EOP OPERATING LIMITED PARTNERSHIP, Issuer, EQUITY OFFICE PROPERTIES TRUST, Co- Obligor and Guarantor and Trustee SECOND SUPPLEMENTAL INDENTURE Dated as of June 27, 2006
Exhibit 4.1
EXECUTION COPY
EOP OPERATING LIMITED PARTNERSHIP,
Issuer,
EQUITY OFFICE PROPERTIES TRUST,
Co-Obligor and Guarantor
and
U.S. BANK NATIONAL ASSOCIATION
(FORMERLY, U.S. BANK TRUST NATIONAL ASSOCIATION),
(FORMERLY, U.S. BANK TRUST NATIONAL ASSOCIATION),
Trustee
Dated as of June 27, 2006
4.00% Exchangeable Senior Notes due 2026
THIS SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), is entered into as
of June 27, 2006, among EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership (the
“Operating Partnership” or “Issuer”), having its principal offices at Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, EQUITY OFFICE PROPERTIES TRUST, a Maryland real estate
investment trust (the “Company” or “Guarantor”), having its principal offices at Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, and U.S. BANK NATIONAL ASSOCIATION (formerly,
U.S. Bank Trust National Association), a bank duly organized and existing under the laws of the
United States, as Trustee hereunder (the “Trustee”), having its Corporate Trust Office at 000 Xxxx
Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Issuer and the Trustee entered into that certain Indenture dated as of August 29,
2000 (the “Original Indenture”), relating to the Issuer’s senior debt securities;
WHEREAS, the Issuer, the Guarantor and the Trustee entered into that certain First
Supplemental Indenture, dated as of June 18, 2001, to provide for the Guarantee in respect of the
Guaranteed Securities, to establish the terms of the Guarantee and to provide for the rights,
obligations and duties of the Trustee with respect to the Guarantee (the “First Supplemental
Indenture”);
WHEREAS, pursuant to Section 901 of the Indenture, the Issuer, the Guarantor and the Trustee
may enter into supplemental indentures to establish the terms and provisions of a series of
Securities issued pursuant to the Indenture;
WHEREAS, pursuant to Section 301 of the Indenture, the Issuer, the Guarantor and the Trustee
desire to establish the terms of a series of Guaranteed Securities entitled the “4.00% Exchangeable
Senior Notes due 2026” of the Operating Partnership in respect of which the Company shall be a
co-obligor (the “Notes”); and
WHEREAS, the Issuer, the Company and the Trustee have duly authorized the execution and
delivery of this instrument to establish the terms of the Notes set forth herein and have done all
things necessary to make this instrument (together with the Original Indenture and the First
Supplemental Indenture, the “Indenture”) a valid agreement of the parties hereto, in accordance
with its terms;
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, and for other good and valuable consideration the receipt of which is hereby acknowledged,
and for the equal and proportionate benefit of the Holders of the Securities, the Issuer, the
Company and the Trustee agree as follows:
ARTICLE ONE
DEFINITIONS
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used in this instrument and not
otherwise defined herein shall have the meanings assigned to such terms in the Original Indenture,
as
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supplemented by the First Supplemental Indenture, or in the form of Note attached as Exhibit A
hereto.
“Additional Notes” has the meaning provided in Section 2.02 hereof.
“Additional Interest” has the meaning specified for Liquidated Damages in the Registration
Rights Agreement.
“Additional Interest Notice” has the meaning specified in Section 2.28.
“Additional Shares” has the meaning specified in Section 2.10.
“Applicable Exchange Period” means, with respect to an exchange of Notes, the 10 consecutive
Trading Day period commencing on the third Trading Day following the date the Notes are tendered
for exchange.
“Average Price” means, with respect to an exchange of Notes, an amount equal to the average of
the Closing Sale Prices of Company Common Shares for each Trading Day in the Applicable Exchange
Period.
“Business Day” means, with respect to any Note, any day, other than a Saturday, Sunday or any
other day on which banking institutions in The City of New York are authorized or obligated by law
or executive order to close.
“Change in Control” means the occurrence at any time any of any of the following events: (1)
consummation of any transaction or event (whether by means of a share exchange or tender offer
applicable to Company Common Shares, a liquidation, consolidation, recapitalization,
reclassification, combination or merger of the Company or a sale, lease or other transfer of all or
substantially all of the consolidated assets of the Company) or a series of related transactions or
events pursuant to which all of the outstanding Company Common Shares are exchanged for, converted
into or constitute solely the right to receive, cash, securities or other property; (2) any
“person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the
Exchange Act, whether or not applicable), other than the Company, the Operating Partnership or any
majority-owned subsidiary of the Company or the Operating Partnership or any employee benefit plan
of the Company, the Operating Partnership or such subsidiary, is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 70% of the
total voting power in the aggregate of all classes of shares of beneficial interest of the Company
then outstanding entitled to vote generally in elections of trustees; (3) during any period of 12
consecutive months after the date of original issuance of the Notes (for so long as the Company is
the general partner of the Operating Partnership immediately prior to such transaction or series of
related transactions), persons who at the beginning of such 12-month period constituted the Board
of Trustees of the Company, together with any new persons whose election was approved by a vote of
a majority of the persons then still comprising the Board of Trustees of the Company who were
either members of the Board of Trustees of the Company at the beginning of such period or whose
election, designation or nomination for election was previously so approved, cease for any reason
to constitute a majority of the Board of Trustees of the Company; or (4) the Company ceases to be
the general partner of the Operating Partnership or ceases to control the Operating Partnership;
provided, however, that
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the pro rata distribution by the Company to its shareholders of its shares of beneficial
interest or shares of any of the Company’s other direct or indirect subsidiaries will not, in and
of itself, constitute a Change in Control for purposes of this definition. Notwithstanding the
foregoing, even if any of the events specified in the preceding clauses (1) through (4) have
occurred, except as specified in clause (x), a Change in Control will not be deemed to have
occurred if either: (x) the Closing Sale Price per Company Common Share for any five Trading Days
within (i) the period of 10 consecutive Trading Days ending immediately after the later of the
Change in Control or the public announcement of the Change in Control, in the case of a Change in
Control relating to an acquisition of capital stock, or (ii) the period of 10 consecutive Trading
Days ending immediately after the Change in Control, in the case of a Change in Control relating to
a merger, consolidation or asset sale, equals or exceeds 105% of the Exchange Price applicable to
the Notes in effect on each of those Trading Days; provided, however, that the exception to the
definition of “Change in Control” specified in this clause (x) shall not apply in the context of a
Change in Control for purposes of Section 2.10 or Section 2.11(d); or (y) at least 90% of the
consideration (excluding cash payments for fractional shares and cash payments made pursuant to
dissenters’ appraisal rights) in a merger, consolidation or other transaction otherwise
constituting a Change in Control consists of shares of common stock (or depositary receipts or
other certificates representing common equity interests) traded on a U.S. national securities
exchange or quoted on the Nasdaq National Market or another established automated over-the-counter
trading market in the United States (or will be so traded or quoted immediately following such
merger, consolidation or other transaction) and as a result of the merger, consolidation or other
transaction the Notes become exchangeable into such shares of common stock (or depositary receipts
or other certificates representing common equity interests). For the purposes of this definition,
“person” includes any syndicate or group that would be deemed to be a “person” under Section
13(d)(3) of the Exchange Act.
“Change in Control Purchase Date” has the meaning provided in Section 2.09 hereof.
“Change in Control Purchase Notice” has the meaning provided in Section 2.09 hereof.
“Change in Control Purchase Price” has the meaning provided in Section 2.09 hereof.
“Closing Sale Price” of the Company Common Shares or other capital stock or similar equity
interests or other publicly traded securities on any date means the closing sale price per share
(or, if no closing sale price is reported, the average of the closing bid and ask prices or, if
more than one in either case, the average of the average closing bid and the average closing ask
prices) on such date as reported on the principal U.S. securities exchange on which the Company
Common Shares or such other capital stock or similar equity interests or other securities are
traded or, if the Company Common Shares or such other capital stock or similar equity interests or
other securities are not listed on a U.S. national or regional securities exchange, as reported by
the Nasdaq National Market or by the National Quotation Bureau Incorporated or another established
over-the-counter trading market in the United States. The Closing Sale Price shall be determined
without regard to after-hours trading or extended market making. In the absence of the foregoing,
the Operating Partnership shall determine the Closing Sale Price on such basis as it considers
appropriate.
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“Company” has the meaning provided in the first paragraph of this instrument until a successor
Person shall have become such pursuant to the applicable provisions of the Indenture, and
thereafter “Company” shall mean such successor Person.
“Company Common Shares” means common shares of beneficial interest, par value $0.01 per share,
of the Company.
“Company Notice” has the meaning provided in Section 2.09 hereof.
“Daily Share Amount” has the meaning provided in Section 2.12 hereof.
“Depositary” has the meaning provided in Section 2.03 hereof.
“Effective Date” has the meaning specified in Section 2.10.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Agent” means the office or agency designated by the Operating Partnership where the
Notes may be presented for exchange.
“Exchange Price” means, as of any date of determination, for $1,000 principal amount of Notes,
the quotient of $1,000 divided by the Exchange Rate in effect as of such date, rounded to the
nearest $0.01, with $0.005 rounded upward.
“Exchange Rate” means the number of Company Common Shares by reference to which the Exchange
Value shall be determined, which shall be initially 23.2542 Company Common Shares for each $1,000
principal amount of Notes and as the same shall be adjusted from time to time in accordance with
the provisions hereof and of the Notes.
“Exchange Value” means, for each $1,000 principal amount of Notes, the product of (a) the
applicable Exchange Rate, multiplied by (b) the Average Price.
“Expiration Time” has the meaning specified in Section 2.14.
“Guarantee” means the full and unconditional guarantee provided by the Company in respect of
the Notes as made applicable to the Notes in accordance with the provisions of Section 2.20 hereof.
“Initial Purchasers” means each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Banc of
America Securities LLC, X.X. Xxxxxx Securities Inc. and Wachovia Capital Markets, LLC (each, an
“Initial Purchaser”).
“interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes, including Additional Interest, if any, payable under the terms of the Registration
Rights Agreement.
“Indenture” has the meaning provided in the preamble of this instrument.
“Interest Payment Date” has the meaning provided in Section 2.05 hereof.
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“Net Amount” has the meaning provided in Section 2.12 hereof.
“Net Cash Amount” has the meaning provided in Section 2.12 hereof.
“Net Shares” has the meaning provided in Section 2.12 hereof.
“Notes” has the meaning provided in Section 2.01 hereof which shall be substantially in the
form attached as Exhibit A hereto.
“Operating Partnership” has the meaning specified in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of the
Indenture, and thereafter “Operating Partnership” shall mean such successor Person.
“Optional Repurchase Date” has the meaning provided in Section 2.08 hereof.
“Optional Repurchase Notice” has the meaning provided in Section 2.08 hereof.
“Optional Repurchase Price” has the meaning provided in Section 2.08 hereof.
“PORTALSM Market” means The PORTAL Market operated by the Nasdaq Stock Market or
any successor thereto.
“Principal Return” has the meaning provided in Section 2.12 hereof.
“Purchase Agreement” means the Purchase Agreement, dated June 22, 2006, among the Company, the
Operating Partnership and the Initial Purchasers.
“Redemption Date” means, with respect to any Note or portion thereof to be redeemed in
accordance with the provisions of Section 2.07 hereof, the date fixed for such redemption in
accordance with the provisions of Section 2.07 hereof.
“Redemption Price” has the meaning provided in Section 2.07 hereof.
“Reference Dividend” has the meaning specified in Section 2.14.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of June 27,
2006, among the Company, the Operating Partnership and the Initial Purchasers, as amended from time
to time in accordance with its terms.
“Regular Record Date” has the meaning provided in Section 2.05 hereof.
“Restricted Securities” has the meaning specified in Section 2.25.
“Rule 144A” means Rule 144A as promulgated under the Securities Act as it may be amended from
time to time hereafter.
“Securities Act” means the Securities Act of 1933, as amended.
“Spin-Off” has the meaning specified in Section 2.14.
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“Stock Price” has the meaning specified in Section 2.10.
“Trading Day” means a day during which trading in securities generally occurs on the New York
Stock Exchange or, if Company Common Shares are not then listed on the New York Stock Exchange, on
the principal other U.S. national or regional securities exchange on which Company Common Shares
are then listed or, if Company Common Shares are not then listed on a U.S. national or regional
securities exchange, on the Nasdaq National Market or, if Company Common Shares are not then quoted
on the Nasdaq National Market, on the principal other market on which Company Common Shares are
then traded.
