EXHIBIT 4.1
FORTY-SIXTH AMENDMENT TO
THE
THIRD AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This FORTY-SIXTH AMENDMENT TO THE
THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
AIMCO PROPERTIES, L.P., dated as of February 28, 2005 (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, on March 11, 2002,
Casden Properties, Inc. merged with and into the Previous General
Partner (the “Casden Merger”);
WHEREAS, pursuant to the Casden
Merger agreement and related documents, upon completion of each of
certain properties and the satisfaction of other conditions, the
Previous General Partner has agreed to pay additional, deferred
consideration in respect of the Casden Merger, and to purchase the
general partner interest in the entities that own each such
property;
WHEREAS, in order to fund such
payments with respect to the particular property commonly known as
Park La Brea B (a.k.a. The Palazzo East at Park La Brea), the
Partnership has loaned $85,411,947.12 to the Previous General
Partner, which loan is evidenced by a promissory note, dated
February 28, 2005, in the original principal amount of
$85,411,947.12;
WHEREAS, the Previous General Partner
has contributed to the Partnership the assets acquired in
connection with the Casden Merger, including the general partner
interest described above and, in connection with such contribution,
the Partnership proposes to issue to the Special Limited Partner
3,416,478 Class Thirteen Partnership Preferred Units; 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 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:
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1. |
The Agreement is hereby amended by the addition of a new
exhibit, entitled “Exhibit XX,” in the form
attached hereto, which shall be attached to and made a part of the
Agreement. |
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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.
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GENERAL PARTNER:
AIMCO-GP, INC.
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By: |
/s/ Paul McAuliffe |
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Paul McAuliffe
Chief Financial Officer and Executive Vice President |
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EXHIBIT XX
PARTNERSHIP UNIT
DESIGNATION OF THE
CLASS THIRTEEN 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 Thirteen
Partnership Preferred Units,” and the number of Partnership
Preferred Units constituting such class shall be 3,416,478.
2.
Definitions.
For purposes of the
Class Thirteen 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 Thirteen 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 XX .
“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, 2005,
and continuing until no Class Thirteen Partnership Preferred
Units remain outstanding.
" Junior
Partnership Units ” shall have the meaning set forth in
paragraph (c) of Section 7 of this
Exhibit XX.
XX-1
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Liquidation Preference ” shall mean, with respect to
each Class Thirteen 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 Thirteen 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 XX
.
"
Partnership ” shall mean AIMCO Properties, L.P., a
Delaware limited partnership.
"
Promissory Note ” shall mean the Promissory Note,
dated February 28, 2005, in the original principal amount of
$85,411,947.12, made by AIMCO in favor of the Partnership (bearing
simple interest at 5.25%, payable on December 31 of each
year).
" Senior
Partnership Units ” shall have the meaning set forth in
paragraph (a) of Section 7 of this Exhibit XX
.
3.
Distributions.
On every Distribution Payment Date,
the holders of Class Thirteen Partnership Preferred Units
shall be entitled to receive distributions payable in cash in an
amount equal to $1.3125 per Class Thirteen Partnership Preferred
Unit. Each such distribution shall be payable to the holders of
record of the Class Thirteen 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 Thirteen Partnership Preferred Units.
4. Liquidation
Preference.
(a)&nb
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