,
on the Closing Date or any Option Closing Date shall be deemed a
representation and warranty by the Company or the Operating Partnership, as
the case may be, to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option
Closing Date of the conditions set forth in this Section 8, except that, if
any Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (f) shall be dated
the Option Closing Date in question and the opinions called for by paragraphs
(c) and (d) shall be revised to reflect the sale of Additional Shares.
9. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it
of its obligations hereunder:(i) the preparation, printing or reproduction,
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus, the
Prospectus, and each amendment or supplement to any of them;(ii) the printing
(or reproduction) and
23
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, each Preliminary
Prospectus, the Prospectus, the Incorporated Documents, and all amendments or
supplements to any of them, as may be reasonably requested for use in
connection with the offering and sale of the Shares;(iii) the preparation,
printing, authentication, issuance and delivery of certificates for the
Shares, including any stamp taxes in connection with the original issuance
and sale of the Shares;(iv) the printing (or reproduction) and delivery of
this Agreement, the Blue Sky Memorandum (if any) and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Shares;(v) the listing of the Shares on the New York Stock
Exchange;(vi) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky or real estate syndication laws of the
several states as provided in Section 5(g) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Underwriters relating to
the preparation, printing or reproduction, and delivery of the Blue Sky
Memorandum and such registration and qualification);(vii) the filing fees and
the fees and expenses of counsel for the Underwriters in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc.;(viii) the transportation and other reasonable expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Shares; and (ix) the
reasonable fees and expenses of the Company's accountants and the reasonable
fees and expenses of counsel (including local and special counsel) for the
Company.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective:(i) upon the execution and delivery hereof by the parties hereto;
or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of such post-effective amendment to the
Registration Statement has been released by the Commission. Until such time
as this Agreement shall have become effective, it may be terminated by the
Company, by notifying you, or by you, as Representatives of the several
Underwriters, by notifying the Company.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing
Date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm
Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters or in such
24
other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Xxxxx Xxxxxx Inc., to purchase the
Shares which such defaulting Underwriter or Underwriters are obligated, but
fail or refuse, to purchase. If any one or more of the Underwriters shall
fail or refuse to purchase Shares which it or they are obligated to purchase
on the Closing Date and the aggregate number of Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares
which the Underwriters are obligated to purchase on the Closing Date and
arrangements satisfactory to you and the Company for the purchase of such
Shares by one or more non-defaulting Underwriters or other party or parties
approved by you and the Company are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any
such Underwriter under this Agreement. The term "Underwriter" as used in
this Agreement includes, for all purposes of this Agreement, any party not
listed in Schedule I hereto who, with your approval and the approval of the
Company, purchases Shares which a defaulting Underwriter is obligated, but
fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be,(i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii)a general moratorium on commercial banking activities
in New York shall have been declared by either federal or state authorities,
or (iii) there shall have occurred any outbreak or escalation of hostilities
or other international or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial
markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the
Shares at the offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Company by
25
telegram, telecopy or telephone and shall be subsequently confirmed by
letter. Upon any such termination, the obligations of the Company and the
Operating Partnership to the Underwriters hereunder shall also terminate,
except for the obligations set forth in Sections 7 and 9 hereof.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the cover page, the stabilization legend on
page S-2, and the statements in the first, third and fifth paragraphs under
the caption "Underwriting" in any Preliminary Prospectus and in the
Prospectus, constitute the only information furnished in writing by or on
behalf of the Underwriters through you as such information is referred to in
Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to the Company or the Operating
Partnership, at the office of the Company at 0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxxx Xxxxxxxxx, Chairman of
the Board of Directors; or (ii) if to you, as Representatives of the several
Underwriters, care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, the Operating Partnership, the Company's
directors and officers, and the other controlling persons referred to in
Section 7 hereof and their respective successors and assigns, to the extent
provided herein, and no other person shall acquire or have any right under or
by virtue of this Agreement. Neither the term "successor" nor the term
"successors and assigns" as used in this Agreement shall include a purchaser
from any Underwriter of any of the Shares in his status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
26
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Operating Partnership and the several Underwriters.
Very truly yours,
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /s/ Xxxxx Xxxxxxxxx
--------------------
Name: Xxxxx Xxxxxxxxx
Title: President
AIMCO PROPERTIES, L.P.
