ex10_3.htm


    
      

    

    EXHIBIT
10.3


    ESSEX PROPERTY TRUST, INC.

    7,500,000
SHARES

    


    CONTROLLED EQUITY
OFFERINGSM

    


    SALES
AGREEMENT

    


    


    May 6,
2009

    


    


    


    CANTOR
FITZGERALD & CO.

    499 Park
Avenue

    New York,
New York 10022

    


    Ladies
and Gentlemen:

    


    ESSEX
PROPERTY TRUST, INC., a Maryland corporation (the “Company”),
confirms its agreement (this “Agreement”)
with Cantor Fitzgerald & Co. (“CF&Co”),
as follows:

    


    1.        
     Issuance and Sale of
Shares.  The Company agrees that, from time to time during the
term of this Agreement, on the terms and subject to the conditions set forth
herein, it may issue and sell through CF&Co, acting as agent and/or
principal, (a) up to 7,500,000 shares of the Company’s common stock, par value
$0.0001 per share (the “Common
Stock”); and (b) such preferred stock as the Company may subsequently
designate (the “Preferred
Stock”; and together with the Common Stock, the “Shares”).  Notwithstanding
anything to the contrary contained herein, the parties hereto agree that
compliance with the limitation set forth in this Section 1 on the
number of Shares issued and sold under this Agreement shall be the sole
responsibility of the Company, and CF&Co shall have no obligation in
connection with such compliance.  The issuance and sale of Shares
through CF&Co will be effected pursuant to the Registration Statement (as
defined below) filed by the Company and declared effective by the Securities and
Exchange Commission (the “Commission”),
although nothing in this Agreement shall be construed as requiring the Company
to use the Registration Statement (as defined below) to issue the
Shares.

    


    The
Company has filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the
“Securities
Act”), with the Commission a registration statement on Form S-3 (File No.
333-141726), including a base prospectus, relating to certain securities,
including the Shares, to be issued from time to time by the Company, and which
incorporates by reference documents that the Company has filed or will file in
accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”). The Company has prepared a prospectus supplement specifically
relating to the Shares (the “Prospectus
Supplement”) to the base prospectus included as part of such registration
statement.  The Company has furnished to CF&Co, for use by
CF&Co, copies of the prospectus included as part of such registration
statement, as supplemented by the Prospectus Supplement, relating to the
Shares.  Except where the context otherwise requires, such
registration statement, as amended when it became effective, including all
documents filed as part thereof or incorporated by reference therein, and
including any information contained in a Prospectus (as defined below)
subsequently filed with the Commission pursuant to Rule 424(b) under the
Securities Act or deemed to be a part of such registration statement pursuant to
Rule 430B or 462(b) of the Securities Act, is herein called the “Registration
Statement.”  The base prospectus, including all documents
incorporated therein by reference, included in the Registration Statement, as it
may be supplemented by the Prospectus Supplement, in the form in which such
prospectus and/or Prospectus Supplement have most recently been filed by the
Company with the Commission pursuant to Rule 424(b) under the Securities Act,
together with any “issuer free writing prospectus,” as defined in Rule 433 of
the Securities Act Regulations (“Rule 433”), relating to the Shares that (i) is
required to be filed with the Commission by the Company or (ii) is exempt from
filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g), is herein called the
“Prospectus.”
Any reference herein to the Registration Statement, the Prospectus or any
amendment or supplement thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein to the
terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include the filing
after the execution hereof of any document with the Commission deemed to be
incorporated by reference therein. For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the Commission
pursuant to either the Electronic Data Gathering Analysis and Retrieval System
or Interactive Data Electronic Applications (collectively “IDEA”).

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    2.           
  Placements.  Each
time that the Company wishes to issue and sell the Shares hereunder (each, a
“Placement”),
it will notify CF&Co by email notice (or other method mutually agreed to in
writing by the parties) (a “Placement
Notice”) containing the parameters in accordance with which it desires
the Shares to be sold, which shall at a minimum include the number of Shares to
be issued (the “Placement
Shares”), the time period during which sales are requested to be made,
any limitation on the number of Shares that may be sold in any one Trading Day
(as defined in Section 3) and any minimum price below which sales may not be
made, a form of which containing such minimum sales parameters necessary is
attached hereto as Schedule
1.  The Placement Notice shall originate from any of the
individuals from the Company set forth on Schedule
2 (with a
copy to each of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from CF&Co set forth on
Schedule
2, as such Schedule
2 may be amended from time to time. The Placement Notice shall be
effective upon receipt by CF&Co unless and until (i) in accordance with the
notice requirements set forth in Section 4, CF&Co declines to accept the
terms contained therein for any reason, in its sole discretion, (ii) the entire
amount of the Placement Shares have been sold, (iii) in accordance with the
notice requirements set forth in Section 4, the Company suspends or terminates
the Placement Notice, (iv) the Company issues a subsequent Placement Notice with
parameters superseding those on the earlier dated Placement Notice, or (v) the
Agreement has been terminated under the provisions of Section
11.   The amount of any discount, commission or other
compensation to be paid by the Company to CF&Co in connection with the sale
of the Placement Shares shall be calculated in accordance with the terms set
forth in Schedule
3.  It
is expressly acknowledged and agreed that neither the Company nor CF&Co will
have any obligation whatsoever with respect to a Placement or any Placement
Shares unless and until the Company delivers a Placement Notice to CF&Co and
CF&Co does not decline such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein and herein.  In
the event of a conflict between the terms of this Agreement and the terms of a
Placement Notice, the terms of the Placement Notice will control.

    


    
      
        
           


        

        
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    3.          
   Sale
of Placement Shares by CF&Co.  Subject to the terms and
conditions herein set forth, upon the Company’s issuance of a Placement Notice,
and unless the sale of the Placement Shares described therein has been declined,
suspended, or otherwise terminated in accordance with the terms of this
Agreement, CF&Co., for the period specified in the Placement Notice, will
use its commercially reasonable efforts consistent with its normal trading and
sales practices and applicable state and federal laws, rules and regulations and
the rules of the New York Stock Exchange (the “NYSE”)
to sell such Placement Shares up to the amount specified, and otherwise in
accordance with the terms of such Placement Notice.  CF&Co will
provide written confirmation to the Company (including by email correspondence
to each of the individuals of the Company set forth on Schedule 2, if receipt of
such correspondence is actually acknowledged by any of the individuals to whom
the notice is sent, other than via auto-reply) no later than the opening of the
Trading Day (as defined below) immediately following the Trading Day on which it
has made sales of Placement Shares hereunder setting forth the number of
Placement Shares sold on such day, the compensation payable by the Company to
CF&Co pursuant to Section 2 with respect to such sales, and the Net Proceeds
(as defined below) payable to the Company, with an itemization of the deductions
made by CF&Co (as set forth in Section 5(a)) from the gross proceeds that it
receives from such sales.  CF&Co may sell Placement Shares by any
method permitted by law deemed to be an “at the market” offering as defined in
Rule 415 of the Securities Act, including without limitation sales made directly
on the NYSE, on any other existing trading market for the Common Stock or to or
through a market maker.  CF&Co may also sell Placement Shares in
privately negotiated transactions.  The Company acknowledges and
agrees that (i) there can be no assurance that CF&Co will be successful in
selling Placement Shares, and (ii) CF&Co will incur no liability or
obligation to the Company or any other person or entity if it does not sell
Placement Shares for any reason other than a failure by CF&Co to use its
commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Shares as required under this Section
3.  For the purposes hereof, “Trading
Day” means any day on which the Company’s Common Stock is purchased and
sold on the principal market on which the Common Stock is listed or
quoted.

    


    4.        
     Suspension of
Sales.  The Company or CF&Co may, upon notice to the other
party in writing (including by email correspondence to each of the individuals
of the other party set forth on Schedule
2, if receipt of such correspondence is actually acknowledged by any of
the individuals to whom the notice is sent, other than via auto-reply) or by
telephone (confirmed immediately by verifiable facsimile transmission or email
correspondence to each of the individuals of the other party set forth on Schedule
2), suspend any sale of Placement Shares; provided, however, that such
suspension shall not affect or impair either party’s obligations with respect to
any Placement Shares sold hereunder prior to the receipt of such
notice.  Each of the Parties agrees that no such notice under this
Section 4 shall
be effective against the other unless it is made to one of the individuals named
on Schedule
2 hereto, as such schedule may be amended from time to time.

    


    5.        
     Settlement.

    


    
      
        
           


        

        
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    (a)        
   Settlement of Placement
Shares.  Unless otherwise specified in the applicable Placement
Notice, settlement for sales of Placement Shares will occur on the third (3rd)
Trading Day (or such earlier day as is industry practice for regular-way
trading) following the date on which such sales are made (each, a “Settlement
Date” and the first such settlement date, the “First
Delivery Date”).  The amount of proceeds to be delivered to the
Company on a Settlement Date against receipt of the Placement Shares sold (the
“Net
Proceeds”) will be equal to the aggregate sales price received by
CF&Co at which such Placement Shares were sold, after deduction for (i)
CF&Co’s commission, discount or other compensation for such sales payable by
the Company pursuant to Section 2 hereof,
(ii) any other amounts due and payable by the Company to CF&Co hereunder
pursuant to Section
7(g) (Expenses) hereof, and (iii) any transaction fees imposed by any
governmental or self-regulatory organization in respect of such
sales.

