Exhibit 10.1


    Exhibit
      10.1

    Essex
      Portfolio, L.P.

    


    Essex
      Property Trust, Inc.

    


    Registration
      Rights Agreement

    


    


    


    October
      28, 2005

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Registration
      Rights Agreement

    


    This
      Registration Rights Agreement
      (the
“Agreement”)
      is
      made and entered into as of October 28, 2005, by and among Essex Portfolio,
      L.P., a California limited partnership (the “Operating
      Partnership”),
      Essex
      Property Trust, Inc., a Maryland corporation (the “Company”),
      and
      UBS Securities LLC and Bear, Stearns & Co. Inc. (collectively, the
“Initial
      Purchasers”)
      pursuant to that certain Purchase Agreement, dated October 25, 2005 (the
“Purchase
      Agreement”),
      among
      the Operating Partnership, the Company and the Initial Purchasers. The
      obligations of the Operating Partnership under the Notes and the Indenture
      will
      be fully and unconditionally guaranteed on a senior unsecured basis by the
      Company pursuant to the terms of the Indenture (the “Guarantee”).
      References herein to the Notes shall be deemed to include the Guarantee
      thereon.

    


    In
      order
      to induce the Initial Purchasers to enter into the Purchase Agreement, the
      Operating Partnership and the Company have agreed to provide the registration
      rights set forth in this Agreement. The execution of this Agreement is a
      condition to the closing under the Purchase Agreement. The terms “herein,”
“hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement,
      shall in each case refer to this Agreement as a whole and not to any particular
      section, paragraph, sentence or other subdivision of this
      Agreement.

    


    The
      Operating Partnership and the Company agree with the Initial Purchasers (i)
      for
      their benefit as Initial Purchasers and (ii) for the benefit of the beneficial
      owners (including the Initial Purchasers) from time to time of the Registrable
      Securities (as defined herein) (each of the foregoing a “Holder”
and,
      together, the “Holders”),
      as
      follows:

    


    1.  Definitions.
      Capitalized terms used herein without definition shall have the respective
      meanings set forth in the Purchase Agreement. As used in this Agreement, the
      following terms shall have the following meanings:

    


    (a)  “Additional
      Filing Deadline Date”
has
      the
      meaning set forth in Section 2(e)
      hereof.

    


    (b)  “additional
      interest”
has
      the
      meaning set forth in Section 2(e)
      hereof.

    


    (c)  “Additional
      Interest Accrual Period”
has
      the
      meaning set forth in Section 2(e)
      hereof.

    


    (d)  “Additional
      Interest Amount”
has
      the
      meaning set forth in Section 2(e) hereof.

    


    (e)  “Additional
      Interest Payment Date”
means
      each May 1 and November 1 of each year.

    


    (f)  “Affiliate”
means,
      with respect to any specified person, an “affiliate,” as defined in Rule 144, of
      such person.

    
      
        

      

    

    
    

    (g)  “Amendment
      Effectiveness Deadline Date”
has
      the
      meaning set forth in Section 2(d)
      hereof.

    


    (h)  “Business
      Day”
means
      each day on which the New York Stock Exchange is open for trading.

    


    (i)  “Claim”
has
      the
      meaning set forth in Section 9(o)
      hereof.

    


    (j)  “Common
      Stock”
means
      the shares of common stock, $0.0001 par value per share, of the Company and
      any
      other shares of capital stock as may constitute “Common Stock” for purposes of
      the Indenture, including the Underlying Common Stock.

    


    (k)  “Effectiveness
      Deadline Date”
has
      the
      meaning set forth in Section 2(a)
      hereof.

    


    (l)  “Effectiveness
      Period”
means
      a
      period (subject to extension pursuant to Section 3(i)
      hereof)
      that terminates when there are no Registrable Securities
      outstanding.

    


    (m)  “Event”
has
      the
      meaning set forth in Section 2(e)
      hereof.

    


    (n)  “Event
      Date”
has
      the
      meaning set forth in Section 2(e) hereof.

    


    (o)  “Exchange
      Act”
means
      the Securities Exchange Act of 1934, as amended, and the rules and regulations
      of the SEC promulgated thereunder.

    


    (p)  “Exchange
      Rate”
has
      the
      meaning ascribed to it in the Indenture.

    


    (q)  “Filing
      Deadline Date”
has
      the
      meaning set forth in Section 2(a)
      hereof.

    


    (r)  “Form
      S-11”
means
      the Registration Statement on Form S-11 under the Securities Act.

    


    (s)  “Form
      S-3”
means
      the Registration Statement on Form S-3 under the Securities Act.

    


    (t)  “Holder”
has
      the
      meaning set forth in the preamble hereto.

    


    (u)  “Holder
      Information”
has
      the
      meaning set forth in Section 6(b)
      hereof.

    


    (v)  “Indemnified
      Party”
has
      the
      meaning set forth in Section 6(c)
      hereof.

    


    (w)  “Indemnifying
      Party”
has
      the
      meaning set forth in Section 6(c)
      hereof.

    


    (x)  “Indenture”
means
      the Indenture, dated as of October 28, 2005, between the Company and the
      Trustee, pursuant to which the Notes are being issued.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (y)  “Initial
      Purchasers”
has
      the
      meaning set forth in the preamble hereto.

    


    (z)  “Initial
      Shelf Registration Statement”
has
      the
      meaning set forth in Section 2(a)
      hereof.

    


    (aa)  “Issue
      Date”
means
      October 28, 2005. 

    


    (bb)  “Managing
      Underwriters”
has
      the
      meaning set forth in Section 8(a)
      hereof.

    


    (cc)  “Material
      Event”
has
      the
      meaning set forth in Section 3(i)
      hereof.

    


    (dd)  “NASD
      Rules”
has
      the
      meaning set forth in Section 3(r)
      hereof.

    


    (ee)  “Notes”
means
      the 3.625% Exchangeable Senior Notes due 2025 of the Operating Partnership
      to be
      purchased pursuant to the Purchase Agreement.

    


    (ff)  “Notice
      and Questionnaire”
means
      a
      written questionnaire containing substantially the information called for by
      the
“Form of Selling Securityholder Notice and Questionnaire” attached as Appendix A
      to the Offering Memorandum of the Operating Partnership and the Company, dated
      October 25, 2005, relating to the Notes.

    


    (gg)  “Notice
      Holder”
means,
      on a given date, any Holder that has delivered a Notice and Questionnaire to
      the
      Company on or prior to such date, provided not all of such Holder’s Registrable
      Securities that have been registered for resale pursuant to a Notice and
      Questionnaire have been sold in accordance with a Shelf Registration
      Statement.

    


    (hh)  “Option
      Purchase Date”
has
      the
      meaning ascribed to it in the Indenture.

    


    (ii)  “Proceeding”
has
      the
      meaning set forth in Section 6(c)
      hereof.

    


    (jj)  “Prospectus”
means
      the prospectus included in any Shelf Registration Statement (including, without
      limitation, a prospectus that discloses information previously omitted from
      a
      prospectus filed as part of an effective registration statement in reliance
      upon
      Rule 415 under the Securities Act), as amended or supplemented by any amendment
      or prospectus supplement, including post-effective amendments and any prospectus
      filed with respect to any Shelf Registration Statement pursuant to Rule 424
      under the Securities Act, and all materials incorporated by reference or deemed
      to be incorporated by reference in such Prospectus.

    


    (kk)  “Purchase
      Agreement”
has
      the
      meaning set forth in the preamble hereof.

    


    (ll)  “Record
      Date”
means,
      (i) April 15, with respect to an Additional Interest Payment Date that occurs
      on
      May 1 and (ii) October 15, with respect to an Additional Interest Payment Date
      that occurs on November 1.

    
      
        

      

    

    
    

    (mm)  “Record
      Holder”
means,
      with respect to an Additional Interest Payment Date relating to a Registrable
      Security for which any Additional Interest Amount has accrued, a Notice Holder
      that was the holder of record of such Registrable Security at the close of
      business on the Record Date relating to such Additional Interest Payment
      Date.

    


    (nn)  “Registrable
      Securities”
means
      the Notes, until such Notes have been exchanged into the Underlying Common
      Stock, and, at all times, the Underlying Common Stock and any securities into
      or
      for which such Underlying Common Stock has been converted or exchanged, and
      any
      security issued with respect thereto upon any stock dividend, split or similar
      event until, in the case of any such security, the earliest of:

    


    (i)  the
      date
      on which such security has been effectively registered under the Securities
      Act
      and disposed of in accordance with the Registration Statement relating
      thereto;

    


    (ii)  the
      date
      on which such security may be resold without restriction pursuant to Rule 144(k)
      or any successor provision thereto; or

    


    (iii)  the
      date
      on which such security has been publicly sold pursuant to Rule 144 or any
      successor provision thereto.

    


    (oo)  “Registration
      Expenses”
has
      the
      meaning set forth in Section 5
      hereof.


    


    (pp)  “Registration
      Statement”
means
      any registration statement, under the Securities Act, of the Operating
      Partnership and the Company that covers any of the Registrable Securities
      pursuant to this Agreement, including the Prospectus, amendments and supplements
      to such registration statement, including post-effective amendments, all
      exhibits and all materials incorporated by reference or deemed to be
      incorporated by reference in such registration statement, Prospectus, amendment
      or supplement.

    


    (qq)  “Rule
      144”
means
      Rule 144 under the Securities Act, as such Rule may be amended from time to
      time, or any similar rule or regulation hereafter adopted by the
      SEC.

    


    (rr)  “Rule
      144A”
means
      Rule 144A under the Securities Act, as such Rule may be amended from time to
      time, or any similar rule or regulation hereafter adopted by the
      SEC.

    


    (ss)  “SEC”
means
      the Securities and Exchange Commission.

    


    (tt)  “Securities
      Act”
means
      the Securities Act of 1933, as amended, and the rules and regulations
      promulgated by the SEC thereunder.

    


    (uu)  “Shelf
      Registration Statement”
means
      the Initial Shelf Registration Statement and any Subsequent Shelf Registration
      Statement.

    
      
        

      

    

    
    

    (vv)  “Subsequent
      Shelf Registration Statement”
has
      the
      meaning set forth in Section 2(b)
      hereof.

    


    (ww)  “Subsequent
      Shelf Registration Statement Effectiveness Deadline Date”
has
      the
      meaning set forth in Section 2(d)
      hereof.

