EXHIBIT 1.1
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), dated as of March 21, 2002,
is by and among Xxxxx & Steers Quality Income Realty Fund, Inc. and Xxxxx &
Steers Equity Income Fund, Inc. (each a "PURCHASER" and collectively the
"PURCHASERS") and Apartment Investment and Management Company (the "SELLER").
WHEREAS, the PURCHASERS desire to purchase from SELLER, and SELLER
desires to issue and sell to the PURCHASERS, one million shares of SELLER's
Class R Cumulative Preferred Stock, par value $.01 per share (the "Shares").
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions hereof, the
PURCHASERS hereby agree to purchase from SELLER, and SELLER agrees to issue and
sell to the PURCHASERS, in the individual amounts set forth below, one million
Shares at a price per share of $25.77 for an aggregate purchase amount of
$25,770,000 (the "Purchase Price"):
Xxxxx & Steers Quality Income Realty Fund, Inc.: 950,000 Shares
$(24,481,500)
Xxxxx & Steers Equity Income Fund, Inc.: 50,000 Shares $(1,288,500)
2. Representations and Warranties of PURCHASERS. Each PURCHASER
represents and warrants that:
(a) Due Authorization. Such PURCHASER is duly authorized to
purchase the Shares. This Agreement has been duly authorized, executed
and delivered by such PURCHASER and constitutes a legal, valid and
binding agreement of such PURCHASER, enforceable against such PURCHASER
in accordance with its terms except as may be limited by (i) the effect
of bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights or remedies of creditors or
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law and the discretion of
the court before which any proceeding therefor may be brought.
(b) Prospectus and Prospectus Supplement. Such PURCHASER has
received a copy of SELLER's Prospectus dated November 6, 2001 and
Prospectus Supplement dated March 21, 2002 (collectively, the
"Prospectus").
(c) Not a Party in Interest; Disqualified Person. With respect
to SELLER, such PURCHASER is not a "party in interest" as such phrase
is used in
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a "disqualified person" as such phrase is used in the
Internal Revenue Code of 1986, as amended ("Code").
(d) Not a Prohibited Transaction. The purchase of the Shares
from SELLER will not give rise to a nonexempt "prohibited transaction"
under ERISA or the Code.
3. Representations and Warranties of SELLER. SELLER represents and
warrants that:
(a) Due Authorization. This Agreement has been duly
authorized, executed and delivered by SELLER and constitutes a legal,
valid and binding agreement of SELLER, enforceable against SELLER in
accordance with its terms except as may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights or remedies of creditors or
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law and the discretion of
the court before which any proceeding therefor may be brought.
(b) Organization and Authority. SELLER has been duly organized
and is validly existing in good standing under the laws of Maryland,
with full power and authority to own or lease and occupy its properties
and conduct its business as described in the Prospectus.
(c) Issuance of the Shares. The Shares have been duly and
validly authorized and, when issued and delivered pursuant to this
Agreement, will be fully paid and nonassessable and will be listed,
subject to notice of issuance, on the New York Stock Exchange effective
as of the Closing (as defined in Paragraph 5 of this Agreement).
(d) Absence of Conflicts. The execution, delivery and
performance of this Agreement and the consummation of transactions
contemplated herein do not and will not result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of the SELLER.
4. Conditions to Obligations of the Parties. The obligations of the
parties hereto to effect the transactions contemplated by this Agreement shall
be subject to the satisfaction or waiver at or prior to the Closing of the
condition that each of the representations and warranties of the parties hereto
shall be true and correct in all respects.
5. Closing. The transactions contemplated hereby shall be consummated
on March 25, 2002 (such time and date of payment and delivery being herein
called the
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"Closing"). At the Closing, SELLER shall cause its transfer agent to deposit the
Shares with the Depositary Trust Company, which shall deliver the Shares to a
custodian on behalf of each PURCHASER, and each PURCHASER shall cause such
custodian to promptly thereafter wire transfer to an account designated by
SELLER immediately available funds in the respective amount of the Purchase
Price for the Shares. In the event SELLER does not receive the Purchase Price
for the Shares on the day of the Closing, SELLER may, in its sole discretion,
deliver a notice (which notice shall be delivered no later than one business day
thereafter) to the PURCHASERS declaring this Agreement null and void ab initio
and, this Agreement shall immediately be null and void ab initio, and the
PURCHASERS will promptly cause the Shares to be returned to SELLER's transfer
agent.
6. Governing Law. This Agreement shall be construed in accordance with
and governed by the substantive laws of the State of New York.
7. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only in a writing that is executed by each of the parties hereto.
8. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
By: /s/ Xxxx X. XxXxxxxxx
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Name: Xxxx X. XxXxxxxxx
Title: Executive Vice President,
Chief Financial Officer
XXXXX & STEERS QUALITY INCOME REALTY FUND, INC.
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Secretary
XXXXX & STEERS EQUITY INCOME FUND, INC.
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Secretary
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