10-Q Exhibit 10.4




Exhibit 10.4


                        SECOND AMENDMENT TO

                             SECOND AMENDED AND RESTATED CREDIT AGREEMENT


THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this "Amendment") is entered into
as of September 24, 2003, among ESSEX PORTFOLIO, L.P., a California limited
partnership (the "Borrower"), the lenders party hereto (each, a
"Lender," and collectively, the "Lenders"),
and Bank of America, N.A., as administrative agent (the "Administrative
Agent") for the Lenders.


                           RECITALS:


WHEREAS, the Borrower, Banc Of America Securities LLC, as
sole lead arranger and sole book runner, the Agent and the Lenders are party to
that certain Second Amended and Restated Revolving Credit Agreement, dated as of
May 15, 2002, as amended by the First Modification Agreement to Second
Amended and Restated Revolving Credit Agreement (as further amended from time to
time, the "Credit Agreement").


WHEREAS, the Borrower has requested that the Lenders enter
into certain amendments to the Credit Agreement, and the Lenders a party hereto
have agreed to such amendments.


                           AGREEMENT:


NOW THEREFORE, in consideration of the mutual covenants
and agreements herein contained, the parties hereto covenant and agree as
follows:


	Definitions; References; Interpretation.



	Unless otherwise specifically defined herein, each term
used herein (including in the Recitals hereof) which is defined in the Credit
Agreement shall have the meaning assigned to such term in the Credit
Agreement.


	As used herein, "Amendment Documents"
means this Amendment, the Consent and Agreement of Guarantors related hereto,
and the Credit Agreement (as amended by this Amendment).


	Each reference to "this Agreement,"
"hereof," "hereunder,"
"herein" and "hereby" and each other similar
reference contained in the Credit Agreement, and each reference to "the
Credit Agreement" and each other similar reference in the other Loan
Documents, shall from and after the Amendment Date (as defined below) refer to
the Credit Agreement, as amended hereby.


	The rules of interpretation set forth in Section
1.2 of the Credit Agreement shall be applicable to this
Amendment.


	Amendment to Credit Agreement.  Subject to the
terms and conditions hereof, effective the date that all of the conditions set
forth in Section 4 of this Amendment are met (the "Amendment
Date"), the following amendments shall be effective:



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	Section 6.9 of the Credit Agreement is
amended to read in full as follows:

"6.9  Maximum Total Liabilities to Gross Asset
Value.  Total Liabilities at the end of each calendar quarter shall not
exceed fifty-five percent (55%) of Gross Asset Value at such time."



	Section 11.6 of the Credit Agreement is
amended by inserting the following text at the end thereof:

"Notwithstanding anything herein to the contrary,
each of the parties hereto (and each employee, representative or other agent of
any such party) may disclose without limitation of any kind, any information
with respect to the "tax treatment" and "tax structure" (in
each case, within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to such party relating to such
tax treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, the Letters of Credit
and the transactions contemplated hereby."



	Representations and Warranties.  The
Borrower hereby represents and warrants to the Administrative Agent and the
Lenders as follows:



	No Default or Event of Default has occurred and is
continuing (or would result from the amendment of the Credit Agreement
contemplated hereby).


	The execution, delivery and performance by the Borrower
of the Amendment Documents have been duly authorized by all necessary corporate
and other action and do not and will not require any registration with, consent
or approval of, or notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable.


	The Amendment Documents constitute the legal, valid and
binding obligations of the Borrower, enforceable against it in accordance with
their respective terms, except to the extent that the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting creditor's rights generally and by equitable principles
(regardless of whether enforcement is sought in equity or at law).


	On and as of the Amendment Date, all representations and
warranties of the Borrower contained in the Credit Agreement are true and
correct in all material respects (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date).



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	The Borrower is entering into this Amendment on the basis
of its own investigation and for its own reasons, without reliance upon the
Administrative Agent and the Lenders or any other Person.


	The Borrower's obligations under the Credit Agreement and
under the other Loan Documents are not subject to any defense, counterclaim,
set-off, right of recoupment, abatement or other claim.

	Conditions of Effectiveness.



	The effectiveness of Section 2 of this Amendment
shall be subject to the satisfaction of each of the following conditions
precedent:



	The Administrative Agent shall have received from the
Borrower and the Required Lenders a duly executed original (or, if elected by
the Administrative Agent, an executed facsimile copy) of this
Amendment.


	The Administrative Agent shall have received the consent
of each party to a Guaranty, in form and substance satisfactory to the
Administrative Agent, in their capacities as such, to the execution and delivery
hereof by the Borrower.


	The Administrative Agent shall have received evidence of
payment by the Borrower of all fees, costs and expenses due and payable as of
the date hereof hereunder and under the Credit Agreement, including any fees
arising under or referenced in Section 5 of this Amendment and any costs
and expenses payable under Section 6(g) of this Amendment (including the
Administrative Agent's costs, expenses and attorneys' fees, to the extent
invoiced on or prior to the date hereof).


	The Administrative Agent shall have received all other
documents it or the Required Lenders may reasonably request relating to any
matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent.