    


    (xx)  “Suspension
      Notice”
has
      the
      meaning set forth in Section 3(i)
      hereof.

    


    (yy)  “Suspension
      Period”
has
      the
      meaning set forth in Section 3(i)
      hereof.

    


    (zz)  “TIA”
means
      the Trust Indenture Act of 1939, as amended.

    


    (aaa)  “Trustee”
means
      Wells Fargo Bank, N.A., the trustee under the Indenture.

    


    (bbb)  “Underlying
      Common Stock”
means
      the Common Stock issuable upon exchange of the Notes.

     

    
      1.  Shelf
        Registration.

      


      (a)  The
        Operating Partnership and the Company shall prepare and file, or cause to
        be
        prepared and filed, with the SEC, as soon as practicable but in any event
        by the
        date (the “Filing
        Deadline Date”)
        that
        is ninety (90) days after the Issue Date, a Registration Statement (the
“Initial
        Shelf Registration Statement”)
        for an
        offering to be made on a delayed or continuous basis pursuant to Rule 415
        under
        the Securities Act registering the resale from time to time by Holders thereof
        of all of the Registrable Securities (or, if registration of Registrable
        Securities not held by Notice Holders is not permitted by the rules and
        regulations of the SEC, then registering the resale from time to time by
        Notice
        Holders of their Registrable Securities). The Initial Shelf Registration
        Statement shall be on Form S-11 or Form S-3 or another appropriate form and
        shall provide for the registration of such Registrable Securities for resale
        by
        such Holders in accordance with any reasonable method of distribution elected
        by
        the Holders. The Operating Partnership and the Company shall use their
        reasonable best efforts to (i) cause the Initial Shelf Registration Statement
        to
        become effective under the Securities Act as promptly as practicable but
        in any
        event by the date (the “Effectiveness
        Deadline Date”)
        that
        is one hundred eighty (180) days after the Issue Date and (ii) keep the Initial
        Shelf Registration Statement (or any Subsequent Shelf Registration Statement)
        continuously effective under the Securities Act until the expiration of the
        Effectiveness Period. At the time the Initial Shelf Registration Statement
        becomes effective under the Securities Act, each Holder that became a Notice
        Holder on or prior to the date that is ten (10) Business Days prior to such
        time
        of effectiveness shall be named as a selling securityholder in the Initial
        Shelf
        Registration Statement and the related Prospectus in such a manner as to
        permit
        such Holder to deliver such Prospectus to purchasers of Registrable Securities
        in accordance with applicable law.

    

    
      
        

      

    

    
    

    (b)  Subject
      to Section 3(i) below, if any Shelf Registration Statement ceases to be
      effective under the Securities Act for any reason at any time during the
      Effectiveness Period, the Operating Partnership and the Company shall use their
      reasonable best efforts to promptly cause such Shelf Registration Statement
      to
      become effective under the Securities Act (including obtaining the prompt
      withdrawal of any order suspending the effectiveness of such Shelf Registration
      Statement), and in any event shall, within thirty (30) days of such cessation
      of
      effectiveness, (i) amend such Shelf Registration Statement in a manner
      reasonably expected to obtain the withdrawal of any order suspending the
      effectiveness of such Shelf Registration Statement or (ii) file an additional
      Registration Statement (a “Subsequent
      Shelf Registration Statement”)
      for an
      offering to be made on a delayed or continuous basis pursuant to Rule 415 of
      the
      Securities Act registering the resale from time to time by Holders thereof
      of
      all securities that are Registrable Securities as of the time of such filing
      (or, if registration of Registrable Securities not held by Notice Holders is
      not
      permitted by the rules and regulations of the SEC, then registering the resale
      from time to time by Notice Holders of their securities that are Registrable
      Securities as of the time of such filing). If a Subsequent Shelf Registration
      Statement is filed, the Operating Partnership and the Company shall use their
      reasonable best efforts to (A) cause such Subsequent Shelf Registration
      Statement to become effective under the Securities Act as promptly as
      practicable after such filing, but in no event later than the Subsequent Shelf
      Registration Statement Effectiveness Deadline Date and (B) keep such Subsequent
      Shelf Registration Statement (or another Subsequent Shelf Registration
      Statement) continuously effective until the end of the Effectiveness
      Period.
      Any such
      Subsequent Shelf Registration Statement shall be on Form S-11 or Form S-3 or
      another appropriate form and shall provide for the registration of such
      Registrable Securities for resale by such Holders in accordance with any
      reasonable method of distribution elected by the Holders.

    


    (c)  The
      Operating Partnership and the Company shall supplement and amend any Shelf
      Registration Statement if required by the rules, regulations or instructions
      applicable to the registration form used by the Operating Partnership and the
      Company for such Shelf Registration Statement, if required by the Securities
      Act
      or as reasonably requested by the Initial Purchasers or by the Trustee on behalf
      of the Holders of the Registrable Securities covered by such Shelf Registration
      Statement.

    


    (d)  (i)
      Each
      Holder of Registrable Securities agrees that, if such Holder wishes to sell
      Registrable Securities pursuant to a Shelf Registration Statement and related
      Prospectus, it will do so only in accordance with this Section 2(d)
      and
      Section 3(i).
      Each
      Holder of Registrable Securities wishing to sell Registrable Securities pursuant
      to a Shelf Registration Statement and related Prospectus agrees to deliver
      a
      completed and executed Notice and Questionnaire to the Operating Partnership
      and
      the Company prior to any attempted or actual distribution of Registrable
      Securities under a Shelf Registration Statement. From and after the date the
      Initial Shelf Registration Statement becomes effective under the Securities
      Act,
      the Operating Partnership and the Company shall, as promptly as practicable
      after the date such Holder became a Notice Holder, and in any event, subject
      to
      clause (B)
      below,
      within the later of (x) ten (10) Business Days after such date or (y) ten (10)
      Business Days after the expiration of any Suspension Period that either (I)
      is
      in effect when such Holder became a Notice Holder or (II) is put into effect
      within ten (10) Business Days after the date such Holder became a Notice
      Holder,

    
      
        

      

    

    (A)  if
      required by applicable law, file with the SEC a supplement to the related
      Prospectus or a post-effective amendment to the Shelf Registration Statement
      or
      file with the SEC a Subsequent Shelf Registration Statement and any necessary
      supplement or amendment to any document incorporated therein by reference and
      file any other required document with the SEC so that such Notice Holder is
      named as a selling securityholder in a Shelf Registration Statement and the
      related Prospectus in such a manner as to permit such Notice Holder to deliver
      a
      Prospectus to purchasers of the Registrable Securities in accordance with
      applicable law; provided,
      however,
      that,
      if a post-effective amendment or a Subsequent Shelf Registration Statement
      is
      required by the rules and regulations of the SEC in order to permit resales
      by
      such Notice Holder, the Operating Partnership and the Company shall not be
      required to file more than one (1) post-effective amendment or Subsequent Shelf
      Registration Statement for such purpose in any thirty (30) day
      period;

    


    (B)  if,
      pursuant to Section 2(d)(i)(A),
      the
      Operating Partnership and the Company shall have filed a post-effective
      amendment to the Shelf Registration Statement or filed a Subsequent Shelf
      Registration Statement, the Operating Partnership and the Company shall use
      their reasonable best efforts to cause such post-effective amendment or
      Subsequent Shelf Registration Statement, as the case may be, to become effective
      under the Securities Act as promptly as practicable, but in any event by the
      date (the “Amendment
      Effectiveness Deadline Date,”
in
      the
      case of a post-effective amendment) that is thirty (30) days after the date
      such
      post-effective amendment, is required by this Section 2(d)
      to be
      filed with the SEC and by the date (the “Subsequent
      Shelf Registration Statement Effectiveness Deadline Date,”
in
      the
      case of a Subsequent Shelf Registration Statement) that is sixty (60) days
      after
      the date such Subsequent Shelf Registration Statement is required by this
      Section 2(d) to be filed with the SEC;

    


    (C)  the
      Operating Partnership and the Company shall provide such Notice Holder a
      reasonable number of copies of any documents filed pursuant to clause
(A)
      above;

    


    (D)  the
      Operating Partnership and the Company shall notify such Notice Holder as
      promptly as practicable after the effectiveness under the Securities Act of
      any
      post-effective amendment or Subsequent Shelf Registration Statement filed
      pursuant to clause (A)
      above;

    


    (E)  if
      such
      Holder became a Notice Holder during a Suspension Period, or a Suspension Period
      is put into effect within five (5) Business Days after the date such Holder
      became a Notice Holder, the Operating Partnership and the Company shall so
      inform such Notice Holder and shall take the actions set forth in clauses
(A),
      (B),
      (C)
      and
(D)
      above
      within ten (10) Business Days after expiration of such Suspension Period in
      accordance with Section 3(i);
      and

    
      
        

      

    

    
    

    (F)  if,
      under
      applicable law, the Operating Partnership and the Company has more than one
      option as to the type or manner of making any such filing, the Operating
      Partnership and the Company shall make the required filing or filings in the
      manner or of a type that is reasonably expected to result in the earliest
      availability of a Prospectus for effecting resales of Registrable
      Securities.

    


    (ii)  Notwithstanding
      anything contained herein to the contrary, the Operating Partnership and the
      Company shall be under no obligation to name any Holder that is not a Notice
      Holder as a selling securityholder in any Shelf Registration Statement or
      related Prospectus; provided,
      however,
      that
      any Holder that becomes a Notice Holder (regardless of when such Holder became
      a
      Notice Holder) shall be named as a selling securityholder in a Shelf
      Registration Statement or related Prospectus in accordance with the requirements
      of this Section 2(d)
      or
      Section 2(a),
      as
      applicable.

