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EXHIBIT 4.8
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EOP OPERATING LIMITED PARTNERSHIP
and
STATE STREET BANK AND TRUST COMPANY
As Debt Warrant Agent
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Debt Warrant Agreement
Dated as of June 15, 1998
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TABLE OF CONTENTS
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF DEBT WARRANT CERTIFICATES
SECTION 1.01 Issuance of Debt Warrant Certificates..................................................1
SECTION 1.02 Form of Debt Warrants..................................................................1
SECTION 1.03 Form of Debt Warrants Certificates.....................................................2
SECTION 1.04 Execution and Authentication of Debt Warrant Certificates..............................2
SECTION 1.05 Temporary Debt Warrant Certificates....................................................3
SECTION 1.06 Payment of Taxes.......................................................................3
SECTION 1.07 Definition of Holder, Transferor, and Transferee.......................................4
ARTICLE II
WARRANT PRICE, DURATION, EXERCISE OF DEBT WARRANTS, AND DEBT
WARRANT SECURITIES
SECTION 2.01 Warrant Price..........................................................................4
SECTION 2.02 Duration of Debt Warrants..............................................................4
SECTION 2.03 Exercise of Debt Warrants..............................................................4
SECTION 2.04 Debt Warrant Securities................................................................5
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ARTICLE III
REGISTRATION, EXCHANGE, SUBSTITUTION, TRANSFER AND LIMITATIONS ON
TRANSFER OF DEBT WARRANT CERTIFICATES AND
REGISTRATION OF THE
WARRANTS UNDER THE SECURITIES ACT
SECTION 3.01 Registration, Exchange and Transfer of Debt Warrant Certificates.......................8
SECTION 3.02 Mutilated, Destroyed, Lost or Stolen Debt Warrant Certificates.........................9
SECTION 3.03 Reserved..............................................................................10
SECTION 3.04 Restrictions and Limitations on Transfers of Debt Warrants............................10
SECTION 3.05 Persons Deemed Holders................................................................13
SECTION 3.06 Cancellation of Debt Warrant Certificates.............................................13
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF DEBT WARRANT
CERTIFICATES
SECTION 4.01 No Rights as Holders of Debt Warrant Securities Conferred by Debt Warrants or
Debt Warrant Certificates.............................................................13
SECTION 4.02 Holder of Debt Warrant Certificate May Enforce Rights.................................13
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
SECTION 5.01 Debt Warrant Agent....................................................................14
SECTION 5.02 Conditions of Debt Warrant Agent's Obligations........................................14
SECTION 5.03 Resignation, Removal and Appointment of Successor.....................................16
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Modification, Supplementation or Amendment ................ 18
SECTION 6.02 Consolidations and Mergers of the Company and Sales
Leases and Conveyances Permitted Subject to
Certain Conditions ........................................ 19
SECTION 6.03 Rights and Duties of Successor Corporation................. 19
SECTION 6.04 Notices and Demands to the Company and
Debt Warrant Agent ........................................ 19
SECTION 6.05 Governing Law ............................................. 19
SECTION 6.06 Addresses ................................................. 19
SECTION 6.07 Notices to Holders of Debt Warrant Certificates ........... 20
SECTION 6.08 Delivery of Offering Memorandum ........................... 20
SECTION 6.09 Obtaining of Governmental Approvals ....................... 20
SECTION 6.10 Persons Having Rights Under Debt Warrant Agreement ........ 20
ANNEX A -- Transferee Letter of Representation
EXHIBIT A -- Form of Debt Warrant Certificate in Certificated Form
EXHIBIT B -- Form of Global Debt Warrant Certificate
EXHIBIT C -- Form of Exercise Notice
EXHIBIT D -- Form of Debt Warrant Security
ARTICLE I ISSUANCE, EXECUTION AND AUTHENTICATION OF DEBT WARRANT
CERTIFICATES ............................................................. i
ARTICLE IV OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF DEBT WARRANT
CERTIFICATES ............................................................. ii
ARTICLE I. ISSUANCE, EXECUTION AND COUNTERSIGNATURE ...................... I
Section 1.01. Issuance of Debt Warrant Certificates. Upon issuance,
each Debt Warrant Certificate shall evidence one or more
Debt Warrants. Each Debt Warrant
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evidenced by a Debt Warrant Certificate shall represent the
right, subject to the provisions contained herein and therein, to
purchase from the Company Debt Warrant Securities, as more fully
described in Article II, in the principal amount of
$1,000..........................................................1
Section 1.02. Form of Debt Warrants. The Debt Warrants shall be issued in fully
registered form, with (i) Debt Warrants sold to "qualified
institutional buyers" (as defined in 1
Rule 144A(a)(1)(i) of the Securities Act) ("QIBs") and transferees, directly or
indirectly, of such Debt Warrants (and beneficial interests
therein) being represented by one or more global Debt Warrant
Certificates deposited with the Debt Warrant Agent as custodian
for, and registered in the name of a nominee of, The Depository
Trust Company ("DTC") and (ii) Debt Warrants sold to
institutional "accredited investors" (as defined in Rule 501
(a)(1),(2),(3), or (7) of the Securities Act) ("AIs") other than
as described in clause (i) above being represented by physical
Debt Warrant Certificates.......................................1
Section 1.03. Form of Debt Warrants Certificates. The Debt Warrant Certificates
(including the Forms of Exercise and Assignment to be set forth
on the reverse thereof) shall be in substantially the form set
forth in Exhibit A hereto with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Agreement, shall be printed, lithographed or
engraved on steel engraved borders or in any other manner
determined by the officer executing such Debt Warrant
Certificates and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which the Debt Warrant Certificates
may be listed or as may, consistently herewith, be determined by
the officer executing such Debt Warrant Certificates, as
evidenced by their execution thereof............................2
Section 1.04. Execution and Authentication of Debt Warrant Certificates. The
Debt Warrant Certificates shall be executed on behalf of the
Company by Equity Office Properties Trust by its Chairman of the
Board, its President or one of its Vice Presidents (whether or
not designated by a number or word or words added before or after
the title "vice president"), manually or by facsimile signature,
under its corporate seal reproduced thereon attested to by its
Secretary or one of its Assistant Secretaries, either manually or
by facsimile signature. Typographical and other minor errors or
defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of the
Debt Warrant Certificate that has been duly executed by the
Company and authenticated by the Debt Warrant
Agent...........................................................2
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Section 1.05. Temporary Debt Warrant Certificates. Pending the preparation of
definitive Debt Warrant Certificates, the Company may execute,
and upon the order of the Company the Debt Warrant Agent shall
authenticate and deliver, temporary Debt Warrant Certificates
which are printed, lithographed, typewritten, mimeographed or
otherwise produced substantially of the tenor of the definitive
Debt Warrant Certificates in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and
other variations as the officer executing such Debt Warrant
Certificates may determine, as evidenced by their execution
thereof ........................................................3
Section 1.06. Payment of Taxes. The Company will pay all stamp taxes and other
duties, if any, to which, under the laws of the United States of
America or any state or political subdivision thereof, this
Agreement or the original issuance of the Debt Warrant
Certificates may be subject ....................................4
Section 1.07. Definition of Holder, Transferor and Transferee. The term
"Holder" shall mean the person in whose name at the relevant time
the particular Debt Warrant Certificate shall be registered upon
the books to be maintained by the Debt Warrant Agent for that
purpose pursuant to Section 3.01. The term "Transferor" shall
mean a Holder which, according to the terms and conditions
specified herein, transfers its interest in Debt Warrants. The
term "Transferee" shall mean a person to whom a Transferor
transfers its interest in Debt Warrants. A Transferee, upon a
transfer in accordance with the terms and conditions specified
herein, shall be deemed a Holder upon consummation of the
transfer .......................................................4
ARTICLES II. WARRANT PRICE, DURATION, EXERCISE OF DEBT WARRANTS, AND DEBT
WARRANT SECURITIES .............................................4
Section 2.01. Warrant Price. On the Exercise Date (as defined in Section 2.02),
each Debt Warrant evidenced by a Debt Warrant Certificate shall
entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company Debt Warrant Securities
in the principal amount of $1,000 at the exercise price of 100%
of the principal amount thereof, the "Exercise Price"). ........4
Section 2.02. Duration of Debt Warrants. Any Debt Warrant evidenced by a Debt
Warrant Certificate may be exercised, subject to provisions of
Section 2.03, on December 15, 1999 unless the Company notifies
the Holders in writing at their registered address at least five
Business Days (as hereinafter defined) prior to the December 15,
1999 that, based on an opinion of counsel, it is aware of
material non-public information with respect to the Company, in
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which case the Company may postpone such date to January 18,
2000, or, in each case, if such day is not a Business Day, the
succeeding Business Day (the "Exercise Date"). "Business Day"
means any day, other than a Saturday or Sunday, on which banking
institutions in New York, New York and Boston, Massachusetts are
open for business. After the close of business on the
Determination Date (as defined in Section 2.04), each Debt
Warrant as to which a Holder has theretofore failed to provide
notice of such Holder's intention to exercise shall become void,
and all rights of the Holder of the Debt Warrant Certificate
evidencing such Debt Warrant under this Agreement or otherwise
shall cease......................................................4
Section 2.03. Exercise of Debt Warrants........................................4
(a) On the Exercise Date, one or more Debt Warrants may be exercised upon (i)
notice by the Holder thereof of such Holder's intention to
exercise its Debt Warrants submitted to the Debt Warrant Agent
and thereafter promptly forwarded by the Debt Warrant Agent to
the Company no later than the Determination Date, (ii) delivery
to the Debt Warrant Agent at its corporate trust office or window
on or prior to the Exercise Date of payment of the Exercise Price
in the form of certified or official bank check payable to the
order of the Company, and (iii) delivery to the Debt Warrant
Agent at its corporate trust office or window on or prior to the
Exercise Date of the related Debt Warrant Certificate(s) and the
purchase form set forth in the Debt Warrant Certificate properly
completed and duly executed, whereupon the Company will, on or
promptly after the Exercise Date, deliver the related Debt
Warrant Securities, in accordance with clause (c) of this Section
2.03; provided however, that Debt Warrants may only be exercised
if such notice of exercise has been delivered to the Debt Warrant
Agent prior to the close of business on the Determination Date.
Notice of a Holder's intention to exercise a Debt Warrant shall
be irrevocable, except that after a postponement of the date of
exercise of the Debt Warrants under the conditions specified in
Section 2.02 such notice shall be null and void. Accordingly,
after such postponement, a Holder must redeliver a notice of
intention to exercise a Debt Warrant no later than the
Determination Date immediately preceding January 18,
2000.............................................................5
The Debt Warrant Agent shall deposit all funds received by it as payment for the
exercise of Debt Warrants to the account of the Company
maintained with it for such purpose on the date on which such
Debt Warrants and such funds are received and shall advise the
Company by telephone or in writing, by facsimile transmission or
otherwise, at the end of each day on which such a payment is
received of the amount so deposited to its account. The Debt
Warrant Agent shall promptly confirm any telephonic advice to the
Company in writing.