    


    (b)         
  Delivery
of Placement Shares.  On or before each Settlement Date, the
Company will, or will cause its transfer agent to, electronically transfer the
Placement Shares being sold by crediting CF&Co’s or its designee’s account
(provided CF&Co shall have given the Company written notice of such designee
prior to the Settlement Date) at The Depository Trust Company through its
Deposit and Withdrawal at Custodian System or by such other means of delivery as
may be mutually agreed upon by the parties hereto which in all cases shall be
freely tradeable, transferable, registered shares in good deliverable
form.  On each Settlement Date, CF&Co will deliver the related Net
Proceeds in same day funds to an account designated by the Company on, or prior
to, the Settlement Date.  The Company agrees that if the Company, or
its transfer agent (if applicable), defaults in its obligation to deliver
Placement Shares on a Settlement Date, that in addition to and in no way
limiting the rights and obligations set forth in Section 9(a)
(Indemnification and Contribution) hereto, it will (i) hold CF&Co harmless
against any loss, claim, damage, or expense (including reasonable legal fees and
expenses), as incurred, arising out of or in connection with such default by the
Company and (ii) pay to CF&Co any commission, discount, or other
compensation to which it would otherwise have been entitled absent such
default.

    


    6.         
    Representations and
Warranties of the Company.  The Company represents and warrants
to, and agrees with, CF&Co that as of the date of this Agreement and as of
each Representation Date (as defined in Section 7(m) below) on which a
certificate is required to be delivered pursuant to Section 7(m) of this
Agreement, as the case may be:

    


    (a)     
      Compliance with Registration
Requirements. The Registration Statement and any Rule 462(b) Registration
Statement have been declared effective by the Commission under the Securities
Act.  The Company has complied to the Commission’s satisfaction with
all requests of the Commission for additional or supplemental
information.  No stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement is in effect
and no proceedings for such purpose have been instituted or are pending or, to
the best knowledge of the Company, are contemplated or threatened by the
Commission.

    


    (b)     
      No Misstatement or
Omission.  The Prospectus when filed complied and, as amended
or supplemented, if applicable, will comply in all material respects with the
Securities Act.  Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time it
became effective, complied and, as of each of the Settlement Dates, if any, will
comply in all material respects with the Securities Act and did not and, as of
each of the Settlement Dates, if any, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus, as
amended or supplemented, as of its date, did not and, as of each of the
Settlement Dates, if any, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The representations and warranties set forth in the two immediately
preceding sentences do not apply to statements in or omissions from the
Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment thereto, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with information
relating to CF&Co furnished to the Company in writing by CF&Co expressly
for use therein.  There are no contracts or other documents required
to be described in the Prospectus or to be filed as exhibits to the Registration
Statement which have not been described or filed as required.

    


    
      
        
           


        

        
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    (c)            Offering Materials Furnished
to CF&Co. The Company has delivered to CF&Co one complete copy of
the Registration Statement and a copy of each consent and certificate of experts
filed as a part thereof, and conformed copies of the Registration Statement
(without exhibits) and the Prospectus, as amended or supplemented, in such
quantities and at such places as CF&Co has reasonably
requested.

    


    (d)    
       Distribution of Offering
Material By the Company. The Company has not distributed and will not
distribute, prior to the later of the Closing Date and the completion of
CF&Co’s distribution of the Shares, any offering material in connection with
the offering and sale of the Shares other than the Prospectus or the
Registration Statement.

    


    (e)         
  The Sales
Agreement. This Agreement has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the Company, enforceable
in accordance with its terms, except as rights to indemnification hereunder may
be limited by applicable law and except as the enforcement hereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.

    


    (f)         
   Authorization of the
Shares. The Shares to be sold by CF&Co, acting as agent and/or
principal for the Company, have been duly authorized for issuance and sale
pursuant to this Agreement and, when issued and delivered by the Company to
CF&Co pursuant to this Agreement, will be validly issued, fully paid and
nonassessable.

    


    (g)      
     No Applicable Registration
or Other Similar Rights. There are no persons with registration or other
similar rights to have any equity or debt securities registered for sale under
the Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as have been duly waived.

    


    (h)       
    No Material Adverse
Change.  Except as otherwise disclosed in the Prospectus,
subsequent to the respective dates as of which information is given in the
Prospectus: (i) there has been no material adverse change, or any development
that could reasonably be expected to result in a material adverse change, in the
condition, financial or otherwise, or in the earnings, business, operations or
prospects, whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries, considered as one entity (any
such change is called a “Material
Adverse Change”); (ii) the Company and its subsidiaries, considered as
one entity, have not incurred any material liability or obligation, indirect,
direct or contingent, not in the ordinary course of business nor entered into
any material transaction or agreement not in the ordinary course of business:
and (iii) there has been no dividend or distribution of any kind declared, paid
or made by the Company or, except for regular quarterly dividends publicly
announced by the Company or dividends paid to the Company or other subsidiaries,
any of its subsidiaries on any class of capital stock or repurchase or
redemption by the Company or any of its subsidiaries of any class of capital
stock.

    


    
      
        
           


        

        
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    (i)        
    Independent
Accountants.  KPMG LLP, who have expressed their opinion with
respect to the financial statements (which term as used in this Agreement
includes the related notes thereto) and supporting schedules filed with the
Commission or incorporated by reference as a part of the Registration Statement
and included in the Prospectus, is an independent registered public accounting
firm as required by the Securities Act and the Exchange Act.

    


    (j)        
    Preparation of the Financial
Statements. The financial statements filed with the Commission as a part
of or incorporated within the Registration Statement and included in the
Prospectus present fairly the consolidated financial position of the Company and
its subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified.  The supporting
schedules included in or incorporated in the Registration Statement present
fairly the information required to be stated therein.  Such financial
statements and supporting schedules have been prepared in conformity with
generally accepted accounting principles as applied in the United States applied
on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto.  No other financial
statements or supporting schedules are required to be included in or
incorporated in the Registration Statement.  The financial data set
forth or incorporated in the Prospectus under the captions “Ratio of Earnings to
Fixed Charges” and “Selected Financial Data” fairly present the information set
forth therein on a basis consistent with that of the audited financial
statements contained, incorporated or deemed to be incorporated in the
Registration Statement.

    


    (k)      
     Incorporation and Good
Standing of the Company and its Subsidiaries. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Maryland and is in good standing with the State Department
of Assessments and Taxation of Maryland and has corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under this
Agreement. Essex Portfolio, L.P. is the Company’s only significant subsidiary
(as defined in Rule 1-02 (w) of Regulation S-X of the Exchange Act) (the “Significant
Subsidiary”).  The Significant Subsidiary has been duly
organized and is validly existing as a partnership in good standing under the
laws of the jurisdiction of its organization and has the requisite power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus.  Each of the Company and the
Significant Subsidiary is duly qualified as a foreign corporation or foreign
partnership to transact business and is in good standing in the State of
California and each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions (other than the State of California)
where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse
Change.  Except as described in the Prospectus, all of the issued and
outstanding partnership interests in the Significant Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable. The
partnership interests in the Significant Subsidiary that are owned by the
Company are free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim.  The Company does not own or control, directly
or indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K
for the most recently ended fiscal year and other than (i) those subsidiaries
not required to be listed on Exhibit 21.1 by Item 601 of Regulation S-K under
the Exchange Act and (ii) those subsidiaries formed since the last day of the
most recently ended fiscal year.

    


    
      
        
           


        

        
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    (l)         
   Capital Stock
Matters. The Shares conforms in all material respects to the description
thereof contained in the Prospectus.  All of the issued and
outstanding shares of Common Stock and Preferred Stock have been duly authorized
and validly issued, are fully paid and nonassessable and have been issued in
compliance with federal and state securities laws.  None of the
outstanding shares of Common Stock and Preferred Stock were issued in violation
of any preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company.  There are no
authorized or outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the Company or any
of its subsidiaries other than those accurately described in all material
respects in the Prospectus.  The description of the Company’s stock
option, stock bonus and other stock plans or arrangements, and the options or
other rights granted thereunder, set forth in the Prospectus accurately and
fairly presents in all material respects the information required to be shown
with respect to such plans, arrangements, options and rights.

    


    (m)           Non-Contravention of
Existing Instruments; No Further Authorizations or Approvals
Required.   Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or is in default (or,
with the giving of notice or lapse of time, would be in default) (“Default”)
under any indenture, mortgage, loan or credit agreement, note, contract,
franchise, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject (each, an “Existing
Instrument”), except for such Defaults as would not, individually or in
the aggregate, result in a Material Adverse Change.  The Company’s
execution, delivery and performance of this Agreement and consummation of the
transactions contemplated hereby and by the Prospectus (i) have been duly
authorized by all necessary corporate action and will not result in any
violation of the provisions of the charter or by-laws of the Company or any
subsidiary, (ii) will not conflict with or constitute a breach of, or Default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults, liens,
charges or encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Change and (iii) will not result in any violation of any
law, administrative regulation or administrative or court decree applicable to
the Company or any subsidiary.  No consent, approval, authorization or
other order of, or registration or filing with, any court or other governmental
or regulatory authority or agency, is required for the Company’s execution,
delivery and performance of this Agreement and consummation of the transactions
contemplated hereby and by the Prospectus, except such as have been obtained or
made by the Company and are in full force and effect under the Securities Act,
applicable state securities or blue sky laws and from the NASD.

    


    
      
        
           


        

        
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    (n)    
       No Material Actions or
Proceedings.  Except as disclosed in the Prospectus, there are
no legal or governmental actions, suits or proceedings pending or, to the best
of the Company’s knowledge, threatened (i) against or affecting the Company or
any of its subsidiaries, (ii) which has as the subject thereof any officer or
director of, or property owned or leased by, the Company or any of its
subsidiaries or (iii) relating to environmental or discrimination matters, where
in any such case (A) there is a reasonable possibility that such action, suit or
proceeding might be determined adversely to the Company or such subsidiary and
(B) any such action, suit or proceeding, if so determined adversely, would
reasonably be expected to result in a Material Adverse Change or adversely
affect the consummation of the transactions contemplated by this
Agreement.  No material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the best of the Company’s
knowledge, is threatened or imminent.

