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EXHIBIT 10.1
_________ Shares
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
Class A Common Stock
PURCHASE AGREEMENT
September __, 1999
[Purchaser]
[Address]
[Address]
Attention: [Name]
Ladies and Gentlemen:
Apartment Investment and Management Company, a Maryland corporation
(the "Company"), proposes to issue and sell an aggregate of ______ shares (the
"Shares") of its Class A Common Stock, $0.01 par value per share (the "Common
Stock"), to ________________, a ______________ (the "Purchaser"), upon the terms
and subject to the conditions set forth herein.
The Company, through wholly-owned subsidiaries, is the sole general
partner and the principal limited partner 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
(together with the Operating Partnership, each a "Subsidiary" and, collectively,
the "Subsidiaries"). The Company will contribute the net proceeds of the sale of
the Shares to the Operating Partnership in exchange for additional limited
partnership interests in the Operating Partnership.
The Company wishes to confirm as follows its agreement with you in
connection with your purchase of the Shares.
1. Registration Statement and Prospectus. The Company has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (File No. 333-61409), including a prospectus relating to
the offering on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (together with the rules and regulations of
the Commission thereunder, the "Act"), of 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 Act. As used in this Agreement, (i) the term
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"Registration Statement" means such registration statement, including exhibits,
financial statements, incorporated by reference therein, as amended to the date
hereof, and (ii) the term "Prospectus" collectively refers to the basic
prospectus (the "Basic Prospectus") and the prospectus supplement relating to
the sale of the Shares (the "Prospectus Supplement") in the form first filed
pursuant to Rule 424 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 documents which at the time are incorporated by reference
in the Registration Statement and the 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 the
Purchaser and, upon the basis of the representations, warranties and agreements
of the Company herein contained and subject to all the terms and conditions set
forth herein, the Purchaser agrees to purchase from the Company, at a purchase
price of $39.50 per Share, ______ shares of Common Stock.
3. Delivery of the Shares and Payment Therefor. Delivery to the
Purchaser of and payment for the Shares shall be made at the office Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, at 10:00 A.M., New York City time, on September 15,
1999 (the "Closing Date"). The place of closing for the Shares and the Closing
Date may be varied by agreement between you and the Company.
Certificates for the Shares 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. The certificates
evidencing the Shares shall be delivered to you on the Closing Date against
payment of the purchase price therefor in immediately available funds.
4. Agreements of the Company. The Company agrees with you 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 sale of the
Shares may be completed, 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
Commission for amendment of or a supplement to the Registration
Statement or the Prospectus; and (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
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initiation of any proceeding for such purpose. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will make its best effort to
obtain the withdrawal of such order at the earliest possible time.
(c) 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.
5. Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser that:
(a) The Prospectus included as part of the registration statement as
originally filed or as part of any amendment or supplement thereto, or
filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the provisions of the Act. The Commission has
not issued any order preventing or suspending the use of the
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 the Prospectus and any supplement or amendment thereto
relating to the Shares 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 the Purchaser furnished to the Company in
writing by or on behalf of the Purchaser expressly for use therein.
(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), conformed 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, conform 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 have
been duly authorized and validly issued, are fully paid and
nonassessable and are free of any
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preemptive or similar rights; the Shares have been duly authorized and,
when issued and delivered to the Purchaser 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.
(e) 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 and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse
effect on the business, properties, results of operations or financial
condition of the Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect").
(f) Each Subsidiary 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 and to conduct its business as
described in the Registration Statement and the Prospectus, and is duly
registered and qualified to conduct its business in each jurisdiction
or place where the nature of its properties or the conduct of its
business requires such registration, except where the failure so to
register or qualify would not reasonably be expected to have a Material
Adverse Effect.
(g) As of the date hereof, the Company indirectly owns an aggregate
approximately 92% partnership interest in the Operating Partnership
free and clear of any security interest, lien, adverse claim, equity or
other encumbrance (each of the foregoing, a "Lien"). A wholly-owned
Subsidiary of the Company is the sole general partner of the Operating
Partnership.
(h) The Company has corporate power and authority to enter into this
Agreement and to issue, sell and deliver the Shares to the Purchaser as
provided herein. This Agreement has been duly authorized, executed and
delivered by the Company.
(i) 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 Registration Statement
or any Incorporated Document that are not described or filed as
required by the Act or the Exchange Act.