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Absent written agreement with the Company, the Warrant Agent
shall have no obligation to invest any such funds...............5
(b) Promptly after the Exercise Date, the Debt Warrant Agent shall, in
accordance with the terms and conditions of this Agreement and
the Debt Warrant Certificates, advise the Company and the
Trustee of (i) the number of Debt Warrants as to which notice of
an intention to exercise has been received, (ii) the
instructions of each Holder of the Debt Warrant Certificates
evidencing such Debt Warrants with respect to delivery of the
Debt Warrant Securities to which such Holder is entitled upon
such exercise and (iii) such other information as the Company or
the Trustee shall reasonably
require.........................................................5
(c) On or promptly after the Exercise Date, the Company shall issue and the
Trustee shall authenticate and deliver, pursuant to the
Indenture, in authorized denominations, to or upon the order of
each Holder who has exercised its Debt Warrants, the Debt
Warrant Securities to which such Holder is entitled in fully
registered form, registered in such name or names as may be
directed by such
Holder..........................................................5
(d) The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any
transfer involved in the issue
of.........................................................,....5
the Debt Warrant Securities upon the order of the Holders of
the related Debt Warrant Certificate evidencing exercised Debt
Warrants........................................................6
Section 2.04. Debt Warrant Securities. At the time of issuance, (i) the Company
shall have registered the Debt Warrant Securities issued upon
exercise of the Debt Warrants under the Securities Act of 1933,
as amended (the "Securities Act"), (ii) the Company shall have
taken all necessary steps to issue the Debt Warrant Securities
under the Indenture, the Company shall have used its best efforts
to obtain a rating of the Debt Warrant Securities from Standard &
Poor's Ratings Services and Xxxxx'x Investors Service, Inc. Debt
Warrant Securities issued upon exercise of Debt Warrants shall
have identical terms to the Offered Debt Securities except: (i)
the maturity of the Debt Warrant Securities shall be June 15,
2008 (the "Debt Warrant Security Maturity Date"); (ii) interest
will accrue on the Debt Warrant Securities from and including the
Exercise Date and will be paid on such Debt Warrant Securities
commencing on June 15, 2000, (iii) if the Debt Warrant Securities
issued upon exercise of Debt Warrants have not been registered
under the Securities Act on or before the Exchange Date, then the
interest rate per annum on the Debt Warrant Securities shall be
increased by .50% (one half of one percent) until such
unregistered Debt Warrant Securities shall be so registered, and
(iv) if the Company, pursuant to Section 2.02, postpones the date
of the exercise of the Debt Warrants, then the interest rate per
annum on the Debt Warrant Securities shall be increased by the
positive value, if any, of the sum of (x) the value (positive or
negative, expressed in the form of a percentage or in basis
points), if any, of the result from subtracting the December 1999
Credit Spread (as hereinafter defined) from the January 2000
Credit Spread (as hereinafter defined) and (y) the value
(positive or negative, expressed in the form of a percentage or
in basis points), if any, of the result from subtracting the
December 1999 Treasury Rate (as hereinafter defined) from the
January
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2000 Treasury Rate (as hereinafter defined) determined by the
Calculation Agent...............................................6
ARTICLE III. REGISTRATION, EXCHANGE, SUBSTITUTION, TRANSFER AND LIMITATIONS
ON TRANSFER OF DEBT WARRANT CERTIFICATES AND REGISTRATION OF THE
WARRANTS UNDER THE SECURITIES ACT..............................9
Section 3.01. Registration, Exchange and Transfer of Debt Warrant Certificates.
The Debt Warrant Agent shall keep, at its corporate trust office,
books in which, subject to such reasonable regulations as it may
prescribe, it shall register the Debt Warrant Certificates and
transfers and exchanges of outstanding Debt Warrant Certificates.
Prior to registration of the Debt Warrants under the Securities
Act, (i) no Holder shall transfer to any single purchaser any
Debt Warrants in a block consisting of fewer than 100 Debt
Warrants and (ii) Debt Warrants will be subject to the other
restrictions on transfer set forth in Section 3.04. Subject to
the foregoing, upon surrender at the place or places set forth in
Debt Warrant Certificate or at the corporate trust office of the
Debt Warrant Agent, located initially at Two International Place,
Financial Services, Corporate Trust Department, Xxxxxx,
Xxxxxxxxxxxxx 00000, or at the corporate trust window of the Debt
Warrant Agent, located initially at 00 Xxxxxxxx, Xxxxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, of Debt Warrant Certificates properly
endorsed or accompanied by appropriate instruments of transfer,
with signature guaranteed thereon and accompanied by written
instructions for transfer or exchange, all in form reasonably
satisfactory to the Company and the Debt Warrant Agent, such Debt
Warrant Certificates may be exchanged for other Debt Warrants; it
being understood that Debt Warrant Certificates issued in
exchange for or upon transfer of surrendered Debt Warrant
Certificates shall evidence the same aggregate number of Debt
Warrants as the Debt Warrant Certificates so
surrendered.....................................................9
Section 3.02. Mutilated, Destroyed, Lost or Stolen Debt Warrant Certificates.
If any mutilated Debt Warrant Certificate is surrendered to the
Debt Warrant Agent, the Company shall execute, and an authorized
officer of the Debt Warrant Agent shall manually authenticate and
deliver in exchange therefor, a new Debt Warrant Certificate of
like tenor representing a like number of unexercised Debt
Warrants and bearing a number not contemporaneously
outstanding....................................................10
Section 3.04. Restrictions and Limitations on Transfers of Debt Warrants.
Unless and until the earlier of (i) registration under the
Securities Act in accordance with the Registration Rights
Agreement relating to the Offered Debt Securities and the Debt
Warrants (the "Registration Rights Agreement") and (ii) the
Resale Restriction Termination Date (as hereinafter defined), the
Debt Warrants have
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not been and will not be registered under the Securities Act or
any state securities law and therefore will be subject to the
following restrictions on transfer. The Debt Warrant Agent shall
not register the resale or other transfer of Debt Warrants unless
such resale or other transfer is in accordance with such
restrictions, provided that for such purposes it may conclusively
rely on the statement set forth on the Assignment Form and
Certificate of Transfer. ......................................10
Each purchaser of such Debt Warrants, by its acceptance thereof, will be deemed
to have acknowledged, represented and agreed with the Company and
the Initial Purchasers (as defined in the Registration Rights
Agreement) that it will not offer, sell or otherwise transfer
such Debt Warrants prior to the date that is two years from the
later of the date of original issue and the last date on which
the Company or any affiliate of the Company was the owner of such
Debt Warrants (or any predecessor thereto) (the "Resale
Restriction Termination Date") unless such sale: ..............11
Section 3.05. Persons Deemed Holders. The Company and the Debt Warrant Agent
may treat the Holder as the owner thereof for any purpose and as
the person entitled to exercise the rights represented by the
Debt Warrants evidenced thereby, any notice to the contrary
notwithstanding. ..............................................13
Section 3.06. Cancellation of Debt Warrant Certificates. Any Debt Warrant
Certificate surrendered for exchange, transfer or exercise of the
Debt Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Debt Warrant Agent, all Debt Warrant
Certificates surrendered or so delivered to the Debt Warrant
Agent shall be promptly canceled by it and shall not be reissued
and, except as expressly permitted by this Agreement, no Debt
Warrant Certificate shall be issued hereunder in lieu or in
exchange thereof. The Company may at any time deliver to the Debt
Warrant Agent for cancellation any Debt Warrant Certificates
previously issued hereunder which the Company may have acquired
in any manner whatsoever, and all Debt Warrant Certificates so
delivered shall be promptly canceled by the Debt Warrant Agent.
All canceled Debt Warrant Certificates held by the Debt Warrant
Agent shall be disposed of as instructed by the Company, subject
to applicable law. ........................................... 13
ARTICLE IV. OTHER PROVISIONS RELATING TO RIGHTS ...........................14
Section 4.01. No Rights as Holders of Debt Warrant Securities Conferred by Debt
Warrants or Debt Warrant Certificates. No Debt Warrant
Certificate or Debt Warrants evidenced thereby shall entitle the
Holder thereof to any of the rights of a Holder of the Debt
Warrant(s) Securities, including, without limitation, the
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right to receive the payment of principal of (or premium, if any)
or interest on the Debt Warrant Securities or to enforce any of
the covenants in the Indenture.................................14
Section 4.02. Holder of Debt Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any
Holder of any Debt Warrant Certificate, without the consent of
the Debt Warrant Agent, the Trustee, the Holder of any Debt
Warrant Securities or the Holder of any other Debt Warrant
Certificate, may, on his own behalf and for his own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce or otherwise
in respect of, such Holder's right to exercise the Debt
Warrant(s) evidenced by such Holder's Debt Warrant Certificate in
the manner provided in such Debt Warrant Certificate and in this
Agreement......................................................14
ARTICLE V. CONCERNING THE DEBT WARRANT AGENT .............................14
Section 5.01. Debt Warrant Agent. The Company hereby appoints State Street Bank
and Trust Company as Debt Warrant Agent of the Company in respect
of the Debt Warrants and the Debt Warrant Certificates upon the
terms and subject to the conditions set forth herein and in the
Debt Warrant Certificate, and State Street Bank and Trust Company
hereby accepts such appointment. The Debt Warrant Agent shall
have the power and authority granted to and conferred upon it in
the Debt Warrant Certificates and in this Agreement and such
further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such power and authority
contained in the Debt Warrant Certificates are subject to and
governed by the terms and provisions hereof....................14
Section 5.02. Conditions of Debt Warrant Agent's Obligations. The Debt Warrant
Agent accepts its obligations herein set forth, upon the terms
and conditions hereof, including the following, to all of which
the Company agrees and to all of which the rights hereunder of
the Holders from time to time of the Debt Warrant Certificates
shall be subject:..............................................14
(a) Compensation and Indemnification. The Company agrees promptly to pay the
Debt Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Debt Warrant
Agent and to reimburse the Debt Warrant Agent for reasonable
out-of-pocket expenses (including reasonable attorney's fees and
expenses) incurred by the Debt Warrant Agent without negligence,
bad faith or wilful misrepresentation on its part in connection
with the services rendered hereunder by the Debt Warrant Agent;
the Company also agrees to indemnify the Debt Warrant Agent for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or wilful
misrepresentation on the part of the Debt Warrant Agent, arising
out of or in connection with its acting as such Debt Warrant
Agent hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance at any time of its powers or
duties hereunder or with respect to the Debt Warrants; and the
obligations of the Company under this
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subsection (a) shall survive the exercise of the Debt Warrant
Certificates, termination of this Agreement and the resignation
or removal of the Debt Warrant
Agent...........................................................15
(b) Agent for the Company. In acting under this Debt Warrant Agreement and in
connection with the Debt Warrant Certificates, the Debt Warrant
Agent is acting solely as agent of the Company and does not
assume any obligation or relationship of agency or trust for or
with any of the owners or Holders of the Debt Warrant
Certificates....................................................15
(c) Counsel. The Debt Warrant Agent may consult with counsel, which may include
counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon...........................15
(d) Documents. The Debt Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted by
it in reliance upon any Debt Warrant Certificate, notice, opinion
of counsel, direction, consent, certificate, affidavit, statement
or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper
parties.........................................................15
(e) Certain Transactions. The Debt Warrant Agent, any of its officers,
directors and employees, in its or their individual or any
other capacity, may become the owner of, or acquire any interest
in, any Debt Warrant Certificates, with the same rights that it
would have if it were not such Debt Warrant Agent, officer,
director, employee or other agent, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on,
or as...........................................................15
(e) depository, trustee or agent for, any committee or body of Holders of Debt
Warrant Securities or other obligations of the Company as
freely as if it were not such Debt Warrant Agent, officer,
director, employee or other agent. Nothing in this Debt Warrant
Agreement shall be deemed to prevent the Debt Warrant Agent from
acting as Trustee under the Indenture...........................16
(f) No Liability for Interest. The Debt Warrant Agent shall not be under any
liability for interest on any moneys at any time received by it
pursuant to any of the provisions of this Agreement or of the
Debt Warrant Certificates unless otherwise agreed to in writing
by the Company and the Debt Warrant Agent.......................16
(g) No Liability for Invalidity. The Debt Warrant Agent shall not incur any
liability with respect to the validity of this Agreement or any
of the Debt Warrant
Certificates....................................................16
(h) No Responsibility for Representations. The Debt Warrant Agent shall not be
responsible for any of the recitals or representations
contained herein or in the Debt Warrant Certificates (except as to
the Debt Warrant Agent's authentication thereon), all of which
are made solely by the Company..................................16
(i) No Implied Obligations. The Debt Warrant Agent shall be obligated to
perform such duties as are herein and in the Debt Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Debt Warrant
Certificates against the Debt Warrant Agent. The Debt Warrant
Agent shall not be under any obligation to advance its own funds
or to take any action hereunder which may tend to involve it in
any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it.
