As filed with the Securities and Exchange Commission on July 2, 1997
Registration No. 333-27181
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IRVINE APARTMENT COMMUNITIES, L.P.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0587829
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
550 Newport Center Drive, Suite 300,
Newport Beach, California 92660 (714) 720-5500
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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JAMES E. MEAD
Senior Vice President, Chief Financial Officer and Secretary
IRVINE APARTMENT COMMUNITIES, INC.
550 Newport Center Drive
Suite 300
Newport Beach, CA 92660
(714) 720-5500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with a copy to:
JEFFREY SMALL
DAVIS POLK & WARDWELL
450 Lexington Avenue
New York, New York 10017
Telephone (212) 450-4000
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Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box:
[ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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SUBJECT TO COMPLETION
PROSPECTUS
$350,000,000
IRVINE APARTMENT COMMUNITIES, L.P.
Debt Securities
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Irvine Apartment Communities, L.P. (the "Operating
Partnership") may offer and issue from time to time unsecured non-convertible
investment grade debt securities (the "Debt Securities"). The Debt Securities
may be offered in one or more series, in amounts, at prices and on terms to be
determined by market conditions at the time of sale and to be set forth in a
supplement or supplements to this Prospectus (a "Prospectus Supplement").
The aggregate offering price of the Debt Securities will not exceed
$350,000,000.
Certain terms of any Debt Securities in respect of which this
Prospectus is being delivered will be set forth in the accompanying Prospectus
Supplement including, without limitation, the specific designation (including
whether such Debt Securities are senior or subordinated), aggregate principal
amount, purchase price, maturity, interest rate (which may be fixed or
variable) and time of payment of interest (if any), terms (if any) for the
subordination or redemption thereof, listing (if any) on a securities
exchange and any other specific terms of the Debt Securities.
See "Risk Factors" in the Prospectus Supplement for a
description of certain factors that should be considered by purchasers of the
Debt Securities offered hereby.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED ON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The Debt Securities may be sold on a negotiated or competitive
bid basis to or through underwriters or dealers designated from time to time
or to other purchasers directly or through agents designated from time to
time. Certain terms of the offering and sale of the Debt Securities,
including, where applicable, the names of the underwriters, dealers or agents,
if any, the purchase price of the Securities and the proceeds to the Operating
Partnership from such sale, and any applicable commissions, discounts and
other items constituting compensation of such underwriters, dealers or agents,
will also be set forth in the accompanying Prospectus Supplement.
The date of this Prospectus is July 2, 1997.
IN CONNECTION WITH AN OFFERING, CERTAIN PERSONS PARTICIPATING
IN SUCH OFFERING MAY ENGAGE IN TRANSACTIONS THAT STABILIZE, MAINTAIN, OR
OTHERWISE AFFECT THE PRICE OF THE DEBT SECURITIES. SPECIFICALLY, THE
UNDERWRITERS FOR SUCH OFFERING MAY OVERALLOT IN CONNECTION WITH SUCH
OFFERING, AND MAY BID FOR, AND PURCHASE, THE DEBT SECURITIES IN THE OPEN
MARKET. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION."
No dealer, salesman or other person has been authorized to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus or any Prospectus Supplement, and, if given or
made, such information or representation must not be relied upon as having
been authorized by the Operating Partnership, by Irvine Apartment Communities,
Inc., a Maryland corporation, the sole general partner of the Operating
Partnership, or by any underwriter, agent or dealer. This Prospectus and any
Prospectus Supplement shall not constitute an offer to sell or a solicitation
of an offer to buy any of the Debt Securities offered hereby in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the delivery of this Prospectus
and any Prospectus Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that the information therein is correct
as of any time subsequent to the date thereof.
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AVAILABLE INFORMATION
The sole general partner of the Operating Partnership, Irvine
Apartment Communities, Inc. (the "Company"), is, and following the
effectiveness of the Operating Partnership's registration statement on Form 10
filed on May 15, 1997, the Operating Partnership will be, subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith the Company files, and the
Operating Partnership may be required to file, reports and other information
with the Securities and Exchange Commission (the "Commission"). Reports,
proxy statements and other information filed by the Company or the Operating
Partnership with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 or at its Regional Offices located at
Suite 1400, Northwestern Atrium Center, 500 West Madison Street, Chicago,
Illinois 60661 and at Seven World Trade Center, 13th Floor, New York, New York
10048, and copies of such material can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Company's Common Stock is listed on the New York Stock
Exchange, Inc. (the "New York Stock Exchange") and the Pacific Stock Exchange,
Inc. (the "Pacific Stock Exchange"). In addition, reports, proxy statements
and other information concerning the Company can be inspected at the offices
of the New York Stock Exchange, 20 Broad Street, New York, New York 10005 and
at the offices of the Pacific Stock Exchange, 301 Pine Street, San Francisco,
California 94104. Such material may also be accessed electronically by means
of the Commission's home page on the Internet at http://www.sec.gov.
This Prospectus constitutes a part of a Registration Statement
on Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") filed with the Commission under the Securities Act
of 1933, as amended (the "Securities Act"). This Prospectus omits certain of
the information set forth in such Registration Statement in accordance with
the rules and regulations of the Commission. Reference is hereby made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Operating Partnership and the Debt Securities.
Any statements contained herein concerning the provisions of any document are
not necessarily complete, and in each instance reference is made to the copy
of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission for a more complete description of the
matter involved. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed with the
Commission, are hereby incorporated by reference:
1. Registration Statement on Form 10 of the Operating Partnership dated
May 15, 1997; and
2. Quarterly Report on Form 10-Q of the Operating Partnership for the
quarter ended March 31, 1997.