    


    (o)        
   All
Necessary Permits, etc.  The Company and each subsidiary
possess such valid and current certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, other than those the failure
to possess or own would not result in a Material Adverse Change, and neither the
Company nor any subsidiary has received any notice of proceedings relating to
the revocation or modification of, or non-compliance with, any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could result in a Material Adverse
Change.

    


    (p)       
    Tax Law
Compliance.  The Company and its consolidated subsidiaries have
filed all necessary federal, state and foreign income, property and franchise
tax returns and have paid all taxes required to be paid by any of them and, if
due and payable, any related or similar assessment, fine or penalty levied
against any of them except as may be being contested in good faith and by
appropriate proceedings.  The Company has made adequate charges,
accruals and reserves in the applicable financial statements referred to in
Section 1 (i) above in respect of all federal, state and foreign income,
property and franchise taxes for all periods as to which the tax liability of
the Company or any of its consolidated subsidiaries has not been finally
determined.

    


    (q)        
   Company is a
REIT.  Commencing with the Company’s taxable year beginning
January 1, 1994, the Company has been organized and has operated in conformity
with the requirements for qualification as a “real estate investment trust,” and
its organization and proposed method of operation will enable it to meet the
requirements for the qualification and taxation as a “real estate investment
trust” under the Internal Revenue Code of 1986, as amended (the “Code”).

    


    (r)          
  Company
Not an “Investment Company”. The Company has been advised of the rules
and requirements under the Investment Company Act of 1940, as amended (the
“Investment
Company Act”).  The Company is not, and after receipt of
payment for the Shares will not be, an “investment company” within the meaning
of Investment Company Act and will conduct its business in a manner so that it
will not become subject to the Investment Company Act.

    


    
      
        
           


        

        
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    (s)       
    Insurance.  Except
as otherwise described in the Prospectus, each of the Company and its
subsidiaries are insured by insurers of recognized financial responsibility with
policies in such amounts and with such deductibles and covering such risks as
are generally deemed prudent and customary for the business for which it is
engaged including, but not limited to, policies covering real and personal
property owned or leased by the Company and its subsidiaries against theft,
damage, destruction and acts of vandalism.  The Company has no reason
to believe that it or any subsidiary will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result in a Material
Adverse Change.

    


    (t)          
  No Price
Stabilization or Manipulation.  The Company has not taken and
will not take, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.

    


    (u)        
   Related Party
Transactions.  There are no business relationships or
related-party transactions involving the Company or any subsidiary or any other
person required to be described in the Prospectus which have not been described
as required.

    


    (v)        
   Exchange Act
Compliance.  The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the requirements of the Exchange Act, and, when read together with the
other information in the Prospectus, at the Closing Dates, will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.

    


    (w)           No Unlawful Contributions or
Other Payments.  Neither the Company nor any of its
subsidiaries nor, to the best of the Company’s knowledge, any employee or agent
of the Company or any subsidiary, has made any contribution or other payment to
any official of, or candidate for, any federal, state or foreign office in
violation of any law or of the character required to be disclosed in the
Prospectus.

    


    (x)            Company’s Accounting
System.  The Company maintains a system of accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles as
applied in the United States and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.

    


    (y)      
     Title to
Properties.  Except as otherwise disclosed in the Prospectus
and except as would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise: (i)
all properties and assets described in the Prospectus are owned with good and
marketable title by the Company, its subsidiaries and/or a joint venture or
partnership in which any such party is a participant (a “Related
Entity”); (ii) all of the leases under which any of the Company, its
subsidiaries or, to the knowledge of the Company, Related Entities holds or uses
real properties or assets as a lessee are in full force and effect, and neither
the Company, nor any of its subsidiaries or, to the knowledge of the Company,
Related Entities is in material default in respect of any of the terms or
provisions of any of such leases and no claim has been asserted by anyone
adverse to any such party’s rights as lessee under any of such leases, or
affecting or questioning any such party’s right to the continued possession or
use of the leased property or assets under any such leases; (iii) all liens,
charges, encumbrances, claims or restrictions on or affecting the properties and
assets of any of the Company, its subsidiaries or Related Entities which are
required to be disclosed in the Prospectus are disclosed therein; (iv) neither
the Company, nor any of its subsidiaries or, to the knowledge of the Company,
Related Entities nor any lessee of any portion of any such party’s properties is
in default under any of the leases pursuant to which any of the Company, its
subsidiaries or, to the knowledge of the Company, Related Entities leases its
properties and neither the Company, nor any of its subsidiaries or Related
Entities knows of any event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such leases; (v) no
tenant under any of the leases pursuant to which any of the Company, or its
subsidiaries or, to the knowledge of the Company, Related Entities leases its
properties has an option or right of first refusal to purchase the premises
demised under such lease; (vi) each of the properties of any of the Company or
its subsidiaries or to the knowledge of the Company, Related Entities complies
with all applicable codes and zoning laws and regulations; and (vii) neither the
Company nor any of its subsidiaries has knowledge of any pending or threatened
condemnation, zoning change or other proceeding or action that will in any
manner affect the size of, use of, improvements on, construction on, or access
to the properties of any of the Company, or its subsidiaries or Related
Entities.

    


    
      
        
           


        

        
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    (z)            Title
Insurance.  Title insurance in favor of the mortgagee or the
Company, its subsidiaries and/or their Related Entities is maintained with
respect to each property owned by any such entity in an amount at least equal to
(a) the cost of acquisition of such property or (b) the cost of construction of
such property (measured at the time of such construction), except, in each case,
where the failure to maintain such title insurance would not have a material
adverse effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.

    


    (aa)          No Convertible
Mortgages. Except as described in the Prospectus, the mortgages and deeds
of trust encumbering the properties and assets described in the Prospectus are
not convertible nor does any of the Company, or its subsidiaries hold a
participating interest therein.

    


    (bb)          Valid
Partnerships.  Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries is a party, and which
relates to real property described in the Prospectus, has been duly authorized,
executed and delivered by such applicable party and constitutes the valid
agreement thereof, enforceable in accordance with its terms, except as limited
by (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights or
remedies of creditors or (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought, and
the execution, delivery and performance of any of such agreements did not, at
the time of execution and delivery, and does not constitute a breach of, or
default under, the charter or bylaws of such party or any material contract,
lease or other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or administrative
or court order or decree, except for such breaches or defaults that would not
result in a Material Adverse Change.

    


    
      
        
           


        

        
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    (cc)          Hazardous Materials.
Except as otherwise described in the Prospectus, none of the Company, or any of
its subsidiaries has any knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste materials
(collectively, “Hazardous
Materials”) on any of the properties owned by it or the Related Entities,
or (b) any unlawful spills, releases, discharges or disposal, of Hazardous
Materials that have occurred or are presently occurring off such properties as a
result of any construction on or operation and use of such properties which
presence or occurrence would have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise; and
in connection with the construction on or operation and use of the properties
owned by the Company, its subsidiaries and Related-Entities, each of the
Company, and its subsidiaries represents that, if any, it has no knowledge of
any material failure to comply with all applicable foreign local, state and
federal environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials, except for such
failures that would not result in a Material Adverse Change.

    


    (dd)          Compliance with
Environmental Laws. Except as otherwise described in the Prospectus, and
except as would not, individually or in the aggregate, result in a Material
Adverse Change (i) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or regulation relating to
pollution or protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including without limitation, laws and regulations relating
to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum and petroleum products (collectively, “Materials
of Environmental Concern”), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Materials of Environment Concern (collectively, “Environmental
Laws”), which violation includes, but is not limited to, noncompliance
with any permits or other governmental authorizations required for the operation
of the business of the Company or its subsidiaries under applicable
Environmental Laws, or noncompliance with the terms and conditions thereof, nor
has the Company or any of its subsidiaries received any written communication,
whether from a governmental authority, citizens group, employee or otherwise,
that alleges that the Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of action filed with
a court or governmental authority, no investigation with respect to which the
Company has received written notice, and no written notice by any person or
entity alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property damages,
personal injuries, attorneys’ fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of any Materials
of Environmental Concern at any location owned, leased or operated by the
Company or any of its subsidiaries, now or in the past (collectively, “Environmental
Claims”), pending or, to the best of the Company’s knowledge, threatened
against the Company or any of its subsidiaries or any person or entity whose
liability for any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law; and (iii) to
the best of the Company’s knowledge, there are no past or present actions,
activities, circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal of any
Material of Environmental Concern, that reasonably could result in a violation
of any Environmental Law or form the basis of a potential Environmental Claim
against the Company or any of its subsidiaries or against any person or entity
whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law.

    


    
      
        
           


        

        
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    (ee)          Periodic Review of Costs of
Environmental Compliance.  The description set forth under the
caption “The Company’s Portfolio may have unknown environmental liabilities” in
Part IA of the Company’s Annual Report on Form 10-K for the year ended December
31, 2008 accurately describes the Company’s investigation of the compliance of
its properties with Environmental Laws. On the basis of such review and the
amount of its established reserves, the Company has reasonably concluded that
such associated costs and liabilities would not, individually or in the
aggregate, result in a Material Adverse Change.

    


    (ff)         
  Brokers.  There
is no broker, finder or other party that is entitled to receive from the Company
any brokerage or finder’s fee or other fee or commission as a result of any
transactions contemplated by this Agreement.

    


    (gg)          No Outstanding Loans or
Other Indebtedness.  Except as described in the Prospectus,
there are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees or indebtedness by
the Company to or for the benefit of any of the officers or directors of the
Company or any of the members of any of them.

    


    (hh)         
No
Reliance.  The Company has not relied upon CF&Co or legal
counsel for CF&Co for any legal, tax or accounting advice in connection with
the offering and sale of the Placement Shares.

