FOURTH AMENDMENT TO THE AGREEMENT OF LIMITED PARTNERSHIP OF ANGELES PARTNERS XII, LP
Exhibit 3.4
This FOURTH AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF ANGELES PARTNERS XII, LP,
dated as of November 24, 2010 (this “Amendment”), is made by Angeles Realty Corporation II,
a California corporation (the “Managing General Partner”). All capitalized terms used in
this Amendment but not otherwise defined herein shall have the respective meanings given to them in
the Partnership Agreement (as defined below).
WHEREAS, Angeles Partners XII, LP, a Delaware limited partnership (the “Partnership”),
is governed pursuant to the terms of that certain Certificate and Agreement of Limited Partnership
of Angeles Partners XII, dated as of May 24, 1983, as amended to date (the “Previous
Partnership Agreement” and, as amended by this Amendment, the “Partnership Agreement”);
WHEREAS, pursuant to Article 20 of the Partnership Agreement, the Managing General Partner is
authorized to amend the Partnership Agreement as it determines may be necessary or desirable to
establish, and convert existing limited partnership interests into, different designated series of
limited partnership interests that have separate rights with respect to specified partnership
property, in accordance with Section 17-218 of the Delaware Revised Uniform Limited Partnership
Act;
WHEREAS, the Managing General Partner has determined that the Partnership’s existing
partnership interests should be converted into two separate series of partnership interests that
have separate rights with respect to (i) the Partnership’s membership interest in Twin Lake Towers,
LLC, which owns the Twin Lake Towers Apartments, and (ii) the Partnership’s interest in all other
limited partnerships and limited liability companies.
NOW, THEREFORE, in consideration of these premises and of the mutual provisions, conditions
and covenants herein contained, the parties hereto do hereby agree as follows:
| 1. | Amendments to the Partnership Agreement. The Previous Partnership Agreement is hereby amended by the addition of a new Article 21, which will read in its entirety as follows: |
“ARTICLE 21 DESIGNATION OF SERIES OF PARTNERSHIP INTERESTS
| 21.1 | Designation of Series; Conversion of Existing Interests. |
(a) There is hereby established two series of interests in the Partnership,
with each series comprised of both the General Partners’ interest in the Partnership
and the Limited Partners’ interest in the Partnership. The General Partners’
interests are hereby designated as “Series A GP Interests” and “Series B GP
Interests.” The Limited Partners’ interests are hereby designated as “Series A
Units” and “Series B Units.” The Series A GP Interests and the Series A Units are
referred to herein, collectively, as the “Series A Interests,” and the Series B GP
Interests and the Series B Units are referred to herein, collectively, as the
“Series B Interests.”
(b) Effective as of the close of business on November 24, 2010 (the
“Establishment Date”), without any further action by the Managing General
Partner, the Non-Managing General Partner or any Limited Partner, (i) each
outstanding interest of the General Partners in the Partnership shall automatically
be converted into a Series A GP Interest and a Series B GP Interest, and (ii) each
then outstanding Unit of limited partnership interest in the Partnership shall
automatically be converted into one Series A Unit and one Series B Unit.
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(c) Each series of interests shall entitle the holders thereof to the
respective rights set forth in this Article 21. The relative rights of the General
Partners, on one hand, and the Limited Partners, on the other, prior to the
Establishment Date shall be maintained after the Establishment Date, but considered
on a series by series basis.
21.2 Series A Interests. From and after the Establishment Date, the
following assets shall be allocated solely to the Series A Interests for all
purposes, and shall be so recorded upon the books of account of the Partnership: (i)
all of the Partnership’s interests in any entity in which the Partnership owns an
interest, other than the Series B Subsidiary (as defined below), (ii) all
consideration received by the Partnership from the issuance or sale of any Series A
Interest, or from any additional capital contributions relating to the Series A
Interests, and all assets in which such consideration is invested, and (iii) all
interest, dividends, distributions, income, earnings, profits, gains and proceeds
from any assets described in the foregoing clauses (i) and (ii), including any
proceeds derived from the refinancing, sale or other disposition of such assets, and
any funds or payments derived from any reinvestment of such proceeds. No Person,
other than a Person who holds a Series A Interest, shall have any claim on or any
right to any assets allocated solely to the Series A Interests.
21.3 Series B Interests. From and after the Establishment Date, the
following assets shall be allocated solely to the Series B Interests for all
purposes, and shall be so recorded upon the books of account of the Partnership: (i)
all of the Partnership’s membership interest in Twin Lake Towers, LLC, a Delaware
limited liability company (the “Series B Subsidiary”), (ii) all
consideration received by the Partnership from the issuance or sale of any Series B
Interest, or from any additional capital contributions relating to the Series B
Interests, and all assets in which such consideration is invested, and (iii) all
interest, dividends, distributions, income, earnings, profits, gains and proceeds
from any assets described in the foregoing clauses (i) and (ii), including any
proceeds derived from the refinancing, sale or other disposition of such assets, and
any funds or payments derived from any reinvestment of such proceeds. No Person,
other than a Person who holds a Series B Interest, shall have any claim on or any
right to any assets allocated solely to the Series B Interests.
21.4 Allocation of Certain Assets and Income. If there are any assets,
income, earnings, profits, proceeds, funds or payments that are not readily
identifiable as belonging to any particular series of interests, the Managing
General Partner shall
allocate them among any one or more of the series in such manner and on such basis
as the Managing General Partner, in its sole discretion, deems fair and equitable,
which determination shall be conclusive and binding on the Limited Partners of all
series for all purposes.
