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EXHIBIT 10.11.1
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
dated as of July 10, 1998
among
IRVINE APARTMENT COMMUNITIES, L.P.,
THE BANKS LISTED HEREIN,
BANK OF AMERICA NT&SA,
as Administrative Agent,
and
▇▇▇▇▇ FARGO BANK, N.A.,
as Documentation Agent
with
▇.▇. ▇▇▇▇▇▇ SECURITIES, INC.,
as Syndication Agent
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TABLE OF CONTENTS
Page
ARTICLE I. THE AMENDMENTS ....................................................1
SECTION 1.1. Definitions ................................................1
SECTION 1.2. Types of Borrowings ........................................4
SECTION 1.3. Notes ......................................................4
SECTION 1.4. Facility Fee ...............................................5
SECTION 1.5. Payments ...................................................5
SECTION 1.6. Letters of Credit ..........................................6
SECTION 1.7. Non-Rata Revolving Loan Facility ...........................8
SECTION 1.8. Borrowings ................................................10
SECTION 1.9. Year 2000 .................................................10
SECTION 1.10. L/C Agreement .............................................10
SECTION 1.11. Banks .....................................................10
ARTICLE II. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT ...................11
ARTICLE III. REPRESENTATIONS OF BORROWER ....................................12
ARTICLE IV. MISCELLANEOUS ...................................................13
SECTION 4.1. Capitalized Terms .........................................13
SECTION 4.2. Ratification ..............................................13
SECTION 4.3. Counterparts ..............................................13
SECTION 4.4. Governing Law .............................................13
SECTION 4.5. Bank Funding Obligations ..................................13
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FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment")
dated as of July 10, 1998 among IRVINE APARTMENT COMMUNITIES, L.P., a Delaware
limited partnership (the "Borrower"), the BANKS listed on the signature pages
hereof ("Banks"), BANK OF AMERICA NT&SA, as Administrative Agent, and ▇▇▇▇▇
FARGO BANK, N.A., as Documentation Agent.
WHEREAS, Borrower, the Administrative Agent, the Documentation Agent and
the banks listed on the signature pages thereof entered into that certain
Revolving Credit Agreement ("Original Agreement") dated as of June 27, 1997;
WHEREAS, Borrower, the Banks, the Administrative Agent and the
Documentation Agent wish to extend the Maturity Date from June 27, 2000 to June
27, 2001 and make certain other amendments to the Original Agreement. The
Original Agreement, as modified by this Amendment may be referred to herein as
the "Credit Agreement";
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the Borrower, the Banks, the
Administrative Agent and the Documentation Agent agree as follows:
ARTICLE I.
THE AMENDMENTS
SECTION 1.1. Definitions. The following terms shall be added to Section
1.1 of the Original Agreement:
"L/C Agreement" means (a) so long as Bank of America is the
Administrative Agent and issuer of Letters of Credit pursuant to Section 2.16, a
letter of credit application and reimbursement agreement in the form of Exhibit
"L"; and (b) if Bank of America ceases to be the Administrative Agent or the
Agreement is amended to provide for a Bank other than Bank of America to be the
issuer of Letters of Credit pursuant to Section 2.16, a letter of credit
application in form and content reasonably satisfactory to the successor
Administrative Agent or such Bank, as the case may be.
"Letter of Credit" means a standby letter of credit issued for the
account of Borrower pursuant to this Agreement, either as originally issued as
the same may from time to time be supplemented, modified, amended, renewed or
extended.
"Letter of Credit Fee" means, with respect to each Letter of Credit
issued, a fee equal to the face amount of the applicable Letter of Credit
multiplied by the Letter of Credit Margin. The Letter of Credit Fee shall be
payable in advance as follows: (i) the first installment of the Letter of Credit
Fee shall be due upon the issuance, supplementation, modification, amendment,
renewal or extension, as the case may be, of any Letter of Credit; and (ii)
subsequent installments shall be due quarterly thereafter. The amount of each
installment pursuant to clause
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(i) above shall be one quarter of the product of (y) the applicable Letter of
Credit Fee for the date the payment is due and (z) the face amount of the Letter
of Credit issued, supplemented, modified, amended, renewed, or extended. The
amount of each installment pursuant to clause (ii) above shall be one quarter of
the product of (y) the applicable Letter of Credit Fee for the date the payment
is due and (z) the face amount of the Letter of Credit then outstanding.
"Letter of Credit Margin" means, with respect to each Letter of Credit,
the respective percentages per annum determined, at any time, based on the range
into which Borrower's Credit Rating falls on the date of issuance of the
applicable Letter of Credit, in accordance with the table set forth below (the
percentage set forth in the Letter of Credit Margin column is inclusive of the
percentage set forth in the Override to Administrative Agent column). In the
event that two (2) different Credit Ratings have been assigned, the lower of the
two Credit Ratings will prevail unless such Credit Ratings are more than one
Level (as shown in the table below) apart, in which case the average of the
margins corresponding to the two Credit Ratings will constitute the Letter of
Credit Margin. In the event that three (3) different Credit Ratings have been
assigned, the average of the margins corresponding to the two highest Credit
Ratings will constitute the Letter of Credit Margin. For purposes of
illustration only, if (i) two (2) different Credit Ratings were assigned and one
was Level I and the other was Level III, the Letter of Credit Margin would be
0.600 (i.e., the average of Level I (0.500) and Level III (0.700)); or (ii)
three (3) different Credit Ratings had been assigned and such levels were Level
I, Level III and Level IV, the Letter of Credit Margin would be 0.600 (i.e., the
average of Level I and Level III).
