SIXTEENTH AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ESSEX PORTFOLIO, L.P. Dated as of April 7, 2009
Exhibit
10.1
SIXTEENTH
AMENDMENT TO
FIRST
AMENDED AND RESTATED
AGREEMENT
OF LIMITED PARTNERSHIP OF
ESSEX
PORTFOLIO, L.P.
Dated
as of April 7, 2009
This
Sixteenth Amendment, dated as of the date shown above (this “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., a California limited partnership (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, Sections 2 through 7
of this Amendment are solely intended to clarify provisions in (1) Exhibit T of
the Partnership Agreement, which exhibit had been added to the Partnership
Agreement pursuant to that certain Fourteenth Amendment to First Amended and
Restated Agreement of Limited Partnership of Essex Portfolio, L.P., dated as of
December 26, 2007, and (2) Exhibit E of the Partnership Agreement, which exhibit
had been restated pursuant to that certain Fifteen Amendment to First Amended
and Restated Agreement of Limited Partnership of Essex Portfolio, L.P., dated as
of February 26, 2008;
WHEREAS, it is necessary and
desirable to impose certain restrictions on certain transfers by Limited
Partners and the exercise of the redemption and sale rights granted under
Article 9 of the Partnership Agreement so that the Partnership may avoid
treatment as a “publicly traded partnership;”
WHEREAS, Section 13.7(b)(iv)
of the Partnership Agreement allows the General Partner to make any amendment
that does not adversely affect the Limited Partners in any material respect;
Section 13.7(b)(vi) of the Partnership Agreement allows the General Partner to
make any amendment to satisfy any “requirements, conditions or guidelines” of
any regulation of any federal agency; and Section 13.7(b)(iii) of the
Partnership Agreement allows the General Partner to make amendments setting
forth the rights, powers and duties of holders of additional Partnership
Units;
WHEREAS, the proposed changes
in this Amendment that are set forth in Sections 8 and 9 herein, which relate to
Article 9 of the Partnership Agreement and Exhibit I to the Partnership
Agreement, respectively, incorporate “safe harbor” provisions for the
Partnership to avoid status as a “publicly traded partnership,” the
determination of which would cause the Partnership to cease to be qualified as a
partnership for Federal income tax purposes; the “safe harbor” provisions
prohibit certain transfers by Limited Partners; such “safe harbor” provisions
would have been used by the General Partner to determine whether certain
transfers by Limited Partners would cause a termination of the Partnership for
Federal income tax purposes under existing Section 9.3(vi); and thus the
explicit incorporation of the terms of such “safe harbor” provisions into
Article 9 does not adversely affect the rights of the Limited
Partners;
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WHEREAS, in addition to
incorporating the “safe harbor” provisions, the proposed changes in Section 8 of
this Amendment clarify that the Partnership intends to rely on the “Private
Placement Safe Harbor” until the “Private Placement Safe Harbor” becomes
inapplicable, at which point (i) the Partnership intends to rely on the other
safe harbors and (ii) no transfer by Limited Partners shall be permitted if such
transfer does not qualify under one of the other safe harbors; and
NOW THEREFORE, in
consideration of the mutual covenants and agreements herein contained and other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the parties hereto, intending legally to be bound,
hereby amend 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.
Section 1.1 of the Partnership
Agreement is hereby amended to delete the definition of “LTIP Units” in its
entirety and the following substituted in lieu thereof:
“LTIP Units” shall mean
Partnership Units granted pursuant to that certain long-term compensation
program known as the “2007 Outperformance Plan” and which shall have the rights,
powers, privileges, restrictions, qualifications and limitations set forth in
Exhibit T hereto.
3.
