FOURTEENTH AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ESSEX PORTFOLIO, L.P. Dated as of December 26, 2007
FOURTEENTH
AMENDMENT TO
FIRST
AMENDED AND RESTATED
AGREEMENT
OF LIMITED PARTNERSHIP OF
ESSEX
PORTFOLIO, L.P.
Dated
as of December 26, 2007
This
Fourteenth Amendment, dated as of the date shown above (the “Amendment”), is
executed by Essex Property Trust, Inc. a Maryland Corporation (the “Company”),
as the General Partner and as attorney in fact for all limited partners of
Essex
Portfolio, L.P. (the “Partnership”), for the purpose of amending the First
Amended and Restated Agreement of Limited Partnership of Essex Portfolio, L.P.,
dated September 30, 1997 (the “Partnership Agreement”).
RECITALS
WHEREAS,
the Partnership desires to provide for equity incentives to certain persons
who
provide services for the benefit of the Partnership (the “Grantees”) in the form
of Partnership Units which shall be designated “LTIP Units”;
WHEREAS,
pursuant to the authority granted to the General Partner under the Partnership
Agreement, the General Partner desires to amend the Partnership Agreement to
reflect the issuance of the LTIP Units; and
WHEREAS,
upon issuance of LTIP Units, each Grantee shall become a party to the
Partnership Agreement as a Limited Partner and agree to be bound by all terms,
conditions and other provisions of this Amendment and the Partnership
Agreement.
NOW
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement as
follows:
1. Definitions. Capitalized
terms used herein, unless otherwise defined herein, shall have the same meanings
as set forth in the Partnership Agreement.
2. Issuance
of LTIP Units. Pursuant to Section 4.3 of the Partnership
Agreement, the Partnership may from time to time issue LTIP Units to the
Grantees. The holder of any LTIP Units shall have the benefits and
obligations under the Partnership Agreement to which the holder of such
Partnership Interest may be entitled or obliged under the Partnership Agreement,
as amended from time to time. The admission of a Grantee as a
Limited Partner shall become effective as of the date on which the Grantee
is
awarded the LTIP Units, and Exhibit A and Exhibit M to the Partnership Agreement
will be amended to reflect such admission as of such time.
3. Admission
of the Grantees as Limited Partners. Effective immediately prior to the
effectiveness of the next succeeding sentence, the capital accounts of the
Partnership shall be adjusted to reflect each Partner’s share of the net fair
market value of the Partnership’s assets (a “book-up”).
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4. Amendments
to Partnership Agreement.
a. Section
1.1 of the Partnership Agreement is hereby amended to include the following
definition in alphabetical order:
“LTIP
Units” shall mean the Partnership Units designated as such having the
rights, power, privileges, restrictions, qualifications and limitations set
forth on Exhibit T hereto.
b. Section
1.1 of the Partnership Agreement is hereby amended to delete the definition
of
“Percentage Interest” in its entirety and to substitute the following definition
of “Percentage Interest” in its place:
“Percentage
Interest” shall mean with respect to any Partner other than holders of
Series B Preferred Units, Series D Preferred Units, Series Z Incentive Units
or
Series Z-1 Incentive Units, the undivided percentage ownership interest of
such
Partner in the Partnership, as determined by dividing (i) the number of
Partnership Units owned by such Partner by (ii) the sum of (A) the total
number of Partnership Units then outstanding (excluding the Series B Preferred
Interest, the Series B Partnership Units, the Series D Preferred Interest,
the
Series D Preferred Units, the Series F Preferred Interest, Series G Preferred
Interest, Series Z Incentive Units and the Series Z-1 Incentive Units), (B)
the
total number of outstanding Series Z Incentive Units multiplied by the
Distribution Ratchet Percentage with respect to each such Series Z Incentive
Unit, calculated on a unit-by-unit basis, and (C) the total number of
outstanding Series Z-1 Incentive Units multiplied by the Series Z-1 Distribution
Ratchet Percentage with respect to each such Series Z-1 Incentive Unit,
calculated on a unit-by-unit basis. With respect to any holder of Series Z
Incentive Units, such Partner’s Percentage Interest shall be equal to such
Partner’s Series Z Percentage Interest. With respect to any holder of Series Z-1
Incentive Units, such Partner’s Percentage Interest shall be equal to such
Partner’s Series Z-1 Percentage Interest. If any Partner holds a combination of
Common Units, LTIP Units, Series Z Incentive Units and/or Series Z-1
Incentive Units, then such Partner’s Percentage Interest shall be equal to the
sum of (A) the Percentage Interest as calculated pursuant to the first
sentence of this definition (assuming for purposes of such calculation that
such
Partner holds only Common Units and/or LTIP Units, if any), (B) the Series
Z Percentage Interest (assuming for purposes of such calculation that such
Partner holds only Series Z Incentive Units, if any) and (C) the Series Z-1
Percentage Interest (assuming for purposes of such calculation that such Partner
holds only Series Z-1 Incentive Units, if any).