Range of Letter of Override to
Borrower's Credit Margin Administrative Agent
Credit Rating (% per annum) (% per annum)
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Level I A-/A3 0.500 0.100
or better
Level II BBB+/Baa1 0.600 0.100
Level III BBB/Baa2 0.700 0.100
Level IV BBB-/Baa3 0.950 0.100
Level V Below Investment 1.250 0.100
Grade
"Non-Rata Revolving Loans" is defined in Section 2.17.
The following terms shall have the meaning set forth below in lieu of
the definition set forth therefor in Section 1.1 of the Original Agreement:
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"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case of
its LIBOR Loans, its LIBOR Lending Office, and (iii) in the case of its Money
Market Loans or Non-Rata Revolving Loans, its Money Market Lending Office.
"Applicable Margin" means, with respect to each Loan, the respective
percentages per annum determined, at any time, based on the range into which
Borrower's Credit Rating then falls, in accordance with the table set forth
below. Any change in Borrower's Credit Rating causing it to move to a different
range on the table shall effect an immediate change in the Applicable Margin
(including existing Loans). Promptly after learning of a change in the
Borrower's Credit Rating, Administrative Agent shall give notice of such change
to the Banks and include in such notice the new Applicable Margin and the
effective date of such change. In the event that two (2) different Credit
Ratings have been assigned, the lower of the two Credit Ratings will prevail
unless such Credit Ratings are more than one Level (as shown in the table below)
apart, in which case the average of the margins corresponding to the two Credit
Ratings will constitute the Applicable Margin. In the event that three (3)
different Credit Ratings have been assigned, the average of the margins
corresponding to the two highest Credit Ratings will constitute the Applicable
Margin. For purposes of illustration only, if (i) two (2) different Credit
Ratings were assigned and one was Level I and the other was Level III, the
Applicable Margin for LIBOR Loans would be 0.600 (i.e., the average of Level I
(0.500) and Level III (0.700)); or (ii) three (3) different Credit Ratings had
been assigned and such levels were Level I, Level III and Level IV, the
Applicable Margin for LIBOR Loans would be 0.600 (i.e., the average of Level I
and Level III).
Applicable
Margin for Applicable
Range of Base Rate Margin for
Borrower's Loans LIBOR Loans
Credit Rating (% per annum) (% per annum)
------------- ------------- -------------
Level I A-/A3 0.0 0.500
or better
Level II BBB+/Baa1 0.0 0.600
Level III BBB/Baa2 0.0 0.700
Level IV BBB-/Baa3 0.0 0.950
Level V Below Investment 0.50 1.25
Grade
"Base Rate" means, for any day, a rate per annum equal to the greater of
(i) the rate of interest most recently publicly announced by the Administrative
Agent in San Francisco, California from time to time as its rate for domestic
commercial loans for such day minus 0.25% and (ii) the sum of 0.50% plus the
Federal Funds Rate for such day.
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"FMV Cap Rate" means 8.0%.
"Guaranty" means the Amended and Restated General Continuing Repayment
Guaranty, dated as of even date herewith and executed by Guarantor in favor of
Administrative Agent and the Banks.
"Loan" means a Base Rate Loan, a LIBOR Loan, a Money Market Loan, a
Swing Line Loan or a Non-Rata Revolving Loan and "Loans" means Base Rate Loans,
LIBOR Loans, Money Market Loans, Swing Line Loans or Non-Rata Revolving Loans or
any combination of the foregoing.
"Loan Documents" means this Agreement, the Facility Notes and the
Guaranty, as each of them may from time to time hereafter be modified,
supplemented or amended.
"Maturity Date" shall mean the date when all of the Obligations
hereunder shall be due and payable which shall be June 27, 2001, unless
accelerated pursuant to the terms hereof.
"Money Market Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit "F" hereto, evidencing the obligations of
the Borrower to repay the Money Market Loans and the Non-Rata Revolving Loans,
as they may be amended from time to time.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit D hereto, evidencing the obligation of the Borrower to repay the
Loans (other than Money Market Loans, Swing Line Loans and Non-Rata Revolving
Loans), and "Note" means any one of such promissory notes issued hereunder.
SECTION 1.2. Types of Borrowings. Section 1.3 is hereby deleted in its
entirety and replaced with the following:
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on the same date, all of which Loans are of the same type (subject to
Article VIII) and, except in the case of Base Rate Loans and Non-Rata Revolving
Loans, have the same initial Interest Period. Borrowings are classified for
purposes of this Agreement either by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Fixed Rate Borrowing" is a LIBOR Borrowing
or a Money Market Borrowing (excluding any such Borrowing consisting of Money
Market LIBOR Loans bearing interest at the Base Rate pursuant to Article VIII),
and a "LIBOR Borrowing" is a Borrowing comprised of LIBOR Loans) or by reference
to the provisions of Article 2 under which participation therein is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section 2.1 in which all
Banks participate in proportion to their Commitments, while a "Money Market
Borrowing" is a Borrowing under Section 2.3 in which a Bank's share is
determined on the basis of its bid in accordance therewith, a "Non-Rata
Revolving Loan" is a Borrowing under Section 2.17, and a "Swing Line Loan" is a
Borrowing under Section 2.8).
SECTION 1.3. Notes. Sections 2.5(a) and 2.5(b) are hereby deleted in
their entirety and replaced with the following:
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(a) The Loans (other than Money Market Loans, Swing Line Loans and
Non-Rata Revolving Loans) of each Bank shall be evidenced by a single Note in
the form of Exhibit "E" payable to the order of such Bank for the account of its
Applicable Lending Office.
