exv10w1








 




    Exhibit
10.1



 




    AGREEMENT
    AND PLAN OF MERGER



 



    AGREEMENT AND PLAN OF MERGER (this
    “Agreement”), dated as of July 28, 2011,
    by and among ANGELES PARTNERS XII, LP, a Delaware limited
    partnership (“AP XII”), AIMCO AP XII MERGER SUB
    LLC, a Delaware limited liability company (the “Aimco
    Subsidiary”), and AIMCO PROPERTIES, L.P., a Delaware
    limited partnership (“Aimco OP”).



 



    WHEREAS, Angeles Realty Corporation II, the managing general
    partner of AP XII (“Angeles Realty”), and AIMCO
    Angeles GP, LLC, the non-managing general partner of AP XII
    (“Aimco Angeles”), have determined that the
    Merger (as defined below) of the Aimco Subsidiary with and into
    AP XII, with AP XII as the surviving entity, is advisable, fair
    to and in the best interests of AP XII and its partners; and



 



    WHEREAS, Aimco OP, the sole member of the Aimco Subsidiary, has
    determined that the Merger of the Aimco Subsidiary with and into
    AP XII, with AP XII as the surviving entity, is advisable, fair
    to and in the best interests of the Aimco Subsidiary and its
    member; and



 



    WHEREAS the Board of Directors of AIMCO-GP, Inc., the general
    partner of Aimco OP (“AIMCO-GP”), has
    determined that the Merger of the Aimco Subsidiary with and into
    AP XII, with AP XII as the surviving entity, is advisable, fair
    to and in the best interests of Aimco OP and its
    partners; and



 



    WHEREAS, the parties desire to enter this Agreement to evidence
    the terms, provisions, representations, warranties, covenants
    and conditions upon which the Merger will be consummated.



 



    NOW, THEREFORE, in consideration of the mutual agreements and
    covenants set forth herein, and for other good and valuable
    consideration, the adequacy, sufficiency, and receipt of which
    are hereby acknowledged, AP XII, the Aimco Subsidiary and Aimco
    OP hereby agree as follows:



 



    Section 1.  The
    Merger.  Subject to the terms and conditions set
    forth herein, the Aimco Subsidiary shall be merged with and into
    AP XII (the “Merger”), and AP XII shall be the
    surviving entity of the Merger (the “Surviving
    Entity”). The Merger will have the effects specified in
    this Agreement,
    section 17-211
    of the Delaware Revised Uniform Limited Partnership Act, as
    amended (the “DRULPA”), and
    section 18-209
    of the Delaware Limited Liability Company Act, as amended (the
    “DLLCA”).



 



    Section 2.  General
    Partner.  Angeles Realty will be the managing
    general partner of the Surviving Entity, and Aimco Angeles will
    be the non-managing general partner of the Surviving Entity.



 



    Section 3.  Certificate.  As
    soon as practicable after the approval of this Agreement by a
    majority in interest of the limited partnership interests of AP
    XII, AP XII shall cause to be filed a certificate of merger with
    respect to the Merger (the “Certificate of Merger”)
    with the Office of the Secretary of State of the State of
    Delaware pursuant to
    section 17-211
    of the DRULPA and
    section 18-209
    of the DLLCA. The Merger shall become effective at such time as
    the Certificate of Merger has been accepted for record by the
    Secretary of State of the State of Delaware (the “Effective
    Time”).



 



    Section 4.  Limited
    Partnership Agreement.  The agreement of limited
    partnership of AP XII as in effect immediately prior to the
    consummation of the Merger (the “Partnership
    Agreement”) shall be the agreement of limited partnership
    of the Surviving Entity until thereafter amended in accordance
    with the provisions thereof and applicable law. The general
    partner and each limited partner of the Surviving Entity shall
    have the rights under, be bound by and be subject to the terms
    and conditions of, the Partnership Agreement, as a general
    partner or limited partner, as applicable.



 



    Section 5.  Treatment
    of Interests in AP XII.



 



    (a) Limited Partners’ Interests.



 



    (i) In connection with the Merger and in accordance with
    the procedures set forth in Section 5(a)(iii) of this
    Agreement, each unit of limited partnership interest of AP XII
    (each a “Unit”) outstanding immediately prior
    to the Effective Time and held by limited partners of AP XII,
    except Units held by limited partners who have perfected






    










 







    their appraisal rights pursuant to Exhibit A hereto,
    shall be converted into the right to receive, at the election of
    the limited partner, either (x) $526.71 in cash (the
    “Cash Consideration”) or (y) a number of
    partnership common units of Aimco OP calculated by dividing
    $526.71 by the average closing price of Apartment Investment and
    Management Company common stock, as reported on the New York
    Stock Exchange, over the ten consecutive trading days ending on
    the second trading day immediately prior to the Effective Time
    (the “OP Unit Consideration” and, together
    with the Cash Consideration, the “Merger
    Consideration”).



