ESS 8-K
Essex Property Trust, Inc. (ESS)
8-K
2025-02-18
For: 2025-02-18
View Original
Added on
April 06, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): February 18, 2025
ESSEX PORTFOLIO, L.P.
(Exact Name of Registrant as Specified in Its Charter)
333-44467-01 (Essex Portfolio, L.P.)
(Commission File Number)
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(Essex Property Trust, Inc.)
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(Essex Property Trust, Inc.)
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California
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77-0369575
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(Essex Portfolio, L.P.)
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(Essex Portfolio, L.P.)
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(State or Other Jurisdiction of Incorporation)
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(I.R.S. Employer Identification No.)
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(Address of principal executive offices)
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(Zip Code)
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(650 ) 655-7800
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter):
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Essex Property Trust, Inc.
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Emerging growth company
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Essex Portfolio, L.P.
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the
Exchange Act. ☐
| Item 1.01 |
Entry Into a Material Definitive Agreement.
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On February 18, 2025, Essex Portfolio, L.P. (the “Operating Partnership”), the operating partnership of Essex Property Trust, Inc. (the “Company”), issued $400.0 million aggregate principal amount of its 5.375%
senior notes due 2035 (the “Notes”).
The terms of the Notes are governed by an indenture, dated March 14, 2024 (the “Base Indenture”), among the Operating Partnership, as issuer, the Company, as guarantor (in such capacity, the “Guarantor”), and U.S.
Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by a second supplemental indenture, dated as of February 18, 2025 (the “Second Supplemental Indenture” and, together with the Base Indenture, the
“Indenture”), by and among the Operating Partnership, the Guarantor and the Trustee. The Indenture contains various restrictive covenants, including limitations on the Operating Partnership’s ability to consummate a merger, consolidation or
sale of all or substantially all of its assets and limitations on its ability to incur additional secured and unsecured indebtedness. Copies of the Base Indenture and the Second Supplemental Indenture, including the form of the Notes and
guarantee of the Notes by the Guarantor, the terms of which are incorporated herein by reference, are attached as Exhibit 4.1 and 4.2, respectively, to this report. See Item 2.03 below for additional information.
The net proceeds from the issuance of the Notes was approximately $395.5 million, after deducting the underwriting discount and estimated offering expenses. The Operating Partnership intends to use the net proceeds
of this offering to repay upcoming debt maturities, including to fund a portion of the repayment of the Operating Partnership’s $500.0 million aggregate principal amount outstanding of 3.500% senior notes due April 2025, and for other general
corporate and working capital purposes, which may include the funding of potential acquisition opportunities. Pending application of the net proceeds from the offering for the foregoing purposes, such proceeds initially may be used to repay
borrowings outstanding under the Operating Partnership’s unsecured credit facilities and/or invested in short-term securities.
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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On February 18, 2025, the Operating Partnership issued $400.0 million aggregate principal amount of Notes. The Operating Partnership offered the Notes at 99.604% of the principal amount thereof. The Notes are
general unsecured senior obligations of the Operating Partnership and will rank equally in right of payment with all other senior unsecured obligations of the Operating Partnership. However, the Notes are effectively subordinated in right of
payment to all of the Operating Partnership’s existing and future secured indebtedness (to the extent of the value of the collateral securing such indebtedness) and to all existing and future secured and unsecured liabilities and preferred
equity of the Operating Partnership’s subsidiaries, including guarantees by the Operating Partnership’s subsidiaries of the Operating Partnership’s other indebtedness. The Notes bear interest at 5.375% per annum. Interest is payable
semi-annually in arrears on April 1 and October 1 of each year, commencing October 1, 2025, until the maturity date of April 1, 2035. The Operating Partnership’s obligations under the Notes are fully and unconditionally guaranteed by the
Guarantor.
Prior to January 1, 2035 (the “Par Call Date”), the Notes will be redeemable in whole at any time or in part from time to time, at the Operating Partnership’s option and in its sole discretion, at a redemption
price equal to the greater of:
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(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Supplemental Indenture) plus 15 basis points less (b) interest accrued to but excluding the date of redemption; and
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100% of the principal amount of the Notes being redeemed;
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plus, in either case, accrued and unpaid interest thereon to the redemption date.
Notwithstanding the foregoing, if the Notes are redeemed on or after the Par Call Date, the redemption price will be equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid
interest thereon to, but excluding, the redemption date.
Certain events are considered events of default, which may result in the accelerated maturity of the Notes, including:
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default for 30 calendar days in the payment of any installment of interest under the Notes;
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default in the payment of the principal amount or redemption price due with respect to the Notes, when the same becomes due and payable; provided, however, that a valid extension of the maturity of the Notes in accordance with the
terms of the Indenture shall not constitute a default in the payment of principal;
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failure by the Operating Partnership or the Guarantor to comply with any of the Operating Partnership’s or the Guarantor’s respective other agreements in the Notes or the Indenture with respect to the Notes upon receipt by the
Operating Partnership or the Guarantor of notice of such default by the Trustee or by holders of not less than 25% in aggregate principal amount of the Notes (which notice shall also be delivered to the Trustee if given by the holders
of the Notes) then outstanding and the Operating Partnership’s or the Guarantor’s failure to cure (or obtain a waiver of) such default within 60 calendar days after the Operating Partnership receives such notice;
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failure to pay any recourse indebtedness for monies borrowed (or guarantees in respect thereof) by the Operating Partnership or the Guarantor in an outstanding principal amount in excess of $75.0 million at final maturity or upon
acceleration after the expiration of any applicable grace period, which recourse indebtedness (including any guarantee thereof) is, or has become, a primary obligation of the Operating Partnership or the Guarantor and is not discharged,
or such default in payment or acceleration is not cured or rescinded, within 30 calendar days after written notice to the Operating Partnership from the Trustee (or to the Operating Partnership and the Trustee from holders of at least
twenty five percent (25%) in principal amount of the outstanding Notes); or
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certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Operating Partnership, the Guarantor or certain of their respective subsidiaries or all or substantially all
of their respective property.
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The foregoing description of the Indenture does not purport to be complete and is qualified in its entirety by the full text of the Indenture, including the form of the Notes and guarantee of the Notes by the
Company, which is being filed herewith as Exhibit 4.1 and 4.2, respectively, and the terms of which are incorporated herein by reference.
| Item 9.01 |
Financial Statements and Exhibits.
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(d) Exhibits.
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Exhibit
No.
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Description
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Base Indenture, dated March 14, 2024, by and among Essex Portfolio, L.P., Essex Property Trust, Inc., and U.S. Bank Trust Company, National Association, as trustee (previously filed on Form 8-K filed on
March 14, 2024).
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Second Supplemental Indenture, dated February 18, 2025, by and among Essex Portfolio, L.P., Essex Property Trust, Inc., and U.S. Bank Trust Company, National Association, as trustee, including the form of
5.500% Senior Notes due 2034 and the guarantee thereof.
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Opinion of Latham & Watkins LLP.
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Opinion of Venable LLP.
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Consent of Latham & Watkins LLP (included in Exhibit 5.1).
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Consent of Venable LLP (included in Exhibit 5.2).
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104
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Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrants have duly caused this report to be signed on their behalf by the undersigned, hereunto duly authorized.
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Date: February 18, 2025
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ESSEX PROPERTY TRUST, INC.
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/s/ Barbara Pak
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Name:
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Barbara Pak
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Title:
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Executive Vice President and Chief Financial Officer
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ESSEX PORTFOLIO, L.P.
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By: Essex Property Trust, Inc.
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its General Partner
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/s/ Barbara Pak
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Name:
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Barbara Pak
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Title:
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Executive Vice President and Chief Financial Officer
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Exhibit 4.2
ESSEX PORTFOLIO, L.P.
SECOND SUPPLEMENTAL INDENTURE
Dated as of February 18, 2025
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
Trustee
$400,000,000
OF
5.375% SENIOR NOTES DUE 2035
TABLE OF CONTENTS
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Article I RELATION TO BASE INDENTURE; DEFINITIONS
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1
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Section 1.1
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Relation to Base Indenture.
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Section 1.2
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Definitions.
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2
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Section 1.3
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Other Definitions.
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Article II TERMS OF THE SECURITIES
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Section 2.1
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Title of the Securities.
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Section 2.2
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Price.
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Section 2.3
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Limitation on Initial Aggregate Principal Amount; Further Issuances.
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Section 2.4
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Interest and Interest Rates; Stated Maturity of Notes.
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Section 2.5
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Method of Payment.
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8
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Section 2.6
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Currency.
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Section 2.7
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Additional Notes.
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9
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Section 2.8
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Redemption.
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9
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Section 2.9
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No Sinking Fund.
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Section 2.10
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Registrar and Paying Agent.
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Article III FORM OF THE SECURITIES
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Section 3.1
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Global Form.
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10
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Section 3.2
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Transfer and Exchange.
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Article IV REDEMPTION
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Section 4.1
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Optional Redemption of Notes.
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Section 4.2
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Notice of Optional Redemption, Selection of Notes.
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Section 4.3
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Payment of Notes Called for Redemption by the Company.
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Article V GUARANTEE
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Section 5.1
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Note Guarantee.
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Section 5.2
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Execution and Delivery of Note Guarantee.
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Section 5.3
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Limitation of Guarantor’s Liability.
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Section 5.4
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Application of Certain Terms and Provisions to the Guarantor.
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Article VI ADDITIONAL COVENANTS
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Section 6.1
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Limitations on Incurrence of Debt.
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Section 6.2
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Existence.
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Section 6.3
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Merger, Consolidation or Sale.
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Section 6.4
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Provision of Financial Information.
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Section 6.5
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Insurance.
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Article VII DEFAULTS AND REMEDIES
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Section 7.1
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Events of Default.
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Section 7.2
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Acceleration of Maturity; Rescission and Annulment.
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Article VIII AMENDMENTS AND WAIVERS
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Section 8.1
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Without Consent of Holders.
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Section 8.2
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With Consent of Holders.
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Article IX MEETINGS OF HOLDERS OF NOTES
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Section 9.1
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Purposes for Which Meetings May Be Called.
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30
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Section 9.2
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Call, Notice and Place of Meetings.
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Section 9.3
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Persons Entitled to Vote at Meetings.
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30
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Section 9.4
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Quorum; Action.
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Section 9.5
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Determination of Voting Rights; Conduct and Adjournment of Meetings.
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Section 9.6
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Counting Votes and Recording Action of Meetings.
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Article X MISCELLANEOUS
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Section 10.1
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No Recourse Against Others.
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Section 10.2
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Trust Indenture Act Controls.
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Section 10.3
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Governing Law.
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Section 10.4
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Counterparts.