The Debt Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Debt
Warrant Certificates authenticated by the Debt Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for
the application by the Company of the proceeds of the Debt
Warrant Certificates or any exercise of the Debt Warrants
evidenced thereby. The Debt Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in
the Debt Warrant Certificates or in the Debt Warrant Securities
or in the case of the receipt of any written demand from a Holder
of a Debt Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any
duty or responsibility to initiate or attempt to initiate any
proceeding at law or otherwise or, except as provided in Section
6.04 hereof, to make any demand upon the
Company.........................................................16
Section 5.03. Resignation, Removal and Appointment of Successor...............16
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(a) The Company agrees, for the benefit of the Holders from time to time of the
Debt Warrant Certificates, that there shall at all times be a
Debt Warrant Agent hereunder until all of the Debt Warrants are
no longer
exercisable.....................................................17
(b) The Debt Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become
effective; provided that, without the consent of the Company,
such date shall not be less than three months after the date on
which such notice is given and shall be subject to the
appointment of a successor Debt Warrant Agent and the acceptance
of such appointment by such successor Debt Warrant Agent, as
hereinafter provided. The Debt Warrant Agent may be removed at
any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and
the date on which the Company expects such removal to become
effective. Such resignation or removal shall take effect upon the
appointment by the Company of a successor Debt Warrant Agent
(which shall be a bank or trust company organized and doing
business under the laws of the United States of America, any
State thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers) by an instrument in
writing filed with such successor Debt Warrant Agent and the
acceptance of such appointment by such successor Debt Warrant
Agent pursuant to clause (c) of this Section 5.03. In the event a
successor Debt Warrant Agent has not been appointed and has not
accepted its duties within 90 days of the Debt Warrant Agent's
notice of resignation, the Debt Warrant Agent may apply to any
court of competent jurisdiction for the designation of a
successor Debt Warrant
Agent...........................................................17
(c) In case at any time the Debt Warrant Agent shall resign, or be removed, or
shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or shall file a voluntary petition in bankruptcy or
make an assignment for the benefit of its creditors or consent to
the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of
its property shall be appointed, or if an order of any court
shall be entered approving any petition filed by or against it
under the provisions of any applicable bankruptcy or similar law
or if any public officer shall have taken charge or control of
the Debt Warrant Agent or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, a
successor Debt Warrant Agent qualified as aforesaid shall be
appointed by the Company by an instrument in writing that is
filed with the successor Debt Warrant Agent. Upon the appointment
as aforesaid of a successor Debt Warrant Agent and acceptance by
the latter of such appointment, the then
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current Debt Warrant Agent shall cease to be Debt Warrant Agent
hereunder ......................................................17
(d) Any successor Debt Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company
an instrument accepting such appointment hereunder, and thereupon
such successor Debt Warrant Agent, without any further act, deed
or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if.........................17
originally named as Debt Warrant Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and
such successor Debt Warrant Agent shall be entitled to receive
all moneys, securities and other property on deposit with or held
by such predecessor, as Debt Warrant Agent hereunder. ..........18
(e) Any corporation into which the Debt Warrant Agent hereunder may be merged or
converted or any corporation with which the Debt Warrant Agent
may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Debt Warrant
Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Debt
Warrant Agent, provided that it shall be qualified as aforesaid,
shall be the successor Debt Warrant Agent under this Agreement
without the execution or filing of any paper or any further act
on the part of any of the parties hereto. ......................18
(f) The Company may designate agencies for the surrender for exercise of Debt
Warrant Certificates at such place or places as the Company may
determine, and the Company shall keep the Debt Warrant Agent
advised of the names and locations of such agencies, if any are
so designated. The Debt Warrant Agent shall arrange directly with
such agencies for the delivery of Debt Warrant Securities upon
exercise of Debt Warrant Certificates surrendered for exercise at
such agencies. The Debt Warrant Agent shall be in no way
responsible or accountable for the action or failure to act of
any agencies designated pursuant to this Section 5.03(f)........18
ARTICLE VI. MISCELLANEOUS ....................................................18
Section 6.01. Modification Supplementation or Amendment.......................18
(a) This Agreement may be modified, supplemented or amended by the parties
hereto, without the consent of the Holder of any Debt Warrant
Certificate, for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective
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provision contained herein or in such Debt Warrant Certificate,
or making such provisions in regard to matters or questions
arising under this Agreement as the Company may deem necessary or
desirable; provided that such action shall not adversely affect
the interests of the Holders of the Debt Warrant Certificates in
any material respect. The Debt Warrant Agent may, but shall not
be obligated to, enter into any amendment to this Agreement which
affects the Debt Warrant Agent's own rights, duties or immunities
under this Agreement or otherwise .............................18
(b) The Company and the Debt Warrant Agent may modify or amend this Agreement
and the Debt Warrant Certificates, with the consent of the
Holders of not fewer than a ...................................18
majority in number of the then outstanding unexercised Debt Warrants affected by
such modification or amendment, for any purpose; provided,
however, that no modification or amendment of any of the
provisions of Article II and no modification or amendment that
reduces the number of outstanding Debt Warrants the consent of
the Holders of which is required for modification or amendment of
this Agreement or the Debt Warrant Certificates may be made
without the consent of each Holder affected thereby ...........19
Section 6.02. Consolidations and Mergers of the Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions. To the
extent permitted in the Indenture, the Company may consolidate
with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into, any other corporation or other
entity. .......................................................19
Section 6.03. Rights and Duties of Successor Corporation. In case of any such
consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation or entity, such
successor corporation or entity shall succeed to and be
substituted for the Company, with the same effect as if it had
been named herein, and the Company, except in the event of a
lease, shall be relieved of any further obligation under this
Agreement and the Debt Warrants. Such successor or assuming
corporation or entity shall expressly assume, by an amendment to
this Agreement, executed and delivered to the Debt Warrant Agent,
in form satisfactory to such Debt Warrant Agent, the due and
punctual payment of any and all amounts payable by the Company
pursuant to this Agreement and the performance of every covenant
of this Agreement on the part of the Company to be performed or
observed. Such successor corporation or entity thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Debt Warrant
Securities issuable pursuant to the terms hereof. All the Debt
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Warrant Securities so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Debt Warrant
Securities theretofore or thereafter issued in accordance with
the terms of this Agreement and the Indenture..................19
Section 6.04. Notices and Demands to the Company and Debt Warrant Agent. If the
Debt Warrant Agent shall receive any notice or demand addressed
to the Company by the Holder of a Debt Warrant Certificate
pursuant to the provisions of the Debt Warrant Certificates, the
Debt Warrant Agent shall promptly forward such notice or demand
to the Company.................................................19
Section 6.05. Governing Law. This Agreement and each Debt Warrant Certificate
issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.........................19
Section 6.06. Addresses. Any communications from the Company to the Debt
Warrant Agent with respect to this Agreement shall be addressed
to the STATE STREET BANK AND TRUST COMPANY, Two International
Place, Financial Services, Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (facsimile: (000) 000-0000) (telephone: (617)
664-5371), Attention: Xxx Xxxxx, and any communications from the
Debt Warrant Agent, to the Company with respect to this Agreement
shall be addressed to EOP OPERATING LIMITED PARTNERSHIP, Xxx
Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000
(facsimile: (000) 000-0000) (telephone: (000) 000-0000),
Attention: Xxxxxxx X. Xxxxxxx, Chief Legal Counsel (or such other
address as shall be specified in writing by the Debt Warrant
Agent or by the Company).......................................20
Section 6.07. Notices to Holders of Debt Warrant Certificates................20
Any notice to Holders of Debt Warrant Certificates which by any provisions of
this Agreement is required or permitted to be given shall be
delivered by first class mail postage prepaid at such Holder's
address as it appears on the books of the Debt Warrant
Agent..........................................................20
Section 6.08. Delivery of Offering Memorandum. The Company will furnish to the
Debt Warrant Agent sufficient copies of a prospectus,
appropriately supplemented, relating to the Debt Warrant
Securities (the "Offering Memorandum"), and the Debt Warrant
Agent agrees that, upon the exercise of any Debt Warrant
Certificate, the Debt Warrant Agent will deliver to the person
designated to receive Debt Warrant Securities, prior to or
concurrently with the delivery of such Securities, the Offering
Memorandum.....................................................20
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Section 6.09. Obtaining of Governmental Approvals. The Company will from time
to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of
governmental agencies and authorities and securities acts filings
under United States federal and state laws (including, without
limitation, the maintenance of the effectiveness of a
registration statement in respect of the Debt Warrant Securities
under the Securities Act), which may be or become required in
connection with the Registration Rights Agreement, the exercise
of the Debt Warrant Certificates or the original issuance and
delivery of the Debt Warrant Securities........................20
Section 6.10. Persons Having Rights Under Debt Warrant Agreement. Nothing in
this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall
be construed, to confer upon, or give to, any person or
corporation other than the Company, the Debt Warrant Agent and
the Holders of the Debt Warrant Certificates any right, remedy or
claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof; and all
covenants, conditions, stipulations, promises and agreements in
this Agreement shall be for the sole and exclusive benefit of the
Company and the Debt Warrant Agent and their successors and of
the Holders of the Debt Warrant Certificates...................20
Section 6.11. Headings. The Article and Section headings herein and the Table
of Contents are for convenience of reference only and shall not
affect the construction hereof.................................21
Section 6.12. Counterparts. This Agreement may be execute in any number of
counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one
and the same instrument........................................21
Section 6.13. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate
trust office of the Debt Warrant Agent for inspection by the
Holder of any Debt Warrant Certificate.........................21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, and their respective corporate seal to be hereunto
affixed and attested, all as of the day and year first above
written........................................................22
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THIS AGREEMENT, dated as of June 15, 1998, between EOP OPERATING
LIMITED PARTNERSHIP, a Delaware limited partnership (the "Company"),and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as Debt Warrant
Agent (the "Debt Warrant Agent").
WHEREAS, the Company has entered into an Indenture, dated as of
September 2, 1997, as supplemented by a Supplemental Indenture, dated as of
February 9, 1998 (the "Indenture"), with State Street Bank and Trust Company, as
trustee (such trustee, and any successors to such trustee, herein called the
"Trustee"), providing for the issuance from time to time of its unsecured and
unsubordinated notes or other evidences of senior indebtedness, to be issued in
one or more series as provided in the Indenture;
WHEREAS, the Company proposes to sell 6.763% Notes due 2007 (the
"Offered Debt Securities") and warrants (the "Debt Warrants") to purchase 6.763%
Notes due 2008 of the Company (the "Debt Warrant Securities") represented by
warrant certificates (such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein referred to as the "Debt Warrant
Certificates"), in each case pursuant to the Offering Memorandum dated June 10,
1998 (the "Offering Memorandum"); and
WHEREAS, the Company desires the Debt Warrant Agent to act on
behalf of the Company, and the Debt Warrant Agent is willing to so act in
accordance with the terms hereof, in connection with the issuance, exchange,
exercise and replacement of the Debt Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of the Debt
Warrant Certificates and the terms and conditions on which they may be issued,
exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF DEBT WARRANT CERTIFICATES
Section 1.01. Issuance of Debt Warrant Certificates. Upon issuance,
each Debt Warrant Certificate shall evidence one or more Debt Warrants. Each
Debt Warrant evidenced by a Debt Warrant Certificate shall represent the right,
subject to the provisions contained herein and therein, to purchase from the
Company Debt Warrant Securities, as more fully described in Article II, in the
principal amount of $1,000.
Section 1.02 Form of Debt Warrants. The Debt Warrants shall be issued
in fully registered form, with (i) Debt Warrants sold to "qualified
institutional buyers" (as defined in Rule 144A (a) (1) (i) of the Securities
Act) ("QIBs") and transferees, directly or indirectly, of
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such Debt Warrants (and beneficial interests therein) being represented by one
or more global Debt Warrant Certificates deposited with the Debt Warrant Agent
as custodian for, and registered in the name of a nominee of, The Depository
Trust Company ("DTC") and (ii) Debt Warrants sold to institutional "accredited
investors" (as defined in Rule 501 (a) (1), (2), (3), or (7) of the Securities
Act) ("AIs") other than as described in clause (i) above being represented by
physical Debt Warrant Certificates.
Section 1.03 Form of Debt Warrants Certificates The Debt Warrant
Certificates (including the Forms of Exercise and Assignment to be set forth on
the reverse thereof) shall be in substantially the form set forth in Exhibit A
hereto with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, shall be printed,
lithographed or engraved on steel engraved borders or in any other manner
determined by the officer executing such Debt Warrant Certificates and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any securities exchange on which the Debt Warrant Certificates may be listed or
as may, consistently herewith, be determined by the officer executing such Debt
Warrant Certificates, as evidenced by their execution thereof.
Section 1.04 Execution and Authentication of Debt Warrant Certificates.