(b) The Money Market Loans and Non-Rata Revolving Loans of each Bank
shall be evidenced by a single Money Market Note in the form of Exhibit "F",
payable to the order of such Bank for the account of its Applicable Lending
Office.
SECTION 1.4. Facility Fee. Section 2.9(a) is hereby deleted in its
entirety and replaced with the following:
(a) Facility Fee. The Borrower shall pay to the Administrative Agent for
the account of the Banks ratably in proportion to their respective Commitments a
Facility Fee (the "Facility Fee") on the Aggregate Commitment at the respective
per annum percentages based upon the range into which the Borrower's Credit
Rating falls, in accordance with the following table. Any change in Borrower's
Credit Rating causing it to move to a different range on the table shall effect
an immediate change in the applicable Facility Fee percentage. Promptly after
learning of a change in the Borrower's Credit Rating, Administrative Agent shall
give notice of such change to the Banks and include in such notice the new
Facility Fee percentage and the effective date of such change. In the event that
two (2) different Credit Ratings have been assigned, the lower of the two Credit
Ratings will prevail unless such Credit Ratings are more than one level (as
shown in the table below) apart, in which case the average of the margins
corresponding to the two Credit Ratings will constitute the applicable Facility
Fee percentage. In the event that three (3) different Credit Ratings have been
assigned, the average of the margins corresponding to the two highest Credit
Ratings will constitute the applicable Facility Fee percentage. For purposes of
illustration only, if (i) two (2) different Credit Ratings had been assigned and
one was Level 1 and the other was Level III, the Facility Fee percentage would
be 0.1125 (i.e., the average of Level I (0.100) and Level III (0.125); or (ii)
three (3) different Credit Ratings had been assigned and such levels were Level
I, Level III and Level IV, the Facility Fee percentage would be 0.1125 (i.e.,
the average of Level I and Level III). The Facility Fee shall be payable in
arrears in quarterly installments which shall be due on each January 1, April 1,
July 1 and October 1 during the Term. The amount of each installment shall be
one quarter of the product of (i) the applicable Facility Fee for the date the
payment is due and (ii) the Aggregate Commitment.
Level I A-/A3 or better 0.100%
Level II BBB+/Baa1 0.100%
Level III BBB/Baa2 0.125%
Level IV BBB-/Baa3 0.200%
Level V Below Investment Grade 0.250%
SECTION 1.5. Payments. The following sentence shall replace the first
sentence of Section 2.12(a):
Except as otherwise provided in Section 2.17 with respect to Non-Rata
Revolving Loans, the Borrower shall make each payment of interest and principal
on the Loans and of fees
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hereunder, not later than 10:00 A.M. (San Francisco time) on the date when due,
in Federal or other funds immediately available in San Francisco, to the
Administrative Agent at its address referred to in Section 9.1.
SECTION 1.6 Letters of Credit. The following is hereby added as
Section 2.16:
2.16 Letters of Credit.
(a) Subject to the terms and conditions set forth in this Agreement, at
any time and from time to time from the Effective Date through the day that is
five (5) days prior to the Maturity Date, the Administrative Agent shall, as
soon as reasonably practical, issue such Letters of Credit as the Borrower may
request by submitting to Administrative Agent a properly completed and executed
Request for Letter of Credit in the form attached hereto as Exhibit K, provided
that, (i) upon issuance of such Letters of Credit, the sum of all outstanding
Loans plus outstanding Letters of Credit shall not exceed the Aggregate
Commitment, (ii) the aggregate face amount of all outstanding Letters of Credit
shall not at any time exceed Twenty-Five Million Dollars ($25,000,000) and (iii)
in no event shall Letters of Credit be issued for the benefit of any of the
Banks or for purposes of securing repayment of loans extended to the Borrower or
any Subsidiary thereof. No Letter of Credit shall have an expiration date later
than the earlier of (i) twelve (12) months after the date of the issuance of
such Letter of Credit or (ii) the Maturity Date. Unless all the Banks otherwise
consent in writing, no Letter of Credit shall contain an automatic extension or
renewal clause.
(b) Each Request for Letter of Credit shall be submitted to the
Administrative Agent, together with an L/C Agreement duly executed on behalf of
the Borrower by a Certifying Officer and addressed to the Administrative Agent,
not later than 9:00 a.m., California time, at least three (3) Domestic Business
Days prior to the date upon which the requested Letter of Credit is to be
issued. The Borrower shall further deliver to the Administrative Agent such
additional instruments and documents as the Administrative Agent may reasonably
require, in conformity with the then standard practices of its letter of credit
department, in connection with the issuance of such Letter of Credit; provided
that in no event shall the Letter of Credit Fee or Letter of Credit Margin be
altered or increased other than pursuant to an amendment of the Credit
Agreement.
(c) The Administrative Agent shall, if it approves of the proposed
wording of the Letter of Credit as set forth in the Request for Letter of Credit
and L/C Agreement (which approval shall not be unreasonably withheld), and
subject to the satisfaction of the conditions set forth in this Agreement, issue
the Letter of Credit on or before 5:00 p.m., California time, on or before the
day three (3) Domestic Business Days following receipt of the documents last due
pursuant to Section 2.16(b). Upon issuance of a Letter of Credit, the
Administrative Agent shall promptly notify the Banks of the amount and terms of
such Letter of Credit. The Administrative Agent shall deliver copies of Letters
of Credit to the Banks promptly following issuance thereof, and shall notify the
Banks of payments, reimbursements, expirations, negotiations, transfers and
other activity with respect to outstanding Letters of Credit promptly following
receipt of the same.