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(j) Neither the Company nor any of the Subsidiaries is (i) in
violation of its charter, certificate or articles of incorporation or
bylaws 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 the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
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 (collectively, "Company
Agreements"), except, with respect to clauses (i), (ii) and (iii)
above, for any defaults which, singly or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
(k) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the
consummation by the Company 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 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
conflicts with or constitutes 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 with or constitutes a breach of, or a default under, any
Company Agreement or violates 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 Company
Agreement, except, with respect to clauses (i) and (ii) above, such as
would not reasonably be expected, singly or in the aggregate, to have a
Material Adverse Effect.
(l) Ernst & Young 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.
(m) The financial statements, together with related schedules and
notes, of the Company included or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of
the Company 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
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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 (and any amendment or supplement thereto) are accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(n) 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 Company and the Subsidiaries,
taken as a whole.
(o) Except as disclosed in or contemplated by the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
(i) the Company has not received any written notice, claim or demand
with respect to the business of, or any property owned or leased by,
the Company or any of its Subsidiaries from any governmental entity or
third party alleging that the Company or any of its Subsidiaries is not
in compliance with, or is liable or potentially liable under any
applicable federal, state, and local laws governing pollution or the
protection of human health or the environment, and (ii) to the
knowledge of the Company, there has been no "release" of petroleum or
any petroleum by-product or any "hazardous substance," as "release" and
"hazardous substance" are defined in the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et
seq., in excess of a reportable quantity, or requiring remediation or
any response action pursuant to applicable environmental law, in each
case, on any real property owned or leased by the Company or any of its
Subsidiaries that is used for the business of the Company or any of its
Subsidiaries except, with respect to clauses (i) and (ii) above, such
as would not reasonably be expected, singly or in the aggregate, to
have a Material Adverse Effect.
(p) Except as disclosed in or contemplated by the Registration
Statement and Prospectus (or any amendment or supplement thereto), (i)
the Company and the Subsidiaries have good and marketable title to all
property described in the Registration Statement and Prospectus as
owned by them which is material to the business of the Company and the
Subsidiaries, (ii) any real property and buildings described in the
Registration Statement and Prospectus as 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, with respect to clauses (i) and (ii) above, such as would not
reasonably be expected, singly or in the aggregate, to have a Material
Adverse Effect.
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(q) (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 obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other
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, such as would not reasonably be expected, singly or in
the aggregate, to have a Material Adverse Effect.
(r) The Company and each of the Subsidiaries have filed all federal
and state tax returns required to be filed other than tax returns the
failure of which to file would not reasonably be expected, singly or in
the aggregate, to have a Material Adverse Effect, and have paid all
taxes shown thereon as due 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.
(s) The Company is not an "investment company", and is not directly
or indirectly controlled by any person which is required to register as
an "investment company," within the meaning of and under the Investment
Company Act of 1940, as amended, and the transactions contemplated by
this Agreement will not cause the Company to become an "investment
company" subject to registration under such act.
(t) Commencing with the Company's taxable year ended December 31,
1994, the Company was organized in conformity with the requirements for
qualification as a real estate investment trust ("REIT") under Sections
856 through 860 of the U.S. Internal Revenue Code of 1986, as amended
(the "Code"), and its actual of operation has enabled, and its proposed
method of operation will enable, the Company to meet the requirements
for taxation as a REIT under the Code.
6. Conditions of the Purchaser's Obligations. The obligation of the
Purchaser to purchase the Shares hereunder are subject to the following
conditions:
(a) Subsequent to the date of this Agreement, there shall not have
occurred any material adverse change, or any development involving a
prospective change, in or affecting the business, properties, results
of operations or financial condition of the Company or the
Subsidiaries, taken as a whole, that is not described in or
contemplated by the Prospectus.
(b) You shall have received on the Closing Date, an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and Piper & Marbury L.L.P.,
dated the Closing Date, addressed to you, to the effect set forth in
Exhibit A and Exhibit B, respectively, hereto.
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(c) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date and all
the representations and warranties of the Company contained in this
Agreement shall be true and correct on and as of the date hereof and on
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 Chairman, President or Chief Financial Officer of the
Company (or such other officer as is acceptable to you), to the effect
set forth in this Section 6(c) and in Section 6(d) hereof.
(d) The Company 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.
(e) The Shares shall have been listed, subject to notice of
issuance, on the New York Stock Exchange.
7. 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), the Prospectus and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of copies of the Registration Statement, the Prospectus, the Incorporated
Documents and all amendments or supplements to any of them; (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 listing of the Shares on the New York Stock
Exchange; (v) any filing or other fees required in connection with the offer and
sale of the Shares under the securities or Blue Sky or real estate syndication
laws of the several states; and (vi) the fees and expenses of the Company's
accountants and the fees and expenses of counsel for the Company.
