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EXHIBIT 4.2
[FACE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
6.5% NOTES DUE 2004
NO. 00_ PRINCIPAL AMOUNT
CUSIP NO. 268766 BE1 $___________
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.
THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM
DENOMINATIONS OF $1,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of _________________ Dollars on January
15, 2004 (the "Stated Maturity Date"), (or any Redemption Date, (as defined on
the reverse hereof) or any earlier date of acceleration of maturity, (each such
date being referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon from January 26, 1999 (or
from the most recent Interest Payment Date (as defined below) to which interest
has been paid or duly provided for), semiannually in arrears on July 15 and
January 15 of each year, commencing on July 15, 1999 (each, an "Interest Payment
Date"), and on the Maturity Date, at a rate of 6.5% per annum, until payment of
said principal sum has been made or duly provided for. Interest on this Note
will be computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date will, subject to certain exceptions described below, be
paid to the Holder in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the "Regular Record Date" for such
payment, which will be the date 15 calendar days (regardless of whether such day
is a Business Day (as defined below)) next preceding such Interest Payment Date.
Any interest not so punctually
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paid or duly provided for on an Interest Payment Date ("Defaulted Interest")
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and shall be paid to the Holder in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the Holder of this Note by the Trustee not less than 10 calendar days prior
to such Special Record Date or may be paid at any time in any other lawful
manner, all as more fully provided for in the Indenture.
The principal of and Make-Whole Amount, if any, with respect to this
Note payable on the Maturity Date will be paid against presentation and
surrender of this Note at the office or agency of the Issuer maintained for that
purpose in Boston, Massachusetts with a drop facility maintained in New York,
New York. The Issuer hereby initially designates the Corporate Trust Office of
the Trustee in Boston, Massachusetts as the office to be maintained by it where
Notes may be presented for payment, registration of transfer, or exchange and
where notices or demands to or upon the Issuer in respect of the Notes or the
Indenture may be served.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued during
the applicable Interest Period (as defined below).
An "Interest Period" is each period from and including the immediately
preceding Interest Payment Date (or from and including January 26, 1999, in the
case of the initial Interest Period) to but excluding the applicable Interest
Payment Date or the Maturity Date, as the case may be. If any Interest Payment
Date or Maturity Date falls on a day that is not a Business Day, principal,
Make-Whole Amount, if any, and interest payable on such date will be paid on the
succeeding Business Day with the same force and effect as if it were paid on the
date such payment was due, and no interest will accrue on the amount so payable
for the period from and after such date to such succeeding Business Day.
"Business Day" means any day, other than a Saturday or a Sunday, on which
banking institutions in New York, New York and Boston, Massachusetts are not
required or authorized by law or executive order to close.
Payments of principal, Make-Whole Amount, if any, and interest in
respect of this Note will be made by U.S. dollar check or by wire transfer (such
a wire transfer to be made only to a Holder of an aggregate principal amount of
Notes in excess of $10,000,000, and only if such Holder shall have furnished
wire instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date and acknowledged that a wire transfer fee shall be
payable) of immediately available funds in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place. Capitalized terms used herein,
including on the reverse hereof, and not defined herein or on the reverse hereof
shall have the respective meanings given to such terms in the Indenture.
This Note shall not be entitled to the benefits of the Indenture 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, the Issuer has caused this Note to be signed
manually or by facsimile by duly authorized officers of the General Partner.
Dated: January 26, 1999 EOP OPERATING LIMITED PARTNERSHIP,
as Issuer
By: EQUITY OFFICE PROPERTIES TRUST, not
individually but as Managing General Partner
By:
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Xxxxxxx X. Xxxxxxx
Its: Executive Vice President and
Chief Financial Officer
and By:
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Xxxxxxx X. Xxxxxxx
Its: Executive Vice President and
Chief Legal Counsel
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in the
within-mentioned Indenture.
Dated: January 26, 1999 STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
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Authorized Officer
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[REVERSE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
6.5% NOTES DUE 2004
This Note is one of a duly authorized issue of senior Notes of the
Issuer (hereinafter called the "Notes") of the series hereinafter specified, all
issued or to be issued under and pursuant to an Indenture dated as of September
2, 1997 (as amended, the "Indenture"), duly executed and delivered by the Issuer
to State Street Bank and Trust Company, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Notes of which this Note is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties, and immunities
thereunder of the Trustee, the Issuer, and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered. The
Notes 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 bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), and may otherwise vary as provided in the Indenture. This
Note is one of a series designated as the 6.5% Notes due 2004 of the Issuer (the
"Notes"), limited in aggregate principal amount to $300,000,000, subject to the
provisions in the Indenture.