    


    (ii)           
CF&Co
Purchases.  The Company acknowledges and agrees that CF&Co
has informed the Company that CF&Co may, to the extent permitted under the
Securities Act and the Exchange Act, purchase and sell shares of Common Stock
for its own account while this Agreement is in effect, provided, that (i) no such purchase or
sales shall take place while a Placement Notice is in effect (except to the
extent CF&Co may engage in sales of Placement Shares purchased or deemed
purchased from the Company as a “riskless principal” or in a similar capacity)
and (ii) the Company shall not be deemed to have authorized or consented to any
such purchases or sales by CF&Co.

    


    (jj)           
Compliance with
Laws.  The Company has not been advised, and has no reason to
believe, that it and each of its subsidiaries are not conducting business in
compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, except where failure to be so in compliance
would not result in a Material Adverse Change.

    


    
      
        
           


        

        
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    Any
certificate signed by an officer of the Company and delivered to CF&Co or to
counsel for CF&Co shall be deemed to be a representation and warranty by the
Company to CF&Co as to the matters set forth therein.

    


    The
Company acknowledges that CF&Co and, for purposes of the opinions to be
delivered pursuant to Section 7 hereof,
counsel to the Company and counsel to CF&Co, will rely upon the accuracy and
truthfulness of the foregoing representations and hereby consents to such
reliance.

    


    7.             
Covenants of the
Company.  The Company covenants and agrees with CF&Co
that:

    


    (a)           
Registration Statement
Amendments.  After the date of this Agreement and during any
period in which a Prospectus relating to any Placement Shares is required to be
delivered by CF&Co under the Securities Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the
Securities Act), (i) the Company will notify CF&Co promptly of the time when
any subsequent amendment to the Registration Statement, other than documents
incorporated by reference, has been filed with the Commission and/or has become
effective or any subsequent supplement to the Prospectus has been filed and of
any request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or for additional information, (ii) the
Company will prepare and file with the Commission, promptly upon CF&Co’s
request, any amendments or supplements to the Registration Statement or
Prospectus that, in CF&Co’s reasonable opinion, may be necessary or
advisable in connection with the distribution of the Placement Shares by
CF&Co (provided,
however, that the failure of CF&Co to make such request shall not
relieve the Company of any obligation or liability hereunder, or affect
CF&Co’s right to rely on the representations and warranties made by the
Company in this Agreement); (iii) the Company will not file any amendment or
supplement to the Registration Statement or Prospectus, other than documents
incorporated by reference, relating to the Placement Shares or a security
convertible into the Placement Shares unless a copy thereof has been submitted
to CF&Co within a reasonable period of time before the filing and CF&Co
has not reasonably objected thereto (provided, however, that the
failure of CF&Co to make such objection shall not relieve the Company of any
obligation or liability hereunder, or affect CF&Co’s right to rely on the
representations and warranties made by the Company in this Agreement) and the
Company will furnish to CF&Co at the time of filing thereof a copy of any
document that upon filing is deemed to be incorporated by reference into the
Registration Statement or Prospectus, except for those documents available via
EDGAR; and (iv) the Company will cause each amendment or supplement to the
Prospectus, other than documents incorporated by reference, to be filed with the
Commission as required pursuant to the applicable paragraph of Rule 424(b) of
the Securities Act.

    


    (b)        
   Notice of Commission Stop
Orders.  The Company will advise CF&Co, promptly after it
receives notice or obtains knowledge thereof, of the issuance or threatened
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the Placement
Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will promptly use its
commercially reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such a stop order should be issued.

    


    
      
        
           


        

        
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    (c)     
      Delivery of Prospectus;
Subsequent Changes.  During any period in which a Prospectus
relating to the Placement Shares is required to be delivered by CF&Co under
the Securities Act with respect to a pending sale of the Placement Shares,
(including in circumstances where such requirement may be satisfied pursuant to
Rule 172 under the Securities Act), the Company will comply with all
requirements imposed upon it by the Securities Act, as from time to time in
force, and to file on or before their respective due dates all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other
provision of or under the Exchange Act.  If during such period any
event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to amend
or supplement the Registration Statement or Prospectus to comply with the
Securities Act, the Company will promptly notify CF&Co to suspend the
offering of Placement Shares during such period and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at the expense of
the Company) so as to correct such statement or omission or effect such
compliance.

    


    (d)         
  Listing of
Placement Shares.  During any period in which the Prospectus
relating to the Placement Shares is required to be delivered by CF&Co under
the Securities Act with respect to a pending sale of the Placement Shares
(including in circumstances where such requirement may be satisfied pursuant to
Rule 172 under the Securities Act), the Company will use its commercially
reasonable efforts to cause the Placement Shares to be listed on the Exchange
and to qualify the Placement Shares for sale under the securities laws of such
jurisdictions as CF&Co reasonably designates and to continue such
qualifications in effect so long as required for the distribution of the
Placement Shares; provided,
however, that the Company shall not be required in connection therewith
to qualify as a foreign corporation or dealer in securities or file a general
consent to service of process in any jurisdiction.

    


    (e)         
  Delivery
of Registration Statement and Prospectus.  The Company will
furnish to CF&Co and its counsel (at the expense of the Company) copies of
the Registration Statement, the Prospectus (including all documents incorporated
by reference therein) and all amendments and supplements to the Registration
Statement or Prospectus that are filed with the Commission during any period in
which a Prospectus relating to the Placement Shares is required to be delivered
under the Securities Act (including all documents filed with the Commission
during such period that are deemed to be incorporated by reference therein), in
each case as soon as reasonably practicable and in such quantities as CF&Co
may from time to time reasonably request and, at CF&Co’s request, will also
furnish copies of the Prospectus to each exchange or market on which sales of
the Placement Shares may be made; provided, however, that the
Company shall not be required to furnish any document (other than the
Prospectus) to CF&Co to the extent such document is available on
EDGAR.

    


    (f)          
  Earnings
Statement.  The Company will make generally available to its
security holders as soon as practicable, but in any event not later than 15
months after the end of the Company’s current fiscal quarter, an earnings
statement covering a 12-month period that satisfies the provisions of Section
11(a) and Rule 158 of the Securities Act.

    


    
      
        
           


        

        
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    (g)     
      Expenses.  The
Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, in accordance with the provisions of Section 11
hereunder, will pay the following expenses all incident to the performance of
its obligations hereunder, including, but not limited to, expenses relating to
(i) the preparation, printing and filing of the Registration Statement and each
amendment and supplement thereto, of each Prospectus and of each amendment and
supplement thereto, (ii) the preparation, issuance and delivery of the Placement
Shares, (iii) the qualification of the Placement Shares under securities laws in
accordance with the provisions of Section 7(d) of this
Agreement, including filing fees (provided, however, that any fees or
disbursements of counsel for CF&Co in connection therewith shall be paid by
CF&Co), (iv) the printing and delivery to CF&Co of copies of the
Prospectus and any amendments or supplements thereto, and of this Agreement, (v)
the fees and expenses incurred in connection with the listing or qualification
of the Placement Shares for trading on the Exchange, (vi) filing fees and
expenses, if any, of the Commission and the NASD Corporate Financing
Department.

    


    (h)       
    Use of
Proceeds.  The Company will use the Net Proceeds as described
in the Prospectus in the section entitled “Use of Proceeds.”

    


    (i)          
  Notice of
Other Sales.  During the pendency of any Placement Notice given
hereunder, the Company shall provide CF&Co notice as promptly as reasonably
possible before it offers to sell, contracts to sell, sells, grants any option
to sell or otherwise disposes of any shares of Common Stock (other than
Placement Shares offered pursuant to the provisions of this Agreement) or
securities convertible into or exchangeable for Common Stock, warrants or any
rights to purchase or acquire Common Stock; provided, that such notice
shall not be required in connection with the (i) issuance, grant or sale of
Common Stock, options to purchase shares of Common Stock or Common Stock
issuable upon the exercise of options or other equity awards pursuant to the any
stock option, stock bonus or other stock plan or arrangement described in the
Prospectus, (ii) the issuance of securities in connection with an acquisition,
merger or sale or purchase of assets or (iii) the issuance or sale of Common
Stock pursuant to any dividend reinvestment plan that the Company may adopt from
time to time provided the implementation of such is disclosed to CF & Co. in
advance or (iv) any shares of common stock issuable upon the exchange,
conversion or redemption of securities, including but not limited to, operating
partnership units in Essex Portfolio, L.P., as to which the Company is the
general partner, or the exercise of warrants, options or other rights in effect
or outstanding.

    


    (j)        
    Change of
Circumstances.  The Company will, at any time during a fiscal
quarter in which the Company intends to tender a Placement Notice or sell
Placement Shares, advise CF&Co promptly after it shall have received notice
or obtained knowledge thereof, of any information or fact that would alter or
affect in any material respect any opinion, certificate, letter or other
document provided to CF&Co pursuant to this Agreement.

    


    (k)        
   Due
Diligence Cooperation.  The Company will cooperate with any
reasonable due diligence review conducted by CF&Co or its agents in
connection with the transactions contemplated hereby, including, without
limitation, providing information and making available documents and senior
corporate officers, during regular business hours and at the Company’s principal
offices, as CF&Co may reasonably request.

    


    
      
        
           


        

        
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    (l)          
  Required
Filings Relating to Placement of Placement Shares.  The Company
agrees that on such dates as the Securities Act shall require, the Company will
(i) file a prospectus supplement with the Commission under the applicable
paragraph of Rule 424(b) under the Securities Act (each and every filing under
Rule 424(b), a “Filing
Date”), which prospectus supplement will set forth, within the relevant
period, the amount of Placement Shares sold through CF&Co, the Net Proceeds
to the Company and the compensation payable by the Company to CF&Co with
respect to such Placement Shares, and (ii) deliver such number of copies of each
such prospectus supplement to each exchange or market on which such sales were
effected as may be required by the rules or regulations of such exchange or
market.

