Contract
Exhibit 4.3
EXECUTION COPY
EXECUTION COPY
FOURTH SUPPLEMENTAL INDENTURE, dated as of January 19, 2007, to the Indenture dated as of
August 29, 2000 (as amended and supplemented to the date hereof, the “Indenture”), by and among EOP
Operating Limited Partnership, a Delaware limited partnership (the “Issuer”), Equity Office
Properties Trust, a Maryland real estate investment trust (the “Company”), U.S. Bank National
Association, as trustee (the “Trustee”) and, solely with respect to the Internotes (as defined
below), BNY Midwest Trust Company (the “Additional Trustee”).
W I T N E S S E T H:
WHEREAS, the Issuer, the Company and the Trustee have heretofore executed and delivered the
Indenture, the Issuer, the Company and the Additional Trustee have heretofore executed and
delivered the New Trustee Appointment Agreement dated as of June 10, 2004, and the Issuer has
issued pursuant to the Indenture, among other securities, the following securities: 7.75% Notes
due 2007 (the “7.75% Notes”), Floating Rate Notes due 2010 (the “2010 Floating Rate Notes”), 4.65%
Notes due 2010 (the “4.65% Notes”), 7.00% Notes due 2011 (the “7.00% Notes”), 6.75% Notes due 2012
(the “6.75% Notes”), 5.875% Notes due 2013 (the “5.875% Notes”), 4.75% Notes due 2014 (the “4.75%
Notes”), Floating Rate Notes due 2014 (the “2014 Floating Rate Notes”), 7.875% Notes due 2031 (the
“7.875% Notes”) and the Internotes listed on Schedule 1 hereto (the “Internotes” and together with
the 7.75% Notes, the 2010 Floating Rate Notes, the 4.65% Notes, the 7.00% Notes, the 6.75% Notes,
the 5.875% Notes, the 4.75% Notes, the 2014 Floating Rate Notes and the 7.875% Notes, collectively,
the “Notes”);
WHEREAS, Section 902 of the Indenture provides that the Issuer, the Company 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 the Company 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
the Company, 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 to certain
amendments to the Indenture and to the Notes as set forth in Article Two and Article Three of this
Fourth Supplemental Indenture (the “Amendments”);
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WHEREAS, the Issuer has received the consents from Holders of not less than a majority of the
outstanding principal amount of the Notes to effect the Amendments;
WHEREAS, the Issuer and the Company have been authorized by resolution to enter into this
Fourth Supplemental Indenture; and
WHEREAS, all other acts and proceedings required by law and by the Indenture to make this
Fourth Supplemental Indenture a valid and binding agreement for the purposes expressed herein, in
accordance with its terms, have been duly done and performed;
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, the Company, the Trustee and, solely with respect to the Internotes, the Additional
Trustee, hereby agree as follows:
ARTICLE ONE
SECTION 1.01. Definitions.
Capitalized terms used in this Fourth Supplemental Indenture and not otherwise defined herein
shall have the meanings assigned to such terms in the Indenture.
ARTICLE TWO
SECTION 2.01. Amendment of Certain Provisions in Article One.
Section 101 of the Indenture, as it relates to the Notes but not the 4.00% Exchangeable Senior
Notes due 2026 (the “Exchangeable Notes”), is amended by deleting from such Section those defined
terms that, by virtue of the Amendments effected by this Fourth Supplemental Indenture, are no
longer used in the Indenture or the Notes as amended hereby.
SECTION 2.02. Amendment of Certain Provisions in Article Five.
(a) Section 501 of the Indenture, as it relates to the Notes but not the Exchangeable Notes,
is amended by deleting the text of clauses (d) and (e) in their entirety and inserting
“[intentionally omitted]” in lieu thereof.
(b) Section 501 of the Indenture, as it relates to the Notes but not the Exchangeable Notes,
is further amended by deleting the words “or any Significant Subsidiary” from clauses (f) and (g).