The Debt Warrant Certificates shall be executed on behalf of the Company by
Equity Office Properties Trust by its Chairman of the Board, its President or
one of its Vice Presidents (whether or not designated by a number or word or
words added before or after the title "vice president"), manually or by
facsimile signature, under its corporate seal reproduced thereon attested to by
its Secretary or one of its Assistant Secretaries, either manually or by
facsimile signature. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of the Debt Warrant Certificate that has been duly executed by
the Company and authenticated by the Debt Warrant Agent.
Debt Warrant Certificates evidencing the right to purchase an
aggregate principal amount not exceeding $300 million of Debt Warrant Securities
(except as provided in Sections 1.04, 2.03(c), 3.01 and 3.02) may be executed by
the Company and delivered to the Debt Warrant Agent upon the execution of this
Debt Warrant Agreement or from time to time thereafter. The Debt Warrant Agent
shall, upon receipt of Debt Warrant Certificates duly executed on behalf of the
Company, together with a Company request for the authentication and delivery of
such certificates, authenticate Debt Warrant Certificates evidencing Debt
Warrants representing the right to purchase up to and including $300 million
aggregate principal amount of Debt Warrant Securities and shall deliver such
Debt Warrant Certificates to or upon the order of the Company. Subsequent to
such original issuance of the Debt Warrant Certificates, the Debt Warrant Agent
shall authenticate a Debt Warrant Certificate only if the Debt Warrant
Certificate is issued in exchange or substitution for one or more previously
authenticated Debt Warrant Certificates.
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Each Debt Warrant Certificate shall be dated the date of its
authentication by the Debt Warrant Agent.
No Debt Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Debt Warrant
evidenced thereby shall be exercisable, until such Debt Warrant Certificate has
been authenticated by the manual signature of a duly authorized representative
of the Debt Warrant Agent. Such signature by the Debt Warrant Agent upon any
Debt Warrant Certificate executed by the Company shall be conclusive evidence,
and the only evidence, that the Debt Warrant Certificate so authenticated has
been duly issued hereunder.
In case any officer of the Company who shall have signed the Debt
Warrant Certificate, either manually or by facsimile signature, shall cease to
be such officer before the Debt Warrant Certificate so signed shall have been
authenticated and delivered by the Debt Warrant Agent to the Company or
delivered by the Company, such Debt Warrant Certificate nevertheless may be
authenticated and delivered as though the person who signed such Debt Warrant
Certificate had not ceased to be such officer of the Company.
Section 1.05 Temporary Debt Warrant Certificates. Pending the
preparation of definitive Debt Warrant Certificates, the Company may execute,
and upon the order of the Company the Debt Warrant Agent shall authenticate and
deliver, temporary Debt Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Debt Warrant Certificates in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officer executing such Debt Warrant Certificates may determine, as
evidenced by their execution thereof.
If temporary Debt Warrant Certificates are issued, the Company
will cause definitive Debt Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Debt Warrant
Certificates, the temporary Debt Warrant Certificates shall be exchangeable for
definitive Debt Warrant Certificates upon surrender of the temporary Debt
Warrant Certificates at the corporate trust office of the Debt Warrant Agent,
located initially at Two International Place, Financial Services, Corporate
Trust Department, Xxxxxx, Xxxxxxxxxxxxx 00000, or at the corporate trust window
of the Debt Warrant Agent, located initially maintained at 00 Xxxxxxxx,
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Warrant
Certificates, the Company shall execute, and the Debt Warrant Agent shall
authenticate and deliver, in exchange therefor definitive Debt Warrant
Certificates representing the same aggregate number of Debt Warrants represented
thereby. Until so exchanged, the temporary Debt Warrant Certificates shall in
all respects be entitled to the same benefits under this Agreement as definitive
Debt Warrant Certificates.
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Section 1.06 Payment of Taxes. The Company will pay all stamp taxes and
other duties, if any, to which, under the laws of the United States of America
or any state or political subdivision thereof, this Agreement or the original
issuance of the Debt Warrant Certificates may be subject.
Section 1.07 Definition of Holder, Transferor, and Transferee. The term
"Holder" shall mean the person in whose name at the relevant time the particular
Debt Warrant Certificate shall be registered upon the books to be maintained by
the Debt Warrant Agent for that purpose pursuant to Section 3.01. The term
"Transferor" shall mean a Holder which, according to the terms and conditions
specified herein, transfers its interest in Debt Warrants. The term "Transferee"
shall mean a person to whom a Transferor transfers its interest in Debt
Warrants. A Transferee, upon a transfer in accordance with the terms and
conditions specified herein, shall be deemed a Holder upon consummation of the
transfer.
ARTICLE II.
WARRANT PRICE, DURATION, EXERCISE OF DEBT WARRANTS, AND DEBT
WARRANT SECURITIES
Section 2.01. Warrant Price. On the Exercise Date (as defined in
Section 2.02), each Debt Warrant evidenced by a Debt Warrant Certificate shall
entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase from the Company Debt Warrant Securities in the principal amount of
$1,000 at the exercise price of 100 % of the principal amount thereof, the
"Exercise Price").
Section 2.02. Duration of Debt Warrants. Any Debt Warrant evidenced by
a Debt Warrant Certificate may be exercised, subject to provisions of Section
2.03, on December 15, 1999 unless the Company notifies the Holders in writing at
their registered address at least five Business Days (as hereinafter defined)
prior to the December 15, 1999 that, based on an opinion of counsel, it is aware
of material non-public information with respect to the Company, in which case
the Company may postpone such date to January 18, 2000, or, in each case, if
such day is not a Business Day, the succeeding Business Day (the "Exercise
Date"). "Business Day" means any day, other than a Saturday or Sunday, on which
banking institutions in New York, New York and Boston, Massachusetts are open
for business. After the close of business on the Determination Date (as defined
in Section 2.04), each Debt Warrant as to which a Holder has theretofore failed
to provide notice of such Holder's intention to exercise shall become void, and
all rights of the Holder of the Debt Warrant Certificate evidencing such Debt
Warrant under this Agreement or otherwise shall cease.
Section 2.03. Exercise of Debt Warrants.
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(a) On the Exercise Date, one or more Debt Warrants may be
exercised upon (i) notice by the Holder thereof of such Holder's intention to
exercise its Debt Warrants submitted to the Debt Warrant Agent and thereafter
promptly forwarded by the Debt Warrant Agent to the Company no later than the
Determination Date, (ii) delivery to the Debt Warrant Agent at its corporate
trust office or window on or prior to the Exercise Date of payment of the
Exercise Price in the form of certified or official bank check payable to the
order of the Company, and (iii) delivery to the Debt Warrant Agent at its
corporate trust office or window on or prior to the Exercise Date of the related
Debt Warrant Certificate(s) and the purchase form set forth in the Debt Warrant
Certificate properly completed and duly executed, whereupon the Company will, on
or promptly after the Exercise Date, deliver the related Debt Warrant
Securities, in accordance with clause (c) of this Section 2.03; provided
however, that Debt Warrants may only be exercised if such notice of exercise has
been delivered to the Debt Warrant Agent prior to the close of business on the
Determination Date. Notice of a Holder's intention to exercise a Debt Warrant
shall be irrevocable, except that after a postponement of the date of exercise
of the Debt Warrants under the conditions specified in Section 2.02 such notice
shall be null and void. Accordingly, after such postponement, a Holder must
redeliver a notice of intention to exercise a Debt Warrant no later than the
Determination Date immediately preceding January 18, 2000.
The Debt Warrant Agent shall deposit all funds received by it as
payment for the exercise of Debt Warrants to the account of the Company
maintained with it for such purpose on the date on which such Debt Warrants and
such funds are received and shall advise the Company by telephone or in writing,
by facsimile transmission or otherwise, at the end of each day on which such a
payment is received of the amount so deposited to its account. The Debt Warrant
Agent shall promptly confirm any telephonic advice to the Company in writing.
Absent written agreement with the Company, the Warrant Agent shall have no
obligation to invest any such funds.
(b) Promptly after the Exercise Date, the Debt Warrant Agent
shall, in accordance with the terms and conditions of this Agreement and the
Debt Warrant Certificates, advise the Company and the Trustee of (i) the number
of Debt Warrants as to which notice of an intention to exercise has been
received, (ii) the instructions of each Holder of the Debt Warrant Certificates
evidencing such Debt Warrants with respect to delivery of the Debt Warrant
Securities to which such Holder is entitled upon such exercise and (iii) such
other information as the Company or the Trustee shall reasonably require.
(c) On or promptly after the Exercise Date, the Company shall
issue and the Trustee shall authenticate and deliver, pursuant to the Indenture,
in authorized denominations, to or upon the order of each Holder who has
exercised its Debt Warrants, the Debt Warrant Securities to which such Holder is
entitled in fully registered form, registered in such name or names as may be
directed by such Holder.
(d) The Company shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with any
transfer involved in the issue of
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the Debt Warrant Securities upon the order of the Holders of the related Debt
Warrant Certificate evidencing exercised Debt Warrants.
Section 2.04 Debt Warrant Securities. At the time of issuance, (i) the
Company shall have registered the Debt Warrant Securities issued upon exercise
of the Debt Warrants under the Securities Act of 1933, as amended (the
"Securities Act"), (ii) the Company shall have taken all necessary steps to
issue the Debt Warrant Securities under the Indenture, the Company shall have
used its best efforts to obtain a rating of the Debt Warrant Securities from
Standard & Poor's Ratings Services and Xxxxx'x Investors Service, Inc. Debt
Warrant Securities issued upon exercise of Debt Warrants shall have identical
terms to the Offered Debt Securities except: (i) the maturity of the Debt
Warrant Securities shall be June 15, 2008 (the "Debt Warrant Security Maturity
Date"); (ii) interest will accrue on the Debt Warrant Securities from and
including the Exercise Date and will be paid on such Debt Warrant Securities
commencing on June 15, 2000, (iii) if the Debt Warrant Securities issued upon
exercise of Debt Warrants have not been registered under the Securities Act on
or before the Exchange Date, then the interest rate per annum on the Debt
Warrant Securities shall be increased by .50% (one half of one percent) until
such unregistered Debt Warrant Securities shall be so registered, and (iv) if
the Company, pursuant to Section 2.02, postpones the date of the exercise of the
Debt Warrants, then the interest rate per annum on the Debt Warrant Securities
shall be increased by the positive value, if any, of the sum of (x) the value
(positive or negative, expressed in the form of a percentage or in basis
points), if any, of the result from subtracting the December 1999 Credit Spread
(as hereinafter defined) from the January 2000 Credit Spread (as hereinafter
defined) and (y) the value (positive or negative, expressed in the form of a
percentage or in basis points), if any, of the result from subtracting the
December 1999 Treasury Rate (as hereinafter defined) from the January 2000
Treasury Rate (as hereinafter defined) determined by the Calculation Agent.
If for any reason the Company elects not to, or fails to, issue
and deliver the Debt Warrant Securities purchasable upon exercise of the Debt
Warrants on the Exercise Date, then the Company shall promptly pay to the
Holders who have given notice of their intention to exercise their Debt Warrants
an amount equal to the Debt Warrant Make-Whole Amount (as hereinafter defined),
as calculated by the Calculation Agent (as hereinafter defined) on the third
Business Day prior to December 15, 1999.
As used herein:
"Calculation Agent" means initially Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated or an affiliate thereof.
"Comparable Treasury Issues" means the United States Treasury
security or securities selected by the Calculation Agent as having an actual or
interpolated maturity or maturities comparable to the stated term to maturity of
the Debt Warrant Securities.
"Comparable Treasury Price" means, with respect to December 15,
1999 or January 18, 2000, as applicable, (a) the offer-side prices for the
Comparable Treasury Issues
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(expressed in each case as a percentage of its principal amounts) on the third
Business Day prior to such date, as set forth on Telerate Page 500 (as
hereinafter defined), or (b) if Telerate Page 500 is not displayed or does not
contain such offer-side prices on the third Business Day prior to such date, (i)
the average of three Reference Treasury Dealer Quotations for December 15, 1999
or January 18, 2000, as applicable, after excluding the highest and lowest of
five Reference Treasury Dealer Quotations obtained on the third Business Day
prior to such date, or (ii) if the Calculation Agent obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such Reference
Treasury Dealer Quotations obtained on the third Business Day prior to such
date. "Telerate Page 500" means the display designated as "Telerate Page 500" on
Dow Xxxxx Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer-side prices
specified in (a) above as may replace Dow Xxxxx Markets Limited.