By AIMCO-GP, Inc., its General Partner
By: /s/ Xxxxx Xxxxxxxxx
--------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Confirmed as of the date first above
mentioned on behalf of themselves and
the other several Underwriters named
in Schedule I hereto.
XXXXX XXXXXX INC.
BT ALEX. XXXXX INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
As Representatives of the Several Underwriters
By XXXXX XXXXXX INC.
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
27
SCHEDULE I
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
Number of
Underwriter Firm Shares
-----------
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . 1,166,700
BT Alex. Xxxxx Incorporated . . . . . . . . . . . . . . . . 1,166,660
Xxxxxx Brothers Inc . . . . . . . . . . . . . . . . . . . . 1,166,660
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . . 1,166,660
Xxxxxxx Xxxxx & Associates, Inc. . . . . . . . . . . . . . 1,166,660
The Xxxxxxxx-Xxxxxxxx Company, LLC . . . . . . . . . . . . 1,166,660
-----------
Total . . . . . . . . . . . . . . . . . 7,000,000
-----------
-----------
SCHEDULE II
1. AIMCO-LP, Inc.(1)
2. Property Asset Management Services, Inc.(2)
3. AIMCO/NHP Holdings, Inc.(2)
4. NHP Incorporated (3)
5. AIMCO Properties, L.P.(4)
6. Property Asset Management Services, L.P.(5)
7. AIMCO/NHP Partners, L.P.(6)
8. AIMCO-GP, Inc.(1)
9. NHP Partners, Inc.(2)
-----------------------------
(1) Owned 100% by the Company
(2) The Operating partnership holds a 95% economic non-voting preferred
stock interest and certain officers of the Company hold a 5% economic
interest and hold all of the common voting interest.
(3) The company holds approximately 47% of the common shares and
AIMCO/NHP Holdings, Inc. holds approximately 6% of the common shares.
(4) AIMCO-GP, Inc. is the sole general partner with a 1% interest and
AIMCO-LP, Inc. holds an approximate 84% limited partnership interest.
(5) The Operating Partnership is the sole general partner with a 1%
interest and Property Asset Management Services, Inc. is the sole
limited partner with a 99% limited partnership interest.
(6) The Operating Partnership holds a 99% limited partnership interest
and CK Properties, L.L.C., a limited liability company whose members are
officers of the Company, is the sole general partner and holds a 1%
general partnership interest.
10. NHP Management Company (7)
------------------------
(7) Owned 100% by NHP Incorporated
2
EXHIBIT A
OPINIONS OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX,
XXXXX & XXXXXXX LLP AND OTHER COUNSEL
FOR THE COMPANY
The opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx, Xxxxx & Xxxxxxx
LLP, and other counsel for the Company satisfactory to the Representatives,
to be delivered pursuant to Section 8(c) of the Apartment Investment and
Management Company Underwriting Agreement shall be, in the aggregate,
substantially to the effect that on the Closing Date:
(i) The Company is a corporation duly organized and validly existing
in good standing under the laws of the jurisdiction of its incorporation
with full corporate power and authority to own, lease and operate its
properties or properties proposed to be acquired by it and to conduct
its business as described in the Registration Statement and the
Prospectus. Such counsel shall identify, based solely upon certificates
of public officials, those states in which the Company is qualified to
do business.
(ii) Each Specified Subsidiary (as defined on Schedule II hereto) is
a corporation, limited partnership, limited liability company or trust,
as the case may be, duly organized or formed and validly existing under
the laws of its jurisdiction of organization or formation, with
corporate, limited partnership, limited liability company or trust power
and authority, as the case may be, to own, lease and operate its
properties or any properties proposed to be acquired by it and to
conduct its business as described in the Registration Statement and the
Prospectus.
(iii) The authorized and outstanding capital stock of the Company is
as set forth under the caption "Capitalization" in the Prospectus
Supplement. The authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof
contained in the Prospectus under the captions "Description of Common
Stock" and "Description of Preferred Stock".
(iv) All shares of common stock of the Company (including Class B
Common Stock) outstanding prior to the issuance of the Shares have been
duly authorized and are validly issued, fully paid and nonassessable.
