Issuer: American Landlease

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N3VMThlHLWLdtGFpbMfedinlr6BuoWCieQYo9MVOHAgmBpxKZoACsEPqD1V9n4i1 rrlP7u2PwNhgmz6X/ll2wQ== 0001193125-04-207499.txt : 20041206 0001193125-04-207499.hdr.sgml : 20041206 20041203201645 ACCESSION NUMBER: 0001193125-04-207499 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20041206 DATE AS OF CHANGE: 20041203 GROUP MEMBERS: CONSIDINE FAMILY FOUNDATION GROUP MEMBERS: TERRY CONSIDINE 1998 APRIL TRUST GROUP MEMBERS: TIMOTHY M CONSIDINE GROUP MEMBERS: TITAHO LIMITED PARTNERSHIP, RLLLP GROUP MEMBERS: TITAHOTWO LIMITED PARTNERSHIP, RLLLP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN LAND LEASE INC CENTRAL INDEX KEY: 0000804138 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 841038736 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-37864 FILM NUMBER: 041185155 BUSINESS ADDRESS: STREET 1: 29399 U.S. HWY 19, NORTH STREET 2: SUITE 320 CITY: CLEARWATER STATE: FL ZIP: 33761 BUSINESS PHONE: 727-726-8868 MAIL ADDRESS: STREET 1: 29399 U.S. HWY 19, NORTH STREET 2: SUITE 320 CITY: CLEARWATER STATE: FL ZIP: 33761 FORMER COMPANY: FORMER CONFORMED NAME: ASSET INVESTORS CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: MDC ASSET INVESTORS INC DATE OF NAME CHANGE: 19890406 FORMER COMPANY: FORMER CONFORMED NAME: MDC MORTGAGE ASSET INVESTORS INC DATE OF NAME CHANGE: 19861204 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CONSIDINE TERRY CENTRAL INDEX KEY: 0001229384 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 4582 SOUTH ULSTER STREET PARKWAY STREET 2: SUITE 1100 CITY: DENVER STATE: CO ZIP: 80237 SC 13D 1 dsc13d.htm ISSUER: AMERICAN LANDLEASE Issuer: American Landlease


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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under The Securities Exchange Act of 1934

American Land Lease, Inc.

(Name of Issuer)

Common Stock

(Title of Class of Securities)

027118108

(CUSIP Number)

Diane Armstrong

The Considine Companies

4582 South Ulster Street, #405

Denver, CO 80237

720-482-0484

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

Copy to:

Michael V. Gisser, Esq.

Skadden, Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue

Los Angeles, California 90071

(213) 687-5000

April 21, 2001

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box: ¨

CUSIP No.: 027118108


1.	Name of Reporting Persons: S.S. or I.R.S. ID Numbers of above persons (entities only): Terry Considine
2.	Check the Appropriate Box if a Member of Group (a) ¨ (b) x¹
3.	SEC Use Only
4.	Source of Funds OO
5.	Check if Disclosure of Legal proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization: United States Citizen

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH:

7. Sole Voting Power:

555,993 ²

8. Shared Voting Power:

81,079 ³

9. Sole Dispositive Power:

555,993 ⁴

10. Shared Dispositive Power:

81,079 ⁵


11.	Aggregate Amount Beneficially Owned by Each Reporting Person: 637,072 ⁶
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented by Amount in Row (11): 8%
14.	Type of Reporting Person: IN

¹	The Reporting Person disclaims membership in or existence of a group for purposes of Section 13(d)(3) (“Section 13(d)(3)”) under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”).

Represents (i) 23,700 shares of common stock (the “Common Stock”) of American Land Lease, Inc. (the “Issuer”) held directly by Terry Considine, (ii) 262,331 shares of Common Stock exchangeable upon the conversion of an equal number of partnership units (the “OP Units”) of Asset Investors Operating Partnership, L.P., (the “Partnership”), for which the Issuer is the general partner, within 60 days of November 30, 2004, directly held by Terry Considine, and (iii) 269,962 shares (consisting of 242,197 shares of Common Stock and 27,765 shares of Common Stock subject to the exchange of OP Units convertible into Common Stock within 60 days of November 30, 2004) held by Titahotwo Limited Partnership, RLLLP (“Titahotwo”), in which Terry Considine serves as the sole general partner. Terry Considine disclaims beneficial ownership in the shares of Common Stock under (iii). In addition, Terry Considine disclaims beneficial ownership in the shares of Common Stock under (ii). Pursuant to the Agreement of Limited Partnership dated as of April 30, 1997, as amended, the OP Units are convertible by the limited partners for, at the option of the Partnership, either cash or common stock of the Issuer. The Partnership may elect to pay cash upon the conversion of the OP Units and as a result thereof, Terry Considine believes that he currently does not beneficially own the shares of Common Stock that may be exchanged upon conversion of the OP Units for purposes of Rule 13d-3 of the Exchange Act (“Rule 13d-3”); however, because the Partnership may elect to exchange shares of Common Stock for the OP Units, pursuant to Rule 13d-3, Terry Considine may be deemed to beneficially own shares of Common Stock that may be exchanged upon the conversion of the OP Units.

³	Represents 81,079 shares of Common Stock held by Considine Family Foundation (“CFF”), in which Terry Considine serves as a director and officer. Terry Considine disclaims beneficial ownership in the shares of Common Stock held by CFF.

⁴	See footnote 2 above.

⁵	See footnote 3 above.

⁶	See footnotes 2 and 3 above.

Page 2 of 20

CUSIP No.: 027118108


1.	Name of Reporting Persons: S.S. or I.R.S. ID Numbers of above persons (entities only): Titahotwo Limited Partnership, RLLLP (“Titahotwo”)
2.	Check the Appropriate Box if a Member of Group (a) ¨ (b) x⁷
3.	SEC Use Only
4.	Source of Funds OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization: Colorado

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH:

7. Sole Voting Power:

269,962 ⁸

8. Shared Voting Power:

9. Sole Dispositive Power:

269,962 ⁹

10. Shared Dispositive Power:


11.	Aggregate Amount Beneficially Owned by Each Reporting Person: 269,962 ¹⁰
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented by Amount in Row (11): 4%
14.	Type of Reporting Person: PN

⁷	The Reporting Person disclaims membership in or existence of a group for purposes of Section 13(d)(3).

⁸

Includes 27,765 shares of Common Stock that may be exchanged upon conversion of 27,765 OP Units. Pursuant to the Agreement of Limited Partnership dated as of April 30, 1997, as amended, the OP Units are convertible by the limited partners for, at the option of the Partnership, either cash or common stock of the Issuer. The Partnership may elect to pay cash upon the conversion of the OP Units and as a result thereof, Titahotwo believes that it currently does not beneficially own the shares of Common Stock that may be exchanged upon conversion of the OP Units for purposes of Rule 13d-3; however, because of Titahotwo’s expectation that the Partnership would elect to exchange shares of Common Stock for the OP Units, pursuant to Rule 13d-3, Titahotwo may be deemed to beneficially own shares of Common Stock that may be exchanged upon the conversion of the OP Units. Titahotwo disclaims beneficial ownership of such shares of Common Stock that may be exchanged upon conversion of the OP units.

⁹	See footnote 8 above.

¹⁰	See footnote 8 above.

Page 3 of 20

CUSIP No.: 027118108


1.	Name of Reporting Persons: S.S. or I.R.S. ID Numbers of above persons (entities only): Considine Family Foundation (“CFF”)
2.	Check the Appropriate Box if a Member of Group (a) ¨ (b) x¹¹
3.	SEC Use Only
4.	Source of Funds OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization: Colorado

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH:

7. Sole Voting Power:

81,079

8. Shared Voting Power:

9. Sole Dispositive Power:

81,079

10. Shared Dispositive Power:


11.	Aggregate Amount Beneficially Owned by Each Reporting Person: 81,079
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented by Amount in Row (11): 1%
14.	Type of Reporting Person: OO

¹¹ The Reporting Person disclaims membership in or existence of a group for purposes of Section 13(d)(3).

Page 4 of 20

CUSIP No.: 027118108


1.	Name of Reporting Persons: S.S. or I.R.S. ID Numbers of above persons (entities only): Titaho Limited Partnership, RLLLP (“Titaho”)
2.	Check the Appropriate Box if a Member of Group (a) ¨ (b) x¹²
3.	SEC Use Only
4.	Source of Funds OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization: Colorado

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH:

7. Sole Voting Power:

553,086 ¹³

8. Shared Voting Power:

9. Sole Dispositive Power:

553,086 ¹⁴

10. Shared Dispositive Power:


11.	Aggregate Amount Beneficially Owned by Each Reporting Person: 553,086 ¹⁵
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented by Amount in Row (11): 7%
14.	Type of Reporting Person: PN

¹²	The Reporting Person disclaims membership in or existence of a group for purposes of Section 13(d)(3).

¹³	Represents (i) 100,000 shares of Common Stock and (ii) 453,086 shares of Common Stock subject to stock options.

¹⁴	See footnote 13 above.

¹⁵	See footnote 13 above.

Page 5 of 20

CUSIP No.: 027118108


1.	Name of Reporting Persons: S.S. or I.R.S. ID Numbers of above persons (entities only): Terry Considine 1998 April Trust (the “Trust”)
2.	Check the Appropriate Box if a Member of Group (a) ¨ (b) x¹⁶
3.	SEC Use Only
4.	Source of Funds OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization: Colorado

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH:

7. Sole Voting Power:

553,086 ¹⁷

8. Shared Voting Power:

9. Sole Dispositive Power:

553,086 ¹⁸

10. Shared Dispositive Power:


11.	Aggregate Amount Beneficially Owned by Each Reporting Person: 553,086 ¹⁹
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented by Amount in Row (11): 7%
14.	Type of Reporting Person: OO

¹⁶	The Reporting Person disclaims membership in or existence of a group for purposes of Section 13(d)(3).

¹⁷	Represents 100,000 shares of Common Stock and 453,086 shares of Common Stock subject to stock options that are held by Titaho, for which the Trust is the general partner.

¹⁸	See footnote 17 above.

¹⁹	See footnote 17 above.

Page 6 of 20

CUSIP No.: 027118108


1.	Name of Reporting Persons: S.S. or I.R.S. ID Numbers of above persons (entities only): Timothy M. Considine
2.	Check the Appropriate Box if a Member of Group (a) ¨ (b) x²⁰
3.	SEC Use Only
4.	Source of Funds OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization: United States citizen

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH:

7. Sole Voting Power:

553,086 ²¹

8. Shared Voting Power:

9. Sole Dispositive Power:

553,086 ²²

10. Shared Dispositive Power:


11.	Aggregate Amount Beneficially Owned by Each Reporting Person: 553,086 ²³
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares	¨
13.	Percent of Class Represented by Amount in Row (11): 7%
14.	Type of Reporting Person: IN

²⁰	The Reporting Person disclaims membership in or existence of a group for purposes of Section 13(d)(3).

²¹

Represents 100,000 shares of Common Stock and 453,086 shares of Common Stock subject to stock options that are held by Titaho, for which the Trust is the general partner. Because Timothy M. Considine is the trustee of the Trust, he may be deemed to have indirect beneficial ownership of the shares of Common Stock owned by Titaho, by virtue of his status as the trustee of the general partner. Timothy M. Considine disclaims beneficial ownership of the shares of Common Stock owned by Titaho.

²²	See footnote 21 above.

²³	See footnote 21 above.

Page 7 of 20

The information set forth in response to each separate Item shall be deemed to be a response to all Items where such information is relevant.

Item 1. Security and Issuer

This Schedule relates to the common stock, par value $0.01 per share (the “Common Stock”) of American Land Lease, Inc., the Issuer. The principal executive offices of the Issuer are located at 29399 U.S. Highway 19 North, Suite 320, Clearwater, Florida 33761.

Item 2. Identity and Background

(a)

This Schedule 13D is being filed on behalf of Terry Considine, Titahotwo, CFF, Titaho, The Trust, and Timothy M. Considine (collectively, the “Reporting Persons”). The Reporting Persons are making this single joint filing because they may be deemed to constitute a “group” within the meaning of Section 13(d)(3), although neither the fact of this joint filing nor anything contained herein shall be deemed an admission by any Reporting Person that such Reporting Person is a member of the group or that such a “group” exists. The agreement among the Reporting Persons to file jointly (the “Joint Filing Agreement”) is attached hereto as Exhibit 1. Each Reporting Person disclaims beneficial ownership of all shares of Common Stock, other than those reported herein as being owned by such Reporting Person.

Terry Considine is the general partner of Titahotwo, a director and officer of CFF, and a brother of Timothy M. Considine. The Trust is the sole general partner of Titaho. Timothy M. Considine is the trustee of the Trust.

(b)

Residence or business address:

Terry Considine

c/o The Considine Companies

4582 South Ulster Street, #405

Denver, CO 80237

Titahotwo

c/o The Considine Companies

4582 South Ulster Street, #405

Denver, CO 80237

Titaho

c/o The Considine Companies

4582 South Ulster Street, #405

Denver, CO 80237

The Trust

c/o The Considine Companies

4582 South Ulster Street, #405

Denver, CO 80237

Page 8 of 20

Timothy M. Considine

c/o The Considine Companies

4582 South Ulster Street, #405

Denver, CO 80237

(c)

Terry Considine is the Chairman of the board of directors and Chief Executive Officer of Apartment Investment and Management Company, which is located at 4582 South Ulster Street Parkway, Suite 1100, Denver, Colorado 80237 and whose principal business is to engage in the acquisition, ownership, management and redevelopment of apartment properties.

Titahotwo is organized in the state of Colorado. Its principal business is to make investments and its address is c/o The Considine Companies, 4582 South Ulster Street, #405, Denver, CO 80237.

CFF is organized in the state of Colorado. It is a 501(c)(3) private foundation and its address is c/o The Considine Companies, 4582 South Ulster Street, #405, Denver, CO 80237.

Titaho is organized in the state of Colorado. Its principal business is to make investments and its address is c/o The Considine Companies, 4582 South Ulster Street, #405, Denver, CO 80237.

The Trust is organized in the state of Colorado. Its principal business is to make investments and its address is c/o The Considine Companies, 4582 South Ulster Street, #405, Denver, CO 80237.

Timothy M. Considine is a certified public accountant with Considine & Considine, a CPA firm, which is located at 1501 Fifth Avenue, Suite 400, San Diego, California 92101.

(d)

(e)

None of the Reporting Persons, nor, to the best of their knowledge, any of the directors, executive officers, control persons, general partners or members referred to in paragraph (a) above, has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Page 9 of 20

(f)

Terry Considine and Timothy M. Considine are the United States citizens.

Item 3. Source and Amount of Funds or Other Consideration

I.	Holdings acquired by Terry Considine:

(a)

Terry Considine acquired 146 shares (adjusted for 1-for-5 reverse stock split on November 21, 1997), assuming the exchange of Common Stock upon conversion of the OP Units, on April 30, 1997. The OP Units were issued to Terry Considine, based on a value of $17.20 per unit (adjusted for 1-for-5 reverse stock split on November 21, 1997), in conjunction with the formation of the Partnership and its subsequent contributions to the Issuer.

(b)

Terry Considine acquired 36,227 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on August 31, 1998. Terry Considine received these OP Units in conjunction with achievement of earnout provisions in connection with the acquisition by the Partnership of certain management contracts and other assets.

(c)

Terry Considine acquired 204,286 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on October 31, 1998. Terry Considine received these OP Units as distributions from FAMAQH Alpha Holdings LLC (“FAM Alpha”) and FAMAQH Beta Holdings LLC (“FAM Beta”). FAM Alpha and FAM Beta owned Financial Asset Management LLC (“FAM”). FAM acquired 676,696 OP units (adjusted for 1-for-5 reverse stock split on November 21, 1997) on November 21, 1997 in exchange for the contribution of certain management contracts and other assets to the Partnership. The OP Units were valued at $17.28 per share (adjusted for 1-for-5 reverse stock split on November 21, 1997).

(d)

Terry Considine acquired 14,640 shares on November 3, 1999. Terry Considine paid cash for the 14,640 shares at the time of purchase in the amount of $12.875 per share. The 14,640 were acquired in a privately negotiated purchase.

(e)

Terry Considine acquired 1,630 shares on June 13, 2002. Terry Considine paid cash for the 1,630 shares at the time of purchase in the amount of $14.28 per share. The 1,630 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s Dividend Reinvestment Plan (“DRIP”).

(f)

Terry Considine acquired 4,213 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on June 13, 2002. Terry Considine paid cash for the 4,213 shares at the time of purchase in the

Page 10 of 20

amount of $14.28 per share. Terry Considine acquired the 4,213 shares under the terms of a private placement of OP Units through the reinvestment of distributions.

(g)

Terry Considine acquired 1,682 shares on August 22, 2002. Terry Considine paid cash for the 1,682 shares at the time of purchase in the amount of $14.08 per share. The 1,682 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(h)

Terry Considine acquired 4,348 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on August 22, 2002. Terry Considine paid cash for the 4,348 shares at the time of purchase in the amount of $14.08 per share. Terry Considine acquired the 4,348 shares under the terms of a private placement of OP Units through the reinvestment of distributions.

(i)

Terry Considine acquired 1,788 shares on November 21, 2002. Terry Considine paid cash for the 1,788 shares at the time of purchase in the amount of $13.48 per share. The 1,788 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(j)

Terry Considine acquired 4,622 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on November 21, 2002. Terry Considine paid cash for the 4,622 shares at the time of Purchase in the amount of $13.48 per share. Terry Considine acquired the 4,622 shares under the terms of a private placement of OP Units through the reinvestment of distributions.

(k)

Terry Considine was awarded 13,204 shares of restricted stock as compensation for 2002 service to the Issuer with a fair value of $14.39 per share on February 5, 2003. As of November 30, 2004, 3,301 shares are vested or will be vested within 60 days.

(l)

Terry Considine acquired 345 shares on February 27, 2003. Terry Considine paid cash for the 345 shares at the time of purchase in the amount of $14.29 per share. The 345 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(m)

Terry Considine acquired 4,441 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on February 27, 2003. Terry Considine paid cash for the 4,441 shares at the time of purchase in the amount of $14.29 per share. Terry Considine acquired the 4,441 shares under the terms of a private placement of OP Units through the reinvestment of distributions.

Page 11 of 20

(n)

Terry Considine acquired 314 shares on May 22, 2003. Terry Considine paid cash for the 314 shares at the time of purchase in the amount of $15.95 per share. The 314 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(o)

Terry Considine acquired 4,048 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on May 22, 2003. Terry Considine paid cash for the 4,048 shares at the time of purchase in the amount of $15.95 per share. Terry Considine acquired the 4,048 shares under the terms of a private placement of OP Units through the reinvestment of distributions.

II.	Holdings acquired by Titahotwo:

(a)

Titahotwo acquired 34,561 shares (adjusted for 1-for-5 reverse stock split on November 21, 1997) on June 20, 1997. The shares were acquired in a privately negotiated purchase at a price of $18.00 per share (adjusted for 1-for-5 reverse stock split on November 21, 1997). The purchase was funded from certain borrowings under a credit facility with Merrill Lynch and such borrowings have been paid back.

(b)

Titahotwo acquired 2,208 shares on August 6, 1998. The 2,208 shares were acquired as the result of exercising options to purchase shares of the Issuer, which options were issued pursuant to the terms of the Issuer’s Stock Incentive Plan. Titahotwo executed a promissory note payable to the Issuer for the 2,208 shares at the time of option exercise in the amount of $13.895 per share. The promissory note was paid in full on February 29, 2000.

(c)

Titahotwo acquired 1,005 shares on September 20, 1999. The 1,005 shares were acquired as the result of exercising options to purchase shares of the Issuer, which options were issued pursuant to the terms of the Issuer’s Stock Incentive Plan. Titahotwo executed a promissory note payable to the Issuer for the 1,005 shares at the time of option exercise in the amount of $8.41 per share. The promissory note was paid in full on February 29, 2000.

(d)

Titahotwo acquired 137,580 shares on October 31, 1999. Titahotwo acquired the 137,580 shares in conjunction with the merger of Titahothree Limited Partnership, RLLLP into Titahotwo.

(e)

Titahotwo acquired 3,000 shares on November 3, 1999. Titahotwo paid cash for the 3,000 shares at the time of purchase in the amount of $12.875 per share. The 3,000 shares were acquired in a privately negotiated purchase.

(f)

Titahotwo acquired 25,471 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on March 7, 2000. Titahotwo

Page 12 of 20

paid cash for the 25,471 shares at the time of purchase in the amount of $12.00 per share. The 25,471 shares were acquired in a privately negotiated purchase.

(g)

Titahotwo acquired 43,835 shares on August 11, 2000. Titahotwo acquired the 43,835 shares in conjunction with the merger of Commercial Assets, Inc. with the Issuer.

(h)

Titahotwo acquired 3,890 shares on June 13, 2002. Titahotwo paid cash for the 3,890 shares at the time of purchase in the amount of $14.28 per share. The 3,890 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(i)

Titahotwo acquired 446 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on June 13, 2002. Titahotwo paid cash for the OP Units at the time of purchase in the amount of $14.28 per share. Titahotwo acquired the OP Units under the terms of a private placement through the reinvestment of distributions.

(j)

Titahotwo acquired 4,014 shares on August 22, 2002. Titahotwo paid cash for the 4,014 shares at the time of purchase in the amount of $14.08 per share. The 4,014 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(k)

Titahotwo acquired 460 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on August 22, 2002. Titahotwo paid cash for the OP Units at the time of purchase in the amount of $14.08 per share. Titahotwo acquired the OP Units under the terms of a private placement through the reinvestment of distributions.

(l)

Titahotwo acquired 4,267 shares on November 21, 2002. Titahotwo paid cash for the 4,267 shares at the time of purchase in the amount of $13.48 per share. The 4,267 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(m)

Titahotwo acquired 489 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on November 21, 2002. Titahotwo paid cash for the OP Units at the time of purchase in the amount of $13.48 per share. Titahotwo acquired the OP Units under the terms of a private placement of through the reinvestment of distributions.

(n)

Titahotwo acquired 4,100 shares on February 27, 2003. Titahotwo paid cash for the 4,100 shares at the time of purchase in the amount of $14.29 per share. The 4,100 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(o)

Titahotwo acquired 470 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on February 27, 2003. Titahotwo paid

Page 13 of 20

cash for the OP Units at the time of purchase in the amount of $14.29 per share. Titahotwo acquired the OP Units under the terms of a private placement through the reinvestment of distributions.

(p)

Titahotwo acquired 3,737 shares on May 22, 2003. Titahotwo paid cash for the 3,737 shares at the time of purchase in the amount of $15.95 per share. The 3,737 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(q)

Titahotwo acquired 429 shares, assuming the exchange of Common Stock upon conversion of the OP Units, on May 22, 2003. Titahotwo paid cash for the OP Units at the time of purchase in the amount of $15.95 per share. Titahotwo acquired the OP Units under the terms of a private placement through the reinvestment of distributions.

III.	Holdings acquired by CFF:

(a)

CFF acquired 78,455 shares on December 27, 2002. CFF received the shares as a charitable contribution from Terry Considine.

(b)

CFF acquired 1,373 shares on February 27, 2003. CFF paid cash for the 1,373 shares at the time of purchase in the amount of $14.29 per share. The 1,373 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

(c)

CFF acquired 1,251 shares on May 22, 2003. CFF paid cash for the 1,251 shares at the time of purchase in the amount of $15.95 per share. The 1,251 shares were acquired through reinvesting dividends paid by the Issuer under the terms of the Issuer’s DRIP.

IV.	Holdings acquired by Titaho:

(a)

Titaho acquired 300,000 shares, subject to stock options to purchase shares, on June 1, 1998 from Terry Considine for $1.30 per share of stock options. The stock options were issued to Terry Considine by the Issuer on April 21, 1998 subject to stockholders’ subsequent approval of the Issuer’s Stock Option Incentive Plan. Such approval was received on June 30, 1998. The exercise price of the stock options is $19.375 per share. All of the 300,000 shares of stock options have been vested.

(b)

Titaho acquired 100,000 shares, subject to stock options to purchase shares, on February 15, 2001. The stock options were issued to Terry Considine by the Issuer pursuant to the Issuer’s Stock Option Incentive Plan and simultaneously sold by Terry Considine to Titaho for $0.61 per share of stock options. The exercise price of the stock options is $11.45 per share. On August 4, 2004, Titaho exercised the stock options to purchase 100,000 shares of Common Stock.

Page 14 of 20

(c)

Titaho acquired 150,000 shares, subject to stock options to purchase shares, on February 5, 2002. The stock options were issued to Terry Considine by the Issuer pursuant to the Issuer’s Stock Option Incentive Plan and simultaneously sold by the Reporting Person to Titaho for $1.00 per share of stock options. The exercise price of the stock options is $13.50 per share. All of the 150,000 shares of stock options have been vested.