"December 1999 Credit Spread" will be the average (arithmetic
mean) of the bid indications, excluding the highest and the lowest bids,
expressed as a spread (in the form of a percentage or in basis points) above the
December 1999 Treasury Rate, obtained by the Calculation Agent on the date three
Business Days prior to December 15, 1999, from the bids quoted by five Reference
Corporate Dealers in accordance with customary financial practice in the pricing
of a new issue of publicly registered, senior unsecured indebtedness of the
Company for the full aggregate principal amount of the Debt Warrant Securities
purchasable upon the exercise of all Debt Warrants, assuming the Debt Warrant
Securities have (i) an issue price equal to 100%, (ii) an issue date equal to
December 15, 1999, with settlement on such date without accrued interest, (iii)
a maturity date equal to the Debt Warrant Security Maturity Date, (iv) interest
initially payable to Holders thereof commencing June 15, 2000 and (v) a stated
annual interest rate, payable semiannually on each June 15 and December 15,
equal to the December 1999 Treasury Rate plus the spread bid by the applicable
Reference Corporate Dealer. If fewer than five Reference Corporate Dealers bid
as described above, then the December 1999 Credit Spread shall be the average
(arithmetic mean) of all bid indications obtained.
"December 1999 Treasury Rate" means, with respect to December 15,
1999, the rate per annum equal to the semiannual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues, assuming a price for the Comparable Treasury Issues (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
December 15, 1999.
"Debt Warrant Make-Whole Amount" means the present value, as of
December 15, 1999, of the Remaining Scheduled Payments (as hereinafter defined)
discounted to December 15, 1999, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Warrant Reinvestment Rate.
"Determination Date" means three Business Days prior to the
Exercise Date.
"January 2000 Credit Spread" will be the average (arithmetic mean)
of the bid indications, excluding the highest and the lowest bids, expressed as
a spread (in the form of a
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percentage or in basis points) above the January 2000 Treasury Rate, obtained by
the Calculation Agent on the date three Business Days prior to January 18, 2000,
from the bids quoted by five Reference Corporate Dealers in accordance with
customary financial practice in the pricing of a new issue of publicly
registered, senior unsecured indebtedness of the Company for the full aggregate
principal amount of the Debt Warrant Securities purchasable upon the exercise of
all Debt Warrants, assuming that the Debt Warrant Securities have (i) an issue
price equal to 100%, (ii) an issue date equal to January 18, 2000, with
settlement on such date without accrued interest, (iii) a maturity date equal to
the Debt Warrant Security Maturity Date, (iv) interest initially payable to
Holders thereof commencing June 15, 2000, and (v) a stated annual interest rate,
payable semiannually on each June 15 and December 15, equal to the January 2000
Treasury Rate plus the spread bid by the applicable Reference Corporate Dealer.
If fewer than five Reference Corporate Dealers bid as described above, then the
January 2000 Credit Spread shall be the average (arithmetic mean) of all bid
indications obtained.
"January 2000 Treasury Rate" means, with respect to January 18,
2000, the rate per annum equal to the semiannual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues, assuming a price for the Comparable Treasury Issues (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
January 18, 2000.
"Reference Corporate Dealers" means leading dealers of publicly
traded debt securities of the Company in The City of New York (which may include
the Calculation Agent or one of its affiliates) selected by the Calculation
Agent.
"Reference Treasury Dealer" means each of Credit Suisse First
Boston Corporation, Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx and Co. Incorporated and Salomon Brothers Inc (or
their respective affiliates which are primary U.S. Government securities
dealers) and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"), the
Calculation Agent shall substitute thereof another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and December 15, 1999 or January 18, 2000, as
applicable, the offer-side prices for the Comparable Treasury Issues (expressed
in each case as a percentage of its principal amount) quoted to the Calculation
Agent by such Reference Treasury Dealer by 3:30 PM, New York City time, on the
third Business Day prior to such date.
"Remaining Scheduled Payments" means, with respect to the Debt
Warrant Securities, all scheduled payments of the interest thereon, calculated
at the interest rate of the Debt Warrant Securities only, that would accrue from
December 15, 1999 and would be due thereafter to and including the Debt Warrant
Security Maturity Date.
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"Warrant Reinvestment Rate" means the per annum rate equal to the
December 1999 Treasury Rate plus the December 1999 Credit Spread. The Warrant
Reinvestment Rate announced by the Calculation Agent, absent manifest error,
shall be binding and conclusive upon the Holders of the Debt Warrants, the
Company and the Debt Warrant Agent.
ARTICLE III.
REGISTRATION, EXCHANGE, SUBSTITUTION, TRANSFER AND LIMITATIONS ON
TRANSFER OF DEBT WARRANT CERTIFICATES AND REGISTRATION OF THE
WARRANTS UNDER THE SECURITIES ACT
Section 3.01. Registration, Exchange and Transfer of Debt Warrant
Certificates The Debt Warrant Agent shall keep, at its corporate trust office,
books in which, subject to such reasonable regulations as it may prescribe, it
shall register the Debt Warrant Certificates and transfers and exchanges of
outstanding Debt Warrant Certificates. Prior to registration of the Debt
Warrants under the Securities Act, (i) no Holder shall transfer to any single
purchaser any Debt Warrants in a block consisting of fewer than 100 Debt
Warrants and (ii) Debt Warrants will be subject to the other restrictions on
transfer set forth in Section 3.04. Subject to the foregoing, upon surrender at
the place or places set forth in Debt Warrant Certificate or at the corporate
trust office of the Debt Warrant Agent, located initially at Two International
Place, Financial Services, Corporate Trust Department, Xxxxxx, Xxxxxxxxxxxxx
00000, or at the corporate trust window of the Debt Warrant Agent, located
initially at 00 Xxxxxxxx, Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, of Debt
Warrant Certificates properly endorsed or accompanied by appropriate instruments
of transfer, with signature guaranteed thereon and accompanied by written
instructions for transfer or exchange, all in form reasonably satisfactory to
the Company and the Debt Warrant Agent, such Debt Warrant Certificates may be
exchanged for other Debt Warrants; it being understood that Debt Warrant
Certificates issued in exchange for or upon transfer of surrendered Debt Warrant
Certificates shall evidence the same aggregate number of Debt Warrants as the
Debt Warrant Certificates so surrendered.
No service charge shall be made for any exchange or transfer of
Debt Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or governmental charge that may be
imposed in connection with any such exchange or transfer. Whenever any Debt
Warrant Certificates are so surrendered for exchange or transfer, the Company
shall execute, and an authorized officer of the Debt Warrant Agent shall
manually authenticate and deliver to the person or persons entitled thereto, a
Debt Warrant Certificate or Debt Warrant Certificates as so requested. The Debt
Warrant Agent shall not be required to effect any exchange or transfer which
would result in the issuance of a Debt Warrant Certificate evidencing a fraction
of a Debt Warrant or a number of full Debt Warrants and a fraction of a Debt
Warrant. All Debt Warrant Certificates issued upon any exchange or transfer of
Debt Warrant Certificates shall evidence the same obligations, and be entitled
to the same benefits under this Agreement, as the Debt Warrant Certificate
surrendered for such exchange or transfer.
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Section 3.02. Mutilated, Destroyed, Lost or Stolen Debt Warrant
Certificates. If any mutilated Debt Warrant Certificate is surrendered to the
Debt Warrant Agent, the Company shall execute, and an authorized officer of the
Debt Warrant Agent shall manually authenticate and deliver in exchange therefor,
a new Debt Warrant Certificate of like tenor representing a like number of
unexercised Debt Warrants and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Debt Warrant
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Debt Warrant Certificate and of the ownership thereof, (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, and (iii) funds sufficient to cover any cost or expense
to the Company (including any fees charged by the Debt Warrant Agent) relating
to the issuance of a new Debt Warrant Certificate, then, in the absence of
notice to the Company or the Debt Warrant Agent that such Debt Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and upon its request an authorized officer of the Debt Warrant Agent
shall manually authenticate and deliver, in lieu of any such destroyed, lost or
stolen Warrant Certificate, a new Debt Warrant Certificate of like tenor
representing a like number of unexercised Debt Warrants and bearing a number not
contemporaneously outstanding.
In case the Debt Warrants evidenced by any such mutilated,
destroyed, lost or stolen Debt Warrant Certificate have been exercised, the
Company in its discretion may, instead of issuing a new Debt Warrant
Certificate, treat the same as if it had received written irrevocable notice of
exercise in good form in respect thereof, as provided herein.
Every new Debt Warrant Certificate issued pursuant to this Section
3.01 in lieu of any mutilated, destroyed, lost or stolen Debt Warrant
Certificate shall constitute an original additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost or stolen Debt
Warrant Certificate shall be at any time enforceable by anyone, and shall be
entitled to all of the benefits of this Agreement equally and proportionately
with any and all other Debt Warrant Certificates duly issued hereunder. The
provisions of this Section 3.01 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Warrant Certificates.
Section 3.03 Reserved.
Section 3.04. Restrictions and Limitations on Transfers of Debt
Warrants. Unless and until the earlier of (i) registration under the Securities
Act in accordance with the Registration Rights Agreement relating to the Offered
Debt Securities and the Debt Warrants (the "Registration Rights Agreement") and
(ii) the Resale Restriction Termination Date (as hereinafter defined), the Debt
Warrants have not been and will not be registered under the Securities Act or
any state securities law and therefore will be subject to the following
restrictions on transfer. The Debt Warrant Agent shall not register the resale
or other transfer of Debt Warrants unless such resale or other transfer is in
accordance with such restrictions, provided that for such purposes it may
conclusively rely on the statement set forth on the Assignment Form and
Certificate of Transfer.
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Each purchaser of such Debt Warrants, by its acceptance thereof, will
be deemed to have acknowledged, represented and agreed with the Company and the
Initial Purchasers (as defined in the Registration Rights Agreement) that it
will not offer, sell or otherwise transfer such Debt Warrants prior to the date
that is two years from the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such Debt
Warrants (or any predecessor thereto) (the "Resale Restriction Termination
Date") unless such sale:
(1) to the Company or any subsidiary thereof;
(2) pursuant to a registration statement that has been
declared effective under the Securities Act;
(3) for so long as the Debt Warrants are eligible for resale
under Rule 144A, to a person it reasonably believes is a
QIB that purchases for its own account or for the
account of a QIB to whom notice is given that the
transfer is being made in reliance upon Rule 144A;
(4) to an institutional "accredited investor" within the
meaning of subparagraph (a) (1), (2), (3) or (7) of Rule
501 under the Securities Act that is acquiring the Debt
Warrants for its own account, or for the 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; or
(5) pursuant to any other available exemption from the
registration requirements of the Securities Act;
subject in each of the foregoing cases to any requirement of law
that the disposition of its property or the property of such
investor account or accounts be at all times within its or their
control and to compliance with any applicable state securities
laws; it being understood that prior to any offer, sale, or other
transfer of Debt Warrants in certificated form prior to the Resale
Restriction Termination Date (i) pursuant to clause (4) above, the
transferor shall deliver a letter substantially in the form of
Annex A from the transferee to the Debt Warrant Agent and (ii)
pursuant to clause (5) above, the Company reserves the right to
require the delivery of an opinion of counsel, certifications and
/ or other information satisfactory to the Company.
Each purchaser of such Debt Warrants acknowledges that each Debt
Warrant will contain a legend substantially to the following effect:
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[FOR QIBS, INSERT: UNLESS THIS WARRANT 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 WARRANT 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 WARRANT IS EXCHANGED IN WHOLE OR IN PART FOR WARRANTS IN A
CERTIFICATED FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC
TO A NOMINEE OF DTC OR BY DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.]