Sections 1(b) and (c) of Exhibit E to the Partnership
Agreement are hereby deleted in their entirety and the following substituted in
lieu thereof:
“(b) Net
Income and Net Losses for a Fiscal Year shall be allocated to the Partners in a
manner such that the Capital Account of each Partner, immediately after making
such allocation, is, as nearly as possible, equal to (i) the distributions that
would be made to such Partner pursuant to Section 6.2(a) hereof if the
Partnership were dissolved pursuant to Article VIII hereof, its affairs wound up
and its assets sold for cash equal to their Gross Asset Values, all Partnership
liabilities were satisfied (limited with respect to each nonrecourse liability
to the Gross Asset Values of the assets securing such liability) and the net
assets of the Partnership were distributed in accordance with Section 6.2(a) to
the Partners immediately after making such allocation, minus (ii) such
Partner’s share of Partnership Minimum Gain or Partner Nonrecourse Debt Minimum
Gain, computed immediately prior to the hypothetical sale of
assets.
(c) Notwithstanding
anything to the contrary in this Agreement, (i) Net Income derived from
operating cash flow of the Partnership shall not be allocated to a holder of
LTIP Units, a holder of Series Z Incentive Units or a holder of Series Z-1
Incentive Units, unless and until the Partnership makes a distribution of such
cash flow to such holders pursuant to Section 6.2(a) hereof, and (ii) Net Income
from disposition gains shall be allocated to a holder of LTIP Units, a holder of
Series Z Incentive Units and a holder of Series Z-1 Incentive Units only upon a
sale of all or substantially all of the assets of the Partnership (including any
hypothetical sale under Treasury Regulations Section 1.704-1(b)(2)(iv)(f) in
connection with, but not limited to, the occurrence of the events set forth in
Section 3(g) below). In the case of Section 1(c)(ii) above, Net
Income shall be allocated to a holder of LTIP Units, a holder of Series Z
Incentive Units or a holder of Series Z-1 Incentive Units such that the Capital
Account of such holder shall be equal to (x) the number of Common Units into
which the LTIP Units, the Series Z Incentive Units or the Series Z-1 Incentive
Units held by such holder could be converted if fully vested, multiplied by (y)
the value of such Common Units (it being intended that the Capital Accounts of a
holder of LTIP Units, Series Z Incentive Units or Series Z-1 Incentive Units
will have a Capital Account equal to the Capital Account applicable to the
Common Units into which they could be converted).”
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4.
Section 3(g) of Exhibit E to the Partnership Agreement is
hereby deleted in its entirety and the following substituted in lieu
thereof:
“Capital Account
Adjustments. The Capital Accounts of the Partnership shall be
adjusted or “booked up” upon the occurrence of the following events to reflect
each Partner’s share of the net fair market value of the Partnership’s
assets:
(i)
the admission of additional Partners into
the Partnership;
(ii)
the award or issuance by the
Partnership of additional Series Z-1 Incentive Units or LTIP Units, or
Partnership Units granted under other long-term incentive programs;
(iii) the
conversion by a Partner of his or her Series Z Incentive Units, Series Z-1
Incentive Units or LTIP Units into Common Units; and
(iv) the
exchange of a Partner’s Common Units for shares of Common Stock.”
5.
Paragraph B. of Section 2 of Exhibit T to the
Partnership Agreement is hereby amended by deleting it in its entirety and the
following substituted in lieu thereof:
“B. Distribution Participation
Date. The “Distribution Participation Date” for each LTIP Unit
will be the application Valuation Date, as defined in the Vesting Agreement of
each Person granted LTIP Units.”
6.
Section 6.2 of the Partnership Agreement is hereby amended by adding a new
paragraph (g) as follows:
(g) “Limitation
on Distributions. Notwithstanding anything to the contrary in this
Agreement, a holder of Series Z Incentive Units, Series Z-1 Incentive Units or
LTIP Units shall receive cash distributions only to the extent that there have
been allocations of Net Income to such holder pursuant to Exhibit E of this
Agreement.”
7.
Section 6.2 of the Partnership Agreement is hereby
amended by adding a new paragraph (h) as follows:
(h) “Notwithstanding
anything to the contrary in this Agreement, a holder of LTIP Units may convert
all or a portion of his or her Vested LTIP Units into Common Units, a holder of
Series Z Incentive Units may convert all or a portion of his or her vested
Series Z Incentive Units into Common Units, and a holder of Series Z-1 Incentive
Units may convert all or a portion of his or her vested Series Z-1 Incentive
Units into Common Units, only to the extent of the balance in such holder’s
Capital Account, after giving effect to any adjustments to or “book ups” of such
Capital Account pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(f) in connection with, but
not limited to, the occurrence of the events set forth in Section 3(g) of
Exhibit E of this Agreement.”