(d)

Titaho acquired 12,346 shares, subject to stock options to purchase shares, on February 5, 2003. The stock options were issued to Terry Considine by the Issuer pursuant to the Issuer’s Stock Option Incentive Plan and simultaneously sold by Terry Considine to Titaho for $0.81 per share of stock options. The exercise price of the stock options is $14.39 per share. As of November 30, 2004, 3,086 shares of stock options are vested or will be vested within 60 days.

Item 4. Purpose of Transaction

The Reporting Persons acquired the shares covered by this Schedule from time to time primarily for investment purposes. Terry Considine received certain of the shares covered by this Schedule as compensation. Terry Considine serves as Chairman of the board of directors and Chief Executive Officer of the Issuer. Depending upon market conditions and other factors that the Reporting Persons may deem material in making their investment decisions, the Reporting Persons may purchase additional Common Stock or OP Units in open market or private transactions, may redeem the OP Units for cash or Common Stock, or may sell all or any portion of the Common Stock or OP Units currently owned or hereafter acquired by the Reporting Persons, either in open market or through private transactions. In addition, the Issuer may grant to Terry Considine additional Common Stock or additional stock options to purchase the Common Stock.

Except as described above, the Reporting Persons currently have no plan or proposal that relate to or would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D.

Item 5. Interest in Securities of the Issuer

(a)

Based upon the information provided by the Issuer, there were issued and outstanding 7,345,617 shares of Common Stock as of August 17, 2004.

Terry Considine beneficially owns 637,072 shares of Common Stock, representing 8% of the Issuer’s outstanding Common Stock. Of the shares of Common Stock beneficially owned by Terry Considine, (i) 23,700 shares of Common Stock are held directly by Terry Considine; (ii) 262,331 shares are subject to the exchange of OP Units convertible into Common Stock within 60 days of November 30, 2004, directly held by Terry Considine; (iii) 269,962 shares (consisting of 242,197 shares of Common Stock and 27,765 shares of Common Stock subject to the

Page 15 of 20

exchange of OP Units convertible into Common Stock within 60 days of November 30, 2004) are held by Titahotwo, a registered limited liability limited partnership in which Terry Considine serves as the general partner; and (iv) 81,079 shares of Common Stock are held by CFF, a private foundation, in which Terry Considine serves as a director and officer. Terry Considine disclaims beneficial ownership in the shares of Common Stock under (ii), (iii) and (iv).

Titahotwo beneficially owns 269,962 shares of Common Stock, representing 4% of the Issuer’s outstanding Common Stock. Of the shares of Common Stock beneficially owned by Titahotwo, (i) 242,197 shares of Common Stock are held directly by Titahotwo; (ii) 27,765 shares are subject to the exchange of OP Units convertible into Common Stock within 60 days of November 30, 2004. Titahotwo disclaims beneficial ownership in the shares of Common Stock under (ii).

CFF beneficially owns 81,079 shares of Common Stock subject to stock options, representing 1% of the Issuer’s outstanding Common Stock.

Titaho beneficially owns 100,000 shares of Common Stock and 453,086 shares of Common Stock subject to stock options, representing 7% of the Issuer’s outstanding Common Stock.

The Trust beneficially owns 100,000 shares of Common Stock and 453,086 shares of Common Stock subject to stock options, representing 7% of the Issuer’s outstanding Common Stock, by virtue of its status as the general partner of Titaho.

Timothy M. Considine beneficially owns 100,000 shares of Common Stock and 453,086 shares of Common Stock subject to stock options, representing 7% of the Issuer’s outstanding Common Stock, by virtue of his status as the trustee of the Trust, which is the general partner of Titaho. Timothy M. Considine disclaims beneficial ownership of 553,086 shares held by Titaho.

(b)

Terry Considine has


sole power to vote:	555,993	shares of Common Stock
shared power to vote:	81,079	shares of Common Stock
sole power to dispose of:	555,993	shares of Common Stock
shared power to dispose of:	81,079	shares of Common Stock

Terry Considine shares power to vote and power to dispose of 81,079 shares of Common Stock subject to stock options held by CFF with the following persons: Elizabeth C. Considine, Hollis H. Considine, Thalia O. Considine and Elizabeth R. Considine (the “Other Persons”).

Page 16 of 20

Elizabeth C. Considine is President and a director of CFF. Each of Hollis H. Considine, Thalia O. Considine and Elizabeth R. Considine is a director of CFF. Their business addresses are c/o The Considine Companies, 4582 South Ulster Street, #405, Denver, CO 80237. CFF is a 501(c)(3) private foundation organized in the state of Colorado. Its principal business is to make charitable grants and its address is c/o The Considine Companies, 4582 South Ulster Street, #405, Denver, CO 80237.

None of the Other Persons has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

None of the Other Persons has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

All of the Other Persons are the United States citizens.



Titahotwo has
sole power to vote:	269,962	shares of Common Stock
shared power to vote:	0	shares of Common Stock
sole power to dispose of:	269,962	shares of Common Stock
shared power to dispose of:	0	shares of Common Stock

CFF has
sole power to vote:	81,079	shares of Common Stock
shared power to vote:	0	shares of Common Stock
sole power to dispose of:	81,079	shares of Common Stock
shared power to dispose of:	0	shares of Common Stock

Titaho has
sole power to vote:	553,086	shares of Common Stock
shared power to vote:	0	shares of Common Stock
sole power to dispose of:	553,086	shares of Common Stock
shared power to dispose of:	0	shares of Common Stock

The Trust has
sole power to vote:	553,086	shares of Common Stock
shared power to vote:	0	shares of Common Stock
sole power to dispose of:	553,086	shares of Common Stock
shared power to dispose of:	0	shares of Common Stock

Page 17 of 20


Timothy M. Considine has
sole power to vote:	553,086	shares of Common Stock
shared power to vote:	0	shares of Common Stock
sole power to dispose of:	553,086	shares of Common Stock
shared power to dispose of:	0	shares of Common Stock

(c)

Except as described above, during the past sixty days, there were no transactions in shares of Common Stock, or any securities directly or indirectly convertible into or exchangeable for shares of Common Stock, by the Reporting Persons or any person or entity controlled by the Reporting Persons or any person or entity for which the Reporting Persons possess voting or investment control over the securities thereof.

(d)

Not applicable.

(e)

Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Terry Considine is a party to an Agreement of Limited Partnership of Asset Investors Operating Partnership, L.P. dated as of April 30, 1997, as amended as of April 1, 2000 and May 3, 2002, which provides, among other things, that, the OP Units are convertible by the limited partners thereof for, at the option of the Partnership, either cash or shares of the Issuer’s Common Stock.

Terry Considine is a party to a Credit Agreement dated as of October 25, 2004 (the “Credit Agreement”), with U.S. Bank National Association, which provides for a revolving line of credit to Terry Considine secured by certain shares of Common Stock and certain OP Units covered by this Schedule.

Terry Considine and Titahotwo are parties to a Collateral Assignment of Limited Partnership Interests dated as of October 25, 2004, in favor of U.S. Bank National Association, which provides for collateral assignment of certain OP Units covered by this Schedule in connection with the Credit Agreement.

Terry Considine and Titahotwo are parties to a Combined Pledge Agreement dated as of October 25, 2004, in favor of U.S. Bank National Association, which provides for a security interest to the bank in certain shares of Common Stock and certain OP Units covered by this Schedule in connection with the Credit Agreement.

Except as described above, there are no contracts, arrangements, understandings or similar relationship between the Reporting Persons and any other person or entity with respect to any securities of the Issuer.

Item 7. Material to Be Filed as Exhibits

Joint Filing Agreement dated November 10, 2004

Page 18 of 20

Agreement of Limited Partnership of Asset Investors Operating Partnership, L.P. dated as of April 30, 1997, as amended as of April 1, 2000 and May 3, 2002

Credit Agreement dated as of October 25, 2004

Collateral Assignment of Limited Partnership Interests dated as of October 25, 2004

Combined Pledge Agreement dated as of October 25, 2004

Page 19 of 20

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.



Dated: November 10, 2004	Terry Considine /s/ Terry Considine

Dated: November 10, 2004	Titahotwo Limited Partnership, RLLLP

	By:	/s/ Terry Considine
	Name:	Terry Considine
	Title:	General Partner

Dated: November 10, 2004	Considine Family Foundation

	By:	/s/ Elizabeth C. Considine
	Name:	Elizabeth C. Considine
	Title:	President

Dated: November 16, 2004	Titaho Limited Partnership, RLLLP

	By:	/s/ Timothy M. Considine
	Name:	Timothy M. Considine
	Title:	Trustee for the general partner,
		Terry Considine 1998 April Trust

Dated: November 16, 2004	Terry Considine 1998 April Trust

	By:	/s/ Timothy M. Considine
	Name:	Timothy M. Considine
	Title:	Trustee

Dated: November 16, 2004	Timothy M. Considine /s/ Timothy M. Considine

Page 20 of 20

EX-1 2 dex1.htm JOINT FILING AGREEMENT Joint Filing Agreement

EXHIBIT 1

JOINT FILING AGREEMENT

This Agreement is dated as of November 10, 2004 among Terry Considine, Titahotwo Limited Partnership, RLLLP, Considine Family Foundation, Titaho Limited Partnership, RLLLP, Terry Considine 1998 April Trust and Timothy M. Considine (collectively, the “REPORTING PERSONS”).

WITNESSETH

WHEREAS, the Reporting Persons may be required to file a statement, and amendments thereto, containing the information required by Schedule 13D pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the ‘EXCHANGE ACT”), and Rule 13d-1 promulgated thereunder, in connection with the acquisition of shares of capital stock of American Land Lease, Inc., a Delaware corporation; and

WHEREAS, pursuant to Paragraph (k) of Rule 13d-1, the undersigned desire to satisfy any Schedule 13D filing obligation under Rule 13d-1 by a single joint filing.

NOW THEREFORE, in consideration of the foregoing, the undersigned hereto agree as follows:

1. The undersigned agree that any statement on Schedule 13D to which this Agreement is attached, and any amendments to such statement, are filed on behalf of each one of them.

2. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

[Remainder of page intentionally left blank. Signature page follows.]

IN WITNESS WHEREOF, the undersigned have cause this Agreement to be duly executed and delivered on the date above indicated.


Dated: November 10, 2004	Terry Considine
	/s/ Terry Considine

Dated: November 10, 2004	Titahotwo Limited Partnership, RLLLP

	By:	/s/ Terry Considine
	Name:	Terry Considine
	Title:	General Partner

Dated: November 10, 2004	Considine Family Foundation

	By:	/s/ Elizabeth C. Considine
	Name:	Elizabeth C. Considine
	Title:	President

Dated: November 16, 2004	Titaho Limited Partnership, RLLLP

	By:	/s/ Timothy M. Considine
	Name:	Timothy M. Considine
	Title:	Trustee for the general partner,
		Terry Considine 1998 April Trust

Dated: November 16, 2004	Terry Considine 1998 April Trust

	By:	/s/ Timothy M. Considine
	Name:	Timothy M. Considine
	Title:	Trustee

Dated: November 16, 2004	Timothy M. Considine

	/s/ Timothy M. Considine

EX-2 3 dex2.htm AGREEMENT OF LIMITED PARTNERSHIP Agreement of Limited Partnership

Exhibit 2

AGREEMENT OF LIMITED PARTNERSHIP

ASSET INVESTORS OPERATING PARTNERSHIP, L.P.

As of

April 30, 1997

TABLE OF CONTENTS


		Page

ARTICLE I

Definitions; Etc.		3
1.1	Definitions	3
1.2	Exhibit, Etc.	17

ARTICLE II

Formation		17
2.1	Formation	17
2.2	Name	18
2.3	Character of the Business	19
2.4	Location of the Principal Place of Business	20
2.5	Registered Agent and Registered Office	20

ARTICLE III

Term		21
3.1	Commencement	21
3.2	Dissolution	21

ARTICLE IV

Contribution to Capital		21
4.1	General Partner Capital Contributions	21
4.2	Limited Partner Capital Contributions	23
4.3	No Obligation to Make Further Capital Contributions; No Third Party Beneficiary	24
4.4	No Interest; No Return	24
4.5	Capital Accounts	25
4.6	Additional Funds	29

ARTICLE V

Representations and Warranties		31


		Page
5.1	Representation and Warranties by the General Partner	31
5.2	Representation and Warranties by the Limited Partners	33
5.3	Acknowledgment by Each Partner	33

ARTICLE VI

Allocations, Distributions and Other Tax and Accounting Matters		34
6.1	Allocations	34
6.2	Distributions	43
6.3	Books of Account	44
6.4	Reports	45
6.5	Audits	46
6.6	Tax Returns and Elections	46
6.7	Tax Matters Partner	47
6.8	Withholding	48

ARTICLE VII

Rights, Duties and Restrictions of the General Partner		49
7.1	Expenditures by Partnership	49
7.2	Powers and Duties of General Partner	50
7.3	Amendment of Agreement	56
7.4	General Partner Participation	57
7.5	Proscriptions	57
7.6	Waiver and Indemnification	58
7.7	Limitation of Liability of Directors, Shareholders and Officers of the General Partner	59

ARTICLE VIII

Dissolution, Liquidation and Winding-Up		60
8.1	Accounting	60
8.2	Distribution on Dissolution	60
8.3	Sale of Partnership Assets	61
8.4	Distributions in Kind	62
8.5	Documentation of Liquidation	62
8.6	Liability of the Liquidating Agent	62


		Page
ARTICLE IX

Transfer of Partnership Interests and Related Matters		63
9.1	General Partner Transfers and Deemed Transfers	63
9.2	Transfers by Limited Partners	65
9.3	Issuance of Additional Partnership Units	67
9.4	Restrictions on Transfer, Pledge or Issuance	68

ARTICLE X

Right and Obligations of the Limited Partners		69
10.1	No Participation in Management	69
10.2	Bankruptcy of a Limited Partner	69
10.3	No Withdrawal	70
10.4	Duties and Conflicts	70

ARTICLE XI

Grant of Rights to the Limited Partners		71
11.1	Grant of Rights	71
11.2	Limitation on Exercise of Rights	72
11.3	Computation of Purchase Price; Form of Payment	73
11.4	Closing	73
11.5	Closing Deliveries	74
11.6	Term of Rights	74
11.7	Covenants of the General Partner	74
11.8	Limited Partners’ Covenants	75

ARTICLE XII

General Provisions		76
12.1	Investment Representations	76
12.2	Notices	77
12.3	Successors	78
12.4	Liability of Limited Partners	78
12.5	Effect and Interpretation	78
12.6	Counterparts	79
12.7	Partners Not Agents	79
12.8	Entire Understanding; Etc.	79
12.9	Severability	79
12.10	Trust Provision	79
12.11	Pronouns and Headings	80

iii


		Page
12.12	Assurances	80
12.13	Title Holder	80
12.14	Power of Attorney	80


		Page
EXHIBITS

A	Contributed General Partner Property	83
B	Initial Limited Partners Contributed Limited Partner Property	84
C	Form of Exercise Notice	85

AGREEMENT OF LIMITED PARTNERSHIP

ASSET INVESTORS OPERATING PARTNERSHIP, L.P.

THIS AGREEMENT OF LIMITED PARTNERSHIP, dated as of April 30, 1997, is made by and among ASSET INVESTORS CORPORATION, a Maryland corporation having an office at 3600 South Yosemite Street, Suite 1000, Denver, Colorado 80237, as general partner (the “General Partner”). Terry Considine, Thomas Rhodes and HFIC Inc., a Missouri corporation, as initial limited partners (each of Terry Considine, Thomas Rhodes and HFIC Inc., an “Initial Limited Partner” and together, the “Initial Limited Partners”), and those parties who may become parties to this Agreement as limited partners from time to time in accordance with the terms of this Agreement. Capitalized terms used herein but not otherwise defined shall have the meanings given them in Section 1.1.

W I T N E S S E T H:

WHEREAS, the General Partner currently qualifies as a REIT;

WHEREAS, Asset Investors Operating Partnership, L.P. (the “Partnership”), was formed on April 28, 1997 as a limited partnership pursuant to the Act, and the Certificate of Limited Partnership reflecting the foregoing was filed in the appropriate offices of the State of Delaware on April 28, 1997;

WHEREAS, the General Partner desires to conduct its current and future business through the Partnership;

WHEREAS, in furtherance of the foregoing, the General Partner desires to contribute certain of its Property and other assets to the Partnership;

WHEREAS, in exchange for the General Partner’s contributions of Property and other assets, the parties desire that the Partnership issue Partnership Units to the General Partner in accordance with the terms of this Agreement;

WHEREAS, each of the Initial Limited Partners agrees to contribute certain of his or its property to the Partnership in exchange for Partnership Units in accordance with the terms of this Agreement;

WHEREAS, the parties are considering that, in furtherance of the Partnership’s business, the Partnership may acquire Property and other assets from time to time by means of the contribution of such Property or other assets to the Partnership by the owners thereof in exchange for Partnership Units; and

WHEREAS, the parties hereto wish to establish herein their respective rights and obligations in connection with all of the foregoing and certain other matters.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto, intending legally to be bound, hereby agrees as follows:

ARTICLE I

Definitions; Etc.

1.1 Definitions. Except as otherwise herein expressly provided, the following terms and phrases shall have the meanings set forth below:

“Accountants” shall mean the firm or firms of independent certified public accountants selected by the General Partner from time to time on behalf of the Partnership to audit the books and records of the Partnership and to prepare statements and reports in connection therewith.

“Act” shall mean the Revised Uniform Limited Partnership Act as enacted in the State of Delaware, as the same may hereafter be amended from time to time, or any successor statute.

“Administrative Expenses” shall mean (i) all administrative and operating costs and expenses incurred by the Partnership and (ii) all administrative and operating costs and expenses and accounting and legal expenses incurred by the General Partner on behalf or for the benefit of the Partnership.

“Affiliate” shall mean, with respect to any Partner (or with respect to any other Person the Affiliates of whom are relevant for purposes of any of the provisions of this Agreement), (i) any member of the Immediate Family of such Partner or Person; (ii) any partner, trustee, director, officer, beneficiary or shareholder of such Partner or Person; (iii) any trustee or trust for the benefit of any Person referred to in the preceding clauses (i) or (ii); or (iv) any Entity which,

directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Partner or any Person referred to in the preceding clauses (i) through (iii).

“Affiliate Financing” shall mean financing or refinancing obtained from a Partner or an Affiliate of a Partner by the Partnership.

“Agreement” shall mean this Agreement of Limited Partnership, as amended, modified, supplemented or restated from time to time, as the context requires.

“Bankruptcy” shall mean, with respect to any Partner, (i) the commencement by such Partner of any proceeding seeking relief under any provision or chapter of the federal Bankruptcy Code or any other federal or state law relating to insolvency, bankruptcy or reorganization, (ii) an adjudication that such Partner is insolvent or bankrupt, (iii) the entry of an order for relief under the federal Bankruptcy Code with respect to such Partner, (iv) the filing of any such petition or the commencement of any such case or proceeding against such Partner, unless such petition and the case or proceeding initiated thereby are dismissed within ninety (90) days from the date of such filing, (v) the filing of an answer by such Partner admitting the allegations of any such petition, (vi) the appointment of a trustee, receiver or custodian for all or substantially all of the assets of such Partner unless such appointment is vacated or dismissed within ninety (90) days from the date of such appointment but not less than five (5) days before the proposed sale of any assets of such Partner, (vii) the execution by such Partner of a general assignment for the

benefit of creditors, (viii) the convening by such Partner of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts, (ix) the levy, attachment, execution or other seizure of substantially all of the assets of such Partner where such seizure is not discharged within thirty (30) days thereafter, or (x) the admission by such Partner in writing of its inability to pay its debts as they mature or that it is generally not paying its debts as they become due.

“Book Value Per Share” on any date shall mean the value obtained by (i) subtracting the sum of intangible assets, total liabilities and the par value of preferred stock from total assets, all as determined from the most recent balance sheet of the General Partner prepared in accordance with GAAP and (ii) dividing the number obtained in (i) by the number of Shares.

“Capital Account” shall have the meaning set forth in Section 4.5(a).

“Capital Contribution” shall mean, with respect to any Partner, the amount of cash and the initial Gross Asset Value of any asset (other than cash) contributed to the Partnership in exchange for Partnership Units (net of liabilities to which such asset is subject).

“Certificate” shall mean the Certificate of Limited Partnership establishing the Partnership, as filed with the office of the Secretary of State of the State of Delaware on April 28, 1997, as the same may be amended or restated from time to time in accordance with the terms of this Agreement and the Act.

“Charter” shall mean the articles of incorporation of the General Partner and all amendments, supplements and restatements thereof.

“Closing Price” on any date shall mean the last sale price, regular way, of the Shares or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, of the Shares in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Shares are not then listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Shares are listed or admitted to trading or, if the Shares are not then listed or admitted to trading on any national securities exchange, the last quoted price, or if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotations System for the Shares or, if such system is no longer in use, the principal other automated quotations system that may then be in use or, if the Snares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Shares who is selected from time to time by the Board of Directors of the General Partner.

“Code” shall mean the Internal Revenue Code of 1986, as amended, or any corresponding provisions of succeeding law.

“Computation Date” shall have the meaning set forth in Section 11.3.

“Consent of the Limited Partners” shall mean the written consent of a Majority-In-Interest of the Limited Partners, which consent shall be obtained prior to the taking of any action for which it is required by this Agreement and may be given or withheld by a Majority-In-Interest of the Limited Partners, unless otherwise expressly provided herein, in their sole and absolute discretion. Whenever the Consent of the Limited Partners is sought by the General Partner, the request for such consent, outlining in reasonable detail the matter or matters for which such consent is being requested, shall be submitted to all of the Limited Partners, and each Limited Partner shall have at least fifteen (15) days from the date such notice is given in accordance with Section 12.2 to act upon such request.

“Contributed General Partner Property” shall have the meaning set forth in Section 4.1(a).

“Contributed Limited Partner Property” shall mean (i) in the case of each Initial Limited Partner, all of the property and assets described on Exhibit B next to the name of such Initial Limited Partner contributed to the Partnership, and (ii) in the case of any Limited Partner, the property or other assets contributed to the Partnership from time to time in exchange for Partnership Units pursuant to Contribution Agreements.

“Contribution Agreements” shall mean agreements between the Partnership and one or more Persons who will become Limited Partners in accordance with the terms of this Agreement, to be entered into from time to time, pursuant to which, among other things, such Persons, directly or indirectly, will contribute

Contributed Limited Partner Property to the Partnership in exchange for Partnership Units.

“Contribution Date” shall mean, with respect to any property or other assets, the date such property or other assets are contributed to the capital of the Partnership.

“Control” shall mean the ability, whether by the direct or indirect ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to select the managing partner of a partnership, or otherwise to select, or have the power to remove and then select, a majority of those Persons exercising governing authority over an Entity. In the case of a limited partnership, the sole general partner, all of the general partners to the extent each has equal management control and authority, or the managing general partner or managing general partners thereof shall be deemed to have control of such partnership and, in the case of a trust, any trustee thereof or any Person having the right to select any such trustee shall be deemed to have control of such trust.

“Current Per Share Market Price” on any date shall mean the average of the Closing Price for the five consecutive Trading Days ending on such date.

“Deemed Partnership Unit Value” as of any date shall mean the greater of (i) Book Value Per Share or (ii) the Current Per Share Market Price as of the Trading Day immediately preceding such date; provided, however, that Deemed Partnership Unit Value shall be adjusted as described in Section 11.7(d) in the event

of any stock dividend, stock split, stock distribution or similar transaction affecting or with respect to the Shares.

“Depreciation” shall mean, for each Partnership Fiscal Year or other period, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable under the Code with respect to a Partnership asset for such year or other period, except that if the Gross Asset Value of a Partnership asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the federal income tax depreciation, amortization, or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the General Partner.

“Directors” shall mean the Board of Directors of the General Partner.

“Entity” shall mean any general partnership, limited partnership, limited liability company, limited liability partnership, corporation, joint venture, trust, business trust, cooperative or association.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time (or any corresponding provisions of succeeding laws).

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Exercise Notice” shall have the meaning set forth in Section 11.1.

“GAAP” shall mean generally accepted accounting principles, consistently applied over prior periods.

“General Partner” shall mean Asset Investors Corporation, a Maryland corporation, its duly admitted successors and assigns and any other Person who is a general partner of the Partnership at the time of reference thereto.

“Gross Asset Value” shall have the meaning set forth in Section 4.5(b).

“Gross Income” shall mean the income of the Partnership determined pursuant to Section 61 of the Code before deduction of items of expense or deduction.

“Immediate Family” shall mean, with respect to any Person, such Person’s spouse, parents, parents-in-law, descendants by blood or adoption, nephews, nieces, brothers, sisters, brothers-in-law, sisters-in-law and children-in-law.

“Initial Limited Partner” shall mean each of Terry Considine, Thomas Rhodes and HFIC Inc. or their duly admitted successors or assigns.

“Institutional Lender” shall mean a commercial bank or trust company, a savings and loan association or an insurance company.