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(d) Upon the issuance of a Letter of Credit, each Bank shall be deemed
to have purchased a pro rata participation therein from the Administrative Agent
in an amount equal to that Bank's pro rata share of such Letter of Credit.
(e) If and to the extent that any amounts are drawn upon any Letters of
Credit, the amounts so drawn shall, from the date of payment thereof by the
Administrative Agent, be considered Base Rate Loans for all purposes hereunder.
(f) Promptly after payment by the Administrative Agent of any amount
drawn upon any Letter of Credit, the Administrative Agent shall, without notice
to or the consent of the Borrower, direct the Banks to remit funds to the
Administrative Agent pursuant to Section 2.4(b) of the Agreement, pro rata in
accordance with their respective pro rata shares, in an aggregate amount equal
to the amount so paid by the Administrative Agent. Such funds shall be paid to
the Administrative Agent to reimburse it for the payment made by it under the
Letter of Credit. The Administrative Agent shall give prompt written notice to
the Banks of any reduction in the amount available to be drawn under any Letter
of Credit and of any extension of the term of any Letter of Credit.
(g) On or before the Maturity Date or any earlier termination of this
Agreement, the Borrower shall provide to the Administrative Agent a standby
letter of credit issued by a bank or other financial institution reasonably
satisfactory to the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent, in favor of the Administrative Agent,
in a face amount equal to outstanding Letters of Credit issued for the account
of the Borrower on that date, or shall make other provisions satisfactory to the
Administrative Agent for the full collateralization, by Cash or Cash Equivalent,
of such outstanding Letter of Credit. In the event that Borrower makes a Cash or
Cash Equivalent deposit pursuant to the requirements of this Section 2.16(g),
(i) Borrower's cash deposit shall earn the rate of interest then currently paid
by the Administrative Agent on comparable deposits, taking into account the
amount deposited and the term of the deposit and (ii) promptly following the
expiration of the outstanding Letter of Credit for which the Cash or Cash
Equivalent deposit was made, Administrative Agent shall, to the extent the
Letter of Credit has not been drawn, return such deposit, together with any
interest earned thereon, to Borrower. In the event of failure of the Borrower to
comply with the requirements of this Section 2.16(g), such portion of the face
amount of all outstanding Letters of Credit as to which the Borrower has failed
to comply shall be deemed to be advanced and due and payable in accordance with
the terms hereof.
(h) The issuance of any supplement, modification, amendment, renewal or
extension to or of any Letter of Credit shall be treated in all respects the
same as the issuance of a new Letter of Credit.
(i) Borrower shall pay Administrative Agent, on written demand,
commissions and fees for amendments to the Letter of Credit, payments under the
Letter of Credit, extensions of the Letter of Credit, cancellation of the Letter
of Credit, and other services in the amounts Borrower and Administrative Agent
may agree, or, in the absence of such agreement, in the amounts customarily
charged by Administrative Agent to other similarly-rated
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borrowers under corporate unsecured facilities similar to this Agreement, on the
date of Administrative Agent's demand.
(j) Upon the occurrence of any of the following events, Borrower shall
deposit with Administrative Agent, on written demand and as cash security for
Borrower's obligations to Administrative Agent under this Agreement, an amount
equal to the undrawn amount of the Letter of Credit:
(i) Any Event of Default occurs under this Agreement; or
(ii) Any court order, injunction or other legal process is issued
restraining or seeking to restrain drawing or payment under the Letter of
Credit.
(k) Borrower authorizes Administrative Agent to charge any of Borrower's
accounts with Administrative Agent for all amounts then due and payable to
Administrative Agent under this Agreement.
(l) Borrower shall pay, on written demand, all actual costs, expenses
and reasonable attorneys' fees (including allocated costs for in-house legal
services) incurred by Administrative Agent in connection with (a) any dispute
concerning the Letter of Credit or this Agreement or (b) the enforcement of this
Agreement.
(m) Subject to the laws, customs and practices of the trade in the area
where the beneficiary is located, the Letter of Credit will be subject to, and
performance under the Letter of Credit by Administrative Agent, its
correspondents, and the beneficiary will be governed by, the "Uniforms Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce, Publication No. 500," or by later Uniform Customs and Practice fixed
by later Congresses of the International Chamber of Commerce as in effect on the
date the Letter of Credit is issued.
SECTION 1.7. Non-Rata Revolving Loan Facility. The following is hereby
added as Section 2.17:
SECTION 2.17. Non-Rata Revolving Loans.
(a) Non-Rata Revolving Loan Requests. Borrower may from time, on any
Business Day prior to the Maturity Date, request that any Bank make a Loan
(relative to such Bank, a "Non-Rata Revolving Loan") for a period of up to, but
not more than, 365/366 days. The Borrower shall make such request to the Money
Market Lending Office of such Bank. Such Bank may in its sole and absolute
discretion agree to make or not make such Non-Rata Revolving Loan, it being
understood and agreed that the Bank's commitments hereunder only require the
making by them of Base Rate Loans and LIBOR Loans, and the making by the
Administrative Agent of Swing Line Loans. Except as otherwise provided in this
Agreement, and subject in each case to the satisfaction of the applicable
conditions precedent set forth herein, each Non-Rata Revolving Loan shall be
made on the terms and conditions agreed to between the relevant Borrower and the
relevant Bank.