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c. Section
6.2 of the Partnership Agreement is hereby amended to add the following new
paragraph (f):
“(f) Distributions
made pursuant to this Section 6.2 shall be adjusted as necessary to ensure
that the amount apportioned to each LTIP Unit does not exceed the amount
attributable to items of Partnership income or gain realized after the date
such
LTIP Unit was issued by the Partnership. The intent of this Section 6.2(f)
is to ensure that any LTIP Units issued after the date of this Amendment qualify
as “profits interests” under Revenue Procedure 93-27, 1993-2 C.B. 343
(June 9, 1993) and Revenue Procedure 2001-43, 2001-2 C.B. 191
(August 3, 2001), and Section 6.2 shall be interpreted and applied
consistently therewith. The General Partner at its discretion may amend
this Section 6.2(f) to ensure that any LTIP Units granted after the date of
this Amendment will qualify as “profits interests” under Revenue Procedure
93-27, 1993-2 C.B. 343 (June 9, 1993) and Revenue Procedure 2001-43, 2001-2
C.B. 191 (August 3, 2001) (and any other similar rulings or regulations
that may be in effect at such time).”
5. Continuing
Effect of Partnership Agreement. Except as modified herein, the
Partnership Agreement is hereby ratified and confirmed in its entirety and
shall
remain and continue in full force and effect, provided, however, that to the
extent there shall be a conflict between the provisions of the Partnership
Agreement and this Amendment the provisions in this Amendment will prevail.
All
references in any document to the Partnership Agreement shall mean the
Partnership Agreement, as amended hereby.
6. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed to be an original and all of which shall constitute one and the same
agreement. Facsimile signatures shall be deemed effective execution
of this Amendment and may be relied upon as such by the other
party. In the event facsimile signatures are delivered, originals of
such signatures shall be delivered to the other party within three (3) business
days after execution.
[Remainder
of Page Left Blank Intentionally]
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IN
WITNESS WHEREOF, the General Partner has executed this Amendment as of the
date
indicated above.
GENERAL
PARTNER
ESSEX
PROPERTY TRUST,
INC.,
a
Maryland
corporation as General Partner of Essex Portfolio, L.P. and on behalf of the
existing Limited Partners
By:
/s/ Xxxxxxx X. Dance
Name:
Xxxxxxx X. Dance
Title: Executive
Vice President
and
Chief
Financial
Officer
EXHIBIT
T
DESIGNATION
OF THE RIGHTS, POWERS, PRIVILEGES,
RESTRICTIONS,
QUALIFICATIONS AND LIMITATIONS
OF
THE LTIP UNITS
The
following are the terms of the LTIP Units:
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1.
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Vesting.