All documents filed by the Operating Partnership after the
date of this Prospectus pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act, prior to the termination of the offering of the Debt
Securities offered hereby, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein (or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein) modifies or supersedes
such statement. Any statements so modified or superseded shall be deemed
to constitute a part of this Prospectus, except as so modified or
superseded.
The Operating Partnership will provide without charge to each
person, including any beneficial owner, to whom a copy of this Prospectus is
delivered, upon written or oral request of such person, a copy of any or all
of the documents referred to above which have been or may be incorporated by
reference in this Prospectus (other than certain exhibits to such documents).
Requests for such documents should be directed to Irvine Apartment
Communities, L.P., 550 Newport Center Drive, Suite 300, Newport Beach,
California 92660, Attention: Investor Relations (Telephone: (714) 720-5500).
THE OPERATING PARTNERSHIP
The Operating Partnership is engaged in the development and
operation of multifamily rental apartment communities on the Irvine Ranch in
Orange County, California and, beginning in 1997, in other locations in
California. The Operating Partnership's management and operating decisions
are under the unilateral control of Irvine Apartment Communities, Inc., a
Maryland corporation (the "Company"), a self-administered equity real estate
investment trust. The Operating Partnership and the Company were formed in
December 1993 to continue and expand the apartment community business of The
Irvine Company, a real estate and community development company. At March 31,
1997 the Company had a 45.1% general partnership interest in the Operating
Partnership and was its sole managing general partner. At such date, the
limited partners of the Operating Partnership had a 54.9% interest in the
Operating Partnership, with The Irvine Company and certain of its affiliates
owning a 54.7% limited partnership interest in the Operating Partnership.
At March 31, 1997, the Operating Partnership owned and operated
13,843 units in 53 apartment communities on the Irvine Ranch. Within its
portfolio of properties stabilized for more than two years are 43 apartment
communities. These properties had an average physical occupancy of 95.1%
for the quarter ended March 31, 1997. Within its portfolio of properties
stabilized for less than two years are 5 apartment communities. These
properties had an average physical occupancy of 94.0% for the quarter ended
March 31, 1997. The Company also had 1,295 units in 5 additional apartment
communities under construction or lease-up, with 302 units completed at
March 31, 1997 (together with completed communities, the "Properties").
Additionally, the Company recently acquired an apartment community site
located in Northern California's Silicon Valley. All of the Properties,
excluding the Northern California site, are located on the Irvine Ranch.
Until July 31, 2020, the Operating Partnership has the exclusive right, but
not the obligation, to acquire land from The Irvine Company for development
of additional apartment communities on the Irvine Ranch. The developed
portion of the Irvine Ranch, which borders approximately six miles of the
Pacific Ocean, includes significant parts of the cities of Irvine, Newport
Beach and Tustin. The Irvine Ranch has been developed over the past 30
years in accordance with an original master plan and is now one of the
major commercial, industrial, retail and residential centers in Southern
California.
The Operating Partnership has recently commenced an "off-
Ranch" expansion program. In February 1997, the Operating Partnership
acquired the right to purchase three apartment community development sites
located in Northern California's Silicon Valley. The Operating Partnership
has excercised its right with respect to one of these sites and began
construction in May 1997. On June 30, 1997, the Operating Partnership
purchased, for approximately $127 million in cash, The Villas of
Renaissance, a 923-unit apartment community in La Jolla, California, just
north of San Diego. The Operating Partnership's intent is to create new
market positions in the Silicon Valley and Northern San Diego County, which
possess strong rental demographics and economic growth prospects similar to
those on the Irvine Ranch.
On June 27, 1997, the Operating Partnership entered into a
new $250 million three-year revolving line of credit, which replaced its
former line of credit, due to expire in December 1997. The Operating
Partnership used borrowings under this line of credit to finance the La
Jolla acquisition referred to above, and in the future intends to use the
line of credit for its ongoing rental property development program, for
potential acquisitions and for general working capital needs.
The Operating Partnership is a Delaware limited partnership
formed in 1993. The Operating Partnership's executive offices are located at
550 Newport Center Drive, Newport Beach, California 92660, telephone number:
(714) 720-5500.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, proceeds from the sale of the Debt Securities will be used by
the Operating Partnership for general corporate purposes, including the
repayment of existing indebtedness, ongoing development activities and
acquisitions of additional properties. Proceeds from the sale of Debt
Securities initially may be temporarily invested in short-term securities.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of
earnings to fixed charges for the Operating Partnership.
<TABLE>
<CAPTION>
Quarter Ended March 31, Year Ended December 31,
----------------------- ------------------------------------
1997 1996 1996 1995 1994 1993 1992
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges. 2.44x 1.86x 2.07x 1.44x 1.25x .99x .96x
</TABLE>
For the purpose of calculating the ratio of earnings to fixed
charges, earnings consist of net earnings before income taxes, extraordinary
items and fixed charges. Fixed charges consist of interest expense,
capitalized interest and amortization of deferred financing costs.
Prior to completion of the Company's initial public offering in
December 1993, the predecessor of the Company and the Operating Partnership
operated in a highly leveraged manner. As a result, although the Company, the
Operating Partnership and the predecessor have historically generated positive
net cash flow, the financial statements of the predecessor show net losses for
the periods prior to December 8, 1993. Consequently, the computation of the
ratio of earnings to fixed charges for such periods indicate that earnings
were inadequate to cover fixed charges by approximately $0.6 million and $2.2
million for the years ended December 31, 1993 and 1992, respectively.
