EXHIBIT 10.3
THIRTIETH AMENDMENT TO THE THIRD
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This THIRTIETH AMENDMENT TO THE THIRD AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P., dated as of April 1, 2002 (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 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 Article 6 of the Agreement allocations of Net
Income and Net Loss of the Partnership are intended to comply with certain
requirements, including the requirements of Regulations Section 1.704-1(b) and
1.704-2;
WHEREAS, the Partnership has previously issued Class II High
Performance Partnership Units, Class III High Performance Partnership Units and
Class IV High Performance Partnership Units (collectively, "High Performance
Units");
WHEREAS, to the extent that the Outperformance Return for any of the
High Performance Units is 0%, it is the intention that all of the economic
rights of such High Performance Units, including rights to liquidating
distributions, be equal to 1/100 of a Partnership Common Unit for each High
Performance Unit originally issued; and
WHEREAS, the General Partner wishes to clarify that the High
Performance Units be adjusted in a manner which reflects the economic
consequences that should occur upon a liquidation of the Partnership.
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. Section 5 of the Partnership Unit Designation of the Class II High
Performance Partnership Units of AIMCO Properties, L.P. (Exhibit GG to the
Agreement) is hereby amended to read in its entirety as set forth below:
5. ALLOCATIONS.
(a) Prior to the Class II High Performance Valuation Date, Net Income
and Net Loss shall be allocated to the Holders of Class II High Performance
Partnership Units as if each such Holder was the Holder of 1/100 of a
Partnership Common Unit.
(b) On and after the Class II High Performance Valuation Date, Net
Income and Net Loss shall be allocated to each of the Holders of Class II High
Performance Partnership Units as if each such Holder was the Holder of an equal
number of Partnership Common Units originally issued on the Class II High
Performance Valuation Date; provided, however, that if the Outperformance Return
is 0% on the Class II High Performance Valuation Date, then as of the last day
of the Measurement Period, each of the Holders of Class II High Performance
Partnership Units shall be specially allocated Net Loss or deduction in an
amount equal to (i) the excess of (x) the aggregate Class II High Performance
Partnership Unit capital contributions over (y) the fair market value of the
Class II High Performance Partnership Units as of such date, after applying the
adjustments required by Section 3 of this Partnership Unit Designation, divided
by (ii) the number of Class II High Performance Partnership Units held by such
Holder.
(c) In the event that the Partnership disposes of all or substantially
all of its assets in a transaction that will lead to a liquidation of the
Partnership pursuant to Article XIII of the Agreement, then, notwithstanding
Section 6.3.C of the Agreement, each Holder of Class II High Performance
Partnership Units shall be specifically allocated items of Partnership income
and gain in an amount sufficient to cause the Capital Account of such Holder to
be equal to that of a Holder of an equal number of Partnership Common Units.
2. Section 5 of the Partnership Unit Designation of the Class III High
Performance Partnership Units of AIMCO Properties, L.P. (Exhibit HH to the
Agreement) is hereby amended to read in its entirety as set forth below:
5. ALLOCATIONS.
(a) Prior to the Class III High Performance Valuation Date,
Net Income and Net Loss shall be allocated to the Holders of Class III
High Performance Partnership Units as if each such Holder was the
Holder of 1/100 of a Partnership Common Unit.
2
(b) On and after the Class III High Performance Valuation
Date, Net Income and Net Loss shall be allocated to each of the Holders
of Class III High Performance Partnership Units as if each such Holder
was the Holder of an equal number of Partnership Common Units
originally issued on the Class III High Performance Valuation Date;
provided, however, that if the Outperformance Return is 0% on the Class
III High Performance Valuation Date, then as of the last day of the
Measurement Period, each of the Holders of Class III High Performance
Partnership Units shall be specially allocated Net Loss or deduction in
an amount equal to (i) the excess of (x) the aggregate Class III High
Performance Partnership Unit capital contributions over (y) the fair
market value of the Class III High Performance Partnership Units as of
such date, after applying the adjustments required by Section 3 of this
Partnership Unit Designation, divided by (ii) the number of Class III
High Performance Partnership Units held by such Holder.
(c) In the event that the Partnership disposes of all or
substantially all of its assets in a transaction that will lead to a
liquidation of the Partnership pursuant to Article XIII of the
Agreement, then, notwithstanding Section 6.3.C of the Agreement, each
Holder of Class III High Performance Partnership Units shall be
specifically allocated items of Partnership income and gain in an
amount sufficient to cause the Capital Account of such Holder to be
equal to that of a Holder of an equal number of Partnership Common
Units.
3. Section 5 of the Partnership Unit Designation of the Class IV High
Performance Partnership Units of AIMCO Properties, L.P. (Exhibit II to the
Agreement) is hereby amended to read in its entirety as set forth below:
5. ALLOCATIONS.
(a) Prior to the Class IV High Performance Valuation Date, Net
Income and Net Loss shall be allocated to the Holders of Class IV High
Performance Partnership Units as if each such Holder was the Holder of
1/100 of a Partnership Common Unit.
(b) On and after the Class IV High Performance Valuation Date,
Net Income and Net Loss shall be allocated to each of the Holders of
Class IV High Performance Partnership Units as if each such Holder was
the Holder of an equal number of Partnership Common Units originally
issued on the Class IV High Performance Valuation Date; provided,
however, that if the Outperformance Return is 0% on the Class
3
IV High Performance Valuation Date, then as of the last day of the
Measurement Period, each of the Holders of Class IV High Performance
Partnership Units shall be specially allocated Net Loss or deduction in
an amount equal to (i) the excess of (x) the aggregate Class IV High
Performance Partnership Unit capital contributions over (y) the fair
market value of the Class IV High Performance Partnership Units as of
such date, after applying the adjustments required by Section 3 of this
Partnership Unit Designation, divided by (ii) the number of Class IV
High Performance Partnership Units held by such Holder.
(c) In the event that the Partnership disposes of all or
substantially all of its assets in a transaction that will lead to a
liquidation of the Partnership pursuant to Article XIII of the
Agreement, then, notwithstanding Section 6.3.C of the Agreement, each
Holder of Class IV High Performance Partnership Units shall be
specifically allocated items of Partnership income and gain in an
amount sufficient to cause the Capital Account of such Holder to be
equal to that of a Holder of an equal number of Partnership Common
Units.
4. 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.
4
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
GENERAL PARTNER:
AIMCO-GP, INC.
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