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal hereof and Make-Whole Amount (if any)
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Issuer may redeem this Note, at any time in whole or from time to
time in part, at the election of the Issuer, at a redemption price equal to the
sum of (i) the principal amount being redeemed plus accrued interest thereon to
the date fixed for redemption (the "Redemption Date") and (ii) the Make-Whole
Amount with respect hereto (the "Redemption Price"); provided, however, that
interest installments due on an Interest Payment Date which is on or prior to
the Redemption Date will be payable to the Holder hereof (or one or more
predecessor Notes) as of the close of business on the Record Date preceding such
Interest Payment Date. If notice has been given as provided in the Indenture and
funds for the redemption of this Note or any part thereof called for redemption
shall have been made available on the Redemption Date, this Note or such part
thereof will cease to bear interest on the Redemption Date referred to in such
notice and the only right of the Holder will be to receive payment of the
Redemption Price. Notice of any optional redemption of any Notes will be given
to the Holder hereof (in accordance with the provisions of the Indenture), not
more than 60 nor less than 30 days prior to the Redemption Date. In the event of
redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms and provisions as
this Note shall be issued by the Issuer in the name of the Holder hereof upon
the presentation and surrender hereof.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Notes at the time Outstanding of all series to
be affected (voting as one class), evidenced as provided in the Indenture, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Notes of each series; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Note at the time Outstanding so
affected, (i) change the final maturity of any Note, or reduce the principal
amount thereof or any premium or Make-Whole Amount thereon, if any, or reduce
the rate or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment on any Note,
or (ii) reduce the percentage in principal amount of Outstanding Notes, the
Holders of which are required to consent to any such supplemental indenture, or
(iii) reduce the percentage in principal amount of Outstanding Notes, the
Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults
thereunder. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Notes of any series, the Holders of
a majority in aggregate principal amount Outstanding of the Notes of such series
(or, in the case of certain defaults or Events of Default, all series of Notes)
may on behalf of the Holders of all the Notes of such series (or all of the
Notes, as the case may be) waive any such past default or Event of Default and
its consequences, prior to any declaration accelerating the maturity of such
Notes, or, subject to certain conditions, may rescind a declaration of
acceleration and its consequences with respect to such Notes. The preceding
sentence shall not, however, apply to a default in or Event of Default relating
to, the payment of the principal of or premium or Make-Whole Amount, if any, or
interest on any of the Notes or in respect of a covenant or provision contained
in the Indenture that cannot be modified or amended without the consent of the
Holders of each Note at the time Outstanding affected thereby. Any such consent
or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes that may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any Make-Whole Amount
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
This Note is issuable only in registered form without coupons in
denominations of U.S. $1,000 and integral multiples of $1,000 in excess thereof.
Notes may be exchanged for a like aggregate principal amount of Notes of this
series of other authorized denominations at the office or agency of the Issuer
in Boston, Massachusetts, in the manner and subject to the limitations provided
herein and in the Indenture, but without the payment of any service charge
except for any tax or other governmental charge imposed in connection therewith.
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Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in Boston, Massachusetts, one or more new Notes
of authorized denominations in an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, but without the payment of any service charge except
for any tax or other governmental charge imposed in connection therewith.
This Note is not subject to a sinking fund requirement.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture, or any Note, or because of any indebtedness
evidenced hereby or thereby (including, without limitation, any obligation or
indebtedness relating to the principal of, or premium or Make-Whole Amount, if
any, interest or any other amounts due, or claimed to be due, on this Note), or
for any claim based thereon or otherwise in respect thereof, shall be had (i)
against the General Partner or any other partner, or any Person which owns an
interest, directly or indirectly, in any partner, in the Issuer, or (ii) against
any promoter, as such, or against any past, present or future shareholder,
officer, trustee or partner, as such, of the Issuer or the General Partner or of
any successor, either directly or through the Issuer or the General Partner or
any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance hereof and as part of the consideration for the issue hereof.
Prior to due presentation of this Note for registration of transfer,
the Issuer, the Trustee, and any authorized agent of the Issuer or the Trustee
may deem and treat the Person in whose name this Note is registered as the
absolute owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
Make-Whole Amount, if any, and subject to the provisions herein and on the face
hereof, interest hereon, and for all other purposes, and neither the Issuer nor
the Trustee nor any authorized agent of the Issuer or the Trustee shall be
affected by any notice to the contrary, except as required by law.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
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ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Note fill in the form below:
(I) or (we) assign and transfer this Note to
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(Insert assignee's social security or tax identification number, if any)
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(Print or type assignee's name, address and zip code)
Your signature:
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(Sign exactly as your name appears on the other side of this Note)
Date:
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Signature Guarantee:*
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* Signature must be guaranteed by a commercial bank, trust company or member
firm or a major stock exchange
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