DESCRIPTION OF THE DEBT SECURITIES
The following sets forth certain general terms and provisions
of the indentures under which the Debt Securities are to be issued. The
particular terms of the Debt Securities will be set forth in a Prospectus
Supplement relating to such Debt Securities.
The Debt Securities will represent unsecured general
obligations of the Operating Partnership, unless otherwise provided in the
Prospectus Supplement. As indicated in the applicable Prospectus Supplement,
the Debt Securities will either be senior debt, senior to all future
subordinated indebtedness of the Operating Partnership and pari passu with
other current and future unsecured, unsubordinated indebtedness of the
Operating Partnership or, in the alternative, subordinated debt, subordinate
in right of payment to current and future senior debt and pari passu with
other future subordinated indebtedness of the Operating Partnership. The Debt
Securities will be issued under one or more indentures to be executed by the
Operating Partnership and one or more trustees (each a "Trustee"). The
Indentures will be in the form that has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part, subject to such
amendments or supplements as are adopted from time to time (each an
"Indenture" and collectively, the "Indentures"). The following summary of
certain provisions of the Indentures does not purport to be complete and is
subject to, and qualified in its entirety by reference to, all the provisions
of the Indentures, including the definitions therein of certain terms.
Wherever particular sections or defined terms of the Indentures are referred
to, it is intended that such sections or defined terms shall be incorporated
herein by reference.
General
The Indentures will not limit the amount of Debt Securities
which may be issued thereunder. Reference is made to the Prospectus
Supplement for the following terms of the Debt Securities offered pursuant
thereto: (i) designation (including whether they are senior debt or
subordinated debt), aggregate principal amount, purchase price and
denomination; (ii) the date of maturity; (iii) interest rate or rates (or
method by which such rate will be determined), if any; (iv) the dates on which
any such interest will be payable; (v) the place or places where the principal
of and interest, if any, on the Debt Securities will be payable; (vi) any
redemption or sinking fund provisions; (vii) the terms, if any, on which such
Debt Securities will be subordinate to other debt of the Company; (viii) if
other than the principal amount thereof, the portion of the principal amount
of the Debt Securities which will be payable upon declaration of acceleration
of the maturity thereof or provable in bankruptcy; (ix) any Events of Default
in addition to or in lieu of those described herein and remedies therefor; (x)
any trustees, authenticating or paying agents, transfer agents or registrars
or any other agents with respect to the Debt Securities; (xi) listing (if any)
on a securities exchange; (xii) whether such Debt Securities will be
certificated or in book-entry form; and (xiii) any other specific terms of the
Debt Securities, including any additional events of default or covenants
provided for with respect to the Debt Securities, and any terms which may be
required by or advisable under United States laws or regulations.
Debt Securities may be presented for exchange or transfer in
the manner, at the places and subject to the restrictions set forth in the
Debt Securities and the Prospectus Supplement. Such services will be provided
without charge, other than any tax or other governmental charge payable in
connection therewith, but subject to the limitations provided in the
Indentures.
Debt Securities will bear interest at a fixed rate or a
floating rate. Debt Securities bearing no interest or interest at a rate
which, at the time of issuance, is below the prevailing market rate, will be
sold at a discount below its stated principal amount. Special United States
federal income tax considerations applicable to any such discounted Debt
Securities or to any Debt Securities issued at par which is treated as having
been issued at a discount for United States income tax purposes will be
described in the relevant Prospectus Supplement.
Unless otherwise specified in a Prospectus Supplement, the
Indentures will not contain any covenant or other specific provision affording
protection to Holders of the Debt Securities in the event of a highly
leveraged transaction or a change in control of the Operating Partnership or
the Company, except to the limited extent described under "Consolidation,
Merger and Sale of Assets".
Modification and Waiver
Each Indenture will provide that modifications and amendments
of such Indenture may be made by the Operating Partnership and the applicable
Trustee, with the consent of the Holders of a majority in aggregate principal
amount of the outstanding Debt Securities issued under such Indenture which
are affected by the modification or amendment voting as one class; provided
that no such modification or amendment may, without the consent of the Holder
of each such Debt Security affected thereby, among other things: (a) extend
the final maturity of such Debt Securities, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any amount payable on redemption thereof, or reduce the amount of
the principal of Debt Securities issued with original issue discount that
would be due and payable upon an acceleration of the maturity thereof or the
amount thereof provable in bankruptcy, or extend the time or reduce the amount
of any payment to any sinking fund or analogous obligation relating to such
Debt Securities, or impair or affect the right of any Holder of Debt
Securities to institute suit for the payment thereof or, if such Debt
Securities provide therefor, any right of repayment at the option of the
Holder, (b) reduce the aforesaid percentage of such Debt Securities of any
series, the consent of the Holders of which is required for any such
supplemental indenture, or (c) reduce the percentage of such Debt Securities
of any series necessary to consent to waive any past default under such
Indenture to less than a majority, or (d) modify any of the provisions of the
sections of such Indenture relating to supplemental indentures with the
consent of the Holders, except to increase any such percentage or to provide
that certain other provisions of such Indenture cannot be modified or waived
without the consent of each Holder affected thereby, provided, however, that
this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes
in such section or the deletion of this proviso. (Indenture Section 7.2)
Each Indenture will provide that a supplemental indenture which
changes or eliminates any covenant or other provision of such Indenture which
has expressly been included solely for the benefit of one or more particular
series of Debt Securities, or which modifies the rights of the Holders of such
series with respect to such covenant or other provision, shall be deemed not
to affect the rights under such Indenture of the Holders of Debt Securities of
any other series. (Indenture Section 7.2)
Each Indenture will provide that modifications and amendments
