Contract
Exhibit 4.5
EXECUTION COPY
EXECUTION COPY
THIRD SUPPLEMENTAL INDENTURE, dated as of January 19, 2007, to the Indenture dated as of
September 2, 1997 (as amended and supplemented to the date hereof, the “Indenture”), by and between
EOP Operating Limited Partnership, a Delaware limited partnership (the “Issuer”), and U.S. Bank
National Association, as trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee have heretofore executed and delivered the Indenture, and
the Issuer has issued pursuant to the Indenture, among other securities, the following outstanding
securities: 6.763% Notes due 2007 (the “6.763% Notes”) and 7.25% Notes due 2028 (the “7.25% 2028
Notes” and, together with the 6.763% Notes, the “Notes”);
WHEREAS, Section 902 of the Indenture provides that the Issuer and the Trustee may, with the
consent of the Holders of not less than a majority in principal amount of the outstanding Notes
affected by such supplemental indenture, enter into a supplemental indenture for the purpose of
amending certain provisions of (i) the Indenture and (ii) the Notes;
WHEREAS, in connection with the mergers, including the merger of Equity Office Properties
Trust, a Maryland real estate investment trust (“EOPT”), with Blackhawk Acquisition Trust, a
Maryland real estate investment trust, with Blackhawk Acquisition Trust continuing as the surviving
real estate investment trust (the “EOPT Merger”), contemplated by the Agreement and Plan of Merger
dated as of November 19, 2006, as amended to the date hereof, among EOPT, the Issuer, Blackhawk
Parent LLC, a Delaware limited liability company, Blackhawk Acquisition Trust and Blackhawk
Acquisition, L.P., a Delaware limited partnership, the Issuer has offered to purchase for cash any
and all of the outstanding Notes upon the terms and subject to the conditions set forth in the
Offer to Purchase and Consent Solicitation Statement, dated as of December 26, 2006 (as the same
may be amended or supplemented from time to time, the “Statement”), and in the related Consent and
Letter of Transmittal, dated as of December 26, 2006 (as the same may be amended or supplemented
from time to time, the “Consent and Letter of Transmittal” and, together with the Statement, with
respect to the Notes, the “Offers”), from each Holder of the Notes;
WHEREAS, in connection with the Offers, the Issuer has sought consents from Holders of the
Notes to certain amendments to the Notes as set forth in Article Two of this Third Supplemental
Indenture (the “Amendments”), as well as certain other amendments to the Notes and the Indenture
that are not the subject of this Third Supplemental Indenture;
WHEREAS, the Issuer has received the consents from Holders of not less than a majority of the
outstanding aggregate principal amount of the Notes to effect the Amendments;
WHEREAS, the Issuer has been authorized by resolution to enter into this Third Supplemental
Indenture; and
WHEREAS, all other acts and proceedings required by law and by the Indenture to make this
Third Supplemental Indenture a valid and binding agreement for the purposes expressed herein, in
accordance with its terms, have been duly done and performed;
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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,
the Issuer and the Trustee hereby agree as follows:
ARTICLE ONE
SECTION 1.01. Definitions.
Capitalized terms used in this Third Supplemental Indenture and not otherwise defined herein
shall have the meanings assigned to such terms in the Indenture.
ARTICLE TWO
SECTION 2.01. Elimination of Certain Provisions in the Notes.
Each Note is deemed amended by the insertion of the following text on the reverse of the Note:
“Notwithstanding anything to the contrary contained herein, the
terms of the Indenture and this Note have been amended and the
following provisions of this Note are no longer applicable: Any
obligation to provide information specified in Rule 144A(d)(4) under
the Securities Act of 1933, as amended, to any holder of this Note
or any prospective purchaser has been eliminated.”
ARTICLE THREE
SECTION 3.01. Effectiveness of Third Supplemental Indenture; Operation of
Amendments to Indenture and Notes.
This Third Supplemental Indenture shall be effective upon its execution by the parties hereto.
The Amendments set forth in Article Two hereof will only become operative concurrently with the
consummation of the EOPT Merger, provided that all validly tendered Notes are accepted for purchase
pursuant to the applicable Offers upon consummation of the EOPT Merger.
SECTION 3.02. Severability.
In case any provision in this Third Supplemental Indenture or the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 3.03. Continuing Effect of Indenture.
Except as expressly provided herein, all of the terms, provisions and conditions of the
Indenture and the Notes shall remain in full force and effect.
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SECTION 3.04. Construction of Third Supplemental Indenture.
This Third Supplemental Indenture is executed as and shall constitute an indenture
supplemental to the Indenture and shall be construed in connection with and as part of the
Indenture. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.05. Trust Indenture Act Controls.
If any provision of this Third Supplemental Indenture limits, qualifies or conflicts with
another provision of this Third Supplemental Indenture or the Indenture that is required to be
included by the Trust Indenture Act of 1939, as amended, and as in force at the date as of which
this Third Supplemental Indenture is executed, the provision required by said Act shall control.
SECTION 3.06. Disclaimer.
The recitals contained in this Third Supplemental Indenture shall be taken as the statements
of the Issuer and the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Third Supplemental Indenture.
SECTION 3.07. Counterparts.
This Third Supplemental Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be
duly executed, all as of the day and year first above written.
| EOP OPERATING LIMITED PARTNERSHIP | ||||
By:
|
Equity Office Properties Trust, as General Partner | |||
By |
/s/ Xxxxxxx X. Xxxxxxx | |||
Title: Executive Vice President, Chief Legal Counsel and Secretary |
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| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||||
By |
/s/ Xxxxxxx Xxxxxxxx | |||
Title: Vice President |
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