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NEITHER THIS
WARRANT NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERRED, 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 WARRANT WILL BE ISSUED AND UNTIL REGISTERED MAY
BE TRANSFERRED ONLY IN A MINIMUM BLOCK OF 100.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS WARRANT, 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 COMPANY OR ANY "AFFILIATE" OF THE COMPANY
WAS THE OWNER OF THIS WARRANT (OR ANY PREDECESSOR OF SUCH WARRANT), ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE WARRANTS ARE 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, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT
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THAT IS ACQUIRING THIS WARRANT FOR ITS OWN ACOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," OR AS A 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, OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; IT BEING
UNDERSTOOD THAT PRIOR TO ANY OFFER, SALE OR TRANSFER OF A WARRANT IN CERTIFCATED
FORM PRIOR TO A RESALE RESTRICTION TERMINATION DATE (i) PURSUANT TO CLAUSE (D)
ABOVE, THE TRANSFEROR SHALL DELIVER A LETTER SUBSTANTIALLY IN THE FORM OF ANNEX
A TO THE WARRANT AGREEMENT DATED AS OF JUNE 15, 1998 FROM THE TRANSFEREE TO THE
DEBT WARRANT AGENT AND (ii) PURSUANT TO CLAUSE (E) ABOVE, THE COMPANY RESERVES
THE RIGHT TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO THE COMPANY. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINTION DATE.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL WARRANTS ISSUED
HEREUNDER.
Section 3.05. Persons Deemed Holders. The Company and the Debt Warrant
Agent may treat the Holder as the owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Debt Warrants
evidenced thereby, any notice to the contrary notwithstanding.
Section 3.06. Cancellation of Debt Warrant Certificates. Any Debt
Warrant Certificate surrendered for exchange, transfer or exercise of the Debt
Warrants evidenced thereby shall, if surrendered to the Company, be delivered to
the Debt Warrant Agent, all Debt Warrant Certificates surrendered or so
delivered to the Debt Warrant Agent shall be promptly canceled by it and shall
not be reissued and, except as expressly permitted by this Agreement, no Debt
Warrant Certificate shall be issued hereunder in lieu or in exchange thereof.
The Company may at any time deliver to the Debt Warrant Agent for cancellation
any Debt Warrant Certificates previously issued hereunder which the Company may
have acquired in any manner whatsoever, and all Debt Warrant Certificates so
delivered shall be promptly canceled by the Debt Warrant Agent. All canceled
Debt Warrant Certificates held by the Debt Warrant Agent shall be disposed of as
instructed by the Company, subject to applicable law.
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ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF DEBT WARRANT CERTIFICATES
Section 4.01. No Rights as Holders of Debt Warrant Securities Conferred
by Debt Warrants or Debt Warrant Certificates. No Debt Warrant Certificate or
Debt Warrants evidenced thereby shall entitle the Holder thereof to any of the
rights of a Holder of the Debt Warrant(s) Securities, including, without
limitation, the right to receive the payment of principal of (or premium, if
any) or interest on the Debt Warrant Securities or to enforce any of the
covenants in the Indenture.
Section 4.02. Holder of Debt Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder of any Debt
Warrant Certificate, without the consent of the Debt Warrant Agent, the Trustee,
the Holder of any Debt Warrant Securities or the Holder of any other Debt
Warrant Certificate, may, on his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company suitable to enforce or otherwise in respect of, such Holder's right to
exercise the Debt Warrant(s) evidenced by such Holder's Debt Warrant Certificate
in the manner provided in such Debt Warrant Certificate and in this Agreement.
ARTICLE V.
CONCERNING THE DEBT WARRANT AGENT
Section 5.01. Debt Warrant Agent. The Company hereby appoints State
Street Bank and Trust Company as Debt Warrant Agent of the Company in respect of
the Debt Warrants and the Debt Warrant Certificates upon the terms and subject
to the conditions set forth herein and in the Debt Warrant Certificate, and
State Street Bank and Trust Company hereby accepts such appointment. The Debt
Warrant Agent shall have the power and authority granted to and conferred upon
it in the Debt Warrant Certificates and in this Agreement and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such power and authority contained in the Debt Warrant Certificates
are subject to and governed by the terms and provisions hereof.
Section 5.02. Conditions of Debt Warrant Agent's Obligations. The Debt
Warrant Agent accepts its obligations herein set forth, upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of the
Debt Warrant Certificates shall be subject:
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(a) Compensation and Indemnification. The Company agrees promptly
to pay the Debt Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Debt Warrant
Agent and to reimburse the Debt Warrant Agent for reasonable
out-of-pocket expenses (including reasonable attorney's fees and
expenses) incurred by the Debt Warrant Agent without negligence,
bad faith or wilful misrepresentation on its part in connection
with the services rendered hereunder by the Debt Warrant Agent;
the Company also agrees to indemnify the Debt Warrant Agent for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or wilful misrepresentation
on the part of the Debt Warrant Agent, arising out of or in
connection with its acting as such Debt Warrant Agent hereunder,
including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance at any time of its powers or duties hereunder or with
respect to the Debt Warrants; and the obligations of the Company
under this subsection (a) shall survive the exercise of the Debt
Warrant Certificates, termination of this Agreement and the
resignation or removal of the Debt Warrant Agent.
(b) Agent for the Company. In acting under this Debt Warrant
Agreement and in connection with the Debt Warrant Certificates,
the Debt Warrant Agent is acting solely as agent of the Company
and does not assume any obligation or relationship of agency or
trust for or with any of the owners or Holders of the Debt Warrant
Certificates.
(c) Counsel. The Debt Warrant Agent may consult with counsel,
which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(d) Documents. The Debt Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or
omitted by it in reliance upon any Debt Warrant Certificate,
notice, opinion of counsel, direction, consent, certificate,
affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed
by the proper parties.
(e) Certain Transactions. The Debt Warrant Agent, any of its
officers, directors and employees, in its or their individual or
any other capacity, may become the owner of, or acquire any
interest in, any Debt Warrant Certificates, with the same rights
that it would have if it were not such Debt Warrant Agent,
officer, director, employee or other agent, and, to the extent
permitted by applicable law, it or they may engage or be
interested in any financial or other transaction with the Company
and may act on, or as
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depository, trustee or agent for, any committee or body of Holders
of Debt Warrant Securities or other obligations of the Company as
freely as if it were not such Debt Warrant Agent, officer,
director, employee or other agent. Nothing in this Debt Warrant
Agreement shall be deemed to prevent the Debt Warrant Agent from
acting as Trustee under the Indenture.
(f) No Liability for Interest. The Debt Warrant Agent shall not
be under any liability for interest on any moneys at any time
received by it pursuant to any of the provisions of this Agreement
or of the Debt Warrant Certificates unless otherwise agreed to in
writing by the Company and the Debt Warrant Agent.
(g) No Liability for Invalidity. The Debt Warrant Agent shall not
incur any liability with respect to the validity of this Agreement
or any of the Debt Warrant Certificates.
(h) No Responsibility for Representations. The Debt Warrant Agent
shall not be responsible for any of the recitals or
representations contained herein or in the Debt Warrant
Certificates (except as to the Debt Warrant Agent's authentication
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Debt Warrant Agent shall be
obligated to perform such duties as are herein and in the Debt
Warrant Certificates specifically set forth and no implied duties
or obligations shall be read into this Agreement or the Debt
Warrant Certificates against the Debt Warrant Agent. The Debt
Warrant Agent shall not be under any obligation to advance its own
funds or to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it.
The Debt Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Debt
Warrant Certificates authenticated by the Debt Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for
the application by the Company of the proceeds of the Debt Warrant
Certificates or any exercise of the Debt Warrants evidenced
thereby. The Debt Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in
the Debt Warrant Certificates or in the Debt Warrant Securities or
in the case of the receipt of any written demand from a Holder of
a Debt Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any
duty or responsibility to initiate or attempt to initiate any
proceeding at law or otherwise or, except as provided in Section
6.04 hereof, to make any demand upon the Company.
Section 5.03. Resignation, Removal and Appointment of Successor
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(a) The Company agrees, for the benefit of the
Holders from time to time of the Debt Warrant Certificates, that there shall at
all times be a Debt Warrant Agent hereunder until all of the Debt Warrants are
no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as
such agent by giving written notice to the Company of such intention on its
part, specifying the date on which it desires its resignation to become
effective; provided that, without the consent of the Company, such date shall
not be less than three months after the date on which such notice is given and
shall be subject to the appointment of a successor Debt Warrant Agent and the
acceptance of such appointment by such successor Debt Warrant Agent, as
hereinafter provided. The Debt Warrant Agent may be removed at any time by the
filing with it of an instrument in writing signed by or on behalf of the Company
and specifying such removal and the date on which the Company expects such
removal to become effective. Such resignation or removal shall take effect upon
the appointment by the Company of a successor Debt Warrant Agent (which shall be
a bank or trust company organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia and
authorized under such laws to exercise corporate trust powers) by an instrument
in writing filed with such successor Debt Warrant Agent and the acceptance of
such appointment by such successor Debt Warrant Agent pursuant to clause (c) of
this Section 5.03. In the event a successor Debt Warrant Agent has not been
appointed and has not accepted its duties within 90 days of the Debt Warrant
Agent's notice of resignation, the Debt Warrant Agent may apply to any court of
competent jurisdiction for the designation of a successor Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall
resign, or be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or shall
admit in writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered approving any
petition filed by or against it under the provisions of any applicable
bankruptcy or similar law or if any public officer shall have taken charge or
control of the Debt Warrant Agent or of its property or affairs, for the purpose
of rehabilitation, conservation or liquidation, a successor Debt Warrant Agent
qualified as aforesaid shall be appointed by the Company by an instrument in
writing that is filed with the successor Debt Warrant Agent. Upon the
appointment as aforesaid of a successor Debt Warrant Agent and acceptance by the
latter of such appointment, the then current Debt Warrant Agent shall cease to
be Debt Warrant Agent hereunder.
(d) Any successor Debt Warrant Agent appointed
hereunder shall execute, acknowledge and deliver to its predecessor and to the
Company an instrument accepting such appointment hereunder, and thereupon such
successor Debt Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if
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originally named as Debt Warrant Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Debt Warrant
Agent shall be entitled to receive all moneys, securities and other property on
deposit with or held by such predecessor, as Debt Warrant Agent hereunder.
(e) Any corporation into which the Debt Warrant Agent
hereunder may be merged or converted or any corporation with which the Debt
Warrant Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Debt Warrant Agent shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Debt Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Debt Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
(f) The Company may designate agencies for the
surrender for exercise of Debt Warrant Certificates at such place or places as
the Company may determine, and the Company shall keep the Debt Warrant Agent
advised of the names and locations of such agencies, if any are so designated.
The Debt Warrant Agent shall arrange directly with such agencies for the
delivery of Debt Warrant Securities upon exercise of Debt Warrant Certificates
surrendered for exercise at such agencies. The Debt Warrant Agent shall be in no
way responsible or accountable for the action or failure to act of any agencies
designated pursuant to this Section 5.03(f).
ARTICLE VI.
MISCELLANEOUS
Section 6.01. Modification, Supplementation or Amendment
(a) This Agreement may be modified, supplemented or
amended by the parties hereto, without the consent of the Holder of any Debt
Warrant Certificate, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or in such
Debt Warrant Certificate, or making such provisions in regard to matters or
questions arising under this Agreement as the Company may deem necessary or
desirable; provided that such action shall not adversely affect the interests of
the Holders of the Debt Warrant Certificates in any material respect. The Debt
Warrant Agent may, but shall not be obligated to, enter into any amendment to
this Agreement which affects the Debt Warrant Agent's own rights, duties or
immunities under this Agreement or otherwise.
(b) The Company and the Debt Warrant Agent may modify
or amend this Agreement and the Debt Warrant Certificates, with the consent of
the Holders of not fewer than a
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majority in number of the then outstanding unexercised Debt Warrants affected by
such modification or amendment, for any purpose; provided, however, that no
modification or amendment of any of the provisions of Article II and no
modification or amendment that reduces the number of outstanding Debt Warrants
the consent of the Holders of which is required for modification or amendment of
this Agreement or the Debt Warrant Certificates may be made without the consent
of each Holder affected thereby.
Section 6.02. Consolidations and Mergers of the Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. To the extent
permitted in the Indenture, the Company may consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge with or into, any
other corporation or other entity.
