Exhibit 1.1
IRVINE APARTMENT COMMUNITIES, L.P.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
_______, 199_
From time to time, Irvine Apartment Communities, L.P., a
Delaware limited partnership (the "Operating Partnership"), may enter into one
or more underwriting agreements that provide for the sale of designated
securities to the several underwriters named therein. The standard provisions
set forth herein may be incorporated by reference in any such underwriting
agreement (an "Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein sometimes referred
to as this Agreement. Terms defined in the Underwriting Agreement are used
herein as therein defined.
The Operating Partnership has filed with the Securities and
Exchange Commission (the "Commission") a registration statement, including a
prospectus, relating to the Debt Securities, and has filed with, or transmitted
for filing to, or shall promptly hereafter file with or transmit for filing
to, the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means such post-effective amendment to the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included
in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein, the
terms "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement," "amendment" and "amend" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by the Operating
Partnership with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
Irvine Apartment Communities, Inc., a Maryland corporation (the
"Company"), owns a general partnership interest in the Operating Partnership
and is its sole managing general partner. The Operating Partnership owns and
operates multifamily apartment communities (the "Properties"). The Operating
Partnership holds general and limited partnership interests in a partnership
(the "Property Partnership") which owns one of the Properties. The Company, the
Operating Partnership and the Property Partnership are herein collectively
referred to as the REIT Entities and all references to properties or assets of
the REIT Entities include, without limitation, the Properties, unless otherwise
noted.
The term "Contract Securities" means the Offered Securities to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Operating
Partnership may approve (the "Delayed Delivery Contracts"). The term
"Underwriters' Securities" means the Offered Securities other than Contract
Securities.
1. Representations and Warranties. Each of the Company and the
Operating Partnership, jointly and severally, represents and warrants to and
agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations of
the Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any Underwriter
furnished to the Operating Partnership in writing by such Underwriter through
the Manager expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee.
(c) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the REIT Entities,
taken as a whole. Other than the Operating Partnership, the Company has no
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X
promulgated by the Commission ("Significant Subsidiaries").
(d) Each of the Operating Partnership and the Property Partnership
have been duly formed, is validly existing as a limited partnership in good
standing under the laws of the jurisdiction of its formation, has the power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the REIT Entities, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered
by the Company and the Operating Partnership.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Operating
Partnership and is a valid and binding agreement of the Operating Partnership,
enforceable in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(g) If applicable, the Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Operating Partnership and are valid
and binding agreements of the Operating Partnership, enforceable in accordance
with their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, in the case of the Underwriters' Securities, or
by institutional investors in accordance with the terms of any applicable
Delayed Delivery Contracts, in the case of the Contract Securities, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Operating Partnership, in each case enforceable in
accordance with their respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration, if any, and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(i) The execution and delivery by the Company and the Operating
Partnership of, and the performance by them of their obligations under, this
Agreement, the Indenture, the Offered Securities and the Delayed Delivery
Contracts, as applicable, will not contravene any provision of applicable law
or the charter or by-laws of the Company, the certificate of limited
partnership or partnership agreement of the Operating Partnership, as amended
or restated, (the "OP Partnership Agreement"), the certificate of limited
partnership or partnership agreement of the Property Partnership (the
"Property Partnership Agreement") or any agreement or other instrument binding
upon the REIT Entities that is material to the REIT Entities, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the REIT Entities, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company or the Operating
Partnership of their obligations under this Agreement, the Indenture, the
Offered Securities or the Delayed Delivery Contracts, as applicable, except
such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Offered Securities.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the REIT
Entities, taken as a whole, from that set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement).
(k) There are no legal or governmental proceedings pending or
threatened to which any of the REIT Entities is a party or to which any of the
Properties is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(l) Each preliminary prospectus filed as part of the post-effective
amendment to the registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(m) The Properties are, to the best knowledge of the REIT
Entities, in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), and the REIT Entities and the Company
(i) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and
(ii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the
REIT Entities, taken as a whole.
(n) To the best of the knowledge of the Company and the Operating
Partnership, there are no costs and liabilities associated with Environmental
Laws except as disclosed in the Registration Statement, which would, singly or
in the aggregate, have a material adverse effect on the REIT Entities, taken as
a whole.
