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EXHIBIT 4.9
SENIOR NOTE
NO. 2 PRINCIPAL AMOUNT
CUSIP NO. 268766 BB 7 $50,000,000
EOP OPERATING LIMITED PARTNERSHIP
7.36% Senior Note due 2005 (the "Senior Note")
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 Teachers Insurance
and Annuity Association of America or registered assigns, the principal sum of
Fifty Million Dollars on September 1, 2005 (the "Maturity Date"), and to pay
interest thereon (a) from March 1, 1998 (or from the most recent Interest
Payment Date to which interest has been paid or duly provided for), semiannually
on March 1 and September 1, of each year (each, an "Interest Payment Date"),
commencing on September 1, 1998, and on the Maturity Date, at the rate of 7.36%
per annum, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the indenture
hereinafter referred to) payable as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the Default Rate (as defined in the indenture hereinafter referred to),
in each case, until payment of said principal sum has been made or fully
provided for.
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date and on the Maturity Date will be paid to the holder in
whose name this Senior Note (or one or more predecessor Senior Notes) is
registered at the close of business on the "Record Date" for such payment, which
will be 15 calendar days (regardless of whether such day is a Business Day (as
defined below)) next preceding such Interest Payment Date or the Maturity Date,
as the case may be. Any interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered holder on such Record
Date, and shall be paid to the holder in whose name this Senior Note (or one or
more predecessor Senior Notes) is registered at the close of business on a
subsequent record date for the payment of such defaulted interest (which shall
be not less than five Business Days (as defined below) prior to the date of the
payment of such defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the registered holder of this Senior Note (or one or
more predecessor Senior Notes) not less than 15 days preceding such subsequent
record date. Interest on this Senior Note will be computed on the basis of a
360-day year comprised of twelve 30-day months.
Except as otherwise agreed to in writing among the initial registered
holder of this Senior Note, the trustee under the indenture hereinafter referred
to and the Issuer, the principal of this Senior Note payable on the Maturity
Date will be paid against presentation and
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surrender of this Senior Note at the office or agency of the Issuer maintained
for that purpose in The Borough of Manhattan, The City of New York. The Issuer
hereby initially designates the Corporate Trust Office of the trustee in the
Borough of Manhattan, The City of New York as the office to be maintained by it
where Senior Notes may be presented for payment and the Corporate Trust Office
of the trustee in Boston, Massachusetts as the office to be maintained by it
where Senior Notes may be presented for registration of transfer or exchange and
where notices or demands to or upon the Issuer in respect of the Senior Note or
in the indenture hereinafter referred to may be served.
Interest payable on this Senior Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including March 1, 1998 in the case of the initial Interest Payment Date) to but
excluding the applicable Interest Payment Date or the Maturity Date, as the case
may be. If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day (as defined below), such Interest
Payment Date will be postponed to the succeeding Business Day. If the Maturity
Date falls on a day that is not a Business Day, principal and interest payable
on the Maturity 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 the
Maturity Date. "Business Day" means any day, other than a Saturday or Sunday or
other day on which banking institutions in The City of New York, New York or
Boston, Massachusetts are authorized or required by law, regulation or executive
order to close.
Payments of principal and interest in respect of this Senior Note will
be made by wire transfer 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 Senior 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.
This Senior Note shall not be entitled to the benefits of the indenture
hereinafter referred to or be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the trustee
under such indenture.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its duly authorized officers.
Dated: July 23, 1998
EOP OPERATING LIMITED PARTNERSHIP,
as Issuer
By: EQUITY OFFICE PROPERTIES TRUST,
its managing general partner
Attest: By:
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Name: Xxxxxxx X. Xxxxxxxx
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Its: President and Chief Executive Officer
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within-mentioned indenture.
STATE STREET BANK AND TRUST COMPANY
By:
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Authorized Officer
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[REVERSE OF SENIOR NOTE]
EOP OPERATING LIMITED PARTNERSHIP
7.36% Senior Notes due 2005
This Senior Note is one of a duly authorized issue of debentures,
notes, bonds, or other evidences of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to (i) an Indenture dated as of September 2, 1997 (herein
called 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 Securities of which this Senior Note is a part) and (ii) an Officer's
Certificate dated the date hereof (the "Officer's Certificate"), duly executed
by authorized officers of the Issuer, pursuant to Section 301 of the Indenture,
to which Officer's Certificate and 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 series of Securities of which this Senior Note is
a part, and of the terms upon which this Senior Note is, and is to be,
authenticated and delivered. Securities of the Issuer may be issued under the
Indenture 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 Senior Note
is one of a series of Senior Notes issued pursuant to the Indenture and
designated as the 7.24%-7.44% Senior Notes due 2004-2007, Tranches A-D, limited
in aggregate principal amount to $180,000,000.
In case an Event of Default with respect to the Senior 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 the Senior Notes comprising the series of
securities under the Indenture referred to above (the "Series A Senior Notes"),
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 of
the Series A Senior Notes being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make-Whole Amount, if any, with respect to such
Series A Senior Notes (the "Redemption Price") on the terms specified in the
Indenture. Notice of any optional redemption of any Series A Senior Notes will
be given to holders at their addresses, as
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shown in the Security Register, not more than 60 nor less than 30 days prior to
the date fixed for redemption. The notice of redemption will specify, among
other items, the Redemption Price and the principal amount of the Series A
Senior Notes held by such holder to be redeemed.
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 Securities 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 Securities of such series; provided, however, that no such
supplemental Indenture shall, without the consent of the holder of each Security
so affected, (i) change the final maturity of any Security, or reduce the
principal amount thereof or any premium thereon, 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 Security, or (ii) reduce the
aforesaid percentage of Securities, the holders of which are required to consent
to any such supplemental Indenture, or (iii) reduce the percentage of
Securities, 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 Securities of any series,
the holders of a majority in aggregate principal amount outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all series of Securities) may on behalf of the holders of all the
Securities of such series (or all of the Securities, 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 Securities; or, subject to certain
conditions, may rescind a declaration of acceleration and its consequences with
respect to such Securities. Any such consent or waiver by the holder of this
Senior 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
Senior Note and any Senior Notes that may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof is made upon this
Senior Note or such other Senior Notes.
No reference herein to the Indenture and no provision of this Senior
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 Senior Note in the manner, at the respective times,
at the rate and in the coin or currency herein prescribed.
This Senior Note is issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. Series A Senior Notes
may be exchanged for a like aggregate principal amount of Series A Senior Notes
of other authorized denominations at the Corporate Trust Office in Boston,
Massachusetts, in the manner and 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.
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Upon due presentment for registration of transfer of this Senior Note
at the Corporate Trust Office in Boston, Massachusetts, a new Senior Note or
Senior Notes of the same series 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, without charge
except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee, and any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this Senior Note is
registered as the absolute owner of this Senior Note (whether or not this Senior
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 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.
The Indenture and this Senior Note shall be deemed to be a contract
under the laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of such state, except as may otherwise be required
by mandatory provisions of law.
Terms used herein that are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture, unless otherwise defined
herein.
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