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EXHIBIT 4.5
EOP OPERATING LIMITED PARTNERSHIP
6.750% NOTES DUE 2008
NO. 001 PRINCIPAL AMOUNT
CUSIP NO. 268766 AG 7 $200,000,000
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 HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NEITHER THIS NOTE
NOR ANY INTERESTS OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM
DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY "AFFILIATE" OF THE
ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A)
TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF
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SUBPARAGRAPH (A)(1), (2), (3), OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR AN ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, OR AS FIDUCIARY FOR THE ACCOUNT OF ONE OR
MORE TRUSTS, EACH OF WHICH IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A) (7) OF RULE 501 UNDER THE SECURITIES ACT, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT UPON THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE
ISSUER, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE ISSUER. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THIS
SERIES.
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 TWO HUNDRED MILLION Dollars on
February 15, 2008 (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 February 18,
1998 (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
February 15 and August 15 of each year, commencing on August 15, 1998 (each, an
"Interest Payment Date"), and on the Maturity Date, at a rate of 6.750% per
annum (together with Liquidated Damages, as defined in the Registration Rights
Agreement hereinafter referred to, that the Issuer may be required to pay, as
described on the reverse hereof), 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 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.
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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 February 18, 1998, 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 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.
The Holder of this Note is entitled to the benefits of and is subject to
the obligations contained in a Registration Rights Agreement (subject to the
provisions thereof), dated as of February 18, 1998 (the "Registration Rights
Agreement"), between the Issuer and the Initial Purchasers, as defined in the
Registration Rights Agreement. The Issuer shall pay Liquidated Damages to the
Holder of this Note as provided in the Registration Rights Agreement.
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: February 18, 1998 EOP OPERATING LIMITED PARTNERSHIP,
as Issuer
By: EQUITY OFFICE PROPERTIES TRUST, not
individually but as General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Its: President and Chief
Executive Officer
and By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Its: Chief Financial Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in the
within-mentioned Indenture.
Dated: February 18, 1998 STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Authorized Officer
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[REVERSE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
6.750% NOTES DUE 2008
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 (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 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 6.750% Notes
due 2008 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.
At any time when the Issuer is not subject to Section 13 or 15(d) of the
United States Securities Exchange Act of 1934, as amended, upon the request of
a Holder of a Registrable Note (as defined in
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the Registration Rights Agreement) the Issuer will promptly furnish or cause to
be furnished the information specified in Rule 144(d)(4) to such Holder of a
Registrable Note, or to a prospective purchaser of any Note designated by any
such Holder to the extent required to permit compliance by such Holder with
Rule 144A under the Securities Act in connection with the resale of any such
Note.
Whenever in this Note there is a reference, in any context, to the payment
of the principal of, or Make-Whole Amount, if any, or interest on, or in
respect of, the Note, such mention shall be deemed to include mention of the
payment Liquidated Damages payable as described above to the extent that, in
such context, Liquidated Damages are, were or would be payable in respect of
the Note.
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 (including Liquidated Damages) 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.$100,000 and integral multiples of $1,000 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
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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.
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 or Liquidated
Damages, 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
_______________________________________________________________________________
(Insert assignee's social Note or tax identification number, if any)
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your signature: __________________________________________________________
(Sign exactly as your name appears on the other side of
this Note)
Date: ________________________________________
Signature Guarantee:* __________________________
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years (or such shorter
period as may then be applicable under Rule 144(k) of the United States
Securities Act of 1933, as amended (the "Securities Act") (or any successor
provision)) after the later of the date of original issuance of such Notes and
the last date, if any, on which this Note is owned by the Issuer or any
Affiliate of the Issuer, the undersigned confirms that this Note is being
transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer or a Subsidiary thereof; or
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act; or
(3) [ ] pursuant to Rule 144 under the Securities Act; or
(4) [ ] pursuant to an effective registration statement under the
Securities Act; or
(5) [ ] pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
this Note in the name of any person other than the registered holder thereof;
provided, however, that if box (5) is checked, the Trustee (as instructed by
the Issuer) and the Issuer may require, prior to registering any transfer of
this Note, such certifications, legal opinions or other information as the
Issuer has reasonably requested
__________________________
*Signature must be guaranteed by a commercial bank, trust company or member
firm or a major stock exchange
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to confirm that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act.
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