(o) The Operating Partnership has (whether directly or indirectly
through the ownership of the Property Partnership) good title in fee simple to
the Properties and good title to all personal property owned as is material to
the business of the REIT Entities, taken as a whole, in each case free and
clear of all liens, encumbrances and defects except such as are described in
the Prospectus or in title policies held by the Operating Partnership or such
as do not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the REIT
Entities, (i) any real property held under lease by any REIT Entity is held by
it under valid, subsisting, enforceable leases, and no default by any REIT
Entity has occurred and is continuing thereunder, with such exceptions as are
not material and do not interfere in any material respect with the use made
and proposed to be made of such property by any REIT Entity, (ii) the
operation of the buildings, fixtures and other improvements located on the
Properties as presently conducted is not in violation of any applicable
building code, zoning ordinance or other law or regulation, except where such
violation of any applicable building code, zoning ordinance or other law or
regulation would not, singly or in the aggregate, have a material adverse
effect on the REIT Entities, taken as a whole, (iii) neither the Company nor
the Operating Partnership has received notice of any proposed special
assessment or any proposed material change in any property tax, zoning or land
use laws or availability of water for irrigation affecting all or any portion
of the Properties, (iv) there do not exist any material violations of any
declaration of covenants, conditions and restrictions (the "CC&R's") with
respect to any of the Properties, nor is there any existing state of facts or
circumstances or condition or event which could, with the giving of notice or
passage of time, or both, constitute such a violation and (v) the improvements
comprising any portion of the Properties (the "Improvements") are free of any
and all material physical, mechanical, structural, design and construction
defects and the Improvements (including, without limitation, all water,
electric, sewer, plumbing, heating, ventilation, gas and air conditioning
servicing the Improvements) are in good condition and proper working order and
are free of material defects.
(p) The REIT Entities have and will maintain liability, property,
casualty and other insurance policies, with respect to each of the Properties,
insuring them against the risks of loss arising out of or related to their
businesses, in an amount and on such terms as is adequate and appropriate for
such businesses.
(q) All of the partnership interests of the Operating Partnership
("OP Units") have been validly issued and are validly owned, directly or
indirectly, in the percentage amounts set forth in the Prospectus by the
Company and The Irvine Company, in the case of the Company, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity
(each of the foregoing a "Lien"). The Company is the sole general partner of
the Operating Partnership.
(r) All of the partnership interests of the Property Partnership
have been validly issued and are owned of record by the Operating Partnership
and a third party, in the case of the Operating Partnership, free and clear of
all liens.
2. Delayed Delivery Contracts. If the Prospectus provides for
sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Operating Partnership hereby authorizes the Underwriters to solicit offers to
purchase Contract Securities on the terms and subject to the conditions set
forth in the Prospectus pursuant to Delayed Delivery Contracts. Delayed
Delivery Contracts may be entered into only with institutional investors
approved by the Operating Partnership of the types set forth in the
Prospectus. On the Closing Date, the Operating Partnership will pay to the
Manager as compensation for the accounts of the Underwriters the commission
set forth in the Underwriting Agreement in respect of the Contract Securities.
The Underwriters will not have any responsibility in respect of the validity
or the performance of any Delayed Delivery Contracts.
If the Operating Partnership executes and delivers Delayed
Delivery Contracts with institutional investors, the aggregate amount of
Offered Securities to be purchased by the several Underwriters shall be
reduced by the aggregate amount of Contract Securities; such reduction shall
be applied to the commitment of each Underwriter pro rata in proportion to the
amount of Offered Securities set forth opposite such Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be applied in other proportions and so advises the
Operating Partnership; provided, however, that the total amount of Offered
Securities to be purchased by all Underwriters shall be the aggregate amount
set forth above, less the aggregate amount of Contract Securities.
3. Terms of Public Offering. The Operating Partnership is advised
by the Manager that the Underwriters propose to make a public offering of
their respective portions of the Underwriters' Securities as soon after this
Agreement has been entered into as in the Manager's judgment is advisable. The
terms of the public offering of the Underwriters' Securities are set forth in
the Prospectus.
4. Payment and Delivery. Except as otherwise provided in this
Section, payment for the Underwriters' Securities shall be made by a wire
transfer to the Operating Partnership in immediately available funds at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations
as the Manager shall request in writing not less than two full business days
prior to the date of delivery, with any transfer taxes payable in connection
with the transfer of the Underwriters' Securities to the Underwriters duly
paid.
5. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Operating Partnership's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the REIT Entities, taken as a whole,
from that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) that, in the
judgment of the Manager, is material and adverse and that makes it, in the
judgment of the Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, in its individual capacity and in its capacity as general partner of
the Operating Partnership, to the effect set forth in clause 5(a)(i) and to the
effect that the representations and warranties of the Company and the
Operating Partnership contained in this Agreement are true and correct as of
the Closing Date and that the Company and the Operating Partnership have each
complied with all of the agreements and satisfied all of the conditions on
their part to be performed or satisfied hereunder on or before the Closing
Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Piper & Marbury L.L.P., Maryland counsel for the Company and the
Operating Partnership, or other counsel for the Company and the Operating
Partnership, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Maryland, and has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus;
(ii) this Agreement has been duly authorized, executed and delivered
by the Company in its individual capacity and in its capacity as general
partner of the Operating Partnership;
(iii) the Indenture has been duly authorized, executed and delivered
by the Company in its capacity as general partner of the Operating
Partnership;
(iv) if applicable, the Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company in its capacity as general
partner of the Operating Partnership;
(v) the Offered Securities have been duly authorized by the Company
in its capacity as general partner of the Operating Partnership; and
(vi) the execution and delivery by the Company, in its individual
capacity and in its capacity as general partner of the Operating Partnership,
and the performance by the Company or the Operating Partnership of their
respective obligations under, this Agreement, the Indenture, the Offered
Securiites and the Delayed Delivery Contracts, as applicable, will not
contravene any provision of applicable law or the charter or by-laws of the
Company and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency of the State of Maryland is required for
the performance by the Company or the Operating Partnership of their
respective obligations under this Agreement, the Indenture, the Offered
Securities, the Delayed Delivery Contracts, as applicable (excluding the
securities or Blue Sky laws of the State of Maryland, as to which such counsel
need not express any opinion).
In rendering the foregoing opinions, Piper & Marbury, L.L.P. or
other counsel for the Company and the Operating Partnership may state that
their opinion relates only to the laws of the State of Maryland.
(d) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company and the
Operating Partnership, or other counsel for the Company and the Operating
Partnership, dated the Closing Date, to the effect that:
(i) based solely on certificates of public officials, such
counsel confirms that the Company is qualified to do business in
the State of California. To the best of such counsel's
knowledge, other than the Operating Partnership, the Company has
no Significant Subsidiaries;
(ii) the Operating Partnership has been duly formed, is
validly existing as a limited partnership in good standing under
the laws of the State of Delaware and has the power and
authority to own, lease and operate its property and to conduct
its business as described in the Prospectus. Based solely on
certificates of public officials, such counsel confirms that the
Operating Partnership is qualified to do business in the State
of California;
(iii) assuming due authorization, execution and delivery of
this Agreement by the Company in its capacity as general partner
of the Operating Partnership, this Agreement has been duly
authorized, executed and delivered by the Operating Partnership;
(iv) the Indenture has been duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and
delivery by the Company in its capacity as general partner of
the Operating Partnership, is a valid and binding agreement of
the Operating Partnership, enforceable in accordance with its
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(v) if applicable, assuming due authorization, execution and
delivery by the Company in its capacity as general partner of
the Operating Partnership, the Delayed Delivery Contracts are
valid and binding agreements of the Operating Partnership,
enforceable in accordance with their respective terms except as
(a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally
and (b) the availability of equitable remedies may be limited by
equitable principles of general applicability;
(vi) assuming due authorization by the Company in its capacity
as general partner of the Operating Partnership, the Offered
Securities, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of the
Underwriting Agreement, in the case of Underwriters' Securities,
or by institutional investors in accordance with the terms of
the Delayed Delivery Contracts, if applicable, in the case of
the Contract Securities, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the
Operating Partnership, enforceable in accordance with their
respective terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration, if
any, and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(vii) assuming due authorization, execution and delivery by the
Company in its capacity as general partner of the Operating
Partnership, the execution and delivery by the Operating