8. No Third Party Beneficiaries. This Agreement has been and is made
solely for the benefit of the Purchaser and the Company and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement.
9. Counterparts. This Agreement may be signed in two or more
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.
10. Notices. Except as otherwise provided in Section 4 hereof, all
notices and other communications hereunder shall be in writing and shall be
delivered by hand or sent by first-class mail, postage pre-paid, or by telecopy,
as follows:
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If to the Purchaser:
[Name of Purchaser]
[Address]
[Address]
Facsimile:
-------------------------
Attention:
-------------------------
with copies to:
[Name of Counsel]
[Address]
[Address]
Facsimile:
-------------------------
Attention:
-------------------------
If to the Company, at:
Apartment Investment
and Management Company
0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
and
Apartment Investment
and Management Company
00000 Xx. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
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or, in each case, at such address and to the attention of such person as either
party shall have furnished to the other by notice.
11. Entire Agreement; Amendment. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings of the parties,
whether oral or written. This Agreement may be modified or terminated only by an
instrument in writing signed by the parties hereto.
12. Headings. The headings of the sections of this Agreement are solely
for convenience of reference and shall not affect the meaning of any of the
provisions hereof.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, including, without
limitation, Section 15-1401 of the New York General Obligations Law.
14. Severability. If any provision of this Agreement, or the
application of any such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be affected thereby.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Purchaser.
Very truly yours,
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[NAME OF PURCHASER]
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT A
[Form of Skadden, Arps Opinion]
[Date]
[Name of Purchaser]
[Address]
[Address]
Re: Offering of ______ Shares of Class A Common Stock of
Apartment Investment and Management Company
Ladies and Gentlemen:
We have acted as special counsel to Apartment Investment and Management
Company, a Maryland corporation ("AIMCO") in connection with the sale (the
"Transaction") of an aggregate of _______ shares of AIMCO's Class A Common
Stock, par value $0.01 per share, pursuant to the terms of the Purchase
Agreement, dated as of _____, 1999 (the "Purchase Agreement"), between AIMCO and
[Name of Purchaser] (the "Investor"). This opinion is being delivered pursuant
to Section 6(b) of the Purchase Agreement. All capitalized terms used herein,
unless otherwise specified, shall have the meanings ascribed to them in the
Purchase Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Purchase
Agreement, (ii) [list other documents] and (iii) such other documentation and
information as is relevant to the Transaction or as we have deemed necessary or
appropriate as a basis for the opinion set forth herein. In addition, AIMCO has
provided us with certain representations and covenants of officers of AIMCO
relating to, among other things, the actual and proposed operation of AIMCO. For
purposes of our opinion, we have not made an independent investigation of the
facts set forth in such representations, the partnership agreements and
organizational documents for each of the partnerships and limited liability
companies in which AIMCO holds a direct or indirect interest (the
"Subsidiaries") or any other document. We have, consequently, assumed and relied
on AIMCO's representations that the information presented in such documents or
otherwise furnished to us accurately and completely describes all material facts
relevant to our opinion. No facts have come to our attention, however, that
would cause us to question the accuracy and completeness of such facts or
documents in a material way. We have also relied upon the opinion of Piper &
Marbury L.L.P. dated ______, 1999 with respect to certain matters of Maryland
law, and the opinion of Altheimer & Xxxx dated May
A-1
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[Name of Purchaser]
[Date]
Page 2
8, 1998 with respect to the qualification of Ambassador Apartments, Inc., a
Maryland corporation, as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code") for its taxable year
ended December 31, 1994, and all subsequent taxable years ending on or before
May 8, 1998 (including the short taxable year ending on May 8, 1998). In
addition, we have assumed the qualification of Insignia Properties Trust as a
REIT under the Code and have relied upon the opinion of Akin, Gump, Strauss,
Xxxxx & Field, L.L.P. dated October 1, 1998, in this regard.