    


    (m)           Representation Dates;
Certificate.  On or prior to the First Delivery Date and each
time the Company (i) files the Prospectus relating to the Placement Shares or
amends or supplements the Registration Statement or the Prospectus relating to
the Placement Shares (other than a prospectus supplement filed in accordance
with Section 7(l) of this Agreement) by means of a post-effective amendment,
sticker, or supplement but not by means of incorporation of document(s) by
reference to the Registration Statement or the Prospectus relating to the
Placement Shares; (ii) files an annual report on Form 10-K under the Exchange
Act; (iii) files its quarterly reports on Form 10-Q under the Exchange Act; or
(iv) files a report on Form 8-K containing amended financial information (other
than an earnings release, to “furnish” information pursuant to Items 2.02 or
7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K
relating to the reclassifications of certain properties as discontinued
operations in accordance with Statement of Financial Accounting Standards No.
144) under the Exchange Act (each date of filing of one or more of the documents
referred to in clauses (i) through (iv) shall be a "Representation
Date"); the
Company shall furnish CF&Co with a certificate, in the form attached hereto
as Exhibit 7(m)
within three (3) Trading Days of any Representation Date if requested by
CF&Co.  The requirement to provide a certificate under this
Section 7(m) shall be waived for any Representation Date occurring at a time at
which no Placement Notice is pending, which waiver shall continue until the
earlier to occur of the date the Company delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a Representation Date) and
the next occurring Representation Date; provided, however, that such waiver
shall not apply for any Representation Date on which the Company files its
annual report on Form 10-K.  Notwithstanding the foregoing, if the
Company subsequently decides to sell Placement Shares following a Representation
Date when the Company relied on such waiver and did not provide CF&Co with a
certificate under this Section 7(m), then
before the Company delivers the Placement Notice or CF&Co sells any
Placement Shares, the Company shall provide CF&Co with a certificate, in the
form attached hereto as Exhibit 7(m), dated
the date of the Placement Notice.

    


    (n)        
   Legal
Opinion.  On or prior to the First Delivery Date and within
three (3) Trading Days of each Representation Date with respect to which the
Company is obligated to deliver a certificate in the form attached hereto as
Exhibit 7(m)
for which no waiver is applicable, the Company shall cause to be furnished to
CF&Co a written opinion of Baker & McKenzie LLP (“Company Counsel”), or
other counsel satisfactory to CF&Co, in form and substance satisfactory to
CF&Co and its counsel, dated the date that the opinion is required to be
delivered, substantially similar to the form attached hereto as Exhibit 7(n)(i) and
Exhibit
7(n)(ii), respectively, modified, as necessary, to relate to the
Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such
opinions for subsequent Representation Dates, counsel may furnish CF&Co with
a letter (a “Reliance
Letter”) to the effect that CF&Co may rely on a prior opinion
delivered under this Section 7(n) to the
same extent as if it were dated the date of such letter (except that statements
in such prior opinion shall be deemed to relate to the Registration Statement
and the Prospectus as amended or supplemented at such Representation
Date).

    


    
      
        
           


        

        
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    (o)       
    Comfort
Letter.  On or prior to the First Delivery Date and within
three (3) Trading Days of each Representation Date with respect to which the
Company is obligated to deliver a certificate in the form attached hereto as
Exhibit 7(m)
for which no waiver is applicable, the Company shall cause its independent
accountants to furnish CF&Co letters (the "Comfort
Letters"), dated
the date of the Comfort Letter is delivered, in form and substance satisfactory
to CF&Co, (i) confirming that they are an independent registered public
accounting firm within the meaning of the Securities Act and the PCAOB, (ii)
stating, as of such date, the conclusions and findings of such firm with respect
to the financial information and other matters ordinarily covered by
accountants’ “comfort letters” to CF&Cos in connection with registered
public offerings (the first such letter, the “Initial
Comfort Letter”)
and (iii) updating the Initial Comfort Letter with any information that would
have been included in the Initial Comfort Letter had it been given on such date
and modified as necessary to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such letter.

    


    (p)       
    Market
Activities.  The Company will not, directly or indirectly, (i)
take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares or (ii) sell, bid for, or purchase the Shares to be issued and sold
pursuant to this Agreement, or pay anyone any compensation for soliciting
purchases of the Shares other than CF&Co; provided, however, that the
Company may bid for and purchase shares of its common stock in accordance with
Rule 10b-18 under the Exchange Act.

    


    (q)       
    Insurance.  The
Company and its Subsidiaries shall maintain, or caused to be maintained,
insurance in such amounts and covering such risks as is reasonable and customary
for the business for which it is engaged.

    


    (r)         
   Compliance with
Laws.  The Company and each of its Subsidiaries shall maintain,
or cause to be maintained, all material environmental permits, licenses and
other authorizations required by federal, state and local law in order to
conduct their businesses as described in the Prospectus, and the Company and
each of its Subsidiaries shall conduct their businesses, or cause their
businesses to be conducted, in substantial compliance with such permits,
licenses and authorizations and with applicable environmental laws, except where
the failure to maintain or be in compliance with such permits, licenses and
authorizations could not reasonably be expected to have a Material Adverse
Effect.

    


    (s)     
      REIT
Treatment.  The Company will take all reasonable efforts to
enable the Company to continue to meet the requirements for qualification and
taxation as a REIT under the Code for subsequent tax years that include any
portion of the term of this Agreement.

    


    (t)       
     Investment Company
Act.  The Company will conduct its affairs in such a manner so
as to reasonably ensure that neither it nor the Subsidiaries will be or become,
at any time prior to the termination of this Agreement, an “investment company,”
as such term is defined in the Investment Company Act, assuming no change in the
Commission’s current interpretation as to entities that are not considered an
investment company.

    


    
      
        
           


        

        
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    (u)       
    Securities Act and Exchange
Act.  The Company will use its best efforts to comply with all
requirements imposed upon it by the Securities Act and the Exchange Act as from
time to time in force, so far as necessary to permit the continuance of sales
of, or dealings in, the Placement Shares as contemplated by the provisions
hereof and the Prospectus.

    


    (v)       
    No Offer to
Sell.  Other than a free writing prospectus (as defined in Rule
405 under the Act) approved in advance by the Company and CF&Co in its
capacity as principal or agent hereunder, neither CF&Co nor the Company
(including its agents and representatives, other than CF&Co in its capacity
as such) will make, use, prepare, authorize, approve or refer to any written
communication (as defined in Rule 405 under the Act), required to be filed with
the Commission, that constitutes an offer to sell or solicitation of an offer to
buy Shares hereunder

    


    (w)           Sarbanes-Oxley
Act.  The Company and the Subsidiaries will use their best
efforts to comply with all effective applicable provisions of the Sarbanes-Oxley
Act.

    


    8.          
   Conditions to CF&Co’s
Obligations. The obligations of CF&Co hereunder with respect to a
Placement will be subject to the continuing accuracy and completeness of the
representations and warranties made by the Company herein, to the due
performance by the Company of its obligations hereunder, to the completion by
CF&Co of a due diligence review satisfactory to CF&Co in its reasonable
judgment, and to the continuing satisfaction (or waiver by CF&Co in its sole
discretion) of the following additional conditions:

    


    (a)            Registration Statement
Effective.  The Registration Statement shall be effective and
shall be available for (i) all sales of Placement Shares issued pursuant to all
prior Placement Notices and (ii) the sale of all Placement Shares contemplated
to be issued by any Placement Notice.

    


    (b)         
  No
Material Notices.  None of the following events shall have
occurred and be continuing:  (i) receipt by the Company or any of its
Subsidiaries of any request for additional information from the Commission or
any other federal or state governmental authority during the period of
effectiveness of the Registration Statement, the response to which would require
any post-effective amendments or supplements to the Registration Statement or
the Prospectus; (ii) the issuance by the Commission or any other federal or
state governmental authority of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose; (iii) receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Placement Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; (iv) the occurrence of any event that makes
any material statement made in the Registration Statement or the Prospectus or
any material document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in the Registration Statement, related Prospectus or such documents so
that, in the case of the Registration Statement, it will not contain any
materially 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, that in the case of the Prospectus, it will not contain any
materially 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,
in the light of the circumstances under which they were made, not
misleading.

    


    
      
        
           


        

        
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    (c)      
     No Misstatement or Material
Omission.  CF&Co shall not have advised the Company that
the Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in CF&Co’s reasonable
opinion is material, or omits to state a fact that in CF&Co’s opinion is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.

    


    (d)         
  Material
Changes.  Except as contemplated in the Prospectus, or
disclosed in the Company’s reports filed with the Commission, there shall not
have been any material adverse change, on a consolidated basis, in the
authorized capital stock of the Company or any Material Adverse Change or any
development that could reasonably be expected to result in a Material Adverse
Change, or any downgrading in or withdrawal of the rating assigned to any of the
Company’s securities (other than asset backed securities) by any rating
organization or a public announcement by any rating organization that it has
under surveillance or review its rating of any of the Company’s securities
(other than asset backed securities), the effect of which, in the case of any
such action by a rating organization described above, in the reasonable judgment
of CF&Co (without relieving the Company of any obligation or liability it
may otherwise have), is so material as to make it impracticable or inadvisable
to proceed with the offering of the Placement Shares on the terms and in the
manner contemplated in the Prospectus.

    


    (e)         
  Legal
Opinion.  CF&Co shall have received the opinions of Company
Counsel required to be delivered pursuant Section 7(n) on or
before the date on which such delivery of such opinion is required pursuant to
Section
7(n).

    


    (f)        
    Comfort
Letter.  CF&Co shall have received the Comfort Letter
required to be delivered pursuant Section 7(o) on or
before the date on which such delivery of such opinion is required pursuant to
Section
7(o).

    


    (g)       
    Representation
Certificate.  CF&Co shall have received the certificate
required to be delivered pursuant to Section 7(m) on or
before the date on which delivery of such certificate is required pursuant to
Section
7(m).

