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EXHIBIT 10.2
FIRST AMENDED AND RESTATED
CONTRIBUTION AND MANAGEMENT AGREEMENT
FIRST AMENDED AND RESTATED CONTRIBUTION AND MANAGEMENT
AGREEMENT, dated as of June 15, 1998, amended and restated as of October 1, 1998
(this "Agreement"), by and between Apartment Investment and Management Company,
a Maryland corporation ("AIMCO"), and AIMCO Properties, L.P., a Delaware limited
partnership (the "OP").
RECITALS
WHEREAS, pursuant to the Agreement of Limited Partnership of
the OP, AIMCO has previously agreed to certain restrictions on its ability to
conduct business other than through the OP;
WHEREAS, in order to maintain AIMCO's qualification as a real
estate investment trust under Section 856 of the Internal Revenue Code of 1986,
as amended (the "Code"), AIMCO has acquired, and may in the future acquire, an
interest in corporations with respect to which the OP does not own any interest
(each corporation in which AIMCO now owns or may hereafter acquire an interest
is referred to herein as a "QRS", except that the following entities shall not
be included in the definition of QRS: (i) Insignia Properties Trust, a Maryland
real estate investment trust ("IPT"), (ii) Insignia Capital Corporation, a
Delaware corporation, (iii) NPI Property Investors, Inc. and (iv) any entity
which owns an interest in IPT); and
WHEREAS, AIMCO and the OP desire for the OP to acquire from
AIMCO the economic benefits of the assets owned by the QRS's, and for AIMCO to
grant the OP certain rights with respect to the management and operation of the
QRS's; and
WHEREAS, AIMCO and the OP have determined that it is desirable
and in their respective best interests to memorialize certain arrangements and
relationships; and
WHEREAS, AIMCO and the OP have previously entered into a
Contribution and Management Agreement, dated as of June 15, 1998 (the "Original
Agreement"), which AIMCO and the OP have determined will be amended and restated
as provided for in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
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AGREEMENT
1. Issuance of Securities to QRS. For each QRS now owned or
hereafter acquired by AIMCO, (a) if AIMCO acquired such QRS, in whole or in
part, for, or with the proceeds from the sale of, shares of AIMCO common stock,
the OP shall issue to such QRS a number of OP Partnership Common Units ("OP
Units") equal to the number of such shares of AIMCO common stock, minus the
number of OP Units previously issued by the OP to such QRS or any of its
subsidiaries, and (b) if AIMCO acquired such QRS, in whole or in part, for
securities issued by AIMCO other than common stock, the OP shall issue to such
QRS securities of the OP equivalent to those issued by AIMCO, and (c) if AIMCO
acquired such QRS, in whole or in part, with the proceeds (whether comprised of
cash or other assets) of a loan from the OP to AIMCO, the OP shall issue to such
QRS an interest in the OP that (i) entitles the holder thereof to receive
distributions in amounts and at the same times as interest payments on such loan
(with appropriate reductions in such distributions if any portion of the loan is
repaid), (ii) entitles the holder thereof to receive, if and to the extent that
any portion of such loan is repaid, a number of OP Units equal to the quotient
obtained by dividing the principal amount of the loan repaid by the market price
of AIMCO common stock at the date of repayment (it being understood and agreed
that if the loan is repaid with funds contributed to such QRS by AIMCO from the
proceeds of a sale of AIMCO common stock, the market price of AIMCO common stock
at the date of repayment shall be deemed to be the net price per share at which
such shares were sold), and (iii) is automatically redeemed for no consideration
upon the repayment in full of such loan.
2. Contribution of Dividends and Other Payments. AIMCO shall
cause each QRS to pay to AIMCO, either directly or through other QRS's, all
dividends, distributions and other payments received by such QRS in respect of
any shares of capital stock, any partnership interest or any other property or
asset held by such QRS, including any proceeds from the sale, redemption or
other disposition for value of such shares of capital stock, partnership
interest or other property or asset, but excluding any distributions received
in respect of any interests in the OP (collectively, "QRS Proceeds"). AIMCO
shall contribute to the OP all QRS Proceeds received by it. AIMCO shall make
such contributions either directly or through one or more QRS's. AIMCO shall not
receive any consideration (including any additional partnership interests in the
OP) in exchange for such contributions.