In rendering our opinion, we have assumed that the transactions
contemplated by the foregoing documents have been or will be consummated in
accordance with the operative documents, and that such documents accurately
reflect the material facts of such transactions. In addition, our opinion is
based on the correctness of the following specific assumptions: (i) each of
AIMCO, the Subsidiaries, Property Asset Management Services, Inc., AIMCO/NHP
Holdings, Inc., AIMCO/NHP Properties, Inc., NHP Management Company, NHP A&R
Services, Inc., and each "qualified REIT subsidiary" of AIMCO (within the
meaning of Section 856(i)(2) of the Code), has been and will continue to be
operated in accordance with the laws of the jurisdiction in which it was formed
and in the manner described in the relevant organizational documents and (ii)
there have been no changes in the applicable laws of the State of Maryland or
any other state under the laws of which any of the Subsidiaries have been
formed. In rendering our opinion, we have also considered and relied upon the
Code, the regulations promulgated thereunder (the "Regulations"), administrative
rulings and the other interpretations of the Code and the Regulations by the
courts and the Internal Revenue Service, all as they exist as of the date
hereof. With respect to the latter assumption, it should be noted that the Code,
Regulations, judicial decisions, and administrative interpretations are subject
to differing interpretations or to change at any time and, in some
circumstances, with retroactive effect. Any material change which is made after
the date hereof in any of the foregoing bases for our opinion could affect our
conclusions herein.
We express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States of America to the extent specifically referred
to herein.
Based on and subject to the foregoing, we are of the opinion that
commencing with AIMCO's initial taxable year ended December 31, 1994, AIMCO was
organized in conformity with the requirements for qualification as a REIT under
the Code, and its actual method of operation has enabled, and its proposed
method of operation will enable, AIMCO to meet the requirements for
qualification and taxation as a REIT. AIMCO's qualification and taxation as a
REIT depend upon its ability to
A-2
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[Name of Purchaser]
[Date]
Page 3
meet, through actual annual operating results, certain requirements, including
requirements relating to distribution levels and diversity of stock ownership,
and the various qualification tests imposed under the Code, the results of which
are not reviewed by us. Accordingly, no assurance can be given that the actual
results of AIMCO's operations for any particular taxable year satisfy the
requirements for taxation as a REIT under the Code.
Other than as expressly stated above, we express no opinion on any
issue relating to AIMCO, the Subsidiaries or to any investment therein. This
opinion is furnished to you solely for your benefit in connection with the
Transaction, and it may not be used, circulated, quoted or relied upon for any
other purpose without our prior written consent. This opinion is expressed as of
the date hereof, and we disclaim any undertaking to advise you of any subsequent
changes of the matters stated, represented, covenanted, or assumed herein or any
subsequent changes in applicable law.
Very truly yours,
A-3
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EXHIBIT B
[Form of Piper & Marbury L.L.P. Opinion]
September __ 1999
[Name of Purchaser]
[Number, Street]
[City, State, Zip Code]
Apartment Investment and Management Company
Ladies and Gentlemen:
We have served as special Maryland counsel to Apartment Investment and
Management Company, a Maryland corporation (the "Company"), in connection with
the issuance and sale of an aggregate of ________ shares (the "Shares") of its
Class A Common Stock, par value $.01 per share (the "Class A Common Stock"),
pursuant to a Purchase Agreement (the "Purchase Agreement"), dated as of
September __, 1999, between the Company and [Name of Purchaser] (the
"Investor"). All capitalized terms used herein but not otherwise defined herein
shall have the respective meanings ascribed to them in the Purchase Agreement.
This opinion is being provided to you at the request of the Company pursuant to
Section 6(b) of the Purchase Agreement.
In our capacity as special Maryland counsel, we have reviewed originals
or copies, certified or otherwise identified to our satisfaction, of the
following documents:
(a) The Charter of the Company (the "Charter"), certified by the
Department of Assessments and Taxation of the State of Maryland (the "MSDAT").
(b) The By-Laws (the "By-Laws") of the Company, as amended and restated
and in effect on the date hereof.
(c) The Purchase Agreement.
(d) The Registration Statement of the Company on Form S-3 (File Number
333- 61409), relating to the Shares, filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, and Amendment No. 1 and
Amendment No. 2 thereto (together, the "Registration Statement").
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(e) The final Prospectus dated November 25, 1998, which forms a part of
the Registration Statement, and related final Prospectus Supplement dated
September __, 1999 relating to the Shares.
(f) Certified resolutions of the Board of Directors of the Company
relating to the Company's authorization of the execution and delivery of the
Purchase Agreement and of the issuance of the Shares (the "Resolutions").
(g) A specimen stock certificate evidencing the Class A Common Stock.
(h) A short-form good standing certificate for the Company, dated a
recent date, issued by the MSDAT.
(i) An Officer's Certificate (the "Certificate") of the Company, dated
the date hereof, as to certain factual matters.