“Trading Price” means, with respect to the Notes on any date of determination, the average of
the secondary market bid quotations per $1,000 principal amount of Notes obtained by the Trustee
for a $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such
determination date from two independent nationally recognized securities dealers selected by the
Operating Partnership, which may include one or more of the Initial Purchasers or any successor to
such entities. If at least two such bids cannot reasonably be obtained by the Trustee, but one
such bid can reasonably be obtained by the Trustee, then one bid shall be used. If the Trustee
cannot reasonably obtain at least one bid for a $5,000,000 principal amount of Notes from a
nationally recognized securities dealer or, in the reasonable judgment of the Operating
Partnership, the bid quotations are not indicative of the secondary market value of the Notes, then
the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the
product of the Closing Sale Price of Company Common Shares and the Exchange Rate on such
determination date.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
ARTICLE TWO
TERMS
TERMS
Section 2.01. Title. The Notes shall constitute a series of Securities designated as
the “4.00% Exchangeable Senior Notes due 2026” of the Operating Partnership in respect of which the
Company shall be a co-obligor.
Section 2.02. Aggregate Principal Amount. The aggregate principal amount of Notes
which may be authenticated and delivered under the Indenture is initially limited in aggregate
principal amount to $1,500,000,000, except for Notes authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 304, 305, 306,
906, 1107 or 1203 of the Indenture and except for any Notes which, pursuant to Section 303 of the
Indenture, are deemed never to have been authenticated and delivered thereunder; provided that the
Operating Partnership may from time to time, without the consent of the Holders of the Notes,
increase the principal amount of the Notes by issuing additional Securities in the future (the
“Additional Notes”) having the same terms and ranking equally and ratably with the Notes in all
respects and with the same CUSIP number as the Notes, except for the difference in the issue price
and interest accrued prior to the issue date of such Additional Notes, provided that such
Additional Notes constitute part of the same issue as the Notes for U.S. federal income tax
purposes. Any Additional Notes will be treated as a single series with the Notes under
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the Indenture and shall have the same terms as to status, redemption, repurchase, exchange and
otherwise as the Notes.
Section 2.03. Registered Securities in Book-Entry Form. The Notes shall be issuable
in the form of one or more global Securities registered in the name of The Depository Trust
Company’s nominee, and shall be deposited with, or on behalf of, The Depository Trust Company, New
York, New York (the “Depositary”). The Notes may be surrendered for registration of transfer and
for exchange at the office or agency of the Operating Partnership or the Company (including the
Trustee) maintained for such purpose in the Borough of Manhattan, The City of New York, or at any
other office or agency maintained by the Operating Partnership or the Company for such purpose.
Section 2.04. Stated Maturity of Principal. The Stated Maturity of the principal of
the Notes shall be July 15, 2026.
Section 2.05. Interest. The Notes shall bear interest at the rate of 4.00% per annum
from June 27, 2006 or from the most recent Interest Payment Date to which interest has been paid or
provided for, as the case may be, and will be payable semi-annually in arrears on January 15 and
July 15 of each year (each, an “Interest Payment Date”), commencing on January 15, 2007, until the
principal thereof is paid or duly made available for payment, to the Persons in whose names such
Notes are registered at the close of business on the January 1 or July 1 (whether or not a Business
Day) immediately preceding the applicable Interest Payment Date (each, a “Regular Record Date”).
Interest payable on each Interest Payment Date shall equal the amount of interest accrued for the
period commencing on and including the immediately preceding Interest Payment Date in respect of
which interest has been paid (or commencing on and including June 27, 2006, if no interest has been
paid) and ending on and including the day preceding such Interest Payment Date. Interest on the
Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months.
If the Operating Partnership shall redeem the Notes in accordance with the provisions of
Section 2.07 hereof, or if a Holder shall surrender a Note for repurchase by the Operating
Partnership in accordance with the provisions of 2.08 or 2.09 hereof, subject to the next
succeeding sentence, accrued and unpaid interest (including Additional Interest, if any) shall be
payable to the Holder that shall have surrendered such Note for redemption or repurchase, as the
case may be. However, if an Interest Payment Date shall fall on or prior to the Redemption Date or
Optional Repurchase Date or Change in Control Purchase Date, as the case may be, for a Note,
accrued and unpaid interest (including Additional Interest, if any) due on such Interest Payment
Date shall be payable instead to the Person in whose name such Note is registered at the close of
business on the related Regular Record Date.
Section 2.06. Place of Payment. The principal of and the interest on the Notes shall
be payable at the office or agency of the Company or the Operating Partnership (including the
Trustee) maintained for such purpose in the Borough of Manhattan, The City of New York in the in
the manner specified in the Indenture.
Section 2.07. Redemption. The Operating Partnership shall not have the right to
redeem any Notes prior to January 18, 2012, except to preserve the Company’s status as a real
estate
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investment trust. If, at any time, the Operating Partnership determines it is necessary to
redeem the Notes in order to preserve the Company’s status as a real estate investment trust, the
Operating Partnership may, upon not less than 30 nor more than 60 days’ prior written notice by
mail to the Holders of the Notes, redeem the Notes in whole or in part, for cash equal to 100% of
the principal amount of the Notes to be redeemed plus unpaid interest (including Additional
Interest, if any) accrued thereon to the Redemption Date. In such case, the Operating Partnership
shall provide the Trustee with an Officers’ Certificate evidencing that the Board of Trustees of
the Company has, in good faith, made the determination that it is necessary to redeem the Notes in
order to preserve the Company’s status as a real estate investment trust.
The Operating Partnership shall have the right to redeem the Notes, in whole or in part at any
time or from time to time, on or after January 18, 2012 upon not less than 30 nor more than 60
days’ prior written notice by mail to the Holders of the Notes, at a redemption price (“Redemption
Price”) for cash equal to 100% of the principal amount of the Notes to be redeemed plus unpaid
interest (and Additional Interest, if any) accrued thereon to the Redemption Date. If less than all
the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed (in principal
amounts of $1,000 and integral multiples thereof) on a pro rata basis or by such other method the
Trustee considers fair and appropriate. The Trustee shall make the selection at least 30 days but
not more than 60 days before the Redemption Date from Outstanding Notes not previously called for
redemption. Notes and portions of the principal amount thereof selected for redemption shall be in
integral multiples of $1,000. The Trustee shall notify the Operating Partnership promptly of the
Notes or portions of the principal amount thereof to be redeemed. If the Trustee selects a portion
of a Note for partial redemption and a Holder exchanges a portion of the same Note in accordance
with the provisions of Section 2.11 hereof before termination of the exchange right with respect to
the portion of the Note so selected, the exchanged portion of such Note shall be deemed to be from
the portion selected for redemption. Notes that have been exchanged during a selection of Notes to
be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
In the event of any redemption in part, the Operating Partnership shall not be required to:
(i) issue or register the transfer or exchange of any Note during a period beginning at the opening
of business 15 days before any selection of Notes for redemption and ending at the close of
business on the earliest date on which the relevant notice of redemption is deemed to have been
given to all Holders of Notes to be so redeemed, or (ii) register the transfer or exchange of any
Note so selected for redemption, in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
In addition to those matters set forth in Section 1104 of the Indenture, a notice of
redemption sent to the Holders of Notes to be redeemed in accordance with the provisions of the two
preceding paragraphs shall state:
(a) the name of the Paying Agent and Exchange Agent;
(b) the then current Exchange Rate;
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(c) that Notes called for redemption may be exchanged at any time prior to the close of
business on the third Business Day immediately preceding the Redemption Date; and
(d) that Holders who wish to exchange Notes must comply with the procedures relating
thereto specified in Section 2.13 hereof.
Section 2.08. Repurchase Rights. A Holder of Notes shall have the right to require
the Operating Partnership to repurchase such Holder’s Notes, in whole or in part (in principal
amounts of $1,000 or an integral multiple thereof), on each of January 18, 2012, July 15, 2016 and
July 15, 2021 (each, an “Optional Repurchase Date”) for cash equal to 100% of the principal amount
of the Notes to be repurchased plus unpaid interest (including Additional Interest, if any,)
accrued thereon to the Optional Repurchase Date (such amount, the “Optional Repurchase Price”),
subject to satisfaction by or on behalf of the Holder of the requirements set forth below.
On or before to the 30th day prior to each Optional Repurchase Date, the Operating Partnership
shall provide a written notice by first-class mail to the Trustee, any Paying Agent and all Holders
(and to beneficial owners as required by applicable law). The notice shall include a form of
Optional Repurchase Notice to be completed by the Holder and shall state:
(a) the date by which the Optional Repurchase Notice must be delivered to the Paying
Agent;
(b) the Optional Repurchase Date;
(c) the Optional Repurchase Price;
(d) the name and address of the Trustee, the Paying Agent and the Exchange Agent;
(e) that Notes must be surrendered to the Paying Agent to collect payment of the
Optional Repurchase Price;
(f) that the Optional Repurchase Price for any Note as to which an Optional Repurchase
Notice has been duly given will be paid within two Business Days after the later of the
Optional Repurchase Date or the time at which such Notes are surrendered for repurchase;
(g) that, unless the Operating Partnership defaults in making payment of the Optional
Repurchase Price, interest on Notes surrendered for repurchase will cease to accrue on and
after the Optional Repurchase Date;
(h) that Notes in respect of which an Optional Repurchase Notice is provided by a
Holder shall not be exchangeable in accordance with their terms even if otherwise
exchangeable unless such Holder validly withdraws such Optional Repurchase Notice in
accordance with the provisions of this Section 2.08; and
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(i) the CUSIP number of the Notes.
The Operating Partnership shall also disseminate a press release through Dow Xxxxx & Company,
Inc. or Bloomberg Business News containing the information specified in such notice or publish such
information in a newspaper of general circulation in The City of New York or on the Company’s
website, or through such other public medium as the Operating Partnership shall deem appropriate at
such time.
A Holder may exercise its rights specified in this Section 2.08 upon delivery of a written
notice of repurchase (an “Optional Repurchase Notice”) to the Paying Agent during the period
beginning at any time from the opening of business on the date that is 30 days prior to the
applicable Optional Repurchase Date until the close of business on the third Business Day prior to
such Optional Repurchase Date, stating:
(a) if such Notes are in certificated form, the certificate number(s) of the Notes
which the Holder will deliver to be repurchased;
(b) the portion of the principal amount of the Notes to be repurchased, in integral
multiples of $1,000, provided that the remaining principal amount of Notes is in an
authorized denomination; and
(c) that such Notes shall be repurchased pursuant to the applicable provisions hereof
and the Notes.
The Paying Agent shall promptly notify the Operating Partnership and the Company in writing of
the receipt by it of any Optional Repurchase Notice.
Book-entry transfer of Notes in book-entry form in compliance with appropriate procedures of
the Depositary or delivery of Notes in certificated form, together with all necessary endorsements,
to the Paying Agent on or after the Optional Repurchase Date at the offices of the Paying Agent
shall be a condition to the receipt by the Holder of the Optional Repurchase Price therefor.
Holders electing to require the Operating Partnership to repurchase Notes must effect such transfer
or delivery to the Paying Agent prior to the Optional Repurchase Date to receive payment of the
Optional Repurchase Price on or within two Business Days after the Optional Repurchase Date. The
Operating Partnership shall pay the Optional Repurchase Price within two Business Days after the
later of the Optional Repurchase Date or the time of such transfer or delivery of the Notes.
An Optional Repurchase Notice may be withdrawn in whole or in part by a Holder by means of a
written notice of withdrawal delivered to the office of the Paying Agent prior to the close of
business on the third Business Day prior to the Optional Repurchase Date specifying:
(a) the Holder’s name;
(b) the principal amount of Notes in respect of which the Optional Repurchase Notice is
being withdrawn, which must be an integral multiple of $1,000;
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(c) if the Notes subject to the notice of withdrawal are in certificated form, the
certificate number(s) of all Notes subject to the notice of withdrawal; and
(d) the principal amount of Notes, if any, that remains subject to the Optional
Repurchase Notice, which must be an integral multiple of $1,000.
If Notes subject to the notice of withdrawal are in book-entry form, the above notices must
also comply with the applicable procedures of the Depositary.
On or before 10:00 a.m. (New York City time) on the Optional Repurchase Date, the Operating
Partnership shall deposit with the Paying Agent (or if the Operating Partnership or an Affiliate of
the Operating Partnership is acting as the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the aggregate Optional Repurchase Price of the Notes to be purchased pursuant to
this Section 2.08. If the Paying Agent holds, in accordance with the terms of the Indenture, money
sufficient to pay the Optional Repurchase Price of such Notes on the Optional Repurchase Date, then
on and after such date, such Notes shall cease to be Outstanding and interest on such Notes shall
cease to accrue, and all rights of the Holder of such Notes shall terminate (other than the right
to receive the Optional Repurchase Price after delivery or transfer of the Notes). Such will be
the case whether or not book-entry transfer of the Notes in book-entry form is made and whether or
not Notes in certificated form, together with the necessary endorsements, are delivered to the
Paying Agent.