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(b) Limitations on Making Non-Rata Revolving Loans. No Bank shall be
permitted to make any Non-Rata Revolving Loan if, after giving effect thereto,
either the aggregate outstanding amount of all Loans of all the Banks would
exceed the Aggregate Commitment or the aggregate outstanding amount of all Money
Market Loans plus Non-Rata Revolving Loans of all the Banks would exceed
$125,000,000.
(c) Maturity of Non-Rata Revolving Loans. Each Non-Rata Revolving Loan
shall be repaid on the maturity thereof or on any earlier date agreed upon by
the Borrower and the relevant Bank or required by the other terms and conditions
of this Agreement. Borrower may prepay any Non-Rata Revolving Loan on such terms
and conditions as Borrower and the relevant Bank may agree.
(d) Non-Rata Revolving Loan Records. Each Bank's Non-Rata Revolving
Loans shall be evidenced by a loan account maintained by such Bank. Borrower
hereby irrevocably authorizes the relevant Bank to record (or cause to be
recorded) the date, amount, type and maturity of each Non-Rata Revolving Loan
made by such Bank to Borrower pursuant hereto, and may, if such Bank so elects
in connection with any transfer or enforcement of its Money Market Note, endorse
on the appropriate schedule appropriate notations to evidence the foregoing
information with respect to each such Non-Rata Revolving Loan then outstanding;
provided that the failure of any Bank to make any such recordation or
enforcement shall not effect the obligations of the Borrower hereunder or under
the Money Market Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Money Market Note and to attach to and make a part of
its Money Market Note a continuation of any such schedule as and when required.
(e) Rates. Pursuant to the terms agreed to between the Borrower and the
relevant Bank, Borrower shall pay interest on the aggregate principal amount of
any Non-Rata Revolving Loan outstanding to any Bank from time to time prior to
and at maturity at a rate agreed between Borrower and such Bank. Such interest
rate shall include any compensation for reserves or similar costs incurred in
connection with such Non-Rata Revolving Loan.
(f) Payment Dates for Non-Rata Revolving Loans. Borrower shall pay
interest on the aggregate principal amount of any Non-Rata Revolving Loan
outstanding to the relevant Bank from time to time prior to and at maturity on
such dates agreed between Borrower and such Bank in connection with the making
of such Non-Rata Revolving Loan.
(g) Non-Rata Obligations. All payments (whether in respect of principal,
interest, fees or otherwise) by Borrower pursuant to this Agreement or any other
Loan Document with respect to the Non-Rata Revolving Loan shall be made by
Borrower, in same day or immediately available funds, to the relevant Bank, (for
its own account), at an account specified by such Bank, from time to time by
notice to the Borrower. All such payments on account of Non-Rata Revolving Loans
shall be made on the date due, without setoff, deduction or counterclaim and at
the times agreed to between the Borrower and the relevant Bank. Each Bank that
has made a Non-Rata Revolving Loan agrees to give the Administrative Agent
prompt notice of Borrower's failure to pay when due of any amounts owing with
respect to each such Non-Rata Revolving Loan.
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(h) Non-Rata Revolving Loans. In the case of any requested Non-Rata
Revolving Loan, each of the applicable conditions referenced in Section 2.1 of
the Credit Agreement or otherwise specified by the relevant Bank in connection
with such Non-Rata Revolving Loan shall have been satisfied.
(i) Reporting of Non-Rata Revolving Loans. Borrower agrees to provide
the Administrative Agent with written notice of each Non-Rata Revolving Loan
concurrently with or promptly after the making of such Non-Rata Revolving Loan,
which notice shall set forth, among other things: (a) the date thereof; (b) the
principal amount thereof; (c) the Interest Period applicable thereto; (d) the
aggregate dollar amount of such Lender's outstanding Non-Rata Revolving Loans as
of such date; and (e) the identity of the relevant Bank.
SECTION 1.8. Borrowings. The following shall replace Section 3.2(c):
immediately after such Borrowing, the aggregate outstanding principal
amount of the Loans together with the aggregate face amount of all outstanding
Letters of Credit, to the extent the Letters of Credit have not been drawn, will
not exceed the Aggregate Commitments.
The following is hereby added as Section 2.17:
SECTION 1.9. Year 2000. The following is hereby added as Section 4.26:
Year 2000 Compliance. The Borrower and Guarantor have each conducted a
comprehensive review and assessment of the Borrower's and Guarantor's computer
applications and made inquiry of the Borrower's and Guarantor's key suppliers,
vendors and customers with respect to the "year 2000 problem" (that is the risk
that computer applications may not be able to properly perform date-sensitive
functions after December 31, 1999) and, based on that review and inquiry,
neither the Borrower nor Guarantor believes the year 2000 problem will result in
a material adverse change in the Borrower's or Guarantor's ability to repay the
Loans.
SECTION 1.10. L/C Agreement. Exhibit F attached hereto and incorporated
herein by this reference, the Request for Letter of Credit attached hereto and
incorporated herein by this reference as Exhibit K and the L/C Agreement
attached hereto and incorporated herein by this reference as Exhibit L are
hereby added.
SECTION 1.11. Banks. Some of the Banks which were a party to the
Original Agreement have elected not to be a party to this Amendment, and another
Bank has elected to be a party to the Credit Agreement and by its signature on
this Amendment has approved the terms and conditions of the Original Agreement
and of this Amendment. In addition, the Commitment amount with respect to some
of the Banks has changed. Therefore, Schedule 1 attached to the Original
Agreement is hereby deleted and replaced by Schedule 1 attached hereto and
incorporated herein by this reference. The entities which are signatories to
this Amendment constitute the Banks.
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ARTICLE II.
CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT
The closing hereunder shall occur on the date when each of the following
conditions is satisfied (or waived by the Administrative Agent and the Banks),
each document to be dated the Closing Date unless otherwise indicated:
(a) the Borrower shall have executed and delivered to the Administrative
Agent duly executed original Notes and Money Market Notes for the account of
each Bank dated on or before the Closing Date complying with the provisions of
Section 2.5 of the Credit Agreement;
(b) the Borrower, the Administrative Agent, each of the Banks and any
Designated Bidders shall have executed and delivered to the Borrower and the
Administrative Agent a duly executed original of this Amendment;
(c) Guarantor shall have executed and delivered to the Administrative
Agent a duly executed original of the Guaranty;
(d) the Administrative Agent shall have received an opinion of O'Melveny
& ▇▇▇▇▇, LLP, counsel for the Borrower and the Guarantor, acceptable to the
Administrative Agent, and its counsel;
(e) the Administrative Agent shall have received all documents the
Administrative Agent may reasonably request relating to the existence of the
Borrower and Guarantor, the authority for and the validity of this Amendment and
the other Loan Documents, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent. Such documentation shall
include, without limitation, the agreement of limited partnership of the
Borrower, as well as the certificate of limited partnership of the Borrower,
both as amended, modified or supplemented to the Closing Date, certified to be
true, correct and complete by a senior officer of the Borrower as of a date not
more than ten (10) days prior to the Closing Date, together with a long-form
certificate of good standing as to the Borrower from the Secretary of State (or
the equivalent thereof) of Delaware, a good standing certificate issued by the
Secretary of State of the State of California, each to be dated not more than
thirty (30) days prior to the Closing Date, as well as the articles of
incorporation and bylaws of Guarantor, as amended, modified or supplemented to
the Closing Date, certified to be true, correct and complete by a senior officer
of Guarantor as of a date not more than ten (10) days prior to the Closing Date,
together with a good standing certificate as to Guarantor from the Secretary of
State (or the equivalent thereof) of Maryland, to be dated not more than thirty
(30) days prior to the Closing Date;
(f) the Borrower shall have taken all actions required to authorize the
execution and delivery of this Amendment and the other Loan Documents and the
performance thereof by the Borrower;
11
14
(g) the Administrative Agent shall have received, for its and any other
Bank's account, all fees due and payable pursuant to Section 2.9 of the Credit
Agreement on or before the Closing Date, and the fees and expenses accrued
through the Closing Date of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP;
(h) Borrower shall have paid to the Administrative Agent for the account
of the Banks, ratably in proportion to their respective Commitments, an
extension fee equal to One Hundred Eighty-Two Thousand Five Hundred Dollars
($182,500.00);
(i) no Default or Event of Default shall have occurred; and
(j) each of the Notes and Money Market Notes executed by Borrower in
connection with the Original Agreement shall have been surrendered by the
relevant Bank to the Administrative Agent for cancellation and return to the
Borrower simultaneously with the Closing (it being acknowledged and agreed by
the Banks that (y) the Notes and the Money Market Notes executed by Borrower in
connection with the Original Agreement shall be deemed canceled, paid in full
and of no further force and effect as of the Closing Date and (z) to the extent
any of such Notes or Money Market Notes are not surrendered or returned to
Borrower as of the Closing Date, the payee Bank of such unreturned Notes and
Money Market Notes shall indemnify, defend, and hold Borrower harmless from and
against any enforcement of such Notes and Money Market Notes, as applicable.
ARTICLE III.
REPRESENTATIONS OF BORROWER
The Borrower hereby represents and warrants to the Administrative Agent,
Documentation Agent and each of the Banks the following:
(a) All of the representations and warranties contained in the Original
Agreement are true and correct on and as of the date hereof and will be true and
correct after giving effect to this Amendment; the foregoing representation and
warranty is not intended to modify Section 6.1(d) of the Credit Agreement.
(b) No event which constitutes a Default or an Event of Default under
the Original Agreement, as amended hereby, has occurred and is continuing, or
would result from the execution and delivery of this Amendment.
(c) The Borrower has the power and authority to execute and deliver this
Amendment and to perform its obligations under the Original Agreement, as
amended hereby, and under the Notes; and all such action has been duly
authorized by all necessary proceeding on its part. The Original Agreement, this
Amendment and each Note has been duly and validly executed and delivered by the
Borrower and constitute a valid and legally binding obligation of the Borrower
enforceable in accordance with its terms, except as limited by moratorium,
bankruptcy, reorganization, insolvency or other laws affecting creditor's rights
generally or by the exercise of judicial discretion in accordance with general
principles of equity.
12
15
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1 Capitalized Terms. The capitalized terms used herein which
are defined in the Original Agreement and not otherwise defined herein shall
have the meanings specified therein.
SECTION 4.2 Ratification. The Original Agreement, as hereby amended, is
in all respects ratified and confirmed, and all other rights and powers created
thereby or thereunder shall be and remain in full force and effect.
SECTION 4.3 Counterparts. This Amendment may be executed in several
counterparts, and each counterpart, when so executed and delivered, shall
constitute an original instrument, and all such separate counterparts shall
constitute one and the same instrument.
SECTION 4.4 Governing Law. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF
CALIFORNIA EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW (WITHOUT GIVING EFFECT
TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
SECTION 4.5 Bank Funding Obligations. By execution of this Amendment,
each Bank covenants and agrees that on the Closing Date, it shall have funded
its prorata share of Loans outstanding on such date.