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A. Vesting,
Generally. LTIP Units may, in the sole discretion of the General
Partner, be issued subject to vesting, forfeiture and additional restrictions
on
transfer pursuant to the terms of an award, vesting or other similar agreement
(a “Vesting Agreement”). The terms of any Vesting Agreement may be modified
by the General Partner from time to time in its sole discretion, subject to
any
restrictions on amendment imposed by the relevant Vesting Agreement or by the
terms of any plan pursuant to which the LTIP Units are issued, if applicable.
LTIP Units that have vested and are no longer subject to forfeiture under the
terms of a Vesting Agreement are referred to as “Vested LTIP Units”; all other
LTIP Units are referred to as “Unvested LTIP Units.” Subject to the terms
of any Vesting Agreement, a holder of LTIP Units shall be entitled to transfer
his or her LTIP Units to the same extent, and subject to the same restrictions,
as holders of Common Units pursuant to Article IX of the Partnership
Agreement.
B. Forfeiture
or Transfer of Unvested LTIP Units. Unless otherwise specified in
the relevant Vesting Agreement, upon the occurrence of any event specified
in a
Vesting Agreement as resulting in either the forfeiture of any LTIP Units,
or
the right of the Partnership or the General Partner to repurchase LTIP Units
at
a specified purchase price, then upon the occurrence of the circumstances
resulting in such forfeiture or if the Partnership or the General Partner
exercises such right to repurchase, then the relevant LTIP Units shall
immediately, and without any further action, be treated as cancelled or
transferred to the General Partner, as applicable, and no longer outstanding
for
any purpose. Unless otherwise specified in the Vesting Agreement, no
consideration or other payment shall be due with respect to any LTIP Units
that
have been forfeited, other than any distributions declared with a record date
prior to the effective date of the forfeiture.
C. Legend. Any
certificate evidencing an LTIP Unit shall bear an appropriate legend indicating
that additional terms, conditions and restrictions on transfer, including
without limitation any Vesting Agreement, apply to the LTIP Unit.
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2.
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Distributions.
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A. LTIP
Distribution Amount. Commencing from the Distribution
Participation Date (as defined below) established for any LTIP Units, for any
quarterly or other period holders of such LTIP Units shall be entitled to
receive, if, when and as authorized by the General Partner out of funds legally
available for the payment of distributions, regular cash distributions in an
amount per unit equal to the distribution payable on each Common Unit for the
corresponding quarterly or other period (the “LTIP Distribution Amount”). In
addition, from and after the Distribution Participation Date, LTIP Units shall
be entitled to receive, if, when and as authorized by the General Partner out
of
funds or other property legally available for the
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payment
of distributions, non-liquidating special, extraordinary or other distributions
in an amount per unit equal to the amount of any non-liquidating special,
extraordinary or other distributions payable on the Common Units which
may be made from time to time. LTIP Units shall also be entitled to
receive, if, when and as authorized by the General Partner out of funds or
other
property legally available for the payment of distributions, distributions
representing proceeds of a sale or other disposition of all or substantially
all
of the assets of the Partnership in an amount per unit equal to the amount
of
any such distributions payable on the Common Units, whether made prior to,
on or
after the Distribution Participation Date, provided that the amount of such
distributions shall not exceed the positive balances of the Capital Accounts
of
the holders of such LTIP Units to the extent attributable to the ownership
of
such LTIP Units. Distributions on the LTIP Units, if authorized,
shall be payable on such dates and in such manner as may be authorized by
the General Partner (any such date, a “Distribution Payment Date”); provided
that the Distribution Payment Date and the record date for determining which
holders of LTIP Units are entitled to receive a distribution shall be the
same
as the corresponding dates relating to the corresponding distribution on
the
Common Units.
B. Distribution
Participation Date. The “Distribution Participation Date” for
each LTIP Units will be either (i) with respect to LTIP Units granted
pursuant to the General Partner’s 2007 Outperformance Plan (the “OPP”), the
applicable Valuation Date (as defined in the Vesting Agreement of each Person
granted LTIP Units under the OPP) or (ii) with respect to other LTIP Units,
such date as may be specified in the Vesting Agreement or other
documentation pursuant to which such LTIP Units are issued.