of such Indenture may be made by the Operating Partnership and the applicable
Trustee, without the consent of the Holders of any series of Debt Securities
issued thereunder: (1) to secure any Debt Securities issued thereunder; (2)
to evidence the succession of another entity to the Operating Partnership and
the assumption by any such successor of the covenants, agreements and
obligations of the Operating Partnership, in such Indenture and in the Debt
Securities issued thereunder; (3) to add to the covenants of the Operating
Partnership or to add any additional events of default; (4) to cure any
ambiguity, to correct or supplement any provision in such Indenture that may
be inconsistent with any other provision of such Indenture or to make any
other provisions with respect to matters or questions arising under such
Indenture, provided that such action shall not adversely affect the interests
of the Holders of any series of Debt Securities issued thereunder in any
material respect; (5) to establish the form and terms of Debt Securities
issued thereunder; (6) to evidence and provide for a successor trustee under
such Indenture with respect to one or more series of Debt Securities issued
thereunder or to provide for or facilitate the administration of the trusts
under such Indenture by more than one trustee; (7) to permit or facilitate the
issuance of Debt Securities in global form or bearer form or to provide for
uncertificated Debt Securities to be issued thereunder; (8) to change or
eliminate any provision of such Indenture, provided that any such change or
elimination shall become effective only when there are no Debt Securities
outstanding of any series created prior to the execution of such supplemental
indenture which are entitled to the benefit of such provision; or (9) to amend
or supplement any provision contained in such Indenture, which was required to
be contained in the Indenture in order for the Indenture to be qualified under
the Trust Indenture Act of 1939, if the Trust Indenture Act of 1939 or
regulations thereunder change what is so required to be included in qualified
indentures, in any manner not inconsistent with what then may be required for
such qualification. (Indenture Section 7.1)
Events of Default
The following will be events of default under each Indenture
with respect to each series of Debt Securities issued thereunder: (a) failure
to pay principal (or premium, if any) on such series of the Debt Securities
outstanding under such Indenture when due; (b) failure to pay any interest on
such series of the Debt Securities outstanding under such Indenture when due,
continued for 30 days; (c) default in the payment, if any, of any sinking fund
installment when due, payable by the terms of such series of Debt Securities;
(d) failure to perform any other covenant or warranty of the Operating
Partnership contained in such Indenture or such Debt Securities continued for
90 days after written notice; and (e) certain events of bankruptcy, insolvency
or reorganization of the Operating Partnership. In case an event of
default described in (a), (b) or (c) above shall occur and be continuing
with respect to any series of such Debt Securities, the applicable Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Debt Securities of such series then outstanding (each such series acting as
a separate class) may declare the principal (or, in the case of discounted
Debt Securities, the amount specified in the terms thereof) of such series
to be due and payable. In case an event of default described in (d) above
shall occur and be continuing, the applicable Trustee or the Holders of not
less than 25% in aggregate principal amount of all Debt Securities of each
affected series then outstanding under such Indenture (treated as one
class) may declare the principal (or, in the case of discounted Debt
Securities, the amount specified in the terms thereof) of all Debt
Securities of all such series to be due and payable. If an event of
default described in (e) above shall occur and be continuing then the
principal amount (or, in the case of discounted Debt Securities, the amount
specified in the terms thereof) of all the Debt Securities outstanding
shall be and become due and payable immediately, without notice or other
action by any Holder or the applicable Trustee, to the full extent
permitted by law. Any event of default with respect to particular series
of Debt Securities under such Indenture may be waived by the Holders of a
majority in aggregate principal amount of the outstanding Debt Securities
of such series (voting as a class), except in each case a failure to pay
principal of or premium, if any, or interest on such Debt Securities or a
default in respect of a covenant or provision which cannot be modified or
amended without the consent of each Holder affected thereby. (Indenture
Sections 4.1, 4.10)
Each Indenture will provide that the applicable Trustee may
withhold notice to the Holders of any default with respect to any series of
Debt Securities (except in payment of principal of or interest or premium on,
or sinking fund payment in respect of, the Debt Securities) if the applicable
Trustee considers it in the interest of Holders to do so. (Indenture Section
4.11)
The Operating Partnership will be required to furnish to each
Trustee annually a statement as to its compliance with all conditions and
covenants in the applicable Indenture. (Indenture Section 3.5)
Each Indenture will contain a provision entitling the
applicable Trustee to be indemnified by the Holders before proceeding to
exercise any trust or power under such Indenture at the request of such
Holders (Indenture Section 5.2). Each Indenture will provide that the Holders
of a majority in aggregate principal amount of the then outstanding Debt
Securities of any series may direct the time, method and place of conducting
any proceedings for any remedy available to the applicable Trustee or of
exercising any trust or power conferred upon the applicable Trustee with
respect to the Debt Securities of such series, provided, however, that the
applicable Trustee may decline to follow any such direction if, among other
reasons, the applicable Trustee, determines in good faith that the actions or
proceedings as directed may not lawfully be taken, would involve the
applicable Trustee in personal liability or would be unduly prejudicial to the
Holders of the Debt Securities of such series not joining in such direction
(Indenture Section 4.9). The right of a Holder to institute a proceeding
with respect to the applicable Indenture will be subject to certain conditions
precedent including, without limitation, that the Holders of not less than 25%
in aggregate principal amount of the Debt Securities of such series then
outstanding under such Indenture make a written request upon the applicable
Trustee to exercise its powers under such Indenture, indemnify the applicable
Trustee and afford the applicable Trustee reasonable opportunity to act, but
the Holder has an absolute right to receipt of the principal of, premium, if
any, and interest when due on the Debt Securities, to require conversion of
Debt Securities if such Indenture provides for convertibility at the option of
the Holder and to institute suit for the enforcement thereof (Indenture
Sections 4.6, 4.7).