“Lien” shall mean any liens, security interests, mortgages, deeds of trust, charges, claims, encumbrances, restrictions, pledges, options, rights of first offer or first refusal and any other rights or interests of others of any kind or nature, actual or contingent, or other similar encumbrances of any nature whatsoever.

“Limited Partners” shall mean those Persons who become parties to this Agreement from time to time as limited partners (including each of the Initial Limited Partners), their permitted successors or assigns as limited partners hereof, and/or any Person who, at the time of reference thereto, is a limited partner of the Partnership.

“Liquidating Agent” shall mean such Person as is selected as the Liquidating Agent hereunder by the General Partner, which Person may include the General Partner or an Affiliate of the General Partner, provided such Liquidating Agent agrees in writing to be bound by the terms of this Agreement. The Liquidating Agent shall be empowered to give and receive notices, reports and payments in connection with the dissolution, liquidation and/or winding-up of the Partnership and shall hold and exercise such other rights and powers as are necessary or required to permit all parties to deal with the Liquidating Agent in connection with the dissolution, liquidation and/or winding-up of the Partnership.

“Losses” shall have the meaning set forth in Section 6.1(a).

“Majority-In-Interest of the Limited Partners” shall mean Limited Partner(s) who hold in the aggregate more than fifty percent (50%) of the Partnership Units then held by all the Limited Partners, as a class (but excluding any Partnership Units held by the General Partner).

“Minimum Gain” shall have the meaning set forth in Section 6.1(d)(i).

“Minimum Gain Chargeback” shall have the meaning set forth in Section 6.1(d)(i).

“Net Financing Proceeds” shall mean the cash proceeds received by the Partnership in connection with any borrowing by or on behalf of the Partnership (whether or not secured), or distributed to the Partnership in respect of any such borrowing by any Subsidiary Entity, after deduction of all costs and expenses incurred by the Partnership in connection with such borrowing, and after deduction of that portion of such proceeds used to repay any other indebtedness of the Partnership, or any interest or premium thereon.

“Net Operating Cash Flow” shall mean, with respect to any fiscal period of the Partnership, the aggregate amount of all cash received by the Partnership from any source for such fiscal period (including Net Sale Proceeds and Net Financing Proceeds), less the aggregate amount of all expenses or other amounts paid with respect to such period and such additional cash reserves as of the last day of such period as the General Partner deems necessary for any capital or operating expenditure permitted hereunder.

“Net Sale Proceeds” shall mean the cash proceeds received by the Partnership in connection with a sale of any asset by or on behalf of the Partnership or a sale of any asset by or on behalf of any Subsidiary Entity, after deduction of any costs or expenses incurred by the Partnership, or payable specifically out of the proceeds of such sale (including, without limitation, any repayment of any indebtedness required to be repaid as a result of such sale or which the General Partner elects to repay out of the proceeds of such sale, together with accrued interest and

premium, if any, thereon and any sales commissions or other costs and expenses due and payable to any Person in connection with a sale).

“Nonrecourse Liabilities” shall have the meaning set forth in Section 6.1(d)(i).

“Offered Units” shall mean the Partnership Units of Limited Partner identified in an Exercise Notice which, pursuant to the exercise of Rights, are to be acquired by the General Partner under the terms of this Agreement.

“Off Market Shares” shall mean any Shares issued by the General Partner in connection with the exercise of any warrants to issue Shares or in connection with an issuance under any stock option, dividend reinvestment or like plan, whether now existing or adopted after the date of this Agreement.

“Partner Nonrecourse Debt” shall have the meaning set forth in Section 6.1(d)(ii).

“Partner Nonrecourse Debt Minimum Gain” shall have the meaning set forth in Section 6.1(d)(ii).

“Partner Nonrecourse Deduction” shall have the meaning set forth in Section 6.1(d)(ii).

“Partners” shall mean the General Partner and the Limited Partners or any Person who is a general or limited partner of the Partnership at the time of reference thereto.

“Partnership” shall mean the limited partnership constituted hereby, as such limited partnership may from time to time be constituted.

“Partnership Fiscal Year” shall mean the calendar year.

“Partnership Minimum Gain” shall have the meaning set forth in Section 1.704-2(b)(2) of the Regulations.

“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 all distributions from the Partnership, and its rights of management, consent, approval or participation, if any, as provided in this Agreement. Each Partner’s percentage of ownership interest in the Partnership shall be determined by dividing the number of Partnership Units then owned by each Partner by the total number of Partnership Units then outstanding. The number of Partnership Units to be held by each Partner and the percentage interest of each Partner in the Partnership will be recorded on the books and records of the Partnership, which record, absent manifest error, shall be binding on all Persons.

“Person” shall mean any individual or Entity.

“Pledge” shall mean a pledge or grant of a mortgage, security interest, lien or other encumbrance in respect of a Partnership Unit.

“Profits” shall have the meaning set forth in Section 6.1(a).

“Property” or “Properties” shall mean any ownership interest in residential mortgage loans and residential mortgage loan securitizations (rated or unrated) and any other property within the scope of the investment policies of the General Partner.

“Purchase Price” shall have the meaning set forth in Section 11.3.

“Registered Agent” shall have the meaning set forth in Section 2.5.

“Registered Office” shall have the meaning set forth in Section 2.5.

“Registration Rights Agreement” shall mean any registration rights agreement entered into between the General Partner and certain Limited Partners.

“Regulations” shall mean the final, temporary or proposed income tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“REIT” shall mean a real estate investment trust as defined in Section 856 of the Code, or the corresponding provision of subsequent law.

“REIT Expenses” shall mean all (i) costs and expenses relating to the continuity of existence of the General Partner and its subsidiaries, including taxes, fees and assessments associated therewith, and any and all costs, expenses, salaries or fees payable to any director, officer, agent, attorney, trustee or employee of the General Partner or any of such subsidiaries, (ii) costs and expenses associated with the preparation and filing of any periodic reports by the General Partner under federal, state or local laws or regulations, including tax returns and filings with the SEC and any stock exchanges on which the Shares are listed, (iii) costs and expenses associated with compliance by the General Partner with laws, rules and regulations promulgated by any regulatory body, including the SEC, (iv) costs and expenses associated with any 401(k) plan, pension plan, incentive plan, bonus plan or other plan providing for compensation for the employees of the General Partner and (v) all operating, administrative and other costs incurred by the General Partner (including

accountant’s fees, office rent and other administrative expenses of the General Partner’s office, but excluding costs of any repurchase by the General Partner of any of its securities).

“REIT Requirements” shall mean all actions or omissions as may be necessary (including making appropriate distributions from time to time) to permit the General Partner to continue to qualify as a REIT.

“Rights” shall have the meaning set forth in Section 11.1.

“SEC” shall mean the Securities and Exchange Commission.

“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Shares” shall mean the shares of common stock, par value $.01 per share, of the General Partner.

“Subsidiary Entity” shall mean any Entity in which the Partnership owns a direct or indirect equity interest.

“Substituted Limited Partner” shall mean a Limited Partner admitted to the Partnership as such as provided in Section 9.2.

“Tax Matters Partner” shall have the meaning set forth in Section 6.7.

“Third Patty” or “Third Parties” shall mean a Person or Persons who is or are neither a Partner or Partners nor an Affiliate or Affiliates of a Partner or Partners.

“Third Party Financing” shall mean financing or refinancing obtained from a Third Party by the Partnership.

“Trading Day” shall mean a day on which the principal national securities exchange on which the Shares are listed or admitted to trading is open for the transaction of business or, if the Shares are not listed or admitted to trading on any national securities exchange, shall mean any day other than a Saturday, a Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.

“Transfer” means any assignment, sale, transfer or other disposition (other than a Pledge), whether voluntary or involuntary, or by operation of law.

1.2 Exhibit, Etc. References to “Exhibit” are, unless otherwise specified, to one of the Exhibits attached to this Agreement, and references to an “Article” or a “Section” are, unless otherwise specified, to one of the Articles or Sections of this Agreement. Each Exhibit attached hereto and referred to herein is hereby incorporated herein by reference.

ARTICLE II

Formation

2.1 Formation. The Partnership was formed as a limited partnership pursuant to the provisions of the Act, and all other pertinent laws of the State of Delaware, for the purposes and upon the terms and conditions hereinafter set forth. The Partners agree that the rights and liabilities of the Partners shall be as provided in the Act except as otherwise herein expressly provided. Promptly upon the execution and delivery hereof, the General Partner shall cause each notice,

instrument, document or certificate as may be required by applicable law and which may be necessary to enable the Partnership to continue to conduct its business, and to own its properties, under the Partnership name, to be filed or recorded in all appropriate public offices. Upon request of the General Partner, the Limited Partners shall execute any assumed or fictitious name certificate or certificates required by law to be filed in connection with the Partnership. The General Partner shall cause the execution and delivery of such additional documents and shall perform such additional acts consistent with the terms of this Agreement as may be necessary to comply with the requirements of law for the formation, qualification and operation of a limited partnership under the laws of the State of Delaware (it being understood that the General Partner shall be required to provide the Limited Partners with copies of any amended Certificates of Limited Partnership required to be filed under such laws only upon request) and for the qualification or reformation and operation of a limited partnership in each other jurisdiction in which the Partnership shall conduct business.

2.2 Name. The business of the Partnership shall be conducted under the name of Asset Investors Operating Partnership, L.P. or such other name as the General Partner may select, and all transactions of the Partnership, to the extent permitted by applicable law, shall be carried on and completed in such name (it being understood that the Partnership may adopt assumed or fictitious names in certain jurisdictions); provided, however, that the General Partner may not select the name (or any derivation thereof) of any Limited Partner without the prior consent of such Limited Partner.

2.3 Character of the Business. The purpose of the Partnership shall be to acquire, hold, own, sell, transfer, encumber, convey, exchange and otherwise dispose of or deal with Properties; to acquire, hold, own, develop, redevelop, construct, improve, maintain, operate, sell, lease, transfer, encumber, convey, exchange and otherwise dispose of or deal with real and personal property and interests therein of all kinds; to deal with any other assets and to undertake all activities as may be permitted for a REIT pursuant to the provisions of Section 856, et seq. of the Code; to acquire, hold, own, sell, transfer, encumber, convey, exchange and otherwise dispose of or deal with interests in any Entity engaged in any of the foregoing activities; to undertake such other activities as may be necessary, advisable, desirable or convenient to the business of the Partnership, and to engage in such other ancillary activities as shall be necessary or desirable to effectuate the foregoing purposes. The Partnership shall have all powers necessary or desirable to accomplish the purposes enumerated. In connection with the foregoing, but subject to all of the terms, covenants, conditions and limitations contained in this Agreement and any other agreement entered into by the Partnership, the Partnership shall have full power and authority to enter into, perform and carry out contracts of any kind, to borrow or lend money and to issue evidences of indebtedness, whether or not secured by mortgage, trust deed, pledge or other Lien, and, directly or indirectly, to acquire, hold, own, develop, redevelop, construct, improve, maintain, operate, sell, lease, transfer, encumber, convey, exchange and otherwise dispose of or deal with additional Properties or other assets necessary or useful in connection with its

business. Notwithstanding anything to the contrary set forth in this Section 2.3, the Partnership shall not engage in any activity in which a REIT is not permitted to engage pursuant to Section 856 et seq. of the Code.

2.4 Location of the Principal Place of Business. The location of the principal place of business of the Partnership shall be at 3600 South Yosemite Street, Suite 1000, Denver, Colorado 80237, or such other location as shall be selected from time to time by the General Partner in its sole discretion; provided, however, that the General Partner shall promptly notify the Limited Partners of any change in the location of the principal place of business of the Partnership.

2.5 Registered Agent and Registered Office. The Registered Agent of the Partnership shall be The Prentice-Hall Corporation System, Inc. or such other Person as the General Partner may select in its sole discretion. The Registered Office of the Partnership shall be c/o The Prentice-Hall Corporation System, Inc., 32 Loockerman Square, Suite L-100, Dover, Delaware 19901, County of Kent, or such other location as the General Partner may select in its sole and absolute discretion. The General Partner shall promptly notify the Limited Partners of any change in the Registered Agent or Registered Office of the Partnership.

ARTICLE III

Term

3.1 Commencement. The Partnership commenced business as a limited partnership on April 28, 1997 upon the filing of the Certificate with the Secretary of State of the State of Delaware.

3.2 Dissolution. The Partnership shall continue until dissolved and terminated upon the occurrence of the earliest of the following events:

(a) the dissolution, termination, retirement, resignation, or Bankruptcy of any General Partner, unless the Partnership is continued as provided in Section 9.1;

(b) the election to dissolve the Partnership made in writing by the General Partner;

(d) the dissolution of the Partnership as required by operation of law.

ARTICLE IV

Contributions to Capital

4.1 General Partner Capital Contributions.

(a) As of the date hereof, the General Partner shall contribute, or cause to be contributed, to the Partnership, all of the Property and

assets described on Exhibit A (the “Contributed General Partner Property”). To the extent the Contributed General Partner Property was financed by borrowings made by the General Partner or is otherwise subject to any liability, the Partnership shall take subject to or assume the obligations of the General Partner with respect to such indebtedness (or such other liability) concurrently with the contribution by the General Partner thereof (or, if such assumption is not possible, the Partnership shall obligate itself to the General Partner in an amount and on terms equal to such indebtedness or other liability). In exchange for the Contributed General Partner Property, the Partnership shall issue to the General Partner the number of Partnership Units set forth on Exhibit A.

(b) At any time, and from time to time, the General Partner may contribute to the capital of the Partnership, in exchange for 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. Except as otherwise provided in the succeeding sentence, in the event Partnership Units are issued by the Partnership to the General Partner in accordance with this Section 4.1(b), the number of Partnership Units so issued shall be determined by dividing (i) the aggregate amount of cash (in the case of contributed assets consisting of cash) plus 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 so contributed as of the Contribution Date (in the case of contributed assets not consisting of cash) by (ii) the Deemed Partnership Unit Value; provided, that to the

extent such contributed asset was financed by borrowings made by the General Partner or is otherwise subject to any liability, the Partnership shall take subject to or assume the obligations of the General Partner with respect to such indebtedness (or other liability) concurrently with the contribution by the General Partner of such asset (or, if such assumption is not possible, the Partnership shall obligate itself to the General Partner in an amount and on terms equal to such indebtedness or other liability). In the event Partnership Units are issued by the Partnership to the General Partner in exchange for the contribution of cash that was acquired by the General Partner in connection with the issuance of Off Market Shares, the number of Partnership Units so issued by the Partnership shall be equal to the number of Off Market Shares issued by the General Partner.

4.2 Limited Partner Capital Contributions.

(a) Each Initial Limited Partner shall contribute, as a contribution to the capital of the Partnership, the Property and other assets described on Exhibit B next to the name of such Initial Limited Partner. In exchange for such Contributed Limited Partner Property to be contributed by the Initial Limited Partners, the Partnership shall issue to each Initial Limited Partner the number of Partnership Units set forth on Exhibit B next to the name of each such Initial Limited Partner.

(b) At such time as additional Limited Partners are admitted to the Partnership or additional Partnership Units are issued to Limited Partners pursuant to Section 9.3, such Limited Partners shall contribute, or cause to be

contributed, as their initial (or additional, as the case may be) contribution to the capital of the Partnership, in exchange for Partnership Units, Property or other assets as shall be set forth in, and in accordance with and subject to the terms and conditions of, Contribution Agreements.

4.3 No Obligation to Make Further Capital Contributions; No Third Party Beneficiary. Except as set forth above, no Partner shall have any obligation to make contributions to the capital of the Partnership. No creditor or other third party having dealings with the Partnership shall have the right to enforce the right or obligation of any Partner to make contributions to the capital of the Partnership or to pursue any other right or remedy hereunder or at law or in equity, it being understood and agreed that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the parties hereto and their respective successors and assigns. None of the rights or obligations of the Partners herein set forth to make contributions to the capital of the Partnership shall be deemed an asset of the Partnership for any purpose by any creditor or other third party, nor may such rights or obligations be sold, transferred or assigned by the Partnership or pledged or encumbered by the Partnership to secure any debt or other obligation of the Partnership or of any of the Partners.

4.4 No Interest; No Return. No Partner shall be entitled to interest on its Capital Contribution or on such Partner’s Capital Account. Except as provided herein or by law, no Partner shall have any right to withdraw any part of its

Capital Account or to demand or receive the return of its Capital Contribution from the Partnership.

4.5 Capital Accounts.

(a) Each Partner, including a substitute Partner who shall pursuant to the provisions of this Agreement acquire a Partnership Unit, shall have a separate capital account maintained by the Partnership (a “Capital Account”). The Capital Account of each Partner shall be:

(i) credited with: the amount of cash contributed by such Partner to the capital of the Partnership; the initial Gross Asset Value (net of liabilities secured by such contributed asset that the Partnership assumes or takes subject to) of any other asset contributed by such Partner to the capital of the Partnership; the amount of unsecured liabilities of the Partnership assumed by such Partner; such Partner’s distributive share of Profits; and any other items in the nature of income or gain that are allocated to such Partner pursuant to Section 6.1, but excluding tax items described in Regulations Section 1.704-1(b)(4)(i); and

distributive share of Losses; in the case of the General Partner, payments of REIT Expenses by the Partnership; and any other items in the nature of expenses or losses that are allocated to such Partner pursuant to Section 6.1, but excluding tax items described in Regulations Section 1.704-1(b)(4)(i).

In the event that any or all of a Partner’s Partnership Units are transferred within the meaning of Regulations Section 1.704-1(b)(2)(iv)(l), the transferee thereof shall succeed to the Capital Account of the transferor to the extent that it relates to the Partnership Units so transferred.

In the event the Gross Asset Values of Partnership assets are adjusted pursuant to Section 4.5(b)(ii), the Capital Accounts of the Partners shall be adjusted to reflect the aggregate net adjustments as if the Partnership sold all of its property for its fair market values and recognized gain or loss for federal income tax purposes equal to the amount of such aggregate net adjustment.

The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Section 1.704-1(b) of the Regulations, and shall be interpreted and applied as provided in the Regulations.

(b) The term “Gross Asset Value” or “Gross Asset Values” means, with respect to any asset of the Partnership, such asset’s adjusted basis for federal income tax purposes, except as follows:

(i) the initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be (A) in the case of any asset

contributed by the General Partner and described on Exhibit A, the number of Partnership Units issued therefor multiplied by the greater of Book Value Per Share or the Current Per Share Market Price as of the Trading Day immediately preceding the Contribution Date, plus the amount of any liabilities assumed by the Partnership in connection with such contribution, or to which the contributed asset is otherwise subject (which Gross Asset Value is set forth on Exhibit A), (B) in the case of any asset contributed by an Initial Limited Partner and described on Exhibit B, the Gross Asset Value as set forth on Exhibit B, (C) in the case of any asset contributed after the date hereof by a Limited Partner, the gross fair market value of such asset (as reasonably determined by the General Partner) and (D) in the case of any other asset contributed after the date hereof by the General Partner, (X) if such asset was acquired by the General Partner after the date hereof directly or indirectly in exchange for the issuance of its Shares, the greater of Book Value Per Share or the Current Per Share Market Price as of the Trading Day immediately preceding the Contribution Date multiplied by the number of Shares issued in connection with such acquisition, (Y) if such asset was acquired by the General Partner after the date hereof for consideration other than its Shares and in contemplation of, or substantially contemporaneously with, the contribution thereof to the Partnership, the amount of such consideration plus, in the case of clauses (X) and (Y), (aa) the amount of any costs or expenses incurred, or reasonably expected to be incurred, by the General Partner in

connection with such acquisition and contribution, plus (bb) the amount of any liabilities assumed by the General Partner or to which such asset is subject, and (Z) if such asset was acquired by the General Partner after the date hereof and is not an asset referred to in clauses (X) or (Y), the gross fair market value of such asset (as reasonably determined by the General Partner) plus the amount of any costs or expenses incurred, or reasonably expected to be incurred, by the General Partner in connection with such acquisition and contribution;

(ii) the Gross Asset Values of all Partnership assets shall be adjusted to equal their respective gross fair market values, as reasonably determined by the General Partner, immediately prior to the following events:

(A) a Capital Contribution (other than a de minimis Capital Contribution, within the meaning of Section 1.704-l(b)(2)(iv)(f)(5)(i) of the Regulations) to the Partnership by a new or existing Partner as consideration for Partnership Units;

(B) the distribution by the Partnership to a Partner of more than a de minimis amount (within the meaning of Section l.704-l(b)(2)(iv)(f)(5)(ii) of the Regulations) of Partnership property as consideration for the redemption of Partnership Units; and

(iii) the Gross Asset Values of Partnership assets distributed to any Partner shall be the gross fair market values of such assets, as reasonably determined by the General Partner, as of the date of distribution.

At all times, Gross Asset Values shall be adjusted by any Depreciation taken into, account with respect to the Partnership’s assets for purposes of computing Profits and Losses. Any adjustment to the Gross Asset Values of Partnership property shall require an adjustment to the Partners’ Capital Accounts as described in Section 4.5(a).

4.6 Additional Funds.

(a) The Partnership may obtain funds from time to time (“Required Funds”) which, in the sole discretion of the General Partner, are necessary or desirable to meet the needs, obligations or requirements of the Partnership, or-to maintain adequate working capital, or to repay Partnership indebtedness, and to carry out the Partnership’s purposes, from the proceeds of Third Party Financing or Affiliate Financing, in each case pursuant to such terms and conditions and in such manner (including the engagement of brokers and/or investment bankers to assist in providing such financing) and amounts as the General Partner shall determine in its sole discretion to be in the best interests of the Partnership, and subject to the terms and conditions of this Agreement. Any and all funds required or expended, directly or indirectly, by the Partnership for capital expenditures may be obtained or replenished through Partnership borrowings. Any Third Party Financing or Affiliate Financing obtained by the General Partner on behalf of the Partnership may be convertible in whole or in part into Partnership Units (to be issued in accordance with Section 9.3),

and (i) may be secured by a mortgage or deed of trust, assignments and/or other Lien on or in respect of all or any portion of the assets of the Partnership or any other security made available by the Partnership, or may be unsecured, (ii) may include or be obtained through the public or private placement of debt and/or other instruments, domestic and foreign, (iii) may provide for the option to acquire Partnership Units (to be issued in accordance with Section 9.3), and (iv) may include or provide for interest rate swaps, credit enhancers, and/or other transactions or items in respect of such Third Party Financing or Affiliate Financing; provided, however, that in no event may the Partnership obtain any Affiliate Financing or Third Party Financing that is recourse to any Partner or any Affiliate, partner, shareholder, beneficiary, principal, officer, or director of any Partner without the consent of the affected Person or - Persons to whom such recourse may be had.

(b) To the extent the Partnership does not borrow all of the Required Funds (and whether or not the Partnership is able to borrow all or part of the Required Funds), the General Partner (or in Affiliate thereof) may (i) itself borrow such Required Funds, in which case the General Partner shall lend such Required Funds to the Partnership on the same economic terms and otherwise on substantially identical terms, or (ii) raise such Required Funds in any other manner (including, without limitation, by an offering of the General Partner’s capital stock), in which case the General Partner shall contribute lo the Partnership as an additional Capital Contribution the amount of the Required Funds so raised (“ Contributed Funds”) (hereinafter, each date on which the General Partner so contributes

Contributed Funds pursuant to this paragraph (b) is referred to as an “Adjustment Date”). In the event the General Partner advances Required Funds to the Partnership pursuant to this paragraph (b), the Partnership shall assume and pay (or reflect on its books as additional Required Funds) the expenses (including any applicable under-writing discounts) incurred by the General Partner (or such Affiliate) in connection with the raising of such Required Funds through a public offering of its securities or otherwise. In addition, in the event the General Partner advances Required Funds to the Partnership as Contributed Funds pursuant to this paragraph (b), additional Partnership Units shall be issued to the General Partner to reflect its contribution of the Contributed Funds. The number of Partnership Units so issued shall be determined by dividing the amount of Contributed Funds by the Deemed Partnership Unit Value.

ARTICLE V

Representations and Warranties

5.1 Representations and Warranties by the General Partner. The General Partner represents and warrants to the Limited Partners and to the Partnership that (i) it is a corporation duly formed, validly existing and in good standing under the laws of the State of Maryland, with full right, corporate power and authority to fulfill all of its obligations hereunder or as contemplated herein; (ii) all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action; (iii) this Agreement has been duly executed and

delivered by and is the legal, valid and binding obligation of the General Partner, and is enforceable in accordance with its terms, except as such enforcement may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or other laws of general application affecting the rights and remedies of creditors and (b) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law); (iv) no authorization, approval, consent or order of any court or governmental authority or agency or any other entity is required in connection with the execution and delivery of this Agreement by the General Partner, except as may have been received prior to the date of this Agreement; (v) the execution and delivery of this Agreement by the General Partner and the consummation of the transactions contemplated hereby will not conflict with or constitute a breach or violation of, or default under, any contract, indenture, mortgage, loan agreement, note, lease, joint venture or partnership agreement or other instrument or agreement to which the General Partner is a party; (vi) the Partnership Units, upon payment of the consideration therefore pursuant to this Agreement, will be validly issued, fully paid and, except as otherwise provided in accordance with applicable law, non-assessable; and (vii) there is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the General Partner, threatened against the General Partner that, if determined adversely to the General Partner, could reasonably be expected to (A) result in any adverse change in the condition, financial or otherwise, of the General Partner, or (B) adversely affect the ability of the General

Partner to consummate the transactions contemplated hereby or perform its obligations hereunder.