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Section 10.5
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Successors.
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Section 10.6
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Severability.
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Section 10.7
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Table of Contents, Headings, Etc.
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Section 10.8
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Ratifications.
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Section 10.9
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Effectiveness.
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35
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Section 10.10
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The Trustee.
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ii
THIS SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”) is entered into as of February 18, 2025 among Essex Portfolio, L.P., a California
limited partnership (the “Company”), Essex Property Trust, Inc., a Maryland corporation (the “Guarantor” or, in its capacity as the sole general partner of the
Company, the “General Partner”), each having its principal office at Essex Portfolio, L.P., 1100 Park Place, Suite 200, San Mateo, California 94403, and U.S. Bank Trust Company, National Association, a
national banking association organized under the laws of the United States, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS, the Company has delivered to the Trustee an Indenture, dated as of March 14, 2024 (the “Base Indenture”), providing for the issuance by the Company
from time to time of Securities in one or more Series;
WHEREAS, Section 2.2 of the Base Indenture provides for various matters with respect to any Series of Securities issued under the Base Indenture to be established in an indenture supplemental to
the Base Indenture;
WHEREAS, each of the Company and the Guarantor desires to execute this Second Supplemental Indenture to establish the form and to provide for the issuance of a Series of the Company’s senior notes
designated as 5.375% Senior Notes due 2035 (the “Notes”), in an initial aggregate principal amount of $400,000,000;
WHEREAS, the board of directors of the General Partner has duly adopted resolutions authorizing the Company and the Guarantor, as applicable, to execute and deliver this Second Supplemental
Indenture;
WHEREAS, pursuant to Section 9.1(h) of the Base Indenture, this Second Supplemental Indenture is authorized and permitted without the consent of holders; and
WHEREAS, all of the other conditions and requirements necessary to make this Second Supplemental Indenture, when duly executed and delivered, a valid and binding agreement in accordance with its
terms and for the purposes herein expressed, have been performed and fulfilled.
THEREFORE, for and in consideration of the premises and the purchase of the Series of Securities provided for herein by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of Securities of such Series, as follows:
ARTICLE I
RELATION TO BASE INDENTURE; DEFINITIONS
Section 1.1 Relation to Base Indenture.
This Second Supplemental Indenture constitutes an integral part of the Base Indenture. Notwithstanding any other provision of this Second Supplemental Indenture, all provisions of this Second
Supplemental Indenture are expressly and solely for the benefit of the Holders of the Notes and any such provisions shall not be deemed to apply to any other Securities issued under the Base Indenture and shall not be deemed to amend, modify or
supplement the Base Indenture for any purpose other than with respect to the Notes. Where the provisions of this Second Supplemental Indenture conflict with the provisions of the Base Indenture with respect to the terms and conditions of the
Notes, the provisions of this Second Supplemental Indenture shall apply.
1
Section 1.2 Definitions.
For all purposes of this Second Supplemental Indenture, except as otherwise expressly provided for or unless the context otherwise requires:
(a) Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Base Indenture; and
(b) All references herein to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Second Supplemental Indenture as they amend or
supplement the Base Indenture, and not the Base Indenture or any other document.
“Acquired Debt” means Debt of a person (i) existing at the time such person becomes a Subsidiary of the Company or (ii) assumed in connection with the
acquisition of assets from such person, in each case, other than Debt incurred in connection with, or in contemplation of, such person becoming such a subsidiary or such acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any person or the date the acquired person becomes such a Subsidiary, as applicable.
“Additional Notes” means additional Notes (other than the Initial Notes) issued under the Indenture in accordance with Sections 2.3, 2.7 and 6.1 hereof, as
part of the same series as the Initial Notes.
“Annual Debt Service Charge” for any period means the maximum amount which is payable during such period for interest on, and original
issue discount of, Debt of the Company and its Subsidiaries and the amount of any dividends which are payable during such period in respect of any Disqualified Stock.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
“Authentication Order” means a Company Order to the Trustee to authenticate and deliver the Notes, signed in the name of the Company by an Officer of the
General Partner.
“Clearstream” means Clearstream Banking, Société Anonyme.
“Consolidated Income Available for Debt Service” for any period means Earnings from Operations of the Company and its Subsidiaries plus
amounts which have been deducted, and minus amounts which have been added, for the following (without duplication): (i) interest on Debt of the Company and its Subsidiaries, (ii) provision for taxes of the Company and its Subsidiaries based on
income, (iii) amortization of debt discount and other deferred financing costs, (iv) provisions for gains and losses on properties and property depreciation and amortization, (v) the effect of any noncash charge resulting from a change in
accounting principles in determining Earnings from Operations for such period and (vi) amortization of deferred charges.
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“Corporate Trust Office” means the designated office of the Trustee at which at any time its corporate trust business as it relates to this Indenture shall
be administered, which office at the date hereof is located at Global Corporate Trust Services, 1 California Street, Suite 1000, San Francisco, California 94111, Attention: David Jason (Essex Portfolio), or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the designated corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and
the Company).
“Debt” means, without duplication, any indebtedness of the Company and its Subsidiaries, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness for borrowed money secured by any Encumbrance existing on property owned by the Company or any of its Subsidiaries, (iii) the
reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued (other than letters of credit issued to provide credit enhancement or support with respect to other indebtedness of the Company or any of
its Subsidiaries otherwise reflected as Debt hereunder) or amounts representing the balance deferred and unpaid of the purchase price of any property or services, except any such balance that constitutes an accrued expense or trade payable, or
all conditional sale obligations or obligations under any title retention agreement, (iv) the principal amount of all obligations of the Company or any of its Subsidiaries with respect to redemption, repayment or other repurchase of any
Disqualified Stock, (v) any lease of property by the Company or any of its Subsidiaries as lessee which is reflected on the consolidated balance sheet of the Company and its Subsidiaries as a financing lease in accordance with GAAP, or (vi)
interest rate swaps, caps or similar agreements and foreign exchange contracts, currency swaps or similar agreements, to the extent, in the case of items of indebtedness under (i) through (iii) above, that any such items (other than letters of
credit) would appear as a liability on the consolidated balance sheet of the Company and its Subsidiaries in accordance with GAAP, and also includes, to the extent not otherwise included, any obligation by the Company or any of its Subsidiaries
to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), Debt of another person (other than the Company or any of its Subsidiaries) (it being understood that Debt
shall be deemed to be incurred by the Company or any of its Subsidiaries whenever the Company or any of its Subsidiaries shall create, assume, guarantee or otherwise become liable in respect thereof). In the case of items of indebtedness under
clause (v) above, “Debt” excludes operating lease liabilities on the Company’s consolidated balance sheet in accordance with GAAP.
“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 3.2, substantially in the
form of Exhibit A hereto except that such Note shall not bear the Global Note legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes, The Depository Trust Company and any successor thereto.
3
“Disqualified Stock” means any Capital Stock of the Company or any of its Subsidiaries which by the terms of such
Capital Stock (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise (i) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise (other than Capital Stock which is redeemable solely in exchange for common stock), (ii) is convertible into or exchangeable or exercisable for Debt or Disqualified Stock or (iii) is redeemable at the option of the holder
thereof, in whole or in part (other than Capital Stock which is redeemable solely in exchange for Capital Stock which is not Disqualified Stock), in each case on or prior to the maturity of the Notes.
“DTC” means The Depository Trust Company.
“Earnings from Operations” for any period means net earnings excluding gains and losses on sales of investments, extraordinary items,
and property valuation gains and losses, as reflected in the financial statements of the Company and any of its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
“Encumbrance” means any mortgage, deed of trust, lien, charge, pledge, security interest, security agreement or other encumbrance of
any kind.
“Euroclear” means Euroclear S.A./N.V., as operator of the Euroclear system.
“Global Note Legend” means the legend set forth in Section 3.2(f), which is required to be placed on all Global Notes issued under the Indenture.
“Global Notes” means, individually and collectively, each of the Notes deposited with or on behalf of and registered in the name of the Depositary or its
nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with the Indenture.
“Indenture” means the Base Indenture, as supplemented by this Second Supplemental Indenture, and as further supplemented, amended or restated.
“Indirect Participant” means a person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes” means the $400,000,000 aggregate principal amount of Notes issued under this Second Supplemental Indenture on the date hereof.
“interest” means, when used with reference to the Notes, any interest payable under the terms of the Notes.
“Note Guarantee” means the Guarantee by the Guarantor of the Company’s obligations under the Indenture and the Notes, executed pursuant to the provisions of
this Second Supplemental Indenture.
“Notes” has the meaning assigned to it in the preamble to this Second Supplemental Indenture. The Initial Notes and the Additional Notes shall be treated as
a single class for all purposes under the Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
4
“Notice Date” has the meaning assigned to it in the definition of Treasury Rate.
“Par Call Date” means January 1, 2035.
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a person who has an account with the Depositary, Euroclear or Clearstream,
respectively (and with respect to the Depositary Trust Company, shall include Euroclear and Clearstream).
“Prospectus” means collectively the prospectus supplement dated February 6, 2025 relating to the Notes and the related prospectus dated August 5, 2024,
including the documents incorporated or deemed to be incorporated by reference therein.
“Redemption Date” means, with respect to any Note or portion thereof to be redeemed in accordance with the provisions of Section 4.1, the date fixed for
such redemption in accordance with the provisions of Section 4.1.
“Remaining Life” means, with respect to any Notes to be redeemed, the remaining term of such Notes, calculated as if the maturity date of such Notes were
the Par Call Date.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.
“Significant Subsidiary” means any Subsidiary of the Company in which the Company has invested at least $50,000,000 in capital.
“Total Assets” as of any date means the sum of (without duplication) (i) Undepreciated Real Estate Assets and (ii) all other assets
(excluding accounts receivable, intangibles and operating lease assets) of the Company and its Subsidiaries, all determined on a consolidated basis in accordance with GAAP.
“Total Unencumbered Assets” means the sum of (without duplication) (i) those Undepreciated Real Estate Assets which are not subject to
an Encumbrance securing Debt and (ii) all other assets (excluding accounts receivable, intangibles and unconsolidated equity interests in funds and joint ventures) of the Company and its Subsidiaries not subject to an Encumbrance securing Debt, all
determined on a consolidated basis in accordance with GAAP.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
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The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of
the Federal Reserve System), on the third business day preceding the date the notice of redemption is sent to Holders (the “Notice Date”) based upon the yield or yields for the most recent day that appear after such time on such day in the most
recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”)
under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as
applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury
constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15
immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such
Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity
or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third business day preceding the Notice Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent
yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Notice Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no
United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with
a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or
two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par
based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of
the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to
three decimal places.