Section 6.03. Rights and Duties of Successor Corporation In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation or entity, such successor corporation or
entity shall succeed to and be substituted for the Company, with the same effect
as if it had been named herein, and the Company, except in the event of a lease,
shall be relieved of any further obligation under this Agreement and the Debt
Warrants. Such successor or assuming corporation or entity shall expressly
assume, by an amendment to this Agreement, executed and delivered to the Debt
Warrant Agent, in form satisfactory to such Debt Warrant Agent, the due and
punctual payment of any and all amounts payable by the Company pursuant to this
Agreement and the performance of every covenant of this Agreement on the part of
the Company to be performed or observed. Such successor corporation or entity
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Debt Warrant Securities issuable pursuant
to the terms hereof. All the Debt Warrant Securities so issued shall in all
respects have the same legal rank and benefit under the Indenture as the Debt
Warrant Securities theretofore or thereafter issued in accordance with the terms
of this Agreement and the Indenture.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Debt Warrant Securities thereafter to be issued as may be
appropriate.
Section 6.04. Notices and Demands to the Company and Debt Warrant Agent
If the Debt Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder of a Debt Warrant Certificate pursuant to the provisions
of the Debt Warrant Certificates, the Debt Warrant Agent shall promptly forward
such notice or demand to the Company.
Section 6.05. Governing Law. This Agreement and each Debt Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.
19
37
Section 6.06. Addresses. Any communications from the Company to the
Debt Warrant Agent with respect to this Agreement shall be addressed to STATE
STREET BANK AND TRUST COMPANY, Two International Place, Financial Services,
Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (facsimile: (617)
000-0000) (telephone: (000) 000-0000), Attention: Xxx Xxxxx, and any
communications from the Debt Warrant Agent, to the Company with respect to this
Agreement shall be addressed to EOP OPERATING LIMITED PARTNERSHIP, Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (facsimile: (000) 000-0000)
(telephone: (000) 000-0000), Attention: Xxxxxxx X. Xxxxxxx, Chief Legal Counsel
(or such other address as shall be specified in writing by the Debt Warrant
Agent or by the Company).
Section 6.07. Notices to Holders of Debt Warrant Certificates.
Any notice to Holders of Debt Warrant Certificates which by any
provisions of this Agreement is required or permitted to be given shall be
delivered by first class mail postage prepaid at such Holder's address as it
appears on the books of the Debt Warrant Agent.
Section 6.08. Delivery of Offering Memorandum. The Company will furnish
to the Debt Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the Debt Warrant Securities (the "Offering
Memorandum"), and the Debt Warrant Agent agrees that, upon the exercise of any
Debt Warrant Certificate, the Debt Warrant Agent will deliver to the person
designated to receive Debt Warrant Securities, prior to or concurrently with the
delivery of such Securities, the Offering Memorandum.
Section 6.09. Obtaining of Governmental Approvals The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States federal and state
laws (including, without limitation, the maintenance of the effectiveness of a
registration statement in respect of the Debt Warrant Securities under the
Securities Act), which may be or become required in connection with the
Registration Rights Agreement, the exercise of the Debt Warrant Certificates or
the original issuance and delivery of the Debt Warrant Securities.
Section 6.10. Persons Having Rights Under Debt Warrant Agreement
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Debt
Warrant Agent and the Holders of the Debt Warrant Certificates any right, remedy
or claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement shall be for the sole
and exclusive benefit of the Company and the Debt Warrant Agent and their
successors and of the Holders of the Debt Warrant Certificates.
20
38
Section 6.11. Headings. The Article and Section headings herein and the
Table of Contents are for convenience of reference only and shall not affect the
construction hereof.
Section 6.12. Counterparts. This Agreement may be execute in any number
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 6.13. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Debt Warrant Agent for inspection by the Holder of any Debt Warrant
Certificate.
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39
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, and their respective corporate seal to be hereunto affixed and
attested, all as of the day and year first above written.
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust,
as Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[SEAL]
Attest:
---------------------------
STATE STREET BANK AND TRUST COMPANY
By:/s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[SEAL]
Attest:
/s/ Xxxx Xxxx
---------------------------
22
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ANNEX A
TRANSFEREE LETTER OF REPRESENTATION
(FOR 2007 NOTES AND WARRANTS IN CERTIFICATED FORM ONLY)
State Street Bank & Trust Company
Two International Place
Financial Services
Corporate Trust Department
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
In connection with the proposed transfer to us of [6.763% Notes due
2007] [Warrants to Purchase % Notes due 2008] (the "Securities") of EOP
Operating Limited Partnership (the "Company"), we confirm that:
1. We understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or
other applicable securities laws, and may not be offered, sold or
otherwise transferred except as permitted in the following sentence. We
agree on our behalf and on behalf of any investor account for which we
are purchasing Securities to offer, sell or otherwise transfer such
Securities prior to the date which is two years after the later of the
date of original issue thereof and the last date on which the Company
or any "affiliate" of the Company was the owner of such Securities (or
any predecessor thereto) (the "Resale Restriction Termination Date")
only (a) to the Company or any subsidiary thereof, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) so long as the Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act (a "QIB") that purchases for its own
account or for the account of a QIB to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) to an
institutional "accredited investor" (an "Institutional Accredited
Investor") within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 under the Securities Act that is acquiring the Securities
for its own account or for the account of such an Institutional
Accredited Investor for investment purposes and not with a view to, or
for offer and sale in connection with, any distribution in violation of
the Securities Act or (e) pursuant to any other available exemption
from the registration requirements under the Securities Act; it being
understood that prior to any such offer, sale or transfer (i) pursuant
to clause (e) above, the Company shall have the right to require the
delivery of an opinion of
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counsel, certifications and/or other information satisfactory to each
of them and (ii) pursuant to clause (d) above, the transferor shall
deliver to the [Trustee] [Warrant Agent] a letter from the transferee
substantially similar to this letter.
2. We are an Institutional Accredited Investor purchasing for
our own account or for the account of such an Institutional Accredited
Investor 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 or any other applicable securities laws and we have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investments in the
Securities, and we and any accounts 1for which we are acting are each
able to bear the economic risk of our or its investment for an
indefinite period.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion.
4. You and the Company are entitled to rely upon this letter
and you are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
________________________________
Name of Purchaser:
By:
Date:
The Securities will be registered in the name of the beneficial owner
as follows:
Name:
Address:
Taxpayer ID Number:
24
42
EXHIBIT A
[FORM OF DEBT WARRANT CERTIFICATE IN CERTIFICATED FORM]
EOP OPERATING LIMITED PARTNERSHIP
Debt Warrant Certificate representing
Debt Warrants to purchase
6.763% Notes due 2008
as described herein
------------------------
[FACE]
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NEITHER THIS
WARRANT NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERRED, 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 WARRANT WILL BE ISSUED AND UNTIL REGISTERED MAY
BE TRANSFERRED ONLY IN A MINIMUM BLOCK OF 100.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS WARRANT, 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 COMPANY OR ANY "AFFILIATE" OF THE COMPANY
WAS THE OWNER OF THIS WARRANT (OR ANY PREDECESSOR OF SUCH WARRANT), ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE WARRANTS ARE 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, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS WARRANT FOR ITS OWN ACOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," OR AS A 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
A-1
43
OF THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; IT BEING UNDERSTOOD THAT PRIOR
TO ANY OFFER, SALE OR TRANSFER OF THIS WARRANT PRIOR TO A RESALE RESTRICTION
TERMINATION DATE (i) PURSUANT TO CLAUSE (D) ABOVE, THE TRANSFEROR SHALL DELIVER
A LETTER SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE WARRANT AGREEMENT DATED AS
OF JUNE 15, 1998 FROM THE TRANSFEREE TO THE DEBT WARRANT AGENT AND (ii) PURSUANT
TO CLAUSE (E) ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
THE COMPANY. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINTION DATE.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL WARRANTS ISSUED
HEREUNDER.
EXERCISABLE ONLY IF AUTHENTICATED BY THE DEBT WARRANT
AGENT AS PROVIDED HEREIN
________________________
No. _________________Debt Warrants
This certifies that __________________ or registered assigns is
the registered owner (the "Holder") of the above indicated number of Debt
Warrants, each Debt Warrant entitling such Holder to purchase on the Exercise
Date (as hereinafter defined) $ _________ principal amount of 6.763% Notes due
2008 (the "Debt Warrant Securities"), a form of which is attached as Exhibit D
to the Warrant Agreement (as hereinafter defined), of EOP OPERATING LIMITED
PARTNERSHIP (the "Company"), representing $1,000 principal amount of Debt
Warrant Securities for each Debt Warrant, issued or to be issued under the
Indenture (as hereinafter defined), at the exercise price of 100% of the
principal amount of Debt Warrant Securities purchased (the "Exercise Price").
The "Exercise Date" means December 15, 1999 unless, in accordance
with the Warrant Agreement, dated as of June 15, 1998 (the "Warrant Agreement"),
between the Company and State Street Bank and Trust Company, as warrant agent
(including any successor thereto, the "Debt Warrant Agent"), the Company
notifies all Holders in writing at least five Business Days (as defined in the
Warrant Agreement) prior to December 15, 1999 that, based on an opinion of
counsel, it is aware of material non-public information with respect to the
Company, in which case the Company may postpone such date to January 18, 2000,
or, in each case, if such day is not a Business Day, the succeeding Business
Day.
A-2
44
The Holder of this Debt Warrant Certificate may exercise the Debt
Warrants evidenced hereby, in whole or in part, upon compliance with and subject
to the conditions set forth on the reverse hereof and in the Debt Warrant
Agreement.
Any whole number of Debt Warrants evidenced by this Debt Warrant
Certificate may be exercised to purchase Debt Warrant Securities in registered
form.
This Debt Warrant Certificate is issued under and in accordance
with the Debt Warrant Agreement and is subject to the terms and provisions
contained in the Debt Warrant Agreement, to all of which terms and provisions
the Holder of this Debt Warrant Certificate consents by acceptance hereof.
Copies of the Debt Warrant Agreement are on file at the corporate trust office
of the Debt Warrant Agent.
The Debt Warrant Securities to be issued and delivered upon the
exercise of Debt Warrants evidenced by this Debt Warrant Certificate will be
issued under and in accordance with an Indenture, dated as of September 2, 1997,
as supplemented by a Supplemental Indenture, dated as of February 9, 1998, and
as further supplemented from time to time (the "Indenture"), between the Company
and State Street Bank and Trust Company, as trustee (including any successors
thereto, the "Trustee") and will be subject to the terms and provisions
contained in the Indenture. Copies of the Indenture are on file at the corporate
trust office of the Trustee.
This Debt Warrant Certificate, and all rights hereunder, may be
when surrendered for transfer at the address specified on the reverse hereof by
the Holder, in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations contained on the reverse hereof and in the
Debt Warrant Agreement.
This Debt Warrant Certificate may be exchanged at the address
specified on the reverse hereof for Debt Warrant Certificates representing the
same aggregate number of Debt Warrants.
This Debt Warrant Certificate shall not entitle the Holder to any
of the rights of a holder of the Debt Warrant Securities, including, without
limitation, the right to receive payments of principal of (or premium, if any)
or interest on the Debt Warrant Securities or to enforce any of the covenants of
the Indenture.
Reference is hereby made to the further provisions of this Debt
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Debt Warrant Certificate shall not be valid or obligatory for
any purpose until authenticated by the Debt Warrant Agent.
A-3
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IN WITNESS WHEREOF, the Company has caused this Debt Warrant
Certificate to be duly executed under its corporate seal.
Dated:
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust,
as Managing General Partner
By:_______________________________________
Name:
Title:
Attest:
_______________________
Authenticated:
STATE STREET BANK AND TRUST COMPANY,
as Debt Warrant Agent
By:
____________________________________
Authorized Signatory
A-4
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[REVERSE]
To exercise any Debt Warrants evidenced by this Debt Warrant
Certificate, the Holder must (i) deliver an Exercise Notice prior to the close
of business on the third Business Day preceding the Exercise Date (the
"Determination Date"), which Exercise Notice shall be substantially in the form
of Exhibit C to the Warrant Agreement, (ii) pay, by certified check or official
bank check, on or prior to the Exercise Date, the Exercise Price for each of the
Debt Warrants exercised to the Debt Warrant Agent, at its corporate trust
office, initially located at Two International Place, Financial Services,
Corporate Trust Department, Xxxxxx, Xxxxxxxxxxxxx 00000, or at its corporate
trust window, initially located at 00 Xxxxxxxx, Xxxxxxxxx xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, which payment should specify the name of the Holder of this Debt
Warrant Certificate and the number of Debt Warrants exercised by such Holder and
(iii) deliver this Debt Warrant Certificate to the Debt Warrant Agent at either
of the addresses specified above on or prior to the Exercise Date. After the
close of business on the Determination Date, unexercised Debt Warrants shall
become void.