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3.
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Allocations.
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Commencing
with the portion of the taxable year of the Partnership that begins on the
Distribution Participation Date established for any LTIP Units, such LTIP Units
shall be allocated Net Income and Net Loss in amounts per LTIP Unit equal to
the
amounts allocated per Common Unit pursuant to Exhibit E of the Partnership
Agreement. The General Partner is authorized in its discretion to
delay or accelerate the participation of the LTIP Units in allocations of Net
Income and Net Loss, or to adjust the allocations made after the Distribution
Participation Date, so that the ratio of (i) the total amount of Net Income
or Net Loss allocated with respect to each LTIP Unit in the taxable year in
which that LTIP Unit’s Distribution Participation Date falls, to (ii) the
total amount distributed to that LTIP Unit with respect to such period, is
more
nearly equal to such ratio as computed for the Common Units held by the General
Partner.
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4.
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Adjustments.
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The
Partnership shall maintain at all times a one-to-one correspondence between
LTIP
Units and Common Units for conversion, distribution and other purposes,
including without limitation complying with the following
procedures. If an Adjustment Event (as defined below) occurs, then
the General Partner shall make a corresponding adjustment to the LTIP Units
to
maintain such one-for-one correspondence between Common Units and LTIP Units.
The following shall be “Adjustment Events”: (A) the Partnership makes
a distribution on all outstanding Common Units in Partnership Units,
(B) the Partnership subdivides the outstanding Common Units into a greater
number of units or combines the outstanding Common Units into a smaller number
of units, or (C) the Partnership issues any Partnership Units in exchange
for its outstanding
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Common
Units by way of a reclassification or recapitalization of its Common Units.
If
more than one Adjustment Event occurs, the adjustment to the LTIP Units need
be
made only once using a single formula that takes into account each and every
Adjustment Event as if all Adjustment Events occurred simultaneously. For
the
avoidance of doubt, the following shall not be Adjustment Events: (x) the
issuance of Partnership Units in a financing, reorganization, acquisition
or
other similar business transaction, (y) the issuance of Partnership Units
pursuant to any employee benefit or compensation plan or distribution
reinvestment plan, or (z) the issuance of any Partnership Units to the General
Partner in respect of a capital contribution to the Partnership of proceeds
from
the sale of securities by the General Partner. If the Partnership takes an
action affecting the Common Units other than actions specifically described
above as Adjustment Events and in the opinion of the General Partner such
action
would require an adjustment to the LTIP Units to maintain the one-to-one
correspondence described above, the General Partner shall have the right
to make
such adjustment to the LTIP Units, to the extent permitted by law and by
the
terms of any plan pursuant to which the LTIP Units have been
issued, in such manner and at such time as the General Partner,
in its sole discretion, may determine to be appropriate under the
circumstances. If an adjustment is made to the LTIP Units as herein provided
the
Partnership shall promptly file in the books and records of the Partnership
an
officer’s certificate setting forth such adjustment and a brief statement of the
facts requiring such adjustment, which certificate shall be conclusive evidence
of the correctness of such adjustment absent manifest error. Promptly after
filing of such certificate, the Partnership shall mail a notice to each holder
of LTIP Units setting forth the adjustment to his or her LTIP Units and the
effective date of such adjustment.
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5.
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Ranking.
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The
LTIP
Units shall rank on parity with the Common Units in all respects.
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6.
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No
Liquidation Preference.
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The
LTIP
Units shall have no liquidation preference.
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7.
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Right
to Convert LTIP Units into Common
Units.