    


    (e)  The
      parties hereto agree that the Holders of Registrable Securities will suffer
      damages, and that it would not be feasible to ascertain the extent of such
      damages with precision, if:

    


    (i)  the
      Initial Shelf Registration Statement has not been filed with the SEC on or
      prior
      to the Filing Deadline Date;

    


    (ii)  the
      Initial Shelf Registration Statement has not become effective under the
      Securities Act on or prior to the Effectiveness Deadline Date;

    


    (iii)  either
      a
      supplement to a Prospectus, a post-effective amendment or a Subsequent Shelf
      Registration Statement is required to be filed with the SEC and fails to be
      filed with the SEC within the prescribed period and in the manner set forth
      in
      Section 2(d)
      (the
      date such filing is required to be made being an “Additional
      Filing Deadline Date”)
      or, in
      the case of a post-effective amendment or a Subsequent Shelf Registration
      Statement, such post-effective amendment or Subsequent Registration Statement
      does not become effective under the Securities Act by the Amendment
      Effectiveness Deadline Date or the Subsequent Shelf Registration Statement
      Effectiveness Deadline Date, as the case may be;

    


    (iv)  the
      Initial Shelf Registration Statement or any Subsequent Registration Statement
      is
      filed with the SEC and becomes effective under the Securities Act but shall
      thereafter cease to be effective (without being succeeded immediately by a
      new
      Registration Statement that is filed and immediately becomes effective under
      the
      Securities Act) or usable for the offer and sale of Registrable Securities
      in
      the manner contemplated by this Agreement for a period of time (including any
      Suspension Period) which shall exceed thirty (30) days in the aggregate in
      any
      three (3) month period or ninety (90) days in the aggregate in any twelve (12)
      month period;
      or

    
      
        

      

    

    
    

    (v)  any
      Registration Statement or amendment thereto, at the time it becomes effective
      under the Securities Act, or any Prospectus relating thereto, at the time it
      is
      filed with the SEC or, if later, at the time the Registration Statement to
      which
      such Prospectus relates becomes effective under the Securities Act, shall fail
      to name each Holder as a selling securityholder in such a manner as to permit
      such Holder to sell its Registrable Securities pursuant to such Registration
      Statement and Prospectus in accordance with applicable law, which Holder was
      entitled, pursuant to the terms of this Agreement, to be so named;
      provided that the Holder delivered a Notice and Questionnaire within sixty
      (60)
      days after such Notice and Questionnaire was first sent to such Holder upon
      the
      request of such Holder (it being understood that, without limitation, naming
      such Holder in a manner that permits such Holder to sell only a portion of
      such
      Holder’s Registrable Securities referenced in such Holder’s Notice and
      Questionnaire shall be deemed to be an “Event” (as defined below) for purposes
      of this clause (v)).

    Each
      of
      the events of a type described in any of the foregoing clauses (i)
      through
(v)
      are
      individually referred to herein as an “Event,”
      and

    


    (V) the
      Filing Deadline Date, in the case of clause (i)
      above,

    


    (W) the
      Effectiveness Deadline Date, in the case of clause (ii)
      above,

    


    (X) the
      Additional Filing Deadline Date, the Amendment Effectiveness Deadline Date
      or
      the Subsequent Shelf Registration Statement Effectiveness Deadline Date, as
      the
      case may be, in the case of clause (iii)
      above,

    


    (Y) the
      date
      on which the duration of the ineffectiveness or unusability of the Shelf
      Registration Statement exceeds the number of days permitted by clause
(iv)
      above,
      in the case of clause (iv)
      above,
      and

    


    (Z) the
      date
      the applicable Registration Statement or amendment thereto shall become
      effective under the Securities Act, or the date the applicable Prospectus is
      filed with the SEC or, if later, the time the Registration Statement to which
      such Prospectus relates becomes effective under the Securities Act, as the
      case
      may be, in the case of clause (v)
      above,

    


    are
      each
      herein referred to as an “Event
      Date.”
Events
      shall be deemed to continue until the following dates with respect to the
      respective types of Events:

    


    (A) the
      date
      the Initial Shelf Registration Statement is filed with the SEC, in the case
      of
      an Event of the type described in clause (i)
      above;

    
      
        

      

    

    
    

    (B) the
      date
      the Initial Shelf Registration Statement becomes effective under the Securities
      Act, in the case of an Event of the type described in clause (ii)
      above;

    


    (C) the
      date
      a supplement to a Prospectus, a post-effective amendment or a Subsequent Shelf
      Registration Statement, whichever is required, is filed with the SEC (in the
      case of a supplement) or becomes effective under the Securities Act (in the
      case
      of a post-effective amendment or a Subsequent Shelf Registration Statement),
      in
      the case of an Event of the type described in clause (iii)
      above;

    


    (D) the
      date
      the Initial Shelf Registration Statement or the Subsequent Shelf Registration
      Statement, as the case may be, becomes effective and usable again, or the date
      another Subsequent Shelf Registration Statement is filed with the SEC pursuant
      to Section 2(b)
      and
      becomes effective, in the case of an Event of the type described in clause
      (iv)
      above;
      or

    


    (E) the
      date
      a supplement to the Prospectus is filed with the SEC, or the date a
      post-effective amendment to the Registration Statement becomes effective under
      the Securities Act, or the date a Subsequent Shelf Registration Statement
      becomes effective under the Securities Act, which supplement, post-effective
      amendment or Subsequent Shelf Registration Statement, as the case may be, names
      as selling securityholders, in such a manner as to permit them to sell their
      Registrable Securities pursuant to the Registration Statement and Prospectus
      supplement in accordance with applicable law, all Holders entitled as herein
      provided to be so named, in the case of an Event of the type described in clause
      (v)
      above.

    


    Accordingly,
      commencing on (and including) any Event Date and ending on (but excluding)
      the
      next date on which there are no Events that have occurred and are continuing
      (an
“Additional
      Interest Accrual Period”),
      the
      Operating Partnership and the Company agrees to pay, as additional interest
      (“additional
      interest”)
      and
      not as a penalty, an amount (the “Additional
      Interest Amount”)
      at the
      rate described below, payable periodically on each Additional Interest Payment
      Date to Record Holders, to the extent of, for each such Additional Interest
      Payment Date, the unpaid Additional Interest Amount that has accrued to (but
      excluding) such Additional Interest Payment Date (or, if the Additional Interest
      Accrual Period shall have ended prior to such Additional Interest Payment Date,
      the day immediately after the last day of such Additional Interest Accrual
      Period); provided,
      however,
      that
      any unpaid Additional Interest Amount that has accrued with respect to any
      Note,
      or portion thereof, called for redemption on a redemption date, delivered to
      the
      Operating Partnership for repurchase on November 1, 2010, 2015 or 2020 (each
      such date a “repurchase date”) or delivered to the Operating Partnership for
      repurchase on a fundamental change repurchase date, as the case may be, that
      is
      after the close of business on the Record Date relating to such Additional
      Interest Payment Date and before such Additional Interest Payment Date, shall,
      in each case, be instead paid, on such redemption date, repurchase date or
      fundamental change repurchase date, as the case may be, to the Holder who
      submitted such Note or portion thereof for redemption, repurchase or fundamental
      change repurchase, as the case may be. 

    
      
        

      

    

    
    

    The
      Additional Interest Amount shall accrue at a rate per annum equal to one quarter
      of one percent (0.25%) for the first 90-day period beginning on, and including,
      the Event Date and thereafter at a rate per annum equal to one half of one
      percent (0.50%) of the aggregate principal amount of the Notes of which such
      Record Holders were holders of record at the close of business on the applicable
      Record Date; provided,
      however,
      that:

    


    (I) unless
      there shall be a default in the payment of any Additional Interest Amount,
      no
      Additional Interest Amounts shall accrue as to any Registrable Security from
      and
      after the earlier of (x) the date such security is no longer a Registrable
      Security, (y) the date, and to the extent, such Note is exchanged for cash
      and,
      if applicable, shares of Common Stock in accordance with the Indenture and
      (z)
      the expiration of the Effectiveness Period;

    


    (II) only
      those Holders (or their subsequent transferees) failing to be named as selling
      securityholders in the manner prescribed in Section 2(e)(v)
      above
      shall be entitled to receive any Additional Interest Amounts that have accrued
      solely with respect to an Event of the type described in Section 2(e)(v)
      above
      (it being understood that this clause (II) shall not impair any right of any
      Holder to receive Additional Interest Amounts that have accrued with respect
      to
      an Event other than an Event of the type described in Section 2(e)(v)
      above);

    


    (III) only
      those Holders (or their subsequent transferees) whose delivery of a Notice
      and
      Questionnaire gave rise to the obligation of the Company, pursuant to Section
      2(d)(i),
      to
      file and, if applicable, make effective under the Securities Act the supplement,
      post-effective amendment or Subsequent Shelf Registration Statement referred
      to
      in Section 2(e)(iii)
      above
      shall be entitled to receive any Additional Interest Amounts that have accrued
      solely with respect to an Event of the type described in Section 2(e)(iii)
      above
      (it being understood that this clause (III) shall not impair any right of any
      Holder to receive Additional Interest Amounts that have accrued with respect
      to
      an Event other than an Event of the type described in Section 2(e)(iii)
      above);
      and

    


    (IV) if
      a Note
      ceases to be outstanding during an Additional Interest Accrual Period for which
      an Additional Interest Amount would be payable with respect to such Note, then
      the Additional Interest Amount payable hereunder with respect to such Note
      shall
      be prorated on the basis of the number of full days such Note is outstanding
      during such Additional Interest Accrual Period.

    


    Except
      as
      provided in the final paragraph of this Section 2(e),
      (i) the
      rate of accrual of the Additional Interest Amount with respect to any period
      shall not exceed the rate provided for in this Section 2(e)
      notwithstanding the occurrence of multiple concurrent Events and (ii) following
      the cure of all Events requiring the payment by the Company of Additional
      Interest Amounts to the Holders pursuant to this Section, the accrual of
      Additional Interest Amounts shall cease (without in any way limiting the effect
      of any subsequent Event requiring the payment of Additional Interest Amounts
      by
      the Company). 

    
      
        

      

    

    
    

    All
      installments of additional interest shall be paid by wire transfer of
      immediately available funds to the account specified by the Notice Holder or,
      if
      no such account is specified, by mailing a check to such Notice Holder’s address
      shown in the register of the registrar for the Notes or for the Underlying
      Common Stock, as the case may be.

    


    All
      of
      the Company’s obligations set forth in this Section 2(e)
      that are
      outstanding with respect to any Registrable Security at the time such
      Registrable Security ceases to be a Registrable Security shall survive until
      such time as all such obligations with respect to such security have been
      satisfied in full (notwithstanding termination of this Agreement pursuant to
      Section 9(n)).