3. Management and Operation of QRS-Controlled Properties. With
respect to each property now or hereafter controlled by a QRS (each, a
"Property"), whether controlled directly or indirectly through one or more
subsidiaries, AIMCO shall cause such QRS, and each of its subsidiaries, to:
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(a) engage or retain as a manager for such Property only a
person or entity that has been selected or approved by the OP, and only on terms
that have been approved by the OP;
(b) at the request or direction of the OP, terminate the
manager of such Property;
(c) prohibit the termination of the manager of such Property
without the prior consent or approval of the OP;
(d) submit an annual operating budget for such Property to the
OP for its approval, and make any and all changes to such budget as may be
requested by the OP;
(e) submit to the OP for its approval all decisions with
respect to any expenditures at such Property that have not been provided for in
an annual operating budget previously approved by the OP; and
(f) prohibit the incurrence of any expense at such Property
that has not been approved by the OP.
4. Right of First Refusal. If AIMCO or any QRS proposes to
transfer, directly or indirectly, or refinance all or any part of its interest
in a QRS or any asset held by a QRS (other than OP Units and other securities
issued pursuant to Section 1 hereof), or is required by operation of law or
other involuntary transfer to do so, AIMCO shall, or shall cause such QRS to,
first offer the OP the opportunity to purchase (x) any or all of the assets
(other than any capital stock of another QRS, any OP Units or any other
securities issued pursuant to Section 1 hereof) directly or indirectly owned or
controlled by the QRS proposed to be transferred, or (y) any or all of the
assets (other than any capital stock of another QRS, any OP Units or any other
securities issued pursuant to Section 1 hereof) proposed to be transferred or
refinanced, in accordance with the following provisions:
(a) AIMCO shall provide notice ("Option Notice") to the OP of
the proposed transfer or refinancing and all of the terms thereof.
(b) Within thirty (30) days after the OP's receipt of the
Option Notice, the OP shall have the right, but not the obligation, to elect to
purchase (x) any or all of the assets (other than any capital stock of another
QRS, any OP Units or any other securities issued pursuant to Section 1 hereof)
directly or indirectly owned or controlled by the QRS proposed to be
transferred, or (y) any or all of the assets (other than any capital stock of
another QRS, any OP Units or any other securities issued pursuant to Section 1
hereof) proposed to be transferred or refinanced, in either case, for no
additional consideration.
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(c) If the OP elects to purchase any or all of such assets,
then the closing (the "Closing") of such purchase shall occur on a date selected
by the OP that is within ninety (90) days after the OP's receipt of the Option
Notice, and AIMCO and the OP shall execute such documents and instruments and
make such deliveries as may be reasonably required to consummate such purchase.
(d) For a period of thirty (30) days commencing immediately
after the earlier to occur of (1) the Closing or, (2) if the OP defaults in its
obligation to effect the Closing, the date that is ninety (90) days after the
OP's receipt of the Option Notice, AIMCO may transfer any or all of the QRS
interest, or transfer or refinance any or all of the other assets, as described
in the Option Notice. If such QRS interest is not so transferred, or such other
assets are not so transferred or refinanced, AIMCO must give notice in
accordance with this Section 4 prior to any other or subsequent transfer or
refinancing of such QRS interest or other assets.
5. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
6. Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified, or supplemented only by written agreement of
AIMCO and the OP. This Agreement amends and restates the Original Agreement and
the parties hereto agree that the Original Agreement shall be of no further
force or effect.
7. Severability. Each provision of this Agreement shall be
viewed as separate and divisible and if any provision of this Agreement shall be
held invalid or unenforceable, this Agreement shall be construed as not
containing such provisions, and the rights and obligations of the parties hereto
shall be construed and enforced accordingly.
8. Captions. The captions in this Agreement are for
convenience only, do not form a part hereof, and do not in any way modify,
interpret, or construe the intentions of the parties hereto.
9. Execution; Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be an original, but together shall
constitute one and the same instrument.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware applicable to
contracts made and enforced in such state.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
President
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, Inc.
By: /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
President
