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EXHIBIT 23
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AGREEMENT REFLECTING ADMISSION OF TIC INVESTMENT COMPANY D AS AN ADDITIONAL
LIMITED PARTNER OF THE OPERATING PARTNERSHIP.
Agreement dated July 30, 1996 between Irvine Apartment
Communities, Inc., a Maryland corporation, in its capacity as general partner
(the "General Partner") of Irvine Apartment Communities, L.P., a Delaware
limited partnership (the "Operating Partnership") and TIC Investment Company D,
a California general partnership ("TICICD"), a general partner of which is The
Irvine Company, a Michigan corporation ("TIC"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Amended and Restated
Agreement of Limited Partnership of the Operating Partnership, dated as of
December 1, 1993, as amended (the "Partnership Agreement").
WHEREAS, on the date hereof and pursuant to the Land Rights
Agreement and Section 4.3.B. of the Partnership Agreement, TICICD, as seller, is
transferring to the Operating Partnership the Colony apartment community land
site in exchange for 115,544 Limited Partner Units in the Operating Partnership
and the assumption by the Operating Partnership of certain assessment district
debt;
WHEREAS, in connection with such transfer and the issuance of
such Units, TICICD desires to be admitted to the Operating Partnership as an
Additional Limited Partner in accordance with the Partnership Agreement; and
WHEREAS, the General Partner hereby consents to the admission
of TICICD as an Additional Limited Partner of the Operating Partnership.
NOW, THEREFORE, the parties hereto agree as follows:
1. TICICD hereby acknowledges that it has received a copy of
the Partnership Agreement executed by the General Partner and the other Limited
Partners and hereby agrees to keep, observe and perform all of the terms,
covenants and conditions of the Partnership Agreement, including without
limitation, the power of attorney set forth in Section 2.4 thereof. TICICD
hereby represents and warrants to each Partner pursuant to Section 3.4 of the
Partnership Agreement as follows:
(a) All transactions contemplated by the Partnership
Agreement to be performed by TICICD have been duly authorized
by all necessary action, including without limitation, that of
its general partners;
(b) The consummation of the transactions contemplated
by the Partnership Agreement will not result in a breach or
violation of, or a default under, its partnership agreement,
any material agreement by which it or any of
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its property is or are bound, or any statute, regulation,
order or other law to which it or any of its partners is or
are subject;
(c) It is neither a "foreign person" within the
meaning of Section 1445(f) of the Code nor a "foreign partner"
within the meaning of Section 1446(e) of the Code;
(d) Upon acceptance hereof by the General Partner,
this Agreement will be binding upon and enforceable against it
in accordance with its terms;
(e) It is acquiring and will continue to hold its
interest in the Operating Partnership for its own account for
investment only and not for the purpose of, or with a view
toward, the resale or distribution of all or any part thereof,
nor with a view toward selling or otherwise distributing such
interest or any part thereof at any particular time or under
any predetermined circumstances except as permitted under
Article 11 of the Partnership Agreement;
(f) It is an "accredited investor" as such term is
defined in Rule 501 promulgated under the Securities Act of
1933, as amended. It is a sophisticated investor, able and
accustomed to handling sophisticated financial matters for
itself, particularly real estate investments, and it has a
sufficiently high net worth that it does not anticipate a need
for the funds it will have invested in the Operating
Partnership in what it understand to be a highly speculative
and illiquid investment.
The representations and warranties set forth above shall survive the
effectiveness of TICICD being admitted as an Additional Limited Partner under
the Partnership Agreement and the dissolution, liquidation and termination of
the Operating Partnership. TICICD further acknowledges that no representations
as to potential profit, cash flows, funds from operations or yield, if any, in
respect of Operating Partnership or the General Partner have been made by an
Partner or any employee or representative or Affiliate of any Partner, and that
projections and any other information, including, without limitation, financial
and descriptive information and documentation, which may have been in any manner
submitted to any of them shall not constitute any representation or warranty of
any kind or nature, express or implied.
2. Attached hereto is a counterpart signature page to the
Partnership Agreement duly executed by TICICD and a copy of Amendment No. 10 to
Exhibit A to the Partnership Agreement. TICICD hereby acknowledges that
Amendment No. 10 to Exhibit A has been prepared by the General Partner to
reflect the revised Partnership Interests in the Operating Partnership resulting
from the issuance to TICICD of the Limited Partner Units referred to above.
TICICD acknowledges that the General Partner will distribute a copy of the
executed signature page to the Partnership Agreement and Amendment No. 10 to
Exhibit A thereto to all Partners of the Operating Partnership.
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3. Upon acceptance hereof by the General Partner, TICICD shall
be admitted as an Additional Limited Partner, the General Partner shall issue to
TICICD a certificate representing 115,544 Limited Partner Units, and Exhibit A
to the Partnership Agreement shall be amended as set forth in Amendment No. 10
to Exhibit A of the Partnership Agreement attached hereto.
4. This Agreement may be executed in counterparts, all of
which together shall constitute one agreement binding on all of the parties
hereto, notwithstanding that all such parties are not signatories to the
original on the same counterpart.
5. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware, without
regard to the principles of conflict of law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first written above.
GENERAL PARTNER:
IRVINE APARTMENT COMMUNITIES, INC.,
a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxx Xx.
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Name: Xxxxxxx X. Xxxxx Xx.