    


    The
      parties hereto agree that the additional interest provided for in this Section
      2(e)
      constitutes a reasonable estimate of the damages in respect of the Notes that
      may be incurred by Holders of the Notes by reason of an Event, including,
      without limitation, the failure of a Shelf Registration Statement to be filed,
      become effective under the Securities Act, amended or replaced to include the
      names of all Notice Holders or available for effecting resales of Registrable
      Securities in accordance with the provisions hereof.

    


    If
      any
      Additional Interest Amounts are not paid when due, then, to the extent permitted
      by law, such overdue Additional Interest Amounts, if any, shall bear interest,
      compounded semi-annually, until paid at the rate of interest payable with
      respect to overdue amounts on the Notes pursuant to Section 2.03 of the
      Indenture.

    


    (f)  The
      Trustee shall be entitled, on behalf of Holders, to seek any available remedy
      for the enforcement of this Agreement, including for the payment of any
      Additional Interest Amount.

    


    3.  Registration
      Procedures.
      In
      connection with the registration obligations of the Company under Section
2
      hereof,
      the Operating Partnership and the Company shall:

    


    (a)  Prepare
      and file with the SEC a Shelf Registration Statement or Shelf Registration
      Statements on Form S-11 or Form S-3 or any other appropriate form under the
      Securities Act available for the sale of the Registrable Securities by the
      Holders thereof in accordance with the intended method or methods of
      distribution thereof, and use their reasonable best efforts to cause each such
      Shelf Registration Statement to become effective under the Securities Act and
      remain effective under the Securities Act as provided herein; provided,
      that,
      before filing any Shelf Registration Statement or Prospectus or any amendments
      or supplements thereto with the SEC, the Operating Partnership and the Company
      shall furnish to the Initial Purchasers and counsel for the Holders and for
      the
      Initial Purchasers (or, if applicable, separate counsel for the Holders) copies
      of all such documents proposed to be filed and reflect in each such document
      when so filed with the SEC such comments as the Initial Purchasers or such
      counsel reasonably shall propose within three (3) Business Days of the delivery
      of such copies to the Initial Purchasers and such counsel.

    
      
        

      

    

    
    

    (b)  Prepare
      and file with the SEC such amendments and post-effective amendments to each
      Shelf Registration Statement as may be necessary to keep such Shelf Registration
      Statement or Subsequent Shelf Registration Statement continuously effective
      until the expiration of the Effectiveness Period; cause the related Prospectus
      to be supplemented by any required Prospectus supplement and, as so
      supplemented, to be filed with the SEC pursuant to Rule 424 (or any similar
      provisions then in force) under the Securities Act; and comply with the
      provisions of the Securities Act applicable to them with respect to the
      disposition of all securities covered by each Shelf Registration Statement
      during the Effectiveness Period in accordance with the intended methods of
      disposition by the sellers thereof set forth in such Shelf Registration
      Statement as so amended or such Prospectus as so supplemented.

    


    (c)  As
      promptly as practicable, give notice to the Notice Holders, the Initial
      Purchasers and counsel for the Holders and for the Initial Purchasers (or,
      if
      applicable, separate counsel for the Holders):

    


    (i)  when
      any
      Prospectus, Prospectus supplement, Shelf Registration Statement or
      post-effective amendment to a Shelf Registration Statement has been filed with
      the SEC and, with respect to a Shelf Registration Statement or any
      post-effective amendment, when the same has become effective under the
      Securities Act;

    


    (ii)  of
      any
      request, following the effectiveness of a Shelf Registration Statement under
      the
      Securities Act, by the SEC or any other governmental authority for amendments
      or
      supplements to such Shelf Registration Statement or the related Prospectus
      or
      for additional information;

    


    (iii)  of
      the
      issuance by the SEC or any other governmental authority of any stop order
      suspending the effectiveness of any Shelf Registration Statement or the
      initiation or threatening of any proceedings for that purpose;

    


    (iv)  of
      the
      receipt by the Company or its legal counsel of any notification with respect
      to
      the suspension of the qualification or exemption from qualification of any
      of
      the Registrable Securities for sale in any jurisdiction or the initiation or
      threatening of any proceeding for such purpose;

    


    (v)  after
      the
      effective date of any Shelf Registration Statement filed with the SEC pursuant
      to this Agreement, of the occurrence of (but not the nature of or details
      concerning) a Material Event; and

    


    (vi)  of
      the
      determination by the Company and the Operating Partnership that a post-effective
      amendment to a Shelf Registration Statement or a Subsequent Shelf Registration
      Statement will be filed with the SEC, which notice may, at the discretion of
      the
      Company and the Operating Partnership (or as required pursuant to Section
3(i)),
      state
      that it constitutes a Suspension Notice, in which event the provisions of
      Section 3(i)
      shall
      apply.

    
      
        

      

    

    
    

    (d)  Use
      their
      reasonable best efforts to (i) prevent the issuance of, and, if issued, to
      obtain the withdrawal of, any order suspending the effectiveness of a Shelf
      Registration Statement and (ii) obtain the lifting of any suspension of the
      qualification (or exemption from qualification) of any of the Registrable
      Securities for sale in any jurisdiction in which they have been qualified for
      sale, in either case at the earliest possible moment, and provide prompt notice
      to each Notice Holder and the Initial Purchasers, and counsel for the Holders
      and for the Initial Purchasers (or, if applicable, separate counsel for the
      Holders), of the withdrawal or lifting of any such order or
      suspension.

    


    (e)  If
      requested by the Initial Purchasers or any Notice Holder, as promptly as
      practicable incorporate in a Prospectus supplement or a post-effective amendment
      to a Shelf Registration Statement such information as the Initial Purchasers,
      such Notice Holder or counsel for the Holders and for the Initial Purchasers
      (or, if applicable, separate counsel for the Holders) shall determine to be
      required to be included therein by applicable law and make any required filings
      of such Prospectus supplement or such post-effective amendment; provided,
      however,
      that
      neither the Operating Partnership nor the Company shall be required to take
      any
      actions under this Section 3(e)
      that, in
      the written opinion of their respective counsel, are not in compliance with
      applicable law.

    


    (f)  As
      promptly as practicable, furnish to each Notice Holder, counsel for the Holders
      and for the Initial Purchasers (or, if applicable, separate counsel for the
      Holders) and the Initial Purchasers, without charge, at least one (1) conformed
      copy of each Shelf Registration Statement and each amendment thereto, including
      financial statements but excluding schedules, all documents incorporated or
      deemed to be incorporated therein by reference and all exhibits (unless
      requested in writing to the Company by such Notice Holder, such counsel or
      the
      Initial Purchasers).

    


    (g)  During
      the Effectiveness Period, deliver to each Notice Holder, counsel for the Holders
      and for the Initial Purchasers (or, if applicable, separate counsel for the
      Holders) and the Initial Purchasers, in connection with any sale of Registrable
      Securities pursuant to a Shelf Registration Statement, without charge, as many
      copies of the Prospectus or Prospectuses relating to such Registrable Securities
      (including each preliminary prospectus) and any amendment or supplement thereto
      as such Notice Holder or the Initial Purchasers may reasonably request; and
      the
      Operating Partnership and the Company hereby consent (except during such periods
      that a Suspension Notice is outstanding and has not been revoked) to the use
      of
      such Prospectus and each amendment or supplement thereto by each Notice Holder,
      in connection with any offering and sale of the Registrable Securities covered
      by such Prospectus or any amendment or supplement thereto in the manner set
      forth therein.


    
      
        
        

      

      
        
        

        
          

        

      

    

    (h)  Prior
      to
      any public offering of the Registrable Securities pursuant to a Shelf
      Registration Statement, use their reasonable best efforts to register or qualify
      or cooperate with the Notice Holders in connection with the registration or
      qualification (or exemption from such registration or qualification) of such
      Registrable Securities for offer and sale under the securities or Blue Sky
      laws
      of such jurisdictions within the United States as any Notice Holder reasonably
      requests in writing (which request may be included in the Notice and
      Questionnaire); use their reasonable best efforts to keep each such registration
      or qualification (or exemption therefrom) effective during the Effectiveness
      Period in connection with such Notice Holder’s offer and sale of Registrable
      Securities pursuant to such registration or qualification (or exemption
      therefrom) and do any and all other acts or things reasonably necessary or
      advisable to enable the disposition in such jurisdictions of such Registrable
      Securities in the manner set forth in the relevant Shelf Registration Statement
      and the related Prospectus; provided,
      however,
      that
      neither the Operating Partnership nor the Company will be required to (i)
      qualify generally to do business in any jurisdiction where it is not then so
      qualified, or (ii) take any action that would subject it to general service
      of
      process in suits, other than those arising out of the offering or sale of
      Registrable Securities or arising in connection with this Agreement, in any
      jurisdiction where it is not now so subject.

    


    (i)  Upon:
      (A) the
      occurrence or existence of any pending corporate development (a “Material
      Event”)
      that,
      in the reasonable discretion of the Company and the Operating Partnership,
      makes
      it appropriate to suspend the availability of any Shelf Registration Statement
      and the related Prospectus; (B) the issuance by the SEC of a stop order
      suspending the effectiveness of any Shelf Registration Statement or the
      initiation of proceedings with respect to any Shelf Registration Statement
      under
      Section 8(d) or 8(e) of the Securities Act; or (C) the occurrence of any event
      or the existence of any fact as a result of which any Shelf Registration
      Statement shall contain any untrue statement of a material fact or omit to
      state
      any material fact required to be stated therein or necessary to make the
      statements therein not misleading, or any Prospectus shall contain any untrue
      statement of a material fact or omit to state any material fact necessary in
      order to make the statements therein, in the light of the circumstances under
      which they were made, not misleading,

    


    (i)  in
      the
      case of clause (A) or (C) above, subject to the next sentence, as promptly
      as
      practicable, prepare and file, if necessary pursuant to applicable law, a
      post-effective amendment to such Shelf Registration Statement or a supplement
      to
      such Prospectus or any document incorporated therein by reference or file any
      other required document that would be incorporated by reference into such Shelf
      Registration Statement and Prospectus so that such Shelf Registration Statement
      does not contain any untrue statement of a material fact or omit to state any
      material fact required to be stated therein or necessary to make the statements
      therein not misleading, and so that such Prospectus does not contain any untrue
      statement of a material fact or omit to state any material fact necessary in
      order to make the statements therein, in the light of the circumstances under
      which they were made, not misleading, as thereafter delivered to the purchasers
      of the Registrable Securities being sold thereunder, and, in the case of a
      post-effective amendment to a Shelf Registration Statement, subject to the
      next
      sentence, use their reasonable best efforts to cause it to become effective
      under the Securities Act as promptly as practicable, and

    
      
        

      

    

    
    

    (ii)  give
      notice to the Notice Holders and counsel for the Holders and for the Initial
      Purchasers (or, if applicable, separate counsel for the Holders) and to the
      Initial Purchasers that the availability of the Shelf Registration Statement
      is
      suspended (a “Suspension
      Notice”)
      (and,
      upon receipt of any Suspension Notice, each Notice Holder agrees not to sell
      any
      Registrable Securities pursuant to such Shelf Registration Statement until
      such
      Notice Holder’s receipt of copies of the supplemented or amended Prospectus
      provided for in clause (i)
      above or
      until such Notice Holder is advised in writing by the Company that the
      Prospectus may be used).