5.2 Representations and Warranties by the Limited Partners. Each Limited Partner, for itself only, represents and warrants to the General Partner, the other Limited Partners and the Partnership that (i) all transactions contemplated by this Agreement to be performed by such Limited Partner have been duly authorized by all necessary action; and (ii) this Agreement is binding upon, and enforceable against, such Limited Partner in accordance with its terms, except as such enforcement may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or other laws of general application affecting the rights and remedies of creditors and (b) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).

5.3 Acknowledgment by Each Partner. Except as otherwise provided herein, each Partner hereby acknowledges that (i) no representations as to potential profit, cash flows or yield, if any, in respect of the Partnership or any one or more or all of the Properties or other assets of the Partnership have been made by any Partner or any employee or representative or Affiliate of any Partner, and (ii) any projections or any other information, including, without limitation, financial and descriptive information and documentation, which may have been in any manner submitted to such Partner shall not constitute any representation or warranty, express or implied.

ARTICLE VI

Allocations, Distributions and Other

Tax and Accounting Matters

6.1 Allocations.

(a) For the purpose of this Agreement, the terms “Profits” and “Losses” mean, respectively, for each Partnership Fiscal Year or other period, the Partnership’s taxable income or loss for such Partnership Fiscal Year or other period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), adjusted as follows:

(i) any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this Section 6.1(a) shall be added to such taxable income or loss;

(ii) in lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Partnership Fiscal Year or other period;

(iii) any items that are specially allocated pursuant to Section 6.1(d) and the gross income allocation under Section 6.1(b) shall not be taken into account in computing Profits or Losses; and

(iv) any expenditures of the Partnership described in Section 705(a)(2)(B) of the Code (or treated as such under Regulation Section 1.704-l(b)(2)(iv)(i)) and not otherwise taken into account in computing Profits or Losses pursuant to this Section 6.1(a) shall be deducted from such taxable income or loss.

(b) Except as otherwise provided in Section 6.1(d) and this Section 6.1(b), the Profits and Losses of the Partnership (and each item thereof) for each Partnership Fiscal Year (including the Partnership Fiscal Year beginning on April 28, 1997 and ending on December 31, 1997) shall be allocated among the Partners in accordance with their proportionate ownership of Partnership Units. Not withstanding the foregoing, an amount of gross income shall be allocated to the General Partner for each Partnership Fiscal Year (prior to any allocation of Profits and Losses for such Partnership Fiscal Year) equal to the total REIT Expenses paid to or on behalf of the General Partner pursuant to Section 7.1 for the current and all prior Partnership Fiscal Year less all amounts of gross income previously allocated to the General Partner pursuant to this sentence.

(c) For the purpose of Section 6.l(b), gain or loss resulting from any disposition of Partnership property shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property for federal income tax purposes differs from its Gross Asset Value.

(d) Notwithstanding the foregoing provisions of this Section 6.1, the following provisions shall apply:

(i) A Partner shall not receive an allocation of any Partnership deduction that would result in total loss allocations attributable to “Nonrecourse Liabilities” (as defined in Regulations Section 1.704-2(b)(3)) in excess of such Partner’s share of Minimum Gain (as determined under Regulations Section 1.704-2(g)). The term “Minimum Gain” means an amount determined in accordance with Regulations Section 1.704-2(d) by computing, with respect to each Nonrecourse Liability of the Partnership, the amount of gain, if any, that the Partnership would realize if it disposed of the property subject to such liability for no consideration other than full satisfaction thereof, and by then aggregating the amounts so computed. If the Partnership makes a distribution allocable to the proceeds of a Nonrecourse Liability, in accordance with Regulation Section 1.704-2(h) the distribution will be treated as allocable to an increase in Partnership Minimum Gain to the extent the increase results from encumbering Partnership property with aggregate Nonrecourse Liabilities that exceed the property’s adjusted tax basis. If there is a net decrease in Partnership Minimum Gain for a Partnership Fiscal Year, in accordance with Regulations Section 1.704-2(f) and the exceptions contained therein, the Partners shall be allocated items of Partnership income and gain for such Partnership Fiscal Year (and, if necessary, for subsequent Partnership Fiscal Years) equal to the Partners’ respective shares of the net decrease in Minimum

Gain within the meaning of Regulations Section 1.704-2(g)(2) (the “Minimum Gain Chargeback”). The items to be allocated pursuant to this Section 6.1(d)(i) shall be determined in accordance with Regulations Sections 1.704-2(f) and (j).

(ii) Any item of “Partner Nonrecourse Deduction” (as defined in Regulations Section 1.704-2(i)) with respect to a “Partner Nonrecourse Debt” (as defined in Regulations Section 1.704-2(b)(4)) shall be allocated to the Partner or Partners who bear the economic risk of loss for such Partner Nonrecourse Debt in accordance with Regulations Section 1.704-2(i)(1). If the Partnership makes a distribution allocable to the proceeds of a Partner Nonrecourse Debt, in accordance with Regulation Section 1.704- 2(i)(6), the distribution will be treated as allocable to an increase in Partner Minimum Gain to the extent the increase results from encumbering Partnership property with aggregate Partner Nonrecourse Debt that exceeds the property’s adjusted tax basis. Subject to Section 6.l(d)(i), but notwithstanding any other provision of this Agreement, in the event that there is a net decrease in Minimum Gain attributable to a Partner Nonrecourse Debt (such Minimum Gain being hereinafter referred to as “Partner Nonrecourse Debt Minimum Gain”) for a Partnership Fiscal Year, then after taking into account allocations pursuant to Section 6.1(d)(i), but before any other allocations are made for such taxable year, and subject to the exceptions set forth in Regulations Section 1.704-2(i)(4), each Partner with a share of Partner Nonrecourse Debt

Minimum Gain at the beginning of such Partnership Fiscal Year shall be allocated items of income and gain for such Partnership Fiscal Year (and, if necessary, for subsequent Partnership Fiscal Years) equal to such Partner’s share of the net decrease in Partner Nonrecourse Debt Minimum Gain as determined in a manner consistent with the provisions of Regulations Section 1.704-2(g)(2). The items to be allocated pursuant to this Section 6.1(d)(ii) shall be determined in accordance with Regulations Sections 1.704-2(i)(4) and (j).

(iii) Pursuant to Regulations Section 1.752-3(a)(3), for the purpose of determining each Partner’s share of excess nonrecourse liabilities of the Partnership, and solely for such purpose, each Partner’s - interest in Partnership profits is hereby specified to be the quotient of (i) the number of Partnership Units then held by such Partner, and (ii) the aggregate amount of Partnership Units then outstanding.

(iv) No Limited Partner shall be allocated any item of deduction or loss of the Partnership if such allocation would cause such Limited Partner’s Capital Account to become negative by more than the sum of (i) any amount such Limited Partner is obligated to restore upon liquidation of the Partnership, plus (ii) such Limited Partner’s share of the Partnership’s Minimum Gain and Partner Nonrecourse Debt Minimum Gain. An item of deduction or loss that cannot be allocated to a Limited Partner pursuant to this Section 6.1(d)(iv) shall be allocated to the General Partner. For this purpose,

in determining the Capital Account balance of such Limited Partner, the items described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5), and (6) shall be taken into account. In the event that (A) any Limited Partner unexpectedly receives any adjustment, allocation, or distribution described in Regulations Section 1.704-l(b)(2)(ii)(d)(4), (5), or (6), and (B) such adjustment, allocation, or distribution causes or increases a deficit balance (net of amounts which such Limited Partner is obligated to restore or deemed obligated to restore under Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5) and determined after taking into account any adjustments, allocations, or distributions described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6) that, as of the end of the Partnership Fiscal Year, reasonably are expected to be made to such Limited Partner) in such Limited Partner’s Capital Account as of the end of the Partnership Fiscal Year to which such adjustment, allocation, or distribution relates, then items of Gross Income (consisting of a pro rata portion of each item of Gross Income) for such Partnership Fiscal Year and each subsequent Partnership Fiscal Year shall be allocated to such Limited Partner until such deficit balance or increase in such deficit balance, as the case may be, has been eliminated. In the event that this Section 6.1(d)(iv) and Section 6.1(d)(i) and/or (ii) apply, Section 6.1(d)(i) and/or (ii) shall be applied prior to this Section 6.1(d)(iv).

(e) In accordance with Sections 704(b) and 704(c) of the Code and the Regulations thereunder, income, gain, loss, and deduction with respect to any

property contributed to the capital of the Partnership shall, solely for federal income tax purposes, be allocated among the Partners so as to take account of any variation between the adjusted basis of such property to the Partnership for federal income tax purposes and the initial Gross Asset Value of such property. If the Gross Asset Value of any Partnership property is adjusted as described in the definition of Gross Asset Value, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and the Gross Asset Value of such asset in the manner prescribed under Sections 704(b) and 704(c) of the Code and the Regulations thereunder. In furtherance of the foregoing, the General Partner shall determine, in its sole and absolute discretion, which of the methods prescribed in Regulation § 1.704-3 or the equivalent successor provision(s) of proposed, temporary or final Regulations the Partnership shall employ.

(f) Notwithstanding anything to the contrary contained in this Section 6.1, the allocation of Profits and Losses for any Partnership Fiscal Year during which a Person acquires a Partnership Unit (other than upon formation of the Partnership) pursuant to Section 4.6(b) or otherwise, shall take into account the Partners’ varying interests for such Partnership Fiscal Year pursuant to any method permissible under Section 706 of the Code that is selected by the General Partner (notwithstanding any agreement between the assignor and assignee of such Partnership Unit although the General Partner may recognize any such agreement), which method

may take into account the date on which the Transfer or an agreement to Transfer becomes irrevocable pursuant to its terms, as determined by the General Partner.

(g) In the event of a sale or exchange of any outstanding Partnership Unit or upon the death of a Partner, if the Partnership has not theretofore elected, pursuant to Section 754 of the Code, to adjust the basis of Partnership property, the General Partner may, in the exercise of its reasonable discretion, cause the Partnership to elect pursuant to Section 754 of the Code to adjust the basis of Partnership property. In addition, in the event of a distribution referred to in Section 734(b) of the Code, if the Partnership has not theretofore so elected, the General Partner may, in the exercise of its reasonable discretion, cause the Partnership to elect, pursuant to Section 754 of the Code, to adjust the basis of Partnership property. Except as provided in Regulations Section 1.704-1(b)(2)(iv)(m), such adjustment shall not be reflected in the Partners’ Capital Accounts and shall be effective solely for federal and (if applicable) state and local income tax purposes. Each Partner hereby agrees to provide the Partnership with all information necessary to give effect to such election. With respect to such election:

(i) Any change in the amount of the Depreciation deducted by the Partnership and any change in the gain or loss of the Partnership, for federal income tax purposes, resulting from an adjustment pursuant to Section 743(b) of the Code shall be allocated entirely to the transferee of the Partnership Units so transferred. Neither the Capital Contribution obligations of, nor the Partnership Units of, nor the amount of

any cash distributions to, the Partners shall be affected as a result of such election, and except as provided in Regulations Section 1.704-l(b)(2)(iv)(m), the making, of such election shall have no effect except for federal and (if applicable) state and local income tax purposes.

(ii) Solely for federal and (if applicable) state and local income tax purposes and not for the purpose of maintaining the Partners’ Capital Accounts (except as provided in Regulations Section 1.704-l(b)(2)(iv)(m)), the Partnership shall keep a written record for those assets, the bases of which are adjusted as a result of such election, and the amount at which such assets are carried on such record shall be debited (in the case of an increase in basis) or credited (in the case of a decrease in basis) by the amount of such basis adjustment. Any change in the amount of the Depreciation deducted by the Partnership and any change in the gain or loss of the Partnership, for federal and (if applicable) state and local income tax purposes, attributable to the basis adjustment made as a result of such election shall be debited or credited, as the case may be, on such record.

(h) The Profits, Losses, gains, deductions, and credits of the Partnership (and all items thereof) for each Partnership Fiscal Year shall be determined in accordance with the accounting method followed by the Partnership for federal income tax purposes.

(i) Except as provided in Sections 6.1(e) and 6.l(g), for federal income tax purposes, each item of income, gain, loss, or deduction shall be

allocated among the Partners in the same manner as its correlative item of income, gain, loss, or deduction, as determined for purposes of Profits and Losses, has been allocated pursuant to this Section 6.1.

(j) To the extent permitted by Regulations Sections 1.704-2(h)(3) and 1.704-2(i)(6), the General Partner shall endeavor to treat distributions as having been made from the proceeds of Nonrecourse Liabilities or Partner Nonrecourse Debt only to the extent that such distributions would cause or increase a deficit balance in any Partner’s Capital Account that exceeds the amount such Partner is otherwise obligated to restore (within the meaning of Regulations Section 1.704-1(b)(2)(ii)(c)) as of the end of the Partnership’s taxable year in which the distribution occurs.

(k) If any Partner sells or otherwise disposes of any property, directly or indirectly, to the Partnership and, as a result thereof, gain on a subsequent disposition of such property by the Partnership is reduced pursuant to Section 267(d) of the Code, then, to the extent permitted by applicable law, gain for federal income tax purposes attributable to such subsequent disposition shall first be allocated among the Partners other than the selling Partner in an amount equal to such Partners’ allocations of gain, as determined for purposes of Profits and Losses, on the property pursuant to this Section 6.1, and any remaining gain for federal income tax purposes shall be allocated to the selling Partner.

6.2 Distributions. Except with respect to a liquidation of the Partnership following a dissolution pursuant to Section 3.2, the General Partner shall

cause the Partnership to distribute all or a portion of Net Operating Cash Flow to the Partners from time to time as determined by the General Partner, but in any event not less frequently than quarterly, in such amounts as the General Partner shall determine in its sole discretion; provided, however, that all such distributions shall be made pro rata in accordance with the outstanding Partnership Units as of the date that coincides with the date that is the record date for the payment of dividends on the Shares. No distributions of Net Operating Cash Flow shall be made until June 30, 1997. In no event may a Partner receive a distribution of Net Operating Cash Flow with respect to a Partnership Unit to the extent such Partner is entitled to receive a distribution out of such Net Operating Cash Flow with respect to a Share for which such Partnership Unit has been converted, and the General partner may take such action as may be appropriate, in its sole discretion, to assure compliance with the foregoing.

6.3 Books of Account. At all times during the continuance of the Partnership, the General Partner shall maintain or cause to be maintained full, true, complete and correct books of account in accordance with GAAP wherein shall be entered particulars of all monies, goods or effects belonging to or owing to or by the Partnership, or paid, received, sold or purchased in the course of the Partnership’s business, and all of such other transactions, matters and things relating to the business of the Partnership as are usually entered in books of account kept by Persons engaged in a business of a like kind and character. In addition, the Partnership shall keep all records as required to be kept pursuant to the Act. The books and records of account shall be kept at the principal office of the Partnership, and each Partner and its

representatives shall at all reasonable times have access to such books and records and the right to inspect and copy the same at such Partner’s expense.

6.4 Reports. Within ninety (90) days after the end of each Partnership Fiscal Year, the Partnership shall cause to be prepared and transmitted to each Partner an annual report of the Partnership relating to the previous Partnership Fiscal Year containing a balance sheet as of the year then ended, a statement of financial condition as of the year then ended, and statements of operations, cash flow and Partnership equity for the year then ended, which annual statements shall be prepared in accordance with GAAP and shall be audited by the Accountants. The Partnership shall also cause to be prepared and transmitted to each Partner within forty-five (45) days after the end of each of the first three (3) quarters of each Partnership Fiscal Year, a quarterly unaudited report containing a balance sheet; a statement of the Partnership’s financial condition and statements of operations, cash flow and Partnership equity, in each case relating to the fiscal quarter then just ended, and prepared in accordance with GAAP. The Partnership shall further cause to be prepared and transmitted to the General Partner (i) such reports and/or information as are necessary for the General Partner to fulfill its obligations under the Securities Act, the Exchange Act, applicable stock exchange rules and any other regulations to which the General Partner or the Partnership may be subject, and (ii) such other reports and/or information as are necessary for the General Partner to determine and maintain its qualification as a REIT under the REIT Requirements, the earnings and profits of the General Partner derived from the Partnership, its liability for a tax as a

consequence of its Partnership Interest and distributive share of taxable income or loss and items thereof, in each case, in a manner that will permit the General Partner to comply with its obligations to file federal, state and local tax returns and information returns and to provide its shareholders with tax information. The General Partner shall provide to each Limited Partner copies of all reports it provides to its stockholders at the same time such reports are distributed to such stockholders. The General Partner shall also promptly notify the Limited Partners of all actions taken by the General Partner for which it has obtained the Consent of the Limited Partners.

6.5 Audits. Not less frequently than annually, the books and records of the Partnership shall be audited by the Accountants.

6.6 Tax Returns and Elections.

(a) Consistent with all other provisions of this Agreement, the General Partner shall determine the methods to be used in the preparation of federal, state and local income and other tax returns for the Partnership in connection with all items of income and expense, including, but not limited to, valuation of assets, the methods of Depreciation and cost recovery, elections, credits and tax accounting methods and procedures.

(b) The Partnership shall timely cause to be prepared and transmitted to the Partners federal and appropriate state and local Partnership Income Tax Schedules “K-1,” or any substitute therefor, with respect to each Partnership Fiscal Year on appropriate prescribed forms. Beginning with its taxable year ending December 31, 1997, the Partnership shall make reasonable efforts to prepare and

submit such forms before the due date for filing federal income tax returns for the fiscal year in question (determined without extensions), and shall in any event prepare and submit such forms on or before July 15 of the year following the fiscal year in question.

(c) The General Partner and each Limited Partner hereto intend that the Partnership be classified as a partnership for federal tax purposes and the General Partner shall make no elections contrary to such classification. The General Partner shall, for and on behalf of the Partnership, take all steps as may be required to maintain the Partnership’s classification as a partnership for federal tax purposes, including affirmatively or protectively filing Internal Revenue Service Form 8832 if such filing is required under Section 301.7701-3 of the Regulations. By executing this Agreement, each of the parties hereto consents to the authority of the General Partner to make any such election and shall cooperate in the making of such election (including providing consents and other authorizations that may be required).

6.7 Tax Matters Partner. The General Partner is hereby designated as the Tax Matters Partner for the Partnership within the meaning of Section 6231(a)( 7) of the Code; provided, however, (i) in exercising its authority as Tax Matters Partner it shall be limited by the provisions of this Agreement affecting tax aspects of the Partnership; (ii) the General Partner shall give prompt notice to the Limited Partners of the receipt of any written notice that the Internal Revenue Service or any state or local taxing authority intends to examine Partnership income tax returns for any year, receipt of written notice of the beginning of an administrative

proceeding at the Partnership level relating to the Partnership under Section 6223 of the Code, receipt of written notice of the final Partnership administrative adjustment relating to the Partnership pursuant to Section 6223 of the Code, and receipt of any request from the Internal Revenue Service for waiver of any applicable statute of limitations with respect to the filing of any tax return by the Partnership; (iii) the General Partner shall promptly notify the Limited Partners if the General Partner does not intend to file for judicial review with respect to the Partnership; and (iv) the Tax Matters Partner shall not be entitled to bind a Limited Partner by any settlement agreement (within the meaning of Section 6224 of the Code) unless such Limited Partner consents thereto in writing and shall notify the Limited Partners in a manner and at such time as is sufficient to allow the Limited Partners, to exercise their rights pursuant to Section 6224(c)(3) of the Code.

6.8 Withholding. Each Partner hereby authorizes the Partnership to withhold from or pay on behalf of or with respect to such Partner any amount of federal, state, local, or foreign taxes that the General Partner determines the Partnership is required to withhold or pay with respect to any amount distributable or allocable to such Partner pursuant to this Agreement, including, without limitation, any taxes required to be withheld or paid by the Partnership pursuant to Sections 1441,1442, 1445 or 1446 of the Code. Any amount paid on behalf of or with respect to a Partner shall constitute a loan by the Partnership to such Partner, which loan shall be due within fifteen (15) days after repayment is demanded of the Partner in question, and shall be repaid through withholding of subsequent

distributions to such Partner (which withheld distributions shall nevertheless be deemed to have been distributed to such Partner for all purposes of this Agreement). Any amounts payable by a Limited Partner hereunder shall bear interest at the lesser of (i) the base rate on corporate loans at large United States money center commercial banks, as published from time to time in The Wall Street Journal or (ii) the maximum lawful rate of interest on such obligation, such interest to accrue from the date such amount is due (i.e., fifteen (15) days after demand) until such amount is paid in full. To the extent the payment or accrual of withholding tax results in a federal, state or local tax credit to the Partnership, such credit shall be allocated to the Partner to whose distribution the tax is attributable.

ARTICLE VII

Rights, Duties and Restrictions of the General Partner

7.1 Expenditures by Partnership. The General Partner is hereby authorized to pay compensation for accounting, administrative, legal, technical, management and other services rendered to the Partnership and any other expenses necessary for the prudent operation of the General Partner and the Partnership. All of the aforesaid expenditures shall be made on behalf of the Partnership (whether incurred by the General Partner or the Partnership), and the General Partner shall be entitled to reimbursement by the Partnership for any expenditures incurred by it on behalf of the Partnership which shall have been made other than out of the funds of the Partnership. The Partnership shall also assume, be liable for and pay when due

all Administrative Expenses and REIT Expenses, and the General Partner may pay such Expenses on behalf of the Partnership and be reimbursed therefor.

