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EXHIBIT 10.6
FIFTH AMENDMENT TO THE SECOND
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This FIFTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P., dated as of July 15, 1998 (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 "Partnership"), pursuant to the authority
conferred on the General Partner by Section 7.3.C(7) of the Second Amended and
Restated Agreement of Limited Partnership of AIMCO Properties, L.P., dated as
of July 29, 1994 (the "Agreement"). Capitalized terms used, but not otherwise
defined herein, shall have the respective meanings ascribed thereto in the
Agreement.
WHEREAS, on July 15, 1998, the Previous General Partner issued 3,600,000
shares of its Class G Cumulative Convertible Preferred Stock, par value $.01
per share (the "Class G Preferred Stock"), and in accordance with Section 4.3.E
of the Agreement, contributed the cash proceeds from such issuance to the
Special Limited Partner, which contributed such cash proceeds to the
Partnership in exchange for 3,600,000 Partnership Preferred Units with
designations, preferences and other rights, terms and provisions that are
substantially the same as the designations, preferences and other rights, terms
and provisions of the Class G Preferred Stock;
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 such
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 J," 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: Peter Kompaniez
Title: President and Vice Chairman
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EXHIBIT J
PARTNERSHIP UNIT DESIGNATION OF THE
CLASS G 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 G
Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such class shall be Four Million Fifty Thousand (4,050,000).
2. DEFINITIONS.
For purposes of the Class G Partnership Preferred Units, the following
terms shall have the meanings indicated in this Section 2. Capitalized terms
used and not otherwise defined herein shall have the meanings assigned thereto
in the Agreement.
"Agreement" shall mean the Second Amended and Restated Agreement of
Limited Partnership of the Partnership, as amended.
"Call Date" shall have the meaning set forth in paragraph (a) of Section
5 of this Article.
"Class G 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 J. It is the intention of the General Partner that each Class G
Partnership Preferred Unit shall be substantially the economic
equivalent of one share of Class G Preferred Stock.
"Class G Preferred Stock" means the Class G 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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"Common Stock" shall mean the Class A Common Stock, $.01 par value per
share, of the Previous General Partner or such shares of the Previous
General Partner's capital stock into which outstanding shares of Common
Stock shall be reclassified.
"Distribution Payment Date" shall mean any date on which cash dividends
are paid on the Class G Preferred Stock.
"Junior Partnership Units" shall have the meaning set forth in paragraph
(c) of Section 7 of this Article.
"Parity Partnership Units" shall have the meaning set forth in paragraph
(b) of Section 7 of this Article.
"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 Article.
3. DISTRIBUTIONS.
On every Distribution Payment Date, the holders of Class G
Partnership Preferred Units shall be entitled to receive distributions payable
in cash in an amount per Class G Partnership Preferred Unit equal to the per
share dividend payable on the Class G Preferred Stock on such Distribution
Payment Date. Each such distribution shall be payable to the holders of record
of the Class G 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 G Preferred Stock on such Distribution
Payment Date. Holders of Class G Partnership Preferred Units shall not be
entitled to any distributions on the Class G 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 or surplus) shall be made to
or set apart for the holders of Junior Partnership Units, the holders of Class
G Partnership Preferred Units shall be entitled to receive Twenty Five Dollars
($25) per Class G Partnership Preferred Unit (the "Liquidation Preference"),
plus an amount equal to all dividends (whether or not
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earned) accumulated, accrued and unpaid on each share of Class G Preferred
Stock to the date of final distribution to such holders; but such holders shall
not be entitled to any further payment. Until the holders of the Class G
Partnership Preferred Units have been paid the Liquidation Preference in full,
plus an amount equal to all dividends (whether or not earned) accumulated,
accrued and unpaid on the Class G Preferred Stock to the date of final
distribution to such holders, no payment will 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 G 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 G 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 G 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 invol-
untary, 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
G 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 G Partnership Preferred Units and any Parity Partnership Units shall not
be entitled to share therein.
