Exhibit 4.1
FORTY-FOURTH AMENDMENT TO THE
THIRD AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This FORTY-FOURTH
AMENDMENT TO THE THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF AIMCO PROPERTIES, L.P., dated as of
December 21, 2004 (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, 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:
1. The
Agreement is hereby amended by the addition of a new exhibit,
entitled “ Exhibit VV ,” 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.
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GENERAL
PARTNER:
AIMCO-GP, INC.
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By:
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/s/ Paul J.
McAuliffe
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Name:
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Paul J.
McAuliffe
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Title:
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Executive Vice
President and Chief Financial Officer
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EXHIBIT VV
PARTNERSHIP UNIT DESIGNATION OF THE
CLASS Y 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 Y Partnership Preferred Units,” and the
number of Partnership Preferred Units constituting such class shall
be 3,450,000.
2. Definitions.
For
purposes of the Class Y 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:
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“ Agreement ”
shall mean the Third Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of July 29, 1994, as
amended.
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“ Class Y 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 VV . It is the intention of the General Partner
that each Class Y Partnership Preferred Unit shall be
substantially the economic equivalent of one share of Class Y
Preferred Stock.
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“ Class Y Preferred
Stock ” means the Class Y Cumulative Preferred
Stock, par value $0.01 per share, of the Previous General
Partner.
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“ 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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“ Distribution Payment
Date ” shall mean any date on which cash dividends are
paid on all outstanding shares of the Class Y Preferred
Stock.
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“ Junior Partnership
Units ” shall have the meaning set forth in paragraph
(c) of Section 7 of this Exhibit VV
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“ Parity Partnership
Units ” shall have the meaning set forth in paragraph
(b) of Section 7 of this Exhibit VV
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“ Partnership ”
shall mean AIMCO Properties, L.P., a Delaware limited
partnership.
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VV-1
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“ Senior Partnership
Units ” shall have the meaning set forth in paragraph
(a) of Section 7 of this Exhibit VV
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3. Distributions.
On
every Distribution Payment Date, the holders of Class Y
Partnership Preferred Units shall be entitled to receive
distributions payable in cash in an amount per Class Y
Partnership Preferred Unit equal to the per share dividend payable
on the Class Y Preferred Stock on such Distribution Payment
Date. Each such distribution shall be payable to the holders of
record of the Class Y 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 Y Preferred Stock on such Distribution Payment Date.
Holders of Class Y Partnership Preferred Units shall not be
entitled to any distributions on the Class Y 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, surplus or
otherwise) shall be made to or set apart for the holders of Junior
Partnership Units, the holders of Class Y Partnership
Preferred Units shall be entitled to receive Twenty-Five Dollars
($25.00) per Class Y Partnership Preferred Unit (the
“Liquidation Preference”), plus an amount per
Class Y Partnership Preferred Unit equal to all dividends
(whether or not declared or earned) accumulated, accrued and unpaid
on one share of Class Y 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 Y Partnership Preferred Units have been paid the
Liquidation Preference in full, plus an amount equal to all
dividends (whether or not declared or earned) accumulated, accrued
and unpaid on the Class Y Preferred Stock to the date of final
distribution to such holders, no payment shall 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 Y 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 Y Partnership Preferred Units and any such
Parity Partnership Units ratably in the same proportion as the
respective amounts that would be
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