    


    The
      Operating Partnership and the Company will use their reasonable best efforts
      to
      ensure that the use of the Prospectus may be resumed (x) in the case of clause
      (A) above, as soon as, in the reasonable discretion of the Operating Partnership
      and the Company, such suspension is no longer appropriate, (y) in the case
      of
      clause (B) above, as promptly as is practicable, and (z) in the case of clause
      (C) above, as soon as, in the reasonable judgment of the Operating Partnership
      and the Company, the Shelf Registration Statement does not contain any untrue
      statement of a material fact or omit to state any material fact required to
      be
      stated therein or necessary to make the statements therein not misleading and
      the Prospectus does not contain any untrue statement of a material fact or
      omit
      to state any material fact necessary in order to make the statements therein,
      in
      the light of the circumstances under which they were made, not misleading.
      The
      period during which the availability of the Shelf Registration Statement and
      any
      Prospectus may be suspended (the “Suspension
      Period”)
      without the Operating Partnership and the Company incurring any obligation
      to
      pay additional interest pursuant to Section 2(e)
      shall
      not exceed thirty (30) days in the aggregate in any three (3) month period
      or
      ninety (90) days in the aggregate in any twelve (12) month period.
      The
      Effectiveness Period shall be extended by the number of days from and including
      the date of the giving of the Suspension Notice to and including the date on
      which the Notice Holder received copies of the supplemented or amended
      Prospectus provided in clause (i)
      above,
      or the date on which it is advised in writing by the Operating Partnership
      and
      the Company that the Prospectus may be used and has received copies of any
      additional or supplemental filings that are incorporated or deemed incorporated
      by reference in such Prospectus.

    


    (j)  Make
      available for inspection during normal business hours by representatives for
      the
      Notice Holders and any underwriters participating in any disposition pursuant
      to
      any Shelf Registration Statement and any broker-dealers, attorneys and
      accountants retained by such Notice Holders or any such underwriters, all
      relevant financial and other records and pertinent corporate documents and
      properties of the Operating Partnership, the Company and their respective
      subsidiaries, and cause the appropriate officers, directors and employees of
      the
      Operating Partnership, the Company and their respective subsidiaries to make
      available for inspection during normal business hours all relevant information
      reasonably requested by such representatives for the Notice Holders, or any
      such
      underwriters, broker-dealers, attorneys or accountants in connection with such
      disposition, in each case as is customary for similar “due diligence”
examinations;
      

    
      
        

      

    

    
    

    provided,
      however,
      that
      such persons shall, at the Company’s request, first agree in writing with the
      Company that any information that is reasonably and in good faith designated
      by
      the Company in writing as confidential at the time of delivery of such
      information shall be kept confidential by such persons and shall be used solely
      for the purposes of exercising rights under this Agreement, unless (i)
      disclosure of such information is required by court or administrative order
      or
      is necessary to respond to inquiries of governmental or regulatory authorities,
      (ii) disclosure of such information is required by law (including any disclosure
      requirements pursuant to federal securities laws in connection with the filing
      of any Shelf Registration Statement or the use of any Prospectus referred to
      in
      this Agreement) or necessary to defend or prosecute a claim brought against
      or
      by any such persons (e.g.,
      to
      establish a “due diligence” defense), (iii) such information becomes generally
      available to the public other than as a result of a disclosure or failure to
      safeguard by any such person or (iv) such information becomes available to
      any
      such person from a source other than the Operating Partnership or the Company
      and such source is not bound by a confidentiality agreement or is not otherwise
      under a duty of trust to either the Operating Partnership or the Company;
provided further,
      that
      the foregoing inspection and information gathering shall, to the greatest extent
      possible, be coordinated on behalf of all the Notice Holders and the other
      parties entitled thereto by the counsel, referred to in Section 5,
      for the
      Holders in connection with Shelf Registration Statements.

    


    (k)  Comply
      with all applicable rules and regulations of the SEC; and make generally
      available to their respective securityholders earnings statements (which need
      not be audited) satisfying the provisions of Section 11(a) of the Securities
      Act
      and Rule 158 thereunder (or any similar rule promulgated under the Securities
      Act), which statements shall cover a period of twelve (12) months commencing
      on
      the first day of the first fiscal quarter of the Operating Partnership or the
      Company, as applicable, commencing after the effective date of each Shelf
      Registration Statement (within the meaning of Rule 158(c) under the Securities
      Act), and which statements shall be so made generally available to the Operating
      Partnership’s or the Company’s securityholders, as the case may be, no later
      than forty (40) days after the end of the applicable twelve (12) month period
      if
      such period ends on or after December 15, 2004 and before December 15, 2006
      (or
      thirty five (35) days after the end of the applicable twelve (12) month period
      if such period ends on or after December 15, 2006) (or, if such earnings
      statement is filed with the SEC on Form 10-K under the Exchange Act, (i) seventy
      five (75) days after the end of the applicable twelve (12) month period if
      such
      period ends before December 15, 2005 or (ii) sixty (60) days after the end
      of
      the applicable twelve (12) month period if such period ends on or after December
      15, 2005).

    


    (l)  Cooperate
      with each Notice Holder to facilitate the timely preparation and delivery of
      certificates representing Registrable Securities sold pursuant to a Shelf
      Registration Statement, which certificates shall not bear any restrictive
      legends, and cause such Registrable Securities to be in such denominations
      as
      are permitted by the Indenture and registered in such names as such Notice
      Holder may request in writing at least two (2) Business Days prior to any sale
      of such Registrable Securities.

    
      
        

      

    

    (m)  Provide
      a
      CUSIP number for all Registrable Securities covered by a Shelf Registration
      Statement not later than the effective date of the Initial Shelf Registration
      Statement and provide the Trustee and the transfer agent for the Common Stock
      with certificates for the Registrable Securities that are in a form eligible
      for
      deposit with The Depository Trust Company.

    


    (n)  Cooperate
      and assist in any filings required to be made with the National Association
      of
      Securities Dealers, Inc.

    


    (o)  Take
      all
      actions and enter into such customary agreements (including, if requested,
      an
      underwriting agreement in customary form) as are necessary, or reasonably
      requested by the Holders of a majority of the Registrable Securities being
      sold,
      in order to expedite or facilitate disposition of such Registrable Securities;
      and in such connection, whether or not an underwriting agreement is entered
      into
      and whether or not the registration is an underwritten
      registration:

    


    (i)  the
      Operating Partnership and the Company shall make such representations and
      warranties to the Holders of such Registrable Securities and the underwriters,
      if any, in form, substance and scope as would be customarily made by the
      Operating Partnership and the Company to underwriters in similar offerings
      of
      securities;

    


    (ii)  the
      Operating Partnership and the Company shall obtain opinions of counsel of the
      Operating Partnership and the Company and updates thereof (which counsel and
      opinions (in form, scope and substance) shall be reasonably satisfactory to
      the
      Managing Underwriters, if any, and to the counsel to the Holders of the
      Registrable Securities being sold) addressed to each selling Holder and the
      underwriters, if any, covering the matters that would be customarily covered
      in
      opinions requested in sales of securities or underwritten
      offerings;

    


    (iii)  the
      Operating Partnership and the Company shall obtain “comfort letters” and updates
      thereof from the Operating Partnership’s and the Company’s independent certified
      public accountants (and, if necessary, any other independent certified public
      accountants of any subsidiary of the Operating Partnership or the Company or
      of
      any business acquired by the Operating Partnership or the Company for which
      financial statements are, or are required to be, included in any Shelf
      Registration Statement) addressed to the underwriters, if any, and the selling
      Holders of Registrable Securities (to the extent consistent with Statement
      on
      Auditing Standards No. 72 of the American Institute of Certified Public
      Accounts), such letters to be in customary form and covering matters of the
      type
      that would customarily be covered in “comfort letters” to underwriters in
      connection with similar underwritten offerings;

    


    (iv)  the
      Operating Partnership and the Company shall, if an underwriting agreement is
      entered into, cause any such underwriting agreement to contain indemnification
      provisions and procedures substantially equivalent to the indemnification
      provisions and procedures set forth in Section 6
      hereof
      with respect to the underwriters and all other parties to be indemnified
      pursuant to said Section; and

    
      
        

      

    

    
    

    (v)  the
      Operating Partnership and the Company shall deliver such documents and
      certificates as may be reasonably requested and as are customarily delivered
      in
      similar offerings to the holders of a majority of the Registrable Securities
      being sold and to the Managing Underwriters, if any;

    


    the
      above
      to be done at each closing under any underwriting or similar agreement as and
      to
      the extent required thereunder.

    


    (p)  Cause
      the
      Indenture to be qualified under the TIA not later than the effective date of
      the
      Initial Shelf Registration Statement; and, in connection therewith, cooperate
      with the Trustee to effect such changes to the Indenture as may be required
      for
      the Indenture to be so qualified in accordance with the terms of the TIA and
      execute, and use their reasonable best efforts to cause the Trustee to execute,
      all documents as may be required to effect such changes, and all other forms
      and
      documents required to be filed with the SEC to enable the Indenture to be so
      qualified in a timely manner.

    


    (q)  Cause
      the
      Underlying Common Stock to be listed on the New York Stock
      Exchange.