Partnership of, and the performance by the Operating Partnership
of its obligations under, this Agreement, the Indenture, the
Offered Securities and the Delayed Delivery Contracts, as
applicable, will not contravene the certificate of limited
partnership of the Operating Partnership, the OP Partnership
Agreement, the Miscellaneous Rights Agreement (as defined in the
Prospectus) or any agreement or other instrument binding upon
any of the REIT Entities that is material to the REIT Entities,
taken as a whole, or any judgment or decree of any governmental
body, agency or court having jurisdiction over any of the REIT
Entities (it being understood that such counsel expresses no
opinion as to any judgment or decree of the United States
Department of Housing and Urban Development ("HUD")), and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency (it being understood that
such counsel expresses no opinion as to any consent, approval,
authorization or order of, or qualification with, HUD) is
required for the performance by the Operating Partnership of its
obligations under this Agreement, the Indenture, the Offered
Securities or the Delayed Delivery Contract, as applicable,
except such as may be required by the securities, Blue Sky or
real estate syndication laws of the various states in connection
with the offer and sale of the Offered Securities, provided that
in giving this opinion as to any agreement or other instrument
binding upon any of the REIT Entities, such counsel may rely
without independent investigation upon an opinion of counsel for
the Company and the Operating Partnership;
(viii) the statements (A) in the Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution";
(B) in the Registration Statement under Item 15, (C) in "Item 8
-- Legal Proceedings" of the Operating Partnership's
registration statement on Form 10 incorporated by reference in
the Registration Statement, (D) in "Item 3 - Legal Proceedings"
of the Operating Partnership's most recent annual report on Form
10-K, if any, incorporated by reference in the Prospectus and
(E) in "Item 1 - Legal Proceedings" of Part II of the Operating
Partnership's quarterly reports on Form 10-Q, if any, filed
since such annual report, in each case insofar as such
statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(ix) such counsel does not know of any legal or governmental
proceedings pending or threatened to which any of the REIT
Entities or any of the Properties is subject that are required
to be described in the Registration Statement or the Prospectus
and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as
required; and
(x) such counsel (A) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (except for financial statements and
schedules included therein as to which such counsel need not
express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (B) has no reason
to believe that (except for financial statements and schedules
as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the
Form T-1 heretofore referred to) each part of the Registration
Statement, when such part became effective, contained and, as of
the date such opinion is delivered, contains any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, (C) is of the opinion
that the Registration Statement and Prospectus (except for
financial statements and schedules included therein as to which
such counsel need not express any opinion) comply as to form in
all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (D) has
no reason to believe that (except for financial statements and
schedules as to which such counsel need not express any belief)
the Prospectus as of the date such opinion is delivered contains
any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading.
In rendering the foregoing opinions, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ or
other counsel for the Company and the Operating Partnership may state that (i)
they have relied as to factual matters on certificates of one or more officers
of the Company and (ii) their opinion relates only to the federal laws of the
United States, the laws of the State of New York and the Revised Uniform
Limited Partnership Act of the State of Delaware.
(e) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company and the Operating
Partnership, to the effect that such counsel confirms, as of the Closing Date,
the opinions set forth under the heading "Federal Income Tax Considerations"
in the Prospectus.
(f) The Underwriters shall have received on the Closing Date an
opinion of , special counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraphs 5(d)(iii), 5(d)(iv), 5(d)(v),
5(d)(vi) and 5(d)(viii) (but only as to the statements in the Prospectus under
"Description of Debt Securities" and "Plan of Distribution") and clauses
5(d)(x)(B), 5(d)(x)(C) and 5(d)(x)(D).
With respect to subparagraph 5(d)(x) above, ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇ may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein
by reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With respect
to clauses 5(d)(x)(B), 5(d)(x)(C) and 5(d)(x)(D), ___________ may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto (but not including documents incorporated therein by reference) and
review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check or
verification, except as specified.
The opinions of Piper & Marbury L.L.P. or other counsel for the
Company and the Operating Partnership described in paragraph 5(c) and of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇ or other counsel for the Company and the Operating Partnership
described in paragraph 5(d) above each shall be rendered to the Underwriters
at the request of the Company and the Operating Partnership and shall so state
therein.
