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EXECUTION COPY
Amendment to the Operating Partnership Agreement relating to proportional
purchase rights and certain other matters. THIS AMENDMENT WAS APPROVED BY THE
BOARD OF DIRECTORS AND INDEPENDENT DIRECTORS COMMITTEE OF IAC ON JULY 25, 1997
AS AMENDMENT NO. 9. HOWEVER, AMENDMENT NO. 8 PREVIOUSLY APPROVED BY THE BOARD OF
DIRECTORS HAD NOT YET BEEN EXECUTED AND, ACCORDINGLY, THIS AMENDMENT WAS
RENUMBERED AS AMENDMENT NO. 8.
AMENDMENT No. 8 dated as of July 25, 1997 to the Amended and
Restated Agreement of Limited Partnership of Irvine Apartment Communities, L.P.
dated as of December 1, 1993, as amended (the "Existing Agreement") by and among
Irvine Apartment Communities, Inc., a Maryland corporation, as General Partner,
and the Persons whose names are set forth on Exhibit A thereto, as Limited
Partners, together with any other Persons who become Partners in the Partnership
as provided therein.
W I T N E S S E T H:
WHEREAS, in accordance with Section 14.1 of the Existing Agreement
the General Partner is hereby proposing to amend the Existing Agreement as set
forth below;
WHEREAS, concurrently with the execution and delivery hereof
Amendment No. 1 to the Miscellaneous Rights Agreement (the "Miscellaneous Rights
Agreement Amendment") is being executed and delivered by the partners thereto
which Miscellaneous Rights Agreement Amendment is required as a result of
certain of the amendments to be effected hereby;
WHEREAS, the parties hereto agree that the execution of this
Amendment No. 8 by a Limited Partner and the delivery thereof to the General
Partner shall constitute the Consent and affirmative vote of such Limited
Partner to the amendments proposed hereby as required by Article 14 of the
Existing Agreement; and
WHEREAS, the execution and delivery of this Amendment No. 8 by the
General Partner has been approved by resolutions duly adopted by the Board of
Directors of the General Partner, and by the Independent Directors Committee of
such Board.
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NOW, THEREFORE, the parties hereto agree as follows:
Section 1. All terms used in this Amendment No. 8 shall have the meanings
set forth in the Existing Agreement.
Section 2. (a) The definitions of Capital Contribution, ACP Investment
Amount, DRIP Investment Amount and Maximum Limited Partner Investment Amount in
Article 1 of the Existing Agreement are hereby amended to read in their entirety
as follows:
"Capital Contribution" means, with respect to any Partner, any cash or the
Gross Asset Value of any Contributed Property which such Partner contributes to
the Partnership pursuant to Sections 4.1, 4.2, 4.3 or 4.5 hereof or is deemed to
contribute pursuant to Sections 4.5.G(1), 4.6 and 4.8 hereof, as such Gross
Asset Value may be determined from time to time.
"ACP Investment Amount" means with respect to a DRIP/ACP Investment Date
the aggregate amount of additional cash to be invested in newly issued REIT
Shares on such DRIP/ACP Investment Date pursuant to the DRIP/ACP Plan minus the
aggregate amount of additional cash to be so invested by all Irvine Persons and
the Original Limited Partners in newly issued REIT Shares 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 REIT Shares to be reinvested in newly
issued REIT Shares on such DRIP/ACP Investment Date pursuant to the DRIP/ACP
Plan minus the aggregate amount of dividends paid on REIT Shares beneficially
owned (whether under the DRIP/ACP Plan or otherwise) by all Irvine Persons and
the Original Limited Partners to be so reinvested in newly issued REIT Shares on
such DRIP/ACP Investment Date pursuant to the DRIP/ACP Plan.
"Maximum Limited Partner Investment Amount" means with respect to each
DRIP/ACP Investment Date a dollar amount equal to (A) the DRIP/ACP Investment
Amount for such DRIP/ACP Investment Date divided by 1 minus the aggregate of the
Percentage Interests of the Original Limited Partners in the Partnership 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.
