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EXECUTION COPY
AMENDMENT TO THE MISCELLANEOUS RIGHTS AGREEMENT TO RELATING TO PROPORTIONAL
PURCHASE RIGHTS AND CERTAIN OTHER MATTERS.
AMENDMENT No. 1 dated as of July 25, 1997 to the Miscellaneous
Rights Agreement dated as of March 20, 1996 (the "Existing Agreement") by and
among Irvine Apartment Communities, Inc. (the "Company"), Irvine Apartment
Communities, L.P. (the "Operating Partnership") and The Irvine Company ("The
Irvine Company").
W I T N E S S E T H:
WHEREAS, in accordance with Section 5.3 of the Existing Agreement
the parties hereto are hereby proposing to amend the Existing Agreement as set
forth below;
WHEREAS, concurrently with the execution and delivery hereof
Amendment No. 8 to the Partnership Agreement (the "Partnership Agreement
Amendment") is being executed and delivered by the parties thereto which
Partnership Agreement Amendment sets forth certain amendments to the Partnership
Agreement which are required as a result of the amendments to be effected
hereby; and
WHEREAS, the execution and delivery of this Amendment No. 1 by the
Company and the Operating Partnership has been approved by resolutions duly
adopted by the Board of Directors of the Company and by the Independent
Directors Committee of such Board.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. All terms used in this Amendment No. 1 shall have the meanings
set forth in the Existing Agreement.
Section 2. The definitions of ACP Investment Amount, DRIP Investment
Amount and Maximum Investment Amount in Section 1.1 of the Existing Agreement
are hereby amended to read in their entirety as follows:
"ACP Investment Amount" means with respect to a DRIP/ACP Investment Date
the aggregate amount of additional cash to be invested in newly issued shares of
Common Stock on such DRIP/ACP Investment Date pursuant to the DRIP/ACP Plan
minus the aggregate amount of additional cash to be so invested
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by all Irvine Persons (which for the avoidance of doubt includes all Original
Limited Partners as defined in the Partnership Agreement) in newly issued shares
of Common Stock on such DRIP/ACP Investment Date pursuant to the DRIP/ACP Plan.
"DRIP Investment Amount" means with respect to a DRIP/ACP Investment Date
the aggregate amount of dividends paid on shares of Common Stock to be
reinvested in newly issued shares of Common Stock on such DRIP/ACP Investment
Date pursuant to the DRIP/ACP Plan minus the aggregate amount of dividends on
shares of Common Stock beneficially owned (whether pursuant to the DRIP/ACP Plan
or otherwise) by all Irvine Persons (which for the avoidance of doubt includes
this purpose all Original Limited Partners as defined in the Partnership
Agreement) to be so reinvested in newly issued shares of Common Stock on such
DRIP/ACP Investment Date pursuant to the DRIP/ACP Plan.
"Maximum Investment Amount" means with respect to each DRIP/ACP Investment
Date a dollar amount (subject to reduction as provided in Section 4.2(e) hereof)
equal to (A) the DRIP/ACP Investment Amount for such DRIP/ACP Investment Date
divided by a percentage (rounded to the seventh decimal place) equal to 1 minus
the Purchase Percentage in effect as of the close of business on the third
business day immediately preceding such DRIP/ACP Investment Date, minus (B) such
DRIP/ACP Investment Amount.
Section 3. Section 4.1 of the Existing Agreement is hereby amended by
adding the following sentence as the third to last sentence of such Section:
"Notwithstanding the foregoing provisions of this Section 4.1, the
right to purchase Common Stock or Convertible Securities pursuant to
this Section 4.1 shall be reduced to the extent that Irvine Persons
(which for the avoidance of doubt includes all Original Limited
Partners as defined in the Partnership Agreement) have exercised
rights under Section 4.5.F of the Partnership Agreement to purchase
L.P. Units as a result of the issuance of Common Stock or
Convertible Securities that has given rise to rights under this
Section 4.1.