 



    (ii) Notwithstanding Section 5(a)(i) of this
    Agreement, if Aimco OP determines that the law of the state or
    other jurisdiction in which a limited partner resides would
    prohibit the issuance of partnership common units of Aimco OP in
    that state or other jurisdiction (or that the registration or
    qualification in that state or jurisdiction would be
    prohibitively costly), then such limited partner will only be
    entitled to receive the Cash Consideration for each Unit.



 



    (iii) Aimco OP shall prepare a form of election (the
    “Election Form”) describing the Merger and
    pursuant to which each limited partner of AP XII will have the
    right to elect to receive either the Cash Consideration or the
    OP Unit Consideration (subject to Section 5(a)(ii) of
    this Agreement). Aimco OP shall mail, or cause to be mailed, an
    Election Form to each limited partner, together with any other
    materials that Aimco OP determines to be necessary or prudent,
    no later than ten (10) days after the Effective Time. An
    election to receive the Cash Consideration or the OP Unit
    Consideration shall be effective only if a properly executed
    Election Form is received by Aimco OP or its designees prior to
    5:00 p.m., New York time, on the day that is thirty
    (30) days after the mailing of such Election Form by Aimco
    OP. If a limited partner fails to return a duly completed
    Election Form within the time period specified in the Election
    Form, such holder shall be deemed to have elected to receive the
    Cash Consideration. In addition, each limited partner that
    resides in a state or other jurisdiction that Aimco OP
    determines would prohibit the issuance of partnership common
    units of Aimco OP (or in which registration or qualification
    would be prohibitively costly) will be deemed to have elected
    the Cash Consideration. AP XII, the Aimco Subsidiary and Aimco
    OP agree that limited partners shall have the right to revoke
    any election made in connection with the Merger at any time
    prior to the expiration of the time period stated in the
    Election Form. Aimco OP and Angeles Realty, by mutual agreement,
    shall have the right to make rules, not inconsistent with the
    terms of this Agreement, governing the validity of Election
    Forms and the issuance and delivery of the Merger Consideration,
    as applicable.



 



    (b) General Partner’s
    Interests.  Each general partner interest of
    AP XII outstanding immediately prior to consummation of the
    Merger shall remain outstanding and unchanged, with all of the
    rights set forth in the Partnership Agreement.



 



    Section 6.  Treatment
    of Interests in Aimco Subsidiary.  The entire
    membership interest in the Aimco Subsidiary immediately prior to
    the Effective Time shall be converted into all of the Units of
    the Surviving Entity.



 



    Section 7.  Appraisal
    Rights.  In connection with the Merger, the
    holders of Units immediately prior to the Merger shall have the
    appraisal rights set forth in Exhibit A hereto.



 



    Section 8.  Covenants.  Aimco
    OP agrees to pay for, or reimburse AP XII for, all expenses
    incurred by AP XII in connection with the Merger. Aimco OP
    agrees to pay cash or issue and deliver common units of Aimco OP
    to the former holders of Units, in accordance with
    Section 5(a) of this Agreement.



 



    Section 9.  Conditions
    to the Merger.



 



    (a) The Merger shall not occur unless and until the Merger
    has been approved or consented to by a majority in interest of
    limited partnership interests of AP XII.



 



    (b) Notwithstanding any provisions of this Agreement to the
    contrary, none of the parties hereto shall be required to
    consummate the transactions contemplated hereby if any
    third-party consent, authorization or approval that any of the
    parties hereto deem necessary or desirable in connection with
    this Agreement, or the consummation of the transactions
    contemplated hereby, has not been obtained or received.



 



    Section 10.  Tax
    Treatment.  The parties hereto intend and agree
    that, for Federal income tax purposes, (i) any payment of
    cash for Units shall be treated as a sale of such Units by such
    holder and a purchase of such Units by Aimco OP for the cash so
    paid under the terms of this Agreement in accordance with the
    guidelines set forth in






    










 







    Treas. Reg.
    Sections 1.708-1(c)(3)
    and 1.708-1(c)(4), and (ii) each such holder of Units who
    accepts cash explicitly agrees and consents to such treatment.
    Furthermore, the parties hereto intend and agree that, for
    Federal income tax purposes, (x) any holder of Units
    receiving partnership common units of Aimco OP under the terms
    of this Agreement shall be treated as receiving the partnership
    common units of Aimco OP pursuant to a distribution in complete
    liquidation of such holder’s interest in AP XII, and
    (y) each such holder of Units who accepts partnership
    common units of Aimco OP explicitly agrees and consents to such
    treatment. Any cash
    and/or
    partnership common units of Aimco OP to which a holder of Units
    is entitled pursuant to this Agreement shall be paid only after
    the receipt of a consent from such holder that, for Federal
    income tax purposes, the receipt of cash
    and/or
    partnership common units of Aimco OP shall be treated as
    described in this Section 10.