    


    (h)      
     No
Suspension.  Trading in the Shares shall not have been
suspended on the NYSE.

    


    (i)         
   Other
Materials.  On each date on which the Company is required to
deliver a certificate pursuant to Section 7(m), the
Company shall have furnished to CF&Co such appropriate further information,
certificates and documents as CF&Co may have reasonably requested. All such
opinions, certificates, letters and other documents shall have been in
compliance with the provisions hereof. The Company will furnish CF&Co with
such conformed copies of such opinions, certificates, letters and other
documents as CF&Co shall have reasonably requested.

    


    (j)       
     Securities Act Filings
Made.  All filings with the Commission required by Rule 424
under the Securities Act to have been filed prior to the issuance of any
Placement Notice hereunder shall have been made within the applicable time
period prescribed for such filing by Rule 424.

    


    
      
        
           


        

        
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    (k)        
   Approval for
Listing.  The Placement Shares shall either have been (i)
approved for listing on the NYSE, subject only to notice of issuance, or (ii)
the Company shall have filed an application for listing of the Placement Shares
on the NYSE at, or prior to, the issuance of any Placement Notice.

    


    (l)       
     No Termination
Event.  There shall not have occurred any event that would
permit CF&Co to terminate this Agreement pursuant to Section
11(a).

    


    9.         
    Indemnification and
Contribution.

    


    (a)       
    Company
Indemnification.  The Company agrees to indemnify and hold
harmless CF&Co, the directors, officers, partners, employees and agents of
CF&Co and each person, if any, who (i) controls CF&Co within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, or (ii)
is controlled by or is under common control with CF&Co (a “CF&Co
Affiliate”) from and against any and all losses, claims, liabilities,
expenses and damages (including, but not limited to, any and all reasonable
investigative, legal and other expenses  incurred in connection with,
and any and all amounts paid in settlement (in accordance with Section 9(c)) of, any
action, suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party, or
otherwise, or any claim asserted), as and when incurred, to which CF&Co, or
any such person, may become subject under the Securities Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based, directly or indirectly, on (x) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus or in any free writing prospectus or in any
application or other document executed by or on behalf of the Company or based
on written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Shares under the securities laws thereof or
filed with the Commission, (y) the omission or alleged omission to state in any
such document a material fact required to be stated in it or necessary to make
the statements in it not misleading or (z) any breach by any of the indemnifying
parties of any of their respective representations, warranties and agreements
contained in this Agreement; provided, however, that this indemnity
agreement shall not apply to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Placement Shares pursuant to this
Agreement and is caused directly or indirectly by an untrue statement or
omission made in reliance upon and in conformity with written information
relating to CF&Co and furnished to the Company by CF&Co expressly for
inclusion in any document as described in clause (x) of this Section 9(a). This indemnity
agreement will be in addition to any liability that the Company might otherwise
have.

    


    (b)       
    CF&Co
Indemnification. CF&Co agrees to indemnify and hold harmless the
Company and its directors and each officer of the Company that signed the
Registration Statement, and each person, if any, who (i) controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act or (ii) is controlled by or is under common control with the
Company (a “Company
Affiliate”) against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 9(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information relating to
CF&Co and furnished to the Company by CF&Co expressly for inclusion in
any document as described in clause (x) of Section
9(a).

    


    
      
        
           


        

        
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    (c)       
    Procedure.  Any
party that proposes to assert the right to be indemnified under this Section 9 will,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim is to be made against an indemnifying party or
parties under this Section 9, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve the indemnifying party from (i) any liability that it might
have to any indemnified party otherwise than under this Section 9 and (ii)
any liability that it may have to any indemnified party under the foregoing
provision of this Section 9 unless, and
only to the extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to
the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not, in any event, be liable for any settlement of any
action or claim effected without its written consent.  No indemnifying
party shall, without the prior written consent of each indemnified party, settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding relating to the matters contemplated by
this Section 9
(whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding.

    


    
      
        
           


        

        
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    (d)     
      Contribution.  In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for in the foregoing paragraphs of this Section 9 is
applicable in accordance with its terms but for any reason is held to be
unavailable from the Company or CF&Co, the Company and CF&Co will
contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Company from persons other than CF&Co, such as persons who control
the Company within the meaning of the Securities Act, officers of the Company
who signed the Registration Statement and directors of the Company, who also may
be liable for contribution) to which the Company and CF&Co may be subject in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and CF&Co on the other. The relative
benefits received by the Company on the one hand and CF&Co on the other hand
shall be deemed to be in the same proportion as the total Net Proceeds from the
sale of the Placement Shares (before deducting expenses) received by the Company
bear to the total compensation received by CF&Co from the sale of Placement
Shares on behalf of the Company.  If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is appropriate to
reflect not only the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and CF&Co, on the
other, with respect to the statements or omission that resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or CF&Co, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and CF&Co agree that it would not be just and equitable if
contributions pursuant to this Section 9(d) were to
be determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense, or damage, or action in respect thereof, referred to above
in this Section
9(d) shall be deemed to include, for the purpose of this Section 9(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim to the
extent consistent with Section 9(c)
hereof.  Notwithstanding the foregoing provisions of this Section 9(d),
CF&Co shall not be required to contribute any amount in excess of the
commissions received by it under this Agreement and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9(d), any
person who controls a party to this Agreement within the meaning of the
Securities Act, and any officers, directors, partners, employees or agents of
CF&Co, will have the same rights to contribution as that party, and each
officer of the Company who signed the Registration Statement will have the same
rights to contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 9(d), will
notify any such party or parties from whom contribution may be sought, but the
omission to so notify will not relieve that party or parties from whom
contribution may be sought from any other obligation it or they may have under
this Section
9(d) except to the extent that the failure to so notify such other party
materially prejudiced the substantive rights or defenses of the party from whom
contribution is sought. Except for a settlement entered into pursuant to the
last sentence of Section 9(c) hereof,
no party will be liable for contribution with respect to any action or claim
settled without its written consent if such consent is required pursuant to
Section 9(c)
hereof.

    


    
      
        
           


        

        
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    10.      
     Representations and
Agreements to Survive Delivery.  The indemnity and contribution
agreements contained in Section 9 of this
Agreement and all representations and warranties of the Company herein or in
certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of CF&Co,
any controlling persons, or the Company (or any of their respective officers,
directors or controlling persons), (ii) delivery and acceptance of the Placement
Shares and payment therefor or (iii) any termination of this
Agreement.

    


    11.        
   Termination.

    


    (a)         
  CF&Co shall have the right by giving notice as hereinafter
specified at any time to terminate this Agreement if (i) any Material Adverse
Change, or any development that has actually occurred and that could reasonably
be expected to result in cause a Material Adverse Change has occurred that, in
the reasonable judgment of CF&Co, may materially impair the ability of
CF&Co to sell the Placement Shares hereunder, (ii) the Company shall have
failed, refused or been unable to perform any agreement on its part to be
performed hereunder; provided,
however, in the case of any failure of the Company to deliver (or cause
another person to deliver) any certification, opinion, or letter required under
Sections 7(m), 7(n), or 7(o), CF&Co’s
right to terminate shall not arise unless such failure to deliver (or cause to
be delivered) continues for more than thirty (30) days from the date such
delivery was required; or (iii) any other condition of CF&Co’s obligations
hereunder is not fulfilled, or (iv), any suspension or limitation of trading in
the Placement Shares or in securities generally on the NYSE shall have
occurred.  Any such termination shall be without liability of any
party to any other party except that the provisions of Section 7(g)
(Expenses), Section
9 (Indemnification and Contribution), Section 10
(Representations and Agreements to Survive Delivery), Section 16
(Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of
Jury Trial) hereof shall remain in full force and effect notwithstanding such
termination. If CF&Co elects to terminate this Agreement as provided in this
Section 11(a),
CF&Co shall provide the required notice as specified in Section 12
(Notices).

    


    (b)       
    The Company shall have the right, by giving ten (10)
days notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this
Agreement.  Any such termination shall be without liability of
any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof
shall remain in full force and effect notwithstanding such
termination.

    


    (c)       
    CF&Co shall have the right, by giving ten (10) days
notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this
Agreement.  Any such termination shall be without liability of
any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof
shall remain in full force and effect notwithstanding such
termination.

    


    
      
        
           


        

        
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    (d)         
  Unless earlier terminated pursuant to this Section 11, this
Agreement shall automatically terminate upon the issuance and sale of all of the
Placement Shares through CF&Co on the terms and subject to the conditions
set forth herein; provided that the provisions
of Section
7(g), Section
9, Section
10, Section
16 and Section
17 hereof shall remain in full force and effect notwithstanding such
termination.

    


    (e)        
   This Agreement shall remain in full force and effect unless
terminated pursuant to Sections 11(a), (b), (c), or (d) above or
otherwise by mutual agreement of the parties; provided, however, that any
such termination by mutual agreement shall in all cases be deemed to provide
that Section
7(g), Section
9, Section
10, Section
16 and Section
17 shall remain in full force and effect.

    


    (f)        
   Any termination of this Agreement shall be effective on the
date specified in such notice of termination; provided, however, that such
termination shall not be effective until the close of business on the date of
receipt of such notice by CF&Co or the Company, as the case may be. If such
termination shall occur prior to the Settlement Date for any sale of Placement
Shares, such Placement Shares shall settle in accordance with the provisions of
this Agreement.

