EXHIBIT 10.2
TWENTY-NINTH AMENDMENT TO THE
THIRD AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This TWENTY-NINTH AMENDMENT TO THE THIRD AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P., dated as of March 11, 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 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 JJ," 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.
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
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
EXHIBIT JJ
PARTNERSHIP UNIT DESIGNATION OF THE
CLASS TEN 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
Ten Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such class shall be 7,934,920.
2. DEFINITIONS.
For purposes of the Class Ten 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.
"AIMCO" shall mean Apartment Investment and Management Company, a
Maryland corporation.
"Class Ten 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 JJ.
"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.
"Distribution Payment Date" shall mean December 31 of any year
beginning with December 31, 2002, and continuing until no Class Ten
Partnership Preferred Units remain outstanding.
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"Junior Partnership Units" shall have the meaning set forth in
paragraph (c) of Section 7 of this Exhibit JJ.
"Liquidation Preference" shall mean, with respect to each Class Ten
Partnership Preferred Unit, as of any date, Twenty-Five Dollars
($25.00), plus an amount equal to all distributions (whether or not
declared or earned) accumulated, accrued and unpaid on such Class Ten
Partnership Preferred Unit as of such date.
"Parity Partnership Units" shall have the meaning set forth in
paragraph (b) of Section 7 of this Exhibit JJ.
"Partnership" shall mean AIMCO Properties, L.P., a Delaware limited
partnership.
"Promissory Note" shall mean the Promissory Note, dated March 11, 2002,
in the original principal amount of $198,373,000, made by AIMCO in
favor of the Partnership.
"Senior Partnership Units" shall have the meaning set forth in
paragraph (a) of Section 7 of this Exhibit JJ.
3. DISTRIBUTIONS.
On every Distribution Payment Date, the holders of Class Ten
Partnership Preferred Units shall be entitled to receive distributions payable
in cash in an amount equal to $2 per Class Ten Partnership Preferred Unit. Each
such distribution shall be payable to the holders of record of the Class Ten
Partnership Preferred Units, as they appear on the records of the Partnership at
the close of business on the Distribution Payment Date. Distributions shall
accumulate from the date of original issuance of the Class Ten Partnership
Preferred Units.
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 Ten Partnership Preferred Units shall be entitled to receive the
Liquidation Preference for each Class Ten Partnership Preferred Unit as of the
date of final distribution to such holders; but such holders shall
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not be entitled to any further payment. Until the holders of the Class Ten
Partnership Preferred Units have been paid their aggregate Liquidation
Preference in full, 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 Ten 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 Ten 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 Ten 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, a consolidation or merger of the Partnership with
one or more partnerships, or 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
Ten 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 Ten
Partnership Preferred Units and any Parity Partnership Units shall not be
entitled to share therein.
5. CONVERSION.
If AIMCO uses all or any portion of the net proceeds from any sale of
its equity securities to pay or prepay all or any portion of the Promissory
Note, (a) a number of Class Ten Partnership Preferred Units equal to the portion
of such net proceeds used to pay or prepay the Note divided by the Liquidation
Preference shall be automatically converted into (i) if such equity securities
are shares of AIMCO's Class A Common Stock, a number of Partnership Common Units
equal to the number of shares sold by AIMCO, and (ii) in the case of any other
equity securities, an equal number of equity securities of the Partnership of a
class or type that are substantially the economic equivalent of the equity
securities sold by AIMCO and (b) if AIMCO contributes all or any portion of such
net proceeds to the Partnership, the Partnership Units which are issued pursuant
to Section 4.3(E) of the Agreement shall be of the same class or type as those
issued pursuant to Section 5(a)(ii) hereof. The General Partner shall take all
actions necessary to effect the creation and issuance of any equity securities
of the
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Partnership necessary to give effect to the foregoing sentence. The Partnership
will pay any and all documentary stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of Partnership Common Units or other
equity securities on conversion of Class Ten Partnership Preferred Units
pursuant hereto.
6. STATUS OF REACQUIRED UNITS.
All Class Ten 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 Ten Partnership Preferred Units, as
to the payment of distributions and as to distributions of assets upon
liquidation, dissolution or winding up, 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
Partnership 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 R Partnership Preferred Units, Class One
Partnership 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
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 Ten Partnership Preferred Units (the
Partnership Units referred to in clauses (i) and (ii) of this paragraph being
hereinafter referred to, collectively, as "Senior Partnership Units");
(b) on a parity with the Class Ten 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 Ten Partnership
Preferred Units if (i) such class or series of Partnership Units shall be
Partnership Common Units, Class I High Performance
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Partnership Units, Class II High Performance Partnership Units, Class III High
Performance Partnership Units, Class IV High Performance Partnership Units,
Class Five Partnership Preferred Units, or Class Eight Partnership Preferred
Units, or (ii) the holders of such class or series of Partnership Units and the
Class Ten 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 Ten Partnership Preferred Units, as to the
payment of distributions and as to the distribution of assets upon liquidation,
dissolution or winding up, if the holders of Class Ten 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 this paragraph being hereinafter referred to,
collectively, as "Junior Partnership Units").
8. SPECIAL ALLOCATIONS.
Gross income and, if necessary, gain shall be allocated to the holders
of Class Ten Partnership Preferred Units for any Fiscal Year (and, if necessary,
subsequent Fiscal Years) to the extent that the holders of Class Ten Partnership
Preferred Units receive a distribution on any Class Ten Partnership Preferred
Units (other than an amount included in any redemption pursuant to Section 5
hereof) with respect to such Fiscal Year.
9. RESTRICTIONS ON OWNERSHIP.
The Class Ten 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 Ten 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
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conversion or any other event having an effect on the ownership of, Class Ten
Partnership Preferred Units.
(b) The rights of the General Partner and the Special Limited
Partner, in their capacity as holders of the Class Ten 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 Ten Partnership Preferred Units.
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