“Undepreciated Real Estate Assets” means, as of any date, the cost (original cost plus capital improvements) of real estate assets of
the Company and its Subsidiaries on such date, right of use assets associated with financing leases in accordance with GAAP, before depreciation and amortization, all determined on a consolidated basis in accordance with GAAP; provided, however,
that Undepreciated Real Estate Assets shall not include right of use assets associated with operating leases in accordance with GAAP.
“Uniform Fraudulent Conveyance Act” means any applicable federal, provincial or state fraudulent conveyance legislation and any successor legislation.
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“Uniform Fraudulent Transfer Act” means any applicable federal, provincial or state fraudulent transfer legislation and any successor legislation.
“Unsecured Debt” means Debt of the Company or any of its Subsidiaries which is not secured by an Encumbrance on any
property or assets of the Company or any of its Subsidiaries.
Section 1.3 Other Definitions.
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TERM
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DEFINED IN
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SECTION
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“Bankruptcy Law”
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7.1
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“Confidential Datasite”
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6.4
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“Defaulted Interest”
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2.5
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“Event of Default”
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7.1
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“Holders”
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2.4
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“Interest Payment Date”
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2.4
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“Paying Agent”
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2.10
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“Record Date”
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2.4
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“Redemption Price”
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4.1
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“Signature Law”
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10.4
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ARTICLE II
TERMS OF THE SECURITIES
Section 2.1 Title of the Securities.
There shall be a Series of Securities designated the “5.375% Senior Notes due 2035.”
Section 2.2 Price.
The Initial Notes shall be issued at a public offering price of 99.604% of the principal amount thereof, other than any offering discounts pursuant to the initial offering and resale of the Notes.
Section 2.3 Limitation on Initial Aggregate Principal Amount; Further Issuances.
The aggregate principal amount of the Notes initially shall be limited to $400,000,000. The Company may, without the consent of the Holders, issue Additional Notes from time to time in the future
in an unlimited principal amount, subject to compliance with the terms of Section 6.1 hereto and the Indenture.
Nothing contained in this Section 2.3 or elsewhere in this Second Supplemental Indenture, or in the Notes, is intended to or shall limit execution by the Company or authentication or delivery by
the Trustee of Notes under the circumstances contemplated by Sections 2.7, 2.8, 2.11, 3.6 or 9.6 of the Base Indenture.
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Section 2.4 Interest and Interest Rates; Stated Maturity of Notes.
(a) The Notes shall bear interest at the rate of 5.375% per year. Interest on the Notes will accrue from February 18, 2025 and will be payable semi-annually in arrears on April 1 and
October 1 of each year, commencing on October 1, 2025 (each such date being an “Interest Payment Date”), to the persons in whose names the Notes are registered in the security register (the “Holders”) on the preceding March 15 or September 15, whether or not a Business Day, as the case may be (each such date being a “Record Date”). Interest on the Notes will
be computed on the basis of a 360-day year consisting of twelve 30-day months.
(b) If any Interest Payment Date, Stated Maturity or Redemption Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were
made on the date the payment was due and no interest shall accrue on the amount so payable for the period from and after that Interest Payment Date, Stated Maturity or Redemption Date, as the case may be, until the next Business Day.
(c) The Stated Maturity of the Notes shall be April 1, 2035.
Section 2.5 Method of Payment.
Principal, premium, if any, and interest shall be payable at the Corporate Trust Office of the Trustee. The Company shall pay interest (i) on any Notes in certificated form by check mailed to the
address of the Holder entitled thereto; provided, however, that a Holder of any Notes in certificated form in the aggregate principal amount of more than $2,000,000 may specify by written notice to the Company (with a copy to the Trustee) that it
pay interest by wire transfer of immediately available funds to the account specified by the Holder in such notice, or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee. Any
interest on any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder
registered as such on the relevant Record Date, and such Defaulted Interest shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the persons in whose names the Notes are registered at 5:00 p.m., New York City time, on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment (which
shall be not less than twenty-five (25) calendar days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a special record date for the payment of such Defaulted Interest which shall be not more than fifteen (15) calendar days and not
less than ten (10) calendar days prior to the date of the proposed payment, and not less than ten (10) calendar days after the receipt by the Trustee of the written notice of the proposed payment (unless the Trustee shall consent to an earlier
date). The Company shall promptly notify the Trustee, in writing, of such special record date and shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be sent, in accordance with the
Applicable Procedures, to each Holder at its address as it appears in the register, not less than ten (10) calendar days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date
therefor having been so mailed, such Defaulted Interest shall be paid to the persons in whose names the Notes are registered at 5:00 p.m., New York City time, on such special record date and shall no longer be payable pursuant to the following
clause (b) of this Section 2.5.
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(b) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which
the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Section 2.6 Currency.
Principal and interest on the Notes shall be payable in U.S. Dollars.
Section 2.7 Additional Notes.
The Company will be entitled, without the consent of any Holders of the Notes, upon delivery of an Officer’s Certificate, Opinion of Counsel and Authentication Order, subject to its compliance with
Section 6.1, to issue Additional Notes under the Indenture that will have identical terms to the Initial Notes issued on the date of the Indenture other than with respect to the date of issuance, issue price and, if applicable, the date from which
interest on such Additional Notes will begin to accrue and the initial interest payment date; provided, however, that if such Additional Notes will not be fungible with the Initial Notes for U.S. federal income tax or securities law purposes, such
Additional Notes will have a separate CUSIP number. Such Additional Notes will rank equally and ratable in right of payment and will be treated as a single series for all purposes under the Indenture, and in circumstances in which this Indenture
provides for the Holders of Notes to vote or take any action, the Holders of Initial Notes and the Holders of any such Additional Notes will vote or take the action as a single class.
With respect to any Additional Notes, the Company will set forth in a resolution of the board of directors of the General Partner acting on behalf of the Company and an Officer’s Certificate, a
copy of each of which will be delivered to the Trustee, the following information:
(a) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to the Indenture; and
(b) the issue price, the issue date and the CUSIP number of such Additional Notes.
Section 2.8 Redemption.
The Notes may be redeemed at the option of the Company prior to the Stated Maturity as provided in Article IV.
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Section 2.9 No Sinking Fund.
The provisions of Article XI of the Base Indenture shall not be applicable to the Notes.
Section 2.10 Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying Agent for the Notes.
ARTICLE III
FORM OF THE SECURITIES
Section 3.1 Global Form.
The Notes shall initially be issued in the form of one or more fully registered Global Notes that will be deposited with, or on behalf of the Depositary, and registered in the name of the
Depositary or its nominee, as the case may be, subject to Sections 2.7 and 2.14 of the Base Indenture. So long as the Depositary, or its nominee, is the registered owner of the Global Note, the Depositary or its nominee, as the case may be, will be
considered the sole Holder of the Notes represented by the Global Note for all purposes under the Indenture.
The Notes shall not be issuable in definitive form except as provided in Section 3.2(a) of this Second Supplemental Indenture. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form attached as Exhibit A hereto. The Company shall execute and the Trustee shall, in accordance with Section 2.3 of the Base Indenture, authenticate and hold each Global Note as custodian for the Depositary. Each Global Note
will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal
amount of outstanding Notes represented thereby will be made by the Registrar or the custodian, at the direction of the Trustee. The terms and provisions contained in the form of Note attached as Exhibit A hereto shall constitute, and are hereby
expressly made, a part of the Indenture and, to the extent applicable, the Company, the Guarantor and the Trustee, by their execution and delivery of this Second Supplemental Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Participants of the Depositary shall have no rights either under the Indenture or with respect to the Global Notes. The Depositary or its nominee, as applicable, shall be treated by the Company,
the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee as the absolute owner and Holder of such Global Notes for all purposes under the Indenture. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or its nominee, as applicable, or impair, as between the Depositary and its participants, the operation
of customary practices of such Depositary governing the exercise of the rights of an owner of a beneficial interest in the Global Notes.
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Section 3.2 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the
Company for Definitive Notes if:
(1) the Company delivers to the Trustee written notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within one hundred and twenty (120) calendar days after the date of such notice from the Depositary; or
(2) the Company, at its option, determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to
such effect to the Trustee; or
(3) upon request from the Depositary if there has occurred and is continuing a Default or Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in registered form in such names as the Depositary in accordance with the Applicable Procedures shall
instruct the Trustee, in writing. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.8 and 2.11 of the Base Indenture. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note
or any portion thereof, pursuant to this Section 3.2 or Section 2.8 and 2.11 of the Base Indenture, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 3.2(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 3.2(b) or (c).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will
be effected through the Depositary, in accordance with the provisions of the Indenture and the Applicable Procedures. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as
applicable, as well as one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Global Note may be transferred to
persons who take delivery thereof in the form of a beneficial interest in a Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 3.2(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 3.2(b)(1) above, any such transfer or exchange must comply with the Applicable Procedures and Section 3.2(c) below if applicable and the transferor of such beneficial interest must deliver to the
Registrar either:
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both:
(A) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit
or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(B) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
both:
(C) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to
be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(D) instructions given by the Depositary to the Registrar containing information regarding the person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (b)(1) above.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Second Supplemental Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 3.2(g).
(c) Transfer and Exchange of Beneficial Interests in Global Notes for Definitive Notes. If any holder of a beneficial interest in a Global Note
proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section
3.2(b)(2) and written notice to the Trustee, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 3.2(g) hereof, and the Company will execute and, upon the receipt of an
Authentication Order, the Trustee will authenticate and deliver to the person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 3.2(c) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant
or Indirect Participant. The Trustee will deliver such Definitive Notes to the persons in whose names such Notes are so registered.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests in Global Notes. A Holder of a
Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a person who takes delivery thereof in the form of a beneficial interest in a Global Note at any time. Upon receipt of a written
request for such an exchange or transfer, the Trustee will cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Global Notes. If any such exchange or transfer from a Definitive
Note to a beneficial interest is effected pursuant to the previous sentence at a time when a Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 3.2, the Trustee will
authenticate one or more Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
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(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with
the provisions of this Section 3.2(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any
additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 3.2(e). A Holder of Definitive Notes may transfer such Notes to a person who takes delivery thereof in the form of a
Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Legend. Each Global Note issued under the Indenture, unless specifically stated otherwise in the applicable provisions of the Indenture, will
bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE SECOND SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS
NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.2 OF THE SECOND SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 3.2(a) OF THE SECOND SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF ESSEX PORTFOLIO, L.P. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
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(g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.12 of the Base
Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and
if the beneficial interest is being exchanged for or transferred to a person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be
made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order or at the Registrar’s request.
(2) No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.11 and 9.6 of the Base Indenture and Section 4.3 of this Second Supplemental Indenture).