(g) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Underwriters, from the Operating Partnership's independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
6. Covenants of the Operating Partnership. In further
consideration of the agreements of the Underwriters herein contained, the
Company and the Operating Partnership covenant as follows:
(a) To furnish the Manager, without charge, 3 signed copies of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph 6(c), as many
copies of the Prospectus, any documents incorporated by reference therein and
any supplements and amendments thereto or to the Registration Statement as the
Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to file
any such proposed amendment or supplement to which the Manager reasonably
objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses the Manager will
furnish to the Operating Partnership) to which Offered Securities may have
been sold by the Manager on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law; it being understood that, in the case of
any amendment to the Prospectus by means of the filing of the Operating
Partnership's quarterly or annual reports under the Exchange Act, the
Underwriters and their counsel will be furnished copies promptly after the
filing thereof.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to maintain such qualification for as long as the
Manager shall reasonably request.
(e) To make generally available to the Operating Partnership's
security holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day of the
first full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder. If such fiscal
quarter is the last fiscal quarter of the Operating Partnership's fiscal year,
such earning statement shall be made available not later than 90 days after
the close of the period covered thereby and in all other cases shall be made
available not later than 45 days after the close of the period covered
thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Operating
Partnership substantially similar to the Offered Securities (other than (i)
the Offered Securities and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the Manager.
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing
of the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the
Offered Securities; (iii) the fees and disbursements of the Company's and the
Operating Partnership's counsel and accountants and of the Trustee and its
counsel; (iv) the qualification of the Offered Securities under state
securities or Blue Sky laws in accordance with the provisions of Section 6(d),
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky or Legal Investment Memoranda; (v) the printing and delivery to
the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of any preliminary
prospectus and the Prospectus and any amendments or supplements thereto; (vi)
the printing and delivery to the Underwriters of copies of any Blue Sky or
Legal Investment Memoranda; (vii) any fees charged by rating agencies for the
rating of the Offered Securities; (viii) the filing fees and expenses, if any,
incurred with respect to any filing with the National Association of
Securities Dealers, Inc. made in connection with the Offered Securities; (ix)
any expenses incurred by the Operating Partnership or the Company in
connection with a "road show" presentation to potential investors.
7. Indemnification and Contribution. (a) The Company and the
Operating Partnership agree, jointly and severally, to indemnify and hold
harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Operating Partnership shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any
Underwriter furnished to the Operating Partnership in writing by such
Underwriter through the Manager expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Operating Partnership, the
Company's directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company and the Operating Partnership within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company
and the Operating Partnership to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Operating
Partnership in writing by such Underwriter through the Manager expressly for
use in the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph 7(a) or 7(b) such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to paragraph 7(a), and by the Company
and the Operating Partnership, in the case of parties indemnified pursuant to
paragraph 7(b). The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph 7(a) or 7(b)
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Operating Partnership on the one hand
and the Underwriters on the other hand from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company and the Operating Partnership on the one hand
and of the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Operating Partnership on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the Operating Partnership and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The relative
fault of the Company and the Operating Partnership on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Operating Partnership or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section are several in proportion to the respective principal amounts of
Offered Securities they have purchased hereunder, and not joint.
(e) The Operating Partnership and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company and the Operating Partnership contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter or the Company or the Operating
Partnership, its officers or directors or any person controlling the Company
or the Operating Partnership and (iii) acceptance of and payment for any of
the Offered Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Operating Partnership, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses 8(a)(i) through 8(a)(iv), such event, singly or together
with any other such event, makes it, in the judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Underwriters'
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate amount of the Underwriters' Securities to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the amount of Underwriters' Securities set forth
opposite their respective names in the Underwriting Agreement bears to the
aggregate amount of Underwriters' Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the amount of
Underwriters' Securities that any Underwriter has agreed to purchase pursuant
to this Agreement be increased pursuant to this Section by an amount in excess
of one-ninth of such amount of Underwriters' Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Underwriters' Securities and the
aggregate amount of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate amount of Underwriters'
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Operating Partnership for the purchase of such Underwriters'
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Operating Partnership. In any such case either the Manager or the
Operating Partnership shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Operating
Partnership to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Operating Partnership shall be unable
to perform its obligations under this Agreement, the Operating Partnership will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
UNDERWRITING AGREEMENT
_________, 199_
IRVINE APARTMENT COMMUNITIES, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Irvine Apartment Communities, L.P., a Delaware limited partnership (the
"Operating Partnership"), proposes to issue and sell [Currency and Principal
Amount] aggregate initial offering price of [Full title of Debt Securities]
(the "Debt Securities") (The Debt Securities are also referred to herein as the
"Offered Securities.") The Debt Securities will be issued pursuant to the
provisions of an Indenture dated as of _______________, 199_ (the "Indenture")
between the Operating Partnership and [NAME OF TRUSTEE], as Trustee (the
"Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Operating Partnership hereby agrees to sell to the
several Underwriters, and each Underwriter agrees, severally and not jointly,
to purchase from the Operating Partnership the respective principal amounts of
Debt Securities set forth below opposite their names at a purchase price of
____% of the principal amount of Debt Securities [, plus accrued interest, if
any, from [Date of Offered Securities] to the date of payment and delivery](1):
Principal Amount
of
Name Debt Securities
---- ----------------
Total.................
