1
EXHIBIT 28
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.
▇▇▇▇▇▇ ▇▇▇▇, 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75% of the entire Board of Directors) to take certain actions are repealed,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;
2
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
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.
2
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
"IRVINE" "PARTNERSHIP"
THE IRVINE COMPANY, IRVINE APARTMENT COMMUNITIES, L.P.,
a Michigan corporation a Delaware Limited Partnership
By: /s/ M. D. ▇▇▇▇▇ By: IRVINE APARTMENT COMMUNITIES,
---------------------------- INC.,
a Maryland corporation, its
sole General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President and Chief
Financial Officer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Vice President, Corporation Finance
and Controller
"BREN" "REIT"
IRVINE APARTMENT COMMUNITIES, INC.,
a Maryland corporation
/s/ ▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------ ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President and Chief
Financial Officer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Vice President, Corporate Finance and
Controller
3