13
16
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
IRVINE APARTMENT COMMUNITIES, L.P.,
a Delaware limited partnership
By: Irvine Apartment Communities,
Inc., a Maryland corporation,
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Corporate Finance and Controller
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Address:
c/o Irvine Apartment Communities, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President, Corporate Finance and
Controller
14
17
Commitment Amount
$50,000,000
LIBOR Lending Office: BANK OF AMERICA NT & SA
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Vice President
Domestic Lending Office:
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Money Market Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
18
Commitment Amount
$50,000,000
LIBOR Lending Office: ▇▇▇▇▇ FARGO BANK, ▇▇
▇▇▇▇▇ Fargo Bank, NA
Disbursement and Operations Center By: /s/ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ -------------------------------
El ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇
------------------------
Title: VP
------------------------
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office:
▇▇▇▇▇ Fargo Bank, NA
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Office Manager
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Money Market Lending Office:
▇▇▇▇▇ Fargo Bank, NA
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Office Manager
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
19
Commitment Amount
$45,000,000
LIBOR Lending Office: ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK
------------------------------
------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
------------------------------ -------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Attn: ------------------------------
------------------------- Title: Vice President
Telecopy: ( ) ------------------------------
--- --------------
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Domestic Lending Office: Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------
------------------------------
------------------------------ Domestic and Euro-Currency
Lending Office:
Attn: Nassau, Bahamas Office
------------------------- c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
Telecopy: ( ) ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
--- -------------- ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/1872
Money Market Lending Office:
------------------------------
------------------------------
------------------------------
Attn:
------------------------
Telecopy: ( )
--- --------------
20
Commitment Amount
$40,000,000
LIBOR Lending Office: U.S. BANK
▇▇▇ ▇▇▇ ▇▇▇. S.
------------------------------
MPFP0509
------------------------------ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ -------------------------------
------------------------------ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--- -------------
Domestic Lending Office:
------------------------------
------------------------------
------------------------------
Attn:
-------------------------
Telecopy: ( )
--- -------------
Money Market Lending Office:
------------------------------
------------------------------
------------------------------
Attn:
-------------------------
Telecopy: ( )
--- -------------
21
Commitment Amount
-----------------
$25,000,000
LIBOR Lending Office:
COMMERZBANK AG
Grand Cayman Branch
C/o COMMERZBANK AG
New York Branch
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax. No. (▇▇▇) ▇▇▇-▇▇▇▇
Domestic Lending Office:
COMMERZBANK AG
Grand Cayman Branch
C/o COMMERZBANK AG
New York Branch
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax. No. (▇▇▇) ▇▇▇-▇▇▇▇
Money Market Lending Office:
COMMERZBANK AG
Grand Cayman Branch
▇/▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax. No. (▇▇▇) ▇▇▇-▇▇▇▇
COMMERZBANK AG
Los Angeles Branch
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
22
Commitment Amount
$20,000,000
LIBOR Lending Office: FIRST UNION BANK, N.A.
First Union National Bank
------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------ -------------------------------
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------ ------------------------
Title: Vice President
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇ ------------------------
-------------------------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--- -------------
Domestic Lending Office:
(same as above)
------------------------------
------------------------------
------------------------------
Attn:
-------------------------
Telecopy: ( )
--- -------------
Money Market Lending Office:
(same as above)
------------------------------
------------------------------
------------------------------
Attn:
-------------------------
Telecopy: ( )
--- -------------
23
Commitment Amount
$20,000,000
LIBOR Lending Office: FLEET NATIONAL BANK
Fleet National Bank
------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ -------------------------------
Providence, R.I. 02903 Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ------------------------
Title: V.P.
------------------------
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--- -------------
Domestic Lending Office:
Fleet National Bank
------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
------------------------------
Providence, R.I. 02903
------------------------------
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--- -------------
Money Market Lending Office:
Fleet National Bank
------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
------------------------------
Providence, R.I. 02903
------------------------------
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--- -------------
24
BANK OF AMERICA NT & SA,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Vice President
----------------------------------
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
DOMESTIC AND LIBOR LENDING OFFICE:
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
25
Address: ▇▇▇▇▇ FARGO BANK, N.A.,
as Documentation Agent
▇▇▇▇▇ Fargo Bank, NA
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ -------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Asst. Vice President
------------------------------
Attn: Office Manager
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
26
SCHEDULE 1
Bank Commitments
-------------------------------------------------------------------------------
BANK COMMITMENT SHARE OF AGGREGATE
COMMITMENT
-------------------------------------------------------------------------------
Bank of America NT & SA $50,000,000 20.00%
-------------------------------------------------------------------------------
▇▇▇▇▇ Fargo Bank, NA $50,000,000 20.00%
-------------------------------------------------------------------------------
▇▇▇▇▇▇ Guaranty Trust Company $45,000,000 18.00%
of New York
-------------------------------------------------------------------------------
U.S. Bank $40,000,000 16.00%
-------------------------------------------------------------------------------
Commerzbank AG Los Angeles $25,000,000 10.00%
Branch
-------------------------------------------------------------------------------
First Union Bank, N.A. $20,000,000 8.00%
-------------------------------------------------------------------------------
Fleet National Bank $20,000,000 8.00%
-------------------------------------------------------------------------------
Total $250,000,000 100.00%
-------------------------------------------------------------------------------
27
EXHIBIT F
Form of Money Market Note
NOTE
Irvine, California
$125,000,000 July __, 1998
For value received, IRVINE APARTMENT COMMUNITIES, L.P., a Delaware
limited partnership (the "Borrower"), promises to pay to the order of
__________________ (the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Money Market Loan and Non-Rata
Revolving Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date provided for in the Credit Agreement).