Notwithstanding the foregoing, no Notes may be purchased by the Operating Partnership in
accordance with the provisions of this Section 2.08 if there has occurred and is continuing an
Event of Default with respect to the Notes (other than a default in the payment of the Optional
Repurchase Price).
To the extent legally required in connection with a repurchase of Notes, the Operating
Partnership shall comply with the provisions of Rule 13e-4 and other tender offer rules under the
Exchange Act then applicable, if any, and will file a Schedule TO or any other schedule required
under the Exchange Act.
The Operating Partnership may arrange for a third party to purchase Notes for which the
Operating Partnership has received a valid Optional Repurchase Notice that has not been properly
withdrawn, in the manner and otherwise in compliance with the requirements set forth herein and in
the Notes. If a third party purchases any Notes under such circumstances, then interest will
continue to accrue on the Notes and such Notes will continue to be Outstanding after the Optional
Repurchase Date for all purposes of the Indenture and will be fungible with all other Notes then
Outstanding.
Section 2.09. Repurchase at Option of Holders upon a Change in Control. If a Change
in Control occurs at any time prior to January 18, 2012, a Holder of Notes shall have the right to
require the Operating Partnership to repurchase such Holder’s Notes, in whole or in part (in
principal amounts of $1,000 or an integral multiple thereof) for cash equal to 100% of the
principal amount of the Notes to be repurchased, plus unpaid interest (including Additional
Interest, if any) accrued thereon to the Change in Control Purchase Date (such amount, the “Change
in Control Purchase Price”), subject to satisfaction by or on behalf of the Holder of
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the requirements set forth below. If a Change in Control occurs on or after January 18, 2012,
Holders of Notes will not have any right to require the Operating Partnership to repurchase its
Notes, except in accordance with Section 2.08.
Within 20 days after the occurrence of a Change in Control, the Operating Partnership shall
mail a written notice of Change in Control and of the repurchase right arising as a result of the
Change in Control (the “Company Notice”) by first-class mail to the Trustee, any Paying Agent and
to each Holder (and to beneficial owners as required by applicable law). The notice shall include
a form of Change in Control Purchase Notice to be completed by the Holder and shall state:
(a) briefly, the events causing a Change in Control and the date of such Change in
Control;
(b) the date by which the Change in Control Purchase Notice must be delivered to the
Paying Agent;
(c) the date on which the Operating Partnership will repurchase Notes upon a Change in
Control, which must be not less than 15 days nor more than 30 days after the date of the
Company Notice (such date, the “Change in Control Purchase Date”);
(d) the Change in Control Purchase Price;
(e) the name and address of the Trustee, the Paying Agent and the Exchange Agent;
(f) that Notes in respect of which a Change in Control Purchase Notice is provided by a
Holder shall not be exchangeable unless such Holder validly withdraws such Change in Control
Purchase Notice in accordance with the provisions of this Section 2.09;
(g) that Notes must be surrendered to the Paying Agent to collect payment of the Change
in Control Purchase Price;
(h) that the Change in Control Purchase Price for any Note as to which a Change in
Control Purchase Notice has been duly given will be paid within two Business Days after the
later of the Change in Control Purchase Date or the time at which such Notes are surrendered
for repurchase;
(i) that, unless the Operating Partnership defaults in making payment of the Change in
Control Purchase Price, interest on Notes surrendered for repurchase will cease to accrue on
and after the Change in Control Purchase Date; and
(j) the CUSIP number of the Notes.
The Operating Partnership shall also disseminate a press release through Dow Xxxxx & Company,
Inc. or Bloomberg Business News announcing the occurrence of such Change in Control or publish such
information in a newspaper of general circulation in The City of New
13
York or on the Company’s website, or through such other public medium as the Operating
Partnership shall deem appropriate at such time.
A Holder may exercise its rights specified in this Section 2.09 upon delivery of a written
notice of such Holder’s exercise of its repurchase right (a “Change in Control Purchase Notice”) to
the Trustee (or any Paying Agent) at any time prior to the close of business on the third Business
Day prior to the Change in Control Purchase Date, stating:
(a) if such Notes are in certificated form, the certificate number(s) of the Notes
which the Holder will deliver to be repurchased;
(b) the portion of the principal amount of the Notes to be repurchased, in multiples of
$1,000, provided that the remaining principal amount of Notes is in an authorized
denomination; and
(c) that such Note shall be repurchased pursuant to the applicable provisions hereof
and of the Notes.
The Trustee (or any Paying Agent) shall promptly notify the Operating Partnership and the
Company in writing of the receipt by it of any Change in Control Purchase Notice.
Book-entry transfer of Notes in book-entry form in compliance with appropriate procedures of
the Depositary or delivery of Notes in certificated form (together with all necessary endorsements)
to the Paying Agent on or after the Change in Control Purchase Date at the offices of the Paying
Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price
therefor. Holders electing to require the Operating Partnership to repurchase Notes must effect
such transfer or delivery to the Paying Agent prior to the Change in Control Purchase Date to
receive payment of the Change in Control Purchase Price on or within two Business Days after the
Change in Control Purchase Date. The Operating Partnership shall pay the Change in Control Purchase
Price within two Business Days after the later of the Change in Control Purchase Date or the time
of such transfer or delivery of the Notes.
A Change in Control Purchase Notice may be withdrawn in whole or in part by a Holder by means
of a written notice of withdrawal delivered to the office of the Paying Agent prior to the close of
business on the third Business Day prior to the Change in Control Purchase Date specifying:
(a) the Holder’s name;
(b) the principal amount of Notes in respect of which the Change in Control Purchase
Notice is being withdrawn, which must be an integral multiple of $1,000;
(c) if the Notes subject to the notice of withdrawal are in certificated form, the
certificate number(s) of all Notes subject to the notice of withdrawal; and
(d) the principal amount of Notes, if any, that remains subject to the Change in
Control Purchase Notice, which must be an integral multiple of $1,000.
14
If Notes subject to the notice of withdrawal are in book-entry form, the above notices must
also comply with the applicable procedures of the Depositary.
On or before 10:00 a.m. (New York City time) on the Change in Control Purchase Date, the
Operating Partnership shall deposit with the Paying Agent (or if the Operating Partnership or an
Affiliate of the Operating Partnership is acting as the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the aggregate Change in Control Purchase Price of the Notes to be
purchased pursuant to this Section 2.09. If the Paying Agent holds, in accordance with the terms of
the Indenture, money sufficient to pay the Change in Control Purchase Price of such Notes on the
Change in Control Purchase Date, then, on and after such date, such Notes shall cease to be
Outstanding and interest on such Notes shall cease to accrue and all rights of the Holders of such
Notes shall terminate (other than the right to receive the Change in Control Purchase Price after
delivery or transfer of the Notes). Such will be the case whether or not book-entry transfer of
the Notes in book-entry form is made and whether or not Notes in certificated form, together with
the necessary endorsements, are delivered to the Paying Agent.
Notwithstanding the foregoing, no Notes may be repurchased by the Operating Partnership in
accordance with the provisions of this Section 2.09 if there has occurred and is continuing an
Event of Default with respect to the Notes (other than a default in the payment of the Change in
Control Purchase Price).
To the extent legally required in connection with a repurchase of Notes, the Operating
Partnership shall comply with the provisions of Rule 13e-4 and other tender offer rules under the
Exchange Act then applicable, if any, and will file a Schedule TO or any other schedule required
under the Exchange Act.
The Operating Partnership may arrange for a third party to purchase Notes for which the
Operating Partnership has received a valid Change in Control Purchase Notice that has not been
properly withdrawn, in the manner and otherwise in compliance with the requirements set forth
herein and in the Notes. If a third party purchases any Notes under such circumstances, then
interest will continue to accrue on the Notes and such Notes will continue to be Outstanding after
the Change in Control Purchase Date for all purposes of the Indenture and will be fungible with all
other Notes then Outstanding.
Section 2.10. Make Whole Amount. If a Change in Control occurs prior to January 18,
2012 as a result of a transaction or event described in clauses (1) or (2) of the definition of
Change in Control and a Holder elects to exchange its Notes in connection with such Change in
Control pursuant to Section 2.11(d), the Operating Partnership shall increase the applicable
Exchange Rate for such Notes surrendered for exchange by a number of additional Company Common
Shares (the “Additional Shares”) as specified below. An exchange of Notes shall be deemed for
these purposes to be “in connection with” such a Change in Control if the notice of exchange of the
Notes is received by the Exchange Agent on any date from and including the date that is the
Effective Date (as defined below) of such Change in Control up to and including the 30th Business
Day following the Effective Date of such Change in Control.
The number of Additional Shares will be determined by reference to the table below and is
based on the date on which such Change in Control transaction becomes effective (the
15
“Effective Date”) and the price (the “Stock Price”) paid per Company Common Share in such
Change in Control transaction. If holders of Company Common Shares receive only cash in a Change
in Control transaction described in clause (1) of the definition of such term, the Stock Price
shall be the cash amount paid per Company Common Share. In all other cases, the Stock Price shall
be the average of the Closing Sale Prices of Company Common Shares on the 10 consecutive Trading
Days up to but excluding the Effective Date.
The Stock Prices set forth in the first row of the table (i.e., the column headers) will be
adjusted as of any date on which the Exchange Rate of the Notes is adjusted. The adjusted Stock
Prices will equal the Stock Prices applicable immediately prior to such adjustment multiplied by a
fraction, the numerator of which is the Exchange Rate immediately prior to the adjustment giving
rise to the Stock Price adjustment and the denominator of which is the Exchange Rate as so
adjusted. In addition, the number of Additional Shares will be subject to adjustment in the same
manner as the Exchange Rate in accordance with the provisions of Section 2.14 hereof.
The following table sets forth the Stock Price and number of Additional Shares to be received
per $1,000 principal amount of Notes:
| Effective | Stock Price | |||||||||||||||||||||||||||||||||||
| Date | $36.21 | $40.00 | $45.00 | $50.00 | $60.00 | $70.00 | $80.00 | $90.00 | $100.00 | |||||||||||||||||||||||||||
June 27, 2006 |
4.3624 | 3.1072 | 2.0598 | 1.4864 | 0.9190 | 0.6840 | 0.5749 | 0.5031 | 0.4507 | |||||||||||||||||||||||||||
July 15, 2007 |
4.3624 | 3.0078 | 1.9270 | 1.3190 | 0.7702 | 0.5661 | 0.4734 | 0.4150 | 0.3722 | |||||||||||||||||||||||||||
July 15, 2008 |
4.3624 | 2.8765 | 1.7748 | 1.1194 | 0.6071 | 0.4406 | 0.3692 | 0.3246 | 0.2918 | |||||||||||||||||||||||||||
July 15, 2009 |
4.3624 | 2.6984 | 1.5273 | 0.8772 | 0.4301 | 0.3145 | 0.2669 | 0.2365 | 0.2132 | |||||||||||||||||||||||||||
July 15, 2010 |
4.3624 | 2.4372 | 1.1807 | 0.5665 | 0.2407 | 0.1847 | 0.1600 | 0.1424 | 0.1285 | |||||||||||||||||||||||||||
July 15, 2011 |
4.3624 | 2.0126 | 0.5727 | 0.1616 | 0.0725 | 0.0617 | 0.0541 | 0.0482 | 0.0435 | |||||||||||||||||||||||||||
January 18, 2012 |
4.3624 | 1.7458 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | |||||||||||||||||||||||||||
The exact Stock Prices and Effective Dates may not be set forth on the table, in which
case:
(a) if the Stock Price is between two Stock Price amounts in the table or the Effective
Date is between two dates in the table, the Additional Shares will be determined by
straight-line interpolation between the number of Additional Shares set forth for the higher
and lower Stock Price amounts and the two dates, as applicable, based on a 365-day year;
(b) if the Stock Price is equal to or in excess of $100.00 per Company Common Share
(subject to adjustment as specified in the second preceding paragraph), no Additional Shares
will be issued upon an exchange of Notes; and
(c) if the Stock Price is less than $36.21 per Company Common Share (subject to
adjustment as specified in the second preceding paragraph), no Additional Shares will be
issued upon an exchange of Notes.
Notwithstanding the foregoing, in no event shall the total number of Company Common Shares
issuable upon an exchange of Notes exceed 27.6166 shares per $1,000 principal amount of Notes,
subject to adjustment in the same manner as the Exchange Rate pursuant to Section 2.14 hereof.
16
Section 2.11. Exchange Rights.
Subject to the restrictions on ownership of Company Common Shares as set forth in Section 2.15
hereof and to the conditions set forth herein, Holders may surrender their Notes for exchange for
cash, Company Common Shares or a combination of cash and Company Common Shares, at the Operating
Partnership’s option, at the applicable Exchange Rate prior to the close of business on the second
Business Day immediately preceding the Stated Maturity of the Notes at any time on or after July
15, 2025 and also under any of the circumstances set forth in this Section 2.11.
