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EXHIBIT 10.7
SIXTH AMENDMENT TO THE SECOND
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This SIXTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P., dated as of August 14, 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 "Partner- ship"), 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 August 13, 1998, the Previous General Partner filed
Articles Supplementary amending its Charter to reclassify 2,300,000 shares of
authorized but unissued shares of its Class A Common Stock, par value $.01 per
share, as shares of its Class H Cumulative Convertible Preferred Stock, par
value $.01 per share (the "Class H Preferred Stock");
WHEREAS, in accordance with Section 4.3.E of the Agreement, upon the
issuance of any such shares of Class H Preferred Stock, the Previous General
Partner will contribute the net cash proceeds from such issuance to the Special
Limited Partner, which will contribute such net cash proceeds to the
Partnership in exchange for a number of Partnership Preferred Units equal to
the number of shares of Class H Preferred Stock so issued, which Partnership
Preferred Units shall have 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 H Preferred Stock; and
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 K," in the form attached hereto, which shall be
attached to and made a part of the Agreement.
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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, cove-
nants, 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 K
PARTNERSHIP UNIT DESIGNATION OF THE
CLASS H 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
H Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such class shall be Two Million Three Hundred Thousand
(2,300,000).
2. DEFINITIONS.
For purposes of the Class H 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 Second Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of July 29, 1994, as
amended.
"Call Date" shall have the meaning set forth in paragraph (a) of
Section 5 of this Exhibit K.
"Class H 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 K. It is the intention of the General Partner that
each Class H Partnership Preferred Unit shall be substantially the
economic equivalent of one share of Class H Preferred Stock.
"Class H Preferred Stock" means the Class H 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 the Class H Preferred Stock.
"Junior Partnership Units" shall have the meaning set forth in
paragraph (c) of Section 7 of this Exhibit K.
"Parity Partnership Units" shall have the meaning set forth in
paragraph (b) of Section 7 of this Exhibit K.
"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 K.
3. DISTRIBUTIONS.
On every Distribution Payment Date, the holders of Class H
Partnership Preferred Units shall be entitled to receive distributions payable
in cash in an amount per Class H Partnership Preferred Unit equal to the per
share dividend payable on the Class H Preferred Stock on such Distribution
Payment Date. Each such distribution shall be payable to the holders of record
of the Class H 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 H Preferred Stock on such Distribution
Payment Date. Holders of Class H Partnership Preferred Units shall not be
entitled to any distributions on the Class H 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 H Partnership Preferred Units shall be entitled to
receive Twenty Five Dollars ($25) per Class H Partnership Preferred Unit (the
"Liquidation Preference"), plus an amount per Class H Partnership Preferred
Unit equal to all dividends (whether or not declared or earned) accumulated,
accrued and unpaid on one share of Class H 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 H Partnership Preferred Units
have been paid the Liquidation Preference in full, plus an amount equal to all
dividends (whether or not declared or earned)
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accumulated, accrued and unpaid on the Class H 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 H 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 H 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 H 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 H 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 H Partnership Preferred Units and any Parity Partnership
Units shall not be entitled to share therein.
5. REDEMPTION.
Class H 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 H Preferred
Stock, the General Partner may cause the Partnership to redeem an equal number
of Class H Partnership Preferred Units, at a redemption price per Class H
Partnership Preferred Unit payable in cash equal to 100% of the Liquidation
Preference per share of Class H Preferred Stock, plus an amount equal to all
accumulated, accrued and unpaid dividends on one share of Class H Preferred
Stock to the date fixed for redemption (the "Call Date"), in the manner set
forth herein; provided, however, that in the event of a redemption of Class H
Partnership Preferred Units, if the Call Date occurs after a dividend record
date for the Class H Preferred Stock and on or prior to the related
Distribution Payment Date, the distribution payable on such Distribution
Payment Date in respect of such Class H Partnership Preferred Units called for
redemption shall be payable on such Distribution Payment
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Date to the holders of record of such Class H Partnership Preferred Units on
the applicable dividend record date, and shall not be payable as part of the
redemption price for such Class H Partnership Preferred Units.
(b) If the Partnership shall redeem Class H 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 H 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 H Partnership 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 a Call Date
occurs after a dividend record date for the Class H 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 H Partnership
Preferred Units called for redemption shall be payable on such Distribution
Payment Date to the holders of record of such Class H Partnership Preferred
Units on the applicable dividend record date notwithstanding the prior
redemption of such Class H Partnership Preferred Units. No interest shall
accrue for the benefit of the holders of Class H Partnership Preferred Units to
be redeemed on any cash set aside by the Partnership.
If fewer than all the outstanding Class H Partnership Preferred Units
are to be redeemed, units to be redeemed shall be selected by the Partnership
from outstanding Class H 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 H 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 H Partnership Preferred
Units, as to the payment of distributions and as to distributions of assets
upon liquidation,
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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 H Partnership Preferred Units ("Senior
Partnership Units");
(b) on a parity with the Class H 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 H 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 or Class G Partnership Preferred Units or (ii) the
holders of such class or series of Partnership Units and the Class H
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 H 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 or Class I High Performance
Partnership Units or (ii) the holders of Class H Partnership Preferred 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 (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 H Partnership Preferred Units for any Fiscal
Year (and, if necessary, subsequent Fiscal Years) to the extent that the
holders of Class H Partnership Preferred Units receive a distribution on any
Class H 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 H Partnership Preferred Units are
redeemed pursuant to Section 5 hereof, for the Fiscal Year that includes such
redemption (and, if necessary,
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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 H Partnership Preferred Units to the extent
that the redemption amounts paid or payable with respect to the Class H
Partnership Preferred Units so redeemed exceeds the aggregate Capital
Contributions (net of liabilities assumed or taken subject to by the
Partnership) per Class H Partnership Preferred Unit allocable to the Class H
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 H Partnership Preferred Units to the
extent that the aggregate Capital Contributions (net of liabilities assumed or
taken subject to by the Partnership) per Class H Partnership Preferred Unit
allocable to the Class H Partnership Preferred Units so redeemed exceeds the
redemption amount paid or payable with respect to the Class H Partnership
Preferred Units so redeemed.
9. RESTRICTIONS ON OWNERSHIP.
The Class H 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 H 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 H Partnership Preferred
Units.
(b) The rights of the General Partner and the Special
Limited Partner, in their capacity as holders of the Class H 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 H
Partnership Preferred Units.
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