(3) The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under the Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
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(A) to issue or register the transfer or exchange of any Note during a period beginning at the opening of business fifteen (15) calendar days before the mailing of a notice
of redemption of the Notes selected for redemption under Article IV and ending at the close of business on the day of such mailing;
(B) to register the transfer or exchange of any Note so selected for redemption, in whole or in part, except the unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date.
(6) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company shall deem and treat the person in whose name any Note
is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 3.1 hereof.
(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 3.2 to effect a registration of transfer
or exchange may be submitted by facsimile.
(i) The transferor shall also provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations,
including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may conclusively rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of
such information.
(j) None of the Trustee or any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements
hereof.
(k) None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary or other person
with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner
or other person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Noteholders and all
payments to be made to the Noteholders under the Notes shall be given or made only to or upon the order of the registered Noteholders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in
any such Global Note shall be exercised only through the Depositary subject to the customary procedures of the Depositary. The Trustee may conclusively rely and shall be fully protected in relying upon information furnished by the Depositary with
respect to its participants.
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ARTICLE IV
REDEMPTION
The provisions of Article III of the Base Indenture, as amended by the provisions of this Second Supplemental Indenture, shall apply to the Notes.
Section 4.1 Optional Redemption of Notes.
Prior to the Par Call Date, the Company may redeem the Notes at its option for cash, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of
principal amount and rounded to three decimal places) (the “Redemption Price”) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to,
but excluding the Redemption Date; and (ii) 100% of the principal amount of the Notes to be redeemed; plus, in either case, accrued and unpaid interest thereon to the Redemption Date. Notwithstanding the foregoing, if the Notes are redeemed on or
after the Par Call Date, the Company may redeem the Notes, in whole or in part, for cash, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest
thereon to the Redemption Date. Notwithstanding the foregoing, if the Redemption Date falls after a Record Date and on or prior to the corresponding Interest Payment Date, the Company will pay the full amount of accrued and unpaid interest, if any
(plus additional interest, if applicable) on such Interest Payment Date to the Holder of record at the close of business on the corresponding Record Date (instead of the Holder surrendering its Notes for redemption). The Company shall not redeem
the Notes pursuant to this Section 4.1 if on any date the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured on or prior to such date (except in the case of an acceleration resulting from a
default by the Company in payment of the Redemption Price with respect to the Notes to be redeemed). The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest
error.
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Section 4.2 Notice of Optional Redemption, Selection of Notes.
(a) In case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of the Notes pursuant to Section 4.1, it shall fix a date for redemption and it or,
at its written request received by the Trustee not fewer than five (5) Business Days prior (or such shorter period of time as may be acceptable to the Trustee) to the date the notice of redemption is to be sent, the Trustee in the name of and at
the expense of the Company, shall mail or cause to be mailed, or sent by electronic transmission (or otherwise transmitted in accordance with the Depositary’s procedures), a notice of such redemption not fewer than ten (10) days but not more than
sixty (60) days prior to the Redemption Date to each Holder of Notes to be redeemed at its last address as the same appears on the Register; provided that if the Company makes such request of the Trustee, it shall, together with such request, also
give written notice of the Redemption Date to the Trustee, provided further that the text of the notice shall be prepared by the Company, and the Company shall have delivered to the Trustee an Officer’s Certificate requesting that the Trustee give
such notice and containing the information to be set forth in such notice. Such mailing shall be by first class mail or by electronic transmission. The notice, if sent in the manner herein provided, shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or electronic submission or any defect in the notice to the Holder of any Note designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Note.
(b) Each such notice of redemption shall specify: (i) the aggregate principal amount of Notes to be redeemed, (ii) the CUSIP number or numbers of the Notes being redeemed, (iii) the
Redemption Date (which shall be a Business Day), (iv) the Redemption Price at which Notes are to be redeemed, (v) the place or places of payment and that payment will be made upon presentation and surrender of such Notes and (vi) that interest
accrued and unpaid to, but excluding, the Redemption Date will be paid as specified in said notice, and that on and after said date interest thereon or on the portion thereof to be redeemed will cease to accrue. If fewer than all the Notes are to
be redeemed, the notice of redemption shall identify the Notes to be redeemed (including CUSIP numbers, if any). In case any Note is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that, on and after the Redemption Date, upon surrender of such Note, a new Note or Note in principal amount equal to the unredeemed portion thereof will be issued.
(c) On or prior to the Redemption Date specified in the notice of redemption given as provided in this Section 4.2, the Company will deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.5 of the Base Indenture) an amount of money in immediately available funds sufficient to redeem on the Redemption Date all the Notes (or portions
thereof) so called for redemption at the appropriate Redemption Price; provided that if such payment is made on the Redemption Date, it must be received by the Paying Agent, by 11:00 a.m., New York City time, on such date. The Company shall be
entitled to retain any interest, yield or gain on amounts deposited with the Paying Agent pursuant to this Section 4.2 in excess of amounts required hereunder to pay the Redemption Price (it being acknowledged that the Trustee has no obligation to
invest any such deposit).
(d) If less than all of the outstanding Notes are to be redeemed, the Trustee will select, on a pro rata basis, by lot or such other method it
deems fair and appropriate or as required by the Depositary for Global Notes, subject to Applicable Procedures (in the case of Global Notes), the Notes or portions thereof of the Global Notes or the Notes in certificated form to be redeemed (in
minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof). The Notes (or portions thereof) so selected for redemption shall be deemed duly selected for redemption for all purposes hereof. Without limiting the generality
of Section 1.1, this Section 4.2(d) shall replace Section 3.2 of the Base Indenture with respect to the Notes only.
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Section 4.3 Payment of Notes Called for Redemption by the Company.
(a) If notice of redemption has been given as provided in Section 4.2, the Notes or portion of Notes with respect to which such notice has been given shall become due and payable and if the
Paying Agent holds funds sufficient to pay the Redemption Price of the Notes on the Redemption Date and at the place or places stated in such notice at the Redemption Price, and unless the Company defaults in the payment of the Redemption Price,
then on and after such date (i) such Notes will cease to be outstanding on and after the Redemption Date, (ii) interest will cease to accrue on any Notes called for redemption at the Redemption Date, (iii) on and after the Redemption Date (unless
the Company defaults in the payment of the Redemption Price) such Notes shall cease to be entitled to any benefit or security under the Indenture and (iv) the Holders thereof shall have no right in respect of such Notes except the right to receive
the Redemption Price thereof. On presentation and surrender of such Notes at a place of payment in said notice specified, the said Notes or the specified portions thereof shall be paid and redeemed by the Company at the Redemption Price, together
with interest accrued thereon to, but excluding, the Redemption Date. Such will be the case whether or not book-entry transfer of the Notes in book-entry form is made and whether or not the Notes in certificated form, together with necessary
endorsements, are delivered to the Paying Agent; provided, however, if the Redemption Date falls after a Record Date and on or prior to the corresponding Interest Payment Date, the Company will pay the full amount of accrued and unpaid interest and
premium, if any, due on such Interest Payment Date to the Holder of record at the close of business on the corresponding Record Date.
(b) Upon presentation of any Note redeemed in part only, the Company shall execute and, upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery to the
Holder thereof, at the expense of the Company, a new Note or Notes, of authorized denominations, in principal amount equal to the unredeemed portion of the Notes so presented.
ARTICLE V
GUARANTEE
Sections 5.1, 5.2 and 5.3 hereof shall replace Sections 12.1, 12.2 and 12.3 of the Base Indenture with respect to the Notes and the Note Guarantee.
Section 5.1 Note Guarantee.
(a) By its execution hereof, the Guarantor acknowledges and agrees that it receives substantial benefits from the Company and that the Guarantor is providing its Guarantee for good and
valuable consideration, including, without limitation, such substantial benefits. Accordingly, subject to the provisions of this Article 5, the Guarantor hereby fully and unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, that:
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(1) The principal of (including the Redemption Price upon redemption pursuant to Article 4 hereof), premium, if any, and interest, if any, on the Notes shall be duly and
punctually paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, irrespective of the validity and enforceability of the Indenture, the Notes or the
obligations of the Company under the Indenture or the Notes, and interest, if any, on, the Notes, if lawful, and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes (including fees, expenses and other
obligations) shall be promptly paid in full or performed, all in accordance with the terms under the Indenture or the Notes; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, call for redemption or otherwise (collectively, the “Guarantee Obligations”).
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantor will be obligated to pay the same immediately. The Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
(b) The Guarantor hereby agrees that its obligations under the Indenture and the Notes are full and unconditional, irrespective of the validity, regularity or enforceability of the Indenture
or the Notes, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture or the Notes, the entry of any judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The Guarantor hereby agrees that in the event of a default in payment of the principal of or interest on the Notes entitled
to the Guarantee, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.7 of the Base Indenture, by
the Holders, on the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce the Guarantee without first proceeding against the Company. The Guarantor hereby (i) waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or
document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) covenants that this
Note Guarantee will not be discharged except by complete performance of the obligations contained in the Indenture and the Notes.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantor, any amount paid by either the Company or the Guarantor to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(d) The Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in
Article VII for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article VII, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Note Guarantee.
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Section 5.2 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 5.1, the Guarantor hereby agrees that this Second Supplemental Indenture will be executed on its behalf by one of its Officers. If an Officer of
the Guarantor whose signature is on this Second Supplemental Indenture no longer holds that office at the time the Trustee authenticates the Note on which the Note Guarantee of the Guarantor is endorsed, such Note Guarantee will be valid
nevertheless. The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Second Supplemental Indenture on behalf of the Guarantor.
Section 5.3 Limitation of Guarantor’s Liability.
The Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of the Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Note Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantor hereby irrevocably agree that the obligations of the Guarantor will be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of the
Guarantor that are relevant under such laws, result in the obligations of the Guarantor under its Note Guarantee constituting a fraudulent transfer or conveyance.
Section 5.4 Application of Certain Terms and Provisions to the Guarantor.
(a) For purposes of any provision of the Indenture which provides for the delivery by the Guarantor of an Officer’s Certificate and/or an Opinion of Counsel, the definitions of such terms
in Section 1.2 shall apply to the Guarantor as if references therein to the Company were references to the Guarantor.
(b) Any notice or demand which by any provision of the Indenture is required or permitted to be given or served by the Trustee or by the Holders of Notes to or on the Guarantor may be given
or served as described in Section 10.2 of the Base Indenture as if references therein to the Company were references to the Guarantor.
(c) Upon any demand, request or application by the Guarantor to the Trustee to take any action under the Indenture, the Guarantor shall furnish to the Trustee such Officer’s Certificate and
Opinion of Counsel as are required in Section 10.1 as if all references therein to the Company were references to the Guarantor.