Consolidation, Merger and Sale of Assets
Each Indenture will provide that the Operating Partnership may
not consolidate with, merge into or sell, convey or lease all or substantially
all of its assets to any Person unless the Operating Partnership is the
surviving entity or the successor Person is an entity organized under the laws
of any domestic jurisdiction and assumes the Operating Partnership's
obligations on the Debt Securities issued thereunder, and under such
Indenture, and after giving effect thereto no event of default, and no event
which, after notice or lapse of time or both, would become an event of default
shall have occurred and be continuing, and that certain other conditions are
met. (Indenture Sections 8.1, 8.2 )
No Conversion Rights
The Debt Securities will not be convertible into or
exchangeable for any capital stock of the Company or equity interest in the
Operating Partnership.
Discharge, Defeasance and Covenant Defeasance
Each Indenture will provide with respect to each series of Debt
Securities issued thereunder that the Operating Partnership may terminate its
obligations under such Debt Securities of a series and such Indenture with
respect to Debt Securities of such series if: (i) all Debt Securities of such
series previously authenticated and delivered, with certain exceptions, have
been delivered to the applicable Trustee for cancellation and the Operating
Partnership has paid all sums payable by it under the Indenture; or (ii) (A)
the Debt Securities of such series mature within one year or all of them are
to be called for redemption within one year under arrangements satisfactory to
the applicable Trustee for giving the notice of redemption, (B) the Operating
Partnership irrevocably deposits in trust with the applicable Trustee, as
trust funds solely for the benefit of the Holders of such Debt Securities, for
that purpose, money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the applicable Trustee), without
consideration of any reinvestment, to pay principal of and interest on the
Debt Securities of such series to maturity or redemption, as the case may be,
and to pay all other sums payable by it under such Indenture, and (C) the
Operating Partnership delivers to the applicable Trustee an officers'
certificate and an opinion of counsel, in each case stating that all
conditions precedent provided for in such Indenture relating to the
satisfaction and discharge of such Indenture with respect to the Debt
Securities of such series have been complied with. With respect to the
foregoing clause (i), only the Operating Partnership's obligations to
compensate and indemnify the applicable Trustee under the Indenture shall
survive. With respect to the foregoing clause (ii) only the Operating
Partnership's obligations to execute and deliver Debt Securities of such
series for authentication, to maintain an office or agency in respect of the
Debt Securities of such series, to have moneys held for payment in trust, to
register the transfer or exchange of Debt Securities of such series, to
deliver Debt Securities of such series for replacement or to be canceled, to
compensate and indemnify the applicable Trustee and to appoint a successor
trustee, and its right to recover excess money held by the applicable Trustee
shall survive until such Debt Securities are no longer outstanding.
Thereafter, only the Operating Partnership's obligations to compensate and
indemnify the applicable Trustee, and its right to recover excess money held
by the applicable Trustee shall survive. (Indenture Section 9.1)
Each Indenture will provide that the Operating Partnership (i)
will be deemed to have paid and will be discharged from any and all
obligations in respect of the Debt Securities issued thereunder of any series,
and the provisions of such Indenture will, except as noted below, no longer be
in effect with respect to the Debt Securities of such series ("legal
defeasance") and (ii) may omit to comply with any term, provision, covenant or
condition of such Indenture, and such omission shall be deemed not to be an
Event of Default under clause (d) of the first paragraph of "--Events of
Default" with respect to the outstanding Debt Securities of such series
("covenant defeasance"); provided that the following conditions shall have
been satisfied: (A) the Operating Partnership has irrevocably deposited in
trust with the applicable Trustee as trust funds solely for the benefit of the
Holders of the Debt Securities of such series, for payment of the principal of
and interest of the Debt Securities of such series, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the applicable Trustee) without consideration of any reinvestment and after
payment of all federal, state and local taxes or other charges and assessments
in respect thereof payable by the applicable Trustee, to pay and discharge the
principal of and accrued interest on the outstanding Debt Securities of such
series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the applicable Trustee), as the case may be; (B)
such deposit will not result in a breach or violation of, or constitute a
default under, such Indenture or any other material agreement or instrument to
which the Operating Partnership is a party or by which it is bound; (C) no
default with respect to such Debt Securities of such series shall have
occurred and be continuing on the date of such deposit; (D) the Operating
Partnership shall have delivered to such Trustee an opinion of counsel that
(1) the Holders of the Debt Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of the
Operating Partnership's exercise of its option under this provision of such
Indenture and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred and (2) the Holders of the Debt
Securities of such series have a valid security interest in the trust funds
subject to no prior liens under the Uniform Commercial Code, and (E) the
Operating Partnership has delivered to the applicable Trustee an officers'
certificate and an opinion of counsel, in each case stating that all
conditions precedent provided for in such Indenture relating to the defeasance
contemplated have been complied with. In the case of legal defeasance under
clause (i) above, the opinion of counsel referred to in clause (D)(1) above
may be replaced by a ruling directed to the applicable Trustee received from
the Internal Revenue Service to the same effect. Subsequent to a legal
defeasance under clause (i) above, the Operating Partnership's obligations to
execute and deliver Debt Securities of such series for authentication, to
maintain an office or agency in respect of the Debt Securities of such series,
to have moneys held for payment in trust, to register the transfer or exchange
of Debt Securities of such series, to deliver Debt Securities of such series
for replacement or to be cancelled, to compensate and indemnify the applicable
Trustee and to appoint a successor trustee, and its right to recover excess
money held by the applicable Trustee shall survive until such Debt Securities
are no longer outstanding. After such Debt Securities are no longer
outstanding, in the case of legal defeasance under clause (i) above, only the
Operating Partnership's obligations to compensate and indemnify the applicable
Trustee and its right to recover excess money held by the applicable Trustee
shall survive. (Indenture Sections 9.2 and 9.3)
Applicable Law
The Indentures will provide that the Debt Securities and the
Indentures will be governed by and construed in accordance with the laws of
the State of New York. (Indenture Section 10.8)
PLAN OF DISTRIBUTION
The Debt Securities may be sold (i) through agents, (ii)
through underwriters, (iii) through dealers or (iv) directly to purchasers
(through a specific bidding or auction process or otherwise). The
distribution of Debt Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices relating to such
prevailing market prices or at negotiated prices.