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A. Conversion
Right. A holder of LTIP Units shall have the right (the
“Conversion Right”), at his or her option, at any time to convert all or a
portion of his or her Vested LTIP Units into Common Units. Holders of LTIP
Units
shall not have the right to convert Unvested LTIP Units into Common Units until
they become Vested LTIP Units; provided, however, that when a holder of LTIP
Units is notified of the expected occurrence of an event that will cause his
or
her Unvested LTIP Units to become Vested LTIP Units, such Person may give
the Partnership a Conversion Notice conditioned upon and effective as of the
time of vesting, and such Conversion Notice, unless subsequently revoked by
the
holder of the LTIP Units, shall be accepted by the Partnership subject to such
condition. The General Partner shall have the right at any time to cause a
conversion of Vested LTIP Units into Common Units. In all cases, the conversion
of any LTIP Units into Common Units shall be subject to the conditions and
procedures set forth in this Section 7.
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B. Number
of Units Convertible. A holder of Vested LTIP Units
may convert such Vested LTIP Units into an equal number of fully paid and
non-assessable Common Units, giving effect to all adjustments (if any) made
pursuant to Section 4.
C. Notice. In
order to exercise his or her Conversion Right, a holder of LTIP Units shall
deliver a notice (a “Conversion Notice”) in the form attached as
Attachment A to this Exhibit T to the Partnership not less than 10 nor
more than 60 days prior to a date (the “Conversion Date”) specified in such
Conversion Notice. Each holder of LTIP Units covenants and agrees
with the Partnership that all Vested LTIP Units to be converted pursuant to
this
Section 7 shall be free and clear of all liens.
D. Forced
Conversion. The Partnership, at any time at the election of the
General Partner, may cause any number of Vested LTIP Units held by a holder
of LTIP Units to be converted (a “Forced Conversion”) into an equal number of
Common Units, giving effect to all adjustments (if any) made pursuant to
Section 4; provided, that the Partnership may not cause a Forced
Conversion of any LTIP Units that would not at the time be eligible for
conversion at the option of the holder of such LTIP Units pursuant to
Section 7.B above. In order to exercise its right to cause a Forced
Conversion, the Partnership shall deliver a notice (a “Forced Conversion
Notice”) in the form attached as Attachment B to this Exhibit T
to the applicable holder not less than 10 nor more than 60 days prior to the
Conversion Date specified in such Forced Conversion Notice. A Forced Conversion
Notice shall be provided in the manner provided in Section 13.1 of the
Partnership Agreement.
E. Conversion
Procedures. A conversion of Vested LTIP Units for which the
holder thereof has given a Conversion Notice or the Partnership has given a
Forced Conversion Notice shall occur automatically after the close of business
on the applicable Conversion Date without any action on the part of such
holder of LTIP Units, as of which time such holder of LTIP Units shall be
credited on the books and records of the Partnership with the issuance as of
the
opening of business on the next day of the number of Common Units issuable
upon
such conversion. After the conversion of LTIP Units as aforesaid, the
Partnership shall deliver to such holder of LTIP Units, upon his or her written
request, a certificate of the General Partner certifying the number of Common
Units and remaining LTIP Units, if any, held by such Person immediately after
such conversion.
F. Mandatory
Conversion in Connection with a Transaction. If the Partnership
or the General Partner shall be a party to any transaction (including without
limitation a merger, consolidation, unit exchange, self tender offer for all
or
substantially all Common Units or other business combination or reorganization,
or sale of all or substantially all of the Partnership’s assets, but excluding
any transaction which constitutes an Adjustment Event), in each case as a result
of which Common Units shall be exchanged for or converted into the right, or
the
holders of Common Units shall otherwise be entitled, to receive cash, securities
or other property or any combination thereof (each of the foregoing being
referred to herein as a “Transaction”), then the General Partner shall,
immediately prior to the Transaction, exercise its right to cause a Forced
Conversion with respect to the maximum number of LTIP Units then eligible for
conversion, taking into account any allocations that occur in connection with
the Transaction or that would occur in connection with the Transaction if the
assets of the Partnership were sold at the Transaction price or, if applicable,
at a value determined by the General Partner in good faith
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using
the
value attributed to the Partnership Units in the context of the Transaction
(in
which case the Conversion Date shall be the effective date of the Transaction
and the conversion shall occur immediately prior to the effectiveness of
the
Transaction).
