exv10w1







Exhibit
10.1



 



    



 




    Agreement
    and Plan of Merger



 



    AGREEMENT AND PLAN OF MERGER (this
    “Agreement”), dated as of
    September 13, 2010, by and among CONSOLIDATED
    CAPITAL INSTITUTIONAL PROPERTIES, LP, a Delaware limited
    partnership (“CCIP”), AIMCO CCIP 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
    (“ConCap”) and owner of the Series A GP
    Interest of CCIP, has determined that the Merger (as defined
    below) of the Aimco Subsidiary with and into CCIP, with CCIP as
    the surviving entity, is advisable and in the best interests of
    CCIP 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, with CCIP as the surviving entity, is advisable 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, with CCIP as the surviving entity, is advisable 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, 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 (the “Merger”), and CCIP 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, CCIP 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 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.



 



    (a) Limited Partners’ Interests.



 



    (i) In connection with the Merger and in accordance with
    the procedures set forth in Section 5(a)(iii) hereto, each
    Series A Unit of CCIP outstanding immediately prior to the
    Effective Time and held by limited partners of CCIP, 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) $4.31 in cash (the
    “Cash Consideration”) or (y) a number of
    partnership common units of Aimco OP calculated by dividing
    $4.31 by






    

 








 







    the average closing price of Apartment Investment and Management
    Company common stock, as reported on the NYSE, 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), 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
    jurisdiction (or that the registration in that state or other
    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 will have the
    right to elect to receive either the Cash Consideration or the
    OP Unit Consideration (subject to Section 5(a)(ii)).
    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.,
    Eastern 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 of in would be prohibitively costly) will be deemed
    to have elected the Cash Consideration. CCIP, 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 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 1,000 Series A
    Units of the Surviving Entity.



 



    Section 7.  Appraisal
    Rights.  In connection with the Merger, the
    holders of Series A Units of CCIP 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 for, all expenses
    incurred by CCIP 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 partners of CCIP.



 



    (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 receives cash explicitly agrees and
    consents to such treatment. Furthermore, the parties hereto
    intend and agree that, for Federal income tax purposes,
    (x) any exchange of Series A Units for partnership
    common units of Aimco OP under the terms of this Agreement shall
    be treated in accordance with Sections 721 and 731 of the






    

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    Internal Revenue Code of 1986, as amended, 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, 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 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 of CCIP pursuant to
    Section 7.





    

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    IN WITNESS WHEREOF, CCIP, 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, LP

    



 


			
	 	    By: 
	
    ConCap Equities, Inc.,

    its General Partner

	 
	 	    By:
	
    /s/ John Bezzant 









    Name: John Bezzant




    Title: Senior Vice President and Director



 



    AIMCO CCIP MERGER SUB LLC

    



 


			
	 	    By: 
	
    Aimco Properties, L.P.,

    its sole Member





 


			
	 	    By: 
	
    AIMCO-GP, Inc.

    its General Partner

	 
	 	    By:
	
    /s/ Derek S. McCandless 









    Name: Derek S. McCandless




    Title: Senior Vice President



 



    AIMCO PROPERTIES, L.P.

    



 


			
	 	    By: 
	
    AIMCO-GP, Inc.,

    its General Partner

	 
	 	    By:
	
    /s/ Derek S. McCandless 









    Name: Derek S. McCandless




    Title: Senior Vice President



 



    [Signature Page — Merger Agreement]





    

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    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 September 13, 2010 (the
    “Merger Agreement”), by and among Consolidated Capital
    Institutional Properties, LP, a Delaware limited partnership
    (“CCIP”), AIMCO CCIP 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 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 by a panel of three arbitrators selected
    by Aimco OP. Any arbitration award shall be appealable in the
    Federal District Court 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 Annex. 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 10 Commerce Drive,
    Cranford, New Jersey, 07016, or by fax at
    (908) 497-2314.
    At any time prior to 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
    arbitration panel 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 arbitration panel 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 panel, and the costs thereof shall be borne by
    Aimco OP.





    










 







    (e) At the hearing on such demand, the panel shall
    determine the Nonconsenting Limited Partners who have become
    entitled to appraisal rights hereunder.



 



    (f) After determining the Nonconsenting Limited Partners
    entitled to an appraisal, the panel shall appraise the
    Series A Units, determining their fair value 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 panel shall take into account
    all relevant factors. Unless the panel in its 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 panel may, in its discretion, proceed
    with the appraisal prior to the final determination of the
    Nonconsenting Limited Partners entitled to an appraisal. 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 panel shall direct the payment of the fair value of
    the Series A Units, 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).



 



    (h) The costs of the proceeding may be determined by the
    panel and taxed upon the parties as the panel deems equitable in
    the circumstances. Upon application of a Nonconsenting Limited
    Partner, the panel 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) 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 10 Commerce Drive,
    Cranford, New Jersey, 07016, or by fax at
    (908) 497-2314,
    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.
    Notwithstanding the foregoing, no appraisal proceeding before
    the panel shall be dismissed as to any Nonconsenting Limited
    Partner without the approval of the panel, and such approval may
    be conditioned upon such terms as the panel deems just.





    

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