At any time when the Company is not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, upon the request of a
Holder, the Company will promptly furnish or cause to be furnished the
information specified in Rule 144A(d)(4) to such Holder, or to a prospective
purchaser of any Debt Warrant 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 or other transfer of any such Debt Warrant.
A-5
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ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Debt Warrant, fill in the form below:
(I) or (we) assign and transfer this Debt Warrant to
------------------------------------------------------------------------------------------------------------------
(Insert assignee's social security 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 Debt Warrant)
Date:
--------------------------------------------------------------
Signature Guarantee:*
----------------------------------------------
In connection with any transfer of any of the Debt Warrants evidenced
by this Debt Warrant 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
Debt Warrants and the last date, if any, on which such Debt Warrants were owned
by the Company or any affiliate of the Company, the undersigned confirms that
this Debt Warrant Certificate is being transferred:
CHECK ONE BOX BELOW
(1) - to the Company or a subsidiary thereof; or
(2) - to a "qualified institutional buyer" pursuant to and in
compliance with Rule 144A under the Securities Act; or
(3) - to an institutional "accredited investor" within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 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 Debt Warrant Agent will refuse
to register this Debt Warrant Certificate in the name of any person other than
the Holder hereof; provided, however, that (i) if box (3) is checked, the
transferee shall deliver a letter in the form of Annex A to the Debt Warrant
Agreement to the Debt Warrant Agent and (ii) if box (5) is checked, the Company
may require, prior to registering any transfer of this Debt Warrant Certificate,
such certifications, legal opinions and/or other information as the Company has
reasonably requested to confirm that
--------------
* Signature must be guaranteed by a commercial bank, trust company or member
firm or a major stock exchange
A-6
48
such transfer is being made pursuant to the exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act.
A-7
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EXHIBIT B
[FORM OF GLOBAL DEBT WARRANT CERTIFICATE]
EOP OPERATING LIMITED PARTNERSHIP
Global Debt Warrant Certificate representing
Debt Warrants to purchase
6.763% Notes due 2008
as described herein
------------------------
[FACE]
UNLESS THIS WARRANT 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 WARRANT 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 WARRANT IS EXCHANGED IN WHOLE OR IN PART FOR WARRANTS IN A
CERTIFICATED FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC
TO A NOMINEE OF DTC OR BY DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NEITHER THIS
WARRANT NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERRED, 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 WARRANT WILL BE ISSUED AND UNTIL REGISTERED MAY
BE TRANSFERRED ONLY IN A MINIMUM BLOCK OF 100.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS WARRANT, 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 COMPANY OR ANY "AFFILIATE" OF THE COMPANY
WAS THE OWNER
B-1
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OF THIS WARRANT (OR ANY PREDECESSOR OF SUCH WARRANT), ONLY (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE WARRANTS ARE
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, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THIS WARRANT FOR ITS OWN ACOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," OR AS A 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, OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINTION DATE.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL WARRANTS ISSUED
HEREUNDER.
EXERCISABLE ONLY IF AUTHENTICATED BY THE DEBT WARRANT
AGENT AS PROVIDED HEREIN
___________________
No. __________________Debt Warrants
This certifies that CEDE & CO. or registered assigns is the
registered owner (the "Holder") of the above indicated number of Debt Warrants,
each Debt Warrant entitling such Holder to purchase on the Exercise Date (as
hereinafter defined) $ _________ principal amount of 6.763% Notes due 2008 (the
"Debt Warrant Securities"), a form of which is attached as Exhibit D to the
Warrant Agreement (as hereinafter defined), of EOP OPERATING LIMITED PARTNERSHIP
(the "Company"), representing $1,000 principal amount of Debt Warrant Securities
for each Debt Warrant, issued or to be issued under the Indenture (as
hereinafter defined), at the exercise price of 100% of the principal amount of
Debt Warrant Securities purchased (the "Exercise Price").
B-2
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The "Exercise Date" means December 15, 1999 unless, in accordance
with the Warrant Agreement, dated as of June 15, 1998 (the "Warrant Agreement"),
between the Company and State Street Bank and Trust Company, as warrant agent
(including any successor thereto, the "Debt Warrant Agent"), the Company
notifies all Holders in writing at least five Business Days (as defined in the
Warrant Agreement) prior to December 15, 1999 that, based on an opinion of
counsel, it is aware of material non-public information with respect to the
Company, in which case the Company may postpone such date to January 18, 2000,
or, in each case, if such day is not a Business Day, the succeeding Business
Day.
The Holder of this Debt Warrant Certificate may exercise the Debt
Warrants evidenced hereby, in whole or in part, upon compliance with and subject
to the conditions set forth on the reverse hereof and in the Debt Warrant
Agreement.
Any whole number of Debt Warrants evidenced by this Debt Warrant
Certificate may be exercised to purchase Debt Warrant Securities in registered
form.
This Debt Warrant Certificate is issued under and in accordance
with the Debt Warrant Agreement and is subject to the terms and provisions
contained in the Debt Warrant Agreement, to all of which terms and provisions
the Holder of this Debt Warrant Certificate consents by acceptance hereof.
Copies of the Debt Warrant Agreement are on file at the corporate trust office
of the Debt Warrant Agent.
The Debt Warrant Securities to be issued and delivered upon the
exercise of Debt Warrants evidenced by this Debt Warrant Certificate will be
issued under and in accordance with an Indenture, dated as of September 2, 1997,
as supplemented by a Supplemental Indenture, dated as of February 9, 1998, and
as further supplemented from time to time (the "Indenture"), between the Company
and State Street Bank and Trust Company, as trustee (including any successors
thereto, the "Trustee") and will be subject to the terms and provisions
contained on the reverse hereof and in the Indenture. Copies of the Indenture
are on file at the corporate trust office of the Trustee.
This Debt Warrant Certificate, and all rights hereunder, may be
when surrendered for transfer at the address specified on the reverse hereof by
the Holder, in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations contained in the Debt Warrant Agreement.
This Debt Warrant Certificate may be exchanged at the address
specified on the reverse hereof for Debt Warrant Certificates representing the
same aggregate number of Debt Warrants.
This Debt Warrant Certificate shall not entitle the Holder to any
of the rights of a holder of the Debt Warrant Securities, including, without
limitation, the right to receive payments of principal of (or premium, if any)
or interest on the Debt Warrant Securities or to enforce any of the covenants of
the Indenture.
B-3
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Reference is hereby made to the further provisions of this Debt
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Debt Warrant Certificate shall not be valid or obligatory for
any purpose until authenticated by the Debt Warrant Agent.
B-4
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IN WITNESS WHEREOF, the Company has caused this Debt Warrant
Certificate to be duly executed under its corporate seal.
Dated:
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust,
as Managing General Partner
By:__________________________________________
Name:
Title:
Attest:
_______________________________
Authenticated:
STATE STREET BANK AND TRUST COMPANY,
as Debt Warrant Agent
By
________________________________________
Authorized Signatory
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54
[REVERSE]
To exercise any Debt Warrants evidenced by this Debt Warrant
Certificate, the Holder must (i) deliver an Exercise Notice prior to the close
of business on the third Business Day preceding the Exercise Date (the
"Determination Date"), which Exercise Notice shall be substantially in the form
of Exhibit C to the Warrant Agreement, (ii) pay, by certified check or official
bank check, on or prior to the Exercise Date, the Exercise Price for each of the
Debt Warrants exercised to the Debt Warrant Agent, at its corporate trust
office, initially located at Two International Place, Financial Services,
Corporate Trust Department, Xxxxxx, Xxxxxxxxxxxxx 00000, or at its corporate
trust window, initially located at 00 Xxxxxxxx, Xxxxxxxxx xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, which payment should specify the name of the Holder of this Debt
Warrant Certificate and the number of Debt Warrants exercised by such Holder and
(iii) deliver this Debt Warrant Certificate to the Debt Warrant Agent at either
of the addresses specified above on or prior to the Exercise Date. After the
close of business on the Determination Date, unexercised Debt Warrants shall
become void.
At any time when the Company is not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, upon the request of a
Holder, the Company will promptly furnish or cause to be furnished the
information specified in Rule 144A(d)(4) to such Holder, or to a prospective
purchaser of any Debt Warrant 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 or other transfer of any such Debt Warrant.
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55
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Debt Warrant, fill in the form below:
(II) or (we) assign and transfer this Debt Warrant to
-------------------------------------------------------------------------------------------------------------------
(Insert assignee's social security 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 Debt Warrant)
Date:
------------------------------------------------------------
Signature Guarantee:*
-------------------------------------------
In connection with any transfer of any of the Debt Warrants evidenced
by this Debt Warrant 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
Debt Warrants and the last date, if any, on which such Debt Warrants were owned
by the Company or any affiliate of the Company, the undersigned confirms that
this Debt Warrant Certificate is being transferred:
CHECK ONE BOX BELOW
(1) - to the Company or a subsidiary thereof; or
(2) - to a "qualified institutional buyer"
pursuant to and in compliance with Rule 144A under
the Securities Act; or
(3) - to an institutional "accredited investor"
within the meaning of subparagraph (a)(1), (2), (3)
or (7) of Rule 501 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 Debt Warrant Agent will refuse
to register this Debt Warrant Certificate in the name of any person other than
the Holder hereof; provided, however, that (i) if box (3) is checked, the
transferee shall deliver a letter in the form of Annex A to the Debt Warrant
Agreement to the Debt Warrant Agent and (ii) if box (5) is checked, the Company
may require, prior to registering any transfer of this Debt Warrant Certificate,
--------------
* Signature must be guaranteed by a commercial bank, trust company or member
firm or a major stock exchange
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56
such certifications, legal opinions and/or other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to the
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
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57
EXHIBIT C
[FORM OF EXERCISE NOTICE]
The undersigned Holder hereby elects to exercise
__________________ Debt Warrants, represented by Debt Warrant Certificate No.
_____, to purchase $_________ principal amount of the 6.763% Notes due 2008 (the
"Debt Warrant Securities") of EOP OPERATING LIMITED PARTNERSHIP (the "Company").
The undersigned Holder requests that said principal amount of Debt Warrant
Securities be in fully registered form, in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below.
The foregoing election shall be irrevocable, except that after a
postponement of the date of the exercise of the Debt Warrants under the
conditions specified in the Warrant Agreement, dated as of June 15, 1998,
between the Company and State Street Bank and Trust Company, such election shall
be null and void. Accordingly, after such postponement, the undersigned Holder
must make another election in order to exercise the Debt Warrants.
Dated: _________
_______________________________________ _________________________
(Insert Social Security or Other Name:
Identifying Number of Holder) Address:
(Instructions as to form and delivery of Debt Warrant Securities):
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58
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Debt Warrant, fill in the form below:
(III) or (we) assign and transfer this Debt Warrant to
-------------------------------------------------------------------------------------------------------------------------
(Insert assignee's social security 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 Debt Warrant)
Date:
--------------------------------------------------
Signature Guarantee:*
---------------------------------
In connection with any transfer of any of the Debt Warrants evidenced
by this Debt Warrant 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
Debt Warrants and the last date, if any, on which such Debt Warrants were owned
by the Company or any affiliate of the Company, the undersigned confirms that
this Debt Warrant Certificate is being transferred:
CHECK ONE BOX BELOW
(1) - to the Company or a subsidiary thereof; or
(2) - to a "qualified institutional buyer" pursuant to and in
compliance with Rule 144A under the Securities Act; or
(3) - to an institutional "accredited investor" within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 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 Debt Warrant Agent will refuse
to register this Debt Warrant Certificate in the name of any person other than
the Holder hereof; provided, however, that (i) if box (3) is checked, the
transferee shall deliver a letter in the form of Annex A to the Debt Warrant
Agreement to the Debt Warrant Agent and (ii) if box (5) is checked, the Company
may require, prior to registering any transfer of this Debt Warrant Certificate,
such certifications, legal opinions and/or other information as the Company has
reasonably requested to confirm that
--------------
* Signature must be guaranteed by a commercial bank, trust company or
member firm or a major stock exchange
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59
such transfer is being made pursuant to the exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act.
C-3