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EXHIBIT 10.3
TWENTY-THIRD AMENDMENT TO THE
THIRD AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This TWENTY-THIRD AMENDMENT TO THE THIRD AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF AIMCO PROPER TIES, L.P., dated as of July 20, 2001
(this "Amendment"), is being executed by AIMCO-GP, Inc., a Delaware corporation
(the "General Partner"), as the general partner of AIMCO Properties, L.P., a
Delaware limited partnership (the "Partner ship"), pursuant to the authority
conferred on the General Partner by Section 7.3.C(7) of the Third Amended and
Restated Agreement of Limited Partnership of AIMCO Properties, L.P., dated as of
July 29, 1994, as amended and/or supplemented from time to time (the
"Agreement"). Capitalized terms used, but not otherwise defined herein, shall
have the respective meanings ascribed thereto in the Agreement.
WHEREAS, pursuant to Section 4.2.A of the Agreement, the General
Partner is authorized to determine the designations, preferences and relative,
participating, optional or other special rights, powers and duties of
Partnership Preferred Units.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The Agreement is hereby amended by the addition of a new exhibit,
entitled "Exhibit FF," in the form attached hereto, which shall be attached to
and made a part of the Agreement.
2. Except as specifically amended hereby, the terms, covenants,
provisions and conditions of the Agreement shall remain unmodified and continue
in full force and effect and, except as amended hereby, all of the terms,
covenants, provisions and conditions of the Agreement are hereby ratified and
confirmed in all respects.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
GENERAL PARTNER:
AIMCO-GP, INC.
By:/s/ PETER KOMPANIEZ
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Name:
Title:
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EXHIBIT FF
PARTNERSHIP UNIT DESIGNATION OF THE
CLASS R PARTNERSHIP PREFERRED UNITS
OF AIMCO PROPERTIES, L.P.
1. NUMBER OF UNITS AND DESIGNATION.
A class of Partnership Preferred Units is hereby designated as "Class R
Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such class shall be 4,140,000.
2. DEFINITIONS.
For purposes of the Class R Partnership Preferred Units, the following
terms shall have the meanings indicated in this Section 2, and capitalized terms
used and not otherwise defined herein shall have the meanings assigned thereto
in the Agreement:
"Agreement" shall mean the Third Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of July 29, 1994, as
amended.
"Class R Partnership Preferred Unit" means a Partnership Preferred Unit
with the designations, preferences and relative, participating,
optional or other special rights, powers and duties as are set forth in
this Exhibit FF. It is the intention of the General Partner that each
Class R Partnership Preferred Unit shall be substantially the economic
equivalent of one share of Class R Preferred Stock.
"Class R Preferred Stock" means the Class R Cumulative Preferred Stock,
par value $0.01 per share, of the Previous General Partner.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute thereto. Reference to any
provision of the Code shall mean such provision as in effect from time
to time, as the same may be amended, and any successor thereto, as
interpreted by any applicable regulations or other administrative
pronouncements as in effect from time to time.
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"Distribution Payment Date" shall mean any date on which cash dividends
are paid on all outstanding shares of the Class R Preferred Stock.
"Junior Partnership Units" shall have the meaning set forth in
paragraph (c) of Section 7 of this Exhibit FF.
"Parity Partnership Units" shall have the meaning set forth in
paragraph (b) of Section 7 of this Exhibit FF.
"Partnership" shall mean AIMCO Properties, L.P., a Delaware limited
partnership.
"Senior Partnership Units" shall have the meaning set forth in
paragraph (a) of Section 7 of this Exhibit FF.
3. DISTRIBUTIONS.
On every Distribution Payment Date, the holders of Class R Partnership
Preferred Units shall be entitled to receive distributions payable in cash in an
amount per Class R Partnership Preferred Unit equal to the per share dividend
payable on the Class R Preferred Stock on such Distribution Payment Date. Each
such distribution shall be payable to the holders of record of the Class R
Partnership Preferred Units, as they appear on the records of the Partnership at
the close of business on the record date for the dividend payable with respect
to the Class R Preferred Stock on such Distribution Payment Date. Holders of
Class R Partnership Preferred Units shall not be entitled to any distributions
on the Class R Partnership Preferred Units, whether payable in cash, property or
stock, except as provided herein.
4. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up
of the Partnership, whether voluntary or involuntary, before any payment or
distribution of the Partnership (whether capital, surplus or otherwise) shall be
made to or set apart for the holders of Junior Partnership Units, the holders of
Class R Partnership Preferred Units shall be entitled to receive Twenty-Five
Dollars ($25.00) per Class R Partnership Preferred Unit (the "Liquidation
Preference"), plus an amount per Class R Partnership Preferred Unit equal to all
dividends (whether or not declared or earned) accumulated, accrued and unpaid on
one share of Class R Preferred Stock to the date of final distribution to such
holders; but such holders shall not be entitled to any further
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payment. Until the holders of the Class R Partnership Preferred Units have been
paid the Liquidation Preference in full, plus an amount equal to all dividends
(whether or not declared or earned) accumulated, accrued and unpaid on the Class
R Preferred Stock to the date of final distribution to such holders, no payment
shall be made to any holder of Junior Partnership Units upon the liquidation,
dissolution or winding up of the Partnership. If, upon any liquidation,
dissolution or winding up of the Partnership, the assets of the Partnership, or
proceeds thereof, distributable among the holders of Class R Partnership
Preferred Units shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any Parity Partnership Units, then such
assets, or the proceeds thereof, shall be distributed among the holders of Class
R Partnership Preferred Units and any such Parity Partnership Units ratably in
the same proportion as the respective amounts that would be payable on such
Class R Partnership Preferred Units and any such other Parity Partnership Units
if all amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Partnership with one or more
partnerships, or (ii) a sale or transfer of all or substantially all of the
Partnership's assets shall not be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary, of the Partnership.
(b) Upon any liquidation, dissolution or winding up of the
Partnership, after payment shall have been made in full to the holders of Class
R Partnership Preferred Units and any Parity Partnership Units, as provided in
this Section 4, any other series or class or classes of Junior Partnership Units
shall, subject to the respective terms thereof, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of the Class R
Partnership Preferred Units and any Parity Partnership Units shall not be
entitled to share therein.
5. REDEMPTION.
Class R Partnership Preferred Units shall be redeemable by the
Partnership as follows:
(a) At any time that the Previous General Partner exercises
its right to redeem all or any of the shares of Class R Preferred Stock, the
General Partner shall cause the Partnership to redeem an equal number of Class R
Partnership Preferred Units, at a redemption price per Class R Partnership
Preferred Unit payable in cash and equal to the same price per share paid by the
Previous General Partner to redeem the Class R Preferred Stock. In the event of
a redemption of Class R Partnership Preferred Units, if the redemption date
occurs after a dividend record date for the Class R Preferred Stock and on or
prior to the related Distribution
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Payment Date, the distribution payable on such Distribution Payment Date in
respect of such Class R Partnership Preferred Units called for redemption shall
be payable on such Distribution Payment Date to the holders of record of such
Class R Partner ship Preferred Units on the applicable dividend record date, and
shall not be payable as part of the redemption price for such Class R
Partnership Preferred Units.
(b) If the Partnership shall redeem Class R Partnership
Preferred Units pursuant to paragraph (a) of this Section 5, from and after the
redemption date (unless the Partnership shall fail to make available the amount
of cash necessary to effect such redemption), (i) except for payment of the
redemption price, the Partner ship shall not make any further distributions on
the Class R Partnership Preferred Units so called for redemption, (ii) said
units shall no longer be deemed to be outstanding, and (iii) all rights of the
holders thereof as holders of Class R Partner ship Preferred Units of the
Partnership shall cease except the rights to receive the cash payable upon such
redemption, without interest thereon; provided, however, that if the redemption
date occurs after dividend record date for the Class R Preferred Stock and on or
prior to the related Distribution Payment Date, the full distribution payable on
such Distribution Payment Date in respect of such Class R Partnership Preferred
Units called for redemption shall be payable on such Distribution Payment Date
to the holders of record of such Class R Partnership Preferred Units on the
applicable dividend record date notwithstanding the prior redemption of such
Class R Partnership Preferred Units. No interest shall accrue for the benefit of
the holders of the Class R Partnership Preferred Units to be redeemed on any
cash set aside by the Partnership.
(c) If fewer than all the outstanding Class R Partnership
Preferred Units are to be redeemed, units to be redeemed shall be selected by
the Partnership from outstanding Class R Partnership Preferred Units not
previously called for redemption by any method determined by the General Partner
in its discretion. Upon any such redemption, the General Partner shall amend
Exhibit A to the Agreement as appropriate to reflect such redemption.
6. STATUS OF REACQUIRED UNITS.
All Class R Partnership Preferred Units which shall have been issued
and reacquired in any manner by the Partnership shall be deemed cancelled.
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7. RANKING.