In
anticipation of such Forced Conversion and the consummation of the Transaction,
the Partnership shall use commercially reasonable efforts to cause each holder
of LTIP Units to be afforded the right to receive in connection with such
Transaction in consideration for the Common Units into which his or her LTIP
Units will be converted the same kind and amount of cash, securities and other
property (or any combination thereof) receivable upon the consummation of such
Transaction by a holder of the same number of Common Units, assuming such holder
of Common Units is not a Person with which the Partnership consolidated or
into
which the Partnership merged or which merged into the Partnership or to which
such sale or transfer was made, as the case may be (a “Constituent
Person”), or an affiliate of a Constituent Person. In the event that holders of
Common Units have the opportunity to elect the form or type of
consideration to be received upon consummation of the Transaction, prior to
such
Transaction the General Partner shall give prompt written notice to each holder
of LTIP Units of such election, and shall use commercially reasonable efforts
to
afford such holders the right to elect, by written notice to the General
Partner, the form or type of consideration to be received upon conversion
of each LTIP Unit held by such holder into Common Units in connection with
such
Transaction. If a holder of LTIP Units fails to make such an election, such
holder (and any of its transferees) shall receive upon conversion of each LTIP
Unit held by him or her (or by any of his or her transferees) the same kind
and
amount of consideration that a holder of a Common Unit would receive if such
holder of Common Units failed to make such an election.
Subject
to the rights of the Partnership and the General Partner under any Vesting
Agreement and the terms of any plan under which LTIP Units are issued, the
Partnership shall use commercially reasonable effort to cause the terms of
any
Transaction to be consistent with the provisions of this Section 7 and to
enter into an agreement with the successor or purchasing entity, as the case
may be, for the benefit of any holders of LTIP Units whose LTIP Units will
not be converted into Common Units in connection with the Transaction that
will
(i) contain provisions enabling the holders of LTIP Units that remain
outstanding after such Transaction to convert their LTIP Units into securities
as comparable as reasonably possible under the circumstances to the Common
Units
and (ii) preserve as far as reasonably possible under the circumstances the
distribution, special allocation, conversion, and other rights set forth in
the
Agreement for the benefit of the holders of LTIP Units.
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8.
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Redemption
at the Option of the
Partnership.
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LTIP
Units will not be redeemable at the option of the Partnership; provided,
however, that the foregoing shall not prohibit the Partnership from repurchasing
LTIP Units from the holder thereof if and to the extent such holder agrees
to
sell such Units.
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9.
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Voting
Rights.
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A. Voting
with Common Units. Holders of LTIP Units shall have the right to
vote on all matters submitted to a vote of the holders of Common Units; holders
of LTIP Units and Common Units shall vote together as a single class, together
with any other class or series of
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units
of
limited partnership interest in the Partnership upon which like voting rights
have been conferred. In any matter in which the LTIP Units are entitled to
vote,
including an action by written consent, each LTIP Unit shall be entitled
to vote
a Percentage Interest equal on a per unit basis to the Percentage Interest
of
the Common Units.