    


    (r)  In
      the
      event that any broker-dealer registered under the Exchange Act shall underwrite
      any Registrable Securities or participate as a member of an underwriting
      syndicate or selling group or “participate in a public offering” (within the
      meaning of the Conduct Rules (the “NASD
      Rules”)
      of the
      National Association of Securities Dealers, Inc.) thereof, whether as a Holder
      of such Registrable Securities or as an underwriter, a placement or sales agent
      or a broker or dealer in respect thereof, or otherwise, the Operating
      Partnership and the Company will assist such broker-dealer in complying with
      the
      requirements of such NASD Rules, including, without limitation, by: (i) if
      such
      NASD Rules, including NASD Rule 2720, shall so require, engaging a “qualified
      independent underwriter” (as defined in NASD Rule 2720) to participate in the
      preparation of the Shelf Registration Statement relating to such Registrable
      Securities, to exercise usual standards of due diligence in respect thereof
      and,
      if any portion of the offering contemplated by such Shelf Registration Statement
      is an underwritten offering or is made through a placement or sales agent,
      to
      recommend the yield or price, as the case may be, of such Registrable
      Securities; (ii) indemnifying any such qualified independent underwriter to
      the
      extent of the indemnification of underwriters provided in Section 6
      hereof;
      and (iii) providing such information to such broker-dealer as may be required
      in
      order for such broker-dealer to comply with the requirements of the NASD
      Rules.

    


    4.  Holder’s
      Obligations.
      Each
      Holder agrees, by acquisition of the Registrable Securities, that no Holder
      of
      Registrable Securities shall be entitled to sell any of such Registrable
      Securities pursuant to a Shelf Registration Statement or to receive a Prospectus
      relating thereto, unless such Holder has furnished the Operating Partnership
      and
      the Company 

    
      
        

      

    

    with
      a
      Notice and Questionnaire as required pursuant to Section 2(d)
      hereof
      (including the information required to be included in such Notice and
      Questionnaire) and the information set forth in the next sentence. Each Notice
      Holder agrees promptly to furnish to the Operating Partnership and the Company
      all information required to be disclosed in order to make the information
      previously furnished to the Company by such Notice Holder not misleading and
      any
      other information regarding such Notice Holder and the distribution of such
      Registrable Securities as the Operating Partnership and the Company may from
      time to time reasonably request. Any sale of any Registrable Securities by
      any
      Holder shall constitute a representation and warranty by such Holder that the
      information relating to such Holder and its plan of distribution is as set
      forth
      in the Prospectus delivered by such Holder in connection with such disposition,
      that such Prospectus does not as of the time of such sale contain any untrue
      statement of a material fact relating to or provided by such Holder or its
      plan
      of distribution and that such Prospectus does not as of the time of such sale
      omit to state any material fact relating to or provided by such Holder or its
      plan of distribution necessary in order to make the statements in such
      Prospectus, in the light of the circumstances under which they were made, not
      misleading.

    


    5.  Registration
      Expenses.
      The
      Operating Partnership and the Company shall bear all fees and expenses incurred
      in connection with the performance by the Operating Partnership and Company
      of
      their obligations under Section 2
      and
      Section 3
      of this
      Agreement whether or not any of the Shelf Registration Statements are filed
      or
      declared effective under the Securities Act. Such fees and expenses
      (“Registration
      Expenses”)
      shall
      include, without limitation, (i) all registration and filing fees and expenses
      (including, without limitation, fees and expenses (x) with respect to filings
      required to be made with the National Association of Securities Dealers, Inc.
      and (y) of compliance with federal securities laws and state securities or
      Blue
      Sky laws (including, without limitation, reasonable fees and disbursements
      of
      counsel for the Holders in connection with Blue Sky qualifications of the
      Registrable Securities under the laws of such jurisdictions as the Notice
      Holders of a majority of the Registrable Securities being sold pursuant to
      a
      Shelf Registration Statement may designate), (ii) all printing expenses
      (including, without limitation, expenses of printing certificates for
      Registrable Securities in a form eligible for deposit with The Depository Trust
      Company and printing Prospectuses), (iii) all duplication and mailing expenses
      relating to copies of any Shelf Registration Statement or Prospectus delivered
      to any Holders hereunder, (iv) all fees and disbursements of counsel for the
      Operating Partnership and the Company, (v) all fees and disbursements of the
      Trustee and its counsel and of the registrar and transfer agent for the Common
      Stock, and (vi) Securities Act liability insurance obtained by the Operating
      Partnership and the Company in their sole discretion. In addition, the Operating
      Partnership and the Company shall pay their own internal expenses (including,
      without limitation, all salaries and expenses of officers and employees
      performing legal or accounting duties), the expense of any annual audit or
      quarterly review, the fees and expenses incurred in connection with the listing
      by the Company of the Registrable Securities on any securities exchange or
      quotation system on which similar securities of the Company are then listed
      and
      the fees and expenses of any person, including, without limitation, special
      experts, retained by the Company.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    6.  Indemnification,
      Contribution.

    


    (a)  The
      Operating Partnership and the Company, jointly and severally, agree to
      indemnify, defend and hold harmless each Initial Purchaser, each Holder, each
      person (a “Controlling
      Person”),
      if
      any, who controls any Initial Purchaser or Holder within the meaning of Section
      15 of the Securities Act or Section 20 of the Exchange Act and the respective
      officers, directors, partners, employees, representatives and agents of any
      Initial Purchaser, the Holders or any Controlling Person (each, an “Indemnified
      Party”),
      from
      and against any loss, damage, expense, liability, claim or any actions in
      respect thereof (including the reasonable cost of investigation) which such
      Indemnified Party may incur or become subject to under the Securities Act,
      the
      Exchange Act or otherwise, insofar as such loss, damage, expense, liability,
      claim or action arises out of or is based upon any untrue statement or alleged
      untrue statement of a material fact contained in any Shelf Registration
      Statement or Prospectus, including any document incorporated by reference
      therein, or in any amendment or supplement thereto or in any preliminary
      prospectus, or arises out of or is based upon any omission or alleged omission
      to state a material fact required to be stated in any Shelf Registration
      Statement or in any amendment or supplement thereto or necessary to make the
      statements therein not misleading, or arises out of or is based upon any
      omission or alleged omission to state a material fact necessary in order to
      make
      the statements made in any Prospectus or in any amendment or supplement thereto
      or in any preliminary prospectus, in the light of the circumstances under which
      such statements were made, not misleading, and the Operating Partnership and
      the
      Company shall, jointly and severally, reimburse, as incurred, the Indemnified
      Parties for any legal or other expenses reasonably incurred by them in
      connection with investigating or defending any such loss, damage, expense,
      liability, claim or action in respect thereof; provided,
      however,
      that
      neither the Operating Partnership nor the Company shall be required to provide
      any indemnification pursuant to this Section 6(a)
      in any
      such case insofar as any such loss, damage, expense, liability, claim or action
      arises out of or is based upon any untrue statement or omission or alleged
      untrue statement or omission of a material fact contained in, or omitted from,
      and in conformity with information furnished in writing by or on behalf of
      an
      Initial Purchaser or a Holder to the Operating Partnership and the Company
      expressly for use in, any Shelf Registration Statement or any Prospectus;
provided further
      that,
      with respect to any untrue statement or omission or alleged untrue statement
      or
      omission made in any preliminary prospectus relating to a Shelf Registration
      Statement, the indemnity agreement contained in this Section 6(a) shall not
      inure to the benefit of any Holder from whom the person asserting any such
      losses, damages, expenses, liabilities, claims or actions purchased the
      Registrable Securities concerned, to the extent that a prospectus relating
      to
      such Registrable Securities was required to be delivered by such Holder under
      the Securities Act in connection with such purchase and any such loss, damage,
      expenses, liability, claim or action of such Holder results from the fact that
      there was not sent or given to such person, at or prior to the written
      confirmation of the sale of such Registrable Securities to such person, at
      or
      prior to the written confirmation of the sale of such Registrable Securities
      to
      such person, a copy of the final prospectus provided the Company had previously
      furnished sufficient copies of such final prospectus to such Holder in a timely
      manner as to reasonably permit such Holder to send or give a copy of such final
      prospectus to such person at or prior to the written confirmation of such sale;
      provided further,
      however,
      that
      this indemnity agreement will be in addition to any liability which the
      Operating Partnership or the Company may otherwise have to such Indemnified
      Party.

    
      
        

      

    

    (b)  Each
      Holder, severally and not jointly, agrees to indemnify, defend and hold harmless
      the Operating Partnership and the Company and their respective directors,
      officers, employees and any person who controls either the Operating Partnership
      or the Company within the meaning of Section 15 of the Securities Act or Section
      20 of the Exchange Act (each, a “Company
      Indemnified Party”)
      from
      and against any loss, damage, expense, liability, claim or any actions in
      respect thereof (including the reasonable cost of investigation) which such
      Company Indemnified Party may incur or become subject to under the Securities
      Act, the Exchange Act or otherwise, insofar as such loss, damage, expense,
      liability, claim or action arises out of or is based upon any untrue statement
      or alleged untrue statement of a material fact contained in, and in conformity
      with information (the “Holder
      Information”)
      furnished in writing by or on behalf of such Holder to the Operating Partnership
      and the Company expressly for use in, any Shelf Registration Statement or
      Prospectus, or arises out of or is based upon any omission or alleged omission
      to state a material fact in connection with such Holder Information required
      to
      be stated in any Shelf Registration Statement or Prospectus or necessary to
      make
      such Holder Information not misleading; and, subject to the limitation set
      forth
      in the immediately preceding clause, each Holder shall reimburse, as incurred,
      the Operating Partnership or the Company, as applicable, for any legal or other
      expenses reasonably incurred by the Operating Partnership or the Company or
      any
      such controlling person in connection with investigating or defending any loss,
      damage, expense, liability, claim or action in respect thereof. This indemnity
      agreement will be in addition to any liability which such Holder may otherwise
      have to the Operating Partnership or the Company or any of its controlling
      persons. In no event shall the liability of any selling Holder of Registrable
      Securities hereunder be greater in amount than the dollar amount of the proceeds
      received by such Holder upon the sale, pursuant to the Shelf Registration
      Statement, of the Registrable Securities giving rise to such indemnification
      obligation.

