EXHIBIT 10.1
AMENDED AND RESTATED
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AMENDED AND RESTATED ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Assignment"), entered into this 7th day of December, 1998, amends and
restates the Assignment and Assumption Agreement (the "Original
Agreement"), dated as of October 1, 1998 by and among Insignia Properties,
L.P., a Delaware limited partnership ("Assignor"), and AIMCO Properties,
L.P., a Delaware limited partnership ("Assignee") (each party to this
Assignment, a "Party").
WITNESSETH
WHEREAS, Assignor and Assignee wish to amend and restate the Original
Agreement to transfer from Assignor to Assignee all of Assignor's economic
rights under Assignor's assets (excluding those assets set forth on
Schedule A hereto) (the "Underlying Assets"), such that the only assets
transferred pursuant hereto constitute Assignor's right, title and interest
in and to the profits and losses granted and all other economic rights
granted to and under the Underlying Assets (the "Assets"); and
WHEREAS, Assignor and Assignee entered into the Original Agreement in
order to comply with the Amended and Restated Agreement and Plan of Merger,
dated as of May 26, 1998, among Insignia Financial Group, Inc. (the parent
corporation of the general partner of the Assignor) and Apartment
Investment and Management Company (the parent corporation of the general
partner of the Assignee).
NOW, THEREFORE, in consideration of the foregoing and the covenants
of the parties set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, subject to the terms and conditions set forth herein, the
parties hereby agree as follows:
1. Assignor hereby transfers, assigns, contributes and sets over to
the Assignee all of the Assignor's right, title and interest to and under
each of the Assets, effective as of October 1, 1998, subject to the rights
of third parties thereto including, without limitation, the rights of First
Union National Bank ("First Union") under that certain Credit Agreement,
dated as of December 30, 1997, among Assignor, Xxxxxx Commercial Paper
Inc., as lending agent, First Union, as administrative agent, and the
lenders from time to time party thereto (the "First Union Credit
Agreement"), and the Pledge and Security Agreement, dated as of December
30, 1997, related thereto (collectively with the First Union Credit
Agreement, the "First Union Agreements").
2. Assignee agrees to assume and be liable for each and every duty
and obligation of Assignor related to the Underlying Assets including, but
not limited to, those duties and obligations that accrued prior to the date
of the Original Agreement and to cause Assignor to comply in full with its
obligations under all agreements with third parties including, without
limitation, the First Union Agreements.
3. Subject to the rights of third parties including, without
limitation, First Union, and as between Assignor on the one hand and
Assignee on the other hand, Assignor is released from all duties and
obligations of Assignor related to the Underlying Assets and accruing after
the date of the Original Agreement. Assignor shall remain liable for all
duties and obligations of Assignor related to the Assets and accruing
before the date of the Original Agreement.
4. The consideration for the assignment of the Assets pursuant to
this Assignment consists of the issuance by Assignee of Common Partnership
Units in Assignee (the "Consideration"). Prior to the transfer of the
Assets the Parties agreed that the calculation of the Consideration shall
be as follows:
a) first, Ernst & Young LLP shall determine the total asset value
of Insignia Properties Trust, a Maryland real estate investment
trust ("IPT"), by calculating the total market capitalization
of IPT and adding to such amount the total amount of corporate
level indebtedness,
b) second, the value of the Assignor is calculated by subtracting
from the value of IPT, the value of all other subsidiaries of
IPT and all assets owned directly by IPT, and dividing such
result by the fraction of the Assignor owned by IPT,
c) third, the value of the Underlying Assets is calculated by
subtracting from the value of the Assignor the value of the
assets owned by Assignor not transferred to Assignee, and
adding to such result the amount of indebtedness of Assignor
not assumed by Assignee, and
d) finally, the Consideration is calculated by dividing the value
of the Underlying Assets by the fair value of the Common
Partnership Units in Assignee (which is deemed to be $37.75,
the closing price of Common Stock of Apartment Investment and
Management Company on the trading day immediately preceding the
effectiveness of the transfer).
5. The calculation in paragraph 4 resulted in an Underlying Asset
value of $386,161,468 and total Consideration of 10,229,443 Common
Partnership Units of Assignee.
6. The Parties have each determined, using their sound business
judgment and considering their fiduciary duties to the limited partners of
the respective Party, that (i) the assignment contemplated by this
Assignment is in the best interests of each Party and each Party's limited
partners, and (ii) the Consideration constitutes fair value for the Assets.
7. (a) In the event that any Assets were issued in the name of First
Union, as security agent under the First Union Agreements, but were
beneficially owned by the Assignor ("Pledged Assets"), following the
transfer provided for herein, such Pledged Assets shall be held
beneficially by the Assignee but shall remain in the name of First Union,
as security agent.