7.2. Powers and Duties of General Partner. The General Partner shall be responsible for the management of the Partnership’s business and affairs. Except as otherwise herein expressly provided, the General Partner shall have, and is hereby granted, full and complete power, authority and discretion to take such action for and on behalf of the Partnership and in its name as the General Partner shall, in its sole and absolute discretion, deem necessary or appropriate to carry out the purposes for which the Partnership was organized. Except as otherwise expressly provided herein, the General Partner shall have the right, power and authority:

(a) To manage, control, hold, invest, lend, reinvest, acquire by purchase, lease or otherwise sell, contract to purchase or sell, grant, obtain or exercise options to purchase, options to sell or conversion rights, assign, transfer, convey, deliver, endorse, exchange, pledge, mortgage or otherwise encumber, abandon, improve, repair, maintain, operate, insure, lease for any term and otherwise deal with any and all property of whatsoever kind and nature, and wheresoever situated, in furtherance of the purposes of the Partnership and to sell or otherwise dispose of all or substantially all of the assets of the Partnership;

(b) To acquire, directly or indirectly, interests in real or personal property of any kind and of any type, and any and all kinds of interests therein, and to determine the manner in which title thereto is to be held; to manage, insure against loss, protect and subdivide any of the real or personal property,

interests therein or parts thereof; to improve, develop or redevelop any such real or personal property; to participate in the ownership and development of any such property; to dedicate for public use, to vacate any subdivisions or parts thereof, to resubdivide, to contract to sell, to grant options to purchase or lease and to sell on any terms any such real or personal property; to convey, to mortgage, pledge or otherwise encumber any such property, or any part thereof; to lease any such property or any part thereof from time to time, upon any terms and for any period of time, and to renew or extend leases, to amend, change or modify the terms and provisions of any leases and to grant options to lease and options to renew leases and options to purchase any such property; to partition or to exchange any real property, or any part thereof, for other real or personal property; to grant easements or charges of any kind; to release, convey or assign any right, title or interest in or about or easement appurtenant to any property or any part thereof; to construct and reconstruct, remodel, alter, repair, add to or take from buildings on any real property; to insure any Person having an interest in or responsibility for the care, management or repair of any such property;

(c) To employ, engage or contract with or dismiss from employment or engagement Persons to the extent deemed necessary by the General Partner for the operation and management of the Partnership business, including but not limited to, employees, contractors, subcontractors, engineers, architects, surveyors, mechanics, consultants, accountants, attorneys, insurance brokers, real estate brokers and others;

(d) To enter into contracts on behalf of the Partnership;

(e) To borrow or lend money, procure loans and advances from any Person for Partnership purposes, and to apply for and secure, from any Person, credit or accommodations; to contract liabilities and obligations, direct or contingent and of every kind and nature, with or without security; and to repay, discharge, settle, adjust, compromise or liquidate any such loan, advance, credit, obligation or liability (including by deeding property to a lender in lieu of foreclosure);

(f) To pledge, hypothecate, mortgage, assign, deposit, deliver, enter into sale and leaseback arrangements or otherwise give as security or as additional or substitute security, or enter into arrangements for sale or other disposition; any and all Partnership property, tangible or intangible, including, but not limited to, ownership interests in mortgage loans and mortgage loan securitizations and real estate and beneficial interests in land trusts, and to make substitutions thereof, and to receive any proceeds thereof upon the release or surrender thereof; to sign, execute and deliver any and all assignments, deeds and other contracts and instruments in writing; to authorize, give, make, procure, accept and receive moneys, payments, property, notices, demands, vouchers, receipts, releases, compromises and adjustments; to waive notices, demands, protests and authorize and execute waivers of every kind and nature; to enter into, make, execute, deliver and receive written agreements, undertakings and instruments of every kind and nature; to give oral instructions and make oral agreements; and generally to do any and all other acts and

things incidental to any of the foregoing or with reference to any dealings or transactions which any attorney may deem necessary, proper or advisable;

(g) To acquire and enter into any contract of insurance which the General Partner deems necessary or appropriate for the protection of the Partnership or any Affiliate thereof, for the conservation of the Partnership’s assets (or the assets of any Affiliate thereof) or for any purpose convenient or beneficial to the Partnership or any Affiliate thereof;

(h) To conduct any and all banking transactions on behalf of the Partnership; to open and maintain checking, savings and other accounts with such institutions as the General Partner shall deem appropriate; to draw, sign, execute, accept, endorse, guarantee, deliver, receive and pay any checks, drafts, bills of exchange, acceptances, notes, obligations, undertakings and other instruments for or relating to the payment of money in, into or from any account in the Partnership’s name; to execute, procure, consent to and authorize extensions and renewals of the same; to make deposits and withdraw the same and to negotiate or discount commercial paper, acceptances, negotiable instruments, bills of exchange and dollar drafts;

(i) To demand, sue for, receive, and otherwise take steps to collect or recover all debts, rents, proceeds, interests, dividends, goods, chattels, income from property, damages and all other property to which the Partnership may be entitled or which are or may become due the Partnership from any Person; to commence, prosecute or enforce, or to defend, answer or oppose, contest and

abandon all legal proceedings in which the Partnership is or may hereafter be interested; and to settle, compromise or submit to arbitration any accounts, debts, claims, disputes and matters which may arise between the Partnership and any other Person and to grant an extension of time for the payment or satisfaction thereof on any terms, with or without security;

(j) To make arrangements for financing, including the taking of all action deemed necessary or appropriate by the General Partner to cause any approved loans to be closed;

(k) To take all reasonable measures necessary to insure compliance by the Partnership with applicable arrangements, and other contractual obligations and arrangements entered into by the Partnership from time to time in accordance with the provisions of this Agreement, including periodic reports as required to lenders and using all due diligence to insure that the Partnership is in compliance with its contractual obligations;

(l) To maintain the Partnership’s books and records;

(m) To delegate to Third Parties or Affiliates any activity that the Partnership could itself undertake, and to reimburse such other Persons for all costs or expenses reasonably incurred by such Persons (whether directly or indirectly) in connection with the performance of such delegated duties;

(n) To prepare and deliver, or cause to be prepared and delivered by the Accountants, all financial and other reports with respect to the

operations of the Partnership, and to prepare and file all federal and state tax returns and reports;

(o) To enter into Contribution Agreements with Persons who may become additional Limited Partners on such terms as the General Partner, in its sole discretion, deems appropriate;

(p) To grant to Persons who may become additional Limited Partners registration rights with respect to the Shares that may be issued to such Persons upon the exchange of Partnership Units pursuant to Article XI, on such terms as the General Partner, in its sole discretion, deems appropriate; and

(q) To establish a stock option plan, stock appreciation right plan or other benefit plan for the benefit of employees of the Partnership or its Affiliates on such terms as the General Partner, in its sole discretion, deems appropriate.

Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to Third Parties or Affiliates, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to Third Parties or Affiliates or to undertake any individual liability or obligation on behalf of the Partnership.

7.3 Amendment of Agreement. The General Partner shall not, without the prior Consent of the Limited Partners, on behalf of the Partnership, amend, modify or terminate this Agreement other than to reflect (A) the admission of additional Limited Partners pursuant to Section 9.3, (B) the making of additional Capital Contributions and the issuance of additional Partnership Units by reason thereof, all in accordance with the terms of this Agreement, (C) the withdrawal or assignment of the interest of any Partner in accordance with the terms of this Agreement, (D) any changes necessary to satisfy the REIT Requirements or to maintain the status of the Partnership as a partnership for federal income tax purposes or (E) such other changes as shall be necessary from time to time to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein or to make any other modification with respect to matters or questions arising under this Agreement to more fully reflect the intent of this Agreement. Notwithstanding the foregoing, this Agreement shall not be modified or amended in such manner as to reduce the interest of any Partner in the Partnership, to reduce any Partner’s share of distributions made by the Partnership, to create any obligations for any Partner or to deprive any Partner of (or otherwise impair) any other rights it may have under this Agreement unless, in each such case, such reduction, deprivation or impairment shall apply to all the then Partners of the Partnership on a uniform or pro rata basis, as applicable, or unless the affected Partner shall execute or consent in writing to the modification or amendment in question.

7.4 General Partner Participation. To the extent feasible (after taking into account contractual restrictions and the incurrence of undue expense), the General Partner agrees that all activities and business operations of the General Partner, including, but not limited to, activities pertaining to the acquisition, development, redevelopment and ownership of properties, shall be conducted directly or indirectly through the Partnership. Without the Consent of the Limited Partners, to the extent feasible (after taking into account contractual restrictions and the incurrence of undue expense), the General Partner shall not, directly or indirectly, participate in or otherwise acquire any interest in any real or personal property other than through the Partnership, unless the General Partner upon the acquisition of such interest contributes such interest to the Partnership in accordance with the provisions of this Agreement.

7.5 Proscriptions. The General Partner shall not have the authority to:

(a) Do any act in contravention of this Agreement;

(b) Possess any Partnership property or assign rights in specific Partnership property for other than Partnership purposes; or

(c) Do any act in contravention of applicable law. Nothing herein contained shall impose any obligation on any Person doing business with the Partnership to inquire as to whether or not the General Partner has properly exercised its authority in executing any contract, lease, mortgage, deed or any other

instrument or document on behalf of the Partnership, and any such third Person shall be fully protected in relying upon such authority.

7.6 Waiver and Indemnification. Neither the General Partner nor any of its Affiliates, directors, officers, shareholders, nor any Person acting on its or their behalf pursuant hereto, shall be liable, responsible or accountable in damages or otherwise to the Partnership or to my Partner for any acts or omissions performed or omitted to be performed by them within the scope of the authority conferred upon the General Partner by this Agreement and the Act, provided that the General Partner’s or such other Person’s conduct or omission to act was taken in good faith and in the belief that such conduct or omission was in, or not opposed to, the best interests of the Partnership and, provided further, that the General Partner or such other Person was not guilty of fraud, willful misconduct or gross negligence. The General Partner acknowledges that it owes fiduciary duties both to its shareholders and to the Limited Partners and it shall use its reasonable efforts to discharge such duties to each; provided, however, that in the event of a conflict between the interests of the shareholders of the General Partner and the interests of the Limited Partners, the Limited Partners agree that the General Partner shall discharge its fiduciary duties to the Limited Partners by acting in the best interests of the General Partner’s shareholders. The Partnership shall, and hereby does, indemnify and hold harmless the General Partner and its Affiliates, their respective directors, officers, shareholders and any other individual acting on its or their behalf to the extent such Persons would be indemnified by the General Partner pursuant to Article VI Section 7 (or any succeeding

provision) of the Charter of the General Partner if such persons were directors, officers, agents or employees of the General Partner; provided, however, that no Partner shall have any personal liability with respect to the foregoing indemnification, any such indemnification to be satisfied solely out of the assets of the Partnership. The Partnership shall, and hereby does, indemnify each Limited Partner and its Affiliates, their respective directors, officers, partners, shareholders and any other individual acting on its or their behalf, from and against any costs (including costs of defense) incurred by it as a result of any litigation in which any Limited Partner is named as a defendant and relating to the operations of the Partnership, unless such costs are the result of misconduct on the part of, or a breach of this agreement by, such Limited Partner; provided, however, that no Partner shall have any personal liability with respect to the foregoing indemnification, any such indemnification to be satisfied solely out of the assets of the Partnership.

7.7 Limitation of Liability of Directors, Shareholders and Officers of the General Partner. Any obligation or liability whatsoever of the General Partner which may arise at any time under this Agreement or any other instrument, transaction or undertaking contemplated hereby shall be satisfied, if at all, out of the assets of the General Partner or the Partnership only; No such obligation or liability shall be personally binding upon, nor shall resort for the enforcement thereof be had to, any of the General Partner’s directors, shareholders, officers, employees or agents, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise.

ARTICLE VII

Dissolution, Liquidation and Winding-Up

8.1 Accounting. In the event of the dissolution, liquidation and winding-up of the Partnership, a proper accounting (which shall be certified) shall be made of the Capital Account of each Partner and of the Profits or Losses of the Partnership from the date of the last previous accounting to the date of dissolution. Financial statements presenting such accounting shall include a report of the Accountants.

8.2 Distribution on Dissolution. In the event of the dissolution and liquidation of the Partnership for any reason, the assets of the Partnership shall be liquidated for distribution or distributed in kind, as determined by the General Partner in its sole discretion, in the following rank and order:

(a) Payment of creditors of the Partnership (other than Partners) in the order of priority as provided by law;

(b) Establishment of reserves as determined by the General Partner to provide for contingent liabilities, if any;

(d) To the Partners in accordance with the positive balances in their Capital Accounts after giving effect to all contributions, distributions

and allocations for all periods, including the period in which such distribution occurs (other than those distributions made pursuant to this Section 8.2(d)).

If upon dissolution and termination of the Partnership the Capital Account of any Partner is less than zero, then such Partner shall have no obligation to restore the negative balance in its Capital Account. Whenever the Liquidating Agent reasonably determines that any reserves established pursuant to paragraph (b) above are in excess of the reasonable requirements of the Partnership, the amount determined to be excess shall be distributed to the Partners in accordance with the above provisions.

8.3 Sale of Partnership Assets. In the event of the liquidation of the Partnership in accordance with the terms of this Agreement, the Liquidating Agent may sell Partnership property; provided, however, all sales, leases, encumbrances or transfers of Partnership assets shall be made by the Liquidating Agent solely on an “arm’s-length” basis, at the best price and on the best terms and conditions as the Liquidating Agent in good faith believes are reasonably available at the time and under the circumstances and on a non-recourse basis to the limited Partners. The liquidation of the Partnership shall not be deemed finally terminated until the Partnership shall have received cash payments in full with respect to obligations such as notes, purchase money mortgages, installment sale contracts or other similar receivables received by the Partnership in connection with the sale of Partnership assets and all obligations of the Partnership have been satisfied or assumed by the General Partner. The Liquidating Agent shall continue to act to enforce all of the rights of the Partnership pursuant to any such obligations until paid in full.

8.4 Distributions in Kind. In the event it becomes necessary to make a distribution of Partnership property in kind, the General Partner may transfer and convey such property to the distributees as tenants in common, subject to any liabilities attached thereto, so as to vest in them undivided interests in the whole of such property in proportion to their respective rights to share in the proceeds of the sale of such property (other than as a creditor) in accordance with the provisions of Section 8.2. Immediately prior to the distribution of Partnership property in kind to a Partner, the Capital Account of each Partner shall be increased or decreased, as the case may be, to reflect the manner in which the unrealized income, gain, loss and deduction inherent in such property (to the extent not previously reflected in the Capital Accounts) would be allocated among the Partners if there were a taxable disposition of such property for its fair market value as of the date of the distribution.

8.5 Documentation of Liquidation. Upon the completion of the dissolution and liquidation of the Partnership, the Partnership shall terminate and the Liquidating Agent shall have the authority to execute and record any and all documents or instruments required to effect the dissolution, liquidation and termination of the Partnership.

8.6 Liability of the Liquidating Agent. The Liquidating Agent shall be indemnified and held harmless by the Partnership from and against any and all claims, demands, liabilities, costs, damages and causes of action of any nature whatsoever arising out of or incidental to the Liquidating Agent’s taking of any action authorized under or within the scope of this Agreement; provided, however, that no

Partner shall have any personal liability with respect to the foregoing indemnification, any such indemnification to be satisfied solely out of the assets of the Partnership; and provided further, however, that the Liquidating Agent shall not be entitled to indemnification, and shall not be held harmless, where the claim, demand, liability, cost, damage or cause of action at issue arose out of:

(a) a matter entirely unrelated to the liquidating Agent’s action or conduct pursuant to the provisions of this Agreement; or

(b) the proven misconduct or negligence of the Liquidating Agent

ARTICLE IX

Transfer of Partnership Interests and Related Matters

9.1 General Partner Transfers and Deemed Transfers. The General Partner shall not Transfer all or any portion of its Partnership Units or otherwise withdraw as a general partner of the Partnership, in each case, unless it shall have obtained the written consent of the Limited Partner(s) who hold in the aggregate more than 50% of the Partnership Units then held by all of the Limited Partners, as a class (but excluding any Partnership Units held by the General Partner or any Affiliate thereof). In the event all Partnership Units are held by the General Partner and Affiliates thereof, the General Partner shall be prohibited from Transferring its Partnership Units or otherwise withdrawing as a general partner. Notwithstanding anything to the contrary, this Section 9.1 shall not prohibit, nor

require the consent of Limited Partners in connection with, a merger in which the General Partner is the Entity surviving the merger, a Transfer of all or any portion of the Partnership Units of the General Partner to another Partner or any Transfer of Shares. Upon any Transfer by the General Partner of its interest in the Partnership in accordance with the provisions of this Agreement, to the extent of such Transfer the transferee General Partner shall become vested with the powers and rights of the transferor General Partner, and shall be liable for all obligation and responsible for all duties of the General Partner, once such transferee has executed such instruments as may be necessary to effectuate such admission and to confirm the agreement of such transferee to be bound by all the terms and provisions of this Agreement with respect to the Partnership Units so acquired. It is a condition to any Transfer otherwise permitted hereunder that the transferee assumes by operation of law or express agreement all of the obligations of the transferor General Partner under this Agreement with respect to the Partnership Units of the transferor General Partner and no such Transfer (other than pursuant to a statutory merger or consolidation wherein all obligations and liabilities of the transferor General Partner are assumed by a successor corporation by operation of law) shall relieve the transferor General Partner of its obligations under this Agreement accruing prior to the date of such Transfer. In the event of any Transfer permitted hereunder of all of the General Partner’s interest in the Partnership, the transferee of such interest shall be deemed admitted to the Partnership as a General Partner immediately prior to the withdrawal of the transferor General Partner and the business of the Partnership shall be carried on by

such transferee General Partner. In the event of the withdrawal by any General Partner from the Partnership, in violation of this Agreement or otherwise, or the dissolution, termination or Bankruptcy (or any other event of withdrawal (as defined in Section 17-402 of the Act)) of any General Partner, within ninety (90) days after the occurrence of any such event, Partners who hold in the aggregate more than fifty percent (50%) of the Partnership Units then held by all of the remaining Partners may elect in writing to continue the Partnership business by selecting a substitute general partner effective as of the date of the occurrence of any such event.

9.2 Transfers by Limited Partners. Except as otherwise provided in this Section 9.2, the Limited Partners shall not Transfer or Pledge all or any portion of their Partnership Units to any transferee or pledgee without the consent of the General Partner, which consent may be withheld in its sole and absolute discretion; provided, however, that the foregoing shall not be considered a limitation on the ability of the Limited Partners to exercise their Rights under Article XI. Notwithstanding the foregoing sentence, but subject to the provisions of Section 9.4 and this Section 9.2, any Limited Partner may at any time, without the consent of the General Partner, (i) Transfer all or a portion of its Partnership Units to an Affiliate of such Limited Partner or (ii) Pledge some or all of its Partnership Units to any Institutional Leader (it being understood that any subsequent Transfer to a pledgee of Partnership Units pursuant to this clause (ii) may be made without the consent of the General Partner but such pledgee shall hold the Partnership Units so conveyed to it subject to all the restrictions set forth in this Section 9.2 and Section 9.4). It is a

condition to any Transfer otherwise permitted hereunder that the transferee assumes, by operation of law or express agreement, all of the obligations of the transferor Limited Partner under this Agreement with respect to such transferred Partnership Units arising either before or after the effective date of the Transfer and no such Transfer (other than pursuant to a statutory merger or consolidation wherein all obligations and liabilities of the transferor Limited Partner are assumed by a successor Entity by operation of law, and other than pursuant to an exercise of the Rights under Article XI wherein all obligations and liabilities of the transferor Limited Partner arising from and after the date of such Transfer shall be assumed by the General Partner) shall relieve the transferor Limited Partner of its obligations under this Agreement prior to the effective date of such Transfer. Upon a Transfer in accordance with this Section 9.2 and Section 9.4, the transferee shall be admitted as a Substituted Limited Partner and shall succeed to all of the rights, including rights with respect to the Rights, of the transferor Limited Partner under this Agreement in the place and stead of such transferor Limited Partner; provided, however, that notwithstanding the foregoing, any transferee of any transferred Partnership Unit shall be subject to any and all ownership limitations contained in the Charter of the General Partner, as the same may be amended from time to time, which may limit or restrict such transferee’s ability to exercise the Limited Partner’s Rights, if any. Any transferee (whether or not admitted as a Substituted Limited Partner) or pledgee shall take the Partnership Units so transferred or pledged subject to the obligations of the transferor hereunder. Unless admitted as a Substituted Limited Partner, no transferee

of a Partnership Unit pursuant to this Section 9.2, whether by a voluntary Transfer, by operation of law or otherwise, shall have rights hereunder, other than to receive such portion of the distributions made by the Partnership as are allocable to the Partnership Units transferred.

9.3 Issuance of Additional Partnership 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 is in the best interests of the Partnership, cause the Partnership to issue Partnership Units to any then existing Limited Partner, or to issue Partnership Units to, and admit as a limited partner in the Partnership, any Person, in each case in exchange for the contribution by such Person of Property or other assets 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 Partnership 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 between the Partnership and the party to whom Partnership Units will be issued.

9.4 Restrictions on Transfer, Pledge or Issuance. In addition to any other restrictions on Transfer contained in this Agreement, in no event shall any Transfer or Pledge of a Partnership Unit by any Partner be made nor shall any new Partnership Unit be issued by the Partnership: (i) to any person or entity who lacks the legal right, power or capacity to own a Partnership Unit (or, in the case of a Pledge, to have a Pledge of a Partnership Unit); (ii) in violation of applicable law; (iii) of any component portion of a Partnership Unit, such as the Capital Account, or rights to distributions (except in connection with Pledges to Institutional Lenders), separate and apart from all other components of a Partnership Unit (unless the General Partner shall have consented thereto, which it may do in its sole and absolute discretion); (iv) if such Transfer or Pledge would immediately or with the passage of time cause the General Partner to fail to comply with the REIT Requirements, such determination to be made assuming that the General Partner does comply with the REIT Requirements immediately prior to the proposed Transfer or Pledge; (v) if such Transfer or Pledge would cause the Partnership to become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined in Section 3(14) of ERISA) of with respect to any plan described in Section 4975(e)(l), a “disqualified person” (as defined in Section 4975(e) of the Code); (vi) if such Transfer or Pledge would, in the opinion of counsel to the Partnership, cause any portion of the underlying assets of the Partnership to constitute assets of any employee benefit plan within the meaning of Department of Labor Regulations Section 2510.3-101; (vii) if such Transfer or Pledge would constitute or result in a non-exempt

prohibited transaction subject to Section 406 of ERISA or Section 4975 of the Code; or (viii) if such Transfer or Pledge would result in a deemed distribution to any Partner attributable to a failure to meet the requirements of Regulations Section 1.752-2(d)(l), unless such Partner consents thereto. The General Partner may request such documentation from the transferee/pledgee and the transferor/pledgor as, in its sole discretion, it determines is necessary to evidence compliance with this Section 9.4.

ARTICLE X

Rights and Obligations of the Limited Partners

10.1 No Participation in Management. Except as expressly permitted hereunder, the Limited Partners shall not take part in the management of the Partnership’s business, transact any business in the Partnership’s name or have the power to sign documents for or otherwise bind the Partnership; provided, that the foregoing shall not be deemed to limit the ability of a Limited Partner (or any officer or director thereof) who is an officer, director or employee of the Partnership, the General Partner or any Affiliate thereof to act in such capacity.

10.2 Bankruptcy of a Limited Partner. The Bankruptcy of any Limited Partner shall not cause a dissolution of the Partnership, but the rights of such Limited Partner to share in the Profits or Losses of the Partnership and to receive distributions of Partnership funds shall, on the happening of such event, devolve to its successors or assigns, subject to the terms and conditions of this Agreement, and the

Partnership shall continue as a limited partnership. However, in no event shall such assignee(s) become a Substituted Limited Partner without the consent of the General Partner, which consent may be withheld in its sole and absolute discretion.

10.3 No Withdrawal. No Limited Partner may withdraw from the Partnership without the prior written consent of the General Partner, other than in connection with a Transfer in accordance with the terms of this Agreement.

10.4 Duties and Conflicts. The Partners recognize that each of the other Partners and their Affiliates have or may have other business interests, activities and investments, some of which may be in conflict or competition with the business of the Partnership, and that such persons are entitled to carry on such other business interests, activities and investments. In deciding whether to take any actions in such capacity, such Partners and their Affiliates shall be under no obligation to consider the separate interests of the Partnership and shall have no fiduciary obligations to the Partnership and shall not be liable for monetary damages for losses sustained, liabilities incurred or benefits not derived by the other Partners in connection with such actions; nor shall the Partnership or the General Partner be under any obligation to consider the separate interests of the Limited Partners and their Affiliates in such capacity or have any fiduciary obligations to the Limited Partners and their Affiliates in such capacity or be liable for monetary damages for losses sustained, liabilities incurred or benefits not derived by the Limited Partners and their Affiliates in such capacity arising from actions or omissions taken by the Partnership. The Partners and their Affiliates may engage in or possess an interest in any other business or venture

of any kind, independently or with others, on their own behalf or on behalf of other entities with which they art affiliated or associated, and such persons may engage in any activities, whether or not competitive with the Partnership, without any obligation to offer any interest in such activities to the Partnership or to any Partner or otherwise. Neither the Partnership nor any Partner shall have any right, by virtue of this Agreement, in or to such activities, or the income or profits derived therefrom, and the pursuit of such activities, even if competitive with the business of the Partnership, shall not be deemed wrongful or improper.

ARTICLE XI

Grant of Rights to the Limited Partners

11.1 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 General Partner, 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 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 General Partner 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 General Partner 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.

11.2 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.

11.3 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 General Partner, by causing the Partnership to redeem the Partnership Units for cash in the amount of the Purchase Price, or by the issuance by the General Partner of the 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)).

11.4 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.

11.5 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, fully-paid and non-assessable, and (B) a stock certificate or certificates evidencing the Shares to be issued and registered in the name of the Limited Partner or its designee.

11.6 Term of Rights. The rights of the parties with respect to the Rights shall remain in effect, subject to the terms hereof, throughout the existence of the Partnership.

11.7 Covenants of the General Partner. To facilitate the General Partner’s ability to fully perform its obligations hereunder, the General Partner covenants and agrees as follows:

(a) At all times during the pendency of the Rights, the General Partner shall reserve for issuance such number of Shares as may be necessary to enable the General Partner to issue such Shares in full payment of the Purchase

Price in regard to all partnership Units which are from time to time outstanding and held by any limited Partner.

(b) As long as the General Partner shall be obligated to file periodic reports under the Exchange Act, the General Partner will timely file such reports in such manner as shall enable any recipient of Shares issued to a Limited Partner hereunder in reliance upon an exemption from registration under the Securities Act to continue to be eligible to utilize Rule 144 promulgated by the SEC pursuant to the Securities Act, or any successor rule or regulation or statute thereunder, for the resale thereof.

(c) During the pendency of the Rights, the relevant Limited Partners shall receive in a timely manner all reports filed by the General Partner with the SEC and all other communications transmitted from time to time by the General Partner to the owners of its Shares.

(d) Under no circumstances shall the General Partner declare any stock dividend, stock split, stock distribution or the like, unless fair and equitable arrangements are provided, to the extent necessary, to fully adjust the Rights to avoid any dilution in the Rights of any Limited Partner under this Agreement.

11.8 Limited Partners’ Covenants. Each of the Limited Partners covenants and agrees with the General Partner that all Offered Units tendered to the General Partner or the Partnership, as the case may be, in accordance with the exercise of Rights herein provided shall be delivered free and clear of all Liens and should any Liens exist or arise with respect to such Offered Units, the General

Partner or the Partnership, as the case may be, shall be under no obligation to acquire the same unless, in connection with such acquisition, the General Partner has elected to cause the Partnership to pay such portion of the Purchase Price in the form of cash consideration in circumstances where such consideration will be sufficient to cause such existing Lien to be discharged in full upon application of all or a part of such consideration and the Partnership is expressly authorized to apply such portion of the Purchase Price as may be necessary to satisfy any indebtedness in full and to discharge such Lien in full. In the event any transfer tax is payable by the Limited Partner as a result of a transfer of Partnership Units pursuant to the exercise by a Limited Partner of the Rights, the Limited Partner shall pay such transfer tax.

