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ELEVENTH AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
EOP OPERATING LIMITED PARTNERSHIP
THIS ELEVENTH AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF EOP
OPERATING LIMITED PARTNERSHIP (this "Amendment"), dated as of May 1, 2000, is
entered into by EQUITY OFFICE PROPERTIES TRUST, a Maryland real estate
investment trust, as managing general partner (the "Managing General Partner")
of EOP Operating Limited Partnership (the "Partnership"), for itself and on
behalf of the Limited Partners of the Partnership.
WITNESSETH:
WHEREAS, the Managing General Partner and the Limited Partners have
entered into the Agreement of Limited Partnership of EOP Operating Limited
Partnership, dated as of July 3, 1997, as the same has been amended through the
date hereof (the "Agreement"); and
WHEREAS, the Managing General Partner, pursuant to the authority
granted to it under Sections 14.1.A and 14.1.B(4) of the Agreement, as
applicable, desires to amend Sections 7.4, 8.5.C and 14.1.B of the Agreement as
set forth herein, and the Managing General Partner, for itself and, to the
extent this action is taken pursuant to Section 14.1.A of the Agreement, as the
holder of a majority of the Percentage Interests of the Limited Partners, has
approved such amendment.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the Managing General Partner hereby amends the Agreement as
follows:
1. Amendment to Section 7.4 of Agreement. Section 7.4 of the
Agreement is hereby amended to add the following new Paragraph F:
F. Funding for Certain Capital Transactions. In
the event that the Managing General Partner shall undertake to acquire
(whether by merger, consolidation, purchase, or otherwise) the assets
or equity interests of another Person and such acquisition shall
require the payment of cash by the Managing General Partner (whether
to such Person or to any other selling party or parties in such
transaction
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or to one or more creditors, if any, of such Person or such selling
party or parties), (i) the Partnership shall advance to the Managing
General Partner the cash required to consummate such acquisition if,
and to the extent that, such cash is not to be obtained by the
Managing General Partner through an issuance of Shares described in
Section 4.2 or pursuant to a transaction described in Section 7.5.B,
(ii) the Managing General Partner shall immediately, upon consummation
of such acquisition, transfer to the Partnership (or cause to be
transferred to the Partnership), in full and complete satisfaction of
such advance and as required by Section 7.5, the assets or equity
interests of such Person acquired by the Managing General Partner in
such acquisition, and (iii) pursuant to and in accordance with Section
4.2 and Section 7.5.B, the Partnership shall issue to the Managing
General Partner Partnership Interests and/or rights, options, warrants
or convertible or exchangeable securities of the Partnership having
designations, preferences and other rights that are substantially the
same as those of any additional Shares, other equity securities, New
Securities and/or Convertible Funding Debt, as the case may be, issued
by the Managing General Partner in connection with such acquisition
(whether issued directly to participants in the acquisition
transaction or to third parties in order to obtain cash to complete
the acquisition). In addition to, and without limiting the foregoing,
in the event that the Managing General Partner engages in a
transaction in which (x) the Managing General Partner (or a wholly
owned direct or indirect Subsidiary of the Managing General Partner)
merges with another entity (referred to as the "Parent Entity") that
is organized in the "UPREIT format" (i.e., where the Parent Entity
holds substantially all of its assets and conducts substantially all
of its operations through a partnership, limited liability company or
other entity (referred to as an "Operating Entity")) and the Managing
General Partner survives such merger, (y) such Operating Entity merges
with or is otherwise acquired by the Partnership in exchange in whole
or in part for Partnership Interests, and (z) the Managing General
Partner is required or elects to pay part of the consideration in
connection with such merger involving the Parent Entity in the form of
cash and part of the consideration in the form of Shares, the
Partnership shall distribute to the Managing General Partner with
respect to its existing Partnership Interest an amount of cash
sufficient to complete such transaction and the Managing General
Partner shall cause the Partnership to cancel a number of Partnership
Units (rounded to the nearest whole number) held by the Managing
General Partner equal to the product attained by multiplying the
number of additional Shares of the Managing General Partner that the
Managing General Partner would have issued to the Parent Entity or
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the owners of the Parent Entity in such transaction if the entire
consideration therefor were to have been paid in Shares by a fraction,
the numerator of which is one and the denominator of which is the
Conversion Factor.
2. Amendment to Section 8.5.C of Agreement. Section 8.5.C of the
Agreement is hereby amended to add the following proviso at the end of the
existing first sentence of Section 8.5.C:
; provided, however, that the Managing General Partner, in its sole
discretion, may shorten the required notice period of not less than
twenty (20) business days prior to the record date to determine the
shareholders eligible to vote upon a merger transaction (but not any
of the other transactions covered by this Section 8.5.C.) to a period
of not less than ten (10) calendar days (thereby continuing to afford
the holders of Units the opportunity to redeem Units under Section 8.6
on or prior to the record date for the shareholder vote on the merger
transaction) so long as (i) the General Partner Entity will be the
surviving entity in such merger transaction, (ii) immediately
following the merger transaction, Persons who held voting securities
of the General Partner Entity immediately prior to such merger
transaction will hold, solely by reason of the ownership of voting
securities of the General Partner Entity immediately prior to the
merger transaction, voting securities of the General Partner Entity
representing not less than fifty-one percent (51%) of the total
combined voting power of all outstanding voting securities of the
General Partner Entity after such merger, and (iii) in the event that
in connection with such merger transaction the Partnership will merge
with another entity, the Partnership will be the surviving entity in
such merger.
3. Amendment to Section 14.1.B of Agreement. Section 14.1.B of
the Agreement hereby is amended by deleting the last sentence of Section 14.1.B
in its entirety and by substituting therefor the following:
The Managing General Partner shall notify the Limited Partners when
any action under this Section 14.1.B is taken in the next regular
communication to the Limited Partners; provided, however, that no
notice need be given of any amendment of this Agreement to reflect the
admission, substitution, termination, or withdrawal of Partners in
accordance with this Agreement (whether or not effected through the
replacement of Exhibit A with an amended Exhibit A). For purposes of
the immediately preceding sentence, notwithstanding any other means by
which the Managing General Partner may provide any such notice to the
Limited Partners, such notice requirement shall be deemed to
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have been satisfied upon the filing with the Securities and Exchange
Commission by the Partnership of any amendment to this Agreement
permitted under this Section 14.1.B as an exhibit to (i) a
registration statement filed by the Partnership under the Securities
Act or (ii) any report or other document filed by the Partnership
under the Exchange Act.
4. Definitions; Full Force and Effect. All capitalized terms
used in this Amendment and not otherwise defined herein shall have the meanings
assigned to them in the Agreement. Except as modified herein, all terms and
conditions of the Agreement shall remain in full force and effect, which terms
and conditions the Managing General Partner, for itself and the Limited
Partners, hereby ratifies and affirms.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Amendment as of the date first set forth above.
EQUITY OFFICE PROPERTIES TRUST,
a Maryland real estate investment trust, as
Managing General Partner of EOP
Operating Limited Partnership and on
behalf of the Limited Partners thereof
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
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