Exhibit 10.36
NINTH AMENDMENT TO
FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED
PARTNERSHIP OF ESSEX PORTFOLIO, L.P.
THIS NINTH AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF ESSEX PORTFOLIO, L.P., AS AMENDED (as
amended, the " Partnership Agreement "), dated as of
January 8, 2004 (this " Amendment "), is executed by
Essex Property Trust, Inc. a Maryland corporation (the "
Company "), as the General Partner and on behalf of
the existing Limited Partners of Essex Portfolio, L.P., a
California limited partnership (the " Partnership "),
Belmar Realty Corporation, a Delaware corporation ("
Belmar "), Belrose Realty Corporation, a Delaware
corporation (" Belrose "), Belport Realty
Corporation, a Delaware corporation (" Belport "),
and Belshire Realty Corporation, a Delaware Corporation ("
Belshire ," and each of Belmar, Belrose, Belport and
Belshire a " Series B Preferred Partner " and
collectively, the " Series B Preferred Partners ").
Capitalized terms used herein but not defined herein shall have the
definitions ascribed to such terms in the Partnership
Agreement.
W I T N E S S E T
H:
WHEREAS, the Partnership and the Series B Preferred Partners
desire to amend certain terms of the Series B Preferred Units (as
defined in the Partnership Agreement) from and after the date
hereof;
WHEREAS, the Series B Preferred Units were established by that
certain First Amendment to the First Amended and Restated Agreement
of Limited Partnership of Essex Portfolio, L.P. (the " First
Amendment "), dated as of February 6, 1998 and that certain
Second Amendment to the First Amended and Restated Agreement of
Limited Partnership of Essex Portfolio, L.P. (the " Second
Amendment "), dated as of April 20, 1998; and
WHEREAS, the signatories hereto desire to cause the Articles
Supplementary attached hereto as Exhibit A (the " Articles
Supplementary "; the Partnership Agreement and the Articles
Supplementary, collectively, the " Amended Documents
"), which reclassify the Company's 7.875% Series B Cumulative
Redeemable Preferred Stock as Series B Cumulative Redeemable
Preferred Stock (the " Series B Preferred Stock "),
to be filed with the State Department of Assessments and Taxation
of Maryland (the " SDAT "), as set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises set forth herein, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
agree to continue the Partnership and amend the Amended Documents
as follows:
1.
Partnership Agreement . The Partnership Agreement
is hereby amended as follows:
a.
The definition of "Series B Preferred Stock" in the
First Amendment is hereby amended to read as follows: ""Series B
Preferred Stock" shall mean the preferred stock of the General
Partner described in Article FIRST of the Articles Supplementary
reclassifying the General Partner's 7.875% Series B Cumulative
Redeemable Preferred Stock as Series B Cumulative Redeemable
Preferred Stock to be filed with the SDAT on or before January 20,
2004."
1
b.
The definition of "Series B Preferred Stock" in Section
1 of Exhibit N to the Partnership Agreement is hereby amended by
deleting the term "7.875%" therein.
c.
Section 2(F)(i) of Exhibit N to the Partnership
Agreement is hereby amended by deleting the phrase "February 6,
2003" from the first sentence therein and inserting the phrase
"December 31, 2009" in lieu thereof.
d.
Section 2(F)(ii) of Exhibit N to the Partnership
Agreement is hereby amended by deleting the first sentence of such
Section, which states: "[e]xcept in connection with a liquidation,
dissolution, winding-up or termination of the Partnership as
described under "Liquidation" above, the Redemption Price of the
Series B Preferred Units (other than the portion thereof consisting
of accumulated but unpaid distributions) will be payable solely out
of the sale proceeds of capital stock of the Company, which will be
contributed by the Company to the Partnership as an additional
capital contribution, or out of the sale proceeds of limited
partner interests of the Partnership and no other source." The
following sentence shall be inserted in lieu of such deleted
sentence: "The Redemption Price of Series B Preferred Units may be
payable from any source of funds."
e.
Section 2(F) of Exhibit N to the Partnership Agreement
is hereby amended by adding the following new subsection (vi)
thereto:
"(vi) Notwithstanding any provision
herein to the contrary, so long as any Series B Preferred Units
remain outstanding, in the event of the occurrence of a Covered
Transaction (defined below), the Partnership shall redeem, on the
date such Covered Transaction is completed or occurs, all of the
Series B Preferred Units outstanding at the Redemption Price,
payable in cash, if redemption of the Series B Preferred Units was
elected in writing by the holders of not less than a majority of
the then outstanding Series B Preferred Units in accordance with
this Section 2(F)(vi). The Partnership shall give written notice of
a Covered Transaction to each of the respective holders of record
of the Series B Preferred Units, at their respective addresses as
they appear on the transfer records of the Partnership, not less
than thirty (30) days prior to the completion or occurrence of a
Covered Transaction. Such notice shall not set forth any non-public
information concerning such Covered Transaction. Each of the
holders of record of the Series B Preferred Units shall have until
5:00 p.m. (PST) on the fifteenth (15th) day following receipt of
such notice from the Partnership, to give the Partnership notice of
such holder's election that the Series B Preferred Units be
redeemed. Notwithstanding any provision herein to the contrary,
with respect to a Covered Transaction that arises under clause (c)
of the definition of Covered Transaction set forth below, in the
event that the Company so fails to qualify as a real estate
investment trust for any reason other than an affirmative election
by the Company not to qualify, (a) the Partnership shall give
notice of the occurrence of a Covered Transaction to each of the
holders of record of the Series B Preferred Units within 15 days of
discovery of such failure to qualify, (b) each of the holders of
record of the Series B Preferred Units shall have until 5:00 p.m.
(PST) on the fifteenth (15th) day following receipt of such notice
from the Partnership, to give the Partnership notice of such
holder's election that the Series B Preferred Units be redeemed and
(c) if the holders of not less than a majority of the then
outstanding Series B Preferred Units have elected to have the
Series B Preferred Units redeemed, the Series B Preferred Units
shall be redeemed on a date not later than 45 days following the
date of discovery of the Company's failure to qualify.
2
The procedures set forth in Section 2(F)(iii) shall apply to a
redemption pursuant to this Section 2(F)(vi). On or before the date
of redemption, the Partnership shall give notice of redemption to
the respective holders of record of the Series D Preferred Units,
at their respective addresses as they appear on the transfer
records of the Partnership; and, the provisions of Section 2(F)(v),
other than the first sentence thereof, shall apply to such notice
of redemption.
For purposes of this Section 2(F)(vi), the term " Covered
Transac