Any class or series of Partnership Units of the Partnership shall be
deemed to rank:
(a) prior or senior to the Class R Partnership Preferred
Units, as to the payment of distributions and as to distributions of assets upon
liquidation, dissolution or winding up, if the holders of such class or series
shall be entitled to the receipt of distributions and of amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in preference
or priority to the holders of Class R Partnership Preferred Units ("Senior
Partnership Units");
(b) on a parity with the Class R Partnership Preferred Units,
as to the payment of distributions and as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the distribution rates,
distribution payment dates or redemption or liquidation prices per unit or other
denomination thereof be different from those of the Class R Partnership
Preferred Units if (i) such class or series of Partnership Units shall be Class
B Partnership Preferred Units, Class C Partnership Preferred Units, Class D
Partnership Preferred Units, Class G Partner ship Preferred Units, Class H
Partnership Preferred Units, Class I Partnership Preferred Units, Class J
Partnership Preferred Units, Class K Partnership Preferred Units, Class L
Partnership Preferred Units, Class M Partnership Preferred Units, Class N
Partnership Preferred Units, Class O Partnership Preferred Units, Class P
Partnership Preferred Units, Class Q Partnership Preferred Units, Class One
Partner ship Preferred Units, Class Two Partnership Preferred Units, Class Three
Partnership Preferred Units, Class Four Partnership Preferred Units, Class Six
Partnership Preferred Units, Class Seven Partnership Preferred Units, or Class
Nine Partnership Preferred Units, or (ii) the holders of such class or series of
Partnership Units and the Class R Partnership Preferred Units shall be entitled
to the receipt of distributions and of amounts distributable upon liquidation,
dissolution or winding up in proportion to their respective amounts of accrued
and unpaid distributions per unit or other denomination or liquidation
preferences, without preference or priority one over the other (the Partnership
Units referred to in clauses (i) and (ii) of this paragraph being hereinafter
referred to, collectively, as "Parity Partnership Units"); and
(c) junior to the Class R Partnership Preferred Units, as to
the payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up, if (i) such class or series of
Partnership Units shall be Partnership Common Units, Class I High Performance
Partnership Units, Class Five Partnership Preferred Units, or Class Eight
Partnership Preferred Units, or (ii) the holders of Class R Partnership
Preferred Units shall be entitled to receipt of distributions
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or of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of such class or series of
Partnership Units (the Partnership Units referred to in clauses (i) and (ii) of
this paragraph being hereinafter referred to, collectively, as "Junior
Partnership Units").
8. SPECIAL ALLOCATIONS.
(a) Gross income and, if necessary, gain shall be allocated to
the holders of Class R Partnership Preferred Units for any Fiscal Year (and, if
necessary, subsequent Fiscal Years) to the extent that the holders of Class R
Partnership Preferred Units receive a distribution on any Class R Partnership
Preferred Units (other than an amount included in any redemption pursuant to
Section 5 hereof) with respect to such Fiscal Year.
(b) If any Class R Partnership Preferred Units are redeemed
pursuant to Section 5 hereof, for the Fiscal Year that includes such redemption
(and, if necessary, for subsequent Fiscal Years) (a) gross income and gain (in
such relative proportions as the General Partner in its discretion shall
determine) shall be allocated to the holders of Class R Partnership Preferred
Units to the extent that the redemption amounts paid or payable with respect to
the Class R Partnership Preferred Units so redeemed exceeds the aggregate
Capital Contributions (net of liabilities assumed or taken subject to by the
Partnership) per Class R Partnership Preferred Unit allocable to the Class R
Partnership Preferred Units so redeemed and (b) deductions and losses (in such
relative proportions as the General Partner in its discretion shall determine)
shall be allocated to the holders of Class R Partnership Preferred Units to the
extent that the aggregate Capital Contributions (net of liabilities assumed or
taken subject to by the Partnership) per Class R Partnership Preferred Unit
allocable to the Class R Partnership Preferred Units so redeemed exceeds the
redemption amount paid or payable with respect to the Class R Partnership
Preferred Units so redeemed.
9. RESTRICTIONS ON OWNERSHIP.
The Class R Partnership Preferred Units shall be owned and held solely
by the General Partner or the Special Limited Partner.
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10. GENERAL.
(a) The ownership of Class R Partnership Preferred Units may
(but need not, in the sole and absolute discretion of the General Partner) be
evidenced by one or more certificates. The General Partner shall amend Exhibit
A to the Agreement from time to time to the extent necessary to reflect
accurately the issuance of, and subsequent conversion, redemption, or any other
event having an effect on the ownership of, Class R Partnership Preferred Units.
(b) The rights of the General Partner and the Special Limited
Partner, in their capacity as holders of the Class R Partnership Preferred
Units, are in addition to and not in limitation of any other rights or authority
of the General Partner or the Special Limited Partner, respectively, in any
other capacity under the Agreement or applicable law. In addition, nothing
contained herein shall be deemed to limit or otherwise restrict the authority of
the General Partner or the Special Limited Partner under the Agreement, other
than in their capacity as holders of the Class R Partnership Preferred Units.
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