Offers to purchase the Debt Securities may be solicited by
agents designated by the Operating Partnership from time to time. Any such
agent involved in the offer or sale of the Debt Securities will be named, and
any commissions payable by the Operating Partnership to such agent will be set
forth in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment. Any such agent may be deemed to be an
underwriter, as that term is defined in the Securities Act, of the Debt
Securities so offered and sold.
If an underwriter or underwriters are utilized in the sale of
Debt Securities, the Operating Partnership will execute an underwriting
agreement with such underwriter or underwriters at the time an agreement for
such sale is reached, and the names of the specific managing underwriter or
underwriters, as well as any other underwriters, and the terms of the
transactions, including compensation of the underwriters and dealers, if any,
will be set forth in the Prospectus Supplement, which will be used by the
underwriters to make resales of the Debt Securities.
If a dealer is utilized in the sale of the Debt Securities,
the Operating Partnership will sell such Debt Securities to the dealer, as
principal. The dealer may then resell such Debt Securities to the public at
varying prices to be determined by such dealer at the time of resale. The
name of the dealer and the terms of the transactions will be set forth in the
Prospectus Supplement relating thereto.
Offers to purchase the Debt Securities may be solicited
directly by the Operating Partnership and sales thereof may be made by the
Operating Partnership directly to institutional investors or others. The
terms of any such sales, including the terms of any bidding or auction
process, if utilized, will be described in the Prospectus Supplement relating
thereto.
Agents, underwriters and dealers may be entitled under
agreements which may be entered into with the Operating Partnership to
indemnification by the Operating Partnership against certain liabilities,
including liabilities under the Securities Act, and any such agents,
underwriters or dealers, or their affiliates may be customers of, engage in
transactions with or perform services for the Operating Partnership in the
ordinary course of business.
If so indicated in the Prospectus Supplement, the Operating
Partnership will authorize agents and underwriters to solicit offers by
certain institutions to purchase Debt Securities from the Operating
Partnership at the public offering price set forth in the Prospectus
Supplement pursuant to Delayed Delivery Contracts ("Contracts") providing for
payment and delivery on the date stated in the Prospectus Supplement. Such
Contracts will be subject to only those conditions set forth in the Prospectus
Supplement. A commission indicated in the Prospectus Supplement will be paid
to underwriters and agents soliciting purchases of Debt Securities pursuant to
Contracts accepted by the Operating Partnership.
In connection with an offering, the Underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of the
Debt Securities or other securities of the Operating Partnership or the
Company. Specifically, the Underwriters may overallot such offering, creating
a syndicate short position. In addition, the Underwriters may bid for, and
purchase, the Debt Securities in the open market to cover syndicate shorts or
to stabilize the price of the Debt Securities. Finally, the underwriting
syndicate may reclaim selling concessions allowed for distributing the Debt
Securities in such offering, if the syndicate repurchases previously
distributed Debt Securities in syndicate covering transactions, in
stabilization transactions or otherwise. Any of these activities may
stabilize or maintain the market price of the Debt Securities above
independent market levels. The Underwriters are not required to engage in
these activities, and may end any of these activities at any time.
EXPERTS
The consolidated financial statements of the Operating
Partnership included in the Registration Statement on Form 10 of the
Operating Partnership have been audited by Ernst & Young LLP, independent
auditors, as stated in their report dated January 31, 1997 and are
incorporated herein by reference in reliance upon the report of such firm,
which report is given upon their authority as experts in accounting and
auditing.
Any financial statements and schedules hereafter incorporated
by reference in the registration statement of which this prospectus is a part
that have been audited and are the subject of a report by independent auditors
will be incorporated herein by reference in reliance upon such reports and
upon the authority of such firms as experts in accounting and auditing to the
extent covered by consents filed with the Commission.
LEGAL MATTERS
The validity of the Debt Securities offered hereby will be
passed upon for the Operating Partnership by Davis Polk & Wardwell, New York,
New York. Davis Polk & Wardwell will rely as to matters of Maryland law on
Piper & Marbury L.L.P., Baltimore, Maryland.
==============================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other expenses of Issuance and Distribution.
Registration fee........................... $ 106,061
Trustees' fees............................. 10,000
Printing and engraving expenses............ 100,000
Legal fees and expenses.................... 150,000
Accounting fees and expenses............... 75,000
Miscellaneous.............................. 68,939
--------
Total................................... $ 510,000
========
All amounts estimated except for registration fees.
Item 15. Indemnification of Directors and Officers.
The Amended and Restated Agreement of Limited Partnership (the
"Partnership Agreement") of the Operating Partnership dated as of December 1,
1993, as amended, contains provisions indemnifying the Company and the
Company's officers and directors against certain liabilities. The Partnership
Agreement provides for indemnification of the Company and the Company's
officers and directors to the fullest extent permitted by law; provided that no
indemnification shall be provided (i) for willful misconduct or a knowing
violation of the law or (ii) for any transaction for which a party seeking
indemnification received an improper personal benefit in violation or breach
of any provision of the Partnership Agreement. Such indemnification includes
the advance of expenses. Any indemnification pursuant to the Partnership
Agreement shall be made only out of the assets of the Operating Partnership,
and neither the Company nor any limited partner of the Operating Partnership
shall have any obligation to contribute to the capital of the Operating
Partnership or otherwise provide funds to enable the Operating Partnership to
fund its indemnification obligations. The indemnification provided by the
Partnership Agreement shall be in addition to any other rights to which a
person may be entitled. Any amendment, modification or repeal of the
indemnification provisions of the Partnership Agreement shall be prospective
only, and shall not apply to or have any effect on any right to
indemnification provided thereunder with respect to acts or omissions
occurring prior to such amendment, modification or repeal.
In addition, the Company's officers and directors are
indemnified under Maryland law and the Company's Articles of Incorporation.
Section 2-418 of the Maryland General Corporation Law permits the
indemnification of directors, officers, employees and agents of Maryland
corporations. ARTICLE EIGHTH of the Company's Articles of Amendment and
Restatement (the "Articles") authorizes the indemnification of directors and
officers to the full extent required or permitted by the General Laws of the
State of Maryland, now or hereafter in force, whether such persons are serving
the Company or, at its request, any other entity, which indemnification shall
include the advance of expenses under the procedures and to the full extent
permitted by law. ARTICLE EIGHTH of the Articles further provides that the
foregoing rights of indemnification shall not be exclusive of any other rights
to which those seeking indemnification may be entitled and that no amendment
or repeal of ARTICLE EIGHTH shall apply to or have any effect on any right to
indemnification provided thereunder with respect to acts or omissions
occurring prior to such amendment or repeal. In addition, the Company's
officers and directors are covered by certain directors' and officers'
liability insurance policies maintained by the Company. Reference is made to
Section 2-418 of the Maryland General Corporation Law and ARTICLE EIGHTH of
the Articles which are incorporated herein by reference.
Item 16. List of Exhibits and Exhibit Index
Exhibit 1.1 - Form of Underwriting Agreement (previously filed)
Exhibit 4.1 - Form of Indenture (previously filed)
Exhibit 5.1 - Opinion of Davis Polk & Wardwell as to the legality of Debt
Securities to be issued
Exhibit 12 - Statement re: Computation of Consolidated Ratio of Earnings to
Fixed Charges of the Operating Partnership
Exhibit 23.1 - Consent of Ernst & Young LLP
Exhibit 23.2 - Consent of Davis Polk & Wardwell (included in Exhibit 5.1)
Exhibit 23.3 - Consent of Piper & Marbury L.L.P.
Exhibit 24 - Powers of Attorney (previously filed)
Exhibit 25 - Statement of Eligibility and Qualification of the Trustee
under the Trust Indenture Act (to be filed in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939)
Item 17. Undertakings. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to
this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in this registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that the undertakings set forth in paragraph (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
this registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the provisions set forth or described
in Item 15 of this Registration Statement, or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person, in
connection with the securities registered hereby, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby further undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Amendment No. 1 to the registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Newport Beach,
California, on the 1st day of July, 1997.
IRVINE APARTMENT COMMUNITIES, L.P.
By: Irvine Apartment Communities,
Inc., its sole general partner
By: /s/ Shawn Howie
----------------------------
Shawn Howie
Vice President, Corporate Finance
and Controller
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to the registration statement has been signed by the
following persons in the capacities as Directors and Officers of Irvine
Apartment Communities, Inc., the sole general partner of the registrant,
and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------- ---------------------------------------- -----------
<S> <C> <C>
* Chairman of the Board of Directors, July 1, 1997
---------------------------- President and Chief Executive Officer
Donald Bren (Principal Executive Officer)
* Director July 1, 1997
----------------------------
Anthony M. Frank
Director July 1, 1997
----------------------------
John F. Grundhofer
* Director July 1, 1997
----------------------------
Bowen H. McCoy
* Director July 1, 1997
----------------------------
Michael D. McKee
* Director July 1, 1997
----------------------------
William H. McFarland
* Director July 1, 1997
----------------------------
Jack W. Peltason
* Director July 1, 1997
----------------------------
John F. Seymour, Jr.
* Senior Vice President, July 1, 1997
---------------------------- Chief Financial Officer and
James E. Mead Secretary (Principal Financial Officer)
/s/ Shawn Howie Vice President, Corporate Finance and July 1, 1997
---------------------------- Controller (Principal Accounting Officer)
Shawn Howie
*Pursuant to the Power of Attorney previously filed with the Commission
/s/ Shawn Howie Attorney-in Fact July 1, 1997
----------------------------
Shawn Howie
</TABLE>
Exhibit 5.1
[Opinion of Davis Polk & Wardwell]
July 1, 1997
Re: Registration Statement on Form S-3
(Registration No. 333-27181)
Irvine Apartment Communities, L.P.