(v) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with
the terms hereof, will be validly issued, fully paid and nonassessable
and free of any preemptive, or to the best knowledge of such counsel
after reasonable inquiry, similar rights that entitle or will entitle
any person to acquire any Shares upon the issuance thereof by the
Company.
(vi) (i) All of the shares of capital stock issued by AIMCO,
AIMCO-GP, Inc., AIMCO-LP, Inc.
[Insert additional Subsidiaries defined in Schedule II as appropriate]
and (ii) all of the partnership interests in AIMCO Properties, L.P.
(subsequent to July 29, 1994),
[Insert additional Subsidiaries defined in Schedule II as appropriate]
issued by such limited partnerships or created by agreements to which
such limited partnerships are parties have been duly and validly issued
(and in the case of capital stock have been duly authorized and are
fully paid and nonassessable) and, except for minority limited
partnership interests in AIMCO Properties, L.P., to the best knowledge
of such counsel after reasonable inquiry (including a review of
ownership and transfer records for shares of capital stock, partnership
interests or membership interests, to the extent maintained by such
entities), such shares of capital stock or partnership interests are
owned by the Company directly or through Subsidiaries (except for
indirect ownership interests held by certain trusts in which Messrs.
Considine, Kompaniez, Xxx and Lacey collectively hold aggregate 5%
beneficial interests) free and clear of any security interest, lien,
adverse claim, equity or other encumbrance.
(vii) The form of certificates for the Shares conforms to the
requirements of the Maryland General Corporation Law.
(viii) The Company has corporate power and authority to enter into this
Agreement and to issue, sell and deliver the Shares to the Underwriters
as provided herein. This Agreement has been duly authorized, executed
and delivered by the Company and the Operating Partnership.
(ix) To the best knowledge of such counsel after reasonable inquiry,
there are no legal or governmental proceedings pending or threatened
against the Company of any the Specified Subsidiaries, or to which the
Company or any of the Specified Subsidiaries, or to which any of their
respective properties is subject, that are required to be described in
the Registration Statement or the Prospectus but are not described as
required, and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or any Incorporated Document that are not
described or filed as required by the Act or the Exchange Act.
2
(x) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company or the
Operating Partnership nor the consummation by the Company or the
Operating Partnership of the transactions contemplated hereby (1)
requires any consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except such as
may be required for the registration of the Shares under the Act and the
Exchange Act and compliance with the securities or Blue Sky or real
estate syndication laws of various jurisdictions, all of which have been
or will be effected in accordance with this Agreement) or (2) conflicts
or will conflict with or constitutes or will constitute a breach of, or
a default under, the certificate or articles of incorporation or bylaws
of the Company, AIMCO-GP, Inc. or AIMCO-LP, Inc. or the Certificate of
Limited Partnership or Agreement of Limited Partnership of AIMCO
Properties, L.P., as amended, or (3) to the best knowledge of such
counsel after reasonable inquiry, violates or will violate any statute,
law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or the Subsidiaries or any of their respective
properties or (4) to the best knowledge of such counsel after reasonable
inquiry, conflicts or will conflict with or constitutes or will
constitute a breach of or a default under any Material Agreement (as
such term shall be defined in the opinion of such counsel).
(xi) To the best knowledge of such counsel after reasonable inquiry,
no holder of any security of the Company or the Operating Partnership
has any unwaived right to require registration of shares of Common Stock
or any other security of the Company or OP Units because of the filing
of the Registration Statement or consummation of the transactions
contemplated by this Agreement.
(xii) The Company and the Specified Subsidiaries are not now, and
after the sale of the Shares to be sold hereunder and application of the
net proceeds from such sale as described in the Prospectus Supplement
under the caption "Use of Proceeds," none of them will be, an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended.
(xiii) The Registration Statement and all post-effective amendments, if
any, have become effective under the Act and, to the best knowledge of
such counsel after reasonable inquiry,(1) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending before or contemplated by the
Commission and (2) any required filing of the Prospectus pursuant to
Rule 424(b) has been made in accordance with Rule 424(b).
3
(xiv) The statements (1) in the Basic Prospectus under the caption
"Description of Common Stock"; and (2) in the Prospectus Supplement
under "Certain Federal Income Tax Considerations," in each case insofar
as such statements constitute summaries of the legal matters, documents,
or proceedings referred to therein, are accurate and present fairly the
information required to be shown.