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8.
Amendment of Article IX of
the Partnership Agreement. Article IX to the Partnership Agreement is
amended and restated by replacing such Article IX with Article IX as
follows:
“ARTICLE
IX
TRANSFER
OF PARTNERSHIP INTERESTS
“9.1 General
Partner Transfer. The General Partner shall not withdraw from the
Partnership and shall not Transfer all or any portion of its interest in the
Partnership without the Consent of the Limited Partners, provided that the
Consent of the Limited Partners shall not be required if the Limited Partners
collectively own less than five percent (5%) of the Partnership Units at the
time of such Transfer. Upon any Transfer of all of the General
Partner’s Partnership Interest in accordance with the provisions of this Section
9.1, the transferee General Partner shall become vested with the powers and
rights of the transferor General Partner, and shall be liable for all
obligations and responsible for all duties of the General Partner, once such
transferee has executed such instruments as may be necessary to effectuate such
admission and to confirm the agreement of such transferee to be bound by all the
terms and provisions of this Agreement with respect to the Partnership Interest
so acquired. It is a condition to any Transfer otherwise permitted
hereunder that the transferee assumes by operation of law or express agreement
all of the obligations of the transferor General Partner under this Agreement
with respect to such transferred Partnership Interest, and no such Transfer
(other than pursuant to a statutory merger or consolidation wherein all
obligations and liabilities of the transferor General Partner are assumed by a
successor corporation or other Entity by operation of law) shall relieve the
transferor General Partner of its obligations under this Agreement without the
Consent of the Limited Partners, provided that the Consent of the Limited
Partners shall not be required if the Limited Partners collectively own less
than five percent (5%) of the Partnership Units at the time of such
Transfer. In the event the General Partner withdraws from the
Partnership, in violation of this Agreement or otherwise, or dissolves,
terminates or upon the Bankruptcy of the General Partner, a Majority-In-Interest
of the Limited Partners may elect to continue the Partnership business by
selecting a substitute general partner.
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“9.2 Transfers
by Limited Partners. Each Limited Partner shall, subject to
the provisions of Section 9.2(b) and Section 9.3 hereof, have the right to
Transfer (or convert to Common Stock and thereafter sell such Common Stock) to
any Person all or any portion of its Partnership Interest, whether or not in
connection with the exercise of such Limited Partner’s Rights. In
addition, the Partners hereby acknowledge and agree that neither the Series Z
Incentive Units nor the Series Z-1 Incentive Units shall be Transferred, other
than (a) by operation of law to the estate of a Series Z Partner or Series Z-1
Partner, as applicable, or (b) to the Partnership or the General
Partner.