(a) Exchange Upon Satisfaction of Market Price Condition. A Holder may surrender any of its
Notes for exchange during any calendar quarter beginning after September 30, 2006 (and only during
such calendar quarter) if, and only if, the Closing Sale Price of Company Common Shares for at
least 20 Trading Days (whether or not consecutive) in the period of 30 consecutive Trading Days
ending on the last Trading Day of the preceding calendar quarter is more than 125% of the Exchange
Price per Company Common Share in effect on the applicable Trading Day. The Board of Trustees of
the Company shall make appropriate adjustments, in its good faith determination, to account for any
adjustment to the Exchange Rate that becomes effective, or any event requiring an adjustment to the
Exchange Rate where the ex-dividend date of the event occurs, during that 30 consecutive
trading-day period.
(b) Exchange Upon Satisfaction of Trading Price Condition. A Holder may surrender any of its
Notes for exchange during the five consecutive Trading Day period following any five consecutive
Trading Days in which the Trading Price per $1,000 principal amount of Notes (as determined
following a reasonable request by a Holder of the Notes) was less than 98% of the product of the
Closing Sale Price of Company Common Shares multiplied by the Exchange Rate.
The Trustee shall have no obligation to determine the Trading Price of the Notes unless the
Operating Partnership shall have requested such determination, and the Operating Partnership shall
have no obligation to make such request unless a Holder provides the Operating Partnership with
written reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would
be less than 98% of the product of the Closing Sale Price of Company Common Shares and the Exchange
Rate, whereupon the Operating Partnership shall instruct the Trustee to determine the Trading Price
of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading
Price is greater than or equal to 98% of the product of the Closing Sale Price of Company Common
Shares and the Exchange Rate.
(c) Exchange Upon Notice of Redemption. A Holder may surrender for exchange any of the Notes
called for redemption at any time prior to the close of business on the third Business Day prior to
the Redemption Date, even if the Notes are not otherwise exchangeable at such time. The right to
exchange Notes pursuant to this clause (c) will expire after the close of business on the third
Business Day prior to the Redemption Date unless the Operating Partnership defaults in making the
payment due upon redemption. A Holder may exchange fewer than all of its Notes so long as the
Notes exchanged are an integral multiple of $1,000 principal amount and the remaining principal
amount of Notes is in an authorized denomination. However, if a Holder has already delivered an
Optional Repurchase Notice or a Change in Control Purchase Notice with respect to a Note, such
Holder may not surrender such Note for
17
exchange until it has withdrawn such notice in accordance with the applicable provisions of
Section 2.08 or 2.09 hereof, as the case may be.
(d) Exchange Upon Specified Transactions. If the Company elects to:
(i) distribute to all holders of Company Common Shares rights entitling them to
purchase, for a period expiring within 45 days, Company Common Shares at less than
the Closing Sale Price of Company Common Shares on the Trading Day immediately
preceding the declaration date of the distribution; or
(ii) distribute to all holders of Company Common Shares assets, debt securities
or certain rights to purchase securities of the Operating Partnership or the
Company, which distribution has a per share value exceeding 15% of the Closing Sale
Price of Company Common Shares on the Trading Day immediately preceding the
declaration date of such distribution,
the Operating Partnership shall notify the Holders of the Notes in writing at least 20 days prior
to the ex-dividend date for such distribution. Following the giving of such notice, Holders may
surrender their Notes for exchange at any time until the earlier of the close of business on the
Business Day prior to the ex-dividend date or an announcement that such distribution will not take
place; provided, however, that a Holder may not exercise this right to exchange if the Holder may
participate, on an as-exchanged basis, in the distribution without an exchange of Notes. The
ex-dividend date is the first date upon which a sale of the Company Common Shares does not
automatically transfer the right to receive the relevant distribution from the seller of Company
Common Shares to its buyer.
In addition, if the Operating Partnership or the Company is party to a consolidation, merger
or binding share exchange pursuant to which all of the Company Common Shares would be exchanged for
cash, securities or other property that is not otherwise a Change in Control, a Holder may
surrender Notes for exchange at any time from and including the date that is 15 Business Days prior
to the anticipated effective time of the transaction up to and including five Business Days after
the actual date of such transaction. The Operating Partnership shall notify Holders as promptly as
practicable following the date it publicly announces such transaction (but in no event less than 15
Business Days prior to the anticipated effective time of such transaction).
If a Change in Control occurs as a result of a transaction described in clauses (1) or (2) of
the definition of “Change in Control”, a Holder will have the right to exchange its Notes at any
time from and including the Effective Date of such transaction up to and including the 30th
Business Day following the Effective Date of the transaction, provided that, if a Holder has
already delivered an Optional Repurchase Notice or a Change in Control Purchase Notice with respect
to a Note, such Holder may not surrender such Note for exchange until it has withdrawn such notice
in accordance with the applicable provisions of Section 2.08 or 2.09 hereof, as the case may be.
The Operating Partnership will notify Holders as promptly as practicable following the date that it
publicly announces such Change in Control (but in no event later than five Business Days prior to
the Effective Date of such Change in Control).
18
If the Operating Partnership or the Company is a party to a consolidation, merger or binding
share exchange pursuant to which all of the Company Common Shares are exchanged for cash,
securities or other property, then at the effective time of the transaction any exchange of Notes
and the Exchange Value will be based on the kind and amount of cash, securities or other property
that the Holder would have received if such Holder had exchanged its Notes for Company Common
Shares immediately prior to the effective time of the transaction. For purposes of the foregoing,
where a consolidation, merger or binding share exchange involves a transaction that causes Company
Common Shares to be converted into the right to receive more than a single type of consideration
based upon any form of stockholder election, such consideration will be deemed to be the weighted
average of the types and amounts of consideration received by the holders of Company Common Shares
that affirmatively make such an election. If a Change of Control occurs prior to January 18, 2012
as a result of a transaction described in clauses (1) or (2) of the definition thereof, the
Operating Partnership will adjust the Exchange Rate for Notes tendered for exchange in connection
with such a Change in Control transaction, as described in Section 2.10 hereof.
(e) Exchange Upon Delisting of Company Common Shares. A Holder of Notes may surrender any of
its Notes for exchange at any time beginning on the first Business Day after the Company Common
Shares have ceased to be listed on a U.S. national or regional securities exchange or quoted on
the Nasdaq National Market for a 30 consecutive Trading Day period.
Section 2.12. Exchange Settlement. Upon an exchange of Notes, the Operating
Partnership shall deliver, in respect of each $1,000 principal amount of Notes tendered for
exchange in accordance with their terms:
(a) cash in an amount (the “Principal Return”) equal to the lesser of (1) the principal
amount of the Notes surrendered for exchange and (2) the Exchange Value, and
(b) if the Exchange Value is greater than the Principal Return, an amount (the “Net
Amount”) in cash or Company Common Shares with an aggregate value equal to the difference
between the Exchange Value and the Principal Return.
The Operating Partnership may elect to deliver any portion of the Net Amount in cash (the “Net
Cash Amount”) or Company Common Shares, and any portion of the Net Amount the Operating Partnership
elects to deliver in Company Common Shares (the “Net Shares”) will be the sum of the Daily Share
Amounts for each Trading Day during the Applicable Exchange Period. Prior to the close of business
on the second Trading Day following the date on which Notes are tendered for exchange, the
Operating Partnership shall inform Holders of such Notes of its election to pay cash for all or a
portion of the Net Amount and, if applicable, the portion of the Net Amount that will be paid in
cash and the portion that will be delivered in the form of Net Shares.
The Operating Partnership shall deliver cash in lieu of any fractional Company Common Shares
issuable in connection with payment of the Net Shares based upon the Average Price.
The “Daily Share Amount” for each $1,000 principal amount of Notes and each Trading Day in the
Applicable Exchange Period is equal to the greater of:
19
(a) zero; and
(b) a number of Company Common Shares determined by the following formula:
[ |
(CSP x ER)-($1,000 + The Net Cash Amount, if any) | ] |
||
| 10 x CSP |
where
CSP means the Closing Sale Price of Company Common Shares on such Trading Day, and
ER means the applicable Exchange Rate
The Operating Partnership will determine the Exchange Value, Principal Return, Net Amount, Net
Cash Amount and the number of Net Shares, as applicable, promptly after the end of the Applicable
Exchange Period. The Operating Partnership shall pay the Principal Return and cash in lieu of
fractional shares, and deliver Net Shares or pay the Net Cash Amount, as applicable, no later than
the third Business Day following the last Trading Day of the Applicable Exchange Period.
Section 2.13. Exchange Procedures. To exchange Notes, a Holder must satisfy the
requirements set forth in this Section 2.13.
To exchange the Notes, a Holder must (a) complete and manually sign the irrevocable exchange
notice on the reverse of the Note (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Exchange Agent at the office maintained by the Exchange Agent for such
purpose, (b) with respect to Notes which are in certificated form, surrender the Notes to the
Exchange Agent, or, if the Notes are in book-entry form, comply with the appropriate procedures of
the Depositary, (c) furnish appropriate endorsements and transfer documents if required by the
Exchange Agent, the Company or the Trustee and (d) pay any transfer or similar tax, if required.
The date on which the Holder satisfies all such requirements shall be deemed to be the date on
which the applicable Notes shall have been tendered for exchange.
Notes in respect of which a Holder has delivered an Optional Repurchase Notice or Change in
Control Purchase Notice may be exchanged only if such notice is withdrawn in accordance with the
terms of Section 2.08 or Section 2.09, as the case may be.
In case any Note shall be surrendered for partial exchange, the Operating Partnership shall
execute and the Trustee shall authenticate and deliver to, or upon the written order of, the Holder
of the Note so surrendered, without charge to such holder, a new Note or Notes in authorized
denominations in an aggregate principal amount equal to the portion of the surrendered Notes not
surrendered for exchange. A Holder may exchange fewer than all of such Holder’s Notes so long as
the Notes exchanged are an integral multiple of $1,000 principal amount.
20
Upon surrender of a Note for exchange by a Holder, such Holder shall deliver to the Operating
Partnership cash equal to the amount that the Operating Partnership is required to deduct and
withhold under applicable law in connection with the exchange; provided, however, if the Holder
does not deliver such cash, the Operating Partnership may deduct and withhold from the amount of
consideration otherwise deliverable to such Holder the amount required to be deducted and withheld
under applicable law.
Upon exchange of a Note a Holder will not receive any cash payment representing accrued and
unpaid interest on such Note. Instead, upon an exchange of Notes, the Operating Partnership will
deliver to tendering Holders only the consideration specified in Section 2.12. Delivery of cash and
Company Common Shares, if any, upon an exchange of Notes will be deemed to satisfy the Operating
Partnership’s obligation to pay the principal amount of the Notes and any accrued and unpaid
interest. Accordingly, upon an exchange of Notes, any accrued and unpaid interest will be deemed
paid in full rather than cancelled, extinguished or forfeited. In no event will the Exchange Rate
be adjusted to account for accrued and unpaid interest on the Notes.
Holders of Notes at the close of business on a Regular Record Date for an interest payment
will receive payment of interest payable on the corresponding Interest Payment Date notwithstanding
the exchange of such Notes at any time after the close of business on the applicable Regular Record
Date. Notes tendered for exchange by a Holder after the close of business on any Regular Record
Date for an interest payment and on or prior to the corresponding Interest Payment Date must be
accompanied by payment of an amount equal to the interest that such Holder is to receive on such
Notes on such Interest Payment Date; provided, however, that no such payment shall be required to
be made (1) if such Notes have been called for redemption on a Redemption Date that is after such
Regular Record Date and on or prior to such Interest Payment Date or (2) with respect to overdue
interest (including Additional Interest), if any overdue interest exists at the time of exchange
with respect to such Notes.
Upon exchange of a Note, the Operating Partnership, if it elects to deliver Net Shares, will
pay any documentary, stamp or similar issue or transfer tax due on the issue of the Net Shares upon
the exchange, if any, unless the tax is due because the Holder requests the shares to be issued or
delivered to a person other than the Holder, in which case the Holder must pay the tax due prior to
the delivery of such Net Shares. Certificates representing Company Common Shares will not be issued
or delivered unless all taxes and duties, if any, payable by the Holder have been paid.
A Holder of Notes, as such, shall not be entitled to any rights of a holder of Company Common
Shares. Such Holder shall only acquire such rights upon the delivery by the Operating Partnership,
at its option, of Net Shares in accordance with the provisions of Section 2.12 in connection with
the exchange by a Holder of Notes.
If a Holder exchanges more than one Note at the same time, the number of Net Shares, if any,
issuable upon the exchange shall be based on the total principal amount of the Notes surrendered
for exchange.