    


    (c)  If
      any
      action, suit or proceeding (each, a “Proceeding”)
      is
      brought against any person in respect of which indemnity may be sought pursuant
      to either Section 6(a)
      or
      Section 6(b),
      such
      person (the “Indemnified
      Party”)
      shall
      promptly notify the person against whom such indemnity may be sought (the
“Indemnifying
      Party”)
      in
      writing of the institution of such Proceeding and the Indemnifying Party shall
      assume the defense of such Proceeding; provided,
      however,
      that
      the omission to so notify such Indemnifying Party shall not relieve such
      Indemnifying Party from any liability which it may have to such Indemnified
      Party or otherwise. Such Indemnified Party shall have the right to employ its
      own counsel in any such case, but the fees and expenses of such counsel shall
      be
      at the expense of such Indemnified Party unless the employment of such counsel
      shall have been authorized in writing by such Indemnifying Party in connection
      with the defense of such Proceeding or such Indemnifying Party shall not have
      employed counsel to have charge of the defense of such Proceeding within thirty
      (30) days of the receipt of notice thereof or such Indemnified Party shall
      have
      reasonably concluded upon the written advice of counsel that there may be one
      or
      more defenses available to it that are different from, additional to or in
      conflict with those available to such Indemnifying Party 

    
      
        

      

    

     

    (in
      which
      case such Indemnifying Party shall not have the right to direct that portion
      of
      the defense of such Proceeding on behalf of the Indemnified Party, but such
      Indemnifying Party may employ counsel and participate in the defense thereof
      but
      the fees and expenses of such counsel shall be at the expense of such
      Indemnifying Party), in any of which events such reasonable fees and expenses
      shall be borne by such Indemnifying Party and paid as incurred (it being
      understood, however, that such Indemnifying Party shall not be liable for the
      expenses of more than one separate counsel in any one Proceeding or series
      of
      related Proceedings together with reasonably necessary local counsel
      representing the Indemnified Parties who are parties to such action). An
      Indemnifying Party shall not be liable for any settlement of such Proceeding
      effected without the written consent of such Indemnifying Party, but if settled
      with the written consent of such Indemnifying Party, such Indemnifying Party
      agrees to indemnify and hold harmless an Indemnified Party from and against
      any
      loss or liability by reason of such settlement. Notwithstanding the foregoing
      sentence, if at any time an Indemnified Party shall have requested an
      Indemnifying Party to reimburse such Indemnified Party for fees and expenses
      of
      counsel as contemplated by the second sentence of this paragraph, then such
      Indemnifying Party agrees that it shall be liable for any settlement of any
      Proceeding effected without its written consent if (i) such settlement is
      entered into more than sixty (60) Business Days after receipt by such
      Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall
      not have fully reimbursed such Indemnified Party in accordance with such request
      prior to the date of such settlement and (iii) such Indemnified Party shall
      have
      given such Indemnifying Party at least thirty (30) days’ prior notice of its
      intention to settle. No Indemnifying Party shall, without the prior written
      consent of any Indemnified Party, effect any settlement of any pending or
      threatened Proceeding in respect of which such Indemnified Party is or could
      have been a party and indemnity could have been sought hereunder by such
      Indemnified Party, unless such settlement includes an unconditional release
      of
      such Indemnified Party from all liability on claims that are the subject matter
      of such Proceeding and does not include an admission of fault or culpability
      or
      a failure to act by or on behalf of such Indemnified Party.

    


    (d)  If
      the
      indemnification provided for in this Section 6
      is
      unavailable to an Indemnified Party under Section 6(a)
      or
      Section 6(b),
      or
      insufficient to hold such Indemnified Party harmless, in respect of any losses,
      damages, expenses, liabilities, claims or actions referred to therein, then
      each
      applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party,
      shall contribute to the amount paid or payable by such Indemnified Party as
      a
      result of such losses, damages, expenses, liabilities, claims or actions (i)
      in
      such proportion as is appropriate to reflect the relative benefits received
      by
      the Operating Partnership and the Company, on the one hand, and by the Holders
      or the Initial Purchasers, on the other hand, from the offering of the
      Registrable Securities or (ii) if the allocation provided by clause (i) above
      is
      not permitted by applicable law, in such proportion as is appropriate to reflect
      not only the relative benefits referred to in clause (i) above but also the
      relative fault of the Operating Partnership and the Company, on the one hand,
      and of the Holders or the Initial Purchasers, on the other hand, in connection
      with the statements or omissions which resulted in such losses, damages,
      expenses, liabilities, claims or actions, as well as any other relevant
      equitable considerations. 

    
      
        

      

    

    
    

    The
      relative fault of the Operating Partnership and the Company, on the one hand,
      and of the Holders or the Initial Purchasers, on the other hand, shall be
      determined by reference to, among other things, whether the untrue statement
      or
      alleged untrue statement of a material fact or omission or alleged omission
      relates to information supplied by the Operating Partnership and the Company
      or
      by the Holders or the Initial Purchasers and the parties’ relative intent,
      knowledge, access to information and opportunity to correct or prevent such
      statement or omission. The amount paid or payable by a party as a result of
      the
      losses, damages, expenses, liabilities, claims and actions referred to above
      shall be deemed to include any reasonable legal or other fees or expenses
      reasonably incurred by such party in connection with investigating or defending
      any Proceeding.

    


    (e)  The
      Operating Partnership, the Company, the Holders and the Initial Purchasers
      agree
      that it would not be just and equitable if contribution pursuant to this Section
      6
      were
      determined by pro rata allocation or by any other method of allocation which
      does not take account of the equitable considerations referred to in Section
      6(d)
      above.
      Notwithstanding the provisions of this Section 6,
      no
      Holder shall be required to contribute any amount in excess of the amount by
      which the total price at which the Registrable Securities giving rise to such
      contribution obligation and sold by such Holder were offered to the public
      exceeds the amount of any damages which it has otherwise been required to pay
      by
      reason of such untrue or alleged untrue statement or omission or alleged
      omission. No person guilty of fraudulent misrepresentation (within the meaning
      of Section 11(f) of the Securities Act) shall be entitled to contribution from
      any person who was not guilty of such fraudulent misrepresentation. The Holders’
respective obligations to contribute pursuant to this Section 6
      are
      several in proportion to the respective amount of Registrable Securities they
      have sold pursuant to a Shelf Registration Statement, and not joint. The
      remedies provided for in this Section 6
      are not
      exclusive and shall not limit any rights or remedies which may otherwise be
      available to any indemnified party at law or in equity.

    


    (f)  The
      indemnity and contribution provisions contained in this Section 6
      shall
      remain operative and in full force and effect regardless of (i) any termination
      of this Agreement, (ii) any investigation made by or on behalf of any Holder
      or
      the Initial Purchasers or any person controlling any Holder or Initial
      Purchaser, or the Operating Partnership, the Company, or the Operating
      Partnership’s or the Company’s officers or directors or any person controlling
      the Operating Partnership or the Company and (iii) the sale of any Registrable
      Security by any Holder.

    


    7.  Information
      Requirements.

    


    (a)  Each
      of
      the Operating Partnership and the Company covenants that, if at any time before
      the end of the Effectiveness Period it is not subject to the reporting
      requirements of the Exchange Act, it will cooperate with any Holder of
      Registrable Securities and take such further action as any Holder of Registrable
      Securities may reasonably request in writing (including, without limitation,
      making such representations as any such Holder may reasonably request), all
      to
      the extent required from time to time to enable such Holder to sell Registrable
      Securities without registration under 

    
      
        

      

    

    the
      Securities Act within the limitations of the exemptions provided by Rule 144,
      Rule 144A, Regulation S and Regulation D under the Securities Act and
      customarily taken in connection with sales pursuant to such exemptions. Upon
      the
      written request of any Holder, the Operating Partnership or the Company, as
      applicable, shall deliver to such Holder a written statement as to whether
      the
      Operating Partnership or the Company has complied with the reporting
      requirements of the Exchange Act, unless such a statement has been included
      in
      the most recent report of the Operating Partnership or the Company, as the
      case
      may be, filed with the SEC pursuant to Section 13 or Section 15(d) of Exchange
      Act.

    


    (b)  Each
      of
      the Operating Partnership and the Company shall file the reports required to
      be
      filed by it under the Exchange Act and shall comply with all other requirements
      set forth in the instructions to Form S-3 in order to allow it to be eligible
      to
      file registration statements on Form S-3.

    


    8.  Underwritten
      Registrations.

    


    (a)  If
      any of
      the Registrable Securities covered by the Shelf Registration Statement are
      to be
      offered and sold in an underwritten offering, the investment banker or
      investment bankers and manager or managers that will administer the offering
      (“Managing
      Underwriters”)
      shall
      be selected by the holders of a majority of such Registrable Securities to
      be
      included in such offering.

    


    (b)  No
      person
      may participate in any underwritten registration hereunder unless such person
      (i) agrees to sell such person’s Registrable Securities on the basis reasonably
      provided in any underwriting arrangements approved by the persons entitled
      hereunder to approve such arrangements and (ii) completes and executes all
      questionnaires, powers of attorney, indemnities, underwriting agreements and
      other documents reasonably required under the terms of such underwriting
      arrangements.

    


    9.  Miscellaneous.

    


    (a)  Remedies.
      Each of
      the Operating Partnership and the Company acknowledges and agrees that any
      failure by it to comply with its obligations under this Agreement may result
      in
      material irreparable injury to the Initial Purchasers and the Holders for which
      there is no adequate remedy at law, that it will not be possible to measure
      damages for such injuries precisely and that, in the event of any such failure,
      any Initial Purchaser or Holder may obtain such relief as may be required to
      specifically enforce the Operating Partnership’s or the Company’s obligations
      under this Agreement. Each of the Operating Partnership and the Company further
      agrees to waive the defense in any action for specific performance that a remedy
      at law would be adequate. Notwithstanding the foregoing two sentences, this
      Section 9(a)
      shall
      not apply to the subject matter referred to in and contemplated by Section
      2(e).

    
      
        

      

    

    (b)  No
      Conflicting Agreements.
      Each of
      the Operating Partnership and the Company is not, as of the date hereof, a
      party
      to, nor shall it, on or after the date of this Agreement, enter into, any
      agreement with respect to its securities that conflicts with the rights granted
      to the Holders in this Agreement. Each of the Operating Partnership and the
      Company represents and warrants that the rights granted to the Holders hereunder
      do not in any way conflict with the rights granted to the holders of the
      Operating Partnership’s or the Company’s securities under any other agreements.
      Neither the Operating Partnership nor the Company will take any action with
      respect to the Registrable Securities which would adversely affect the ability
      of any of the Holders to include such Registrable Securities in a registration
      undertaken pursuant to this Agreement. Each of the Operating Partnership and
      the
      Company represents and covenants that it has not granted, and shall not grant,
      to any of its security holders (other than the Holders in such capacity) the
      right to include any of its securities in any Shelf Registration Statement
      filed
      pursuant to this Agreement.

