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 CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/2,
    LP, a Delaware limited partnership (“CCIP/2”),
    AIMCO CCIP/2 MERGER SUB LLC, a Delaware limited liability
    company (the “Aimco Subsidiary”), and AIMCO
    PROPERTIES, L.P., a Delaware limited partnership (“Aimco
    OP”).



 



    WHEREAS, ConCap Equities, Inc., the general partner of CCIP/2
    (“ConCap”) and owner of the Series A
    general partner interest (the “Series A GP
    Interest”) of CCIP/2, has determined that the Merger
    (as defined below) of the Aimco Subsidiary with and into CCIP/2,
    with CCIP/2 as the surviving entity, is advisable, fair to and
    in the best interests of CCIP/2 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
    CCIP/2, with CCIP/2 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
    CCIP/2, with CCIP/2 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, CCIP/2, 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
    CCIP/2 (the “Merger”), and CCIP/2 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.  ConCap will be the sole 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 each class or series of limited
    partnership interests of CCIP/2, CCIP/2 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 CCIP/2 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 CCIP/2.



 



    (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 Series A unit of limited partnership
    interest of CCIP/2 (each a “Series A
    Unit”) outstanding immediately prior to the Effective
    Time and held by limited partners of CCIP/2, except
    Series A 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) $8.45 in cash (the “Cash
    Consideration”) or (y) a number of partnership
    common units of Aimco OP calculated by dividing $8.45 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
    Series A Unit.



 



    (iii) Aimco OP shall prepare a form of election (the
    “Election Form”) describing the Merger and
    pursuant to which each limited partner of CCIP/2 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. CCIP/2, 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 ConCap, 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 Series A GP Interest of
    CCIP/2 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
    Series A Units of the Surviving Entity.



 



    Section 7.  Appraisal
    Rights.  In connection with the Merger, the
    holders of Series A 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 CCIP/2 for, all expenses
    incurred by CCIP/2 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 Series A 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
    each class or series of limited partnership interests of CCIP/2.



 



    (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 Series A Units shall be treated as a sale of such
    Series A Units by such holder and a purchase of such
    Series A 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
    Series A 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 Series A 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 CCIP/2, and (y) each such holder
    of Series A 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
    Series A 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 ConCap 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
    CCIP/2, 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 CCIP/2 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 Series A Units pursuant to Section 7 of
    this Agreement.





    

 








 







    IN WITNESS WHEREOF, CCIP/2, 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.



 



    CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/2, LP

    



 


			
	 	    By: 
	
    ConCap Equities, Inc.,





    Its General Partner



 


			
	 	    By: 
	
    /s/  Trent
    A. Johnson









    Name: Trent A. Johnson



			
	 	    Title: 
	
    Vice President and Assistant General Counsel




 



    AIMCO CCIP/2 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 Consolidated Capital
    Institutional Properties/2, LP, a Delaware limited partnership
    (“CCIP/2”), AIMCO CCIP/2 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 CCIP/2 shall have the
    following appraisal rights:



 



    (a) Any limited partner who holds Series A 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 Series A
    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 Series A 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
    Series A Units pursuant to paragraph (a) hereof. Any
    limited partner who holds Series A 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 Series A 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
    Series A 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 Series A 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 Series A
    Units with respect to which Nonconsenting Limited Partners have
    made demands for appraisal and the aggregate number of holders
    of such Series A 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 Series A Units and






    

 








 







    with whom agreements as to the value of their Series A
    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
    Series A 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 Series A 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 Series A 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 Series A Units shall
    be treated as a sale of the Series A Units by the owner and
    a purchase of such Series A 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 Series A 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 Series A 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 Series A Units whether under the Merger
    Agreement or otherwise and whether against CCIP/2, ConCap,
    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 Series A 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.