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EXHIBIT 10.9
ESSEX PROPERTY TRUST, INC.
777 California Avenue
Palo Alto, CA 94304
July 1, 1996
Tiger/Westbrook Real Estate Fund, L.P.
Tiger/Westbrook Real Estate Co-Investment
Partnership, L.P.
c/o Westbrook Partners, L.L.C.
101 Park Avenue
47th Floor
New York, NY 10178
Attention: Mr. Keith Gelb
Re: Purchase of 8.75% Convertible Preferred Stock, Series
1996A (the "Preferred Stock"), in accordance with
that certain Stock Purchase Agreement between Essex
Property Trust, Inc. ("Essex"), and each of you,
dated as of June 20, 1996, as amended (as amended,
the "Stock Purchase Agreement"), and the facility
arrangements created pursuant to that certain Loan
Facility Agreement, dated as of June 20, 1996, as
amended (as amended, the "Loan Agreement"), between
Essex and T/W Essex Funding, L.L.C. ("Funding"), and
guaranteed by Essex Portfolio, L.P. (the "Operating
Partnership")
Gentlemen:
This will confirm to you the binding agreement of Essex and the
Operating Partnership that:
(a) each will use its best efforts to cause a meeting of the
shareholders of Essex to occur on or before September 30, 1996, as contemplated
in the Stock Purchase Agreement,
(b) each will use reasonable efforts to secure the approval by
the shareholders of Essex in requisite number to confirm and approve the
arrangements contemplated by the Stock Purchase Agreement and the Loan
Agreement, and
(c) each will use reasonable efforts to obtain from the
Internal Revenue Service a ruling of the type and to the effect contemplated by
Essex's Article Eighth (9)(a) of Essex' Articles of Amendment and Restatement,
and
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July 1, 1996
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(d) upon and after the date of the Defining Event (as defined
in the Stock Purchase Agreement) neither Essex nor the Operating Partnership
will solicit or receive from any third party, including, without limitation, in
any public offering or private offering, funds in exchange for equity interests
or interests convertible into or exchangeable for equity interests in either
Essex or the Operating Partnership, until any Option (as defined in the Loan
Agreement) has been exercised and all funds available thereunder have been
requested by Essex in accordance therewith (and, in connection with Option D as
set forth in the Loan Agreement, if it shall be in effect, Funding shall have
been permitted to exercise its option to provide, and if so exercising shall
have provided, additional funds) provided that these restrictions will not apply
to (i) a public offering of Essex's Common Stock as to which the related
preliminary prospectus supplement or prospectus supplement pursuant to Essex's
existing shelf registration statement or a new registration statement is filed
with the Securities and Exchange Commission prior to the Defining Event or (ii)
transactions in which Essex or the Operating Partnership solicit and receive
only non-cash consideration (including, without limitation, real estate).
Each of Essex and the Operating Partnership understand that this letter
is being given to each of you in consideration of your investment pursuant to
the Stock Purchase Agreement and commitments thereunder and the commitments of
Funding pursuant to the Loan Agreement, which is good and valuable consideration
received by each of Essex and Operating Partnership for the undertakings made
herein. This letter is to be deemed amendatory to the Stock Purchase Agreement
with respect to the terms hereof, with the Stock Purchase Agreement being
otherwise confirmed in its entirety, and shall be enforceable against each of
the undersigned as therein provided.
Sincerely,
ESSEX PROPERTY TRUST, INC.
By: /s/ Keith Guericke
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President
ESSEX PORTFOLIO, L.P.
By: Essex Property Trust, Inc.,
as General Partner
By: /s/ Keith Guericke
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President
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July 1, 1996
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ACCEPTED:
TIGER/WESTBROOK REAL ESTATE FUND,
L.P., a Delaware limited partnership
By: Tiger/Westbrook Real Estate Partners
Management, L.L.C., a Delaware limited
liability company, General Partner
By: Westbrook Real Estate Fund I, L.L.C.
a Delaware limited liability company,
Managing Member
By: /s/ William H. Walton III
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William H. Walton III,
Managing Member
By: /s/ Paul D. Kazilionis
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Paul D. Kazilionis,
Managing Member
TIGER/WESTBROOK REAL ESTATE CO-INVESTMENT PARTNERSHIP,
L.P., a Delaware limited partnership
By: Tiger/Westbrook Real Estate Partners Management,
L.L.C., a Delaware limited liability company,
General Partner
By: Westbrook Real Estate Fund I, L.L.C.
a Delaware limited liability company,
Managing Member
By: /s/ William H. Walton III
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William H. Walton III,
Managing Member
By: /s/ Paul D. Kazilionis
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Paul D. Kazilionis,
Managing Member