“(a)
(i) It is a condition to any Transfer (other
than pursuant to Section 9.2(b)(ii) below) permitted under this Section 9.2 that
the transferee assumes by operation of law or express agreement all of the
obligations of the transferor Limited Partner under this Agreement with respect
to such transferred Partnership Interest, and no such Transfer (other than
pursuant to a statutory merger or consolidation wherein all obligations and
liabilities of the transferor Partner are assumed by a successor corporation or
other Entity by operation of law) shall relieve the transferor Partner of its
obligations under this Agreement without the approval of the General Partner, in
its sole and absolute discretion. Upon such Transfer, the transferee
shall be deemed to be an Assignee with respect to such Partnership Interest, but
shall not become or be admitted to the Partnership as a Substituted Limited
Partner without the consent of the General Partner, which consent may be given
or withheld in the General Partner’s sole and absolute discretion for any or no
reason. An Assignee shall be entitled as a result of such Transfer
only to receive the economic benefits of the Partnership Interest to which the
transferor Limited Partner would otherwise be entitled, along with such
transferor Limited Partner’s rights with respect to the Rights (although any
transferee of any transferred Partnership Interest shall be subject to any and
all ownership limitations contained in the corporate charter of the General
Partner as the same may be amended from time to time which may limit or restrict
such transferee’s ability to exercise the Rights), and such Assignee shall have
no right (a) to participate in the management of the Partnership or to vote on
any matter requiring the consent or approval of the Limited Partners, (b) to
demand or receive any account of the Partnership’s business, or (c) to inspect
the Partnership’s books and records, unless and until such Assignee is admitted
to the Partnership as a Substituted Limited Partner. A transferee of
a Partnership Interest may become a Substituted Limited Partner only upon the
satisfaction of the following conditions: (A) filing with the
Partnership of a duly executed and acknowledged written instrument of assignment
in a form approved by the General Partner specifying the Partnership Interest
being assigned and setting forth the intention of the transferor Limited Partner
that such transferee succeeds to the assignor’s interest as a Limited Partner;
(B) execution and acknowledgment by the transferor Limited Partner and such
transferee of any other instruments required in the discretion of the General
Partner, including the acceptance and adoption by such transferee of the
provisions of this Agreement; (C) obtaining the written consent of the General
Partner as provided above; and (D) payment of a transfer fee to the Partnership,
sufficient to cover the reasonable expenses of the substitution, if
any. Any transferee, whether or not admitted as a Substituted Limited
Partner, shall take subject to the obligations of the transferor Limited Partner
hereunder.
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“(ii)
Notwithstanding any provision of this
Agreement to the contrary (including, without limitation, Section 4.6 hereof),
each Limited Partner shall have the right, without the consent of the General
Partner, to pledge or otherwise encumber all or any portion of its Partnership
Units, subject to any applicable securities laws, to any recognized financial
institution with assets in excess of $100,000,000. Any such financial
institution (or any other purchaser at a foreclosure sale) shall upon
foreclosure of any such pledged or encumbered Partnership Units be (A)
recognized as an Assignee under this Agreement, (B) deemed to be a Substituted
Limited Partner under this Agreement, and (C) deemed to be and have all of the
rights, if any, of the pledging Limited Partner for all purposes of any
registration rights agreement relating to the pledged or encumbered Partnership
Units. The General Partner shall execute such documents in connection
with any such pledges as such financial institution may reasonably require
acknowledging the rights of such financial institution hereunder and the
obligations of the Partnership and the General Partner hereunder.
“9.3. Certain
Transfers Prohibited.
“(a)
Notwithstanding any other provision of this
Agreement, no Transfer of a Limited Partner’s Partnership Interest (including
any Transfer of an interest in Partnership gains, losses or distributions) shall
be permitted if such Transfer would result in (i) such interests being traded on
an “established securities market” or a “secondary market (or the substantial
equivalent thereof)” within the meaning of Section 7704 of the Code; or (ii) the
Partnership being unable to qualify for at least one of the “safe harbors” set
forth in Treasury Regulations Section 1.7704-1(e), (f), (g), (h) or (j) (or such
other guidance subsequently published by the IRS setting forth safe harbors
under which interests will not be treated as “readily tradable on a secondary
market (or the substantial equivalent thereof)” within the meaning of Section
7704 of the Code) (the “Safe Harbors”).