ARTICLE XII

General Provisions

12.1 Investment Representations.

(a) Each Limited Partner acknowledges that it (i) has been given full and complete access to the Partnership and those persons who will manage the Partnership in connection with this Agreement and the transactions contemplated hereby, (ii) has had the opportunity to review all documents relevant to its decision to enter into this Agreement, and (iii) has had the opportunity to ask questions of the Partnership and those persons who will manage the Partnership concerning its investment in the Partnership and the transactions contemplated hereby.

(b) Each Limited Partner acknowledges that it understands that the Partnership Units to be acquired by it hereunder will not be registered under the Securities Act in reliance upon the exemption afforded by Section 4(2) thereof for transactions by an issuer not involving any public offering, and will not be registered or qualified under any applicable state securities laws. Each Limited Partner represents that (i) it is acquiring such Partnership Units for investment only and not with a view toward distribution thereof in violation of any applicable securities laws, and it will not sell or otherwise dispose of such Partnership Units except pursuant to the exercise of the Rights or otherwise in accordance with the terms hereof, and except in compliance with the registration requirements or exemption provisions of any applicable securities laws, (ii) its economic circumstances are such that it is able to bear all risks of the investment in the Partnership Units for an indefinite period of time, including the risk of a complete loss of its investment in the Partnership Units and (iii) it has knowledge and experience in financial and business matters sufficient to evaluate the risks of investment in the Partnership Units. Each Limited Partner further acknowledges and represents that it has made its own independent investigation of the Partnership.

12.2 Notices. All notices, offers or other communications required or permitted to be given pursuant to this Agreement shall be in writing and may be personally delivered or sent by United States mail or by reputable overnight delivery service and shall be deemed to have been given when delivered in person, upon receipt when delivered by overnight delivery service or three (3) business days after

deposit in United States mail, registered or certified, postage prepaid, and properly addressed, by or to the appropriate party. For purposes of this Section 12.2, the address of the General Partner shall be as set forth in the introductory paragraph to this Agreement, and the addresses of the Limited Partners shall be as set forth in the books and records of the Partnership. The address of any Limited Partner may be changed by a notice in writing given to the General Partner in accordance with the provisions of this Section. The address of the General Partner may be changed by a notice in writing given to the Limited Partners in accordance with the provisions of this Section. A copy of any communication to the General Partner shall be delivered at the same time to Bartlit Beck Herman Palenchar & Scott, The Kittredge Building, 511 Sixteenth Street, Denver CO 80202 Attention: Thomas R. Stephens.

12.3 Successors. This Agreement and all the terms and provisions hereof shall be binding upon and shall inure to the benefit of all Partners, and their legal representatives, heirs, successors and permitted assigns, except as expressly herein otherwise provided.

12.4 Liability of Limited Partners. The liability of the Limited Partners for their obligations, covenants, representations and warranties under this Agreement shall be several and not joint

12.5 Effect and Interpretation. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN CONFORMITY WITH THE LAWS OF THE STATE OF DELAWARE.

12.6 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.

12.7 Partners Not Agents. Nothing contained herein shall be construed to constitute any Partner the agent of another Partner, except as specifically provided herein, or in my manner to limit the Partners in the carrying on of their own respective businesses or activities.

12.8 Entire Understanding: Etc. This Agreement and the other agreements referenced herein or therein or to which the signatories hereto or thereto are parties constitute the entire agreement and understanding among the Partners and supersede any prior understandings and/or written or oral agreements among them respecting the subject matter within.

12.9 Severability. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid by a court of competent jurisdiction, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those to which it is held invalid by such court, shall not be affected thereby.

12.10 Trust Provision. This Agreement, to the extent executed by the trustee of a trust, is executed by such trustee solely as trustee and not in a separate capacity. Nothing herein contained shall create any liability on, or require the performance of any covenant by, any such trustee individually, nor shall anything

contained herein subject the individual personal property of any trustee to any liability.

12.11 Pronouns and Headings. As used herein, all pronouns shall include the masculine, feminine and neuter, and all defined terms shall include the singular and plural thereof wherever the context and facts require such construction. The headings, titles and subtitles herein are inserted for convenience of reference only and are to be ignored in any construction of the provisions hereof. Any references in this Agreement to the word “including” shall be deemed to mean “including without limitation.”

12.12 Assurances. Each of the Partners shall hereafter execute and deliver such further instruments (provided such instruments are in form and substance reasonably satisfactory to the executing Partner) and do such further acts and things as may be reasonably required or useful to carry out the intent and purpose of this Agreement and as are not inconsistent with the terms hereof.

12.13 Title Holder. To the extent allowable under applicable law, title to all or any part of the Properties of the Partnership may be held in the name of the Partnership or any other Person, the beneficial interest in which shall at all times be vested in the Partnership. Any such title holder shall perform any and all of its respective functions to the extent and upon such terms and conditions as may be determined from time to time by the General Partner.

12.14 Power of Attorney. Each Limited Partner hereby makes, constitutes and appoints the General Partner such Limited Partner’s true and lawful

agent and attorney-in-fact, with full power of substitution and full power and authority in such Limited Partner’s name, place and stead, to make, execute, sign, acknowledge, swear to, record and file, on behalf of such Limited Partner or of the Partnership, such documents, instruments, conveyances and certificates as may be necessary or appropriate to carry out the provisions and purposes of this Agreement, including, without limitation: (i) any modification to the Certificate and all amendments thereto required or permitted by law or the provisions of this Agreement, or modifications of any documents, instruments or agreements deemed appropriate to reflect the admission of any Partner in accordance with the terms of this Agreement in accordance with the terms hereof; (ii) any modification to this Agreement in accordance with the terms hereof, including the execution on behalf of such Limited Partner of amendments to this Agreement in accordance with the terms hereof; (iii) all certificates and other instruments deemed advisable to permit the Partnership to qualify to do business or to protect the limited liability of the Limited Partners in any jurisdiction; (iv) all conveyances and other instruments (including a Certificate of Cancellation) deemed advisable to effect the dissolution and termination of the Partnership in accordance with the terms of this Agreement; (v) any Registration Rights Agreement (to the extent such Limited Partner is entitled to become a party thereto); and (vi) all other instruments and documents that may be required or permitted by law to be executed or filed on behalf of the Partnership. The foregoing power of attorney is coupled with an interest, shall be irrevocable, and shall survive, and shall not be affected by, the subsequent dissolution or bankruptcy of such Limited Partner.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused this Agreement to be executed as of the date and year first above written, which Agreement shall be effective on the date it is executed and delivered by the parties hereto.


GENERAL PARTNER:

ASSET INVESTORS CORPORATION

By:	/s/ ILLEGIBLE
	Name:	Illegible
	Title:	President


INITIAL LIMITED PARTNERS:

		/s/ TERRY CONSIDINE
		Terry Considine

		/s/ THOMAS RHODES
		Thomas Rhodes



HFIC INC.

By:		/s/ TIMOTHY HEUER
	Name:	Timothy Heuer
	Title:	Vice President

CONTRIBUTED GENERAL PARTNER PROPERTY

[To be completed by Asset Investors Corporation]

I.	Contributed General Partner Properties:

Cash: $

Description of Properties:

Gross Asset Values of Properties:

II.	Partnership Units issued to General Partner: *

*	The number of outstanding shares of Asset Investors Corporation as of the date hereof.

INITIAL LIMITED PARTNERS

CONTRIBUTED LIMITED PARTNER PROPERTY


Description of Property:
Terry Considine	$	2,500
Thomas Rhodes	$	2,500
HFIC Inc.

Gross Asset Value of Property:	$

Terry Considine	$	2,500
Thomas Rhodes	$	2,500
HFIC Inc.	$

Partnership Units issued to the Initial Limited Partners:

Terry Considine

Thomas Rhodes

HFIC Inc.

FORM OF EXERCISE NOTICE

[Limited Partner], as of [date of exercise], hereby irrevocably elects, pursuant to the rights granted to it in Section 11.1 of the Agreement of Limited Partnership of [ ] Limited Partnership (the “Agreement”) to convert of its Partnership Units (as such term is defined in the Agreement) into shares of common stock of Asset Investors Corporation or cash, as selected by Asset Investors Corporation. [Limited Partner] hereby certifies that the Partnership Units to be converted were issued at least one year prior to the date hereof. [This Exercise Notice is subject to the provisions of Section [ ] of the Registration Rights Agreement attached hereto.


[Limited Partner]

By:
		Name:
		Title:

AMENDMENT TO THE

AGREEMENT OF LIMITED PARTNERSHIP

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

11.1

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

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.

11.2

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.

11.3

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)).

11.4

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.

11.5

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, fully-paid and non-assessable, and (B) a stock certificate or certificates evidencing the Shares to be issued and registered in the name of the Limited Partner or its designee.

11.6	Term of Rights. The rights of the parties with respect to the Rights shall remain in effect, subject to the terms hereof, throughout the existence of the Partnership.

11.7	Covenants of the General Partner. To facilitate the General Partner’s ability to fully perform its obligations hereunder, the General Partner covenants and agrees as follows:

(a)

At all times during the pendency of the Rights, the General Partner shall reserve for issuance such number of Shares as may be necessary to enable the General Partner to issue such Shares in full payment of the Purchase Price in regard to all Partnership Units which are from time to time outstanding and held by any Limited Partner.

(b)

As long as the General Partner shall be obligated to file periodic reports under the Exchange Act, the General Partner will timely file such

reports in such manner as shall enable any recipient of Shares issued to a Limited Partner hereunder in reliance upon an exemption from registration under the Securities Act to continue to be eligible to utilize Rule 144 promulgated by the SEC pursuant to the Securities Act, or any successor rule or regulations or statute thereunder, for the resale thereof.

(c)

During the pendency of the Rights, the relevant Limited Partners shall receive in a timely manner all reports filed by the General Partner with the SEC and all other communications transmitted from time to time by the General Partner to the owners of its Shares.

(d)

Under no circumstances shall the General Partner declare any stock dividend, stock split, stock distribution or the like, unless fair and equitable arrangements, are provided, to the extent necessary, to fully adjust the Rights to avoid any dilution in the Rights of any Limited Partner under this Agreement.

11.8

Limited Partners’ Covenants. Each of the Limited Partners covenants and agrees with the General Partner that all Offered Units tendered to the General Partner or the Partnership, as the case may be, in accordance with the exercise of Rights herein provided shall be delivered free and clear of all Liens and should any Liens exist or arise with respect to such Offered Units, the General Partner or the Partnership, as the case may be, shall be under no obligation to acquire the same unless, in connection with such acquisition, the Partnership has elected to pay such portion of the Purchase Price in the form of cash consideration in circumstances where such consideration will be sufficient to cause such existing Lien to be discharged in full upon application of all or a part of such consideration and the Partnership is expressly authorized to apply such portion of the Purchase Price as may be necessary to satisfy any indebtedness in full and to discharge such Lien in full. In the event any transfer tax is payable by the Limited Partner as a result of a transfer of Partnership Units pursuant to the exercise by a Limited Partner of the Rights, the Limited Partner shall pay such transfer tax.”

[signature page follows]

IN WITNESS WHEREOF, the parties hereto have executed or caused to be executed this Amendment to the Agreement of Limited Partnership of Asset Investors Operating Partnership, L.P. effective as of the date and year first above written.


GENERAL PARTNER:

ASSET INVESTORS CORPORATION

By:		/s/ Terry Considine
		Name: Terry Considine Title: Chief Executive Officer


LIMITED PARTNERS:

		/s/ Terry Considine
		Terry Considine


		/s/ Thomas L. Rhodes
		Thomas L. Rhodes


		/s/ Bruce D. Benson
		Bruce D. Benson


		/s/ Bruce E. Moore
		Bruce E. Moore


TITAHOTWO LIMITED PARTNERSHIP, RLLLP

By:		/s/ Terry Considine
		Terry Considine Its: General Partner

SECOND AMENDMENT TO THE

AGREEMENT OF LIMITED PARTNERSHIP

ASSET INVESTORS OPERATING PARTNERSHIP, L.P.

Dated effective as of May 3, 2002

THIS SECOND AMENDMENT TO THE AGREEMENT OF LIMITED PARTNERSHIP OF ASSET INVESTORS OPERATING PARTNERSHIP, L.P., dated effective as of May 3, 2002, is made by and among AMERICAN LAND LEASE, INC., 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, as amended (the “Partnership Agreement”); and

WHEREAS, a majority in interest of the Limited Partners have granted their written consent to the Amendments.

NOW THEREFORE, the Partnership Agreement is hereby amended as follows:

The following definition shall be added to Section 1.1 in appropriate alphabetical order:

“Partnership Common Units” shall mean any and all Partnership Units other than those classes of Partnership Units which may be designated from time to time pursuant to a Partnership Unit Designation under Section 9.3 of this Agreement.

Article IV, Section 4.5(a) of the Partnership Agreement is hereby amended and restated to read as follows:

other asset contributed by such Partner to the capital of the Partnership; the amount of unsecured liabilities of the Partnership assumed by such Partner; such Partner’s distributive share of Profits; and any other items in the nature of income or gain that are allocated to such Partner pursuant to Section 6.1 or an applicable Partnership Unit Designation, but excluding tax items described in Regulations Section 1.704-1(b)(4)(i); and

(ii) debited with: the amount of cash distributed to such Partner pursuant to the provisions of this Agreement; the Gross Asset Value (net of liabilities secured by such distributed asset that such Partner assumes or takes subject to) of any Partnership asset distributed to such Partner pursuant to any provision of this Agreement; the amount of unsecured liabilities of such Partner assumed by the Partnership; such Partner’s distributive share of Losses; in the case of the General Partner, payments of REIT Expenses by the Partnership; and any other items in the nature of expenses or losses that are allocated to such Partner pursuant to Section 6.1 or an applicable Partnership Unit Designation, but excluding tax items described in Regulations Section 1.704-1(b)(4)(i).

In the event that any or all of a Partner’s Partnership Units are transferred within the meaning of Regulations Section 1.704-1(b)(2)(iv)(1), the transferee thereof shall succeed to the Capital Account of the transferor to the extent that it relates to the Partnership Units so transferred.

The foregoing provisions and other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Section 1.704-1(b) of the Regulations, and shall be interpreted and applied as provided in the Regulations.”

Article VI, Section 6.1(b) of the Partnership Agreement is hereby amended and restated to read as follows:

“(b) Subject to the terms of any Partnership Unit Designation, except as otherwise provided in Section 6.1(d) and this Section 6.1(b), the Profits and

Losses of the Partnership (and each item thereof) for each Partnership Fiscal Year (including the Partnership Fiscal Year beginning on April 28, 1997 and ending on December 31,1997) shall be allocated among the Partners in accordance with their proportionate ownership of Partnership Units. Notwithstanding the foregoing, an amount of gross income shall be allocated to the General Partner for each Partnership Fiscal Year (prior to any allocation of Profits and Losses for such Partnership Fiscal Year) equal to the total REIT Expenses paid to or on behalf of the General Partner pursuant to Section 7.1 for the current and all prior Partnership Fiscal Years less all amounts of gross income previously allocated to the General Partner pursuant to this sentence.”

Article IX, Section 9.3 of the Partnership Agreement is hereby amended and restated to read as follows:

“9.3 Issuance of Additional Partnership 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 is in the best interests of the Partnership, cause the Partnership to issue Partnership Units to any then existing Limited Partner, or to issue Partnership Units to, and admit as a limited partner in the Partnership, any Person, in each case in exchange for the contribution by such Person of Property or other assets 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 Partnership 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. Subject to Delaware law, any additional Partnership 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 Unit; (b) the right of each such class or series of Partnership Unit to share in Partnership distributions; (c) the rights of each such class or series of Partnership Unit upon dissolution and liquidation of the Partnership; (d) the voting rights, if any, of each such class or series of Partnership Unit; and (e) the conversion, redemption or exchange rights applicable to each such class or series of Partnership Unit.”

[signature pages follow]

IN WITNESS WHEREOF, the parties hereto have executed or caused to be executed this Second Amendment to the Agreement of Limited Partnership of Asset Investors Operating Partnership, L.P. effective as of the date and year first above written.


GENERAL PARTNER:

AMERICAN LAND LEASE, INC.

By:	/s/ ILLEGIBLE
	Name:	Illegible
	Title:	Illegible

LIMITED PARTNERS:

/s/ TERRY CONSIDINE

Terry Considine

/s/ THOMAS L. RHODES

Thomas L. Rhodes

/s/ BRUCE D. BENSON

Bruce D. Benson

/s/ BRUCE E. MOORE

Bruce E. Moore


TITAHOTWO, RLLLP

By:		/s/ TERRY CONSIDINE
		Terry Considine,
		its General Partner

/s/ GARY ROSE

Gary Rose

/s/ RICHARD GILDER

Richard Gilder


ROTH ASSOCIATES OF NEW JERSEY,

By:	Phillip C. Giovinco, deceased General Partner

By:	/s/ BRUCE E. MOORE
	Name:	Bruce E. Moore
	Title:	Executor (Co)


SALEM FARM MOBILE HOME PARK, INC.
by:	Phillip C Giovinco, deceased President

By:	/s/ BRUCE E. MOORE
	Name:	Bruce E. Moore
	Title:	Executor (Co)


	/s/ WILLIAM INGRAM
		William Ingram

CADC HOLDING, LLC

By:	/s/ JOSEPH W. GAYNOR
	Name:	Joseph W. Gaynor
	Title:	Managing Member

COMMUNITY ACQUISITION AND DEVELOPMENT COMPANY

By:	/s/ ILLEGIBLE
	Name:	Illegible
	Title:	President

EX-3 4 dex3.htm CREDIT AGREEMENT Credit Agreement

Exhibit 3

CREDIT AGREEMENT

This Credit Agreement is made as of October 25, 2004, between TERRY CONSIDINE, individually (“Borrower”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association (“Bank”).

RECITALS:

i.	Borrower has requested that Bank make available to Borrower a revolving line of credit in the amount of $3,000,000.00 for investments and business or commercial purposes or other purposes; and

ii.	Bank is willing to make available such line of credit as requested by Borrower, upon and subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained in this Credit Agreement, Borrower and Bank agree as follows:

1.	DEFINITIONS.

1.1	General Definitions. When used herein, the following capitalized terms shall have the meanings indicated, whether used in the singular or the plural:

Agreement means this Credit Agreement, as the same may be amended, replaced, restated and/or supplemented from time to time.

Banking Day has the meaning given to such term in the Colorado Uniform Commercial Code.

Collateral shall mean the Personal Property Collateral, and/or any other property in which a lien or a security interest may hereafter be granted to Bank to secure the payment of the Liabilities and the performance of the Obligations.

CPA means an independent certified public accountant reasonably acceptable to Bank.

debt means (a) indebtedness for borrowed money (including negative cash balances or overdrafts) or for the deferred purchase price of property or services, (b) obligations as lessee under leases which shall have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases, and (c) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (a) or (b) above.

Liabilities means any and all liabilities, obligations and indebtedness of Borrower to Bank of any and every kind and nature, at any time owing, arising, due or payable and howsoever evidenced, created, incurred, acquired or owing, whether primary, secondary, direct, contingent, fixed or otherwise (including without limitation, obligations of performance) and whether arising or existing under this Agreement, the Notes or any of the Collateral Documents or by operation of law.

LIBOR Advance means any Advance as to which the interest rate per annum is based on the LIBOR Rate.

LIBOR Rate has the meaning given in Section 2.1.5.

Line Balance means the principal balance of the Revolving Credit Line outstanding from time to time.

Obligations means all terms, conditions, warranties, representations, agreements, undertakings, covenants and provisions (other than the Liabilities) to be performed, discharged, kept, observed or complied with by Borrower pursuant to this Agreement or any of the Collateral Documents.

Potential Default means an event or condition which with the giving of notice or the passage of time or both would constitute an Event of Default.

Prime Rate means, at the time of any determination, the rate of interest per annum publicly announced from time to time as Bank’s “prime rate”, which may be a rate at, above or below the rate or rates at which Bank lends to other parties and it is not necessarily the lowest rate charged by Bank on commercial loans.

Termination Date means August 31, 2005 or such earlier date as may occur pursuant to Section 9 below.

1.2	Index to Other Definitions. Other capitalized terms are defined throughout this Agreement, with an alphabetical list of such terms and the locations of the definitions thereof attached as Exhibit 1.2.

1.3	Accounting Terms. Any accounting terms used in this Agreement, which are not specifically defined in this Agreement, shall have the meanings customarily given them in accordance with generally accepted accounting principles, as consistently applied as of the date of this Agreement.

2.	TERMS OF BORROWING

2.1	Revolving Credit Line.

2.1.1

Commitment to Lend. Subject to the following terms and conditions, Bank agrees to make a revolving line of credit available to Borrower (the “Revolving Credit Line”) pursuant to which Bank will make loans to Borrower (each an “Advance”) in such amounts a Borrower may request from time to time, up to an aggregate outstanding at any one time of the maximum amount of $3,000,000 until November 30, 2004, when on such date such maximum amount shall be reduced by $25,000 and shall be further reduced by $25,000 on the last day of each February, May, August, and November, thereafter (at any time of determination, the “Maximum Amount”) so that the Maximum Amount shall be $3,000,000.00 until November 30, 2004, and $2,975,000 on and after November 30, 2004, and so forth.

2.1.2

Use of Proceeds, Purposes. Borrower agrees to use the proceeds of Advances for investments and business or commercial purposes or other purposes, including without limitation, the purchase or carrying of “margin stock” (as such term is defined in Regulation U of the Board of Governors of the Federal Reserve). Borrower agrees to execute and deliver to Bank a Federal Reserve Form U-1 in connection with this Agreement, and from time to time as requested by Bank.

2.1.3

Limits on Commitment. Bank’s commitment to make Advances hereunder is subject to the conditions in Section 5 below and to the following limitations:

Bank’s commitment to lend under the Revolving Credit Line terminates on the Termination Date, if not sooner terminated under Section 9 below;

Bank shall not be obligated to make any Advance which would cause the Line Balance to exceed the Maximum Amount or the then existing Margined Collateral Value, whichever is less; and

Bank shall not be obligated to make any Advance if an Event of Default or a Potential Default has occurred and has not been cured by Borrower or waived by Bank.

2.1.4

Line Note. Borrower’s indebtedness to Bank for amounts borrowed under the Revolving Credit Line and for interest accrued thereon shall be evidenced by Borrower’s promissory note to Bank, on Bank’s form, in the face principal amount of the Maximum Amount (the “Line Note” or “Note”).

2.1.5

Interest. Borrower agrees to pay interest on the Line Balance as provided herein. Interest will accrue on the daily Line Balance at a fluctuating rate per annum equal to the sum of one percent (1.00%) plus the “LIBOR Rate” the which means the one-month LIBOR rate quoted by Bank from Telerate Page 3750 or any successor thereto, which shall be that one-month LIBOR rate in effect and reset each New York Banking Day, adjusted for any reserve requirement and any subsequent costs arising from a change in government regulation. The term “New York Banking Day” means any day (other than a Saturday or Sunday) on which commercial banks are open for business in New York, New York.

Accrued interest shall be due (i) quarterly beginning November 30, 2004 and Bank shall bill Borrower therefor, (ii) at maturity of the Line Note, and (iii) on demand after such maturity.

2.1.6

Repayment of Principal. Borrower agrees to repay all Advances made hereunder. The Line Balance will be due and payable in full at the maturity of the Line Note, which will be the Termination Date, subject to acceleration upon the occurrence of an Event of Default. In addition, any portion of the Line Balance, which exceeds the Maximum Amount, will be due and payable on demand.

2.1.7

Method of Borrowing Advances. Requests for Advances may be submitted by Borrower in writing or by telephone. Bank shall be entitled to honor any such request it reasonably believes to be genuine, whether or not the person making the request is named as an authorized person in any instruction furnished Bank by Borrower. Advances shall be disbursed only by deposit to a demand deposit account maintained by Borrower at Bank. Proceeds of an Advance shall be disbursed on the Banking Day Bank receives Borrower’s request of such request is received before 2:00 p.m. Denver time on such day, and on the next Banking Day if received at or after 2:00 p.m. On such day, and in either case if the conditions in Section 5 are met.

2.2	Other Terms Applicable to Advances.

2.2.1

Interest Calculation. Interest shall be computed using the actual number of days in the period for which such computation is made and a per diem rate equal to 1/360th of the rate per annum.

2.2.2

Default Interest. After the occurrence of an Event of Default and any necessary acceleration of maturity of the Note, at Bank’s option, the interest rate applicable to the Note may be increased by five percent per annum.

2.2.3

Bank Records. Bank’s records shall be rebuttably presumptive evidence of the LIBOR Rate as well as the dates and amounts of payments of principal and interest on the Note.