 



    Section 11.  Further
    Assurances.  From time to time, as and when
    required by the Surviving Entity or by its successors and
    assigns, there shall be executed and delivered on behalf of the
    Aimco Subsidiary such deeds and other instruments, and there
    shall be taken or caused to be taken by the Aimco Subsidiary all
    such further actions, as shall be appropriate or necessary in
    order to vest, perfect or confirm, of record or otherwise, in
    the Surviving Entity the title to and possession of all
    property, interests, assets, rights, privileges, immunities,
    powers, franchises and authority of the Aimco Subsidiary, and
    otherwise to carry out the purposes of this Agreement, and the
    officers and directors of Angeles Realty are fully authorized in
    the name and on behalf of Aimco Subsidiary or otherwise to take
    any and all such action and to execute and deliver any and all
    such deeds and other instruments.



 



    Section 12.  Amendment.  Subject
    to applicable law, this Agreement may be amended, modified or
    supplemented by written agreement of the parties hereto at any
    time prior to the consummation of the Merger with respect to any
    of the terms contained herein.



 



    Section 13.  Abandonment.  At
    any time prior to consummation of the Merger, this Agreement may
    be terminated and the Merger may be abandoned without liability
    to any party hereto by any of the Aimco Subsidiary, Aimco OP or
    AP XII, in each case, acting in its sole discretion and for any
    reason or for no reason, notwithstanding approval of this
    Agreement by any of the members of the Aimco Subsidiary, the
    partners of AP XII or the general partner of Aimco OP.



 



    Section 14.  Governing
    Law.  This Agreement shall be governed by and
    construed in accordance with the laws of the State of Delaware,
    without reference to the conflict of law provisions thereof.



 



    Section 15.  No
    Third-Party Beneficiaries.  No provision of this
    Agreement is intended to confer upon any person, entity, or
    organization other than the parties hereto any rights or
    remedies hereunder, other than the appraisal rights given to
    holders of Units pursuant to Section 7 of this Agreement.





    










 







    IN WITNESS WHEREOF, AP XII, the Aimco Subsidiary and
    Aimco OP have caused this Agreement to be signed by their
    respective duly authorized officers as of the date first above
    written.



 



    ANGELES PARTNERS XII, LP

    



 


			
	 	    By: 
	
    Angeles Realty Corporation II,

    Its Managing General Partner

	 
	 	    By: 
	
    /s/  Trent
    A. Johnson









    Name:     Trent A. Johnson



			
	 	    Title: 
	
    Vice President and





    Assistant General Counsel



 



    AIMCO AP XII MERGER SUB LLC

    



 


			
	 	    By: 
	
    AIMCO Properties, L.P.,

    Its Sole Member





 


			
	 	    By: 
	
    AIMCO-GP, Inc.,

    Its General Partner

	 
	 	    By: 
	
    /s/  Trent
    A. Johnson









    Name:     Trent A. Johnson



			
	 	    Title: 
	
    Vice President and





    Assistant General Counsel



 



    AIMCO PROPERTIES, L.P.

    



 


			
	 	    By: 
	
    AIMCO-GP, Inc.,

    Its General Partner

	 
	 	    By: 
	
    /s/  Trent
    A. Johnson









    Name:     Trent A. Johnson



			
	 	    Title: 
	
    Vice President and





    Assistant General Counsel





    










 






 




    EXHIBIT A



 




    Appraisal
    Rights of Limited Partners



 



    Capitalized terms used but not defined herein shall have the
    respective meanings ascribed thereto in the Agreement and Plan
    of Merger, dated as of July 28, 2011 (the “Merger
    Agreement”), by and among Angeles Partners XII, LP, a
    Delaware limited partnership (“AP XII”), AIMCO AP XII
    Merger Sub LLC, a Delaware limited liability company (the
    “Aimco Subsidiary”), and AIMCO Properties, L.P., a
    Delaware limited partnership (“Aimco OP”). In
    connection with the Merger, limited partners of AP XII shall
    have the following appraisal rights:



 