SECTION 2.03. Elimination of Certain Provisions in Article Seven.
Section 703 of the Indenture, as it relates to the Notes but not the Exchangeable Notes, is
amended by deleting the text of this Section in its entirety and inserting “[intentionally
omitted]” in lieu thereof.
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SECTION 2.04. Amendment of Certain Provisions in Article Eight.
Section 801 of the Indenture, as it relates to the Notes but not the Exchangeable Notes, is
amended by deleting clause (c) in its entirety and inserting the word “and” before clause (b).
SECTION 2.05. Elimination of Certain Provisions in Article Ten.
(a) Section 1004 of the Indenture is amended by deleting the text of this Section in its
entirety and inserting “[intentionally omitted]” in lieu thereof.
(b) Section 1006 of the Indenture, as it relates to the Notes but not the Exchangeable Notes,
is amended by deleting the text of this Section in its entirety and inserting “[intentionally
omitted]” in lieu thereof.
(c) Section 1007 of the Indenture, as it relates to the Notes but not the Exchangeable Notes,
is amended by deleting the text of this Section in its entirety and inserting “[intentionally
omitted]” in lieu thereof.
(d) Section 1008 of the Indenture, as it relates to the Notes but not the Exchangeable Notes,
is amended by deleting the text of this Section in its entirety and inserting “[intentionally
omitted]” in lieu thereof.
(e) Section 1009 of the Indenture, as it relates to the Notes but not the Exchangeable Notes,
is amended by deleting the text of this Section in its entirety and inserting “[intentionally
omitted]” in lieu thereof.
(f) Section 1010 of the Indenture, as it relates to the Notes but not the Exchangeable Notes,
is amended by deleting the text of this Section in its entirety and inserting “[intentionally
omitted]” in lieu thereof.
SECTION 2.06. Amendment of Certain Provisions in Article Fourteen.
(a) Section 1404 of the Indenture is amended by deleting the text of clauses (b), (c), (d) and
(e) in their entirety and inserting “[intentionally omitted]” in lieu of the text of each of these
clauses.
ARTICLE THREE
SECTION 3.01. Elimination of Certain Provisions in the Notes.
The Notes are deemed to be amended as follows:
(a) Each Note is deemed amended by the insertion of the following text on the reverse of the
Note:
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“Notwithstanding anything to the contrary contained herein, the
terms of the Indenture and this Note have been amended and the
following provisions of the Indenture, and the corresponding
provisions of this Note, are no longer applicable to this Note:
clauses (d) and (e) of Section 501; references to “Significant
Subsidiaries” in clauses (f) and (g) of Section 501; Section 703;
clause (c) of Section 801; Section 1004; Section 1006; Section 1007;
Section 1008; Section 1009; Section 1010; and clauses (b), (c), (d)
and (e) of Section 1404.”
ARTICLE FOUR
SECTION 4.01. Effectiveness of Fourth Supplemental Indenture; Operation of
Amendments to Indenture and the Notes.
(a) This Fourth Supplemental Indenture shall be effective upon its execution by the parties
hereto. The Amendments set forth in Articles Two and Three 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.
(b) Notwithstanding anything to the contrary contained herein, this Fourth Supplemental
Indenture shall have no effect with respect to or on the Exchangeable Notes.
SECTION 4.02. Severability.
In case any provision in this Fourth 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 4.03. 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.
SECTION 4.04. Construction of Fourth Supplemental Indenture.
This Fourth 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 FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.05. Trust Indenture Act Controls.
If any provision of this Fourth Supplemental Indenture limits, qualifies or conflicts with
another provision of this Fourth Supplemental Indenture or the Indenture that is
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required to be
included by the Trust Indenture Act of 1939, as amended, and as in force at the date as of which
this Fourth Supplemental Indenture is executed, the provision required by said Act shall control.
SECTION 4.06. Disclaimer.