2.2.4

Illegality or LIBOR Rate not Ascertainable. If it becomes unlawful for Bank to make any LIBOR Advance, or if Bank determines (which determination will be binding on Borrower) that adequate and reasonable means do not exist for determining the LIBOR Rate applicable for any LIBOR Advance, then Bank will not be required to make or maintain any such LIBOR Advance and the interest rate index shall automatically convert to the Prime Rate and the Note shall bear interest at the Prime Rate in effect from time to time.

2.2.5

Capital Adequacy. In the event that Bank shall have determined that the adoption of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, or any change therein or in the interpretation or application thereof, or compliance by Bank with any request or directive regarding capital adequacy

(whether or not having the force of law and whether or not failure to comply therewith would be unlawful) from any central bank or governmental agency or body having jurisdiction, does or shall have the effect of reducing the rate of return on Bank’s or its parent’s capital as a consequence of its obligations hereunder to a level below that which Bank or its parent could have achieved but for such adoption, change or compliance (taking into consideration Bank’s and its parent’s policies with respect to capital adequacy) by any amount deemed by Bank to be material, then Borrower shall from time to time, within ten (10) days after written notice from and demand from Bank, pay to the Bank additional amounts sufficient to compensate Bank for such reduction; provided however, that Bank shall give Borrower written notice of any such reduction which is attributable to the period after such written notice is given by Bank. A certificate as to the amount of such reduction, submitted to Borrower by Bank, shall, absent manifest error, be final, conclusive and binding for all purposes.

2.2.6

Commitment Fee for Revolving Credit Line. As additional consideration for the commitment to make Advances hereunder, Borrower agrees to pay Bank a commitment fee equal to three-tenths of one percent (0.30%) per annum on the Maximum Amount payable in advance on any renewal or extension of the Termination Date or maturity date of the Line Note with respect to the Maximum Amount. This fee will be computed using the actual number of days in the period for which such computation is made and a per diem rate equal to 1/360th of the rate per annum.

3.	COLLATERAL AND GUARANTIES

3.1

Personal Property Collateral. The repayment of all of Borrower’s indebtedness to Bank shall be secured by first priority liens or security interests in the following personal property now owned by Borrower or by affiliates of Borrower, and in all proceeds thereof (“Personal Property Collateral”): the number of shares of Common Stock of American Land Lease, Inc. and the number of Limited Partnership Units of Asset Investors Operating Partnership, L.P. described on Exhibit 3.1 (or on any subsequent Exhibit 3.1 agreed upon between the parties hereto and attached to this Agreement), as long as such shares are registered and unrestricted and, in the case of Limited Partnership Units, such Units are readily convertible into registered and unrestricted shares.

3.2

Collateral Documents. The liens and security interests in the Collateral (the “Security Interests”) shall be created and perfected by such security agreements, pledge agreements, collateral assignments, Uniform Commercial Code financing statements and other collateral documents deemed necessary or advisable by Bank in its sole discretion, each in form satisfactory to Bank, duly executed by Borrower or the appropriate affiliate of Borrower depending on who owns such Collateral (“Collateral Documents”).

3.3

Margin Requirement. On a weekly basis, Bank shall determine the value per share of the Common Stock of American Land Lease, Inc. and shall (i) multiply said value by the number of such unrestricted and registered shares of said Common Stock of American Land Lease, Inc. then held by Bank as Collateral pursuant to this Agreement and then

determine 50% of that result, and (ii) multiply said value by the number of Limited Partnership Units of Asset Investors Operating Partnership, L.P. then held by Bank as Collateral pursuant to this Agreement which are readily convertible into unrestricted and registered shares of the Common Stock of American Land Lease,Inc. and then determine 40% of that result. The sum of the amounts determined under subparts (i) and (ii) of the prior sentence shall be the “Margined Collateral Value”. Borrower agrees that the Margined Collateral Value, as determined by Bank from time to time in accordance with the foregoing, shall equal or exceed the then existing Line Balance. If the Margined Collateral Value does not at any time equal or exceed the then existing Line Balance, then Borrower agrees within two (2) Banking Days either to prepay the amount by which the then existing Line Balance exceeds the Margined Collateral Value, or to deliver to Bank as additional collateral either (i) such number of unrestricted shares of Common Stock of American Land Lease, Inc. or such number of shares of Limited Partnership Units of Asset Investors Operating Partnership, L.P. which are readily convertible into registered and unrestricted shares of the Common Stock of American Land Lease, Inc., as shall bring the Margined Collateral Value to an amount which equals or exceeds the then existing Line Balance, or (ii) such other cash or cash equivalents or readily marketable securities as may be acceptable to Bank in its sole discretion at such time. The word “unrestricted” as used herein shall mean American Land Lease, Inc. stock which is not subject to any holding period (i.e., “free-trading”) and is not subject to “control stock” volume limitations.

4.	REPRESENTATIONS AND WARRANTIES

To induce Bank to enter into this Agreement, Borrower represents and warrants as follows:

4.1

Financial Condition. The Combined Statements of Financial Condition of Borrower and Elizabeth C. Considine as at December 31, 2002 and December 31, 2003, and the notes thereto, copies of which have been furnished to Bank, fairly present the financial condition of Borrower and Elizabeth C. Considine as at such date, including contingent liabilities of every type, and since December 31, 2003 there has been no material adverse change in such condition.

4.2

No Violations. The execution, delivery and performance by Borrower and any affiliates of Borrower of this Agreement, the Note and the Collateral Documents do not and will not violate any provision of law or result in a breach of or default under any other agreement, instrument, document or note to which Borrower or the grantor thereunder, as the case may be, is a party.

4.3

Valid Obligations. This Agreement constitutes, and each of the Note and the Collateral Documents when delivered hereunder will be, a legal, valid and binding obligations of Borrower or the grantor thereunder, enforceable against Borrower or such grantor in accordance with their respective terms.

4.4

Litigation. There is no pending or threatened action, claim, investigation, lawsuit or proceeding against or affecting Borrower or the grantor under any Collateral Documents before any court, governmental agency, arbitrator or arbitration panel, which if decided adversely to Borrower would have a material adverse affect on the financial condition of Borrower or a material adverse affect on the Collateral value, (“Material Litigation”).

4.5

Liens. Borrower or an affiliate of Borrower is the legal and beneficial owner of any property granted as Collateral hereunder, free from any lien, encumbrance or restriction whatsoever except those in favor of Bank, and Borrower or its affiliate has full power and authority to grant the Security Interests in such property as Collateral for the Liabilities and the Obligations.

4.6

Taxes. Borrower and grantor under any Collateral Documents: (a) have filed all tax reports and returns required to be filed, including without limitation, reports and returns concerning income, franchise, employment, sales and use, and property taxes; (b) have paid all of his tax liabilities which were due on or prior to the date hereof; and (c) are not aware of any pending investigation by any taxing authority or of any pending assessments or adjustments which would materially increase his tax liability.

4.7

Regulation U. Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to extend credit to others for the purpose of purchasing or carrying any margin stock.

4.8	Disclosure. No information, exhibit or report furnished by Borrower to Bank in connection with the negotiation of this Agreement contains any material misstatement of fact or omitted to state a material fact necessary to make the statements contained therein not misleading.

5.	CONDITIONS PRECEDENT

5.1

Conditions Precedent to Initial Advance under Revolving Credit Line. The obligations of Bank to make the initial Advance under the Revolving Credit Line are subject to the conditions precedent that Bank shall have received on or before the day of such Advance the agreements, instruments, documents and/or other items listed on the List of Closing Documents attached as Exhibit 5.1, each of which shall be in form and substance satisfactory to Bank.

5.2

Conditions Precedent to All Advances. The obligation of Bank to make each Advance (including the initial Advance) shall be subject to the further condition precedent that on the date of any such Advance: (a) the following statements shall be true (and Bank may request a certificate of Borrower so stating): (i) the representations and warranties contained in Section 4 are correct on and as of the date of such Advance as though made

on and as of such date, and (ii) no event has occurred and is continuing, or would result from such Advance, which constitutes an Event of Default or a Potential Default; (b) Bank shall have received such other approvals, opinions or documents as Bank may reasonably request; and (c) Bank’s legal counsel is reasonably satisfied as to all legal matters incident to the making of such Advance .

6.	AFFIRMATIVE COVENANTS

So long as the Note or any of the Liabilities of Borrower to Bank remains unpaid or Bank has any commitment to lend hereunder, Borrower will:

6.1	Accounting Records. Maintain adequate books and accounting records of Borrower.

6.2

Insurance. Maintain insurance with responsible and reputable insurance companies in such amounts and covering such risks as is usually and customarily carried by persons or companies engaged in similar businesses and owning similar properties, including without limitation, public liability, property damage and workers’ compensation, and deliver to Bank schedules setting forth all insurance then in effect and copies of policies or certificates of insurance on property granted or pledged as Collateral; and cause Bank to be named as loss payee or mortgagee, as appropriate, on casualty policies insuring the Collateral and as an additional insured on any liability insurance covering property granted or pledged as Collateral. The insurance certificates shall be an ACORD 27 or an ACORD 25 with a 30-day cancellation notice to Bank.

6.3

Payment of Taxes, Liens. Pay and discharge, before the same become delinquent: (a) all taxes, assessments and governmental charges or levies imposed upon Borrower on his property, and (b) all lawful claims which, if unpaid, might by law become a lien on his property, except any thereof which is being contested in good faith and by appropriate proceedings.

6.4	Compliance with Laws. Comply in all material respects with all applicable laws, rules, regulations and orders of any government authority, noncompliance with which would materially adversely affect his business or credit

6.5	Reporting. Furnish Bank with the following items as soon as available and in any event:

(a)

Annually, by June 30 of each calendar year, a current financial statement of Borrower, including material contingent liabilities, reviewed by a CPA reasonably acceptable to Bank, and a copy of Borrower’s annual budget of income and expenses; and promptly within 15 days of the filing thereof a copy of the personal federal income tax return of Borrower for the prior year together with copies of all related K-1 statements;

(b)

Within ninety (90) days after the end of each fiscal year of American Land Lease, Inc., a copy of the annual audited financial statements of American Land Lease,

Inc. as at the end of such fiscal year, including a balance sheet and income statement, audited by an independent CPA reasonably acceptable to Bank, with an unqualified opinion thereon by said CPA;

(c)

Within forty-five (45) days after the end of each fiscal quarter of American Land Lease, Inc., American Land Lease, Inc.’s quarterly statement of financial condition as at the end of such quarter, including without limitation, a balance sheet and income statement, prepared substantially in accordance with generally accepted accounting principles, as set out in Form 10Q of the Securities Exchange Commission (“SEC”) or such other similar form as the SEC may specify from time to time; and

(d)

within forty-five (45) days after the end of each calendar quarter: (i) Borrower’s compliance certificate in the form attached as Exhibit 6.5, and (ii) a comparison of Borrower’s actual performance to budget for such calendar quarter and for the year-to-date; and

(e)

From time to time such other information about Borrower or any affiliate of Borrower as Bank may reasonably request.

6.6

Financial Condition. Maintain the financial condition of Borrower so that the ratio of (a) total cash income of Borrower, consolidated with that of Elizabeth C. Considine and of those affiliates of Borrower which are acceptable to Bank, to (b) the sum of required ongoing debt service on recourse debt (principal and interest due Bank plus non-recourse margin loan debt service) plus taxes actually paid, will be not less than 1.33 to 1.0 determined on a quarterly basis for the four previous quarters.

6.7	Deposit Account. Maintain a deposit account at Bank and cause Titahotwo Limited Partnership, RLLLP. and any other affiliate of Borrower pledging stock or securities to Bank to maintain a deposit account with Bank.

6.8

Notice of Significant Events. Promptly notify Bank in writing of (a) the occurrence of any Event of Default or Potential Default; (b) any change in his name or address or the form of entity or organizational or capital structure of any affiliate of Borrower; (c) the threat of or the commencement of any Material Litigation; or (d) any change in ownership of Collateral.

7.	NEGATIVE COVENANTS

So long as the Note or any of the Liabilities of Borrower to Bank remains unpaid or Bank has any commitment to lend hereunder, Borrower will not without the prior written consent of Bank:

7.1	Use of Funds. Use any of the amounts loaned to Borrower by Bank pursuant to this Agreement for any purpose except as provided in Section 2.1.2.

8.	DEFAULT

If any of the following events shall occur, it shall be an event of default under this Agreement (“Event of Default”):

8.1

Non-Payment. Borrower fails to pay any principal of the Note or any other sums payable by Borrower to Bank pursuant to this Agreement when due, including any part of the Line Balance which exceeds the Margined Collateral Value and which is due pursuant to Section 3.3, or Borrower fails to pay any interest on the Note within ten (10) days after any such interest payment is due.

8.2	Representations. Any representation or warranty made by Borrower herein or in connection herewith proves to have been incorrect in any material respect when made.

8.3	Breach of Negative Covenants. Borrower fails to observe or comply with any of the covenants in Section 7 of this Agreement.

8.4

Breach of Other Covenants. Borrower fails to perform or observe any other term, covenant or agreement contained in this Agreement (other than those referred to in Section 8.1 or Section 8.3) or in the Note or any Collateral Document, and such failure has not been cured within ten (10) days after the earlier to occur of the date Bank notifies Borrower of such failure or the date Borrower otherwise obtains actual knowledge of such failure.

8.5

Default on Other Debt. Borrower shall fail to pay any debt of Borrower (other than debt evidenced by the Notes) or any interest or premium thereon when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such debt; or any other default or event under any agreement or instrument relating to any such debt shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such debt; or any such debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof.

8.6

Insolvency. Borrower shall generally not pay his or its debts as such debts become due, or shall admit in writing their inability to pay their debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against Borrower seeking to adjudicate him or it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of their debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or seeking the appointment of a receiver, trustee or other similar official for him or it or for any substantial part of his or its property and, if instituted against Borrower, shall remain undismissed for a period of thirty (30) days; or Borrower shall take any action to authorize any of the actions set forth in this Section 8.6.

8.7

Judgements. Any judgment or order for the payment of money in excess of $50,000 shall be rendered against Borrower and either (a) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (b) there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.

8.8	Change in Status. Borrower shall die or become mentally disabled.

8.9	Defaults in Notes or Collateral Documents. The occurrence of any default or event of default specified in the Note or any Collateral Document.

9.	REMEDIES

Upon the occurrence of any Event of Default, Bank shall have the following rights and remedies:

9.1	Further Loans. To terminate Bank’s commitment to make Advances.

9.2

Acceleration. To declare all or any portion of the Liabilities to be immediately due and payable, whereupon all or such portion of said Liabilities shall become and be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by Borrower.

9.3	Other Rights. To exercise any other rights or remedies available to Bank under the Collateral Documents, or available to Bank at law or in equity.

10.	MISCELLANEOUS.

10.1

Waiver, Amendments. No waiver by Bank or any amendment of any provision of this Agreement, nor any consent of Bank to any failure to comply with the terms hereof by Borrower, shall be effective unless made in writing and signed by Bank. No waiver by Bank of any default or of any right to enforce this Agreement shall operate as a waiver of any other default, or of the same default on a future occasion, or of the right to enforce this Agreement on any future occasion. No delay in or discontinuance of the enforcement of this Agreement, nor the acceptance by Bank of installments of principal or interest after the occurrence of any Event of Default, shall operate as a waiver of any default.

10.2

Rights Cumulative. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies afforded by any security agreement, promissory note or other agreement executed in connection herewith, or provided by law or equity. Bank’s remedies may be exercised concurrently or separately, in any order, and the election of one remedy shall not be deemed a waiver of any other remedy.

10.3

Expenses. Borrower will pay to Bank on demand all expenses, including reasonable fees and expenses of attorneys, paid or incurred by Bank in connection with the drafting and negotiation of this Agreement, the creation and perfection of Bank’s security interests in Collateral, the making or collection of the Revolving Credit Line or the Advances made pursuant to this Agreement, or the protection, preservation or enforcement of Bank’s rights in property pledged or granted as Collateral.

10.4

Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Borrower, Bank and their respective personal representatives, successors and assigns. However, Borrower shall not have the right to assign or otherwise transfer any rights in or under this Agreement without Bank’s prior written consent. Bank reserves the right upon prior written notice to Borrower to sell, assign, transfer, negotiate or grant participations in the Revolving Credit Line or the Advances provided for herein. In connection therewith Bank may disclose all documents and information which Bank now has or may hereafter acquire relating to the Revolving Credit Line, the Advances, Borrower, Borrower’s business or any of the Collateral.

10.5	Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado.

10.6	Notices. All notices, requests and demands given to or made upon either party must be in writing and shall be deemed to have been given or made when personally delivered or two (2) days after having been deposited in the United States Mail, first class postage prepaid, addressed as follows:


If to Borrower:		Mr. Terry Considine
		4582 South Ulster St. Pkwy., Suite 405
		Denver, CO 80237

If to Bank:		U.S. Bank National Association
		Attn: George Adams or
		Manager Commercial Banking
		DN-CO-BB4A
		918 17^th Street
		Denver, CO 80202

10.7

Entire Agreement. The following documents contain the entire agreement between the parties concerning the subject matter hereof: this Agreement, the Note and the Collateral Documents (collectively the “relevant documents”). Any representation, understanding or promise concerning the subject matter hereof, which is not expressly set forth in any of the relevant documents, shall not be enforceable by any party hereto or his personal representatives or his or its successors or assigns. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of any other relevant document, the terms of this Agreement shall govern.

10.8	Recitals. The recitals to this Agreement and any definitions set forth therein are made a part hereof and are incorporated in this Agreement.

10.9	Severability. The unenforceability of any provision of this Agreement shall not affect the enforceability or validity of any other provision hereof.

10.10

Effectiveness. This Agreement shall be effective until all indebtedness of Borrower to Bank is paid in full.

10.11

JURY TRIAL WAIVER. BANK AND BORROWER EACH IRREVOCABLY WAIVES HIS OR ITS RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING OF ANY ISSUE, CLAIM, COUNTERCLAIM OR OTHER CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE CREDIT EXTENDED HEREUNDER, ANY COLLATERAL SECURING SUCH CREDIT, OR ANY OTHER AGREEMENT OR DEALINGS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.

IN WITNESS WHEREOF, the parties have executed this Agreement the date first stated above for the purposes set forth herein


	U.S. BANK NATIONAL ASSOCIATION,
	a national banking association

/s/ Terry Considine	By:	/s/ George E. Adams
Terry Considine, Individually		George E. Adams
		Senior Vice President

Exhibit 1.2 to

Credit Agreement

Index of Defined Terms


Term		Defined In
Advance		Section 2.1.1

Bank		Preamble

Borrower		Preamble

Collateral Documents		Section 3.2

Event of Default		Section 8

Line Balance		Section 2.1.3

Line Note		Section 2.1.4

Margined Collateral Value		Section 3.3

Maximum Amount		Section 2.1.1

Note		Section 2.1.4

Personal Property Collateral		Section 3.1

Revolving Credit Line		Section 2.1.1

SEC		Section 6.5

Security Interests		Section 3.2

Exhibit 3.1 to

Credit Agreement

List of Limited Partnership Units of Asset Investors Operating Partnership, L.P.


Certificate Number	Owner	Number of Units
1021	Terry Considine	36,227
1015	Terry Considine	204,286
1001	Terry Considine	146
1035	Titahotwo	25,471
		Total:266,130

List of Class A Common Stock of American Land Lease


Certificate Number	Owner	Number of Shares
AL5518	Terry Considine	20,399
AL5519	Titahotwo	239,989
		Total:260,388

Exhibit 5.1 to

Credit Agreement

List of Closing Documents

(Items marked with an asterisk have been received

by Bank prior to closing or in connection with prior agreements)

A.	GENERAL

1.	This Credit Agreement

2.	Promissory Note - Revolving Credit Line

B.	COLLATERAL: STOCK

3.	Combined Pledge Agreement of Considine and Titahotwo

4.-6.

*Each Certificate (and related Stock Power) referred to on Exhibit 3.1 to Credit Agreement.

C.	COLLATERAL : PARTNERSHIP INTERESTS

7.	Combined Collateral Assignment of Limited Partnership Interests of Considine and Titahotwo

8.- 11.

*Each Certificate and (and related Stock Powers) referred to on Exhibit 3.1 to Credit Agreement.

D.	GOVERNANCE

12.	General Partner’s Certificate of Titahotwo

13.	*Good Standing documents for Titahotwo

E.	MISCELLANEOUS

14.	Federal Reserve Form U-1

15.	*Compliance Certificate

16.	Closing Fee and Disbursement Authorizations

Exhibit 6.5 to

Credit Agreement

Form of Compliance Certificate

Attached.

CERTIFICATE OF COMPLIANCE

TERRY CONSIDINE

“Borrower”

As of the Prior 4 Quarters for the Period Ending

This Certificate is submitted to U.S. Bank National Association (“Bank”) in connection with the Credit Agreement dated as of October 25, 2004 between Bank and Borrower, as it may be amended from time to time (“Agreement”). Capitalized terms used herein are defined in the Agreement.

The undersigned hereby certifies to Bank that the following calculations of the minimum Cash Flow Coverage Ratio specified in the Agreement is true and correct:

Terry
Considine

Betsy
Considine

Terry & Betsy
Combined

Total
Non Recourse

Consolidated

(a)

(b)

(a + b)

(c)

(a +b +c)

Total Cash Income

Ongoing Debt Service and Cash Taxes:

Bank Principal Payments

Bank Interest Payments

Non Recourse Margin Loan debt service

Total Ongoing Debt Service

Cash Taxes

Ongoing Debt Service & Cash Taxes

Total Cash Income / Ongoing Debt Service and Cash Taxes (A divided by B)

Minimum Requirement

1.33

The Undersigned further certifies that (a) Borrower is in compliance with all of the covenants contained in the Agreement, and (b) there is no Event of Default under the Agreement, which has not been cured or waived, and no Potential Default has occurred.


By:

Title:

Date:

EX-4 5 dex4.htm COLLATERAL ASSIGNMENT Collateral Assignment

Exhibit 4

COLLATERAL ASSIGNMENT OF

LIMITED PARTNERSHIP INTERESTS

THIS COLLATERAL ASSIGNMENT OF LIMITED PARTNERSHIP INTERESTS (this “Assignment”) is made as of October 25, 2004 by TERRY CONSIDINE (“Considine”) and TITAHOTWO LIMITED PARTNERSHIP, RLLLP, a Colorado limited liability limited partnership (“Titahotwo”) (Considine and Titahotwo are sometimes hereinafter individually referred to as “Assignor” and collectively referred to as “Assignors”), each of whose address is 4582 South Ulster St. Pkwy., Suite 405, Denver, CO 80237, in favor of U.S. BANK NATIONAL ASSOCIATION (“Bank”), whose main office address in Colorado is 918 Seventeenth Street, Denver, CO 80202.

RECITALS

A.	Considine is indebted to Bank for loans or advances plus interest and other amounts payable pursuant to a Credit Agreement dated as of October 25, 2004 (as it may be amended from time to time, the “Credit Agreement”).

Assignors own and hold a number of units representing limited partnership interests (as more fully described on Exhibit A, the “Partnership Interests”) in that certain limited partnership known as Asset Investors Operating Partnership, L.P., a Delaware limited partnership, with a mailing address of 29399 U.S. Hwy. 19 North, Suite 320, Clearwater, Florida 33761 (the “Partnership”) which Partnership has filed its Certificate of Limited Partnership in Delaware. A true and correct copy of said Certificate of Limited Partnership is attached as Exhibit B. A true and correct copy of the Agreement of Limited Partnership of the Partnership is attached as Exhibit C.

It is a condition to the Credit Agreement that each Assignor pledge and assign to Bank the limited partnership interests in the Partnership referred to above, and each Assignor has agreed to enter into this Assignment, which shall evidence the collateral assignment in favor of Bank of limited partnership interests in the Partnership securing Considine’s indebtedness to Bank under the Credit Agreement.

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignors hereby transfer, assign and convey and pledge to Bank Assignors’ Partnership Interests in the profits, revenues, income, issues and distributions of assets or capital, whether in cash or property from the Partnership or at any time accruing to or attributable to Assignors’ interests in the Partnership pursuant to the partnership agreement or otherwise, together with any and all other right, title and interest of Assignors, whether now owned or hereafter acquired, by operation of law or otherwise, in the Partnership (but Bank does not assume any obligation or liability of any Assignor as partner or otherwise in the Partnership), subject to the following terms and provisions:

Assignment for Security. This Assignment is made for collateral security purposes only. This Assignment is made to secure the Secured Obligations (hereinafter defined) and Assignors’ obligations hereunder, and nothing herein shall constitute Bank a partner of the Partnership or impose any liability whatsoever on Bank in connection with the Partnership, its property or any Assignor’s obligations with respect thereto. Upon full and complete satisfaction of such indebtedness, including interest thereon and all costs, charges and expenses (including without limitation, all reasonable attorneys’ and consultants’ (as used herein the term “consultants” shall include without limitation, accountants, engineers, managers and operators) fees and expenses, and any court costs incurred by Bank in connection with any enforcement hereof), Bank shall reassign the aforesaid rights, titles and interests in and to the aforesaid profits, revenues, income, issues and distributions of assets or capital to Assignors.