    (a) Any limited partner who holds Units on the effective
    date of the Merger who has not consented to the merger (the
    “Nonconsenting Limited Partners”) and who has
    otherwise complied with paragraph (b) hereof shall be
    entitled to an appraisal by arbitration of the fair value of the
    Nonconsenting Limited Partner’s Units. This arbitration
    shall be conducted in Denver, Colorado, in accordance with the
    Commercial Arbitration Rules of the American Arbitration
    Association (“AAA”), excluding the Procedures for
    Large, Complex Commercial Disputes, by a single arbitrator
    selected by Aimco OP from a panel of AAA arbitrators who are
    qualified to value investment interests in commercial real
    estate. Any action for judicial review or enforcement of the
    arbitration award shall be brought in a court of competent
    jurisdiction located in Denver, Colorado.



 



    (b) Within 10 days after the effective date of the
    Merger, Aimco OP shall notify each of the Nonconsenting Limited
    Partners of the consummation of the Merger, the effective date
    of the Merger and that appraisal rights are available for any or
    all Units held by Nonconsenting Limited Partners, and shall
    include in such notice a copy of this Exhibit A.
    Such notice shall include an Election Form pursuant to which
    Nonconsenting Limited Partners may elect an appraisal by
    arbitration of the fair value of their Units pursuant to
    paragraph (a) hereof. Any limited partner who holds Units
    on the effective date of the Merger and who has not consented to
    the Merger shall be entitled to receive such notice and may,
    within 30 days after the date of mailing of such notice
    (such 30th day being the “Election Deadline”),
    demand from Aimco OP the appraisal of his or her Units by making
    the appropriate election in the Election Form in accordance with
    the instructions thereto. Each completed Election Form must be
    delivered to the address, and within the time period, specified
    in the instructions to the Election Form. If a Nonconsenting
    Limited Partner fails to properly complete an Election Form or
    return it to the correct address within the specified time
    period, such Nonconsenting Limited Partner shall be deemed to
    have elected not to seek an appraisal of his or her Units, and
    will be deemed to have elected the Cash Consideration.



 



    (c) At any time prior to the Election Deadline, any
    Nonconsenting Limited Partner who has made a demand for
    appraisal of his or her Units shall have the right to withdraw
    his or her demand for appraisal and to accept the Cash
    Consideration payable pursuant to the Merger Agreement.
    Nonconsenting Limited Partners who wish to withdraw their
    demands must do so in writing delivered to AIMCO Properties,
    L.P.,
    c/o Eagle
    Rock Proxy Advisors, LLC, by mail at 12 Commerce Drive,
    Cranford, New Jersey, 07016, or by fax at
    (908) 497-2349.
    At any time within 20 days after the Election Deadline, any
    Nonconsenting Limited Partner who has complied with the
    requirements of subsections (a) and (b) hereof, upon
    written request, shall be entitled to receive from Aimco OP a
    statement setting forth the aggregate number of Units with
    respect to which Nonconsenting Limited Partners have made
    demands for appraisal and the aggregate number of holders of
    such Units. Such written statement shall be mailed to the
    Nonconsenting Limited Partner within 10 days after such
    Nonconsenting Limited Partner’s written request for such a
    statement is received by Aimco OP or within 20 days after
    the Election Deadline, whichever is later.



 



    (d) Upon the submission of any such demand by a
    Nonconsenting Limited Partner, Aimco OP shall, within
    40 days after the Election Deadline, submit to the
    arbitrator a duly verified list containing the names and
    addresses of all Nonconsenting Limited Partners who have
    demanded payment for their Units and with whom agreements as to
    the value of their Units have not been reached with Aimco OP.
    The arbitrator shall give notice of the time and place fixed for
    the hearing of such demand by registered or certified mail to
    Aimco OP and to the Nonconsenting Limited Partners shown on the
    list at the addresses therein stated. The forms of the notices
    shall be approved by the arbitrator, and the costs of the
    preparation and mailing thereof shall be borne by Aimco OP.



 



    (e) At the hearing on such demand, the arbitrator shall
    determine as to each of the Nonconsenting Limited Partners
    whether the Nonconsenting Limited Partner is entitled to
    appraisal rights hereunder.





