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Exhibit 10.11.2
AMENDMENT NO. 2 TO
REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 2 dated as of August 15, 1996 (this "Amendment")
between Irvine Apartment Communities, L.P., a Delaware limited partnership (the
"Borrower"), the Lenders signatory hereto, Xxxxx Fargo Bank. N.A. (the "Managing
Agent") and Bank of America National Trust and Savings Association (the
"Administrative Agent"), as agents and representatives for the Lenders, to the
Revolving Credit Agreement dated as of November 30, 1995 between the Borrower,
the Lenders, the Managing Agent and the Administrative Agent, as amended by
Amendment No. 1 to the Revolving Credit Agreement dated as of July 1, 1996 (as
amended, the "Credit Agreement"). Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement.
WHEREAS, the Borrower, the Lenders, the Managing Agent and the
Administrative Agent have agreed to amend the Credit Agreement as set forth
herein.
NOW, THEREFORE, the parties hereto agree:
ARTICLE I
AMENDMENTS TO THE CREDIT AGREEMENT
1.1. Deletion of Section 5.10. Section 5.10 of the Credit Agreement is
hereby deleted in its entirety and replaced with the words "INTENTIONALLY
OMITTED."
1.2 Addition of Section 6.4.11. A new Section 6.4.11 is added to the
Credit Agreement to read in its entirety as follows:
6.4.11. CONSTRUCTION IN PROCESS. The value of all construction in
process of the Borrower as of the end of any Fiscal Quarter,
calculated at the lower of cost or fair market value (in each case
determined in accordance with GAAP) shall not exceed 20% of Gross
Asset Value for such Fiscal Quarter.
1.3 Amendment to Section 6.2.3. Section 6.2.3 of the Credit Agreement
is hereby amended and restated to read in its entirety as follows:
6.2.3. Existing apartment projects or land upon which the Borrower
plans to develop apartment projects;
1.4 Amendment to Section 6.10. Section 6.10 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
6.10. No Borrower Party shall engage in any material acquisition,
merger, formation, investment in any partnership/joint
venture/Subsidiary, asset purchases, or transfer of assets without
the prior written approval of
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the Majority Lenders. For purposes of this Section 6.10,
material is defined as any transaction in which the obligation
of a Borrower Party equals or exceeds Five Million Dollars
($5,000,000) or any transaction which is not incidental to the
ownership, construction and operation of apartment communities
of the Borrower. Notwithstanding the foregoing, (i) Borrower
may purchase Real Property without consent of the Majority
Lenders; and (ii) the Guarantor may reincorporate in any State
of the United States, by merger with and into a wholly owned
subsidiary formed solely for the purpose of reincorporation
which, prior to such merger, conducts no business and has no
assets or liabilities; provided, however, that in connection
with any such reincorporation, the Guarantor or its successor
shall deliver or cause to be delivered to the Lender Parties
such documents and instruments as the Co-Agents may reasonably
request in form and substance acceptable to the Co-Agents in
their reasonable judgment, including without limitation a
reaffirmation or re-execution of the Guaranty, certified
copies of all organizational documents, agreements and plans
of merger, and certificates issued by Governmental
Authorities, evidence that the partnership agreement of the
Borrower does not require consent to such transaction or that
such consent has been obtained, evidence that the partnership
of the Borrower remains in full force and effect
notwithstanding such merger, and legal opinions regarding the
authorization, execution and delivery of any new Guaranty and
the continued enforceability of the Loan Documents.
ARTICLE II
GENERAL PROVISIONS
2.1. Integration: Entire Agreement. The Amendment is an amendment
of the Credit Agreement pursuant to Section 9.3.1. of the Credit Agreement. Upon
execution and delivery of this Amendment by all parties hereto, the Credit
Agreement shall be modified and amended in accordance with this Amendment, and
all the terms and conditions of both shall be read together as though they
constitute one instrument, except that, in the case of conflict, the provisions
of this Amendment will prevail. The Credit Agreement, as amended by this
Amendment, together with the other Loan Documents, is intended by the parties as
the final expression their agreement regarding the subject matter hereof and as
a complete and exclusive statement of the terms and conditions of such
agreement. The Credit Agreement, as amended hereby, and each of the Loan
Documents, remain in full force and effect and all amounts payable by Borrower
thereunder are payable without defense, offset or counterclaim of any kind
whatsoever.
2.2. Benefits of Amendment. The terms and provisions of this
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respect successors and assigns to the extent contemplated by the
Credit Agreement.
2.3. Interpretation. The headings used in this Amendment are for
convenience of reference only and shall not affect the construction hereof.
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2.4. Execution in Counterparts. This Amendment may be executed in any
number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Amendment. This Amendment
shall become effective as of the date set forth above upon the execution of a
counterpart hereof by each of the parties hereto. Faxed signatures of this
Amendment shall be binding for all purposes.
2.5. Severability. If any provision of this Amendment shall be held to
be invalid, illegal or unenforceable under Applicable Law in any jurisdiction,
such provision shall be ineffective only to the extent of such invalidity,
illegality or unenforceability, which shall not affect any other provisions
hereof or the validity, legality and enforceability of such provision in any
other jurisdiction.
2.6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA (OTHER THAN CHOICE OF
LAW RULES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION).
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first set forth above.
BORROWER:
IRVINE APARTMENT COMMUNITIES, L.P.
A DELAWARE LIMITED PARTNERSHIP
BY: IRVINE APARTMENT COMMUNITIES, INC.,
A MARYLAND CORPORATION,
GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxx Xx.
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Name: Xxxxxxx X. Xxxxx Xx.
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Title: Executive Vice President and
Chief Financial Officer
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By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Senior Vice President
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CO-AGENTS:
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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LENDERS:
XXXXX FARGO BANK, N.A., A NATIONAL BANKING
ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Asst. Vice President
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, A NATIONAL BANKING ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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FIRST NATIONAL BANK OF BOSTON, A NATIONAL
BANKING ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Division Executive
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FIRST BANK NATIONAL ASSOCIATION, A NATIONAL
BANKING ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, A NEW
YORK CORPORATION
By: /s/ Xxxxxxx X. X'Xxxxxxx
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Name: Xxxxxxx X. X'Xxxxxxx
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Title: Vice President
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