    


    (c)  Amendments
      and Waivers.
      The
      provisions of this Agreement, including the provisions of this sentence, may
      not
      be amended, modified or supplemented, and waivers or consents to departures
      from
      the provisions hereof may not be given, unless the Operating Partnership and
      the
      Company has obtained the written consent of Holders of a majority of outstanding
      Registrable Securities; provided,
      however,
      that,
      no consent is necessary from any of the Holders in the event that this Agreement
      is amended, modified or supplemented for the purpose of curing any ambiguity,
      defect or inconsistency that does not adversely affect the rights of any
      Holders. Notwithstanding the foregoing, a waiver or consent to depart from
      the
      provisions hereof with respect to a matter that relates exclusively to the
      rights of Holders of Registrable Securities whose securities are being sold
      pursuant to a Shelf Registration Statement and that does not directly or
      indirectly affect the rights of other Holders of Registrable Securities may
      be
      given by Holders of at least a majority of the Registrable Securities being
      sold
      by such Holders pursuant to such Shelf Registration Statement; provided,
      however,
      that
      the provisions of this sentence may not be amended, modified, or supplemented
      except in accordance with the provisions of the immediately preceding sentence.
      Each Holder of Registrable Securities outstanding at the time of any such
      amendment, modification, supplement, waiver or consent or thereafter shall
      be
      bound by any such amendment, modification, supplement, waiver or consent
      effected pursuant to this Section 9(c),
      whether
      or not any notice, writing or marking indicating such amendment, modification,
      supplement, waiver or consent appears on the Registrable Securities or is
      delivered to such Holder.

    


    (d)  Notices.
      All
      notices and other communications provided for or permitted hereunder shall
      be
      made in writing by hand delivery, by telecopier, by courier guaranteeing
      overnight delivery or by first-class mail, return receipt requested, and shall
      be deemed given (A) when made, if made by hand delivery, (B) upon confirmation,
      if made by telecopier, (C) one (1) Business Day after being deposited with
      such
      courier, if made by overnight courier or (D) on the date indicated on the notice
      of receipt, if made by first-class mail, to the parties as follows:

    


    (i)  if
      to a
      Holder, at the most current address given by such Holder to the Operating
      Partnership and the Company in a Notice and Questionnaire or any amendment
      thereto;

    
      
        

      

    

     

    (ii)  if
      to the
      Operating Partnership or the Company, to:

    


    Essex
      Portfolio, L.P.

    Essex
      Property Trust, Inc.

    925
      East
      Meadow Drive

    Palo
      Alto, California 94303

    Attention:
      Chief Financial Officer

    Telecopy
      No.: (650) 494-8743

    


    (iii)  if
      to the
      Initial Purchasers, to:

    


    c/o
      UBS
      Securities LLC

    299
      Park
      Avenue

    New
      York,
      New York 10171

    Attention:
      Syndicate Department

    Telecopy
      No.: (212) 713-1205

    


    with
      a
      copy to (for informational purposes only):

    


    UBS
      Securities LLC

    299
      Park
      Avenue

    New
      York,
      New York 10171

    Attention:
      Legal Department

    Telecopy
      No.: (212) 821-4042

    


    and

    


    UBS
      Securities LLC

    677
      Washington Boulevard

    Stamford,
      Connecticut 06901

    Attention:
      Syndicate Department

    Telecopy
      No.: (203) 719-0683

    


    or
      to
      such other address as such person may have furnished to the other persons
      identified in this Section 9(d)
      in
      writing in accordance herewith.

    


    (e)  Majority
      of Registrable Securities.
      For
      purposes of determining what constitutes holders of a majority of Registrable
      Securities, as referred to in this Agreement, a majority shall constitute a
      majority in aggregate principal amount of Registrable Securities, treating
      each
      relevant holder of shares of Underlying Common Stock of the Notes as a holder
      of
      the aggregate principal amount of Notes in respect of which such Common Stock
      was issued.

    


    (f)  Approval
      of Holders.
      Whenever the consent or approval of Holders of a specified percentage of
      Registrable Securities is required hereunder,

    
      
        

      

    

     Registrable
      Securities held by the Operating Partnership, the Company or their respective
      “affiliates” (as such term is defined in Rule 405 under the Securities Act)
      (other than the Initial Purchasers or subsequent Holders of Registrable
      Securities, if the Initial Purchasers or such subsequent Holders are deemed
      to
      be such affiliates solely by reason of their holdings of such Registrable
      Securities) shall not be counted in determining whether such consent or approval
      was given by the Holders of such required percentage.

    


    (g)  Third
      Party Beneficiaries.
      The
      Holders shall be third party beneficiaries to the agreements made hereunder
      between the Operating Partnership and the Company, on the one hand, and the
      Initial Purchasers, on the other hand, and shall have the right to enforce
      such
      agreements directly to the extent they may deem such enforcement necessary
      or
      advisable to protect their rights or the rights of Holders hereunder. The
      Trustee shall be entitled to the rights granted to it pursuant to this
      Agreement.

    


    (h)  Successors
      and Assigns.
      Any
      person who purchases any Registrable Security from any Initial Purchaser or
      from
      any Holder shall be deemed, for purposes of this Agreement, to be an assignee
      of
      such Initial Purchaser or such Holder, as the case may be. This Agreement shall
      inure to the benefit of and be binding upon the respective successors and
      assigns of each of the parties hereto and shall inure to the benefit of and
      be
      binding upon each Holder of any Registrable Security.

    


    (i)  Counterparts.
      This
      Agreement 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 original and all of which taken together shall constitute one and the
      same
      agreement.

    


    (j)  Headings.
      The
      headings in this Agreement are for convenience of reference only and shall
      not
      limit or otherwise affect the meaning hereof.

    


    (k)  Governing
      Law.
      THIS
      AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
      OF
      THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402
      OF THE NEW YORK GENERAL OBLIGATION LAW AND NEW YORK CIVIL PRACTICE LAW AND
      RULES
      327(b).

    


    (l)  Severability.
      If any
      term, provision, covenant or restriction of this Agreement is held to be
      invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
      covenants and restrictions set forth herein shall remain in full force and
      effect and shall in no way be affected, impaired or invalidated thereby, and
      the
      parties hereto shall use their reasonable best efforts to find and employ an
      alternative means to achieve the same or substantially the same result as that
      contemplated by such term, provision, covenant or restriction, it being intended
      that all of the rights and privileges of the parties shall be enforceable to
      the
      fullest extent permitted by law.

    
      
        

      

    

    (m)  Entire
      Agreement.
      This
      Agreement is intended by the parties hereto as a final expression of their
      agreement and is intended to be a complete and exclusive statement of the
      agreement and understanding of the parties hereto in respect of the subject
      matter contained herein and the registration rights granted by the Company
      with
      respect to the Registrable Securities. Except as provided in the Purchase
      Agreement, there are no restrictions, promises, warranties or undertakings,
      other than those set forth or referred to herein, with respect to the
      registration rights granted by the Operating Partnership and the Company with
      respect to the Registrable Securities. This Agreement supersedes all prior
      agreements and undertakings among the parties with respect to such registration
      rights. No party hereto shall have any rights, duties or obligations other
      than
      those specifically set forth in this Agreement.

    


    (n)  Termination.
      This
      Agreement and the obligations of the parties hereunder shall terminate upon
      the
      end of the Effectiveness Period, except for any liabilities or obligations
      under
      Section 4,
      Section
5
      or
      Section 6
      hereof
      and the obligations to make payments of and provide for additional interest
      under Section 2(e)
      hereof
      to the extent such additional interest accrues prior to the end of the
      Effectiveness Period and to the extent any overdue additional interest accrues
      in accordance with the last paragraph of such Section 2(e),
      each of
      which shall remain in effect in accordance with its terms.

    


    (o)  Submission
      to Jurisdiction.
      Except
      as set forth below, no claim, counterclaim or dispute of any kind or nature
      whatsoever arising out of or in any way relating to this Agreement
      (“Claim”)
      may be
      commenced, prosecuted or continued in any court other than the courts of the
      State of New York located in the City and County of New York or in the United
      States District Court for the Southern District of New York, which courts shall
      have jurisdiction over the adjudication of such matters, and each of the
      Operating Partnership and the Company hereby consents to the jurisdiction of
      such courts and personal service with respect thereto. Each of the Operating
      Partnership and the Company hereby consents to personal jurisdiction, service
      and venue in any court in which any Claim arising out of or in any way relating
      to this Agreement is brought by any third party against any Initial Purchaser.
      Each of the Operating Partnership and the Company agrees that a final judgment
      in any such Proceeding brought in any such court shall be conclusive and binding
      upon the Operating Partnership and the Company, as applicable, and may be
      enforced in any other courts in the jurisdiction of which the Operating
      Partnership and the Company, as applicable, is or may be subject, by suit upon
      such judgment.

    


    [The
      Remainder of This Page Intentionally Left Blank; Signature Page
      Follows]

     

     

     

    

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

          
          

        

      
IN
      WITNESS WHEREOF,
      the
      parties have executed this Agreement as of the date first written
      above.

    


    Very
      truly yours,

    


    ESSEX
      PORTFOLIO, L.P.

    


    By: 
Essex
      Property Trust, Inc.,

        
      Its General Partner

    


    By: 
/s/Michael
      Dance  

       
      Name:

       
      Title:

    


    


    ESSEX
      PROPERTY TRUST, INC. 

     

                                               
      By: /s/Michael
      Dance  

       
      Name:

       
      Title:

    

 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Accepted
      and agreed to as of the date first above written:

    


    UBS
      SECURITIES, LLC 

    


    


    By:/s/
      Douglas Lee

    Name:
      Douglas Lee

    Title:
      Managing Director

    


    


    By: /s/
      Jonathan Chen

    Name:
      Jonathan Chen

    Title:
      Associate Director

    


    


    BEAR
      STEARNS & CO, INC. 

    


    


    By:/s/
      Paul S. Rosica

    Name:
      Paul S. Rosica

    Title:
      Senior Managing Director