Title: Executive Vice President
and Chief Financial Officer
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President
and Treasurer
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TIC INVESTMENT COMPANY D
By: The Irvine Company,
a general partner
By: /s/ Xxxxxxx X. XxXxx
-------------------------------
Name: Xxxxxxx X. XxXxx
Title: Executive Vice President
By: /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
Title: Executive Vice President
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AMENDMENT NO. 10
TO
EXHIBIT A
PARTNERS, CONTRIBUTIONS AND
PARTNERSHIP INTERESTS
Gross Asset Number
Value of of
Name and Address Cash Contributed Total Partnership
of Partner Contribution(1) Property(1) Property Units(2)
---------- --------------- ----------- -------- --------
GENERAL PARTNER
IRVINE APARTMENT $308,216,770.25(3) 0 $308,216,770.25(3) 18,477,451(3)
COMMUNITIES, INC
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
LIMITED PARTNERS
THE IRVINE COMPANY 0 883,022,698(4) 883,022,698(4) 17,303,000(4)
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
R.S.J. ASSOCIATES 0 27,286,000 27,286,000 585,000
c/o The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
WOODBRIDGE WILLOWS ASSOCIATES 0 9,989,000 9,989,000 609,000
c/o The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
TIC INVESTMENT COMPANY B 0 0 0 478,162(5)
c/o The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Percentage
Interest
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GENERAL PARTNER
IRVINE APARTMENT 45.6109905%
COMMUNITIES, INC
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
LIMITED PARTNERS
THE IRVINE COMPANY 42,7118961%
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
R.S.J. ASSOCIATES 1.3206302%
c/o The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
WOODBRIDGE WILLOWS ASSOCIATES 1.5032968%
c/o The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
TIC INVESTMENT COMPANY B 1.1803274%
c/o The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
X-0
0
Xxxxx Xxxxx Number
Value of of
Name and Address Cash Contributed Total Partnership Percentage
of Partner Contribution(1) Property(1) Property Units(2) Interest
---------- --------------- ----------- -------- -------- ----------
TIC INVESTMENT COMPANY A 24,500,126.25(6) 0 24,500,126.25(6) 1,502,000(0) 0.0000000%
c/o The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
TIC INVESTMENT COMPANY C 30,000,337.50(7) 0 30,000,337.50(7) 1,490,000(0) 0.0000000%
c/o The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
TIC INVESTMENT COMPANY D 0 0 0 115,000(0) 0.0000000%
c/o The Irvine Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
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TOTAL $362,717,234 $920,297,698 $1,283,014,932 40,510,962 100.0000000%
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(1) These amounts constitute the agreed value for purposes of the Act.
(2) Except with respect to the Limited Partner Units referred to in Notes 5, 6
and 8 and 11,751 of the General Partner Units referred to in Note 3, Partnership
Units were allocated in accordance with the net asset value of the property
contributed by each Partner.
(3) Of which $193,602,600 was contributed in connection with the December 1993
initial public offering of 11,800,000 REIT Shares, $84,378,375 was contributed
in connection with the August 1995 offering of 5,175,000 REIT Shares,
$30,000,337.50 was contributed in connection with the July 1996 offering of
1,490,700 REIT Shares, $200,000 was deemed contributed pursuant to Sections
4.6.B and 4.5.G for 10,000 REIT Shares and $35,457.75 was deemed contributed
pursuant to Section 4.8.A(3) for 1,751 REIT Shares.
(4) Includes $65,898,000 gross asset value of property contributed by five
original limited partners which limited partners were liquidated on June 30,
1995. The 1,359,000 Partnership Units owned by such limited partners were
transferred to The Irvine Company in connection with such liquidation. Also
includes $37,605,000 gross asset value of property contributed by another
original limited partner. The 160,000 Partnership Units owned by such limited
partner were transferred to The Irvine Company in June 1996.
(5) These Limited Partner Units were issued in accordance with Section 4.3.B. Of
such Limited Partner Units, 478,162 were issued prior to June 1, 1996 and were
transferred to TIC Investment Company B in June 1996 when it was admitted as a
Substituted Limited Partner.
(6) Of which $24,457,500 was contributed pursuant to Section 4.5.F and 4.5.G for
1,500,000 Limited Partner Units in connection with the August 1995 offering of
REIT Shares and $42,626.25 was deemed contributed pursuant to Section 4.8.A.(4)
for 2,105 Limited Partner Units. Of such Units, the 1,500,000 Limited Partner
Units issued pursuant to Section 4.5.F and 4.5.G ($24,457,500) and 2,105 of the
Limited Partner Units issued pursuant to Section 4.8.A(4) ($42,626.25) were
issued prior to June 1, 1996 and were transferred to TIC Investment Company A in
June 1996 when it was admitted as a Substituted Limited Partner.
(7) Contributed pursuant to Sections 4.5.F and 4.5.G for 1,490,700 Limited
Partner Units in connection with the July 1996 offering of REIT Shares.
(8) These Limited Partner Units were issued in accordance with Section 4.3.B.
TIC Investment Company D was admitted as an Additional Limited Partner in July
1996.
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PARTNERSHIP AGREEMENT
COUNTERPART SIGNATURE PAGE
ADDITIONAL LIMITED PARTNER
TIC INVESTMENT COMPANY D
By: The Irvine Company,
a general partner
By: /s/ Xxxxxxx X. XxXxx
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Name: Xxxxxxx X. XxXxx
Title: Executive Vice President
By: /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
Title: Executive Vice President
