SUPPLEMENTAL INDENTURE TO INDENTUREIndenture Agreement |
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Essex Portfolio, LP | Essex Property Trust, Inc | Wells Fargo Bank, NA. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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SUPPLEMENTAL 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 Wells 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