(a) The recitals contained in this Fourth Supplemental Indenture shall be taken as the
statements of the Issuer and the Company. The Trustee and the Additional Trustee assume no
responsibility for their correctness. The Trustee and the Additional Trustee make no
representations as to the validity or sufficiency of this Fourth Supplemental Indenture.
(b) The Trustee, the Additional Trustee, the Issuer and the Company acknowledge and agree that
the Trustee is acting in its capacity as trustee with respect to all Notes other than the
Internotes, and that the Trustee shall not be responsible or liable for any actions of the
Additional Trustee.
(c) The Trustee, the Additional Trustee, the Issuer and the Company acknowledge and agree that
the Additional Trustee is acting in its capacity as trustee solely with respect to the Internotes,
and that the Additional Trustee shall not be responsible or liable for any actions of the Trustee.
SECTION 4.07. Counterparts.
This Fourth 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 Fourth 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 |
||||
| EQUITY OFFICE PROPERTIES TRUST | ||||
By |
/s/ Xxxxxxx X. Xxxxxxx | |||
Title: Executive Vice President, Chief Legal Counsel and Secretary |
||||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||||
By |
/s/ Xxxxxxx Xxxxxxxx | |||
Title: Vice President |
||||
| BNY MIDWEST TRUST COMPANY, as Additional Trustee solely with respect to the Internotes | ||||
By |
/s/ X. Xxxxxxxx | |||
Title: Vice President |
||||
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SCHEDULE 1
Internotes
| CUSIP No. | Security Description | Maturity Date | ||
00000XXX0
|
4.750% Internotes due 2008 | June 15, 2008 | ||
00000XXX0
|
5.250% Internotes due 2010 | June 15, 2010 | ||
00000XXX0
|
4.550% Internotes due 2008 | July 15, 2008 | ||
00000XXX0
|
5.100% Internotes due 2010 | July 15, 2010 | ||
00000XXX0
|
4.600% Internotes due 2008 | July 15, 2008 | ||
00000XXX0
|
5.150% Internotes due 2010 | July 15, 2010 | ||
00000XXX0
|
4.300% Internotes due 2008 | July 15, 2008 | ||
00000XXX0
|
4.850% Internotes due 2010 | July 15, 2010 | ||
00000XXX0
|
4.300% Internotes due 2008 | July 15, 2008 | ||
00000XXX0
|
5.000% Internotes due 2011 | January 15, 2011 | ||
00000XXX0
|
3.700% Internotes due 2007 | July 15, 2007 | ||
00000XXX0
|
4.150% Internotes due 2008 | July 15, 2008 | ||
00000XXX0
|
4.000% Internotes due 2008 | October 15, 2008 | ||
00000XXX0
|
3.900% Internotes due 2008 | October 15, 2008 | ||
00000XXX0
|
3.800% Internotes due 2008 | October 15, 2008 | ||
00000XXX0
|
3.900% Internotes due 2008 | November 15, 2008 | ||
00000XXX0
|
3.950% Internotes due 2008 | December 15, 2008 | ||
00000XXX0
|
4.100% Internotes due 2008 | December 15, 2008 | ||
00000XXX0
|
3.950% Internotes due 2008 | December 15, 2008 | ||
00000XXX0
|
4.000% Internotes due 2009 | June 15, 2009 | ||
00000XXX0
|
4.000% Internotes due 2008 | December 15, 2008 | ||
00000XXX0
|
4.000% Internotes due 2009 | January 15, 2009 | ||
00000XXX0
|
4.000% Internotes due 2009 | January 15, 2009 | ||
