SECOND AMENDMENT TO THE SECOND
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P., dated as of December 22, 1997
(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 December 23, 1997, the Previous General Partner issued
2,400,000 shares of its Class C Cumulative Convertible Preferred Stock, par
value $.01 per share (the "Class C 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 2,400,000 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 C 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 H," 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/ PETER KOMPANIEZ
--------------------------
Name: Peter Kompaniez
Title: Vice President
EXHIBIT H
PARTNERSHIP UNIT DESIGNATION OF THE
CLASS C 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 C
Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such class shall be Two Million Seven Hundred Sixty Thousand
(2,760,000).
2. DEFINITIONS.
For purposes of the Class C 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 C 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 H. It is the intention of the General Partner that each Class C
Partnership Preferred Unit shall be substantially the economic equivalent
of one share of Class C Preferred Stock.
"CLASS C PREFERRED STOCK" means the Class C 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
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regulations or other administrative pronouncements as in effect from time
to time.
"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 C 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 C
Partnership Preferred Units shall be entitled to receive distributions
payable in cash in an amount per Class C Partnership Preferred Unit equal to
the per share dividend payable on the Class C Preferred Stock on such
Distribution Payment Date. Each such distribution shall be payable to the
holders of record of the Class C 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 C Preferred Stock on such
Distribution Payment Date. Holders of Class C Partnership Preferred Units
shall not be entitled to any distributions on the Class C 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
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the Partnership (whether capital or surplus) shall be made to or set apart
for the holders of Junior Partnership Units, the holders of Class C
Partnership Preferred Units shall be entitled to receive Twenty Five Dollars
($25) per Class C Partnership Preferred Unit (the "Liquidation Preference"),
plus an amount equal to all dividends (whether or not earned) accumulated,
accrued and unpaid on each share of Class C 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 C 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 C 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 C 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 C 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 C 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 C 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 C Partnership Preferred Units and any Parity Partnership
Units shall not be entitled to share therein.
5. REDEMPTION.
Class C 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 C Preferred Stock, the
General Partner may cause the Partnership to redeem an equal number of Class
C Partnership
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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 C Preferred Stock to the date fixed
for redemption (the "Call Date"), in the manner set forth herein.
(b) If the Partnership shall redeem Class C 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 C 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 C 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 C 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 C Partnership Preferred Units to be redeemed on any cash
set aside by the Partnership.
If fewer than all the outstanding Class C Partnership Preferred Units
are to be redeemed, units to be redeemed shall be selected by the Partnership
from outstanding Class C 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 C 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 C 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
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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 C Partnership Preferred Units ("Senior Partnership
Units");
(b) on a parity with the Class C 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 C
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 C 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 C 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 C 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 C Partnership Preferred Units for any Fiscal Year (and, if
necessary, subsequent Fiscal Years) to the extent that the holders of Class C
Partnership Preferred Units receive a distribution on any Class C 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 C 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 C
Partnership Preferred Units to the extent that the redemption amounts paid or
payable with respect to the Class C Partnership Preferred Units so redeemed
exceeds the aggregate Capital Contributions (net of liabilities assumed or
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taken subject to by the Partnership) per Class C Partnership Preferred Unit
allocable to the Class C 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 C
Partnership Preferred Units to the extent that the aggregate Capital
Contributions (net of liabilities assumed or taken subject to by the
Partnership) per Class C Partnership Preferred Unit allocable to the Class C
Partnership Preferred Units so redeemed exceeds the redemption amount paid or
payable with respect to the Class C Partnership Preferred Units so redeemed.
9. RESTRICTIONS ON OWNERSHIP.
The Class C 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 C 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 C Partnership
Preferred Units.
(b) The rights of the General Partner and the Special Limited
Partner, in their capacity as holders of the Class C 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 C
Partnership Preferred Units.
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