21
The Company shall, prior to issuance of any Notes hereunder, and from time to time as may be
necessary, reserve out of its authorized but unissued common stock a sufficient number of Company
Common Shares to permit the exchange of the Notes at the applicable Exchange Rate. Any Company
Common Shares delivered upon an exchange of Notes shall be newly issued shares or treasury shares,
shall be duly and validly issued and fully paid and nonassessable and shall be free from preemptive
rights and free of any lien or adverse claim.
The Company shall endeavor promptly to comply with all federal and state securities laws
regulating the issuance and delivery of Company Common Shares, if any, upon an exchange of Notes
and shall cause to have listed or quoted all such Company Common Shares on each U.S. national
securities exchange or over-the-counter or other domestic market on which the Company Common Shares
are then listed or quoted.
Except as set forth herein, no other payment or adjustment for interest shall be made upon
exchange of Notes.
Section 2.14. Exchange Rate Adjustments. The Exchange Rate shall be adjusted from
time to time as follows:
(a) If the Company issues Company Common Shares as a dividend or distribution on
Company Common Shares to all holders of Company Common Shares, or if the Company effects a
share split or share combination, the Exchange Rate will be adjusted based on the following
formula:
| ER1 = | ER0 x OS1/OS0 | ||
| where | |||
| ER0 = | the Exchange Rate in effect immediately prior to the adjustment relating to such event | ||
| ER1 = | the new Exchange Rate in effect taking such event into account | ||
| OS0 = | the number of Company Common Shares outstanding immediately prior to such event | ||
| OS1 = | the number of Company Common Shares outstanding immediately after such event. |
Any adjustment made pursuant to this paragraph (a) shall become effective on the date that
is immediately after (x) the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution or (y) the date on which such split or
combination becomes effective, as applicable. If any dividend or distribution described in
this paragraph (a) is declared but not so paid or made, the new Exchange Rate shall be
readjusted to the Exchange Rate that would then be in effect if such dividend or
distribution had not been declared.
22
(b) If the Company issues to all holders of Company Common Shares any rights, warrants,
options or other securities entitling them for a period of not more than 45 days after the
date of issuance thereof to subscribe for or purchase Company Common Shares, or issues to
all holders of Company Common Shares securities convertible into Company Common Shares for a
period of not more than 45 days after the date of issuance thereof, in either case at an
exercise price per Company Common Share or a conversion price per Company Common Share less
than the Closing Sale Price of Company Common Shares on the Business Day immediately
preceding the time of announcement of such issuance, the Exchange Rate will be adjusted
based on the following formula:
| ER1 = | ER0 x (OS0+X)/(OS0+Y) | ||
| where | where | ||
| ER0 = | the Exchange Rate in effect immediately prior to the adjustment relating to such event | ||
| ER1 = | the new Exchange Rate taking such event into account | ||
| OS0 = | the number of Company Common Shares outstanding immediately prior to such event | ||
| X = | the total number of Company Common Shares issuable pursuant to such rights, warrants, options, other securities or convertible securities | ||
| Y = | the number of Company Common Shares equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of Company Common Shares for the 10 consecutive Trading Days prior to the Business Day immediately preceding the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities. |
For purposes of this paragraph (b), in determining whether any rights, warrants, options,
other securities or convertible securities entitle the holders to subscribe for or purchase,
or exercise a conversion right for, Company Common Shares at less than the applicable
Closing Sale Price of Company Common Shares, and in determining the aggregate exercise or
conversion price payable for such Company Common Shares, there shall be taken into account
any consideration received by the Company for such rights, warrants, options, other
securities or convertible securities and any amount payable on exercise or conversion
thereof, with the value of such consideration, if other than cash, to be determined by the
Board of Trustees of the Company. If any right, warrant, option, other security or
convertible security described in this paragraph (b) is not exercised or converted prior to
the expiration of the exercisability or convertibility thereof, the new
23
Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such
right, warrant, option, other security or convertible security had not been so issued.
(c) If the Company distributes shares of capital stock, evidences of indebtedness or
other assets or property of the Company to all holders of Company Common Shares, excluding:
(i) dividends, distributions, rights, warrants, options, other securities or
convertible securities referred to in paragraph (a) or (b) above,
(ii) dividends or distributions paid exclusively in cash, and
(iii) Spin-Offs described below in this paragraph (c),
then the Exchange Rate will be adjusted based on the following formula:
| ER1 = | ER0 x SP0/(SP0-FMV) | ||
| where | |||
| ER0 = | the Exchange Rate in effect immediately prior to the adjustment relating to such event | ||
| ER1 = | the new Exchange Rate taking such event into account | ||
| SP0 = | the average of the Closing Sale Prices of Company Common Shares for the 10 consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the ex-dividend date for such distribution | ||
| FMV = | the fair market value (as determined in good faith by the Board of Trustees of the Company) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding Company Common Share on the earlier of the record date or the ex-dividend date for such distribution. |
An adjustment to the Exchange Rate made pursuant to the immediately preceding
paragraph shall be made successively whenever any such distribution is made and shall
become effective on the day immediately after the date fixed for the determination of
holders of Company Common Shares entitled to receive such distribution.
If the Company distributes to all holders of Company Common Shares capital stock of
any class or series, or similar equity interest, of or relating to a subsidiary or other
business unit of the Company (a “Spin-Off”), the Exchange Rate in effect immediately
before the close of business on the date fixed for determination of holders of Company
Common Shares entitled to receive such distribution will be adjusted based on the
following formula:
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| ER1 = | ER0 x (FMV0+MP0)/MP0 | ||
| where | |||
| ER0 = | the Exchange Rate in effect immediately prior to the adjustment relating to such event | ||
| ER1 = | the new Exchange Rate taking such event into account | ||
| FMV0 = | the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Company Common Shares applicable to one Company Common Share over the first 10 consecutive Trading Days after the effective date of the Spin-Off | ||
| MP0 = | the average of the Closing Sale Prices of Company Common Shares over the first 10 consecutive Trading Days after the effective date of the Spin-Off. |
An adjustment to the Exchange Rate made pursuant to the immediately preceding
paragraph will occur on the 10th Trading Day from and including the effective date of
the Spin-Off.
If any such dividend or distribution described in this paragraph (c) is declared but
not paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate that
would then be in effect if such dividend or distribution had not been declared.
(d) If the Company makes any cash dividend or distribution in respect of any of its
quarterly fiscal periods (without regard to when paid) to all holders of Company Common
Shares in an aggregate amount that, together with other cash dividends or distributions made
in respect of such quarterly fiscal period, exceeds the product of $0.33 (the “Reference
Dividend”) multiplied by the number of Company Common Shares outstanding on the record date
for such distribution, the Exchange Rate will be adjusted based on the following formula:
| ER1 = | ER0 x SP0/(SP0-C) | ||
| where | |||
| ER0 = | the Exchange Rate in effect immediately prior to the adjustment relating to such event | ||
| ER1 = | the new Exchange Rate taking such event into account | ||
| SP0 = | the average of the Closing Sale Prices of Company Common Shares for the 10 consecutive Trading Days prior to the business day immediately preceding the earlier of the record date or the day prior to the ex-dividend date for such distribution |
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| C = | the amount in cash per Company Common Share that the Company distributes to holders of Company Common Shares in respect of such quarterly fiscal period that exceeds the Reference Dividend. |
An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall become
effective on the date immediately after the date fixed for the determination of holders of
Company Common Shares entitled to receive such dividend or distribution. If any dividend or
distribution described in this paragraph (d) is declared but not so paid or made, the new
Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such
dividend or distribution had not been declared.
The Reference Dividend shall be subject to adjustment on account of any of the events
set forth in paragraphs (a), (b) and (c) above and paragraph (e) below. Any such adjustment
will be effected by multiplying the Reference Dividend by a fraction, the numerator of which
will equal the Exchange Rate in effect immediately prior to the adjustment on account of
such event and the denominator of which will equal the Exchange Rate as adjusted.
(e) If the Company or any of its subsidiaries makes a payment in respect of a tender
offer or exchange offer for Company Common Shares to the extent that the cash and value of
any other consideration included in the payment per Company Common Share exceeds the Closing
Sale Price of a Company Common Share on the Trading Day next succeeding the last date on
which tenders or exchanges may be made pursuant to such tender or exchange offer (the
“Expiration Time”), the Exchange Rate will be adjusted based on the following formula:
| ER1 = | ER0 x (AC + (SP1 x OS1))/(SP1 x OS0) | ||
| where | |||
| ER0 = | the Exchange Rate in effect immediately prior to the adjustment relating to such event | ||
| ER1 = | the new Exchange Rate taking such event into account | ||
| AC = | the aggregate value of all cash and any other consideration (as determined by the Board of Trustees of the Company) paid or payable for Company Common Shares purchased in such tender or exchange offer | ||
| OS0 = | the number of Company Common Shares outstanding immediately prior to the date such tender or exchange offer expires | ||
| OS1 = | the number of Company Common Shares outstanding immediately after such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer) |
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| SP1 = | the average of the Closing Sale Prices of Company Common Shares for the 10 consecutive Trading Days commencing on the Trading Day next succeeding the date such tender or exchange offer expires. |
If the application of the foregoing formula would result in a decrease in the Exchange
Rate, no adjustment to the Exchange Rate will be made.
Any adjustment to the Exchange Rate made pursuant to this paragraph (e) shall become
effective on the date immediately following the Expiration Time. If the Company or one of
its subsidiaries is obligated to purchase Company Common Shares pursuant to any such tender
or exchange offer but is permanently prevented by applicable law from effecting any such
purchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted to
be the Exchange Rate that would be in effect if such tender or exchange offer had not been
made.
(f) Notwithstanding the foregoing, in the event of an adjustment to the Exchange Rate
pursuant to paragraph (d) or (e) above, in no event will the Exchange Rate exceed 27.6166,
subject to adjustment pursuant to paragraphs (a), (b) and (c) above.
(g) If the Company has in effect a rights plan while any Notes remain Outstanding,
Holders of Notes will receive, upon an exchange of Notes in respect of which the Operating
Partnership has elected to deliver Net Shares, in addition to such Net Shares, rights under
the Company’s shareholder rights agreement unless, prior to exchange, the rights have
expired, terminated or been redeemed or unless the rights have separated from the Company
Common Shares. If the rights provided for in the rights plan adopted by the Company have
separated from the Company Common Shares in accordance with the provisions of the applicable
shareholder rights agreement so that Holders of Notes would not be entitled to receive any
rights in respect of Company Common Shares that the Operating Partnership elects to deliver
as Net Shares upon exchange of Notes, the Exchange Rate will be adjusted at the time of
separation as if the Company had distributed to all holders of Company Common Shares capital
stock, evidences of indebtedness or other assets or property pursuant to paragraph (c)
above, subject to readjustment upon the subsequent expiration, termination or redemption of
the rights. In lieu of any such adjustment, the Company may amend such applicable
shareholder rights agreement to provide that upon an exchange of Notes the Holders will
receive, in addition to Company Common Shares that the Operating Partnership elects to
deliver as Net Shares upon such exchange, the rights which would have attached to such
Company Common Shares if the rights had not become separated from the Company Common Shares
under such applicable shareholder rights agreement. To the extent that the Company adopts
any future shareholder rights agreement, upon an exchange of Notes in respect of which the
Operating Partnership elects to deliver Company Common Shares as Net Shares, a Holder of
Notes shall receive, in addition to such Company Common Shares, the rights under the future
shareholder rights agreement whether or not the rights have separated from Company Common
Shares at the time of exchange and no adjustment will be made in accordance with paragraph
(c) or otherwise.
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In addition to the adjustments pursuant to paragraphs (a) through (g) above, the
Operating Partnership may increase the Exchange Rate in order to avoid or diminish any
income tax to holders of Company Common Shares resulting from any dividend or distribution
of capital stock (or rights to acquire Company Common Shares) or from any event treated as
such for income tax purposes. The Operating Partnership may also, from time to time, to the
extent permitted by applicable law, increase the Exchange Rate by any amount for any period
if the Operating Partnership has determined that such increase would be in the best
interests of the Operating Partnership or the Company. If the Operating Partnership makes
such determination, it will be conclusive and Operating Partnership will mail to Holders of
the Notes a notice of the increased Exchange Rate and the period during which it will be in
effect at least fifteen (15) days prior to the date the increased Exchange Rate takes effect
in accordance with applicable law.
If, in connection with any adjustment to the Exchange Rate as set forth in this Section
2.14 a Holder shall be deemed for U.S. federal tax purposes to have received a distribution
or an Additional Interest payment, the Operating Partnership may set off any withholding tax
it or the Company reasonably believes it is required to collect with respect to any such
deemed distribution or payment against cash payments of interest in accordance with the
provisions of Section 2.05 hereof or from cash and Company Common Shares, if any, otherwise
deliverable to a Holder upon an exchange of Notes in accordance with the provisions of
Section 2.12 hereof or a redemption or repurchase of a Note in accordance with the
provisions of Section 2.07, 2.08 or 2.09 hereof.