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ARTICLE VI
ADDITIONAL COVENANTS
The covenants set forth in Sections 4.1, 4.3 and 4.4 of the Base Indenture and the following additional covenants shall apply with respect to the Notes so long as any of the Notes remain
outstanding:
Section 6.1 Limitations on Incurrence of Debt.
(a) Limitation on Total Outstanding Debt. The Company will not, and will not cause or permit any of its Subsidiaries to, incur any Debt (including,
without limitation, Acquired Debt) if, immediately after giving effect to the incurrence of such Debt and the application of the proceeds therefrom on a pro forma basis, the aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries (determined on a consolidated basis in accordance with GAAP) is greater than sixty five percent (65%) of the sum of (without duplication) (i) the Total Assets as of the last day of the then most recently ended fiscal quarter for which
financial statements are available and (ii) the aggregate purchase price of any real estate assets or mortgages receivable acquired, and the aggregate amount of any securities offering proceeds received (to the extent such proceeds were not used to
acquire real estate assets or mortgages receivable or used to reduce Debt) in each case, by the Company or any of its Subsidiaries since the end of such fiscal quarter,
including the proceeds obtained from the incurrence of such additional Debt, determined on a consolidated basis in accordance with GAAP.
(b) Limitation on Secured Debt. The Company will not, and will not cause or permit any of its Subsidiaries to, incur any Debt (including, without
limitation, Acquired Debt) secured by any Encumbrance on any property or assets of the Company or any of its Subsidiaries, whether owned on the date of this Indenture or thereafter acquired, if, immediately after giving effect to the incurrence of
such Debt and the application of the proceeds therefrom on a pro forma basis, the aggregate principal amount (determined on a consolidated basis in accordance with GAAP) of all outstanding Debt of the Company and its Subsidiaries which is secured
by any Encumbrance on any property or assets of the Company or any of its Subsidiaries is greater than 40% of the sum of (without duplication) (i) the Total Assets as of the last day of the then most recently ended fiscal quarter for which
financial statements are available and (ii) the aggregate purchase price of any real estate assets or mortgages receivable acquired, and the aggregate amount of any securities offering proceeds received (to the extent such proceeds were not used to
acquire real estate assets or mortgages receivable or used to reduce Debt), in each case, by the Company or any of its Subsidiaries since the end of such fiscal quarter, including the proceeds obtained from the incurrence of such additional Debt,
determined on a consolidated basis in accordance with GAAP.
(c) Ratio of Consolidated Income Available for Debt Service to the Annual Debt Service Charge. The Company will not, and will not cause or permit
any of its Subsidiaries to, incur any Debt (including, without limitation, Acquired Debt) if the ratio of Consolidated Income Available for Debt Service to the Annual Debt Service Charge for the period consisting of the four consecutive fiscal
quarters most recently ended for which financial statements are available prior to the date on which such additional Debt is to be incurred shall have been less than 1.5:1.0 on a pro forma basis after giving effect to the incurrence of such Debt
and the application of the proceeds therefrom, and calculated on the assumption that:
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(1) such Debt and any other Debt (including, without limitation, Acquired Debt) incurred by the Company or any of its Subsidiaries since the first day of such four
quarter period had been incurred, and the application of the proceeds therefrom (including to repay or retire other Debt) had occurred, on the first day of such period;
(2) the repayment or retirement of any other Debt of the Company or any of its Subsidiaries since the first day of such four quarter period had occurred on the first day
of such period (except that, in making such computation, the amount of Debt under any revolving credit facility, line of credit or similar facility shall be computed based upon the average daily balance of such Debt during such period); and
(3) in the case of any acquisition or disposition by the Company or any of its Subsidiaries of any asset or group of assets, in any such case with a fair market value
(determined in good faith by the Guarantor’s Board of Directors) in excess of $1,000,000, since the first day of such four quarter period, whether by merger, stock purchase or sale or asset purchase or sale or otherwise, such acquisition or
disposition had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition or disposition being included in such pro forma calculation.
(d) If the Debt giving rise to the need to make the foregoing calculation described in this Section 6.1 or any other Debt incurred after the first day of the relevant four quarter period
bears interest at a floating rate then, for purposes of calculating the Annual Debt Service Charge, the interest rate on such Debt shall be computed on a pro forma basis as if the average rate which would have been in effect during such entire four
quarter period had been the applicable rate for such entire such period.
(e) Maintenance of Total Unencumbered Assets. The Company, together with its Subsidiaries, will have at all times Total Unencumbered Assets of not
less than one hundred and fifty percent (150%) of the aggregate principal amount of all outstanding Unsecured Debt of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.
Section 6.2 Existence.
Subject to Section 6.3, each of the Company and the Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and
statutory); provided that neither the Company nor the Guarantor shall be required to preserve any right if the Company or the Guarantor, as applicable, shall determine that (i) the preservation thereof is no longer desirable in the conduct of the
business of the Company or the Guarantor, as applicable, and (ii) that the loss thereof is not disadvantageous in any material respect to the Holders.
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Section 6.3 Merger, Consolidation or Sale.
The Company and Guarantor may consolidate with, or sell, lease or convey all or substantially all of the Company’s or the Guarantor’s assets to, or merge with or into, any other entity, provided
that the following conditions are met:
(a) the Company or the Guarantor, as the case may be, shall be the continuing entity, or the successor entity (if other than the Company or the Guarantor, as the case may be) formed by or
resulting from any consolidation or merger or which shall be organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and (i) in the case of the Company, shall expressly assume
payment of the principal of and interest on all of the Notes and the due and punctual performance and observance of all of the covenants and conditions in the Indenture and (ii) in the case of the Guarantor, shall expressly assume the obligations
of the Guarantor under the Note Guarantee and the due and punctual performance and observance of all of the covenants and conditions in the Indenture
(b) immediately after giving effect to the transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) an Officer’s Certificate and an Opinion of Counsel stating that the proposed transaction complies with the foregoing conditions of this Section 6.3 and the Indenture, and that the
proposed transaction and any supplemental indenture comply with the Indenture, shall be delivered to the Trustee.
In the event of any transaction described in and complying with the conditions listed in this Section 6.3 in which the Company or the Guarantor, as the case may be, is not the continuing entity,
the successor person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of the Company or the Guarantor, as the case may be, and the Company or the Guarantor shall be discharged from its obligations
under the Notes and the Indenture and, in the case of the Guarantor, the Note Guarantee. Without limiting the generality of Section 1.1, this Section 6.3 shall replace Article V of the Base Indenture with respect to the Notes only.
Section 6.4 Provision of Financial Information.
(a) Whether or not subject to Section 13 or 15(d) of the Exchange Act and for so long as any Notes are outstanding within fifteen (15) calendar days of the date on which such filing is
made with the SEC (or would have been required to have been made with the SEC), each of the Company and Guarantor will furnish to the Trustee:
(1) all quarterly and annual reports that are or would be required to be filed by them with the SEC on Forms 10-Q and 10-K; and
(2) all current reports that are or would be required to be filed by them with the SEC on Form 8-K.
(b) Notwithstanding the foregoing, during any period in which the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company may satisfy
its obligation to furnish the reports described above by furnishing reports for the Guarantor.
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(c) Each of the Company and the Guarantor shall comply with the provisions of Section 314(a)(1) of the TIA.
(d) Reports and other documents filed by the Company with the SEC and publicly available via the EDGAR system, a publicly available website or IntraLinks or any comparable password
protected online data system requiring user identification and a confidentiality acknowledgement (a “Confidential Datasite”) will be deemed to be delivered to be delivered to the Trustee as of the time such
filing is publicly available via EDGAR, such publicly available website or such Confidential Datasite for purposes of this covenant; provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such
information, documents or reports have been filed pursuant to the EDGAR system (or its successor). Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or the Guarantor’s compliance with any of its covenants under the Indenture (as to which the Trustee is
entitled to rely exclusively on Officer’s Certificate).
Section 6.5 Insurance.
The Company will, and will cause each of its Subsidiaries to, maintain insurance with financially sound and reputable insurance companies against such risks and in such amounts as is customarily
maintained by persons engaged in similar businesses or as may be required by applicable law.
ARTICLE VII
DEFAULTS AND REMEDIES
Sections 7.1 and 7.2 hereof shall replace Sections 6.1 and 6.2 of the Base Indenture with respect to the Notes only.
Section 7.1 Events of Default.
“Event of Default,” wherever used herein or in the Base Indenture with respect to the Notes, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default for thirty (30) calendar days in the payment of any installment of interest under the Notes;
(b) default in the payment of the principal amount or Redemption Price due with respect to the Notes, when the same becomes due and payable; provided, however, that a valid extension of the
Stated Maturity of the Notes in accordance with the terms of the Indenture shall not constitute a default in the payment of principal;
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(c) failure by the Company or the Guarantor to comply with any of the Company’s or the Guarantor’s respective other agreements in the Notes or the Indenture with respect
to the Notes upon receipt by the Company or the Guarantor of notice of such default by the Trustee or by Holders of not less than 25% in aggregate principal amount of the Notes (which notice shall also be
delivered to the Trustee if given by the Holders) then outstanding and the Company’s or the Guarantor’s failure to cure (or obtain a waiver of) such default within sixty (60) calendar days after it receives such notice;
(d) failure to pay any recourse indebtedness for monies borrowed (or guarantees in respect thereof) by the Company or the Guarantor in an outstanding principal amount in excess of
$75,000,000 at final maturity or upon acceleration after the expiration of any applicable grace period, which recourse indebtedness (including any guarantee thereof) is, or has become, a primary obligation of the Company or the Guarantor and is not
discharged, or such default in payment or acceleration is not cured or rescinded, within thirty (30) calendar days after written notice to the Company from the Trustee (or to the Company and the Trustee from Holders of at least twenty five percent
(25%) in principal amount of the outstanding Notes); or
(e) the Company, the Guarantor or any of their respective Significant Subsidiaries pursuant to or under or within meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding seeking liquidation, reorganization or other relief with respect to the Company, the Guarantor or any such Significant
Subsidiary or its debts or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company, the Guarantor or any such Significant Subsidiary or any substantial part of the property of the Company, the
Guarantor or any such Significant Subsidiary; or
(2) consents to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against the
Company, the Guarantor or any such Significant Subsidiary; or
(3) consents to the appointment of a custodian of it or for all or substantially of its property; or
(4) makes a general assignment for the benefit of creditors; or
(f) an involuntary case or other proceeding shall be commenced against the Company, the Guarantor or any of their respective Significant Subsidiaries seeking liquidation, reorganization or
other relief with respect to the Company, the Guarantor or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of the Company, the Guarantor or any such Significant Subsidiary or any substantial part of the property of the Company, the Guarantor or any such Significant Subsidiary, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of sixty (60) calendar days; or
(g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
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(1) is for relief against the Company, the Guarantor or a Significant Subsidiary in an involuntary case or proceeding;
(2) appoints a trustee, receiver, liquidator, custodian or other similar official of the Company, the Guarantor or a Significant Subsidiary or any substantial part of the
property of the Company, the Guarantor or a Significant Subsidiary; or
(3) orders the liquidation of the Company, the Guarantor or a Significant Subsidiary, in each case in this clause (g), the order or decree remains unstayed and in effect
for sixty (60) calendar days.