00000XXX0
|
4.150% Internotes due 2009 | January 15, 2009 | ||
00000XXX0
|
4.150% Internotes due 2009 | January 15, 2009 | ||
00000XXX0
|
3.700% Internotes due 2007 | February 15, 2007 | ||
00000XXX0
|
4.100% Internotes due 2009 | February 15, 2009 | ||
00000XXX0
|
3.750% Internotes due 2007 | February 15, 2007 | ||
00000XXX0
|
4.150% Internotes due 2009 | February 15, 2009 | ||
00000XXX0
|
4.050% Internotes due 2008 | March 15, 2008 | ||
00000XXX0
|
4.250% Internotes due 2009 | March 15, 2009 | ||
00000XXX0
|
4.400% Internotes due 2008 | March 15, 2008 | ||
00000XXX0
|
4.750% Internotes due 2010 | March 15, 2010 | ||
00000XXX0
|
4.400% Internotes due 2007 | April 15, 2007 | ||
00000XXX0
|
4.800% Internotes due 2009 | April 15, 2009 | ||
00000XXX0
|
4.300% Internotes due 2007 | April 15, 2007 |
8
| CUSIP No. | Security Description | Maturity Date | ||
00000XXX0
|
4.450% Internotes due 2008 | April 15, 2008 | ||
00000XXX0
|
4.300% Internotes due 2007 | April 15, 2007 | ||
00000XXX0
|
4.500% Internotes due 2008 | April 15, 2008 | ||
00000XXX0
|
4.350% Internotes due 2008 | June 15, 2008 | ||
00000XXX0
|
4.625% Internotes due 2010 | June 15, 2010 | ||
00000XXX0
|
4.100% Internotes due 2007 | June 15, 2007 | ||
00000XXX0
|
4.250% Internotes due 2008 | June 15, 2008 | ||
00000XXX0
|
4.200% Internotes due 2008 | June 15, 2008 | ||
00000XXX0
|
4.500% Internotes due 2011 | June 15, 2011 | ||
00000XXX0
|
4.200% Internotes due 2007 | June 15, 2007 | ||
00000XXX0
|
4.350% Internotes due 2008 | June 15, 2008 | ||
00000XXX0
|
4.400% Internotes due 2008 | July 15, 2008 | ||
00000XXX0
|
4.500% Internotes due 2009 | July 15, 2009 | ||
00000XXX0
|
4.400% Internotes due 2008 | July 15, 2008 | ||
00000XXX0
|
4.500% Internotes due 2009 | July 15, 2009 | ||
00000XXX0
|
4.450% Internotes due 2008 | July 15, 2008 | ||
00000XXX0
|
4.550% Internotes due 2009 | July 15, 2009 | ||
00000XXX0
|
4.550% Internotes due 2008 | September 15, 2008 | ||
00000XXX0
|
4.650% Internotes due 2009 | September 15, 2009 | ||
00000XXX0
|
4.550% Internotes due 2008 | September 15, 2008 | ||
00000XXX0
|
4.650% Internotes due 2009 | September 15, 2009 | ||
00000XXX0
|
4.400% Internotes due 2008 | September 15, 2008 | ||
00000XXX0
|
4.450% Internotes due 2009 | September 15, 2009 | ||
00000XXX0
|
4.400% Internotes due 2008 | September 15, 2008 | ||
00000XXX0
|
4.500% Internotes due 2009 | September 15, 2009 | ||
00000XXX0
|
4.650% Internotes due 2011 | September 15, 2011 | ||
00000XXX0
|
4.450% Internotes due 2008 | September 15, 2008 | ||
00000XXX0
|
4.550% Internotes due 2009 | September 15, 2009 | ||
00000XXX0
|
4.700% Internotes due 2011 | September 15, 2011 | ||
00000XXX0
|
4.550% Internotes due 2008 | October 15, 2008 | ||
00000XXX0
|
4.650% Internotes due 2009 | October 15, 2009 | ||
00000XXX0
|
4.700% Internotes due 2008 | October 15, 2008 | ||
00000XXX0
|
4.800% Internotes due 2009 | October 15, 2009 | ||
00000XXX0
|
4.750% Internotes due 2008 | October 15, 2008 | ||
00000XXX0
|
5.000% Internotes due 2011 | October 15, 2011 |
