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EXECUTION COPY
AMENDMENT TO LAND RIGHTS AGREEMENT TO CORRECT MISTAKE IN ORIGINAL AGREEMENT
AMENDMENT No. 4 dated as of July 25, 1997 to the Exclusive Land Rights and
Non-Competition Agreement dated as of November 21, 1993 (the "Original
Agreement") as amended by Amendment No. 1 thereto dated April 20, 1995,
Amendment No. 2 thereto dated July 18, 1995 and Amendment No. 3 thereto dated as
of May 2, 1996 (as so amended, the "Existing Agreement").
W I T N E S S E T H:
WHEREAS, The Irvine Company, a Michigan corporation, Irvine Apartment
Communities, L.P., a Delaware limited partnership ("Partnership"), Irvine
Apartment Communities, Inc., a Maryland corporation (the "Corporation"), and Mr.
Xxxxxx Xxxx, an individual, have entered into the Existing Agreement;
WHEREAS, the Prospectus dated December 1, 1993 relating to the
Corporation's 1993 initial public offering specifically stated on pages 23 and
72 thereof that the various land purchase and non-competition arrangements of
the Original Agreement would be subject to early termination upon the occurrence
of certain events, including if, during the period that The Irvine Company has
the right to nominate three persons to the Board of Directors of the
Corporation, the provisions of the Corporation's Certificate of Incorporation
and Bylaws requiring approval of the Required Directors (defined in the
Corporation's Certificate of Incorporation as directors representing more than
75% of the entire Board of Directors) to take certain actions are repealed,
modified, or amended without the prior written consent of The Irvine Company;
WHEREAS, the parties hereto agree that the early termination provision set
forth in the foregoing WHEREAS clause accurately reflects the parties intent at
the time the Original Agreement was entered into;
WHEREAS, Section 4.3 of the Original Agreement contains a mistake in that
it does not correctly reflect the foregoing early termination provision;
WHEREAS, the parties hereto desire to amend the Existing Agreement as set
forth below in order to correct Section 4.3 so that it accurately reflects the
parties original intent; and
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WHEREAS, the execution and delivery of this Amendment by the Partnership
and the Corporation have been approved by resolutions duly adopted by the
Independent Directors Committee of the Board of Directors of the Corporation.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Section 4.3 of the Existing Agreement is hereby amended to read
in its entirety as follows:
"4.3 CHANGES WITHOUT CONSENT. During the period that Irvine has the
right to nominate 3 persons to REIT's Board of Directors as set
forth in the REIT's Bylaws, any provision of the REIT's Certificate
of Incorporation or Bylaws which requires that the affirmative vote
of the Required Directors (as defined in the Certificate of
Incorporation and Bylaws) be obtained in connection with certain
actions is, without Irvine's prior written consent, repealed,
modified or amended to require less than an affirmative vote of
Required Directors for approval thereof."
Section 2. Except as amended hereby, 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 3. The validly, construction and enforceability of this Amendment
shall be governed in all respects by the internal laws of the State of
California without regard to its conflict of laws rules.
Section 4. This Amendment may be executed in two or more counterparts, all
of which taken together with signature pages from each party hereto shall be
considered the same agreement, binding against all parties hereto.
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