(b) The definition of Combined Cash and Property Amount in Article 1 of
the Existing Agreement is hereby deleted in its entirety.
(c) the definition of Value in Article 1 of the Existing Agreement is
hereby
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amended (i) by deleting the proviso beginning with the words "provided, further"
and ending with the words "in the case of clause (y) above." and (ii) by
changing the semi-colon (;) immediately prior to such proviso to a period (.).
(d) The definition of Second Offering in the Existing Agreement is
hereby amended to read in its entirety as follows:
"Second Offering" means the underwritten public offering of up to
5,750,000 REIT Shares referred to in the Funding Notice dated July 18, 1995."
Section 3. Sections 4.3.A and 4.3.B of the Existing Agreement are hereby
amended by deleting the words "and not pursuant to Section 4.5.G hereof".
Section 4. Section 4.5.E of the Existing Agreement is hereby amended by
adding the following immediately before the words "and (ii):"
"provided that with respect any issuance of preferred stock of the General
Partner or New Securities, the General Partner at its option may, in lieu
of making a Capital Contribution, loan the proceeds from the issuance of
such shares of preferred stock or New Securities to the Partnership on a
subordinated basis, such loan to be on terms and conditions no less
favorable to the Partnership than would be available to the Partnership
from a third party."
Section 5. Section 4.5.F of the Existing Agreement is hereby amended by
deleting the last sentence thereof.
Section 6. Section 4.5.G of the Existing Agreement is hereby amended to
read in its entirety as follows:
"(1) Upon the acceptance of additional cash Capital Contributions pursuant
to this Section 4.5 (other than Section 4.5.H), the Percentage Interests of the
Partners shall be adjusted based upon the number of Partnership Units issued in
connection with such Capital Contribution, provided that in connection with a
Capital Contribution by any Limited Partner pursuant to an Election Notice under
Section 4.5.F in response to (i) a Funding Notice relating to the Second
Offering, such Limited Partner shall be deemed to have contributed to the
Partnership an amount equal to the cash actually contributed by such Limited
Partner on the Adjustment Date, minus an amount equal to the aggregate
underwriting discounts and commissions that would have been applicable to REIT
Shares if the cash contributed by such Limited Partner on the Adjustment Date
had been used to acquire REIT Shares in the Second Offering, and (ii) a Funding
Notice relating to any offering of REIT Shares subsequent to the Second Offering
in which the amount of cash actually contributed by such Limited Partner per
Limited Partner
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Unit (the "L.P. Per Unit Contribution") is greater than the amount of cash per
General Partner Unit actually contributed by the General Partner in respect of
the REIT Shares sold in such offering (the "G.P. Per Unit Contribution"), such
Limited Partner shall be deemed to have contributed to the Partnership an amount
equal to the cash actually contributed by such Limited Partners on the
Adjustment Date minus an amount equal to the product of (A) the L.P. Per Unit
Contribution minus the G.P. Per Unit Contribution and (B) the number of Limited
Partner Units purchased by such Limited Partner pursuant to such Election
Notice."
"(2) Upon the acceptance of additional Capital Contributions pursuant to
this Section 4.5 in the form of Property other than cash, the amount of the
Capital Contribution shall be equal to the Gross Asset Value of the Property
contributed as of the Adjustment Date, net of any liabilities assumed by the
Partnership in connection with such assets or Nonrecourse Liabilities to which
such Property is subject, and the Percentage Interests of the Partners shall be
adjusted based upon the number of Partnership Units issued in connection with
such Capital Contribution; provided that with respect to the Capital
Contribution made by TRC pursuant to that certain Contribution Agreement (the
"Contribution Agreement") by and between the Partnership and TRC, dated as of
December 20, 1996, the Percentage Interest of TRC and all other Partners shall
be adjusted based on the number of Partnership Units issued from time to time to
TRC pursuant to such Contribution Agreement."
