BEX PORTFOLIO, INC. FIFTH SUPPLEMENTAL INDENTURE
EXHIBIT 4.1
BEX PORTFOLIO, INC.
FIFTH SUPPLEMENTAL INDENTURE
THIS FIFTH SUPPLEMENTAL INDENTURE (this “Fifth Supplemental Indenture”) is entered into as of April 1, 2014 between BRE Properties, Inc., a Maryland corporation (the “Original Company”), BEX Portfolio, Inc., a Delaware corporation (the “Successor Company”) and a direct subsidiary of Essex Property Trust, Inc., a Maryland corporation (the “Parent Company”), and The Bank of New York Mellon Trust Company, National Association (successor to X.X. Xxxxxx Trust Company, National Association), a bank duly organized and existing under the laws of the United States, as trustee (the “Trustee”), under that certain Indenture, dated as of June 23, 1997 (the “Original Indenture”), as amended and supplemented by that certain First Supplemental Indenture, dated as of April 23, 1998 (the “First Supplemental Indenture”), as further amended and supplemented by that certain Second Supplemental Indenture, dated as of August 15, 2006 (the “Second Supplemental Indenture”), as further amended and supplemented by that certain Third Supplemental Indenture, dated as of November 3, 2006 (the “Third Supplemental Indenture”), and as further amended and supplemented by that certain Fourth Supplemental Indenture, dated as of March 19, 2014 (the “Fourth Supplemental Indenture” and, collectively with the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture, the “Indenture”).
Article One
Section 101. Definitions. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Indenture.
Section 102. Effects of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 103. Successors and Assigns. All covenants and agreements in this Fifth Supplemental Indenture by the Original Company and the Successor Company shall bind their successors and assigns, whether so expressed or not.
Section 104. Separability Clause. In case any provision in this Fifth Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 105. Benefits of Indenture. Nothing in this Fifth Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto, any Debt Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture or this Fifth Supplemental Indenture.
Section 106. Governing Law. This Fifth Supplemental Indenture shall be governed by and construed in accordance with the law of the State of New York. This Fifth Supplemental Indenture is subject to the provisions of the TIA that are required to be part of this Fifth Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.
Section 107. Effectiveness. This Fifth Supplemental Indenture shall take effect upon the effectiveness of the Merger.
Section 108. Relation to the Original Indenture. This Fifth Supplemental Indenture supplements the Indenture and shall be a part and subject to all the terms thereof. Except as supplemented hereby, all of the terms, provisions and conditions of the Indenture and the Debt Securities issued thereunder shall continue in full force and effect.
Section 109. Concerning the Trustee. The Trustee makes no representations as to the validity or sufficiency of this Fifth Supplemental Indenture or to the recitals contained herein.
Section 110. Counterparts. This Fifth Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture.
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Article Two
Assumption of Obligations
Section 201. Assumption of Obligations. As required by Section 801 of the Indenture, as and from the effective time of the Merger, the Successor Company hereby expressly assumes the due and punctual payment of the principal of (and premium, if any) and interest, if any, on and all Additional Amounts, if any, payable in respect of, all of the Outstanding Debt Securities, according to their tenor, and the due and punctual performance and observance of all of the other covenants and conditions contained in the Indenture and the Debt Securities to be performed or observed by the Original Company.
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BRE PROPERTIES, INC.
as Original Company
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
BEX PORTFOLIO, INC.
as Successor Company
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
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