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“(b) By
means of example, the Safe Harbors described in the foregoing include, but are
not limited to, the following: (i) “private transfers” including transfers
which constitute “block transfers” consisting of a Transfer by a partner and any
related persons (within the meaning of Section 267(b) or Section 707(b)(1) of
the Code) in one or more transactions during any thirty (30) calendar-day period
of Partnership Interests representing in the aggregate more than two percent
(2%) of the total interests in the Partnership’s capital or profits (determined
without regard to Partnership Interests held by the General Partner and any
other person related to the General Partner within the meaning of Section 267(b)
or Section 707(b)(1) of the Code); (ii) any Transfer that, when aggregated with
all other Transfers of Partnership Interests (other than Transfers described in
Treasury Regulations Section 1.7704-1(e), (f) or (g), inclusive of, but not
limited to, those Transfers described by items (i) and (iii) of this Section
9.3(b)) within the same taxable year of the Partnership, would constitute a
transfer of a percentage of the total interests in the Partnership’s capital or
profits (determined without regard to Partnership Interests held by the General
Partner and any other person related to the General Partner within the meaning
of Section 267(b) or Section 707(b)(1) of the Code) of two percent (2%) or less;
(iii) certain Transfers made pursuant to a redemption or repurchase agreement,
where (A) such redemption or repurchase is made pursuant to a redemption or
repurchase agreement that requires that the redemption or repurchase does not
occur until at least sixty (60) calendar days after a partner notifies the
Partnership in writing of the partner’s intention to exercise the redemption or
repurchase right; (B) either (i) such redemption or
repurchase is made pursuant to a redemption or repurchase agreement that
requires that the redemption or repurchase price not be established until at
least sixty (60) calendar days after receipt of such notification by the
partnership or the partner; or (ii) the redemption or
repurchase price is established not more than four times during the
partnership’s taxable year; and (C) the sum of the percentage interests in
Partnership capital or profits (determined without regard to Partnership
Interests held by the General Partner and any other person related to the
General Partner within the meaning of Section 267(b) or Section 707(b)(1) of the
Code) transferred during the taxable year of the Partnership does not exceed ten
percent (10%) of the total interests in Partnership capital or profits
(determined without regard to Partnership Interests held by the General Partner
and any other person related to the General Partner within the meaning of
Section 267(b) or Section 707(b)(1) of the Code); and (iv) the “Private
Placement Safe Harbor,” which requires (A) the Partnership to have not more than
100 partners at any time during its taxable year and (B) all Partnership
Interests to have been issued in a transaction (or transactions) that was not
required to be registered under the Securities Act of 1933.
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“(c) The
General Partner is authorized to take all steps reasonably necessary or
appropriate to prevent any trading of interests or any recognition by the
Partnership of Transfers made on such markets and, except as otherwise provided
herein, to insure that at least one of the Safe Harbors is met; provided,
however, that the foregoing shall not authorize the General Partner to limit or
restrict in any manner the right of any holder of a Partnership Interest to
exercise its rights in accordance with the terms of Article XI and Exhibit I
unless, and only to the extent that, outside tax counsel provides to the General
Partner an opinion to the effect that, in the absence of such limitation or
restriction, there is a significant risk that the Partnership will be treated as
a “publicly traded partnership” and, by reason thereof, taxable as a
corporation.
“The
General Partner may establish such policies and procedures as it may deem
necessary or desirable in its sole discretion to administer the limitations set
forth above. Solely for purposes of this Section, the term “Transfer” shall not
include (except as provided in the following clause) the mere pledge,
hypothecation or grant of a security interest in a Partnership Interest, but
shall include any transfer of a Partnership Interest within the meaning of
Treasury Regulations Section 1.7704-1(a)(3) (other than transfers that have not
been recognized by the Partnership).
“(d) For
the avoidance of doubt, the Partnership will rely on the Private Placement Safe
Harbor described in Section 9.3(b)(iv) and set forth in Treasury Regulations
Section 1.7704-1(h) until the Partnership can no longer avail itself of the
Private Placement Safe Harbor as currently in force or as amended by the
IRS. The Partnership will not rely on any of the other Safe Harbors
until and unless it can no longer rely on the Private Placement Safe
Harbor. If and when the Private Placement Safe Harbor becomes
inapplicable, the Partnership intends to rely on the other Safe Harbors,
including but not limited to those Safe Harbors provided in Section 9.3(b)(i)
through (iii), in order to avoid being treated as a “publicly traded
partnership,” and no Transfer of a Limited Partner’s Partnership Interest shall
be permitted if such Transfer does not qualify for one of these Safe
Harbors.
