Exhibit 10.2
AMENDMENT TO THE
AGREEMENT OF LIMITED
PARTNERSHIP
OF
ASSET INVESTORS OPERATING
PARTNERSHIP, L.P.
Dated effective as of April 1, 2000
THIS AMENDMENT TO THE AGREEMENT OF LIMITED
PARTNERSHIP OF ASSET INVESTORS OPERATING PARTNERSHIP, L.P., dated
effective as of April 1, 2000, is made by and among ASSET INVESTORS
CORPORATION, a Delaware corporation, as general partner (the
“ General Partner ”) and the limited partners
(the “ Limited Partners ”) of Asset Investors
Operating Partnership, L.P., a Delaware limited partnership (the
“ Partnership ”).
WHEREAS, certain amendments (the “
Amendments ”) have been proposed to that certain
Agreement of Limited Partnership of Asset Investors Operating
Partnership, L.P., dated as of April 30, 1997 (the “
Partnership Agreement ”); and
WHEREAS, a majority-in-interest of the Limited
Partners have granted their written consent to the
Amendments.
NOW THEREFORE, Article XI of the Partnership
Agreement is hereby amended and restated to read as
follows:
“ARTICLE XI
Grant of Rights to the Limited
Partners
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11.1
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Grant of
Rights . Subject to
compliance with applicable securities laws, the General Partner
does hereby grant to each of the Limited Partners and each of the
Limited Partners does hereby accept the right, but not the
obligation (hereinafter such right sometimes referred to as the
“ Rights ”), to convert all or a portion of such
Limited Partner’s Partnership Units into Shares or cash, as
selected by the Partnership, at any time or from time to time, on
the terms and subject to the conditions and restrictions contained
in this Article XI. The Rights granted hereunder may be exercised
by a Limited Partner, on the terms and subject to the
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conditions and
restrictions contained in this Article XI, upon delivery to the
General Partner of a notice in the form of Exhibit C (an “
Exercise Notice ”), which notice shall specify the
Partnership Units to be converted by such Limited Partner. Once
delivered, the Exercise Notice shall be irrevocable, subject to
payment by the Partnership of the Purchase Price in respect of such
Partnership Units in accordance with the terms hereof;
provided that if such Limited Partner has registration
rights under a Registration Rights Agreement, such Limited Partner
may indicate in its Exercise Notice that such exercise shall be
conditioned on the effectiveness of a registration requested to be
made by such Limited Partner; provided further that
in the event such registration does not become effective, such
Exercise Notice shall be deemed to be canceled. In the event the
Partnership elects to cause such Units to be converted into cash,
the General Partner shall effect such conversion by causing the
Partnership to redeem the Partnership
Units subject to the Exercise Notice for cash.
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11.2
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Limitation on Exercise of Rights
. Rights may be exercised at any
time and from time to time; provided , however , that
in no event shall Rights be exercisable by a Limited Partner if
such exercise would cause the Partnership to cease to be a limited
partnership under the Act; and provided further ,
that in no event shall Rights be exercisable by a Limited Partner
with respect to any Partnership Unit that was issued by the
Partnership less than one year from the date of such exercise. In
addition, if an Exercise Notice is delivered to the General Partner
but, as a result of restrictions contained in the Charter of the
General Partner, the Rights cannot be exercised in full for Shares,
the Exercise Notice shall be deemed to be modified such that the
Rights shall be exercised only to the extent permitted under the
Charter of the General Partner.
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11.3
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Computation of Purchase Price: Form of
Payment . The
purchase price (“ Purchase Price ”) payable to
the Limited Partners shall be equal to the Deemed Partnership Unit
Value multiplied by the number of Offered Units with respect to
which the rights are being exercised computed as of the date on
which the Exercise Notice was delivered to the General Partner (the
“ Computation Date ”). The Purchase Price for
the Offered Units shall be payable, at the option of the
Partnership, by redeeming the Partnership Units for cash in the
amount of the Purchase Price, or by directing the General Partner
to issue, and the General Partner acting as a distinct legal entity
shall assume directly the obligation to issue, a number of Shares
equal to the number of Offered Units with respect to which the
Rights are being exercised (adjusted as appropriate to account for
stock splits, stock dividends or other similar transactions between
the Computation Date and the closing of the purchase and sale of
the Offered Units in the manner specified in Section
11.7(d)).
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11.4
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Closing . The closing of the acquisition of Offered
Units shall, unless otherwise mutually agreed, be held at the
principal offices of the General Partner, on the date agreed to by
the General Partner and the relevant Limited Partner, which date
shall be the later of (i) ten (10) days after the date of the
Exercise Notice (or, if the provisions of a Registration Rights
Agreement apply, ten (10) days after the date the registration
requested in accordance with the Registration Rights Agreement is
effected) and (ii) the date of the expiration or termination of the
waiting period applicable to the Limited Partner, if any, under the
Hart-Scott-Rodino Act.
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11.5
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Closing
Deliveries . At the
closing of the purchase and sale of Offered Units, payment of the
Purchase Price shall be accompanied by proper instruments of
transfer and assignment and by the delivery of (i) representations
and warranties of (A) the Limited Partner with respect to its due
authority to sell all of the right, title and interest in and to
such Offered Units to the General Partner and with respect to the
status of the Offered Units being sold, free and clear of all
Liens, and (B) the General Partner with respect to due authority to
acquire such Offered Units for Shares or to cause the Partnership
to redeem Partnership Units subject to an Exercise Notice for cash
and, in the case of payment by Shares, (ii) (A) an opinion of
counsel for the General Partner, reasonably satisfactory to the
Limited Partner, to the effect that such Shares have been duly
authorized, are validly issued, ful
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