The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. Without limiting the generality of
Section 1.1, this Section 7.1 shall replace Section 6.1 of the Base Indenture with respect to the Notes only.
Section 7.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to the Notes occurs and is continuing (other than an Event of Default referred to in Sections 7.1(e), 7.1(f) or 7.1(g), which shall result in an automatic
acceleration), then in every such case, the Trustee or the Holders of not less than 25% in principal amount of the outstanding Notes may declare the principal amount of, premium, if any, and accrued and unpaid interest, if any, on all of the
outstanding Notes to be due and payable immediately, by a written notice thereof to the Company and the General Partner (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) of, premium,
if any, and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Sections 7.1(e), 7.1(f) or 7.1(g) shall occur, the principal amount (or specified amount) of, premium, if any, and
accrued and unpaid interest, if any, on all outstanding Notes shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after the principal amount of and premium, if any, and interest on the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies
due shall have been obtained or entered as hereinafter provided, Holders of a majority in aggregate principal amount of the Notes then outstanding on behalf of the Holders of all of the Notes then outstanding, by written notice to the Company and
to the Trustee, may rescind and annul such declaration and its consequences, if: (a) the Company or the Guarantor has deposited with the Trustee all required payments of the principal of, and premium, if any, and interest on, the Notes, plus the
reasonable compensation and reimbursement for the Trustee’s expenses, disbursements and advances pursuant to Section 7.7 of the Base Indenture; and (b) all Events of Default, other than the non-payment of accelerated principal of (or specified
portion thereof), or premium, if any, and interest on, the Notes that have become due solely because of such acceleration, have been cured or waived, subject in all respects to Section 6.13 of the Base Indenture. No such rescission and annulment
shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon.
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The Company shall notify, in writing, a Responsible Officer of the Trustee, promptly upon becoming aware thereof, of any Event of Default, in an Officer’s Certificate specifying with particularity
such default or Event of Default and further stating what action the Company has taken, is taking or proposes to take with respect thereto.
Without limiting the generality of Section 1.1, this Section 7.2 shall replace Section 6.2 of the Base Indenture with respect to the Notes only.
ARTICLE VIII
AMENDMENTS AND WAIVERS
Without limiting the generality of Section 1.1, Sections 8.1 and 8.2 hereof shall replace Sections 9.1 and 9.2, respectively, of the Base Indenture with respect to the Notes only.
Section 8.1 Without Consent of Holders.
The Company, when authorized by resolutions of the board of directors of the General Partner, and the Trustee may, from time to time and at any time, enter into an indenture or indentures
supplemental without the consent of any Holder of the Notes hereto for one or more of the following purposes:
(a) to cure any ambiguity, defect or inconsistency in the Indenture; provided that this action shall not adversely affect the interests of the
Holders of the Notes in any material respect;
(b) to comply with Article V of the Base Indenture;
(c) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(d) to add guarantors with respect to the Notes or secure the Notes;
(e) to evidence a successor to the Company as obligor or to any Guarantor as guarantor under the Indenture with respect to the Notes;
(f) to surrender any of the Company’s or the Guarantor’s rights or powers under the Indenture;
(g) to add covenants or events of default for the benefit of the Holders of the Notes;
(h) to comply with the applicable procedures of the Depositary;
(i) to amend or supplement any provisions of the Indenture; provided that no amendment or supplement shall adversely affect the interests of the Holders of any Notes then outstanding in any
material respect;
(j) to provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture, or change any of the provisions of the Indenture as may be necessary to
provide for the acceptance of appointment of a successor Trustee or facilitate the administration of the trusts hereunder by a successor Trustee;
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(k) to supplement any provisions of this Indenture to the extent necessary to permit or facilitate defeasance and discharge of the Notes; provided that this action shall not adversely
affect the interests of the Holders of the Notes in any material respect;
(l) to effect the appointment of a successor Trustee with respect to the Notes and to add to or change any of the provisions of the Indenture to provide for or facilitate administration by
more than one Trustee;
(m) to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA;
(n) to reflect the release of the Guarantor as guarantor, in accordance with the provisions of the Indenture; and
(o) to conform the text of the Indenture, the Guarantee or the Notes to any provision of the description thereof set forth in the Prospectus to the extent that such provision in the
Prospectus was intended to be a verbatim recitation of a provision of the Indenture, such Note Guarantee or the Notes (as certified in an Officer’s Certificate).
Upon the written request of the Company, accompanied by a copy of the resolutions of the board of directors of the General Partner certified by the corresponding Secretary or Assistant Secretary,
authorizing the execution of any supplemental indenture, the Trustee is hereby authorized to join with the Company and the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
that may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s
own rights, duties or immunities under the Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 8.1 may be executed by the Company, the Guarantor and the Trustee without the consent of the Holders of any of the Notes at
the time outstanding, notwithstanding any of the provisions of Section 8.2.
Section 8.2 With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, the Company, the Guarantor and the Trustee may, from time to time and
at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or any supplemental indenture or modifying in any
manner the rights of the Holders of the Notes; provided that no such supplemental indenture shall, without the consent of each Holder of the Notes so affected:
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(a) change the Stated Maturity of the principal of or any installment of interest on the Notes, reduce the principal amount of, or the rate or amount of interest on, or any premium payable
on redemption of, the Notes, or adversely affect any right of repayment of the Holders of the Notes, change the place of payment, or the coin or currency, for payment of principal of or interest on any Note or impair the right to institute suit for
the enforcement of any payment on or with respect to the Notes;
(b) reduce the percentage in principal amount of the outstanding Notes necessary to modify or amend this Indenture, to waive compliance with certain provisions of this Indenture or certain
defaults and their consequences provided in this Indenture, or to reduce the requirements of quorum or change voting requirements set forth in this Indenture;
(c) modify or affect in any manner adverse to the Holders the terms and conditions of the obligations of the Company or the Guarantor in respect of the due and punctual payments of
principal and interest; or
(d) modify any of Section 8.1, this Section 8.2, Section 6.8 of the Base Indenture or Section 6.13 of the Base Indenture or any of the requirements for waiver of certain past Defaults or
amendment or waiver of certain covenants, except to increase the required percentage to effect the action or to provide that certain other provisions may not be modified or waived without the consent of the Holders of the Notes.
Upon the written request of the Company, accompanied by a copy of the resolutions of the board of directors of the General Partner certified by the corresponding Secretary or Assistant Secretary,
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Company and the Guarantor in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under the Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture. In executing or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts created by the Indenture, the Trustee shall receive, and shall be fully protected
in conclusively relying upon, an Opinion of Counsel or an Officer’s Certificate or both, delivered prior to entering into any supplemental indenture pursuant to this Article 8, stating that the execution of such supplemental indenture is authorized
or permitted by the Indenture, that all conditions precedent to the execution of such supplemental indenture have been complied with, and that the supplemental indenture is a legal, valid and binding obligation of the Company and the Guarantor, as
applicable, enforceable against it in accordance with its terms.
It shall not be necessary for the consent of the Holders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
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ARTICLE IX
MEETINGS OF HOLDERS OF NOTES
Section 9.1 Purposes for Which Meetings May Be Called.
A meeting of Holders may be called at any time and from time to time pursuant to this Article IX to make, give or take any request, demand, authorization, direction, notice, consent, waiver or
other act provided by the Indenture to be made, given or taken by Holders.
Section 9.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders for any purpose specified in Section 9.1, to be held at such time and at such place in The City of New York, New York as the
Trustee shall determine. Notice of every meeting of Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 10.2 of the
Base Indenture, not less than twenty-one (21) nor more than one hundred and eighty (180) calendar days prior to the date fixed for the meeting.
(b) In case at any time the Company, the Guarantor or the Holders of at least 10% in principal amount of the outstanding Notes shall have requested the Trustee to call a meeting of the
Holders for any purpose specified in Section 9.1, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of or made the first publication of the notice of
such meeting within twenty-one (21) calendar days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company, the Guarantor, if applicable, or the Holders in the amount above
specified, as the case may be, may determine the time and the place in the City of New York, New York, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (a) of this Section 9.2.
Section 9.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders, a person shall be (a) a Holder of one or more outstanding Notes, or (b) a person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more outstanding Notes by such Holder or Holders; provided, that none of the Company, any other obligor upon the Notes or any Affiliate of the Company shall be entitled to vote at any meeting of Holders or be counted for purposes
of determining a quorum at any such meeting in respect of any Notes owned by such persons. The only persons who shall be entitled to be present or to speak at any meeting of Holders shall be the persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel, any representatives of any Guarantor and its counsel and any representatives of the Company and its counsel.
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Section 9.4 Quorum; Action.
The persons entitled to vote a majority in principal amount of the outstanding Notes shall constitute a quorum for a meeting of Holders; provided, however, that if any action is to be taken at the
meeting with respect to a consent or waiver which may be given by the Holders of not less than a specified percentage in principal amount of the outstanding Notes, the persons holding or representing the specified percentage in principal amount of
the outstanding Notes will constitute a quorum. In the absence of a quorum within thirty (30) minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders, be dissolved. In any other case the
meeting may be adjourned for a period of not less than ten (10) calendar days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than ten (10) calendar days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 9.2, except that such notice need be given only once not less than five (5) days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the outstanding Notes which shall constitute a quorum.
Except as limited by the proviso to Section 8.2, any resolution presented at a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in principal amount of the outstanding Notes; provided, however, that, except as limited by the proviso to Section 8.2, any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which the Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the outstanding Notes may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the outstanding Notes. Any such resolution passed or decision
taken at any meeting of Holders duly held in accordance with this Section 9.4 shall be binding on all the Holders, whether or not such Holders were present or represented at the meeting.
Section 9.5 Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provisions of the Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders in regard to proof of the
holding of Notes and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate.
(b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in
Section 9.2(b), in which case the Company, the Guarantor or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the persons entitled to vote a majority in principal amount of the outstanding Notes of such series represented at the meeting.
(c) At any meeting, each Holder or proxy shall be entitled to one vote for each $1,000 principal amount of Notes held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote, except as a Holder or proxy.