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“(e) The
restrictions set forth in this Section 9.3 shall continue in effect until such
time as the Partnership is no longer potentially subject to classification as a
publicly traded partnership, as defined in Section 7704 of the Code, or in the
absence of applicable regulations, as determined by the General Partner in its
discretion. The restrictions set forth in this Section 9.3, together with the
Additional Restrictions on Transfer set forth in Section 9.4, are intended to
limit transfers of interests in the Partnership in such a manner as to permit
the Partnership to qualify for the Safe Harbors from treatment as a publicly
traded partnership set forth in Treasury Regulations Sections 1.7704-1. The
General Partner may modify the restrictions set forth in this Section 9.3, and
the provisions of Section 9.4, from time to time in its discretion to ensure
that the Partnership complies and continues to comply with such
requirements.
“9.4 Additional
Restrictions on Transfer. In addition to any other restrictions on
Transfer herein contained, in no event may any Transfer of a Partnership
Interest by any Partner be made and in no event shall Additional Units be issued
(i) to any Person that lacks the legal right, power or capacity to own a
Partnership Interest; (ii) in violation of any provision of any mortgage or
trust deed (or the note or bond secured thereby) constituting a Lien against a
Property or any part thereof, or other instrument, document or agreement to
which the Partnership, EWIP or any other Investment Entity, the Property
Manager, the Pathways Common Tenancy, or any Washington Partnership is a party
or otherwise bound; (iii) in violation of applicable law, including, without
limitation, any applicable state securities “Blue Sky” law (including investment
suitability standards); (iv) of any component portion of a Partnership Interest,
such as the Capital Account, or rights to Available Cash, separate and apart
from all other components of a Partnership Interest; (v) in the event such
transfer would cause the General Partner to cease to comply with the REIT
Requirements or result in a violation of Section 7.12 hereof; (vi) if such
transfer would cause a termination of the Partnership for Federal income tax
purposes; (vii) if such transfer would, in the opinion of counsel to the
Partnership, cause the Partnership to cease to be classified as a partnership
for Federal income tax purposes; (viii) if such transfer would cause the
Partnership to become, with respect to any employee benefit plan subject to
Title 1 of ERISA, a “party-in-interest” (as defined in Section 3(14) of
ERISA) or a “disqualified person” (as defined in Section 4975(c) of the Code);
(ix) if such transfer would, in the opinion of counsel to the Partnership, cause
any portion of the assets of the Partnership to constitute assets of any
employee benefit plan pursuant to Department of Labor Regulations Section
2510.3-101; (x) if such transfer may not be effected without registration of
such Partnership Interest under the Securities Act; (xi) if such transfer would
violate any provision of the General Partner’s Articles of Incorporation, as
such may be amended from time to time; or (xii) to a lender to the Partnership
or any Person who is related (within the meaning of Section 1.7542-4(b) of the
Regulations) to any lender to the Partnership whose loan constitutes a
“nonrecourse liability” (within the meaning of Section 1.752-1(a)(2) of the
Regulations) without the consent of the General Partner, in its sole and
absolute discretion, unless the Partnership’s basis for tax purposes would not
be reduced as a result of such Transfer.”
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9.
Amendment of Exhibit
I. Section 7 of Exhibit I to the Partnership Agreement is hereby deleted
in its entirety and the following is hereby substituted in the place
thereof:
“7. Closing;
Delivery of Election Notice.