    


    12.       
    Notices.  All
notices or other communications required or permitted to be given by any party
to any other party pursuant to the terms of this Agreement shall be in writing,
unless otherwise specified in this Agreement, and if sent to CF&Co, shall be
delivered to CF&Co at Cantor Fitzgerald & Co., 499 Park Avenue, New
York, New York 10022, fax no. (212) 308-3730, Attention: Capital Markets/Jeff
Lumby, with copies to Stephen Merkel, General Counsel, at the same address, and
DLA Piper LLP (US), 1251 Avenue of the Americas, New York, New York 10020, fax
no. (212) 884-8494, Attention: Dean M. Colucci; or if sent to the Company, shall
be delivered to Essex Property Trust, Inc., 925 East Meadow Drive, Palo Alto,
California 94303, fax no. (650) 320-9833, attention: Michael Dance, Chief
Financial Officer, with a copy to Baker & McKenzie LLP, Two Embarcadero
Center, 11th Floor,
San Francisco, CA 94111-3802, fax no. (415) 576-3099, attention: Stephen
Schrader, Esq. Each party to this Agreement may change such address for notices
by sending to the parties to this Agreement written notice of a new address for
such purpose.  Each such notice or other communication shall be deemed
given (i) when delivered personally or by verifiable facsimile transmission
(with an original to follow) on or before 4:30 p.m., New York City time, on a
Business Day (as defined below), or, if such day is not a Business Day on the
next succeeding Business Day, (ii) on the next Business Day after timely
delivery to a nationally-recognized overnight courier and (iii) on the
Business Day
actually received if deposited in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid). For purposes of this Agreement,
“Business
Day” shall mean any day on which the NYSE and commercial banks in the
City of New York are open for business.

    


    13.         
  Successors
and Assigns.  This Agreement shall inure to the benefit of and
be binding upon the Company and CF&Co and their respective successors and
the affiliates, controlling persons, officers and directors referred to in Section 9 hereof.
References to any of the parties contained in this Agreement shall be deemed to
include the successors and permitted assigns of such party. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and permitted assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. Neither party may
assign its rights or obligations under this Agreement without the prior written
consent of the other party; provided, however, that CF&Co may
assign its rights and obligations hereunder to an affiliate of CF&Co without
obtaining the Company’s consent.

    


    
      
        
           


        

        
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    14.        
   Adjustments for Share
Splits.  The parties acknowledge and agree that all
share-related numbers contained in this Agreement shall be adjusted to take into
account any share split, share dividend or similar event effected with respect
to the Shares.

    


    15.       
    Entire Agreement; Amendment;
Severability.  This Agreement (including all schedules and
exhibits attached hereto and Placement Notices issued pursuant hereto)
constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and CF&Co.  In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable as written by a court of
competent jurisdiction, then such provision shall be given full force and effect
to the fullest possible extent that it is valid, legal and enforceable, and the
remainder of the terms and provisions herein shall be construed as if such
invalid, illegal or unenforceable term or provision was not contained herein,
but only to the extent that giving effect to such provision and the remainder of
the terms and provisions hereof shall be in accordance with the intent of the
parties as reflected in this Agreement.

    


    16.       
    Applicable Law; Consent to
Jurisdiction. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York without regard to
the principles of conflicts of laws. Each party hereby irrevocably submits to
the non-exclusive jurisdiction of the state and federal courts sitting in the
City of New York, borough of Manhattan, for the adjudication of any dispute
hereunder or in connection with any transaction contemplated hereby, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is
improper.  Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof (certified or registered mail, return
receipt requested) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof.  Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law.

    


    17.       
    Waiver of Jury
Trial.  The Company and CF&Co each hereby irrevocably
waives any right it may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or any transaction contemplated
hereby.

    


    18.       
    Absence of Fiduciary
Relationship.  The Company
acknowledges and agrees that:

    


    (a)        
   CF&Co has been retained solely to act as underwriter in
connection with the sale of the Shares and that no fiduciary, advisory or agency
relationship between the Company and CF&Co has been created in respect of
any of the transactions contemplated by this Agreement, irrespective of whether
CF&Co has advised or is advising the Company on other matters;

    


    
      
        
           


        

        
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    (b)        
   the Company is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement;

    


    (c)        
   the Company has been advised that CF&Co and its affiliates
are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and that CF&Co has no obligation to
disclose such interests and transactions to the Company by virtue of any
fiduciary, advisory or agency relationship; and

    


    (d)      
     the Company waives, to the fullest extent
permitted by law, any claims it may have against CF&Co, for breach of
fiduciary duty or alleged breach of fiduciary duty and agrees that CF&Co
shall have no liability (whether direct or indirect) to the Company in respect
of such a fiduciary claim or to any person asserting a fiduciary duty claim on
behalf of or in right of the Company, including stockholders, partners,
employees or creditors of the Company.

    


    19.      
     Counterparts.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of an executed Agreement by one party to the other may be
made by facsimile transmission.

    


    [Remainder
of Page Intentionally Blank]

    


    
      
        
           


        

        
          - 26
-

          
            

          

        

        
           


        

      

    

    


    If the
foregoing correctly sets forth the understanding between the Company and
CF&Co, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and CF&Co.

    


    
      
        
          
            	 
      	
                    Very
      truly yours,

                  
	 
      	 
      
	 
      	
                    ESSEX
      PROPERTY TRUST, INC.

                  
	 
      	 
      
	 
      	 
      
	 
      	
                    By:     /s/   Michael
      T. Dance

                  
	 
      	
                    Name:  Michael
      T. Dance

                  
	 
      	
                    Title:  EVP,
      Chief Financial Officer

                  
	 
      	 
      
	 
      	 
      
	 
      	
                    ACCEPTED
      as of the date

                  
	 
      	
                    first-above
      written:

                  
	 
      	 
      
	 
      	
                    CANTOR
      FITZGERALD & CO.

                  
	 
      	 
      
	 
      	 
      
	 
      	
                    By:  /s/ Jeffrey
      Lumby

                  
	 
      	
                    Name:  Jeffrey
      Lumby

                  
	 
      	
                    Title:  Managing
      Director

                  


          

        

      

    

    


    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

    


    SCHEDULE
1

    


    FORM OF PLACEMENT
NOTICE

     

     

    
      	
              From:

            	
              [                           ]

            


    

    
      	
              Cc:

            	
              [                           ]

            


    

    
      	
              To:

            	
              [                           ]

            


    

    
      	
              Subject:

            	
              Controlled
      Equity Offering—Placement Notice

            


    

    


    Gentlemen:

    


    Pursuant
to the terms and subject to the conditions contained in the Controlled Equity
OfferingSM Sales Agreement between
Essex Property Trust, Inc. (the “Company”), and Cantor
Fitzgerald & Co. (“CF&Co”) dated May
6, 2009 (the “Agreement”), I hereby
request on behalf of the Company that CF&Co sell up to [ ] shares of the
Company’s common stock, par value $0.0001 per share, at a minimum market price
of $_______ per share.

    


    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

    


    SCHEDULE
2

    


    


    


    CANTOR FITZGERALD &
CO.

    


    
      	
              Peter
      Dippolito

            	
              pdippolito@cantor.com

            


    

    
      	
              Joshua
      Feldman

            	
              jfeldman@cantor.com

            


    

    
      	
              Jeff
      Lumby

            	
              jlumby@cantor.com

            


    

    


    ESSEX PROPERTY TRUST,
INC.

    


    
      	
              Keith
      Guericke

            	
              kguericke@essexpropertytrust.com

            


    

    
      	
              Michall
      Schall

            	
              mschall@essexpropertytrust.com

            


    

    
      	
              Michael
      Dance

            	
              mdance@essexpropertytrust.com

            


    

    


    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

    


    SCHEDULE
3

    


    


    


    Compensation

    


    CF&Co
shall be paid compensation equal to up to two percent (2.0%) of the gross
proceeds from the sales of Shares pursuant to the terms of this
Agreement.

    


    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

    


    Exhibit
7(n)(i)

    


    MATTERS
TO BE COVERED BY INITIAL OPINION OF

    


    BAKER
& MCKENZIE LLP

    


    
      	
               
      

            	
              (i)

            	
              As
      of December 31, 2006, the Company had an authorized capitalization as set
      forth in its statements of financial condition included in the Company’s
      Annual Report on Form 10-K for the year ended December 31, 2006. All of
      the outstanding shares of Common Stock and Preferred Stock conform, in all
      material respects, to the description thereof contained in the
      Prospectus.

            


    

    


    
      	
               
      

            	
              (ii)

            	
              The
      Company is a corporation duly incorporated and existing under and by
      virtue of the laws of the State of Maryland and is in good standing with
      the State Department of Assessments and Taxation of
      Maryland.  The Company has the corporate power to own, lease and
      operate its properties and conduct its business in all material respects
      as described under the headings “Item 1 Business” and “Item 2 Properties”
      in the Company’s Annual Report on Form 10-K for the year ended December
      31, 2006.  The Operating Partnership is validly existing as a
      limited partnership in good standing under the laws of the jurisdiction of
      its incorporation or organization with the power to own, lease and operate
      its properties and conduct its business in all material respects as
      described under the headings “Item 1 Business” and “Item 2 Properties” in
      the Company’s Annual Report on Form 10-K for the year ended December 31,
      2006.

            


    

    


    
      	
               
      

            	
              (iii)

            	
              To
      the knowledge of such counsel, the Company and the Operating Partnership
      is duly qualified or registered to transact business in each jurisdiction
      set forth on Schedule 1 hereto in which the failure, individually or in
      the aggregate, to be so qualified could reasonably be expected to have a
      Material Adverse Effect.  To the knowledge of such counsel,
      other than the Company’s interests in the Subsidiaries or as disclosed in
      the Prospectus, the Company does not own, directly or indirectly, any
      capital stock or other equity securities of any other corporation or any
      ownership interest in any limited liability company, partnership, joint
      venture or other association.

            


    

    


    
      	
               
      

            	
              (iv)

            	
              The
      execution, delivery and performance of the Sales Agreement by the Company
      and the transactions contemplated thereby do not conflict with, or result
      in any breach of, or constitute a default under (nor constitute an event
      that with notice, lapse of time or both would constitute a breach of or
      default under), (i) the charter or bylaws of the Company, (ii) any
      agreement listed on Schedule 2 hereto or (iii) to our knowledge, any
      Applicable Law or any decree, judgment or order applicable to the Company
      (other than state and foreign securities or blue sky laws, as to which we
      express no opinion), except in the case of clauses (ii) and (iii) for such
      conflicts, breaches or defaults, which individually or in the aggregate
      could not be reasonably expected to have a Material Adverse
      Effect.