[The principal amount of Debt Securities to be purchased by the
several Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to delayed delivery contracts.](2)
The Underwriters will pay for the Offered Securities [(less any
Offered Securities sold pursuant to delayed delivery contracts)] upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 199_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 199_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.(3)
----------
(1) To be added only if the transaction does not close "flat" (i.e., when
the purchaser pays accrued interest on the debt security at closing).
Unless otherwise provided in the Debt Securities, accrued interest, if
any, will be computed on the basis of a 360-day year of twelve 30-day
months.
(2) To be added only if delayed delivery contracts are contemplated.
(3) This paragraph would have to be modified for any Offered Securities that
are to be issued in bearer form.
The Offered Securities shall have the terms set forth in the
Prospectus dated ___________, 199_, and the Prospectus Supplement dated
____________, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)](4)
Form and Denomination:
[Other Terms:]
[The commission to be paid to the Underwriters in respect of
the Offered Securities purchased pursuant to delayed delivery contracts
arranged by the Underwriters shall be ___% of the principal amount of the
Debt Securities so purchased.](5)
----------
(4)To be added only if the transaction does not close flat.
(5)To be added only if delayed delivery contracts are contemplated.
All provisions contained in the document entitled Irvine
Apartment Communities, L.P. Underwriting Agreement Standard Provisions (Debt
Securities) dated _______, 199_, a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
Acting severally on behalf of themselves
and the several Underwriters named herein
By:
By:
---------------------------
Name:
Title:
Accepted:
IRVINE APARTMENT COMMUNITIES, L.P.
By: Irvine Apartment Communities, Inc.,
its General Partner
By:
------------------------
Name:
Title:
Schedule I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Irvine Apartment
Communities, L.P., a Delaware limited partnership (the "Operating
Partnership"), and the Operating Partnership agrees to sell to the undersigned
the Operating Partnership's securities described in Schedule A annexed hereto
(the "Securities"), offered by the Operating Partnership's Prospectus dated
__________________, 19__ and Prospectus Supplement dated ________________,
19__, receipt of copies of which are hereby acknowledged, at a purchase price
stated in Schedule A and on the further terms and conditions set forth in this
Agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Operating Partnership
Securities in the principal amount and numbers on the delivery dates set forth
in Schedule A. Each such date on which Securities are to be purchased
hereunder is hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Operating Partnership or
its order by wire transfer in immediately available funds at the office of
___________________________, New York, N.Y., at 10:00 A.M. (New York time) on
the Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Operating Partnership not less than
five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Operating
Partnership shall have sold, and delivery shall have taken place to the
underwriters (the "Underwriters") named in the Prospectus Supplement referred
to above of, such part of the Securities as is to be sold to them. Promptly
after completion of sale and delivery to the Underwriters, the Operating
Partnership will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinion of counsel
for the Operating Partnership delivered to the Underwriters in connection
therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this Agreement is acceptable to the Operating Partnership,
it is requested that the Operating Partnership sign the form of acceptance
below and mail or deliver one of the counterparts hereof to the undersigned at
its address set forth below. This will become a binding agreement, as of the
date first above written, between the Operating Partnership and the
undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
Yours very truly,
_________________________
(Purchaser)
By ______________________
_________________________
(Title)
_________________________
(Address)
Accepted:
IRVINE APARTMENT COMMUNITIES, L.P.
By ___________________
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
is as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
____________________ _____________________ ____________________
SCHEDULE A
Securities:
Number to be Purchased:
Purchase Price:
Delivery: