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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 1, 1996
IRVINE APARTMENT COMMUNITIES, INC.
(Exact name of registrant as specified in charter)
Maryland 1-12478 33-0698698
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
550 Newport Center Drive, Suite 300, Newport Beach, California 92660
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (714) 720-5500
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ITEM 5. Other Events.
Exhibits are filed herewith in connection with the issuance by
Irvine Apartment Communities, Inc. (the "Company") of 1,490,700 shares of
Common Stock pursuant to the Company's Registration Statement on Form S-3
(File No. 33-92036).
EXHIBITS
Exhibit 1.1 - Purchase Agreement dated June 28, 1996 between the
Company and Cohen & Steers Capital Management, Inc.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
IRVINE APARTMENT COMMUNITIES, INC.
Date: July 1, 1996 By: /s/ Richard E. Moran Jr.
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Richard E. Moran Jr.
Executive Vice President
and Chief Financial
Officer
EXHIBIT 1.1
PURCHASE AGREEMENT
June 28, 1996
Irvine Apartment Communities, Inc.
550 Newport Center Drive
Suite 300
Newport Beach, California 92660
Dear Sirs:
We ("Cohen & Steers") are acting as agents on behalf of certain
of our managed accounts previously identified to you (the "Purchasers") and we
understand that Irvine Apartment Communities, Inc., a Maryland corporation
(the "Company") proposes to issue and sell 1,490,700 shares (the "Offered
Shares") of Common Stock, par value $.01 per share ("Common Stock"). On the
basis of the representations, warranties, covenants and agreements herein
contained, but subject to the terms and conditions set forth herein, the
Company hereby agrees to sell to the Purchasers, and the Purchasers agree,
severally and not jointly, to purchase from the Company the respective number
of Offered Shares specified to the Company in writing by Cohen & Steers on the
date hereof at a purchase price of $20.125 per share.
1. Representations and Warranties of the Company. The
Company represents and warrants to and agrees with each of the Purchasers that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 33-92036),
including a prospectus, relating to, among other things, the Common Stock and
a post-effective amendment, including a prospectus, to such registration
statement, and has filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Offered
Shares pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"). The term "Registration Statement" means such
post-effective amendment to the registration statement, including the exhibits
thereto and the financial statements and schedules and documents incorporated
by reference therein, as amended to the date of this Agreement. The term
"Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. As used herein, the terms "Basic Prospectus" and
"Prospectus" shall include in each case the documents incorporated by
reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Basic Prospectus
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective, did
not contain, and each such part, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain as
of the Closing Date any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(b) do not apply to
that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustee.
(c) The Registration Statement has become effective under the
Securities Act; and no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Maryland, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the REIT Entities
(as hereinafter defined), taken as a whole.
(e) The Company owns a general partnership interest in Irvine
Apartment Communities, L.P., a Delaware limited partnership (the "Operating
Partnership") and is its sole managing general partner. The Operating
Partnership owns and operates multifamily apartment communities (the
"Properties"). The Operating Partnership holds general and limited
partnership interests in a partnership (the "Property Partnership") which owns
one of the Properties. The Company, the Operating Partnership and the Property
Partnership are herein collectively referred to as the REIT Entities and all
references to properties or assets of the REIT Entities include, without
limitation, the Properties unless otherwise noted.
(f) Each of the Operating Partnership and the Property
Partnership has been duly formed, is validly existing as a limited partnership
in good standing under the laws of its jurisdiction of formation, has the
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the REIT Entities, taken as a whole.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The authorized and outstanding capital stock of the
Company conforms to the description thereof contained in the Prospectus. The
shares of capital stock of the Company outstanding prior to the issuance of
the Offered Shares have been duly authorized and are validly issued, fully
paid and non-assessable.
(i) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens related
to or entitling any person to purchase or otherwise to acquire any shares of
the capital stock of, or other ownership interest in the Company except
pursuant to (i) the Company's Dividend Reinvestment and Additional Cash
Investment Plan, (ii) the Miscellaneous Rights Agreement dated March 20, 1996
among the Company, the Operating Partnership and The Irvine Company, (iii) the
Company's 1993 Long-Term Stock Incentive Plan, 1996 Long-Term Stock Incentive
Plan and 1993 Stock Option Plan for Directors, (iv) the Amended and Restated
Agreement of Limited Partnership of the Operating Partnership dated as of
December 1, 1993, as amended, in connection with an exchange of L.P. Units (as
defined therein) for shares of Common Stock, (v) the Land Rights Agreement
dated as of November 21, 1993, as amended, among the Company, the Operating
Partnership, The Irvine Company and Mr. Donald Bren in connection with sale of
land thereunder, the purchase price of which may be paid in either Common Stock
or L.P. Units exchangeable for Common Stock or (vi) as otherwise disclosed in
the Registration Statement.
(j) The Offered Shares have been duly authorized and, when
delivered to and paid for by the Purchasers in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable and the
issuance of such Offered Shares will not be subject to any pre-emptive or
similar rights.
(k) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, will not
contravene any provision of applicable law or the charter or by-laws of the
Company, or the certificate of limited partnership or partnership agreement of
the Operating Partnership, as amended or restated, the certificate of limited
partnership or the partnership agreement of the Property Partnership, as
amended or restated, or any agreement or other instrument binding upon the
REIT Entities that is material to the REIT Entities, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the REIT Entities, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Offered
Shares.
(l) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations
of the REIT Entities, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement).
(m) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code") and its method of
operation enables it to meet the requirements for taxation as a real estate
investment trust under the Code.
(n) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
(o) The Properties are, to the best knowledge of the REIT
Entities in compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), and the REIT Entities (i) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (ii)
are in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a material adverse effect on the REIT
Entities, taken as a whole.
(p) (i) The Operating Partnership has (whether directly or
indirectly through the ownership of the Property Partnership) good title in
fee simple to the Properties and good title to all personal property owned as
is material to the business of the REIT Entities, taken as a whole, in each
case free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or in title policies held by the Operating
Partnership or such as do not materially affect the value of such property and
do not interfere with the use made and proposed to be made of such property by
the REIT Entities, (ii) any real property held under lease by any REIT Entity
is held by it under valid, subsisting, enforceable leases, and no default by
any REIT Entity has occurred and is continuing thereunder, with such
exceptions as are not material and do not interfere in any material respect
with the use made and proposed to be made of such property by any REIT Entity,
(iii) the operation of the buildings, fixtures and other improvements located
on the Properties as presently conducted is not in violation of any applicable
building code, zoning ordinance or other law or regulation, except where such
violation of any applicable building code, zoning ordinance or other law or
regulation would not, singly or in the aggregate, have a material adverse
effect on the REIT Entities, taken as a whole, (iv) neither the Company nor
the Operating Partnership has received notice of any proposed special
assessment or any proposed material change in any property tax, zoning or land
use laws or availability of water for irrigation affecting all or any portion
of the Properties, (v) there do not exist any material violations of any
declaration of covenants, conditions and restrictions with respect to any of
the Properties, nor is there any existing state of facts or circumstances or
condition or event which could, with the giving of notice or passage of time,
or both, constitute such a violation and (vi) the improvements comprising any
portion of the Properties (the "Improvements") are free of any and all
material physical, mechanical, structural, design and construction defects and
the Improvements (including, without limitation, all water, electric, sewer,
plumbing, heating, ventilation, gas and air conditioning servicing the
Improvements) are in good condition and proper working order and are free of
material defects.
(q) The Common Stock is listed on the New York Stock Exchange
and the Pacific Stock Exchange and, as of the Closing Date, the Offered Shares
will have been approved for listing on The New York Stock Exchange, subject to
notice of issuance.
2. Representations and Warranties of Cohen & Steers and the
Purchasers. Cohen & Steers represents and warrants to and agree with the
Company as set forth in paragraphs (a), (b), (c) and (d) below and, as agent
and on behalf of each of the Purchasers, represents and warrants to and agrees
with the Company as set forth in paragraph (e) below:
(a) It is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"); and
is duly registered or licensed as an investment advisor in each
jurisdiction in which the conduct of its business requires such
registration or license except where the failure to be so registered
or licensed would not have a material adverse effect on its business
or on its ability or authority to act on behalf of, and to cause the
purchase of the Offered Shares by, each of the Purchasers hereunder.
(b) It has the power and authority to enter into this
Agreement on behalf of each of the Purchasers and to purchase, or
cause the purchase of, the Offered Shares on behalf of the Purchasers
in accordance with the terms hereof.
(c) It is acting in its capacity as "investment manager"
within the meaning of Section 338 of The Employee Retirement Income
Security Act of 1974, as amended ("ERISA") to each Purchaser that is
subject to ERISA and as an "investment adviser" within the meaning
of the Advisers Act to each of the other Purchasers in entering into
this Agreement and causing the purchase of the Offered Shares.
(d) Neither the execution and delivery of this Agreement, nor
the purchase and sale of the Offered Shares contemplated herein, will
conflict with or result in a breach of any agreement between it and
any Purchaser or violate any law or regulation applicable to it in
its capacity as "investment manager" or "investment adviser" to any
Purchaser;
(e) Each Purchaser is acquiring the Offered Shares to be
purchased by it hereunder in the ordinary course of its business and
such Purchaser has no arrangements with any person to underwrite or
participate in the distribution of such Offered Shares.
3. Payment and Delivery. Subject to the terms and
conditions set forth herein, each Purchaser will pay for the Offered Shares to
be purchased by it hereunder as specified to the Company in writing by Cohen &
Steers on the date hereof, upon physical delivery thereof to the office of
such Purchaser's custodian designated by Cohen & Steers, on July 3, 1996, or
on such other date, not later than 5:00 p.m. (New York time) on July 5, 1996,
as shall be agreed upon by the Company and Cohen & Steers acting on behalf of
the Purchasers. The date of such payment and delivery are hereinafter
referred to as the Closing Date. Payment for the Offered Shares by each
Purchaser's custodian shall be made on the Closing Date by certified or
official bank check or checks payable to the order of BancBoston Trust of New
York, as agent of the Company in New York Clearing House Funds upon delivery
to such Purchaser's custodian at the offices referred to above of the Offered
Shares to be purchased by such Purchaser registered in such names and in such
denominations as Cohen & Steers on behalf of such Purchaser shall request in
writing not less than one full business day prior to the Closing Date.
4. Conditions to the Company and Purchaser Obligations. (a)
The obligations of the Purchasers hereunder are subject to the following
conditions:
(i) The representations and warranties of the Company
contained in this Agreement shall be true and correct as of the Closing Date
and the Company shall have complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date; and the Purchasers shall have received on the Closing
Date a certificate of an executive officer of the Company to the foregoing
effect.
(ii) The Purchasers shall have received on the Closing Date an
opinion of Piper & Marbury, L.L.P., Maryland counsel for the Company, dated
the Closing Date, to the effect that:
(1) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Maryland and has the corporate power to own its property and
to conduct its business as described in the Prospectus;
(2) this Agreement has been duly authorized, executed
and delivered by the Company;
(3) the authorized capital stock of the Company
conforms in all material respects to the description thereof
contained in the Prospectus; and
(4) the Offered Shares have been duly authorized and,
when delivered to and paid for by the Purchasers in accordance with
the terms of the this Agreement, will be validly issued, fully paid
and non-assessable and the issuance of such Offered Shares will not
be subject to any pre-emptive or similar rights.
(iii) The Purchasers shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, special counsel for the Company, dated the
Closing Date, to the effect that:
(1) such counsel is of the opinion that (A) each
document filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (except for financial statements and
schedules included therein as to which such counsel need not express
any opinion) complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, and (B) the Registration
Statement and Prospectus (except for financial statements and
schedules included therein as to which such counsel need not express
any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder;
(2) the Registration Statement has become effective
under the Securities Act; and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
is in effect and no proceedings for such purpose are pending before
or threatened by the Commission; and
(3) based solely on certificates of public officials,
each of the Company and the Operating Partnership is qualified to do
business in the State of California.
(b) The obligation of the Company hereunder to sell the
Offered Shares to the Purchasers is subject to the following conditions:
(i) The representations and warranties of the Purchasers
and Cohen & Steers contained in this Agreement shall be true and
correct as of the Closing Date and each of the Purchasers and Cohen &
Steers shall have complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date; and the Company shall have
received on the Closing Date a certificate of an executive officer
of Cohen & Steers to the foregoing effect.
(ii) The Company shall have received on the Closing Date an
opinion of Dechert Price & Rhoads, counsel to Cohen & Steers, dated
the Closing Date, to the effect set forth in Sections 2(a) (as to the
Advisers Act only) and (b).
The opinions and certificates to be delivered to the Purchasers and the
Company on the Closing Date pursuant to this Section 4 shall be delivered at
10:00 a.m. (New York City time) on the Closing Date at the offices of Davis
Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017.
5. Covenants of the Company, the Purchasers and Cohen &
Steers. (a) In further consideration of the agreements of the Purchasers
herein contained, the Company covenants as follows:
(i) To furnish to Cohen & Steers, without charge, for delivery
to each Purchaser a conformed copy of the Registration Statement (without
exhibits thereto) and, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto
or to the Registration Statement as Cohen & Steers may reasonably request.
(ii) To endeavor to qualify the Offered Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Company shall determine in its sole discretion, after consultation with Cohen
& Steers, and to maintain such qualification for as long as the Company shall
determine in its sole discretion, after consultation with Cohen & Steers.
(iii) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing
of the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the
Offered Shares; (iii) the fees and disbursements of the Company's counsel;
(iv) the qualification of the Offered Shares under state securities or Blue
Sky laws in accordance with the provisions of Section 5(a)(ii), including
filing fees and the fees and disbursements of counsel for the Company in
connection therewith and in connection with the preparation of any Blue Sky
Memoranda; and (v) the copying and delivery to the Purchasers in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
thereto and of the Prospectus and any amendments or supplements thereto.
(iv) To indemnify and hold harmless each Purchaser and each
person, if any who controls such Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser or
such controlling person may become subject insofar as any such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any breach of the representations or warranties of the Company
contained herein, and will reimburse, as incurred, each Purchaser and each
such controlling person for any reasonable legal or other out-of-pocket
expenses reasonably incurred by any such Purchaser or any such controlling
person in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action in respect thereof. This indemnity agreement will be in addition to
any liability that the Company may otherwise have to any Purchaser or any such
controlling person.
(b) In further consideration of the agreements of the Company
herein contained the Purchasers and Cohen & Steers covenant as follows:
(i) To pay all of their respective expenses incident to the
performance by them of their respective obligations under this Agreement
including the fees and disbursements of Dechert Price & Rhoads.
(ii) Cohen & Steers (with respect to the representations and
warranties made by it in Section 2(a), (b), (c) and (d) and as agent of and on
behalf of each Purchaser with respect to the representations and warranties
made by it on behalf of such Purchaser in Section 2(e)) agrees to indemnify
and hold harmless the Company and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, claims, damages or liabilities, joint
or several, to which the Company or such controlling person may become subject
insofar as any such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any breach of such
representations or warranties, and will reimburse, as incurred, the Company
and each such controlling person for any reasonable legal or other
out-of-pocket expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will
be in addition to any liability that Cohen & Steers or any Purchaser may
otherwise have to the Company or any such controlling person.
6. Defaulting Purchasers. If on the Closing Date any one
or more of the Purchasers shall default in its obligation to purchase Offered
Shares that it has or they have agreed to purchase hereunder on such date, the
other Purchasers shall be obligated severally in the proportions that the
number of Offered Shares to be purchased by each of them (as identified to the
Company in writing on the date hereof) bears to the aggregate number of
Offered Shares which the non-defaulting Purchasers have agreed to purchase,
or in such other proportions as Cohen & Steers may specify, to purchase the
Offered Shares which such defaulting Purchaser or Purchasers agreed but failed
or refused to purchase on such date. Any action taken under this paragraph
shall not relieve any defaulting Purchaser from liability in respect of any
default of such Purchaser under this Agreement.
7. Counterparts; Benefit of Agreement. This Agreement may
be signed in two or more counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument.
This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
8. Applicable Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
9. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not
be deemed a part of this Agreement.
10. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, the
Purchasers and Cohen & Steers set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company or any Purchaser or Cohen & Steers or any controlling person of
any of them and (ii) delivery of and payment for the Offered Shares.
If this Agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and deliver one of the
counterparts hereof to Cohen & Steers. This will become a binding agreement,
as of the date first above written, between the Company, the Purchasers and
Cohen & Steers when such counterpart is so delivered.
Very truly yours,
COHEN & STEERS CAPITAL MANAGEMENT,
INC., on behalf of itself and as
agent for the Purchasers
/s/ Robert H. Steers
By:___________________________
Name: Robert H. Steers
Title: Chairman
Accepted as of the
date first above
written
IRVINE APARTMENT COMMUNITIES,
INC.
/s/ Richard E. Moran Jr.
By: _________________________
Richard E. Moran Jr.
Executive Vice President
and Chief Financial
Officer
/s/ James Mead
By: _________________________
James Mead
Senior Vice President
and Treasurer