    










 







    (f) After determining the Nonconsenting Limited Partners
    entitled to an appraisal, the arbitrator shall appraise the
    Units, determining their fair value, as of the date of the
    Merger, exclusive of any element of value arising from the
    accomplishment or expectation of the Merger, together with
    interest, if any, to be paid upon the amount determined to be
    the fair value. In determining such fair value, the arbitrator
    shall take into account all factors relevant to the issue of
    fair value of the Units, using the legal standard of fair value
    that would apply if the Nonconsenting Limited Partner were a
    stockholder in a corporation entitled to appraisal rights as a
    result of a corporate merger under the corporation laws of the
    state of Delaware. Unless the arbitrator in his or her
    discretion determines otherwise for good cause shown, interest
    from the effective date of the Merger through the date of
    payment of the judgment shall be compounded quarterly and shall
    accrue at 5% over the Federal Reserve discount rate (including
    any surcharge), as established from time to time during the
    period between the effective date of the Merger and the date of
    payment of the judgment. Upon application by Aimco OP or by any
    Nonconsenting Limited Partner entitled to participate in the
    appraisal proceeding, the arbitrator may, in his or her
    discretion, proceed with the appraisal prior to the final
    determination of the Nonconsenting Limited Partners’
    entitlement to appraisal rights hereunder. Any Nonconsenting
    Limited Partner whose name appears on the list submitted by
    Aimco OP pursuant to paragraph (d) hereof may participate
    fully in all proceedings until it is finally determined that
    such Nonconsenting Limited Partner is not entitled to appraisal
    rights hereunder.



 



    (g) The arbitrator shall direct the payment of the fair
    value of the Units (which will be paid only in cash), together
    with interest, if any, by Aimco OP to the Nonconsenting Limited
    Partners entitled thereto. Payment shall be so made to each such
    Nonconsenting Limited Partner upon the receipt by Aimco OP of
    the written consent from such Nonconsenting Limited Partner
    that, for federal income tax purposes, the issuance of cash for
    the Units shall be treated as a sale of the Units by the owner
    and a purchase of such Units by Aimco OP for the cash
    consideration so paid under the terms of the Merger Agreement in
    accordance with the guidelines set forth in Treas. Reg.
    Sections 1.708-1(c)(3)
    and 1.708-1(c)(4) and the release described in (i) hereof.



 



    (h) The costs of the proceeding may be determined by the
    arbitrator and taxed upon the parties as the arbitrator deems
    equitable in the circumstances. Upon application of a
    Nonconsenting Limited Partner, the arbitrator may order all or a
    portion of the expenses incurred by any Nonconsenting Limited
    Partner in connection with the appraisal proceeding, including,
    without limitation, reasonable attorney’s fees and the fees
    and expenses of experts, to be charged pro rata against the
    value of all the interests entitled to an appraisal.



 



    (i) Any Nonconsenting Limited Partner who has made a demand
    for appraisal of his or her Units and who has not withdrawn the
    demand before the Election Deadline shall be deemed to have
    entered into a binding contract with Aimco OP to accept the fair
    value awarded by the arbitrator in exchange for his or her
    Units, plus any interest as provided herein. The award of fair
    value, plus any interest, to the Nonconsenting Limited Partners
    shall be exclusive of and in lieu of any other right, claim or
    remedy under state or federal law that the Nonconsenting Limited
    Partner may have with respect to his or her Units whether under
    the Merger Agreement or otherwise and whether against AP XII,
    Angeles Realty, Aimco-GP, Apartment Investment and Management
    Company, Aimco OP, or any other person or entity, and the
    Nonconsenting Limited Partner shall execute and deliver a
    release of all other such rights, claims and remedies in
    exchange for payment of the award.



 



    (j) From and after the effective date of the Merger, no
    Nonconsenting Limited Partner who has demanded appraisal rights
    as provided in paragraph (b) hereof shall be entitled to
    vote such Units for any purpose or to receive payment of
    distributions on such interests (except distributions payable as
    of a record date prior to the effective date of the Merger);
    provided, however, that if such Nonconsenting
    Limited Partner shall deliver to AIMCO Properties, L.P.,
    c/o Eagle
    Rock Proxy Advisors, LLC, by mail at 12 Commerce Drive,
    Cranford, New Jersey, 07016, or by fax at
    (908) 497-2349,
    a written withdrawal of such Nonconsenting Limited
    Partner’s demand for an appraisal and an acceptance of the
    Cash Consideration payable pursuant to the Merger Agreement,
    either as provided in paragraph (c) hereof or thereafter
    with the written approval of Aimco OP, then the right of such
    Nonconsenting Limited Partner to an appraisal shall cease. The
    appraisal proceeding may also be dismissed as to any
    Nonconsenting Limited Partner with the agreement or consent of
    Aimco OP upon such terms as the two parties may agree. Except as
    provided in the two foregoing sentences, no appraisal proceeding
    before the arbitrator shall be dismissed as to any Nonconsenting
    Limited Partner without the approval of the arbitrator, and such
    approval may be conditioned upon such terms as the arbitrator
    deems just.