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APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
(a Maryland corporation)
PLACEMENT AGENCY AGREEMENT
March 21, 2002
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Apartment Investment and Management Company, a Maryland corporation
(the "COMPANY"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("MERRILL LYNCH" or the "PLACEMENT AGENT"),
to act as exclusive placement agent for the Company, from the date of this
agreement (the "AGREEMENT") through the Closing Time (as defined below) (the
"ENGAGEMENT PERIOD"), with respect to the issue and sale by the Company to, and
the purchase by, Cohen & Steers Quality Income Realty Fund, Inc., a Maryland
corporation, and Cohen and Steers Equity Income Fund, Inc., a Maryland
corporation (together, the "FUND"), of a total of 1,000,000 shares of the
Company's Class R Cumulative Preferred Stock, par value $0.01 per share (the
"SECURITIES").
The Securities will be issued by the Company to the Fund in an
aggregate principal amount of $25,770,000. In acting as the Placement Agent,
Merrill Lynch will seek to place the securities with the Fund on a reasonable
best efforts basis, acting as the Company's agent and not as a principal in the
placement of the Securities. Merrill Lynch may separately engage, at its own
expense and with the prior approval of the Company, sub-agents as it may deem
necessary or appropriate.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (No. 333-71452) for the
registration of the Securities and certain other securities of the Company under
the Securities Act of 1933, as amended (the "1933 ACT"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 ACT RULES AND
REGULATIONS"). Such registration statement has been declared effective by the
Commission and the Company has filed such post-effective amendments thereto as
may be required prior to the execution of this Agreement and each such
post-effective amendment has been declared effective by the Commission. Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 434(d) of the
1933 Act Rules and Regulations (the "RULE 434 INFORMATION"), is referred to
herein as the "Registration Statement"; and the final prospectus and the final
prospectus supplement relating
1
{PAGE}
to the offering of the Securities, in the form first furnished to the Placement
Agent by the Company for use in connection with the offering of the Securities,
are collectively referred to herein as the "Prospectus"; provided, however, that
all references to the "Registration Statement" and the Prospectus" shall also be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 ACT"), prior to the
execution of this Agreement; provided, further, that if the Company files a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Rules and Regulations (the "RULE 462(b) REGISTRATION STATEMENT"), then,
after such filing, all references to "Registration Statement" shall also be
deemed to include the Rule 462 Registration Statement; and provided, further,
that if the Company elects to rely upon Rule 434 of the 1933 Act Rules and
Regulations, then all references to "Prospectus" shall also be deemed to include
the final or preliminary prospectus and the applicable term sheet or abbreviated
term sheet (the "TERM SHEET"), as the case may be, in the form first furnished
to the Placement Agent by the Company in reliance upon Rule 434 of the 1933 Act
Rules and Regulations, and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the Registration
Statement became effective and any prospectus that omitted, as applicable, the
Rule 434 Information or other information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Rules and Regulations and was used after such effectiveness. For purposes of
this Agreement, all references to the Registration Statement, Prospectus, Term
Sheet or preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR")
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act, which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
As used herein, the term "Subsidiary" means a corporation or a
partnership a majority of the outstanding voting stock, partnership or
membership interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Company, AIMCO Properties, L.P., a Delaware
limited partnership (the "OPERATING PARTNERSHIP"), or by one or more other
Subsidiaries of the Company or the Operating Partnership.
Section 1. Representations and Warranties.
(a) Representations and Warranties. The Company and the Operating
Partnership, jointly and severally, represent and warrant to and agree with the
Placement Agent that:
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