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EXHIBIT 28.1
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
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the DRIP/ACP Plan minus the aggregate amount of additional cash to be so
invested 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).
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Section 5. Section 4.2 of the Existing Agreement is hereby further 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
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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 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: /s/ Xxxxx X. Xxxx
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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: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
THE IRVINE COMPANY
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chief Investment Officer
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