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(d) Any meeting of Holders duly called pursuant to Section 9.2 at which a quorum is present may be adjourned from time to time by persons entitled to vote a majority in principal amount of
the outstanding Notes represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 9.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders shall be by written ballots on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the
principal amounts and serial numbers of the outstanding Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in Section 9.2 and, if applicable, Section 9.4. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and the Guarantor, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE X
MISCELLANEOUS
Section 10.1 No Recourse Against Others.
Without limiting the generality of Section 1.1, this Section 10.1 shall replace Section 10.8 of the Base Indenture with respect to the Notes only.
Except as otherwise expressly provided in Article V of this Second Supplemental Indenture, no recourse for the payment of the principal of (including the Redemption Price upon redemption pursuant
to Article IV) or premium, if any, or interest on any Note or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Second Supplemental Indenture or
in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, partner, member, manager, employee, agent, officer, director or Subsidiary, as such, past, present or future, of
the Guarantor, the Company or any of the Company’s Subsidiaries or of any successor thereto, either directly or through the Guarantor, the Company or any of the Company’s Subsidiaries or any successor thereto, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of
this Second Supplemental Indenture and the issue of the Notes.
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Section 10.2 Trust Indenture Act Controls.
If any provision of this Second Supplemental Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Second Supplemental Indenture by the
TIA, such required or deemed provision shall control.
Section 10.3 Governing Law.
THIS SECOND SUPPLEMENTAL INDENTURE AND THE NOTES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE BASE INDENTURE, SECOND SUPPLEMENTAL INDENTURE OR THE NOTES, SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
Section 10.4 Counterparts.
This Second Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Second Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of
this Second Supplemental Indenture as to the parties hereto and may be used in lieu of the original Second Supplemental Indenture for all purposes. The words “execution,” “signed,” “signature,” and words of like import in this Second Supplemental
Indenture shall include images of manually executed signatures transmitted by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including without limitation, DocuSign
and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect,
validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. Without limitation to the foregoing, and
anything in this Second Supplemental Indenture to the contrary notwithstanding, (a) any Officer’s Certificate, Company Order, Opinion of Counsel, Note, Note Guarantee, opinion of counsel, instrument, agreement or other document delivered pursuant
to this Second Supplemental Indenture may be executed, attested and transmitted by any of the foregoing electronic means and formats, (b) all references in Section 2.3 of the Base Indenture, Section 5.2 of this Second Supplemental Indenture or
elsewhere in the Indenture to the execution, attestation or authentication of any Note, any Guarantee endorsed on any Note, or any certificate of authentication appearing on or attached to any Note by means of a manual or facsimile signature shall
be deemed to include signatures that are made or transmitted by any of the foregoing electronic means or formats, and (c) any requirement in this Indenture that any signature be made under a corporate seal (or facsimile thereof) shall not be
applicable to the Notes or any Note Guarantees. Each of the Company and the General Partner agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
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This Second Supplemental Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any
electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions
of the Uniform Commercial Code/UCC (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned,
or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability
with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Second Supplemental
Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For avoidance of doubt, original manual signatures shall be
used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
Section 10.5 Successors.
All agreements of the Company and the Guarantor in this Second Supplemental Indenture and the Notes shall bind their respective successors and assigns. All agreements of the Trustee in this Second
Supplemental Indenture shall bind its successor.
Section 10.6 Severability.
In case any provision in this Second Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 10.7 Table of Contents, Headings, Etc.
The Table of Contents and headings of the Articles and Sections of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof,
and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.8 Ratifications.
The Base Indenture, as supplemented and amended by this Second Supplemental Indenture, is in all respects ratified and confirmed. The Indenture shall be read, taken and construed as one and the
same instrument. The Trustee accepts the trusts created by the Indenture, and agrees to perform the same upon the terms and conditions of the Indenture.
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Section 10.9 Effectiveness.
The provisions of this Second Supplemental Indenture shall become effective as of the date hereof.
Section 10.10 The Trustee.
The Trustee accepts the trusts created by the Indenture, and agrees to perform the same upon the terms and conditions of the Indenture. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Second Supplemental Indenture or the due execution thereof by the Company. The recitals contained herein shall be taken as the statements solely of the Company, and the Trustee assumes no
responsibility for the correctness thereof. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Notes), excluding any creditor relationship listed in TIA Section 311(b), the Trustee shall be subject
to the provisions of the TIA regarding the collection of the claims against the Company (or any such other obligor). If the Trustee has or shall acquire a conflicting interest within the meaning of the TIA, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the TIA and the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed by their respective officers hereunto duly authorized, all as of the day and year first
written above.
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ESSEX PORTFOLIO, L.P.
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By: Essex Property Trust, Inc.
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Its Sole General Partner
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By:
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/s/ Barbara Pak | |
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Name: Barbara Pak
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Its:
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Executive Vice President, Chief Financial Officer
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ESSEX PROPERTY TRUST, INC.,
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as Guarantor
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By:
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/s/ Barbara Pak | ||
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Name:
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Barbara Pak | |
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Its:
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Executive Vice President, Chief
Financial Officer
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
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as Trustee
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| By: |
/s/ David Jason
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Name:
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David Jason
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Its:Vice
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President
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EXHIBIT A
ESSEX PORTFOLIO, L.P.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE SECOND SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.2 OF THE SECOND SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 3.2(a) OF THE SECOND SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF ESSEX PORTFOLIO, L.P. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ESSEX PORTFOLIO, L.P.
5.375% SENIOR NOTES DUE 2035
Certificate No. [ ]
CUSIP No.: 29717PBB2
ISIN: US29717PBB22
$[ ]
Essex Portfolio, L.P., a California limited partnership (herein called the “Company,” which term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of [ ] MILLION DOLLARS ($[ ])[, or such other amount as is set forth in the Schedule of Exchanges of Interests in the Global
Note on the other side of this Note,] on April 1, 2035 at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and to pay interest semi-annually in arrears on April 1 and October 1 of each year, commencing on October 1, 2025, to the Holder in whose name the Note is registered in the
security register on the preceding March 15 or September 15, whether or not a Business Day, as the case may be, in accordance with the terms of the Indenture. Interest on the Notes will be computed on the basis of a 360-day year consisting of
twelve 30-day months. The Company shall pay interest on any Notes in certificated form by check mailed to the address of the Holder entitled thereto; provided, however, that a Holder of any Notes in certificated form in the aggregate principal
amount of more than $2,000,000 may specify by written notice to the Company that it pay interest by wire transfer of immediately available funds to the account specified by the Holder in such notice, or on any Global Notes by wire transfer of
immediately available funds to the account of the Depositary or its nominee.
The Company promises to pay interest on overdue principal, premium, if any, and (to the extent that payment of such interest is enforceable under such applicable law) interest at the rate per annum borne by the
Notes.
Reference is made to the further provisions of this Note set forth on the reverse hereof and the Indenture governing this Note. Such further provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually by the Trustee or a duly authorized authenticating agent under the
Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
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Dated: [ ], 20[ ]
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ESSEX PORTFOLIO, L.P.
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By: Essex Property Trust, Inc.,
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Its Sole General Partner
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By:
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Name:
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Title:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
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Dated: [ ], 20[ ]
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
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as Trustee
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By:
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Authorized Signatory
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[FORM OF REVERSE SIDE OF NOTE]
ESSEX PORTFOLIO, L.P.
5.375% SENIOR NOTES DUE 2035
This Note is one of a duly authorized issue of Securities of the Company, designated as its 5.375% Senior Notes due 2035 (herein called the “Notes”), issued
under and pursuant to an Indenture dated as of March 14, 2024 (herein called the “Base Indenture”), among the Company, the Guarantor and U.S. Bank Trust Company, National Association, as trustee (herein
called the “Trustee”), as supplemented by the Second Supplemental Indenture, dated as of February 18, 2025 (herein called the “Second Supplemental Indenture,” and
together with the Base Indenture, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders of the Notes. Capitalized terms used but not otherwise defined in this Note shall have the respective meanings ascribed thereto in the Indenture.
If an Event of Default (other than an Event of Default specified in Sections 7.1(e), 7.1(f) and 7.1(g) of the Second Supplemental Indenture with respect to the Company) occurs and is continuing,
the principal of, premium, if any, and accrued and unpaid interest on all Notes may be declared to be due and payable by either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, and, upon said
declaration the same shall be immediately due and payable. If an Event of Default specified in Sections 7.1(e), 7.1(f) and 7.1(g) of the Second Supplemental Indenture occurs, the principal of and premium, if any, and interest accrued and unpaid on
all the Notes shall be immediately and automatically due and payable without necessity of further action.
The Indenture contains provisions permitting the Company, the Guarantor and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at
the time outstanding, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders
of the Notes, subject to exceptions set forth in Section 8.2 of the Second Supplemental Indenture. Subject to the provisions of the Indenture, the Holders of not less than a majority in aggregate principal amount of the Notes at the time
outstanding may, on behalf of the Holders of all of the Notes, waive any past default or Event of Default, subject to exceptions set forth in the Indenture.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall impair, as among the Company and the Holder of the Notes, the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective times, at the rate and in the coin or currency prescribed herein and in the Indenture.
Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
The Notes are issuable in fully registered form, without coupons, in minimum denominations of $2,000 principal amount and any multiple of $1,000. At the office or agency of the Company referred to
on the face hereof, and in the manner and subject to the limitations provided in the Indenture, without payment of any service charge but with payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed
in connection with any registration or exchange of Notes, Notes may be exchanged for a like aggregate principal amount of Notes of any other authorized denominations.
The Company shall have the right to redeem the Notes under certain circumstances as set forth in Section 4.1, Section 4.2 and Section 4.3 of the Second Supplemental Indenture.
The Notes are not subject to redemption through the operation of any sinking fund.
The obligations of the Guarantor to the Holders of the Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article V of the Second Supplemental
Indenture and reference is hereby made to such Indenture for the precise terms of the Note Guarantee.
Except as expressly provided in Article V of the Second Supplemental Indenture, no recourse for the payment of the principal of (including the Redemption Price (as defined in Section 4.1 of the
Second Supplemental Indenture) upon redemption pursuant to Article IV of the Second Supplemental Indenture) or any premium, if any, or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, partner, member, manager, employee,
agent, officer, director or subsidiary, as such, past, present or future, of the Guarantor, the Company or any of the Company’s Subsidiaries or of any successor thereto, either directly or through the Guarantor, the Company or any of the Company’s
subsidiaries or of any successor thereto, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly
waived and released as a condition of, and as consideration for, the execution of the Indenture and the issue of this Note.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to:
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(Insert assignee’s legal name)
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(Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint
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to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee*:
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* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
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Date of Exchange
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Amount of
decrease in
principal amount
at maturity of
this Global Note
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Amount of
increase in
principal amount
at maturity of
this Global Note
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Principal amount
at maturity of
this Global Note
following such
decrease
(or increase)
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Signature of
authorized
officer of
Trustee or
Custodian
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*
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion
Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended.
