Exhibit 10.1





Exhibit 10.1




SECOND AMENDMENT TO THE

FOURTH AMENDED AND RESTATED AGREEMENT OF

LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.




This SECOND AMENDMENT TO THE FOURTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
AIMCO PROPERTIES, L.P., dated as of July 30, 2009 (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 of the Fourth Amended and Restated Agreement of
Limited Partnership of AIMCO Properties, L.P., dated as of July 29, 1994 and restated as of
February 28, 2007, 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 10.4 of the Agreement, each Limited Partner authorizes the
Partnership to withhold from or pay on behalf of or with respect to such Limited Partner any amount
of federal, state, local or foreign taxes that the General Partner determines that the Partnership
is required to withhold or pay with respect to any amount distributable or allocable to such
Limited Partner pursuant to this Agreement;



WHEREAS, Section 10.4 also provides that any amount so paid on behalf of or with respect to a
Limited Partner shall constitute a loan by the Partnership to such Limited Partner, which loan
shall be repaid by such Limited Partner within fifteen (15) days after notice from the General
Partner, and each Limited Partner unconditionally and irrevocably grants to the Partnership a
security interest in such Limited Partner’s Partnership Interest to secure such Limited Partner’s
obligation to pay to the Partnership any amounts required to be paid pursuant to Section 10.4;



WHEREAS, notwithstanding Section 10.4, some Limited Partners have failed to repay the
Partnership such amounts;



WHEREAS, in order to protect the Partnership and the other Limited Partners, the General
Partner has determined that it is in the best interests of the Partnership and the Limited Partners
that Section 10.4 be modified to permit the Partnership to redeem the Partnership Interest of any
Limited Partner who fails to pay to the Partnership any amounts required to be paid pursuant to
Section 10.4;



WHEREAS, the General Partner has determined that it is in the best interests of the
Partnership and the Limited Partners to amend Section 10.4 to give the General Partner authority to
withhold, from any amounts otherwise distributable, allocable or payable to a Limited Partner, the
General Partner’s estimate of future taxes required to be paid by such Limited Partner; and



WHEREAS, the General Partner also has determined that it is in the best interests of the
Partnership and the Limited Partnership to amend Section 2 of the
Partnership Unit Designation of the Class One Partnership Preferred Units of the Partnership
(Exhibit H to the Agreement) to correct an existing clerical error in the definition of “Cash
Amount.”


 


 









 





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 10.4 of the Agreement is hereby amended and restated to read in its entirety as
follows:







“Section 10.4 Withholding for Taxes, Etc.




(a) Withholding. Each Limited Partner hereby authorizes the Partnership
to withhold from such Limited Partner any amount of federal, state, local or
foreign taxes that the General Partner determines, in its sole discretion, that
the Partnership is, or may in the future be, required to withhold or pay with
respect to any amount distributable, allocable or payable to such Limited Partner
pursuant to this Agreement, including, without limitation, any taxes required to
be withheld or paid by the Partnership pursuant to Code Section 1441, Code Section
1442, Code Section 1445 or Code Section 1446. Amounts withheld by the General
Partner may be estimated by the General Partner, in its sole discretion, based on
its expectations of future transactions involving the Partnership that may give
rise to taxes of such Limited Partner. The General Partner may withhold amounts
for taxes (including estimated or projected taxes) from cash or other
distributions otherwise payable to a Limited Partner, or from any REIT Shares or
Cash Amount otherwise payable to a Limited Partner in connection with a
Redemption.




(b) Certain Tax Payments. Each Limited Partner hereby authorizes the
Partnership to pay on behalf of or with respect to such Limited Partner any amount
of federal, state, local or foreign taxes that the General Partner determines, in
its sole discretion, that the Partnership is required to pay with respect to any
amount distributable, allocable or payable to such Limited Partner pursuant to
this Agreement, including, without limitation, any taxes required to be paid by
the Partnership pursuant to Code Section 1441, Code Section 1442, Code Section
1445 or Code Section 1446. Any amount paid on behalf of or with respect to a
Limited Partner shall constitute a loan by the Partnership to such Limited
Partner, which loan shall be repaid by such Limited Partner within fifteen (15)
days after notice from the General Partner that such payment must be made unless
(i) the Partnership withholds such payment from a distribution that would
otherwise be made to the Limited Partner or (ii) the General Partner determines,
in its sole and absolute discretion, that such payment may be satisfied out of the
Available Funds of the Partnership that would, but for such payment, be
distributed to the Limited Partner. Each

 


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Limited Partner hereby unconditionally and irrevocably grants to the Partnership a security
interest in such Limited Partner’s Partnership Interest to secure such Limited
Partner’s obligation to pay to the Partnership any amounts required to be paid
pursuant to this Section 10.4(b). In the event that a Limited Partner fails to
pay any amounts owed to the Partnership pursuant to this Section 10.4(b) within
fifteen (15) days after the notice from the General Partner specified above, then
the General Partner may, in its sole and absolute discretion, either (x) elect to
make the payment to the Partnership on behalf of such defaulting Limited Partner,
and in such event shall be deemed to have loaned such amount to such defaulting
Limited Partner and shall succeed to all rights and remedies of the Partnership as
against such defaulting Limited Partner (including, without limitation, the right
to receive distributions), or (y) cause the Partnership to redeem from such
Limited Partner a number of Partnership Common Units (or fraction thereof) equal
to the quotient obtained by dividing (i) the aggregate amount owed by such Limited
Partner to the Partnership pursuant to this Section 10.4(b), by (ii) the product
of (1) the Adjustment Factor in effect as of date of redemption specified by the
General Partner, and (2) the Value of a REIT Share (assuming for such purpose that
the Valuation Date is the date of redemption specified by the General Partner).
If the General Partner elects to cause the Partnership to redeem any Limited
Partner’s Partnership Common Units pursuant to clause (y) above, it shall promptly
so notify such Limited Partner in writing of the date of such redemption and the
number of Partnership Common Units so redeemed. Any amounts payable by a Limited
Partner under this Section 10.4(b) shall bear interest at the base rate on
corporate loans at large United States money center commercial banks, as published
from time to time in the Wall Street Journal, plus four (4) percentage
points (but not higher than the maximum lawful rate) from the date such amount is
due (i.e., fifteen (15) days after demand) until such amount is paid in
full. Each Limited Partner shall take such actions as the Partnership or the
General Partner shall request in order to perfect or enforce the security interest
created hereunder, or to assist the Partnership in effecting any redemption of
such Limited Partner’s Partnership Common Units as specified in clause (y) above.”




	2.	 	The definition of “Cash Amount” in Section 2 of the Partnership Unit Designation of the Class
One Partnership Preferred Units of the Partnership (Exhibit H to the Agreement) is hereby
amended by replacing “91.93” with “91.43.”







	3.	 	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.





 


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IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.



	 	 	 	 	 
	 	GENERAL PARTNER:




AIMCO-GP, INC.

 	 
	 	By:  	/s/ David Robertson
 	 
	 	 	Name:  	David Robertson 	 
	 	 	Title:  	President, Chief Investment Officer

and Chief Financial Officer 	 




 


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