FIRST AMENDMENT TO THE SECOND
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P., dated as of August 4, 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 August 4, 1997, the Previous General Partner issued 750,000
shares of its Class B Cumulative Convertible Preferred Stock, par value $.01 per
share (the "Class B 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 750,000 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 B
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 G," 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.
EXHIBIT G
PARTNERSHIP UNIT DESIGNATION OF THE
CLASS B PARTNERSHIP PREFERRED UNITS
OF AIMCO PROPERTIES, L.P.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first
written above.
GENERAL PARTNER:
AIMCO-GP, INC.
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
EXHIBIT G
PARTNERSHIP UNIT DESIGNATION OF THE
CLASS B 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 B
Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such class shall be Seven Hundred Fifty Thousand (750,000).
2. DEFINITIONS.
For purposes of the Class B 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 B 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 G.
It is the intention of the General Partner that each Class B Partnership
Preferred Unit shall be substantially the economic equivalent of one share
of Class B Preferred Stock.
"CLASS B PREFERRED STOCK" means the Class B Cumulative Convertible
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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"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 B Preferred Stock.
"JUNIOR PARTNERSHIP UNITS" shall have the meaning set forth in paragraph
(c) of Section 8 of this Article.
"PARITY PARTNERSHIP UNITS" shall have the meaning set forth in paragraph
(b) of Section 8 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 8 of this Article.
3. DISTRIBUTIONS.
On every Distribution Payment Date, the holders of Class B Partnership
Preferred Units shall be entitled to receive distributions payable in cash in an
amount per Class B Partnership Preferred Unit equal to the per share dividend
payable on the Class B Preferred Stock on such Distribution Payment Date. Each
such distribution shall be payable to the holders of record of the Class B
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 B Preferred Stock on such Distribution Payment Date. Holders of
Class B Partnership Preferred Units shall not be entitled to any distributions
on the Class B 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 or surplus) shall be made to or
set apart for the holders of Junior Partnership Units, the holders of Class B
Partnership Preferred Units shall be entitled to receive One Hundred Dollars
($100) per Class B
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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 B 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 B 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 B 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 B 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 B 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 B 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 B 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 B Partnership Preferred Units and any Parity Partnership Units
shall not be entitled to share therein.
5. REDEMPTION.
Class B 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 B Preferred Stock, the General
Partner shall cause the Partnership to redeem an equal number of Class B
Partnership 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
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unpaid dividends on each share of Class B Preferred Stock to the date fixed for
redemption (the "Call Date"), in the manner set forth herein.
(b) If the Partnership shall redeem Class B 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 B
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 B 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 B 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 B Partnership Preferred Units to
be redeemed on any cash set aside by the Partnership.
If fewer than all the outstanding Class B Partnership Preferred Units are
to be redeemed, units to be redeemed shall be selected by the Partnership from
outstanding Class B 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 B Partnership Preferred Units which shall have been issued and
reacquired in any manner by the Partnership (including Class B Partnership
Preferred Units which have been surrendered for conversion into Partnership
Common Units) shall be deemed cancelled.
7. CONVERSION.
Class B Partnership Preferred Units shall be convertible by the holders
thereof as follows:
(a) Upon any conversion of shares of Class B Preferred Stock into
shares of Common Stock, the General Partner shall cause a number of Class B
Partnership Preferred Units equal to the number of such converted shares of
Class
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B Preferred Stock to be converted by the holders thereof into Partnership Common
Units. The conversion ratio in effect from time to time for the conversion of
Class B Partnership Preferred Units into Partnership Common Units pursuant to
this Section 7 shall at all times be equal to, and shall be automatically
adjusted as necessary to reflect, the conversion ratio in effect from time to
time for the conversion of Class B Preferred Stock into Common Stock.
(b) Holders of Class B Partnership Preferred Units at the close of
business on a distribution payment record date shall be entitled to receive the
distribution payable on such units on the corresponding Distribution Payment
Date notwithstanding the conversion thereof following such distribution payment
record date and prior to such Distribution Payment Date. Except as provided
above, the Partnership shall make no payment or allowance for unpaid
distributions on converted units or for distributions on the Partnership Common
Units issued upon such conversion. Each conversion of Class B Partnership
Preferred Units into Partnership Common Units shall be deemed to have been
effected at the same time and date that the corresponding conversion of Class B
Preferred Stock into Common Stock is deemed to have been effected.
(c) No fractional Partnership Common Units shall be issued upon
conversion of Class B Partnership Preferred Units. Instead of any fractional
Partnership Common Units that would otherwise be deliverable upon the conversion
of Class B Partnership Preferred Units, the Partnership shall pay to the holder
of such converted units an amount in cash equal to the cash payable to a holder
of an equivalent number of converted shares of Class B Preferred Stock in lieu
of fractional shares of Common Stock.
(d) The Partnership will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of (i) the issue or delivery of
Partnership Common Units or other securities or property on conversion or
redemption of Class B Partnership Preferred Units pursuant hereto, and (ii) the
issue or delivery of Common Stock or other securities or property on conversion
or redemption of Class B Preferred Stock pursuant to the terms hereof.
8. RANKING.
Any class or series of Partnership Units of the Partnership shall be deemed
to rank:
(a) prior or senior to the Class B 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 or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in preference or
priority to the holders of Class B Partnership Preferred Units ("Senior
Partnership Units");
(b) on a parity with the Class B 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 B Partnership Preferred Units, if
the holders of such class or series of Partnership Units and the Class B
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 B 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 B 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").
9. SPECIAL ALLOCATIONS.
(a) Gross income and, if necessary, gain shall be allocated to the
holders of Class B Partnership Preferred Units for any Fiscal Year (and, if
necessary, subsequent Fiscal Years) to the extent that the holders of Class B
Partnership Preferred Units receive a distribution on any Class B 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 B 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 B Partnership Preferred Units to the
extent that the redemption amounts paid or payable with respect to the Class B
Partnership Preferred Units so redeemed exceeds the aggregate Capital
Contributions (net of liabilities assumed
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or taken subject to by the Partnership) per Class B Partnership Preferred Unit
allocable to the Class B 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 B
Partnership Preferred Units to the extent that the aggregate Capital
Contributions (net of liabilities assumed or taken subject to by the
Partnership) per Class B Partnership Preferred Unit allocable to the Class B
Partnership Preferred Units so redeemed exceeds the redemption amount paid or
payable with respect to the Class B Partnership Preferred Units so redeemed.
10. RESTRICTIONS ON OWNERSHIP.
The Class B Partnership Preferred Units shall be owned and held solely by
the General Partner or the Special Limited Partner.
11. GENERAL.
(a) The ownership of Class B 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 B Partnership Preferred Units.
(b) The rights of the General Partner and the Special Limited
Partner, in their capacity as holders of the Class B 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 B Partnership Preferred Units.
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