The Borrower promises to pay interest on the unpaid principal amount of each
such Money Market Loan and Non-Rata Revolving Loan on the dates and at the rate
or rates provided for in the Credit Agreement. All such payments of principal
and interest shall be made in lawful money of the United States in Federal or
other immediately available funds at the office designated by Bank.
All Money Market Loans and Non-Rata Revolving Loans made by the Bank,
the respective types and maturities thereof and all repayments of the principal
thereof shall be recorded by the Bank and, if the Bank so elects in connection
with any transfer or enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each such Money Market Loan and Non-Rata
Revolving Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This note is one of the Money Market Notes referred to in, and is
delivered pursuant to and subject to all of the terms of, that certain REVOLVING
CREDIT AGREEMENT dated as of June 27, 1997 among IRVINE APARTMENT COMMUNITIES,
L.P., a Delaware limited partnership (the "Borrower"), the banks listed on the
signature pages thereof, BANK OF AMERICA NT&SA, as Administrative Agent, and
▇▇▇▇▇ FARGO BANK, N.A., as Documentation Agent, as amended by that certain First
Amendment to Revolving Credit Agreement dated as of July __, 1998 among the
Borrower, the banks listed on the signature pages thereof, Bank of America
NT&SA, as Administrative Agent, and ▇▇▇▇▇ Fargo Bank, N.A., as Documentation
Agent (as the same may be amended, supplemented, replaced, renewed or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for
F-1
28
the prepayment hereof and the acceleration of the maturity hereof.
IRVINE APARTMENT COMMUNITIES, L.P., a
Delaware limited partnership
By: Irvine Apartment Communities,
Inc., a Maryland corporation,
its general partner
By:
--------------------------------
Name:
-------------------------
Title:
-------------------------
By:
--------------------------------
Name:
-------------------------
Title:
-------------------------
F-2
29
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Amount of Notation
Date Amount of Loan Type of Loan Principal Repaid Maturity Date Made By
----------- ---------------- -------------- ------------------ --------------- ----------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
F-3
30
Exhibit K
EXHIBIT K
REQUEST FOR LETTER OF CREDIT
1. This REQUEST FOR LETTER OF CREDIT is executed and delivered pursuant
to that certain REVOLVING CREDIT AGREEMENT dated as of June 27, 1997 among
IRVINE APARTMENT COMMUNITIES, L.P., a Delaware limited partnership (the
"Borrower"), the banks listed on the signature pages thereof, BANK OF AMERICA
NT&SA, as Administrative Agent, and ▇▇▇▇▇ FARGO BANK, N.A., as Documentation
Agent, as amended by that certain First Amendment to Revolving Credit Agreement
dated as of July __, 1998 among the Borrower, the banks listed on the signature
pages thereof, Bank of America NT&SA, as Administrative Agent, and ▇▇▇▇▇ Fargo
Bank, N.A., as Documentation Agent (as the same may be amended, supplemented,
replaced, renewed or otherwise modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings.
2. The Borrower hereby requests that Administrative Agent issue a Letter
of Credit in accordance with the L/C Application accompanying this request.
3. In connection with the Letter of Credit requested herein, the
Borrower hereby represents, warrants and certifies to the Banks that, as of the
date of the Letter of Credit requested herein, each representation and warranty
made by the Borrower in Article IV of the Credit Agreement will be true and
correct, both immediately before and after such Letter of Credit is issued, as
though such representation and warranty was made on and as of the date of such
issuance. (If the foregoing statement is not true and correct, attach a
statement specifying in detail the circumstances thereof and the actions the
Borrower is taking or proposes to take with respect thereto.)
4. This Request for Letter of Credit is executed on ________________,
19__, by a Certifying Officer of the Borrower on behalf of the Borrower. The
undersigned in such capacity, hereby certifies each and every matter contained
herein to be true and correct.
Dated:
-----------------------------------
K-1
31
Exhibit L
EXHIBIT L
FORM OF L/C APPLICATION
APPLICATION AND AGREEMENT
FOR STANDBY LETTER OF CREDIT
TO: Bank of America National Trust and Savings Association ("Bank").
--------------------------------------
FOR BANK USE ONLY
L/C No._______________________________
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A. APPLICATION.
______________________________ ("Customer") requests Bank to issue an
irrevocable standby letter of credit ("Letter of Credit") as follows:
[ ] Full text teletransmission
[ ] Airmail with brief preliminary teletransmission advice
[ ] Airmail
[ ] Courier
For account of (Customer Name and Address)
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In favor of (Beneficiary Name and Address)
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Advising Bank
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Amount ( )
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(in words and figures)
Expiration Date: Drafts to be drawn on and presented at Bank's issuing
Currency
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unit on or before: . 19 .
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Available by drafts drawn at sight on Bank's issuing unit when accompanied by
the following documentation:
1. The original standby letter of credit.
2. The signed statement of the beneficiary worded as follows (state exact
wording that is to appear in the statement accompanying the draft):
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Special Instructions:
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Customer understands that the risk to Customer is greater if Customer
requests a standby letter of credit which requires only a draft rather than a
standby letter of credit which requires supporting documentation.
Customer understands that the final form of the Letter of Credit may be
subject to such revisions and changes as are deemed necessary or appropriate by
Bank's letter of credit issuing unit and Customer hereby consents to such
revisions and changes.
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