“(a) If
the transfers effectuated pursuant to the exercise of Conversion Rights or Sale
Rights qualify under one of the Safe Harbors set forth in Treasury Regulations
Section 1.7704-1, other than the Safe Harbor described in Section 9.3(b)(iii),
the closing of the acquisition of Offered Interests shall, unless otherwise
mutually agreed, be held at the principal offices of the General Partner, on the
following date(s):
“(i) With
respect to the exercise of Conversion Rights, the closing shall occur on the
date agreed to by the General Partner and the Exercising Partners, which date
shall in no event be more than the later of (A) ten (10) days after the date of
the Conversion Component Exercise Notice and (B) the expiration or termination
of the waiting period applicable to each Exercising Partner, if any, under the
Xxxx-Xxxxx Act; and
“(ii) With
respect to the exercise of Sale Rights, the General Partner shall, within thirty
(30) days after receipt by the General Partner of any Sale Component Exercise
Notice which Notice does not violate the provisions of Paragraph 3 hereof,
deliver to the Exercising Partners an Election Notice, which Election Notice
shall set forth the computation of the Cash Amount and shall specify the form of
the consideration (which shall be in accordance with Paragraph 6 hereof) to be
paid by the General Partner to such Exercising Partners and the date, time and
location for completion of the purchase and sale of the Offered Units, which
date shall, to the extent required, in no event be more than (A) ten (10) days
after delivery by the General Partner of the Election Notice for Offered Units
with respect to which the General Partner has elected to pay the consideration
by issuance of shares of its Common Stock or (B) sixty (60) days after the
initial date of receipt by the General Partner of the Sale Component Rights
Notice for Offered Units with respect to which the General Partner has elected
to pay the Cash Amount; provided, however, that such sixty (60) day period may
be extended for an additional period to the extent required for the General
Partner to cause additional shares of its Common Stock to be issued to provide
financing to be used to acquire the Offered Units. Notwithstanding
the foregoing, in the event the completion date is extended, the General Partner
agrees to use its best efforts to cause the closing of the acquisition of
Offered Units hereunder to occur as quickly as possible.
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“(b) If
the transfers effectuated pursuant to the exercise of Conversion Rights or Sale
Rights only qualify under the Safe Harbor described in Section 9.3(b)(iii),
which Section covers the Safe Harbor set forth in Treasury Regulations Section
1.7704-1(f) or its successor provision, the closing of the acquisition of
Offered Interests shall, unless otherwise mutually agreed, be held at the
principal offices of the General Partner, on the following date(s):
“(i) With
respect to the exercise of Conversion Rights, the closing shall occur on the
date agreed to by the General Partner and the Exercising Partners, which date
shall in no event be more than the ten (10) days after the later of (A) sixty
(60) days after the date of the Conversion Component Exercise Notice and (B) the
expiration or termination of the waiting period applicable to each Exercising
Partner, if any, under the Xxxx-Xxxxx Act; and
“(ii) With
respect to the exercise of Sale Rights, the General Partner shall, within thirty
(30) days after receipt by the General Partner of any Sale Component Exercise
Notice which Notice does not violate the provisions of Paragraph 3 hereof,
deliver to the Exercising Partners an Election Notice, which Election Notice
shall set forth the computation of the Cash Amount and shall specify the form of
the consideration (which shall be in accordance with Paragraph 6 hereof) to be
paid by the General Partner to such Exercising Partners and the date, time and
location for completion of the purchase and sale of the Offered Units, which
completion date shall in no event be less than sixty (60) days and no more than
seventy (70) days after the initial receipt date by the General Partner of the
Sale Component Exercise Notice, provided, however, that if the General Partner
has elected to pay the Cash Amount for all or a portion of the Offered Units,
then such completion date may be extended to the extent required for the General
Partner to cause additional shares of its Common Stock to be issued to provide
financing to be used to acquire the Offered Units. Notwithstanding the
foregoing, in the event the completion date is extended, the General Partner
agrees to use its best efforts to cause the closing of the acquisition of
Offered Units hereunder to occur as quickly as possible.
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“(c) To
the extent that the acquisition of Offered Interests pursuant to Section 7(b) of
Exhibit I involves a cash payment, then, notwithstanding any other provision of
the Partnership Agreement, such cash payment shall be based on either, in the
General Partner’s sole discretion, (A) calculating the Cash Amount by using the
Closing Price as of the closing of the acquisition of the Offered Interest, or
(B) calculating the Cash Amount by using a redemption or repurchase price
established not more than four times during the Partnership’s taxable
year.”
10. 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.
11. 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.
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IN WITNESS WHEREOF, this
Amendment to the Partnership Agreement is hereby entered into among the
undersigned Partners as of the date first written 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
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By:
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/s/ Xxxxxxx X.
Dance
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Name:
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Xxxxxxx
X. Dance
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Title:
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Executive
Vice President and
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Chief
Financial Officer
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