            


    

    


    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

    


    
      	
               
      

            	
              (v)

            	
              The
      Company has the corporate power to execute and deliver the Agreement and
      to issue, sell and deliver the Shares as contemplated in the
      Agreement.  The Agreement has been duly authorized, executed
      and, so far as is known to us, delivered by the
  Company.

            


    

    


    
      	
               
      

            	
              (vi)

            	
              No
      approval, authorization, consent or order of, or filing with, any federal
      or state governmental or regulatory commission, board, body, authority or
      agency is required under Applicable Law in connection with the execution,
      delivery and performance of the Sales Agreement, or the consummation of
      the transactions contemplated thereby, by the Company, other than such as
      have been obtained or made under the Securities Act or the Securities
      Exchange Act of 1934, as amended, and such approvals as have been obtained
      in connection with the listing of the Placement Shares on the New York
      Stock Exchange; provided, however, that
      we do not express any opinion as to any necessary qualification under the
      securities or blue sky laws of the various jurisdictions in which the
      Placement Shares are being offered by CF&Co or any approval of the
      underwriting terms and arrangements relating to the offering of the
      Placement Shares by the NASD.

            


    

    


    
      	
               
      

            	
              (vii)

            	
              The
      Shares, when issued and delivered by the Company pursuant to the
      Resolutions and the Agreement against payment of the consideration set
      forth therein, will be duly authorized, validly issued, fully paid and
      nonassessable.

            


    

    


    
      	
               
      

            	
              (viii)

            	
              The
      issuance and sale of the Placement Shares by the Company is not subject to
      preemptive or other similar rights arising by operation of the Maryland
      General Corporation Law under the charter or bylaws of the Company or
      under any agreement known to us to which the Company is a
      party.

            


    

    


    
      	
               
      

            	
              (ix)

            	
              To
      our knowledge, except as otherwise described in the Registration
      Statement, the Prospectus, the documents incorporated therein by reference
      or the exhibits filed in connection therewith, there are no persons with
      registration or other similar rights to have any securities registered
      pursuant to the Registration
Statement.

            


    

    


    
      	
               
      

            	
              (x)

            	
              At
      the time the Registration Statement became effective, the Registration
      Statement and, as of the date of the Sales Agreement and the date hereof,
      the Prospectus (in each case, other than the financial statements,
      financial schedules and other financial and statistical data included or
      incorporated by reference in, or excluded from, the Registration Statement
      and the Prospectus, as to which we express no opinion) complied as to form
      in all material respects with the requirements of the Securities Act and
      the rules and regulations promulgated
  thereunder.

            


    

    


    
      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

    


    
      	
               
      

            	
              (xi)

            	
              The
      statements under the caption “Description of Capital Stock” in the
      Prospectus, insofar as such statements constitute a summary of the legal
      matters referred to therein, constitute accurate summaries thereof in all
      material respects as of the date of such
  statements.

            


    

    


    
      	
               
      

            	
              (xii)

            	
              To
      our knowledge, there are no actions, suits or proceedings or inquiries or
      investigations, pending or threatened, against the Company or any of its
      officers and directors or to which the Company’s assets (excluding the
      Company’s direct or indirect interests in the Subsidiaries) are subject,
      at law or in equity, before or by any federal, state, local or foreign
      governmental or regulatory commission, board, body, authority, arbitration
      panel or agency that are required to be described in the Prospectus or the
      documents incorporated therein by reference but are not so
      described.

            


    

    


    
      	
               
      

            	
              (xiii)

            	
              The
      Company is not an “investment company” required to register under the
      Investment Company Act of 1940, as amended, (the “1940 Act”) or a company
      “controlled” by an “investment company” within the meaning of the 1940
      Act.

            


    

    


    
      	
               
      

            	
              (xiv)

            	
              The
      Shares to be issued and sold by the Company pursuant to the Sales
      Agreement are duly listed, and admitted and authorized for trading,
      subject to official notice of issuance, on the
  NYSE.

            


    

    


    
      	
               
      

            	
              (xv)

            	
              Commencing
      with its taxable year ended December 31, 1994 through its taxable year
      ended December 31, 2006, the Company has been organized and has operated
      in conformity with the requirements for qualification and taxation as a
      REIT under the Code and its organization and proposed method of operation
      will enable it to continue to meet the requirements for qualification and
      taxation as a REIT; and

            


    

    


    
      	
               
      

            	
              (xvi)

            	
              The
      statements contained in the Prospectus Supplement under the caption
      “Certain Material U.S. Federal Income Tax Considerations” insofar as such
      statements constitute matters of law, summaries of legal matters, or legal
      conclusions, have been reviewed by us and fairly present and summarize, in
      all material respects, the matters referred to
  therein.

            


    

    


    The
Registration Statement became effective under the Securities Act in 2003 and, to
our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act or proceedings therefor
initiated or threatened by the Commission.

    


    In
addition, we have reviewed the Registration Statement and the Prospectus and
participated in conferences with officers and other representatives of the
Company, representatives of independent public accountants for the Company at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed, although we are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained or incorporated by reference in the Registration Statement and the
Prospectus and have not made any independent check or verification thereof,
during the course of such participation, nothing has come to our attention that
leads us to believe that the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Sales Agreement or the date hereof, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it being
understood that we express no belief with respect to the financial statements,
financial schedules and other financial or statistical data included or
incorporated by reference in, or excluded from, the Registration Statement or
the Prospectus).

    


    
      
        
           


        

        
          3

          
            

          

        

        
           


        

      

    

    


    The
limitations inherent in the independent verification of factual matters and the
character of determinations involved in the preparation of a disclosure document
are such, however, that we do not assume any responsibility, except as otherwise
stated in opinion (xiii) above, for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or Prospectus or any
amendments or supplements thereto (including any of the documents incorporated
by reference therein).

    


    In
rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the California Corporations
Code or the federal law of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion (which shall be satisfactory in form
and substance to the Underwriter, shall expressly state that the Underwriter and
Underwriter’s counsel may rely on such opinion as if the opinion were addressed
to them and shall be furnished to the Underwriter) of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriter; provided,
however, that such counsel shall further state that they believe that
they, the Underwriter and the Underwriter’s counsel are justified in relying
upon such opinion of other counsel, and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company and
public officials.

    


    
      
        
           


        

        
          4

          
            

          

        

        
           


        

      

    

    


    Exhibit
7(n)(ii)

    


    


    


    Matters to be covered by
subsequent Company Counsel Opinions

    


    The
Registration Statement, when it became effective, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof with the
Commission, complied as to form in all material respects with the requirements
for registration statements on Form S-3 under the Securities Act and the rules
and regulations of the Commission thereunder, and each of the documents
incorporated by reference in the Registration Statement or the Prospectus, or
any amendment or supplement thereto, on the date of filing thereof with the
Commission, complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission thereunder;
it being understood, however, that we express no opinion with respect to the
financial statements, schedules or other financial or statistical data included
or incorporated by reference in, or omitted from, the Registration Statement or
the Prospectus or any other document.  In passing upon the compliance
as to form of the Registration Statement and the Prospectus and any other
document, we have assumed that the statements made and incorporated by reference
therein are correct and complete.

    


    (a)        
   The Registration Statement has become effective under the
Securities Act and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted by the Commission.

    


    (b)         
  To our knowledge and other than as set forth in the Prospectus,
there are no legal or governmental proceedings, pending or threatened, to which
the Company is a party required to be described in the Prospectus that are not
described as required.

    


    In
addition, we have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, and your representatives, at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and the Prospectus,
during the course of such participation, no facts came to our attention that
caused us to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus (including the
Incorporated Documents), as of its date, contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that we express no belief with respect
to the financial statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus.

    


    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

    


    *  Note:
“Registration Statement” and “Prospectus” will be defined to include documents
incorporated by reference therein (“Incorporated
Documents”).

    


    
      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

    


    Exhibit
7(m)

    


    


    


    OFFICER
CERTIFICATE

    


    The
undersigned, the duly qualified and elected Michael T. Dance, of
ESSEX PROPERTY TRUST, INC.
(“Company”),
a Maryland corporation, does hereby certify in such capacity and on behalf of
the Company, pursuant to Section 7(m) of the
Sales Agreement dated May 6, 2009 (the “Sales
Agreement”) between the Company and Cantor Fitzgerald & Co., that to
the best of the knowledge of the undersigned.

    


    (i)       
     The representations and warranties of the Company
in Section 6 of
the Sales Agreement (A) to the extent such representations and warranties are
subject to qualifications and exceptions contained therein relating to
materiality or Material Adverse Effect, are true and correct on and as of the
date hereof with the same force and effect as if expressly made on and as of the
date hereof, except for those representations and warranties that speak solely
as of a specific date and which were true and correct as of such date, and (B)
to the extent such representations and warranties are not subject to any
qualifications or exceptions, are true and correct in all material respects as
of the date hereof as if made on and as of the date hereof with the same force
and effect as if expressly made on and as of the date hereof except for those
representations and warranties that speak solely as of a specific date and which
were true and correct as of such date; and

    


    (ii)      
     The Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied pursuant to
the Sales Agreement at or prior to the date hereof.

    


    


    


    
      
        
          
            
              
                	 
      	
                        By:

                      	
                        /s/   Michael T.
      Dance

                      
	 
      	 
      	Name:
      Michael T. Dance
	 
      	 
      	Title:
      EVP, Chief Financial
Officer


              

            

          

        

      

    

    


    


    


    Date:
May 6,
2009