The Operating Partnership will not make any adjustment to the Exchange Rate if Holders
of the Notes are permitted to participate, on an as-exchanged basis, in the transactions
described above.
Notwithstanding anything to the contrary contained herein, in addition to the other
events set forth herein on account of which no adjustment to the Exchange Rate shall be
made, the applicable Exchange Rate shall not be adjusted for:
(i) the issuance of any Company Common Shares pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on securities
of the Operating Partnership or those of the Company and the investment of
additional optional amounts in Company Common Shares under any plan;
(ii) the issuance of any Company Common Shares or options or rights to purchase
those shares pursuant to any present or future employee, trustee or consultant
benefit plan, employee agreement or arrangement or program of the Operating
Partnership or the Company;
(iii) the issuance of any Company Common Shares pursuant to any option,
warrant, right, or exercisable, exchangeable or convertible security outstanding as
of the date the Notes were first issued;
(iv) a change in the par value of Company Common Shares;
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(v) accumulated and unpaid dividends or distributions;
(vi) as a result of a tender offer solely to holders of less than 100 Company
Common Shares; and
(vii) the issuance of limited partnership units by the Operating Partnership
and the issuance of Company Common Shares or the payment of cash upon redemption
thereof.
No adjustment in the Exchange Rate will be required unless the adjustment would require an
increase or decrease of at least 1% of the Exchange Price. If the adjustment is not made because
the adjustment does not change the Exchange Price by at least 1%, then the adjustment that is not
made will be carried forward and taken into account in any future adjustment. All required
calculations will be made to the nearest cent or 1/1000th of a share, as the case may be.
Notwithstanding the foregoing, if the Notes are called for redemption, all adjustments not
previously made will be made on the applicable Redemption Date. Except as specifically described
above, the applicable Exchange Rate will not be subject to adjustment in the case of the issuance
of any Company Common Shares or Company preferred shares, or securities exchangeable into or
exchangeable for Company Common Shares or Company preferred shares.
Whenever the Exchange Rate is adjusted as herein provided, the Company or the Operating
Partnership shall as promptly as reasonably practicable file with the Trustee and any Exchange
Agent other than the Trustee an Officers’ Certificate setting forth the Exchange Rate after such
adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly
after delivery of such certificate, the Company or the Operating Partnership shall prepare a notice
of such adjustment of the Exchange Rate setting forth the adjusted Exchange Rate and the date on
which each adjustment becomes effective and shall mail such notice of such adjustment of the
Exchange Rate to the Holders of the Notes upon request within 20 Business Days of the Effective
Date of such adjustment. Failure to deliver such notice shall not affect the legality or validity
of any such adjustment.
For purposes of this Section 2.14, the number of Company Common Shares at any time outstanding
shall not include shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of Company Common Shares.
Notwithstanding anything in this Section 2.14 to the contrary, in no event shall the Exchange
Rate be adjusted so that the Exchange Rate would be less than $0.01.
Section 2.15. Ownership Limit; Withholding. Notwithstanding any other provision of
the Notes or the instructions contained herein, no Holder of Notes shall be entitled to exchange
such Notes for Company Common Shares to the extent that receipt of such shares would cause such
Holder (together with such Holder’s affiliates) to exceed the ownership limit contained in the
Declaration of Trust of the Company as in effect from time to time.
At the Maturity of the principal of the Notes, whether at Stated Maturity or upon earlier
redemption or repurchase of Notes or otherwise, and as otherwise required by law, the Operating
Partnership may deduct and withhold from the amount of consideration otherwise deliverable to such
Holder the amount required to be deducted and withheld under applicable law.
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Section 2.16. Merger, Consolidation or Sale.
(a) Section 801(a) of the First Supplemental Indenture is modified and amended for purposes
of the Notes to read as follows:
“the Issuer or the Guarantor shall be the continuing entity, or the successor Person or
its transferees or assignees of such assets (if other than the Issuer or the Guarantor),
formed by or resulting from any such consolidation or merger or which shall have received
the transfer of such assets by lease (subject to the continuing obligations of Issuer and
the Guarantor set forth in Section 802) or otherwise, either directly or indirectly, shall
expressly assume the payment of the principal of and interest on all the Notes, in the case
of the Issuer and the Guarantor, or the obligations of the Guarantor under the Guarantee, as
the case may be, and the due and punctual performance and observance of all of the other
covenants in this Indenture;”
(b) Section 801(c) of the First Supplemental Indenture is modified and amended for purposes
of the Notes to read as follows:
“immediately after giving effect to such transaction, no Event of Default, and no event
which, after notice or the lapse of time, or both, would become such an Event of Default,
shall have occurred and be continuing; and”
(c) Section 801 of the First Supplemental Indenture, for purposes of the Notes, is hereby
modified and amended to include, in addition to provisos (a), (b) and (c), the following additional
proviso:
“(d) if as a result of such transaction the Notes become exchangeable into common stock
or other securities issued by a third party, such third party shall assume or fully and
unconditionally guarantee all obligations under the Notes and the Indenture.”
Section 2.17. Satisfaction and Discharge. The provisions of ARTICLE FOURTEEN of the
Indenture shall not be applicable to the Notes. The Operating Partnership and the Company may
satisfy and discharge their obligations under the Indenture by delivering to the Trustee for
cancellation all Outstanding Notes or by depositing with the Trustee, the Paying Agent or the
Exchange Agent, if applicable, after the Notes have become due and payable, whether on the date of
the Stated Maturity of the principal amount of the Notes, any Redemption Date, Optional Repurchase
Date or Change in Control Repurchase Date or upon exchange or otherwise, cash or Company Common
Shares in accordance with the terms hereof sufficient to pay all of the Outstanding Notes and
paying all other sums payable under the Notes and the Indenture in respect of the Notes.
Section 2.18. Events of Default; Waiver of Past Defaults.
(a) Section 501 of the Indenture is modified and amended for purposes of the Notes to add the
following Events of Default:
30
“default in the delivery when due of the Exchange Value, on the terms set forth herein
and in the Notes, upon exercise of a Holder’s exchange right in accordance with the terms
hereof and of the Notes and the continuation of such default for 10 days;”
– and –
“failure of the Operating Partnership to provide a Company Notice within 20 days after
the occurrence of a Change in Control as provided in Section 2.09 of the Second Supplemental
Indenture.”
(b) Section 501(e) of the Indenture is modified and amended for purposes of the Notes to
replace all references therein to $5,000,000 with $50,000,000.
(c) Section 513 of the Indenture is modified and amended for purposes of the Notes to add the
following as clause (c):
(c) “in respect of the failure by the Operating Partnership to exchange any Notes in
accordance with the provisions of this Indenture.”
Section 2.19. Modification. Section 902 of the Indenture is modified for purposes of
the Notes to read as follows:
“With the consent of the Holders of a majority in principal amount of all Outstanding
Securities affected by such supplemental indenture (voting together as a single class), by Act of
said Holders delivered to the Issuer, the Guarantor and the Trustee, the Issuer, when authorized by
or pursuant to a Board Resolution, the Guarantor (when authorized by or pursuant to a Guarantor’s
Board Resolution), and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities
under this Indenture; provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(a) change the Stated Maturity of the principal of, or any installment interest
(including Additional Interest, if any) on, the Notes;
(b) reduce the principal amount of, the rate of interest (including Additional
Interest, if any) on, or change the timing or reduce the amount payable on the redemption
of, the Notes;
(c) make any change that impairs or adversely affects the rights of a Holder to
exchange Notes in accordance herewith;
(d) change the Place of Payment, or the coin or currency, for payment of principal of,
or interest (including Additional Interest, if any) on, the Notes;
(e) impair the right to institute suit for the enforcement of any payment on or with
respect to Notes or the delivery of the Exchange Value as required by the Indenture upon an
exchange of Notes;
31
(f) reduce the percentage in principal amount of the Outstanding Notes, the consent of
whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to the Outstanding Notes (or compliance with
specified provisions of the Indenture or specified defaults and consequences thereunder) or
to reduce the quorum or voting requirements set forth in the Indenture;
(g) modify any of the provisions of this Section 902, Section 513 or Section 1013 of
the Indenture, except to increase the required percentage to effect such action or to
provide that specified other provisions of the Indenture which may not be modified or waived
without the consent of the Holders of each Outstanding Note affected thereby; or
(h) modify or affect the terms and conditions of the obligations of the Company or any
successor entity, as co-obligor and guarantor of the Notes.
It shall not be necessary for any Act of Holders under this Section 2.19 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such
Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other provision of
this Indenture which has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other series.
Section 2.20. Full and Unconditional Guarantee by the Company. The provisions of
ARTICLE SEVENTEEN of the Indenture shall be applicable to the Notes and the Notes shall be
“Guaranteed Securities” within the meaning of the Indenture. In addition, the Company hereby
agrees that it is a co-obligor of the Notes for all purposes hereunder and under the Notes.
Section 2.21. Certain Covenants Not Applicable to the Notes. The Notes shall not be
entitled to the benefits of the covenants set forth in Section 1004 of the Indenture.
Section 2.22. Calculations in Respect of the Notes. Except as otherwise specifically
stated herein or in the Notes, all calculations to be made in respect of the Notes shall be the
obligation of the Operating Partnership. All calculations made by the Operating Partnership or its
agent as contemplated pursuant to the terms hereof and of the Notes shall be made in good faith and
be final and binding on the Operating Partnership and the Holders absent manifest error. The
Operating Partnership shall provide a schedule of calculations to the Trustee, and the Trustee
shall be entitled to rely upon the accuracy of the calculations by the Operating Partnership
without independent verification. The Trustee shall forward calculations made by the Operating
Partnership to any Holder of Notes upon request within 20 Business Days after the effective date of
any adjustment.
Section 2.23. Authorized Denominations. The Notes shall be issued in denominations of
$1,000 and integral multiples thereof and payments of principal, interest (including Additional
Interest) and Additional Amounts, if any, on the Notes shall be made in U.S. dollars.
32
Section 2.24. Exchange Agent, Paying Agent and Securities Registrar. U.S. Bank
National Association is hereby appointed as Exchange Agent, Paying Agent and the Security Registrar
for the Notes. The Security Register for the Notes will be maintained by the Security Registrar in
the Borough of Manhattan, The City of New York. The rights, privileges, protections, immunities
and benefits given to the Trustee pursuant to the Indenture, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its
capacities with respect to the Notes.
Section 2.25. Restrictions on Transfer. (a) Every Note (and all Notes issued in
exchange therefor or in substitution thereof) that bears or is required under this Section 2.25(a)
to bear the legend set forth in this Section 2.25(a) (together with any Company Common Shares
issued upon exchange of the Notes, collectively, the “Restricted Securities”) shall be subject to
the restrictions on transfer set forth in this Section 2.25(a) (including those set forth in the
legend below) unless such restrictions on transfer shall be waived by written consent of the
Issuer, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof,
agrees to be bound by all such restrictions on transfer. As used in this Section 2.25(a), the term
“transfer” means any sale, pledge, loan, transfer or other disposition whatsoever of any Restricted
Security or any interest therein.
Until the expiration of the holding period applicable to sales of Restricted Securities under
Rule 144(k) under the Securities Act (or any successor provision), any certificate evidencing a
Restricted Security shall bear a legend in substantially the following form, unless such Restricted
Security has been sold pursuant to a registration statement that has been declared effective under
the Securities Act (and which continues to be effective at the time of such transfer) or sold
pursuant to Rule 144 under the Securities Act or any similar provision then in force, or unless
otherwise agreed by the Issuer in writing, with written notice thereof to the Trustee:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IS AWARE THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE
SECURITIES ACT AND IS PURCHASING THIS SECURITY IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT;
(2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR AN AFFILIATE THEREOF WAS THE OWNER
OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THIS SECURITY OR THE COMMON SHARES ISSUABLE UPON
EXCHANGE OF SUCH SECURITY EXCEPT (A) TO THE COMPANY, THE ISSUER OR ANY OF THEIR RESPECTIVE
SUBSIDIARIES, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) PURSUANT TO THE
33
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT
AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR AN
AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE
TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE
2(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY,
THE ISSUER OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY
PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE LATER OF THE ORIGINAL
ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR AN AFFILIATE
THEREOF WAS THE OWNER OF THIS SECURITY.
Any Notes that are Restricted Securities and as to which such restrictions on transfer shall
have expired in accordance with their terms or as to conditions for removal of the foregoing legend
set forth therein have been satisfied may, upon surrender of such Note for exchange to the
Securities Registrar in accordance with the provisions of this Section 2.25, be exchanged for a new
Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this Section 2.25(a). If such Restricted Security surrendered for exchange is
represented by a global Note bearing the legend set forth in this Section 2.25(a), the principal
amount of the legended global Note shall be reduced by the appropriate principal amount and the
principal amount of a global Note without the legend set forth in this Section 2.25(a) shall be
increased by an equal principal amount. If a global Note without the legend set forth in this
Section 2.25(a) is not then outstanding, the Issuer shall execute and the Trustee shall
authenticate and deliver an unlegended global Note to the Depositary.