	For purposes of determining compliance with the
conditions specified in Section 4(a), each Lender that has executed
this Amendment shall be deemed to have consented to, approved or accepted, or to
be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender,
unless, prior to the Amendment Date, the Administrative Agent shall have
received notice from such Lender specifying its objection thereto.


	From and after the Amendment Date, the Credit Agreement
is amended as set forth herein.  Except as expressly amended pursuant hereto,
the Credit Agreement shall remain unchanged and in full force and effect and is
hereby ratified and confirmed in all respects.


	The Administrative Agent will notify the Borrower and the
Lenders of the occurrence of the Amendment Date.



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	Fee.  The Borrower shall pay (through the
Administrative Agent) to each Lender that executes and delivers this Amendment
by no later than 12:00 p.m. (Pacific time) on September 24, 2003, a non-
refundable fee equal to $5,000.  Such amendment fee shall be fully-earned upon
becoming due and payable, shall not be refundable for any reason whatsoever and
shall be in addition to any fee, cost or expense otherwise payable by the
Borrower pursuant to the Credit Agreement or this Amendment.

	Miscellaneous.



	The Borrower acknowledges and agrees that the
execution and delivery by the Administrative Agent and the Lenders of this
Amendment shall not be deemed to create a course of dealing or an obligation to
execute similar waivers or amendments under the same or similar circumstances in
the future.


	This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns.


	This Amendment shall be governed by and construed in
accordance with the law of the State of California, without regard to any
conflicts of laws principal.


	This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.  Each of
the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Administrative Agent of a facsimile transmitted document
purportedly bearing the signature of a Lender or the Borrower shall bind such
Lender or the Borrower, respectively, with the same force and effect as the
delivery of a hard copy original.  Any failure by the Administrative Agent to
receive the hard copy executed original of such document shall not diminish the
binding effect of receipt of the facsimile transmitted executed original of such
document of the party whose hard copy page was not received by the
Administrative Agent.


	This Amendment and the other Amendment Documents contain
the entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein.  This Amendment supersedes all prior drafts and
communications with respect hereto.  This Amendment may not be amended except in
accordance with the provisions of Section 11.1 of the Credit
Agreement.


	If any term or provision of this Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Amendment, the
Credit Agreement or the Loan Documents.


	The Borrower agrees to pay or reimburse the
Administrative Agent upon demand, for all reasonable costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the
Administrative Agent in connection with the development, preparation,
negotiation, execution and delivery of the Amendment Documents.



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[Signature pages follow]

 

 

 

 

 






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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.




ESSEX PORTFOLIO, L.P.,

a California limited partnership


By:ESSEX PROPERTY TRUST, INC.,

A Maryland corporation, its General Partner


By:______________________

Name:______________________

Title:______________________


 

 















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BANK OF AMERICA, N.A.,

as Administrative Agent and Lender


By:______________________

Name:______________________

Title:______________________


 

 















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UNION BANK OF CALIFORNIA, N.A.,

as Lender


By:______________________

Name:______________________

Title:______________________


 

 















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BANK ONE, N.A.,

as Lender


By:______________________

Name:______________________

Title:______________________


 

 















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COMERICA BANK,

as Lender


By:______________________

Name:______________________

Title:______________________


 

 















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KEYBANK, NATIONAL ASSOCIATION,

as Lender


By:______________________

Name:______________________

Title:______________________


 

 















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PNC BANK, NATIONAL ASSOCIATION,

as Lender


By:______________________

Name:______________________

Title:______________________


 

 















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EUROHYPO AG, NEW YORK BRANCH

as Lender

(formerly, Dresdner Bank, AG, New York and Grand Cayman Branches)


By:______________________

Name:______________________

Title:______________________


By:______________________

Name:______________________

Title:______________________


 

 















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CHEVY CHASE BANK, F.S.B.,

as Lender


By:______________________

Name:______________________

Title:______________________


 

 















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                                   CONSENT AND AGREEMENT OF GUARANTORS


Each of the undersigned, in its capacity as a
Guarantor, acknowledges that its consent to the foregoing Second Amendment To
Second Amended And Restated Revolving Credit Agreement (the
"Amendment") is not required, but each of the undersigned
nevertheless does hereby consent to the foregoing Amendment and to the
agreements referred to therein. Nothing herein shall in any way limit any of the
terms or provisions of the Guaranty of the undersigned or any other Loan
Document executed by the undersigned (as the same may be amended from time to
time), all of which are hereby ratified and affirmed in all respects. This
Consent and Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument.




GUARANTORS:



	
ESSEX PROPERTY TRUST, INC., a Maryland corporation

By:___________________ 

Name:___________________

Title:___________________
	
JMS ACQUISITION LLC, a Delaware limited liability company

By:  ESSEX PORTFOLIO, L.P., a California limited partnership, its sole member
and manager


By:  Essex Property Trust, Inc., a Maryland corporation, its General
Partner


 


By:___________________ 

Name:___________________

Title:___________________



	
JAYSAC, LTD, a Texas limited partnership
By:  JAYSAC GP CORP., a Delaware corporation, its General Partner


 


By:___________________ 

Name:___________________

Title:___________________


	
JAYSAC GP CORP., a Delaware corporation


 

By:___________________ 

Name:___________________

Title:___________________