Section 4. Section 4.2 of the Existing Agreement is hereby amended by
adding in paragraph (a) thereof the words "but subject to having received the
notice referred to in paragraph (f) below" immediately following the words
"DRIP/ACP Investment Date" the first time such words appear in Section 4.2(a).
Section 5. Section 4.2 of the Existing Agreement is hereby further
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amended by adding the following as new paragraphs (e) and (f) thereto:
"(e) Notwithstanding anything in this Section 4.2 to the
contrary, the Maximum Investment Amount shall be reduced to the
extent Irvine Persons (which for the avoidance of doubt includes all
Original Limited Partners as defined in the Partnership Agreement)
have exercised rights under Section 4.8.A of the Partnership
Agreement to purchase L.P. Units as a result of the issuance of
newly issued shares of Common Stock pursuant to the DRIP/ACP Plan
that has given rise to rights under this Section 4.2."
"(f) Promptly following the close of business on the third
business day preceding each DRIP/ACP Investment Date, the Irvine
Persons shall give written notice to the Company of (i) the number
of shares of Common Stock beneficially owned by Irvine Persons
(which for the avoidance of doubt includes all Original Limited
Partners as defined in the Partnership Agreement) as of such close
of business (whether under the DRIP/ACP Plan or otherwise), (ii) the
aggregate amount of dividends to be paid with respect to such
shares, if any, which such Persons have elected to be reinvested in
newly issued shares of Common Stock on such DRIP/ACP Investment Date
pursuant to the DRIP/ACP Plan and (iii) the aggregate amount of
additional cash, if any, to be invested by all such Persons in newly
issued shares of Common Stock on such DRIP/ACP Investment Date
pursuant to the DRIP/ACP Plan. Such notice shall be provided by The
Irvine Company on behalf of all Irvine Persons so long as The Irvine
Company or any of its Affiliates beneficially owns L.P. Units in the
Operating Partnership (and thereafter by the Original Limited
Partner (as defined in the Partnership Agreement) holding the
largest Percentage Interest (as so defined) in the Operating
Partnership) and such information shall be used by the Company in
determining DRIP/ACP Investment Amount for purposes of the notice
given by it pursuant to Section 4.2(a). In the event the notice
required by this paragraph (f) is not given by the close of business
in the second business day preceding a DRIP/ACP Investment Date, the
Company shall determine the DRIP/ACP Investment Amount based on the
following assumptions: (i) that the Irvine Persons beneficially own
the number of shares of Common Stock set forth in the most recent
Form 3 or 4 or Schedule 13G filed by such Persons pursuant to the
Securities Exchange Act of 1934, as amended, (ii) that such Persons
will reinvest pursuant to the DRIP/ACP Plan all the
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dividends to be paid on such number of shares of Common Stock on the
applicable DRIP/ACP Investment Date and (iii) that each such Person
will make on the applicable DRIP/ACP Investment Date the maximum
additional cash investment permitted by the DRIP/ACP Plan to be made
by such Person on such DRIP/ACP Investment Date.
Section 6. Except as amended by this Amendment No. 1, the provisions of
the Existing Agreement are ratified, approved and confirmed and shall remain in
full force and effect in accordance with its terms.
Section 7. This Amendment No. 1 shall become effective when signed by the
parties to the Existing Agreement and the Partnership Agreement Amendment shall
have become effective in accordance with the terms thereof and the Partnership
Agreement.
Section 8. This Amendment No. 1 shall be construed and enforced in
accordance with and governed by the laws of the State of Maryland, without
regard to the choice of law provisions thereof.
Section 9. This Amendment No. 1 may be executed in counterparts, all of
which shall constitute one agreement binding on all parties hereto,
notwithstanding that all such parties are not signatories to the original or
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
as of the date and year first written above. IRVINE APARTMENT COMMUNITIES, INC.
By:_____________________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
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IRVINE APARTMENT COMMUNITIES, L.P.
By: Irvine Apartment Communities, Inc.,
General Partner
By:____________________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
THE IRVINE COMPANY
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
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