In the event Rule 144(k) under the Securities Act (or any successor provision) is amended to
shorten the two-year period under Rule 144(k), then, the references in the restrictive legends set
forth above to “TWO YEARS,” and in the corresponding transfer restrictions described above, and in
the Notes and the Company Common Shares will be deemed to refer to such shorter period, from and
after receipt by the Trustee of an Officers’ Certificate and an Opinion of
34
Counsel to that effect. As soon as reasonably practicable after the Issuer knows of the
effectiveness of any such amendment to shorten the two-year period under Rule 144(k), unless such
changes would otherwise be prohibited by, or would cause a violation of, the federal securities
laws applicable at the time, the Issuer will provide to the Trustee an Officers’ Certificate and an
Opinion of Counsel as to the effectiveness of such amendment and the effectiveness of such change
to the restrictive legends and transfer restrictions.
(b) Any Restricted Securities, prior to the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor provision), purchased or
owned by the Issuer or any Affiliate thereof may not be resold by the Issuer or such Affiliate and
will be surrendered to the Trustee for cancellation. Upon expiration of the holding period
applicable Restricted Securities under Rule 144(k) under the Securities Act (or any successor
provision), the Notes may, to the extent permitted by applicable law, be reissued or sold or may be
surrendered to the Trustee for cancellation. Any Notes surrendered for cancellation may not be
reissued or resold and will be canceled promptly by the Trustee.
(c) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this instrument or under applicable law
with respect to any transfer of any interest in any Note other than to require delivery of such
certificates and other documentation or evidence as are expressly required by, and to do so if and
when expressly required by, the terms of this instrument, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Section 2.26. Rule 144A Information Requirement. Within the period prior to the
expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities
Act (or any successor provision), each of the Issuer and the Guarantor covenants and agrees that it
shall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act,
make available to any holder or beneficial holder of Notes or any Company Common Shares issued upon
exchange thereof which continue to be Restricted Securities in connection with any sale thereof and
any prospective purchaser of Notes or such Company Common Shares designated by such holder or
beneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act
upon the request of any holder or beneficial holder of the Notes or such Company Common Shares, all
to the extent required to enable such holder or beneficial holder to sell its Notes or Company
Common Shares without registration under the Securities Act within the limitation of the exemption
provided by Rule 144A unless a resale shelf registration statement in respect of the Notes and the
Company Common Shares is available.
Section 2.27. Provision of Financial Information. Each of the Issuer and the
Guarantor, for so long as any Notes are outstanding, within 15 days after it is required to file
the same with the Commission, will furnish to the Holders of the Notes, or cause the Trustee to
furnish to the Holders of the Notes, all annual, quarterly and other reports that it may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Issuer’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on an Officers’ Certificate). If either the Issuer or the Guarantor is not required to
file the foregoing
35
forms or reports with the commission, then it will file with the Trustee and the Commission
such reports as may be prescribed by the Commission at such time.
Section 2.28. Additional Interest Notice. In the event that the Issuer is required to
pay Additional Interest to Holders of Notes pursuant to the Registration Rights Agreement, the
Issuer will provide written notice (“Additional Interest Notice”) to the Trustee of its obligation
to pay Additional Interest no later than fifteen (15) calendar days prior to the proposed payment
date for Additional Interest, and the Additional Interest Notice shall set forth the amount of
Additional Interest to be paid by the Issuer on such payment date. The Trustee shall not at any
time be under any duty or responsibility to any Holder of Notes to determine the Additional
Interest, or with respect to the nature, extent or calculation of the amount of Additional Interest
when made, or with respect to the method employed in such calculation of the Additional Interest.
ARTICLE THREE
FORM OF NOTES
FORM OF NOTES
Section 3.01. Form of Notes. The Notes and the Trustee’s certificate of
authentication to be borne by such Notes shall be substantially in the form set forth in Exhibit A
hereto. Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with
the provisions of the Indenture, or as may be required by the Depositary or by the National
Association of Securities Dealers, Inc. in order for the Notes to be tradable on The
PORTALSM Market or as may be required for the Notes to be tradable on any other market
developed for trading of securities pursuant to Rule 144A or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange or automated quotation system on which the Notes may be listed, or to
conform to usage, or to indicate any special limitations or restrictions to which any particular
Notes are subject.
ARTICLE FOUR
MISCELLANEOUS
MISCELLANEOUS
Section 4.01. Relation to Original Indenture. This Second Supplemental Indenture
supplements the Original Indenture, as amended, and shall be a part and subject to all the terms
thereof. Except as supplemented hereby, all of the terms, provisions and conditions of the Original
Indenture, as amended, and the Securities issued thereunder shall continue in full force and
effect.
Section 4.02. Concerning the Trustee. The Trustee shall not be responsible for any
recital herein (other than the second and fourth recitals as they appear and as they apply to the
Trustee) as such recitals shall be taken as statements of the Issuer and the Guarantor, or the
validity of the execution by the Issuer or the Guarantor of this Second Supplemental Indenture. The
Trustee makes no representations as to the validity or sufficiency of this instrument.
Section 4.03. Effect of Headings. The Article and Section headings herein are for
convenience of reference only and shall not affect the construction hereof.
36
Section 4.04. Counterparts. This instrument may be executed in counterparts, each of
which shall be deemed an original, but all of which shall together constitute one and the same
instrument.
Section 4.05. Governing Law. This instrument shall be governed by and construed in
accordance with the laws of the State of New York.
[signature pages follow]
37
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture
to be duly executed as of the day and year first above written.
| EOP OPERATING LIMITED PARTNERSHIP, as Issuer of the Notes |
||||||
| By: | Equity Office Properties Trust, its General Partner |
|||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxx Title: Executive Vice President and Secretary |
||||||
| EQUITY OFFICE PROPERTIES TRUST, as Co-Obligor and Guarantor of the Notes |
||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxx Title: Executive Vice President and Secretary |
||||||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxxx Title: Vice President |
||||||
38
Exhibit A
[FORM OF NOTE]
[Include only for Global Notes]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM,
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE
THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A
NOMINEE OF SUCH SUCCESSOR.
[Include only for Notes that are Restricted Securities]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), IS AWARE THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE
SECURITIES ACT AND IS PURCHASING THIS SECURITY IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT;
(2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
SECURITY AND THE LAST DATE ON WHICH EOP OPERATING LIMITED PARTNERSHIP (THE “ISSUER”) OR EQUITY
OFFICE PROPERTIES TRUST (THE “COMPANY”) OR AN AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY,
RESELL OR OTHERWISE TRANSFER THIS SECURITY OR THE COMMON SHARES ISSUABLE UPON EXCHANGE OF SUCH
SECURITY EXCEPT (A) TO THE COMPANY, THE ISSUER OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
A - 1
ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR AN
AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE
TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE
2(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER,
THE COMPANY OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY
PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE LATER OF THE ORIGINAL
ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR AN AFFILIATE
THEREOF WAS THE OWNER OF THIS SECURITY.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS
SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE
HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT.
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NO.
|
PRINCIPAL AMOUNT | |
CUSIP NO. 268766 CF 7
|
$ |
EOP OPERATING LIMITED PARTNERSHIP
4.00% Exchangeable Senior Note due 2026
EOP Operating Limited Partnership, a limited partnership duly organized and existing under the
laws of the State of Delaware (the “Issuer,” which term shall include any successor under the
Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or
its registered assigns, the principal sum of Dollars ($ ) on July 15,
2026 unless redeemed, repurchased or exchanged prior to such date in accordance with the terms
hereof and of the Indenture. The Company (as defined on the reverse hereof) is a co-obligor in
respect of this Note and this Note is a Guaranteed Security within the meaning of the Indenture.
This Note shall bear interest as specified on the reverse hereof. This Note is exchangeable
for the consideration specified on the reverse hereof. This Note is subject to redemption by the
Issuer at its option and to repurchase by the Issuer at the option of the Holder as specified on
the reverse hereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
This Note shall not be entitled to the benefits of the Indenture or the Guarantee of the
Guarantor (as defined on the reverse hereof) or be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee.
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IN WITNESS WHEREOF, each of the Issuer and the Guarantor has caused this Note to be signed
manually or by facsimile by an authorized signatory.
Dated: June 27, 2006 |
||||||
| EOP OPERATING LIMITED PARTNERSHIP as Issuer |
||||||
| By: Equity Office Properties Trust, its General Partner |
||||||
| By: | /s/ Xxxxxxx Fear | |||||
| Name: Xxxxxxx Fear Title: Senior Vice President, Treasurer |
||||||
Attest:
|
||
/s/ Xxxxx Xxxxxxxx |
||
Name: Xxxxx Xxxxxxxx |
||
Title: Assistant Secretary |
| EQUITY OFFICE PROPERTIES TRUST as Co-Obligor and Guarantor |
||||||
| By: | /s/ Xxxxxxx Fear | |||||
| Name: Xxxxxxx Fear Title: Senior Vice President, Treasurer |
||||||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||
| Authorized Signatory | ||||||
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[REVERSE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
4.00% Exchangeable Senior Note due 2026
This Note is one of a duly authorized issue of notes, debentures, bonds, or other evidences of
indebtedness of the Issuer (hereinafter called the “Securities”) of the series hereinafter
specified, all issued or to be issued under and pursuant to an Indenture, dated as of August 29,
2000 (as amended and supplemented by the First Supplemental Indenture, dated as of June 18, 2001,
and the Second Supplemental Indenture, dated as of June 27, 2006, and as further amended or
supplemented from time to time, the “Indenture”), duly executed and delivered by the Issuer and
Equity Office Properties Trust, a Maryland real estate investment trust (“Equity Office” or the
“Company”), as guarantor (the “Guarantor”) in respect of any Guaranteed Securities, to U.S. Bank
National Association, as trustee (the “Trustee,” which term includes any successor trustee under
the Indenture with respect to the series of Securities of which this Notes is a part), and
reference is hereby made to the Indenture, and all modifications and amendments and indentures
supplemental thereto relating to the Notes, for a description of the rights, limitations of rights,
obligations, duties, and immunities thereunder of the Trustee, the Issuer, Equity Office and the
Holders of the Notes and the terms upon which the Notes are authenticated and delivered. The
Securities may be issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may accrue interest (if any) at
different rates or formulas and may otherwise vary as provided in the Indenture. This Note is one
of a series of Securities designated as the “4.00% Exchangeable Senior Notes due 2026” of the
Issuer with respect to which the Company is a co-obligor, initially limited (except as permitted
under the Indenture) in aggregate principal amount to $1,500,000,000. Terms used herein without
definition and which are defined in the Indenture have the meanings assigned to them in the
Indenture.
1. INTEREST
The Notes shall bear interest at the rate of 4.00% per annum from June 27, 2006 or from the
most recent Interest Payment Date (as defined below) to which interest has been paid or duly
provided for, as the case may be, payable semi-annually in arrears on January 15 and July 15 of
each year (each, an “Interest Payment Date”), commencing on January 15, 2007, until the principal
hereof is paid or duly made available for payment. Interest payable on each Interest Payment Date
shall equal the amount of interest accrued for the period commencing on and including the
immediately preceding Interest Payment Date in respect of which interest has been paid or duly
provided for (or commencing on and including June 27, 2006, if no interest has been paid or duly
provided for) and ending on and including the day preceding such Interest Payment Date. Interest
on the Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months
2. METHOD OF PAYMENT
Except as provided in the Indenture, the Issuer shall pay interest on the Notes to the Persons
who are Holders of record of Notes at the close of business (whether or not a Business
A - 5
Day) on the January 1 and July 1 immediately preceding the applicable Interest Payment Date
(each, a “Regular Record Date”). Holders must surrender Notes to a Paying Agent and comply with
the other terms of the Indenture to collect the principal amount, Redemption Price, Optional
Repurchase Price or Change in Control Purchase Price of the Notes, plus, if applicable, accrued and
unpaid interest (including Additional Interest, if any) payable as herein provided at maturity,
upon redemption at the Issuer’s option or repurchase at the Holder’s option. The Issuer shall pay,
in money of the United States that at the time of payment is legal tender for payment of public and
private debts, all amounts due in cash with respect to the Notes on the dates and in the manner
provided in this Note and the Indenture.