550 Newport Center Drive
Suite 300
Newport Beach, California 92660
Dear Sirs:
We have acted as counsel for Irvine Apartment Communities,
L.P., a Delaware limited partnership (the "Operating Partnership"), in
connection with the Operating Partnership's Registration Statement on Form S-3
(No. 333-27181) (the "Registration Statement"), filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, for the
registration of the sale by the Operating Partnership from time to time of up
to $350,000,000 maximum aggregate initial offering price of its debt
securities ("Debt Securities"). The Debt Securities will be issued under one
or more indentures, each in the form filed as an exhibit to the Registration
Statement (each an "Indenture"), between the Operating Partnership and one or
more trustees (each a "Trustee").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for purposes of this opinion.
Based upon the foregoing, we are of the opinion that when the
Operating Partnership and a Trustee execute and deliver an Indenture and the
specific terms of a particular Debt Security have been duly authorized and
established in accordance with such Indenture, and such Debt Security has been
duly authorized, executed, authenticated, issued and delivered in accordance
with such Indenture, against payment therefor in accordance with the
applicable underwriting or other agreement, such Debt Security will constitute
the valid and binding obligation of the Operating Partnership.
In connection with the opinion expressed above, we have assumed
that, at or prior to the time of the delivery of any such Debt Security, (i)
the Board of Directors of Irvine Apartment Communities, Inc., a Maryland
corporation and the sole general partner of the Operating Partnership (the
"Company"), shall have duly established the terms of such Debt Security and
duly authorized the issuance and sale of such Debt Security, in each case in
accordance with applicable law, and such authorization shall not have been
modified or rescinded; (ii) the Registration Statement shall have been
declared effective and such effectiveness shall not have been terminated or
rescinded; (iii) the applicable Indenture, if any, shall have been duly
authorized, executed and delivered by the Operating Partnership, acting
through the Company in its capacity as general partner of the Operating
Partnership, in accordance with applicable law, and the applicable Trustee and
shall have been qualified under the Trust Indenture Act of 1939, as amended;
and (iv) there will not have occurred any change in law affecting the validity
or enforceability of such Debt Security. We have also assumed that none of
the terms of any Debt Security to be established subsequent to the date
hereof, nor the issuance and delivery of such Debt Security, nor the compliance
by the Operating Partnership with the terms of such Debt Security will violate
any applicable law or will result in a violation of any provision of any
instrument or agreement then binding upon the Operating Partnership or the
Company, or any restriction imposed by any court or governmental body having
jurisdiction over the Operating Partnership or the Company.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the Revised
Uniform Limited Partnership Act of the State of Delaware and the federal laws
of the United States of America.
We hereby consent to the use of this opinion as Exhibit 5.1 to
the Registration Statement and to the reference to our name in the
Registration Statement and the related Prospectus.
Very truly yours,
/s/ Davis Polk & Wardwell
Exhibit 12
<TABLE>
<CAPTION>
Irvine Apartment Communities, L.P.
Computation of Consolidated Ratio of Earnings to Fixed Charges
(in thousands, except ratios)
Quarter Ended March 31, Year Ended December 31,
----------------------- --------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
--------- -------- ------- --------- --------- --------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings
Earnings (Loss) Before Extraordinary
Item................................ $ 13,519 $ 8,688 $ 41,192 $ 25,056 $ 12,279 $ (387) $ (1,600)
Add back:
Interest Expense...................... 6,861 7,302 29,506 25,894 26,827 50,248 49,154
Amortization of Deferred Financing
Costs............................... 649 662 2,627 8,510 15,942 3,012 1,474
Portion of Rent Expense Deemed to
Represent Interest.................... 40 29 115 89 68
-------- --------- ------- -------- -------- ------- --------
Earnings Available for Fixed Charges.. 21,069 16,681 73,440 59,549 55,116 52,873 49,028
-------- --------- ------- -------- -------- ------- --------
Fixed Charges
Interest Expense...................... 6,861 7,302 29,506 25,894 26,827 50,248 49,154
Amortization of Deferred Financing
Costs............................... 649 662 2,627 8,510 15,942 3,012 1,474
Capitalized Interest.................. 1,098 965 3,151 6,779 1,261 233 640
Portion of Rent Expense Deemed
to Represent Interest................ 40 29 115 89 68
-------- --------- ------- -------- -------- ------- --------
Fixed Charges......................... $ 8,648 $ 8,958 35,399 $ 41,272 $ 44,098 $ 53,493 $ 51,268
-------- --------- ------- -------- -------- ------- --------
Ratio of Earnings to Fixed Charges.... 2.44x 1.86 x 2.07x 1.44x 1.25x 0.99x 0.96x
Excess of Fixed Charges Over Earnings. $(620) $(2,240)
- ------------
For the purpose of calculating the consolidated ratio of earnings to fixed
charges, earnings consist of earnings before income taxes, extraordinary
items, and fixed charges. Fixed charges consist of interest expense,
capitalized interest, amortization of deferred financing costs and that
portion of rental expense representative of the interest factor in leases.
</TABLE>
Exhibit 23.1
IRVINE APARTMENT COMMUNITIES, L.P.
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement (Form S-3) and related Prospectus of Irvine
Apartment Communities, L.P. for the registration of up to $350,000,000 of
debt securities and to the incorporation by reference therein of our
reports dated January 31, 1997, with respect to the consolidated financial
statements and related financial statement schedule of Irvine Apartment
Communities, L.P. included in its Form 10, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Newport Beach, California
July 1, 1997
Exhibit 23.3
IRVINE APARTMENT COMMUNITIES, L.P.
CONSENT OF PIPER & MARBURY, L.P.
We consent to the reference to our name under the heading "Legal Matters" in
the Registration Statement (Form S-
3, File No. 333-27181) and related Prospectus of Irvine Apartment Communities,
L.P. for the registration of up to $350,000,000 of debt securities. In giving
such consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act.