(b) Any voting rights of First Union with respect to any
Pledged Assets shall be retained by First Union notwithstanding the
transfers contemplated hereby.
(c) Any Pledged Assets in the physical possession of First
Union shall remain in the physical possession of First Union following the
transfers contemplated hereby.
8. Except as otherwise provided herein, Assignor agrees to exercise
any residual powers remaining in the Underlying Assets solely in favor of
and in the interest of the Assignee.
9. Each Party will execute such further documents and instruments and
take such further actions, including the application for any necessary
regulatory approvals or exemptions, as may reasonably be requested by the
other Party in order to consummate the transfers contemplated hereby. If
any agreement restricts or prohibits the transfer of any Assets, all Assets
not subject to such restrictions or prohibition shall be transferred and
all Assets subject to such restrictions or prohibition shall be transferred
to the maximum extent permitted by such agreement.
10. This Assignment shall be binding upon, inure to the benefit of,
and be enforceable by each Party and its permitted successors and assigns,
and shall inure to the further benefit of, and be enforceable by, any
assignee of the Assets.
11. THIS ASSIGNMENT SHALL BE INTERPRETED, GOVERNED, AND CONSTRUED
UNDER THE LAWS OF THE STATE OF DELAWARE.
12. Any amendment or waiver to this Assignment must be in writing and
signed by the Parties in the case of an amendment or by the waiving Party
in the case of a waiver.
13. This Assignment fully expresses the Parties' agreement concerning
the subject matter hereof and supersedes any prior agreements or
understanding regarding the same subject matter. This Assignment amends and
restates the Original Agreement and the Original Agreement is of no further
force or effect.
14. This Assignment may be executed in multiple counterparts, all of
which together shall constitute a single instrument, and it shall not be
necessary that any counterpart be signed by all the Parties. The
signatories hereto represent that they have been duly authorized to enter
into this Assignment on behalf of the respective Parties for whom they
sign.
* * * * *
IN WITNESS WHEREOF, the Parties have caused this Assignment to be
duly executed by their respective signatories duly authorized as of the
date first written above.
INSIGNIA PROPERTIES, L.P.
By: Insignia Properties Trust
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, Inc.
Its:General Partner
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
SCHEDULE A
ASSETS
The "Assets" shall include all each and every asset owned directly by
the Assignor, other than the following:
1) The capital stock of Xxxxxx River Properties, LLC, a Delaware
limited liability company.
2) All cash.
3) Any rights of Assignor pursuant to that certain Credit
Agreement, among Assignor, Xxxxxx Commercial Paper Inc., as
lending agent, First Union National Bank, as administrative
agent, and the lenders from time to time party thereto.
* * * * *
CONSENT TO SALE OF ASSETS
Reference is made to the Fourth Amended and Restated Limited
Partnership Agreement (the "Agreement") of Insignia Properties, L.P. (the
"Partnership"), dated as of February 17, 1998, as amended. Capitalized
terms used herein and not defined herein have the meanings ascribed to such
terms in the Agreement.
Article VI of the Agreement may be construed as requiring the
consent of the General Partner and/or the Limited Partner to the transfer
of assets pursuant to that certain Amended and Restated Assignment and
Assumption Agreement of even date herewith by and between AIMCO Properties,
L.P., as transferee, and Insignia Properties, L.P., as transferor (the
"Assignment"). Therefore, Insignia Properties Trust, as General Partner of
the Partnership, and Apartment Investment and Management Company, Insignia
Capital Corporation and AIMCO Properties, L.P., on behalf of the Limited
Partners of the Partnership, hereby consent to the sale of all of those
assets owned by the Partnership, pursuant to and upon the terms and
conditions provided in the Assignment.
* * * * *
IN WITNESS WHEREOF, this Consent has been duly executed by the
parties hereto as of the 7th day of December, 1998.
GENERAL PARTNER:
INSIGNIA PROPERTIES TRUST,
General Partner of the Partnership,
representing at least a 70.2% interest
in the Partnership
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
LIMITED PARTNERS:
AIMCO PROPERTIES, L.P.,
as transferee of the at least 26.7% limited
partner interests in the Partnership held by
Apartment Investment and Management Company
and the at least 3.0% limited partner
interests in the Partnership held by Insignia
Capital Corporation
By: AIMCO-GP, Inc.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
as Limited Partner holding at least a 26.7%
limited partner interest in the Partnership
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
INSIGNIA CAPITAL CORPORATION,
as Limited Partner holding at least a 3.0%
limited partner interest in the Partnership
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