21.5 Liabilities and Expenses of Each Series. The debts, liabilities and
obligations incurred, contracted for or otherwise existing with respect to each
series of interests shall be enforceable only against the assets allocated to such
series, and not against the Partnership generally or the assets of any other series
of interests. The interests of each series shall be charged with all expenses,
costs, charges and reserves attributable to such series, and shall not be charged
with any expenses, costs, charges or reserves attributable to any other series or
the assets of such other series. The Managing General Partner’s determination of
which debts, liabilities and obligations, and which expenses, costs, charges and
reserves, are attributable to each series of interests shall be conclusive and
binding on the Limited Partners of all series for all purposes. Any Person
extending credit to, contracting with or otherwise having a claim against any series
of interests may look only to the assets of that series to satisfy any such
obligation or claim, and not against the assets of the Partnership generally or the
assets of any other series. Any general liabilities, expenses, costs, charges or
reserves of the Partnership that are not readily identifiable as belonging to any
particular series of interests shall be allocated and charged by the Partnership to
and among one or more of the series in such manner and on such basis as the Managing
General Partner, in its sole discretion, deems fair and equitable, which allocation
shall be conclusive and binding on the Limited Partners of all series for all
purposes.
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21.6 Distributions to Partners of Each Series. From and after the
Establishment Date, all distributions to Partners (including distributions comprised
of distributions of Net Cash From Operations less distributions constituting the
Management Fee payable therefrom and distributions upon termination and dissolution
of the Partnership) shall be determined on a series by series basis in accordance
with the criteria set forth in Sections 21.2 and 21.3.
21.7 Capital Accounts for Each Series. On the Establishment Date, for each
series of interests, a separate capital account shall be established on the books of
the Partnership for each Partner who holds such series, which shall initially
consist of that portion of such Partner’s existing capital account that relates to
the assets of such series. Thereafter, the capital account of each Partner who
holds any series of interest shall be adjusted in the manner set forth in the
Agreement, but on a series by series basis, with respect to (i) capital
contributions relating to such series, (ii) that portion of the Partnership’s Net
Profits and Net Losses allocated to such series, and (iii) distributions paid in
respect of such series.
21.8 Separate Books and Records. Separate and distinct books and records
shall be maintained for each series of interests, and the assets and liabilities
associated with a particular series shall be held and accounted for separately from
the other assets and liabilities of the Partnership and other series. The
Partnership shall prepare, and provide to Limited Partners (to the extent not included in the
Partnership’s filings with the Securities and Exchange Commission), quarterly
financial reports (which need not be audited) for each series.
21.9 Transfers of Series Interests. Each series of interests shall be
transferable separate and apart from each other series. Notwithstanding Section 9.1
of the Agreement, a minimum of five (5) Units of any particular series may be
transferred, except for XXX or Xxxxx plans, and except for transfers by gift or
inheritance, intrafamily transfers, family dissolutions and transfer to affiliates.
21.10 Voting & Approval Rights. If any term or provision of the Agreement
requires the vote, consent or approval of Limited Partners holding a majority of the
Units, such term or provision shall be deemed to require the vote, consent or
approval of Limited Partners holding a majority of outstanding Units of each series,
except with respect to any matter or action relating to a particular series or its
assets, which shall require only the vote, consent or approval of Limited Partners
holding a majority of the outstanding Units of such series. Notwithstanding Article
19 of the Agreement, meetings of the Partnership to vote upon any matters on which
the Limited Partners are authorized to take action under this Agreement may be
called at any time by the Managing General Partner or (i) in the case of any matter
that is subject to the vote, consent or approval of Limited Partners holding a
majority of outstanding Units of each series, by one or more Limited Partners
holding 10% or more of the then outstanding Units of each series, or (ii) in the
case of any matter that is subject to the vote, consent or approval only of Limited
Partners holding a majority of outstanding Units of a particular series, by one or
more Limited Partners holding 10% or more of the then outstanding Units of such
series, in either case, by delivering written notice, either in person or by
registered mail, of such call to the Managing General Partner.
21.11 Repurchase of Units. From and after the Establishment Date, a
repurchase of Units of any series may be effected pursuant to Article 9 of the
Agreement with the repurchase price calculated separately for each series of Units
in accordance with the criteria set forth in this Article 21.
21.12 Tax Treatment. For United States federal income tax purposes, each
series of interests shall represent a separate and distinct entity treated as a
partnership.
22.13 Termination of a Series. Any series of interests may be terminated
only upon (i) the termination and dissolution of the Partnership, (ii) the vote or
written consent of Limited Partners holding a majority of the outstanding Units of
such series, or (iii) the sale or other disposition of all or substantially all of
the assets of such series. Upon termination of a series, the Managing
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General Partner shall proceed to wind up the affairs of such series, and the Partnership
shall not carry on any business in respect of such series except for the purpose of
winding up its affairs.”
| 2. | Miscellaneous. |
| (a) | Effect of Amendment. In the event of any conflict or inconsistency between the terms of the Previous Partnership Agreement and the terms of this Amendment, the terms of this Amendment shall prevail, and any conflicting or inconsistent provisions shall be reconciled and construed to give effect to the terms and intent of this Amendment. | ||
| (b) | Ratification. Except as otherwise expressly modified hereby, the Partnership Agreement shall remain in full force and effect, and all of the terms and provisions of the Partnership Agreement, as herein modified, are hereby ratified and reaffirmed. | ||
| (c) | Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OF CONFLICTS OF LAW. |
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IN WITNESS WHEREOF, the Managing General Partner has executed this Amendment as of the
date first set forth above.
| ANGELES REALTY CORPORATION II, a California corporation |
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| By: | /s/ Xxxxx X. XxXxxxxxxx | |||
| Name: | Xxxxx X. XxXxxxxxxx | |||
| Title: | Senior Vice President and Assistant General Counsel |
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