Exhibit 10.4
THIRD AMENDMENT TO THE
AGREEMENT OF LIMITED PARTNERSHIP
OF ASSET INVESTORS OPERATING PARTNERSHIP,
L.P.
This THIRD AMENDMENT TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF ASSET INVESTORS OPERATING
PARTNERSHIP, L.P., dated as of February 23, 2005 (this
“Amendment”), is made by and among American Land Lease,
Inc., a Delaware corporation (the “General Partner”),
as the general partner of Asset Investors Operating Partnership,
L.P., a Delaware limited partnership (the
“Partnership”), and the limited partners of the
Partnership (the “Limited Partners”). Capitalized terms
used, but not otherwise defined herein, shall have the respective
meanings ascribed thereto in the Partnership’s Agreement of
Limited Partnership, dated as of April 30, 1997, as amended to
date (the “Agreement”).
WHEREAS, a Majority-In-Interest of
the Limited Partners have given their written consent to this
Amendment.
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 1.1 of the Agreement
is hereby amended by deleting therefrom the definition of
“Partnership Common Units.”
2. Section 1.1 of the Agreement
is hereby amended by inserting, immediately after the definition of
“Partnership Minimum Gain,” the following defined
terms:
“ Partnership Preferred
Unit ” shall mean an interest in the Partnership that has
distribution rights, or rights upon liquidation, winding up and
dissolution, that are senior or prior to the Partnership
Units.
“ Partnership Unit
Designation ” shall have the meaning specified in
Section 9.3 of this Agreement.”
3. Section 1.1 of the Agreement
is hereby amended by replacing the first sentence of the definition
of “Partnership Units” with the following
sentence:
“ Partnership Units
” shall mean interests in the Partnership which entitle a
Partner to the allocations (and each item thereof) specified in
Section 6.1, and the distributions from the Partnership
specified in Section 6.2, and rights of management, consent,
approval or participation, if any, as provided in this
Agreement.”
4. Section 2.3 of the Agreement
is hereby amended by deleting the last sentence thereof and
inserting, in lieu thereof, the following:
“Notwithstanding anything to
the contrary set forth in this Section 2.3 or elsewhere in
this Agreement, the Partnership may carry on any lawful business,
purpose or activity permitted under the Act, and shall possess and
may exercise all the powers and privileges granted by the Act, any
other law or this Agreement, together with any powers incidental
thereto.”
5. Section 4.1(b) of the
Agreement is hereby amended by deleting the first sentence thereof
and inserting, in lieu thereof, the following:
“At any time, and from time to
time, the General Partner may contribute to the capital of the
Partnership, in exchange for Partnership Preferred Units or
Partnership Units, additional Property or other assets (including
cash) which the General Partner in good faith determines are
desirable to further the purposes or business of the Partnership.
In the event that Partnership Preferred Units are issued by the
Partnership to the General Partner in accordance with this
Section 4.1(b), the terms, provisions and number of
Partnership Preferred Units so issued shall be determined by the
General Partner pursuant to Section 9.3 of this
Agreement.”
6. Section 4.6(b) of the
Agreement is hereby amended by deleting the last two sentences
thereof and inserting, in lieu thereof, the following:
“In addition, in the event the
General Partner advances Required Funds to the Partnership as
Contributed Funds pursuant to this paragraph (b), additional
Partnership Preferred Units or Partnership Units shall be issued to
the General Partner to reflect its contribution of the Contributed
Funds. The number and type of Partnership Preferred Units or
Partnership Units so issued shall be determined by the General
Partner.”
7. Section 6.1(d) of the
Agreement is hereby amended by inserting the words, “Subject
to the terms of any Partnership Unit Designation,” at the
beginning of Section 6.1(d), immediately prior to the words,
“[n]otwithstanding the foregoing provisions of this
Section 6.1, the following provisions shall
apply.…”
8. Section 6.2 of the Agreement
is hereby amended by inserting the words, “Subject to the
terms of any Partnership Unit Designation,” at the beginning
of Section 6.2, immediately prior to the words,
“[e]xcept with respect to a liquidation of the Partnership
following a dissolution pursuant to
Section 3.2.…”
9. Section 7.3 of the Agreement
is hereby amended by deleting clause (B) thereof and
inserting, in lieu thereof, the following:
“(B) the making of additional
Capital Contributions and the issuance of Partnership Units or
Partnership Preferred Units by reason thereof, all in accordance
with the terms of this Agreement,”
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10. Section 8.2 of the
Agreement is hereby amended by inserting the words, “Subject
to the terms of any Partnership Unit Designation,” at the
beginning of Section 8.2, immediately prior to the words,
“[i]n the event of the dissolution and liquidation of the
Partnership for any reason.…”
11. Section 9.3 of the
Agreement is hereby amended to read in its entirety as
follows:
“9.3 Issuance of Additional
Partnership Units or Partnership Preferred Units . At any time,
and from time to time, subject to the provisions of
Section 9.4, the General Partner may, upon its determination
that the issuance of additional Partnership Units or Partnership
Preferred Units is in the best interests of the Partnership, cause
the Partnership to issue Partnership Units or Partnership Preferred
Units to the General Partner or any then existing Limited Partner,
or to issue Partnership Units or Partnership Preferred Units to,
and admit as a limited partner in the Partnership, any other
Person, in each case, in exchange for the contribution by such
Person of Property or other assets (including cash) which the
General Partner determines is desirable to further the purposes and
business of the Partnership and has a value that justifies the
issuance of such Partnership Units or Partnership Preferred
Units.
In the event that Partnership Units
are issued by the Partnership pursuant to this Section 9.3,
the number of Partnership Units issued shall be determined by
(i) dividing the Gross Asset Value (net of liabilities secured
by such contributed asset that the Partnership assumes or takes
subject to) of the Property or other assets contributed as of the
Contribution Date by the Deemed Partnership Unit Value, computed in
the case of Current Per Share Market Price as of the Trading Day
immediately preceding the Contribution Date, or (ii) such
other manner as reasonably determined by the General Partner and as
set forth in the Contribution Agreement or plan or other applicable
documentation governing the arrangement between the Partnership and
the party to whom Partnership Units will be issued.
In the event that Partnership
Preferred Units are issued by the Partnership in accordance with
this Section 9.3, the terms, provisions and number of
Partnership Preferred Units so issued shall be determined by the
General Partner. Subject to Delaware law, any Partnership Preferred
Units may be issued in one or more classes, or one or more series
of any of such classes, with such designations, preferences and
relative, participating, optional or other special rights, powers
and duties as shall be determined by the General Partner, in its
sole and absolute discretion, without the approval of any Limited
Partner, and set forth in a written document thereafter attached to
and made an exhibit to this Agreement (each a “
Partnership Unit Designation ”). Without limiting the
generality of the foregoing, the General Partner shall have
authority to specify: (a) the allocations of Partnership
income, gain, loss, deduction and credit to each such class or
series of Partnership Preferred Units; (b) the right of each
such class or series of Partnership Preferred Units to share in
Partnership distributions; (c) the rights of each such class
or series of Partnership Preferred Units upon dissolution
and
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liquidation of the Partnership;
(d) the voting rights, if any, of each such class or series of
Partnership Preferred Units; and (e) the conversion,
redemption or exchange rights applicable to each such class or
series of Partnership Preferred Units.”
12. The Agreement is hereby amended
by the addition of a new exhibit, entitled “ Exhibit
PPA ,” in the form attached hereto, which shall be
attached to and made a part of the Agreement.
13. 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.
(the next page is the signature
page)
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IN WITNESS WHEREOF, this Amendment
has been executed as of the date first written a