(xv) Such counsel confirms as of the Closing Date the opinion filed
as Exhibit 8.1 to the Registration Statement.
(xvi) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements
and the notes thereto and the schedules and other financial and
statistical data included therein, as to which such counsel need not
express any opinion) comply as to form in all material respects with the
requirements of the Act. Each of the Incorporated Documents (except for
the financial statements and the notes thereto and the schedules and
other financial and statistical data included therein, as to which
counsel need not express any opinion) complies as to form in all
material respects with the Exchange Act and the rules and regulations of
the Commission thereunder.
(xvii) Although such counsel has not undertaken, except as otherwise
indicated in their opinion, to determine independently, and does not
assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has participated
in the preparation of the Registration Statement and the Prospectus,
including review and discussion of the contents thereof (including
review and discussion of the contents of all Incorporated Documents),
and nothing has come to the attention of such counsel that has caused
them to believe that the Registration Statement (including the
Incorporated Documents) at the time the Registration Statement became
effective, or the Prospectus, as of its date and as of the Closing Date
or the Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that any amendment or supplement to the
Prospectus, as of its respective date, and as of the Closing Date or the
Option Closing Date, as the case may be, contained any untrue statement
of a material fact or omitted 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 (it being understood that
such counsel need express no opinion with respect to the financial
statements and the notes thereto and the schedules and other financial
and statistical data
4
included in the Registration Statement or the Prospectus or any
Incorporated Document).
In rendering the foregoing opinions (i) such counsel may state that they
have relied as to factual matters upon certificates of public officials or
one or more officers of the Company or its Subsidiaries, (ii) Skadden, Arps,
Slate, Xxxxxxx & Xxxx may state that their opinion relates only to the
federal laws of the United States and the laws of the State of Delaware and
California, and (iii) Piper & Marbury LLP may state that their opinion
relates only to the laws of the State of Maryland.
5
EXHIBIT B
OPINION OF XXXXX XXXX & XXXXXXXX,
COUNSEL FOR THE UNDERWRITERS
The opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, to
be delivered pursuant to Section 8(d) of the Apartment Investment and
Management Company Underwriting Agreement shall be to the effect that on the
Closing Date:
(i) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive, or to the best knowledge of
such counsel after reasonable inquiry, similar rights that entitle or
will entitle any person to acquire any Shares upon the issuance thereof
by the Company.
(ii) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the best
knowledge of such counsel after reasonable inquiry,(1) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose are pending before or
contemplated by the Commission and (2) any required filing of the
Prospectus pursuant to Rule 424(b) has been made in accordance with Rule
424(b).
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The statements in the Prospectus Supplement under the
caption "Underwriting" insofar as such statements constitute summaries
of the legal matters and documents referred to therein fairly present
the information called for with respect to such legal matters and
documents and fairly summarize the matters referred to therein.
(v) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements
and the notes thereto and the schedules and other financial and
statistical data included therein, as to which such counsel need not
express any opinion) comply as to form in all material respects with the
requirements of the Act.
(vi) Although such counsel has not undertaken, except as
otherwise indicated in their opinion, to determine independently, and
does not assume any responsibility for, the accuracy or completeness of
the
statements in the Registration Statement, such counsel has participated
in the preparation of the Registration Statement and the Prospectus,
including review and discussion of the contents thereof (including
review and discussion of the contents of all Incorporated Documents),
and nothing has come to the attention of such counsel that has caused
them to believe that the Registration Statement (including the
Incorporated Documents) at the time the Registration Statement became
effective, or the Prospectus, as of its date and as of the Closing Date
or the Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that any amendment or supplement to the
Prospectus, as of its respective date, and as of the Closing Date or the
Option Closing Date, as the case may be, contained any untrue statement
of a material fact or omitted 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 (it being understood that
such counsel need express no opinion with respect to the financial
statements and the notes thereto and the schedules and other financial
and statistical data included in the Registration Statement or the
Prospectus or any Incorporated Document).
In rendering their opinion as aforesaid, such counsel may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained
by them or the Company as to laws of any jurisdiction other than the United
States or the State of New York, provided that counsel shall state in their
opinion that they believe that they and the Underwriters are justified in
relying thereon.
