SUPPLEMENTAL INDENTURE TO INDENTURE
TO
INDENTURE
This
SUPPLEMENTAL INDENTURE, dated as of November 1, 2006 (the “Supplemental
Indenture”), is entered into by and among Essex Portfolio, L.P., a California
limited partnership (hereinafter called the “Issuer”), Essex Property Trust,
Inc., a Maryland corporation (hereinafter called the “Guarantor”), and Xxxxx
Fargo Bank, N.A., as trustee hereunder (hereinafter called the “Trustee”), under
the Indenture (defined below). Capitalized terms used and not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Indenture.
WHEREAS,
the Issuer, the Guarantor and the Trustee are parties to that certain Indenture,
dated as of October 28, 2005 (the “Indenture”), pursuant to which the Issuer
issued $225,000,000 aggregate principal amount of 3.625% Exchangeable Senior
Notes due 2025 (the “Notes”);
WHEREAS,
the Issuer, the Guarantor and the Trustee desire to amend the Indenture as
set
forth herein to modify a provision of the Indenture to conform that provision
to
the description thereof set forth in the Offering Memorandum and to cure an
ambiguity contained in the Indenture;
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Issuer, the Guarantor and the
Trustee may amend or supplement the Indenture without the consent of the holders
of the Notes in order to modify any provision of the Indenture to conform that
provision to the description thereof set forth in the Offering Memorandum and
to
cure any ambiguity, omission, defect or inconsistency in the Indenture;
and
WHEREAS,
all of the conditions set forth in the Indenture necessary to authorize the
execution and delivery of this Supplemental Indenture and to make this
Supplemental Indenture valid and binding have been satisfied.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Issuer, the Guarantor and the Trustee hereby
agree to amend the Indenture as follows:
ARTICLE
I
AMENDMENTS
Section
1.1 Amendment.
Section
13.05(e) of the Indenture is hereby amended and restated in its entirety to
read
as follows:
“(e) In
case
the Guarantor shall, by dividend or otherwise, distribute to all or
substantially all holders of its Common Stock cash (including any quarterly
cash
dividend, but excluding (x) any quarterly cash dividend distributed on the
Common Stock to the extent the aggregate cash dividend per share of Common
Stock
in any Fiscal Quarter does not exceed $0.84 (as adjusted to reflect subdivisions
and combinations of the Common Stock, the “dividend
threshold amount”),
(y)
any dividend or distribution in connection with the liquidation, dissolution
or
winding up of the Guarantor, whether voluntary or involuntary, and (z) any
dividend or distribution in connection with a reclassification, consolidation,
merger, binding share exchange or sale to which Section 13.06 applies), then,
in
such case, the Exchange Rate shall be increased so that the same shall equal
the
rate determined by multiplying the Exchange Rate in effect on the applicable
record date by a fraction,
(i) the
numerator of which shall be the Current Market Price on such record date less
the dividend threshold amount; and
(ii) the
denominator of which shall be the Current Market Price on such record date
less
the full amount of cash so distributed, as applicable to one share of Common
Stock,
such
adjustment to be effective immediately prior to the opening of business on
the
day following the record date for such dividend or distribution; provided,
that if
an adjustment is required to be made as a result of a distribution that is
not a
quarterly dividend, the dividend threshold amount shall be deemed to be zero.
If
such dividend or distribution is not so paid or made, the Exchange Rate shall
again be adjusted to be the Exchange Rate that would then be in effect if such
dividend or distribution had not been declared.”
ARTICLE
II
GENERAL
PROVISIONS
Section
2.1 Effective
Date.
This
Supplemental Indenture shall become effective and be operative as of the date
first above written.
Section
2.2 Ratification
of Indenture.
Except
as expressly amended by this
Supplemental
Indenture, the Indenture is in all respects hereby acknowledged, ratified and
confirmed and shall continue in full force and effect in accordance with the
terms thereof.
Section
2.3 Successors.
All
agreements of the Issuer, the Guarantor and the Trustee in this Supplemental
Indenture shall bind their respective successors and assigns.
Section
2.4 Governing
Law.
This
Supplemental Indenture shall be
governed
by, and construed in accordance with, the laws of the State of New York,
including, without limitation, Section 5-1401 of the New York General
Obligations Law.
Section
2.5 Severability.
In case
any provision of this Supplemental
Indenture
shall be deemed invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or
impaired thereby.
Section
2.6 Headings.
The
Article and Section headings in this
Supplemental
Indenture are for convenience only and shall not affect the construction of
this
Supplemental Indenture.
Section
2.7 Counterparts.
This
Supplemental Indenture may be
executed
in any number of counterparts, each of which shall be deemed an original but
all
such counterparts shall together constitute the same instrument.
Section
2.8 Unity.
All
provisions of this Supplemental Indenture
shall
be
deemed to be incorporated in, and made a part of, the Indenture and the Notes.
The Indenture and the Notes, as amended and supplemented by this Supplemental
Indenture, shall be read, taken and construed as one and the same
instrument.
Section
2.9 Trustee
Not Responsible.
The
recitals contained in this Supplemental Indenture shall be taken as the
statements of the Issuer and the Guarantor, and the Trustee assumes no
responsibility for their correctness.
Section
2.10 Trust.
The
Trustee accepts the trusts created by the Indenture, as supplemented by this
Supplemental Indenture, and agrees to perform the same upon the terms and
conditions of the Indenture, as supplemented hereby.
Section
2.11 Third-Party
Beneficiaries.
Nothing
in this Supplemental Indenture express or implied, shall give to any Person,
other than the parties hereto, and their successors under the Indenture, and
the
Holders any benefit or any legal or equitable right, remedy or claim under
the
Indenture.
Section
2.12. Trust
Indenture Act.
If any
provisions hereof limit, qualify or conflict with any provisions of the TIA
required under the TIA to be a part of and govern this Supplemental Indenture,
the provisions of the TIA shall control. If any provision hereof modifies or
excludes any provision of the TIA that may be so modified or excluded, the
latter provisions shall be deemed to apply to this Supplemental Indenture as
so
modified or excluded, as the case may be.
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ESSEX
PORTFOLIO, L.P.
By:
Essex
Property Trust, Inc.
Its
Sole General Partner
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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 Chief Financial
Officer
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ESSEX
PROPERTY TRUST, INC., as Guarantor
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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 Chief Financial
Officer
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XXXXX
FARGO BANK, N.A., as Trustee
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By:
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/s/
Xxxxx Xxxx
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Name:
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Xxxxx
Xxxx
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Title:
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Assistant
Vice President
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