(j) Such other documents as we have considered necessary to the
rendering of the opinion expressed below.
In our examination of the aforesaid documents, we have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the aforesaid documents, the
authenticity of all documents submitted to us as originals, the conformity with
originals of all documents submitted to us as copies (and the authenticity of
the originals of such copies), and the accuracy and completeness of all public
records reviewed by us. In making our examination of documents executed by
parties other than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder, and we
have also assumed the due authorization by all requisite action, corporate or
other, and the valid execution and delivery by such parties of such documents
and the validity, binding effect, and enforceability thereof with respect to
such parties. As to any facts material to this opinion which we did not
independently establish or verify, we have relied solely upon the Certificate.
Based upon the foregoing, having regard for such legal considerations
as we deem relevant, and limited in all respects to applicable Maryland law, we
are of the opinion and advise you that:
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(2) The Company has the corporate power and authority to own, lease,
and operate its properties and to conduct its business as described in its
Charter.
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(3) The Shares have been duly authorized and, upon issuance and
delivery against payment therefor in accordance with the terms of the Purchase
Agreement, will be duly and validly issued, fully paid, and non-assessable and
free of any preemptive or, to our knowledge, similar such rights that are
contained in the Company's Charter or arising under the Maryland General
Corporation Law that entitle or will entitle any person to acquire any of the
Shares upon issuance thereof by the Company.
(4) The Company has corporate power and authority to enter into the
Purchase Agreement and to issue, sell, and deliver to the Investor the Shares to
be issued and sold by the Company pursuant to the Purchase Agreement.
(5) The Purchase Agreement has been duly authorized by all necessary
corporate action on the part of the Company and, assuming that it has been
executed and delivered by the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors, the President, or any Vice President of the
Company, has been duly executed and delivered by the Company.
(6) The specimen stock certificate evidencing the Class A Common Stock
is in due and proper form and complies in all material respects with the
requirements of the Maryland General Corporation Law.
(7) Neither the issuance and sale of the Shares, the execution,
delivery, or performance of the Purchase Agreement by the Company, nor the
consummation by the Company of the transactions contemplated thereby (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 of the State of Maryland, (ii)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the Charter or By-Laws of the Company, or (iii) violates or
will violate any statute, law, regulation, filing, judgment, injunction, order,
or decree of the State of Maryland known to us, applicable to the Company or any
of its properties.
(8) To our knowledge, the Company is not (i) in violation of its
Charter or By-Laws, or (ii) in breach of any applicable statute, rule, or
regulation or any writ, order, or decree of any court or governmental agency or
body of the State of Maryland having jurisdiction over the Company or its
properties.
(9) To our knowledge, there are no material legal or governmental
proceedings pending or threatened in the State of Maryland against the Company,
or to which the Company or any of its properties is subject.
In addition to the qualifications set forth above, the foregoing
opinion is further qualified as follows:
(a) This opinion concerns only the effect of the laws (exclusive of the
principles of conflict of laws) of the State of Maryland as currently in effect.
We assume no
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obligation to supplement this opinion if any applicable laws change
after the date hereof or if any facts or circumstances come to our attention
after the date hereof that might change this opinion.
(b) We have made no investigation of, and we express no opinion as to,
the laws of any jurisdiction other than the laws of the State of Maryland. To
the extent that any documents referred to herein are governed by the laws of a
jurisdiction other than Maryland, we have assumed that the laws of such
jurisdiction are the same as the laws of Maryland.
(c) We express no opinion as to compliance with the securities (or
"blue sky") laws or the real estate syndication laws of the State of Maryland.
(d) The words "to our knowledge" and "known to us" used herein are
intended to be limited to the knowledge of the lawyers within our firm who have
represented the Company in connection with the Purchase Agreement, without
independent check or verification, and do not necessarily refer to such
knowledge as might be acquired by a review of all of our files with respect to
matters involving the Company.
(e) We have assumed that the issuance of the Shares will not cause any
person to violate any of the Initial Holder Limit, the Look-Through Ownership
Limit, or the Ownership Limit provisions of the Company's Charter.
This opinion is solely for the use of (i) the Investor in connection
with the transactions contemplated by the Purchase Agreement and (ii) Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP in giving their opinion under Section 6(b) of
the Purchase Agreement. This opinion may not be relied on by any other person or
in any other connection without our prior written approval. This opinion is
limited to the matters set forth herein, and no other opinion should be inferred
beyond the matters expressly stated.
Very truly yours,
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