B. Special
Approval Rights. In addition to, and not in limitation of, the
provisions of Section 9.A above (and notwithstanding anything appearing to
be contrary in the Partnership Agreement), the General Partner and/or the
Partnership shall not, without the affirmative consent of a majority of the
then
outstanding LTIP Units, given in person or by proxy, either in writing or at
a
meeting, take any action that would materially and adversely alter, change,
modify or amend the rights, powers or privileges of the LTIP Units; but subject
in any event to the following provisions: (i) no consent of the holders of
LTIP Units will be required if and to the extent that any such alteration,
change, modification or amendment would similarly alter, change, modify or
amend
the rights, powers or privileges of the Common Units; (ii) with respect to
the occurrence of any Transaction (as defined in Section 7.F of this Exhibit
T),
so long as the LTIP Units either (x) are all converted into Common Units
immediately prior to the effectiveness of the Transaction, (y) remain
outstanding with the terms thereof materially unchanged or (z) if the
Partnership is not the surviving entity in such Transaction, are exchanged
for a
security of the surviving entity with terms that are materially the same with
respect to rights to allocations, distributions, redemption, conversion and
voting as the LTIP Units and without any income, gain or loss expected to be
recognized by the holder upon the exchange for federal income tax purposes
(and
with the terms of the Common Units or such other securities into which the
LTIP
Units (or the substitute security therefor) are convertible materially the
same
with respect to rights to allocations, distributions, redemption, conversion
and
voting), the occurrence of any such event shall not be deemed to materially
and
adversely alter, change, modify or amend the rights, powers or privileges of
the
LTIP Units, provided further, that if some, but not all, of the LTIP Units
are
converted into Common Units immediately prior to the effectiveness of the
transaction (and neither clause (y) or (z) above is applicable), then the
consent required pursuant to this Section 9.B will be the consent of the
holders of a majority of the LTIP Units to be outstanding following such
conversion; (iii) any creation or issuance of any Common Units or of any
class of series of common or preferred units of the Partnership (whether ranking
junior to, on a parity with or senior to the LTIP Units with respect to payment
of distributions, redemption rights and the distribution of assets upon
liquidation, dissolution or winding up), which either (x) does not require
the
consent of the holders of Common Units or (y) does require such consent and
is
authorized by a vote of the holders of Common Units and LTIP Units voting
together as a single class, together with any other class or series of
units of limited partnership interest in the Partnership upon which like voting
rights have been conferred, shall not be deemed to materially and adversely
alter, change, modify or amend the rights, powers or privileges of the LTIP
Units; and (iv) any waiver by the Partnership of restrictions or
limitations applicable to any outstanding LTIP Units with respect to any holder
or holders thereof shall not be deemed to materially and adversely alter,
change, modify or amend the rights, powers or privileges of the LTIP Units
with
respect to other holders. The foregoing voting provisions will not apply if,
as
of or prior to the time when the action with respect to which such vote would
otherwise be required will be taken or be effective, all outstanding LTIP Units
shall have been converted and/or redeemed, or provision is made for such
redemption and/or conversion to occur as of or prior to such time.
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Attachment
A to Exhibit T
Notice
of Election by Partner to Convert
LTIP
Units into Common Units
The
undersigned holder of LTIP Units hereby irrevocably elects to convert the number
of Vested LTIP Units in Essex Portfolio, L.P. (the “Partnership”) set forth
below into Common Units in accordance with the terms of the First Amended and
Restated Agreement of Limited Partnership of the Partnership, as amended. The
undersigned hereby represents, warrants, and certifies that the undersigned:
(a) has title to such LTIP Units, free and clear of the rights or interests
of any other person or entity other than the Partnership; (b) has the full
right, power, and authority to cause the conversion of such LTIP Units as
provided herein; and (c) has obtained the consent or approval of all
persons or entities, if any, having the right to consent or approve such
conversion.
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Name
of Holder:
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(Please
Print: Exact Name as Registered with Partnership)
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Number
of LTIP Units to be Converted:
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Conversion
Date:
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(Signature
of Holder: Sign Exact Name as Registered with Partnership)
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(Street
Address)
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(City)
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(State)
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(Zip
Code)
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Signature
Guaranteed by:
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Attachment
B to Exhibit T
Notice
of Election by Partnership to Force Conversion
of
LTIP Units into Common Units
Essex
Portfolio, L.P. (the “Partnership”) hereby irrevocably elects to cause the
number of LTIP Units held by the holder of LTIP Units set forth below to be
converted into Common Units in accordance with the terms of the First Amended
and Restated Agreement of Limited Partnership of the Partnership, as
amended.
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Name
of Holder:
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(Please
Print: Exact Name as Registered with Partnership)
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Number
of LTIP Units to be Converted:
|
||||||
|
|
||||||
|
Conversion
Date:
|
||||||
