Exhibit 10.37
TENTH AMENDMENT TO
FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED
PARTNERSHIP OF ESSEX PORTFOLIO, L.P.
THIS TENTH 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. (the "
Partnership "), a California limited partnership, and
Belmar Realty Corporation, a Delaware corporation ("
Belmar " and the " Series D Preferred
Partner "). 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 D Preferred Partner
desire to (i) amend the terms of the Series D Preferred Units (as
defined in the Partnership Agreement) to provide that, from and
after July 28, 2004, the Series D Priority Return that accrues on
such Series D Preferred Units shall accrue at the rate per annum of
7.875%, and (ii) amend certain other terms from and after the date
hereof;
WHEREAS, the Series D Preferred Units were established by that
certain Fourth Amendment to the First Amended and Restated
Agreement of Limited Partnership of Essex Portfolio, L.P. (the "
Fourth Amendment "), dated as of July 28, 1999;
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 9.30% Series D Cumulative
Redeemable Preferred Stock as Series D Cumulative Redeemable
Preferred Stock (the " Series D 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 D Preferred Stock" in the
Fourth Amendment is hereby amended to read as follows: ""Series D
Preferred Stock" shall mean the preferred stock of the General
Partner described in Article FIRST of the Articles Supplementary
reclassifying the General Partner's 9.30% Series D Cumulative
Redeemable Preferred Stock as Series D Cumulative Redeemable
Preferred Stock to be filed with the SDAT on or before January 20,
2004."
b.
The definition of "Series D Preferred Units" in the
Fourth Amendment is hereby amended by deleting the term "9.30%"
therein.
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c.
Exhibit A to the Partnership Agreement is hereby amended
by deleting the term "9.30%" therein.
d.
The definition of "Priority Return" in Section 1 of
Exhibit P to the Partnership Agreement is hereby amended by
deleting the term "9.30%" therein and inserting the term "7.875%"
in lieu thereof, which amendments shall be effective on and after
July 28, 2004.
e.
The definition of "Series D Preferred Stock" in Section
1 of Exhibit P to the Partnership Agreement is hereby amended by
deleting the term "9.30%" therein.
f.
Section 2(C) of Exhibit P to the Partnership Agreement
is hereby amended by deleting the term "9.30%" therein and
inserting the term "7.875%" in lieu thereof, which amendment shall
be effective on and after July 28, 2004; and, Section 2(C)(i) of
Exhibit P to the Partnership Agreement is hereby amended by adding
the following new sentence to the end of such Section 2(C)(i): "For
the distribution payment for the quarterly period ending August 15,
2004, which payment shall be calculated on the basis of a ninety
(90) day period, seventy-two (72) days of such period shall be
payable at the rate per annum of 9.30% and eighteen (18) days of
such period shall be payable at the rate per annum of 7.875%."
g.
Section 2(F)(i) of Exhibit P to the Partnership
Agreement is hereby amended by deleting the phrase "July 28, 2004"
from the first sentence therein and inserting the phrase "July 28,
2010" in lieu thereof.
h.
Section 2(F)(ii) of Exhibit P of 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 D 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 D Preferred Units may be
payable from any source of funds."
i.
Section 2(F) of Exhibit P to the Partnership Agreement
is hereby amended by adding the following new subsection (vi)
thereto:
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""(vi) Notwithstanding any provision
herein to the contrary, so long as any Series D 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 D Preferred Units outstanding at the Redemption Price,
payable in cash, if redemption of the Series D Preferred Units was
elected in writing by the holders of not less than a majority of
the then outstanding Series D 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 D 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 D 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 D 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 D Preferred Units within 15 days of
discovery of such failure to qualify, (b) each of the holders of
record of the Series D 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 S