5. REDEMPTION.
Class G 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 G Preferred Stock, the
General Partner may cause the Partnership to redeem an equal number of Class G
Partnership Preferred Units, at a redemption price payable in cash equal to
100% of the Liquidation Preference thereof, plus an amount equal to all accrued
and unpaid dividends on each share of Class G Preferred Stock to the date fixed
for redemption (the "Call Date"), in the manner set forth herein.
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(b) If the Partnership shall redeem Class G Partnership
Preferred Units pursuant to paragraph (a) of this Section 5, from and after the
Call 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 Partnership shall not make any further distributions on
the Class G Partnership Preferred Units so called for redemption (except that,
in the case of a Call Date after a distribution record date and prior to the
related Distribution Payment Date, holders of Class G Partnership Preferred
Units on the distribution record date will be entitled on such Distribution
Payment Date to receive the distribution payable thereon), (ii) said units
shall no longer be deemed to be outstanding, and (iii) all rights of the
holders thereof as holders of Class G Partnership Preferred Units of the
Partnership shall cease (except the rights to receive the cash payable upon
such redemption, without interest thereon, and to receive any distributions
payable thereon). No interest shall accrue for the benefit of the holders of
Class G Partnership Preferred Units to be redeemed on any cash set aside by the
Partnership.
If fewer than all the outstanding Class G Partnership Preferred Units
are to be redeemed, units to be redeemed shall be selected by the Partnership
from outstanding Class G 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 G Partnership Preferred Units which shall have been issued and
reacquired in any manner by the Partnership shall be deemed cancelled.
7. RANKING.
Any class or series of Partnership Units of the Partnership shall be
deemed to rank:
(a) prior or senior to the Class G 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 or of amounts
distributable upon liquidation, dissolution or winding up, as the case may be,
in preference or priority to the holders of Class G Partnership Preferred Units
("Senior Partnership Units");
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(b) on a parity with the Class G 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 G Partnership
Preferred Units if such Class or series of Partnership Units shall be Class B
Preferred Partnership Units or if the holders of such class or series of
Partnership Units and the Class G 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 ("Parity
Partnership Units"); and
(c) junior to the Class G Partnership Preferred Units, as to
the payment of distributions or as to the distribution of assets upon
liquidation, dissolution or winding up, if such class or series of Partnership
Units shall be Partnership Common Units or if the holders of Class G Preferred
Partnership Units shall be entitled to receipt of distributions 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 ("Junior Partnership Units").
8. SPECIAL ALLOCATIONS.
(a) Gross income and, if necessary, gain shall be allocated to
the holders of Class G Partnership Preferred Units for any Fiscal Year (and, if
necessary, subsequent Fiscal Years) to the extent that the holders of Class G
Partnership Preferred Units receive a distribution on any Class G 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 G 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 G Partnership Preferred
Units to the extent that the redemption amounts paid or payable with respect to
the Class G Partnership Preferred Units so redeemed exceeds the aggregate
Capital Contributions (net of liabilities assumed or taken subject to by the
Partnership) per Class G Partnership Preferred Unit allocable to the Class G
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 G
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Partnership Preferred Units to the extent that the aggregate Capital
Contributions (net of liabilities assumed or taken subject to by the
Partnership) per Class G Partnership Preferred Unit allocable to the Class G
Partnership Preferred Units so redeemed exceeds the redemption amount paid or
payable with respect to the Class G Partnership Preferred Units so redeemed.
9. RESTRICTIONS ON OWNERSHIP.
The Class G Partnership Preferred Units shall be owned and held solely
by the General Partner or the Special Limited Partner.
10. GENERAL.
(a) The ownership of Class G 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 G Partnership Preferred
Units.
(b) The rights of the General Partner and the Special Limited
Partner, in their capacity as holders of the Class G 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 G Partnership
Preferred Units.
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