"(3) Upon the acceptance of additional Capital Contributions pursuant to
this Section 4.5 in the form of cash and other Property, the amount of the
Capital Contribution shall be equal to the sum of (A) the amount of cash
contributed on the Adjustment Date and (B) the Gross Asset Value of the Property
contributed as of the Adjustment Date, net of any liabilities assumed by the
Partnership in connection with such assets or Nonrecourse Liabilities to which
the Property is subject, and the Percentage Interests of the Partners shall be
adjusted based on the number of Partnership Units issued in connection with such
Capital Contribution."
Section 7. Section 4.8.A of the Existing Agreement is hereby amended as
follows:
(a) Clause (1) is hereby amended by adding the words "but subject to
having received the notice referred to in clause (5) below" immediately
following the words "DRIP/ACP Investment Date" the first time such words appear
in said clause (1).
(b) The words "and not pursuant to section 4.5.G hereof" in the last
sentence of clause (3) and in the second sentence of clause (4) are hereby
deleted in their entirety.
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(c) Clause (5) is hereby deleted in its entirety and replaced with the
following:
"(5) Promptly following the close of business on the third business day
preceding each DRIP/ACP Investment Date, the Original Limited Partners
shall give written notice to the General Partner of (i) the number of REIT
Shares beneficially owned by the Original Limited Partners and Irvine
Persons 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 number of REIT Shares, if any, which such Persons have elected to
be reinvested in newly issued REIT Shares 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 REIT
Shares 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 such
Persons so long as The Irvine Company or any of its Affiliates is the
holder of a Limited Partner Interest (and thereafter by the Original
Limited Partner holding the largest Percentage Interest in the
Partnership) and such information shall be used by the General Partner in
determining the DRIP/ACP Investment Amount for purposes of the notice
given by it pursuant to Section 4.8.A(1). In the event the notice required
by this clause (5) is not given by the close of business on the second
business day preceding a DRIP/ACP Investment Date, the General Partner
shall determine the DRIP/ACP Investment Amount based on the following
assumptions: (i) that the Original Limited Partners and Irvine Persons
beneficially own the number of REIT Shares set forth in the most recent
Form 3 or Form 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 dividends to be paid on
such number of REIT Shares 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 8. Section 4.8.B(3) is hereby amended by deleting the words "and
not pursuant to Section 4.5.G. hereof".
Section 9. Except as amended by this Amendment No. 8, 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 10. This Amendment No. 8 shall become effective when signed by
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the General Partner and a Majority-In-Interest of the Limited Partners and the
Miscellaneous Rights Agreement Amendment has become effective in accordance with
its terms.
Section 11. This Amendment No. 8 shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware, without
regard to the principles of conflicts of law.
Section 12. This Amendment No. 8 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. 8
as of the date and year first written above.
GENERAL PARTNER:
IRVINE APARTMENT COMMUNITIES, INC.,
a Maryland Corporation
By:_________________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
By:_________________________________
Name: Xxxxx Xxxxx
Title: Vice President, Corporate Finance
and Controller
LIMITED PARTNERS:
THE IRVINE COMPANY,
a Michigan corporation
By:_________________________________
Name:
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Title:
By:_________________________________
Name:
Title:
R.S.J. ASSOCIATES,
a California limited partnership
By: The Irvine Company, its general partner
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
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WOODBRIDGE WILLOWS ASSOCIATES,
a California limited partnership
By: The Irvine Company, its general partner
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
TIC INVESTMENT COMPANY A,
a California general partnership
By: The Irvine Company, a general partner
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
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TIC INVESTMENT COMPANY B,
a California general partnership
By: The Irvine Company, a general partner
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
TIC INVESTMENT COMPANY C,
a California general partnership
By: The Irvine Company, a general partner
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
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TIC INVESTMENT COMPANY D,
a California general partnership
By: The Irvine Company, a general partner
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
XXXXXXXX RESIDENTIAL COMPANY, INC.,
a California corporation
By:_________________________________
Name:
Title:
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