3. PAYING AGENT, EXCHANGE AGENT AND SECURITY REGISTRAR
Initially, the Trustee shall act as Paying Agent, Exchange Agent and Security Registrar. The
Issuer hereby initially designates the Corporate Trust Office of the Trustee in New York, New York
as the office to be maintained by it where this Note may be presented for payment, registration of
transfer or exchange, where notices or demands to or upon the Issuer or Equity Office in respect of
this Note or the Indenture may be served and where the Notes may be surrendered for exchange in
accordance with the provisions of paragraph 6 hereof and the Indenture. The Issuer may appoint and
change any Paying Agent, Exchange Agent, Security Registrar or co-registrar or approve a change in
the office through which any Paying Agent acts without notice, other than notice to the Trustee.
4. REDEMPTION BY THE ISSUER
The Issuer shall not have the right to redeem any Notes prior to January 18, 2012, except to
preserve the status of Equity Office as a real estate investment trust. If the Issuer determines
it is necessary to redeem the Notes in order to preserve the status of Equity Office as a real
estate investment trust, the Issuer may redeem the Notes then Outstanding, in whole or in part, at
100% of the principal amount of the Notes to be redeemed plus unpaid interest (including Additional
Interest, if any) accrued thereon to the Redemption Date.
The Issuer shall have the right to redeem the Notes for cash, in whole or in part at any time
or from time to time, on or after January 18, 2012 at 100% of the principal amount of the Notes to
be redeemed plus unpaid interest (including Additional Interest, if any) accrued thereon to the
Redemption Date (the “Redemption Price”).
Notice of redemption at the option of the Issuer shall be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed at the Holder’s
registered address. Notes in denominations larger than $1,000 principal amount may be redeemed in
part but only in integral multiples of $1,000 principal amount.
5. OPTIONAL REPURCHASE
RIGHTS; REPURCHASE AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
(a) Subject to the terms and conditions of the Indenture, a Holder shall have the right to
require the Issuer to repurchase all of its Notes, or any portion of the principal amount thereof
that is equal to $1,000 or an integral multiple thereof, on each of January 18, 2012, July 15, 2016
and July 15, 2021 (each, an “Optional Repurchase Date”) for cash equal to 100% of the principal
A - 6
amount of the Notes to be repurchased plus unpaid interest (including Additional Interest, if
any) accrued thereon to such Optional Repurchase Date (the “Optional Repurchase Price”), upon
delivery to the Paying Agent of an Optional Repurchase Notice containing the information set forth
in the Indenture, from the opening of business on the date that is 30 days prior to such Optional
Repurchase Date until the close of business on the third Business Day prior to such Optional
Repurchase Date and upon compliance with the other terms of the Indenture.
(b) If a Change in Control occurs at any time prior to January 18, 2012, a Holder shall have
the right, at such Holder’s option and subject to the terms and conditions of the Indenture, to
require the Issuer to repurchase all or any of such Holder’s Notes having a principal amount equal
to $1,000 or an integral multiple thereof on the date (the “Change in Control Purchase Date”)
specified by the Issuer in the Company Notice (which date shall be no earlier than 15 days and no
later than 30 days after the date of such Company Notice) for cash equal to the 100% of the
principal amount of the Notes to be repurchased plus unpaid interest (including Additional
Interest, if any) accrued thereon to the Change in Control Purchase Date (the “Change in Control
Purchase Price”).
(c) Holders have the right to withdraw any Optional Repurchase Notice or Change in Control
Purchase Notice, as the case may be, by delivery to the Paying Agent of a written notice of
withdrawal in accordance with the provisions of the Indenture.
(d) If the Paying Agent holds, in accordance with the terms of the Indenture, money sufficient
to pay the Optional Repurchase Price or Change in Control Purchase Price of such Notes on the
Optional Repurchase Date or Change in Control Purchase Date, as the case may be, then, on and after
such date, such Notes shall cease to be Outstanding and interest on such Notes shall cease to
accrue, and all other rights of the Holder shall terminate (other than the right to receive the
Optional Repurchase Price or Change in Control Purchase Price upon delivery or transfer of the
Notes).
6. EXCHANGE
The Notes shall be exchangeable into the consideration specified in the Indenture at such
times, upon compliance with such conditions and upon the terms set forth in the Indenture.
The initial Exchange Rate shall be 23.2542 Company Common Shares per $1,000 principal amount
of Notes, subject to adjustment in certain circumstances as specified in the Indenture. Notes
tendered for exchange by a Holder after the close of business on any Regular Record Date for an
interest payment and on or prior to the corresponding Interest Payment Date must be accompanied by
payment of an amount equal to the interest that such Holder is to receive on such Notes on such
Interest Payment Date; provided, however, that no such payment shall be required (1) if such Notes
have been called for redemption on a Redemption Date that is after such Regular Record Date and on
or prior to such Interest Payment Date or (2) with respect to overdue interest, if any overdue
interest exists at the time of exchange with respect to such Notes.
The Exchange Rate applicable to each Note a notice of exchange in respect of which is received
by the Exchange Agent from and including the Effective Date of a Change in Control
A - 7
resulting from a transaction described in clauses (1) or (2) of the definition of Change in
Control up to and including the 30th Business Day following the Effective Date of such Change in
Control shall be increased by the number of Additional Shares specified in the Indenture.
To exchange this Note, the Holder must (a) complete and manually sign the irrevocable exchange
notice set forth below (or complete and manually sign a facsimile of such notice) and deliver such
notice to the Exchange Agent at the office maintained by the Exchange Agent for such purpose, (b)
if this Note is in certificated form, surrender such Note to the Exchange Agent, (c) furnish
appropriate endorsements and transfer documents if required by the Exchange Agent, Equity Office or
the Trustee and (d) pay any transfer or similar tax, if required. The date on which the Holder
satisfies all such requirements shall be deemed to be the date on which this Note shall have been
tendered for exchange.
If the Holder has delivered an Optional Repurchase Notice or a Change in Control Purchase
Notice requiring the Issuer to repurchase all or a portion of this Note pursuant to paragraph 5
hereof, then this Note (or portion hereof subject to such Optional Repurchase Notice or Change in
Control Purchase Notice) may be exchanged only if the Optional Repurchase Notice or Change in
Control Purchase Notice is withdrawn in accordance with the terms of the Indenture.
7. RANKING
The Notes are senior unsecured obligations of the Issuer and shall rank pari passu in right of
payment with all other senior unsecured senior indebtedness of the Issuer from time to time
outstanding.
8. GUARANTEE
Equity Office shall be a co-obligor in respect of the Notes. This Note is a Guaranteed
Security within the meaning of, and subject to the provisions applicable to Equity Office as
Guarantor thereof contained in, the Indenture.
9. DEFAULTED INTEREST
Except as otherwise specified herein or in the Indenture, any Defaulted Interest on this Note
shall forthwith cease to be payable to the Holder hereof on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer as
provided for in Section 307 of the Indenture.
10. DENOMINATIONS; TRANSFER; EXCHANGE
This Note is issuable only in fully registered form, without coupons, in denominations of
$1,000 and integral multiples thereof. This Note may be exchanged for a like aggregate principal
amount of Notes of other authorized denominations at the office or agency of the Issuer in The City
of New York, in the manner and subject to the limitations provided herein and in the Indenture, but
without the payment of any charge except for any tax or other governmental charge imposed in
connection therewith. Upon due presentment for registration of transfer of this Note at the office
or agency of the Issuer in The City of New York, one or more new Notes of
A - 8
authorized denominations in an equal aggregate principal amount will be issued to the
transferee in exchange therefor, and bearing such restrictive legends as may be required by the
Indenture, but without payment of any charge except for any tax or other governmental charge
imposed in connection therewith. In the event of any redemption in part, the Issuer shall not be
required to: (i) issue or register the transfer or exchange of any Note during a period beginning
at the opening of business 15 days before any selection of Notes for redemption and ending at the
close of business on the earliest date on which the relevant notice of redemption is deemed to have
been given to all Holders of Notes to be so redeemed, or (ii) register the transfer or exchange of
any Note so selected for redemption, in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
11. PERSONS DEEMED OWNERS
The Holder of this Note may be treated as the owner of this Note for all purposes, and none of
the Issuer, Equity Office or the Trustee nor any authorized agent of the Issuer, Equity Office or
the Trustee shall be affected by any notice to the contrary, except as required by law.
12. ADDITIONAL RIGHTS OF HOLDERS
In addition to the rights provided to Holders of Notes under the Indenture, Holders shall have
all the rights set forth in the Registration Rights Agreement, dated as of June 27, 2006, among the
Issuer, Equity Office and the Initial Purchasers named therein.
13. MODIFICATION AND AMENDMENT; WAIVER
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Issuer, the Guarantor and the rights of the
Holders of the Securities under the Indenture at any time by the Issuer, the Guarantor and the
Trustee with the consent of the Holders of a majority in the aggregate principal amount of all
Outstanding Securities affected thereby (voting together as a single class). The Indenture also
provides that certain amendments or modifications may not be made without the consent of each
Holder to be affected thereby. Furthermore, provisions in the Indenture permit the Holders of a
majority in the aggregate principal amount of the Outstanding Securities of any series, in certain
instances, to waive, on behalf of all of the Holders of Securities of such series, certain past
defaults under the Indenture and their consequences. Any such waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in exchange hereof, or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
14. DEFAULTS AND REMEDIES
If an Event of Default occurs and is continuing, the Trustee, or the Holders of not less than
25% in aggregate principal amount of the Notes at the time Outstanding, may declare the principal
amount and any accrued and unpaid interest, of all the Notes to be due and payable in the manner
and with the effect provided in the Indenture.
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Events of Default in respect of the Notes are set forth in Section 501 of the Indenture.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture.
15. CONSOLIDATION, MERGER, AND SALE OF ASSETS
In the event of a consolidation or merger of the Issuer or Equity Office or a sale, lease or
conveyance of all or substantially all of the assets of the Issuer or Equity Office as described in
ARTICLE EIGHT of the Indenture the successor entity to the Issuer or Equity Office, as the case may
be, shall succeed to and be substituted for the Issuer or Equity Office, as the case may be, and
may exercise the rights and powers of the Issuer or Equity Office, as the case may be, under the
Indenture, and thereafter, except in the case of a lease, the Issuer or Equity Office, as the case
may be, shall be relieved of all obligations and covenants under the Indenture and the Notes.
16. CERTAIN COVENANTS NOT TO APPLY
The Notes shall not be entitled to the benefits of the covenants set forth in Section 1004 of
the Indenture.
17. TRUSTEE AND AGENT DEALINGS WITH THE COMPANY
The Trustee, Paying Agent, Exchange Agent and Securities Registrar under the Indenture, each
in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with and collect obligations owed to it by the Issuer, Equity Office or their respective
Affiliates and may otherwise deal with the Issuer or its Affiliates with the same rights it would
have if it were not Trustee, Paying Agent, Exchange Agent or Xxxxxxxxx.
00. CALCULATIONS IN RESPECT OF THE NOTES
Except as otherwise specifically stated herein or in the Indenture, all calculations to be
made in respect of the Notes shall be the obligation of the Issuer. All calculations made by the
Issuer or its agent as contemplated pursuant to the terms hereof and of the Indenture shall be
final and binding on the Issuer and the Holders absent manifest error. The Issuer shall provide a
schedule of calculations to the Trustee, and the Trustee shall be entitled to rely upon the
accuracy of the calculations by the Issuer without independent verification. The Trustee shall
forward calculations made my the Issuer to any Holder of Notes upon request.
19. GOVERNING LAW
The Indenture, this Note and the Guarantee shall be governed by and construed in accordance
with the laws of the State of New York.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto |
. | |
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
Including Postal Zip Code of Assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints
to transfer said Note on the books of the Issuer, with full power of substitution in the premises.
In connection with any transfer of the Note prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision)
(other than any transfer pursuant to a registration statement that has been declared effective
under the Securities Act), the undersigned confirms that such Note is being transferred:
| o | To EOP Operating Limited Partnership, Equity Office Properties Trust or any of their respective subsidiaries; or | ||
| o | To a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act of 1933, as amended; or | ||
| o | Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; or | ||
| o | Pursuant to a Registration Statement which has been declared effective under the Securities Act of 1933, as amended, and which continues to be effective at the time of transfer. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered holder thereof.
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Dated: |
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Signature Guaranteed |
||
NOTICE: Signature must be guaranteed
by an eligible Guarantor Institution
(banks, stockbrokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion
program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
|
NOTICE: The signature to this Assignment must correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. |
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EXCHANGE NOTICE
To exchange this Note as provided in the Indenture, check the box: o
To exchange only part of this Note, state the principal amount to be exchanged (must be $1,000
or an integral multiple of $1,000): $___.
If, in the event the Issuer delivers Net Shares and you want the stock certificate made out in
another person’s name, fill in the form below:
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
| Your Signature: | ||||
Date: |
||||
| (Sign exactly as your name appears on the other side of this Note) | ||||
| 1 Signature guaranteed by: | ||||
By: |
||||
| 1 | Signature must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15. |
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