Secured Obligations Defined. As used herein the phrase “Secured Obligations” means: (a) the liabilities and obligations of Considine pursuant to the Credit Agreement, as it may be amended, extended or modified, and as evidenced by the Revolving Credit Note made by Considine in favor of Bank, as such note is more fully described in the Credit Agreement, and as such note may be amended, extended or modified from time to time hereafter; and

Payments and Distributions. Until such time as the occurrence of a default by any Assignor in the performance of its obligations hereunder or upon any default or any event which with notice or passage of time or both would become a default under the Credit Agreement, all payments of profits, revenues, income, issues and distributions assigned hereby shall be made directly to Assignors without further notice to Bank. From and after the occurrence of a default by any Assignor in the performance of its obligations hereunder or upon any default or any event which with notice or passage of time or both would become a default under the Credit Agreement, all payments of profits, revenues, income, issues and distributions assigned hereby shall be made directly to Bank, and Bank shall apply all such payments to the indebtedness of Considine to Bank. Assignors shall hold in trust for Bank any and all such post-default payments of profits, revenues, income, issues and distributions that it may receive directly from the Partnership, and Assignors shall immediately turn over to Bank any and all such payments of profits, revenues, income, issues and distributions that they may so receive from the Partnership, provided however, that Bank may release to Assignors from time to time such part of such sums as Assignors may request and as Bank may agree to release in its sole discretion. To the extent it is able to do so, Assignors shall cause the Partnership to make distributions to the partners therein whenever feasible and as promptly as possible whenever such distributions are made.

Appointment of Bank. Assignors hereby irrevocably appoint Bank as their attorney-in-fact to act hereunder for so long as the Secured Obligations remain unsatisfied, with full authority (a) to exercise Assignors’ rights to examine and copy books and records of the Partnership at any time during regular business hours, and (b) to enforce, at Bank’s sole option, any and all rights that any Assignor could enforce with

regard to its rights relative to the aforesaid profits, revenues, income, issues and distributions, provided however, that Bank shall not be deemed to have assumed or otherwise be liable for any losses, liabilities or obligations whatsoever of any Assignor of the Partnership or to be responsible for any capital contributions to the Partnership, and provided further, that Bank shall not be liable to any Assignor or any other person or entity for exercising or failing to exercise all of any part of such rights.

5.	Financing Statements. Concurrently herewith and subsequent hereto, each Assignor authorizes Bank to file one or more Uniform Commercial Code financing statements relating to this Assignment, which shall be in form and content satisfactory to Bank.

Notice of Assignment. Bank is hereby authorized, at its sole option, to give notice of this Assignment to the Partnership, and to all general partners therein, and to any other persons or entities deemed advisable to Bank. Assignors shall cause the Partnership (a) to provide Bank with copies of all partnership communications and notices sent to or from or between the Partnership and any partners therein, and (b) to pay to Bank all or any part of the distribution of profits, revenues, income, issues, assets and capital attributable to Assignors’ Partnership Interests.

Other Rights and Remedies of Bank; Marshalling. Neither the execution of this Assignment nor the enforcement of any rights, remedies, powers or privileges of Bank hereunder shall affect the rights of Bank to enforce payment of the Secured Obligations by any other lawful means or shall give any Assignor any right or claim or claim of right to cause a marshalling of assets or any particular order of proceeding against any asset of any Assignor, and each Assignor expressly acknowledges that Bank has not waived any rights to enforce payment of such Secured Obligations.

Remedies under Assignment. Assignors agree that upon any default by any Assignor in the performance of its obligations hereunder or upon any default or any event which with notice or passage of time or both would become a default under the Credit Agreement or the Considine Note, Bank, in addition to any other remedies it may have at law or equity, may thereupon at any time or times thereafter: (a) to the extent it has not done so, apply any and all payments or distributions received from the Partnership to the Secured Obligations, and may continue to do so thereafter, or (b) to the extent saleable and/or consistent with the partnership agreement, sell the Partnership Interests or any part thereof and any substitutes therefor or additions thereto, at public or private sale, provided however, that the respective Assignor be given ten (10) days’ notice in writing of any such proposed sale or sales. Bank may apply the net proceeds of any such sale, deducting costs and expenses thereof, to the satisfaction of the Secured Obligations. Bank may become a purchaser at any such sale or sales free from any right or equity of redemption, such right and equity being hereby expressly waived and released. The mailing of notice by registered or certified United States mail, postage prepaid, to Assignors at the address set forth in the Credit Agreement for the giving of notice to Considine, at least ten (10) days before any sale or other disposition of the Partnership Interests, shall be conclusively deemed sufficient notice of such sale or disposition.

Title to Partnership Interests. Assignors hereby represent and warrant that Assignors have good and merchantable title to the Partnership Interests free of any adverse claim and that there are not outstanding encumbrances on the Partnership Interests, and that the partnership agreement of the Partnership, a copy of which is attached hereto as Exhibit C, is valid and enforceable and no default of any partner exists thereunder and that the information set forth in the Recitals is true and correct. Assignors have the legal right and full authority to grant this Assignment and convey the Partnership Interests pursuant to this Assignment. Assignors covenant that, except with Bank’s prior written consent: (a) they will not create, incur, assume or suffer to exist any encumbrance on the Partnership Interests except as provided herein, and (b) they will not vote for any amendment or modification of the partnership agreement of the Partnership. Assignors covenant to perform faithfully and diligently all of their obligations and duties to the Partnership.

10.

Indemnity. Assignors shall indemnify, defend and hold Bank harmless against any loss, liability, damage or expense, including without limitation, court costs and reasonable attorneys’ fees that Bank may suffer or incur with respect to any warranties or representations contained herein and any past, present or future obligations or liabilities of Assignors in connection with the Partnership. Assignors also shall reimburse Bank upon demand for all reasonable costs and expenses incurred by Bank in enforcing and/or protecting its rights, remedies, powers and privileges hereunder, including without limitation, all reasonable attorneys’ and consultants’ fees and expenses, and court costs.

11.

Violations of Law. It is expressly intended that this Assignment shall not violate any applicable state or federal laws or the terms or provisions of any agreement or contract binding upon any Assignor or the Partnership. Assignors hereby warrant and represent that they have made reasonable and diligent inquiries and investigations into the existence of such laws, terms and provisions and that they are not aware of the existence of any such laws, terms or provisions, including without limitation, securities laws of the United States of America and/or of any state thereof, which would be violated by the execution, delivery or enforcement of this Assignment. In the event this Assignment does violate any such laws, terms or provisions and Assignors have failed, within thirty (30) days after becoming aware of any such violation, to cure any such violation, or to undertake reasonable steps to so cure any such violation and diligently pursue such cure, it shall be deemed a default hereunder and under the Credit Agreement and the Considine Note.

12.	Notices. Any notice permitted under this Assignment shall be given in the manner set forth in the Credit Agreement for the giving of notice to Considine for Assignors and for the giving of notice to Bank for Bank.

13.	Successors and Assigns. This Assignment shall accrue to the benefit of the successors and assigns of Bank and shall be binding upon the successors and assigns of Assignors.

14.	Choice of Law. This Assignment shall be governed by the laws of the State of Colorado.

15.

Duration of Assignment. This Assignment is a continuing assignment and no notice of the creation or existence of any Secured Obligation or of any renewal, extension or modification thereof need be given to any Assignor. This Assignment shall continue in effect notwithstanding that from time to time no Secured Obligations may exist. This Assignment by any Assignor shall be terminated only upon receipt by Bank of written notice of revocation by such party. In such event, this Assignment shall continue as to Secured Obligations then existing, or thereafter created pursuant to any contract theretofore entered into by Bank, and as to any and all renewals, extensions or modifications thereof made after such event.

16.

Waivers. Bank may from time to time, without notice to Investment, and without impairing or affecting this Assignment: (a) acquire or fail to acquire a security interest in any property in addition to the Partnership Interests, or release any such interest so acquired, or permit any substitution or exchange for or fail to preserve or protect such property or any part thereof; (b) acquire or fail to acquire the primary or secondary liability of any party or parties with respect to all or any of the Secured Obligations, or release, modify or compromise the same or any part thereof; (c) modify, extend, renew or delay the enforcement for any period, or fail to enforce, any of the Secured Obligations; and (d) resort to the Partnership Interests for payment of the Secured Obligations whether or not Bank shall have resorted to any other collateral or proceeded against any other party (including Considine) primarily or secondarily liable on the Secured Obligations or any part thereof. Each Assignor waives notice of the creation or non-payment of any Secured Obligation. Each Assignor waives any defenses available to any surety based on its character as a surety, and waives any defenses, setoffs our counterclaims of Considine except the payment in full of the Secured Obligations.

17.	Multiple Assignors. Each Assignor and all Assignors shall be jointly and severally obligated hereunder, and the term “Partnership Interests” includes property described above owned by any one or more of Assignors.

18.

Final Agreement. This Assignment supersedes, replaces and terminates all prior conversations, discussions, negotiations, understandings and oral offers and agreements relating to any of the matters contemplated herein. This Assignment cannot be amended except in a writing signed by the party against whom that amendment is to be enforced.

19.	Titahotwo’s Representation. Titahotwo represents and warrants to Bank that the names “Titahotwo, Ltd.” and “Titahotwo Ltd.” and “Titahotwo” and “Titahotwo Limited Partnership” are variations of its name or a prior name and do not represent different entities.

20.

Pledge. To the extent that the units representing the Partnership Interests are deemed to be certificated securities, this Assignment constitutes an additional pledge agreement covering such securities and all of the terms and conditions of the Combined Pledge Agreement, dated the date hereof, among the parties hereto are incorporated herein by this reference as if fully set forth herein.

IN WITNESS WHEREOF, Assignors and Bank have signed this Assignment as of the day and year first written above.


/s/ Terry Considine
Terry Considine, Individually

TITAHOTWO LIMITED PARTNERSHIP,
RLLLP,
a Colorado limited liability limited partnership

By:		/s/ Terry Considine
		Terry Considine, General Partner

U.S. BANK NATIONAL ASSOCIATION,
a national banking association

By:		/s/ George E. Adams, III
		George E. Adams, III
		Senior Vice President

CONSENT AND ACKNOWLEDGMENT OF ASSIGNMENT

AMERICAN LAND LEASE, INC., as general partner of the limited partnership known as Asset Investors Operating Partnership, L.P., hereby acknowledges receipt of notice of the foregoing assignment and hereby consents to said assignment, on behalf of said limited partnership. AMERICAN LAND LEASE, INC. hereby represents and warrants that, in its capacity as general partner of the limited partnership named above, AMERICAN LAND LEASE, INC. and the officer executing this consent and acknowledgment have the power and authority to do so.


AMERICAN LAND LEASE, INC., a Delaware corporation

By:		/s/ Shannon E. Smith
Name:		Shannon E. Smith
Title:		Chief Financial Officer

Exhibit A to

Collateral Assignment of

Limited Partnership Interests

List of Limited Partnership Units of Asset Investors Operating Partnership, L.P.


Certificate Number	Owner	Number of Units
1021	Terry Considine	36227
1015	Terry Considine	204286
1001	Terry Considine	146
1035	Titahotwo	25471
		Total: 266130

EX-5 6 dex5.htm PLEDGE AGREEMENT Pledge Agreement

Exhibit 5

COMBINED PLEDGE AGREEMENT

This Combined Pledge Agreement (this “Agreement”) is made as of October 25, 2004 by TERRY CONSIDINE (“Considine”) and TITAHOTWO LIMITED PARTNERSHIP, RLLLP, a Colorado limited liability limited partnership (“Titahotwo”) (Considine and Titahotwo are sometimes hereinafter individually referred to as “Pledgor” and collectively referred to as “Pledgors”), each of whose address is 4582 South Ulster St. Pkwy., Suite 405, Denver, CO 80237, in favor of U.S. BANK NATIONAL ASSOCIATION (“Bank”), whose main office address in Colorado is 918 Seventeenth Street, Denver, CO 80202.

RECITALS:

A.	Considine is indebted to Bank for loans or advances plus interest and other amounts payable pursuant to a Credit Agreement dated as of October 25, 2004 (as it has been and may be amended from time to time, the “Credit Agreement”).

B.	Assignors own and hold a number of shares of Common Stock of American Land Lease, Inc. and a number of units representing limited partnership interests in Asset Investors Operating Partnership, L.P. described on Exhibit 1 attached hereto.

It is a condition to the Credit Agreement that each Pledgor pledge to Bank the American Land Lease, Inc. stock and limited partnership interests in Asset Investors Operating Partnership, L.P. referred to above, and each Pledgor has agreed to enter into this Agreement, which shall evidence the pledge in favor of Bank of American Land Lease, Inc. stock and limited partnership interests in Asset Investors Operating Partnership, L.P. to secure the Credit Agreement and the liabilities and obligations incurred thereunder.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained in this Agreement, Pledgors and Bank agree to amend, restate and combine the Prior Pledge Agreements into this Agreement, which shall read in its entirety as follows:

Pledge. To secure the repayment of the Secured Obligations (hereinafter defined), Pledgors hereby deposit, pledge and grant to Bank a security interest in the following property (“Collateral”): the number of shares of Common Stock of American Land Lease, Inc. and the number of units representing limited partnership interests in Asset Investors Operating Partnership, L.P. described on Exhibit 1 attached hereto (and on any subsequent Exhibit 1 agreed upon among the parties hereto and attached to this Agreement) and all proceeds of all of the foregoing. Said Collateral and any substitutions thereof or additions thereto, together with any interest, stock rights, rights to subscribe, rights to convert, dividends, stock dividends, dividends paid by stock liquidating dividends, new securities and other property to which any Pledgor may become entitled by reason of ownership of the Collateral during the existence of this Agreement, are to be held by Bank.

Secured Obligations. As used herein the phrase “Secured Obligations” means: (a) the liabilities and obligations of Considine pursuant to the Credit Agreement, as it may be amended, extended or modified, and as evidenced by the Revolving Credit Note made by Considine in favor of Bank, as such note is more fully described in the Credit Agreement, and as such note may be amended, extended or modified from time to time hereafter; and (b) all extensions, renewals and replacements of the foregoing.

Title. Pledgors have title to and will at all times keep the Collateral free of all liens and encumbrances, except the security interest created hereby, and have full power and authority to execute this Agreement, to perform Pledgors’ obligations hereunder and to subject the Collateral to the security interest created hereby. No financing statement covering all or any part of the Collateral is on file in any public office. All costs of keeping the Collateral free of any liens, encumbrances and security interests prohibited by this Agreement and of removing the same, if they should arise, shall be borne and paid by Pledgors. There is no encumbrance or security interest with respect to all or any part of the Collateral which either (a) is superior to Bank’s security interest hereunder, or (b) has not been disclosed to Bank by Pledgors.

Endorsement. Pledgors will duly endorse, in blank, each and every instrument constituting Collateral by signing on said instrument or by signing a separate assignment or other documents of transfer, if required by Bank, and will at any time or times hereafter perform such other acts or execute such documents as Bank may request to establish, maintain, perfect and enforce Bank’s security interest in the Collateral and rights under this Agreement.

Taxes. Pledgors will pay, when due, all taxes and other governmental charges levied or assessed upon or against any Collateral. Upon the occurrence of a Default (hereinafter defined) hereunder, Bank at its option may pay and discharge any taxes, governmental charges, liens, encumbrances or security interests in the Collateral, which sums so advanced or paid by Bank shall be payable by Pledgors on demand with interest at the highest rate applicable to any of the Liabilities, not to exceed the maximum rate allowed by law, and shall become part of the Secured Obligations.

6.	Information. At any time, upon request by Bank, Pledgors will deliver to Bank all notices, financial statements, reports or other communications received by Pledgors as owners or holders of the Collateral.

7.	Distributions. Pledgors will, upon receipt, deliver to Bank as additional Collateral hereunder, all securities distributed on account of the Collateral, such as stock dividends and securities resulting from stock splits, reorganizations and recapitalizations.

Duty of Care. Bank’s duty of care with respect to Collateral in its possession shall be deemed fulfilled if Bank exercises reasonable care in physically safekeeping such Collateral or, in the case of Collateral in the custody or possession of a bailee or other third party, exercised reasonable care in the selection of the bailee or other third party,

and Bank need not otherwise preserve, protect, insure or care for any Collateral. Bank shall not be obligated to preserve any rights Pledgors may have against prior parties or to realize on the Collateral at all or in any particular manner or order. Bank shall have no liability or responsibility to Pledgors for any action taken or omitted with respect to the Collateral on the direction of any Pledgor.

Duration of Security Interest. The security interest granted hereby is a continuing security interest and no notice of the creation or existence of any Secured Obligation or of any renewal, extension or modification thereof need be given to any Pledgor. This security interest shall continue in effect notwithstanding that from time to time no Secured Obligations may exist. The security interest granted by any Pledgor shall be terminated only upon receipt by Bank of written notice of revocation by such Pledgor. In such event, the security interest created hereby shall continue as to Secured Obligations then existing, or thereafter created pursuant to any contract theretofore entered into by Bank, and as to any and all renewals, extensions or modifications thereof made after such event.

10.

Waivers. Bank may from time to time, without notice to any Pledgor, and without impairing or affecting the security interest created hereby: (a) acquire or fail to acquire a security interest in any property in addition to the Collateral, or release any such interest so acquired, or permit any substitution or exchange for or fail to preserve or protect such property or any part thereof; (b) acquire or fail to acquire the primary or secondary liability of any party or parties with respect to all or any of the Secured Obligations, or release, modify or compromise the same or any part thereof; (c) modify, extend, renew or delay the enforcement for any period, or fail to enforce, any of the Secured Obligations; and (d) resort to the Collateral for payment of the Secured Obligations whether or not Bank shall have resorted to any other collateral or proceeded against any other party (including Considine) primarily or secondarily liable on the Secured Obligations or any part thereof. Each Pledgor waives notice of the creation or non-payment of any Secured Obligation. Each Pledgor waives any defenses available to any surety based on its character as a surety, and waives any defenses, setoffs or counterclaims of Considine except the payment in full of the Secured Obligations.

11.

Settlements. Bank, in the names of Pledgors or otherwise, whether or not a default has occurred, shall have the authority but shall not be obligated to demand, collect, receive and receipt for, compromise, compound, settle, prosecute and discontinue any suits or proceedings in respect of any or all of the Collateral; take any action which Bank may deem necessary or desirable in order to realize on the Collateral, including without limitation, the power to perform any contract, to endorse in the name of the relevant Pledgor any checks, drafts, notes or other documents which are Collateral or are received in payment or on account of the Collateral, to transfer any of the Collateral into its name or that of its nominee, and to notify the obligor on or issuer of any Collateral of any amounts due or distributable thereon; and to apply any proceeds of any Collateral against any item or items of the Secured Obligations as Bank, in its sole discretion, may determine, whether the same shall then be due or not due. However, Pledgors and not Bank shall have full responsibility for complying with call dates, conversion dates or any other deadlines for action by the owner of the Collateral.

12.

Recordkeeping. Considine will keep accurate books, records and accounts with respect to his general business, and will make the same available to Bank at its request for examination and inspection, and will make and render to Bank such reports, accountings and statements as Bank from time to time may request with respect to the Collateral, and will permit any authorized representative of Bank to examine and inspect, during normal business hours, any and all books, records and accounts.

13.

Default. The occurrence of any of the following events shall constitute a “Default” under this Agreement: (a) failure of any Pledgor, or of any co-maker, indorser, surety or guarantor (an “Obligated Party”) to pay when due any amount payable under any of the Secured Obligations; (b) failure to perform any agreement of Pledgors or any Obligated Party contained herein or in any other agreement between any Pledgor or such Obligated Party and Bank; (c) any statement, representation or warranty of any Pledgor or any Obligated Party made herein or at any time furnished to Bank in connection with this Agreement or any of the Secured Obligations is untrue in any material respect as of the date made; (d) failure of any Pledgor to pay any premium on the due date without benefit of grace period of any policy of insurance which is all or any part of the Collateral; (e) entry of any judgment against any Pledgor or any Obligated Party; (f) any event which results in the acceleration of the maturity of the indebtedness of any Pledgor to others under any indenture, agreement or undertaking; (g) any Pledgor becomes insolvent or is generally not paying his or its debts as such debts become due; (h) appointment of or assignment to a custodian, as the term is defined in the United States Bankruptcy Code, for any property of any Pledgor, or loss, substantial damage to, destruction, theft, encumbrance, levy, seizure or attachment of any portion of the Collateral; (i) commencement of any proceeding or filing of a petition by or against any Pledgor under the provisions of the United States Bankruptcy Code, for liquidation, reorganization or adjustment of debts, under any insolvency law or other statute or law providing for the modification or adjustment of the rights of creditors; (j) death of any Pledgor who is a natural person or of any partner of any Pledgor which is a partnership where such death causes the termination of the partnership, (k) dissolution, consolidation, merger or transfer of a substantial part of the property of any Pledgor which is a corporation, partnership or other entity; (l) such a change in the condition or affairs (financial or otherwise) of any Pledgor or any Obligated Party as in the opinion of Bank impairs Bank’s security or increases its risk; (m) the occurrence of an “Event of Default” as such term is defined in the Credit Agreement; or (n) Bank deems itself insecure for any reason whatsoever.

14.

Remedies Upon Default. Whenever a Default shall exist, Bank may, at its option and without demand or notice, declare all or any part of the Secured Obligations immediately due and payable, and Bank may exercise, in addition to the rights and remedies granted hereby, all rights and remedies of a secured party under the Uniform Commercial Code or any other applicable law, including, without limitation, the right to exercise all voting and

other rights as a holder of the Collateral, the right to offer and sell the Collateral privately to purchasers who will agree to take the Collateral for investment and not with a view to distribution and who will agree to the imposition of restrictive legends on the certificates representing the Collateral, the right to arrange for a sale which would otherwise qualify as exempt from registration under the Securities Act of 1933, and the right to sell without notice if the Collateral is of a type customarily sold on a recognized market. Once Bank has declared the Secured Obligations due and payable, Bank may proceed with its collection remedies regardless of any partial payment or other action taken by any Pledgor or any Obligated Party or of any subsequent change in the value of the Collateral.

15.

Costs and Attorneys’ Fees. Pledgors agree, in the event of Default, to pay all costs of Bank, including without limitation, reasonable attorneys’ fees, in the collection of any of the Secured Obligations and the enforcement of any of Bank’s rights. If any notification of intended disposition of any of the Collateral is required by law, Bank shall give reasonable notice to Pledgors at the address set forth above.

16.	Waiver. No delay or failure by Bank in the exercise of any right or remedy shall constitute a waiver thereof, and no single or partial exercise by Bank of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy.

17.

Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Pledgors and Bank and their respective heirs, representatives, successors and assigns and shall take effect when signed by Pledgors and delivered to Bank, and Pledgors waive notice of Bank’s acceptance hereof. This Agreement shall be governed by the laws of the State of Colorado, and unless the context otherwise requires, all terms used herein which are defined in Articles 1 and 9 of the Uniform Commercial Code, as in effect in such state, shall have the meanings therein stated. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement shall survive the execution, delivery and performance of this Agreement and the creation and payment of the Secured Obligations.

18.	Multiple Pledgors. Each Pledgor and all Pledgors shall be jointly and severally obligated hereunder, and the term “Collateral” includes property described above owned by any one or more of Pledgors.

19.

Final Agreement. This Agreement supersedes, replaces and terminates all prior conversations, discussions, negotiations, understandings and oral offers and agreements relating to any of the matters contemplated herein. This Agreement cannot be amended except in a writing signed by the party against whom that amendment is to be enforced.

20.	Titahotwo’s Representation. Titahotwo represents and warrants to Bank that the names “Titahotwo, Ltd.” and “Titahotwo Ltd.” and “Titahotwo” and “Titahotwo Limited Partnership” are variations of its name or a prior name and do not represent different entities.

IN WITNESS WHEREOF, Pledgors and Bank have executed this Agreement as of the date first written above.

/s/ Terry Considine


Terry Considine, Individually

TITAHOTWO LIMITED PARTNERSHIP, RLLLP,
a Colorado limited liability limited partnership

By:		/s/ Terry M. Considine
		Terry M. Considine, General Partner

U.S. BANK NATIONAL ASSOCIATION,
a national banking association

By:		/s/ George E. Adams, III
		George E. Adams, III, Senior Vice President

EXHIBIT 1

List of Class A Common Stock of American Land Lease


Certificate Number	Owner	Number of Shares
AL5521	Terry Considine	20399
AL5520	Titahotwo	239989
		Total: 260388

List of Limited Partnership Units of Asset Investors Operating Partnership, L.P.


Certificate Number	Owner	Number of Units
1021	Terry Considine	36227
1015	Terry Considine	204286
1001	Terry Considine	146
1035	Titahotwo	25471
		Total: 266130

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