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EXHIBIT 10.5
FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
POST APARTMENT HOMES, L.P.
This Fourth Amendment to Second Amended and Restated Agreement of
Limited Partnership of Post Apartment Homes, L.P. (this "Amendment") is entered
into as of December ___, 1998, by and among Post GP Holdings, Inc. (the "General
Partner") and the Limited Partners of Post Apartment Homes, L.P. All capitalized
terms used herein shall have the meanings given to them in the Second Amended
and Restated Agreement of Limited Partnership of Post Apartment Homes, L.P.,
dated October 24, 1997 as amended to date (the "Partnership Agreement").
WHEREAS, it is in the best interests of the Partnership, the Partners,
the General Partner and PPI to modify the Redemption Right set forth in Section
8.6 of the Partnership Agreement to allow the Partnership, in its sole and
absolute discretion, to require PPI to contribute the Redemption Amount to the
General Partner and the General Partner, in turn, to contribute the Redemption
Amount to the Partnership;
WHEREAS, this modification of the Redemption Right is not adverse to
any Limited Partner;
WHEREAS, the General Partner is authorized to amend the Partnership
Agreement for such purpose pursuant to Sections 14.1.B(1), (4) and (5) of the
Partnership Agreement;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Section 1. Redemption Rights.
The Partnership Agreement is hereby amended by adding the following
Section 8.6.F immediately following the existing Section 8.6.E:
F. Notwithstanding the other provisions of this Section
8.6, the Partnership, in its sole and absolute discretion, shall have
the right to require PPI to contribute to the General Partner the
Redemption Amount to be paid by the Partnership to redeeming Limited
Partners pursuant to Section 8.6.A hereof. Upon any such contribution
by PPI to the General Partner, the General Partner, in turn, shall be
required to contribute the Redemption Amount so contributed to it by
PPI to the Partnership and the Partnership shall use the Redemption
Amount so contributed to it by the General Partner to fulfill its
obligations pursuant to Section 8.6.A. The General Partner shall be
deemed to have made a Capital Contribution to the Partnership, the
Partnership shall be deemed simultaneously to have reimbursed the
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General Partner pursuant to Section 7.4.C and the General Partner in
turn shall be deemed to have reimbursed PPI, all in the amount of the
Redemption Amount.
Section 2. Definitions.
a. The definition of "Redemption Amount" in the Partnership
Agreement is hereby deleted and the following new definition of "Redemption
Amount" is inserted in its place and such new definition shall be for all
purposes, unless otherwise clearly indicated to the contrary, applied to the
term "Redemption Amount" as used in the Partnership Agreement and in this
Amendment:
"Redemption Amount" means either the Cash Amount or the REIT
Shares Amount, as determined by the Partnership in its sole and
absolute discretion. A Redeeming Partner shall have no right, without
the Partnership's consent, to receive the Redemption Amount in the form
of the REIT Shares Amount.
b. The definition of "Liquidation Preference Amount" in the
Partnership Agreement is hereby deleted and the following new definition thereof
is inserted in its place and such new definition shall be for all purposes,
unless otherwise indicated to the contrary, applied to the term "Redemption
Amount" as used in the Partnership Agreement.
"Liquidation Preference Amount" means, with respect to any
Preferred Partnership Unit, the amount payable with respect to such
Preferred Partnership Unit (as established by the instrument
designating such Preferred Partnership Units) upon the voluntary or
involuntary dissolution, liquidation or winding up of the Partnership,
or upon the earlier redemption of such Preferred Partnership Unit, as
the case may be, but excluding any accrued and unpaid quarterly
distributions in respect of such Preferred Partnership Unit.
Section 3. Exhibit C -- Special Allocation Rules.
Exhibit C to the Partnership Agreement is hereby deleted and the
attached Exhibit C is hereby substituted in its place.
Section 4. Miscellaneous.
Except as specifically set forth herein, all other terms and conditions
of the Partnership Agreement shall remain unmodified and in full force and
effect, the same being confirmed and republished hereby. This Amendment may be
executed in any number of counterparts all of which taken together shall
constitute one and the same instrument and any of the parties or signatories
hereto may execute this Amendment by signing any such counterpart.
[SIGNATURES COMMENCE ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the parties hereto have executed the Amendment
under seal as of the date first written above.
GENERAL PARTNER:
POST GP HOLDINGS, INC.,
a Georgia corporation
By: /s/
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Name:
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Title:
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Attest: /s/
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Name:
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Title:
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[CORPORATE SEAL]
LIMITED PARTNERS:
POST LP HOLDINGS, INC.,
a Georgia corporation,
as attorney-in-fact for the
Limited Partners
By: /s/
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Name:
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Title:
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Attest: /s/
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Name:
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Title:
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[CORPORATE SEAL]