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Exhibit 5.1
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555 Eleventh Street, N.W., Suite 1000
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Washington, D.C. 20004-1304
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Tel: +1.202.637.2200 Fax: +1.202.637.2201
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www.lw.com
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FIRM / AFFILIATE OFFICES
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Austin
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Milan
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Beijing
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Munich
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Boston
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New York
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Brussels
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Orange County
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Century City
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Paris
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February 18, 2025
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Chicago
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Riyadh
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Dubai
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San Diego
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Düsseldorf
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San Francisco
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Frankfurt
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Seoul
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Hamburg
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Silicon Valley
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Hong Kong
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Singapore
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Houston
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Tel Aviv
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London
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Tokyo
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Los Angeles
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Washington, D.C.
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Madrid
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Essex Property Trust, Inc.
Essex Portfolio, L.P.
1100 Park Place, Suite 200
San Mateo, CA 94403
| Re: |
Registration Statement Nos. 333-281244 and 333-281244-01; $400,000,000 Aggregate Principal Amount of 5.375% Senior Notes due 2035
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To the addressees set forth above:
We have acted as special counsel to Essex Portfolio, L.P., a California limited partnership (the “Operating Partnership”), in
connection with the issuance by the Operating Partnership of $400,000,000 aggregate principal amount of its 5.375% Senior Notes due 2035 (the “Notes”) and the guarantee of the Notes (the
“Guarantee”) by Essex Property Trust, Inc., a Maryland corporation (the “Guarantor”), under an Indenture, dated as of March
14, 2024 (the “Base Indenture”), among the Operating Partnership, the Guarantor and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Second Supplemental Indenture, dated as of February 18, 2025, among the Operating Partnership, the Guarantor and the Trustee (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), and pursuant to (i) a registration statement on Form S‑3 under the Securities Act of
1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on August 5, 2024
(Registration Nos. 333‑281244 and 333-281244-01) (as amended, the “Registration Statement”), (ii) a base prospectus, dated August 5, 2024, included as part of the Registration Statement
(the “Base Prospectus”), (iii) a preliminary prospectus supplement, dated February 6, 2025, filed with the Commission pursuant to Rule 424(b) under the Act, (iv) a prospectus supplement,
dated February 6, 2025, filed with the Commission pursuant to Rule 424(b) under the Act (together with the Base Prospectus, the “Prospectus”), and (v) an underwriting agreement, dated
February 6, 2025, among J.P. Morgan Securities LLC, U.S. Bancorp Investments, Inc., and Wells Fargo Securities, LLC, as representatives of the several underwriters named in the underwriting agreement, the Operating Partnership and the Guarantor
(the “Underwriting Agreement”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S‑K under the Act, and no opinion is expressed herein
as to any matter pertaining to the contents of the Registration Statement or Prospectus, other than as expressly stated herein with respect to the issue of the Notes and the Guarantee.
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February 18, 2025
Page 2
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As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and
other assurances of officers of the Operating Partnership, the Guarantor and others as to factual matters without having independently verified such factual matters.
We are opining as to the internal laws of the State of New York, and we express no opinion with respect to the applicability to the opinion expressed herein, or the effect thereon, of the laws of
any other jurisdiction, or as to any matters of municipal law or the laws of any local agencies within any state. Various issues pertaining to Maryland law are addressed in the opinion of Venable LLP, separately provided to you. We express no
opinion with respect to those matters, and to the extent elements of those opinions are necessary to the conclusions expressed herein, we have, with your consent, assumed such matters.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Notes have been duly executed, issued and authenticated in accordance with
the terms of the Indenture and delivered against payment therefor in the circumstances contemplated by the Underwriting Agreement, the Notes and the Guarantee will be legally valid and binding obligations of the Operating Partnership and the
Guarantor, respectively, enforceable against the Operating Partnership and the Guarantor in accordance with their respective terms.
Our opinion is subject to: (i) the effects of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or
remedies of creditors; (ii) the effects of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality,
reasonableness, good faith, fair dealing and the discretion of the court before which a proceeding is brought; (iii) the invalidity under certain circumstances under law or court decisions of provisions for the indemnification or exculpation of,
or contribution to, a party with respect to a liability where such indemnification, exculpation or contribution is contrary to public policy; and (iv) we express no opinion with respect to (a) any provision for liquidated damages, default
interest, late charges, monetary penalties, prepayment or make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty; (b) consents to, or restrictions upon, governing law, jurisdiction, venue,
service of process, arbitration, remedies or judicial relief; (c) the waiver of rights or defenses contained in Section 4.4 of the Base Indenture and Section 5.1(b) of the Supplemental Indenture (except, with respect to Section 5.1(b) of the
Supplemental Indenture, to the extent such waiver is limited to the fullest extent that the Guarantor may do so under applicable law); (d) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public
policy; (e) provisions purporting to make a guarantor primarily liable rather than as a surety and provisions purporting to waive modifications of any guaranteed obligation to the extent such modification constitutes a novation; (f) advance
waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights; (g) waivers of broadly or vaguely stated rights; (h)
covenants not to compete; (i) provisions for exclusivity, election or cumulation of rights or remedies; (j) provisions authorizing or validating conclusive or discretionary determinations; (k) grants of setoff rights; (l) proxies, powers and
trusts; (m) provisions prohibiting, restricting or requiring consent to assignment or transfer of any agreement, right or property; (n) provisions permitting, upon acceleration of any indebtedness (including the Notes), collection of that portion
of the stated principal amount thereof which might be determined to constitute unearned interest thereon; and (o) the severability, if invalid, of provisions to the foregoing effect.
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February 18, 2025
Page 3
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With your consent, we have assumed (a) that the Indenture, the Guarantee and the Notes (collectively, the “Documents”) have been duly
authorized, executed and delivered by the parties thereto, (b) that the Documents constitute legally valid and binding obligations of the parties thereto other than the Operating Partnership and the Guarantor, enforceable against each of them in
accordance with their respective terms, and (c) that the status of the Documents as legally valid and binding obligations of the parties is not affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of
statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the
Act. We consent to your filing this opinion as an exhibit to the Guarantor’s and the Operating Partnership’s Current Report on Form 8-K dated February 18, 2025 and to the reference to our firm contained in the Prospectus under the heading “Legal
Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
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Sincerely,
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/s/ Latham & Watkins LLP
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February 18, 2025
Essex Property Trust, Inc.
Essex Portfolio, L.P.
1100 Park Place, Suite 200
San Mateo, California 94403
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have served as Maryland counsel to Essex Property Trust, Inc., a Maryland corporation (the “Company”), in its own capacity and in its capacity as sole general partner of Essex Portfolio, L.P., a California limited
partnership (the “Operating Partnership”), in connection with certain matters of Maryland law arising out of (i) the issuance and sale by the Operating Partnership of up to $400,000,000 aggregate principal amount of the Operating Partnership’s
5.375% Senior Notes due 2035 (the “Notes”) and (ii) the guarantee by the Company (the “Guarantee”) of the obligations of the Operating Partnership under the Notes, covered by the above-referenced Registration Statement, and all amendments thereto
(collectively, the “Registration Statement”), filed by the Company and the Operating Partnership with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the
“1933 Act”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the
following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement (File Nos. 333-281244 and 333-281244-01), and the related form of prospectus included therein, in the form in which it was transmitted to the Commission under the 1933 Act,
related to the offering and guarantee of the Notes;
2. The Prospectus Supplement, dated February 6, 2025, in the form in which it was transmitted to the Commission for filing pursuant to Rule 424(b) of the General Rules and Regulations promulgated under the
1933 Act;
3. The charter of the Company, certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
4. The Seventh Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
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| Essex Property Trust, Inc. Essex Portfolio, L.P. February 18, 2025 Page 2 |
5. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
6. The Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, certified as of the date hereof by an officer of the Company;
7. Resolutions adopted by the Board of Directors of the Company, in its own capacity and in its capacity as the sole general partner of the Operating Partnership, and by a duly authorized committee thereof,
relating to, among other matters, (a) the sale and issuance of the Notes by the Operating Partnership and (b) the Guarantee of the Notes by the Company, certified as of the date hereof by an officer of the Company;
8. The Indenture, dated as of March 14, 2024 (the “Base Indenture”), as supplemented by the Second Supplemental Indenture, dated as of the date hereof (the “Second Supplemental Indenture” and, together with
the Base Indenture, the “Indenture” and, together with the Guarantee, the “Transaction Documents”), by and among the Operating Partnership, the Company and U.S. Bank Trust Company, National Association;
9. The Guarantee by the Company, contained in the Indenture;
10. A certificate executed by an officer of the Company, dated as of the date hereof; and
11. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company or the Operating Partnership) is duly authorized to do so.
3. Each of the parties (other than the Company or the Operating Partnership) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a
signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
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| Essex Property Trust, Inc. Essex Portfolio, L.P. February 18, 2025 Page 3 |
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to
this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public
records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or
amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
The phrase “known to us” is limited to the actual knowledge, without independent inquiry, of the lawyers currently at our firm who have performed legal services in connection with the transactions covered by, and the
issuance of, this opinion.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing under the laws of the State of Maryland and is in good standing with the SDAT.
2. The Company has the corporate power, in its own capacity and in its capacity as sole general partner of the Operating Partnership, to enter into and perform its obligations under the Indenture and, in its
own capacity, to enter into and perform its obligations under the Guarantee.
3. The Indenture has been duly authorized, executed and, so far as is known to us, delivered by the Company, in its own capacity and in its capacity as sole general partner of the Operating Partnership, as
applicable.
4. The Guarantee has been duly authorized, executed and, so far as is known to us, delivered by the Company.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any federal or other state law. We express no opinion as to the applicability or effect of
federal or state securities laws, including the securities laws of the State of Maryland, federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. We note that the
Transaction Documents are each governed by the laws of the State of New York. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not
express any opinion on such matter. We express no opinion with respect to the actions which may be required for the Operating Partnership, under its organizational documents, to authorize, execute, deliver or perform any document. The opinion
expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
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| Essex Property Trust, Inc. Essex Portfolio, L.P. February 18, 2025 Page 4 |
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if
any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Notes (the “Current Report”), which is incorporated by reference in
the Registration Statement. Latham & Watkins LLP, counsel to the Company, may rely on this opinion in connection with their opinion of even date herewith. We hereby consent to the filing of this opinion as an exhibit to the Current Report
and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
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Very truly yours,
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/s/ Venable LLP
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