<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
For the fiscal year ended DECEMBER 31, 1999
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission File Number: 1-13115
EQUITY OFFICE PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 36-4151656
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
TWO NORTH RIVERSIDE PLAZA, 60606
SUITE 2100, CHICAGO, ILLINOIS (Zip Code)
(Address of principal executive offices)
</TABLE>
(312) 466-3300
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<S> <C>
Title of each class Name of each exchange on which registered
Common Shares of Beneficial Interest, New York Stock Exchange
$.01 par value per share ("Common Shares")
8.98% Series A Cumulative Redeemable Preferred New York Stock Exchange
Shares of Beneficial Interest,
liquidation preference $25.00 per share
5.25% Series B Convertible, Cumulative New York Stock Exchange
Redeemable Preferred Shares of Beneficial Interest,
liquidation preference $50.00 per share
8.625% Series C Cumulative Redeemable Preferred New York Stock Exchange
Shares of Beneficial Interest,
liquidation preference $25.00 per share
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
(None)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (of for such shorter period that the
registrant was required to file such report), and (2) has been subject to such
filing requirements for the past 90 days. [X] Yes [ ] No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the Common Shares held by non-affiliates of
the registrant as of March 1, 2000 was $5,873,438,850.
On March 1, 2000, 247,941,710 of the registrant's Common Shares were
outstanding.
<PAGE> 2
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's proxy statement for the annual shareholders'
meeting to be held in 2000 are incorporated by reference into Part III.
2
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS OF FORM 8-K
(a)(3) Exhibits:
Item 14(a)(3) is amended to renumber Exhibit 3.6 as Exhibit
3.6.1 and add Exhibits 3.6.2 and 3.6.3 and to renumber
Exhibit 10.1 as 10.1.1 and add Exhibits 10.1.2 through
10.1.6 as set forth below:
Exhibit No. Exhibit Description
----------- -------------------
2.1 Agreement and Plan of Merger, dated as of February
11, 2000, among the Company, the Operating
Partnership, Cornerstone Properties Inc. and
Cornerstone Properties Limited Partnership
(incorporated herein by reference to Exhibit 2.1
to the Company's Current Report on Form 8-K dated
February 11, 2000)
3.1 Articles of Amendment and Restatement of
Declaration of Trust of the Company (incorporated
herein by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-11
(Reg. No. 333-26629))
3.2* Articles Supplementary of the Company, dated
December 15, 1997 and filed with the Maryland
State Department of Assessments and Taxation on
December 17, 1997
3.3* Articles Supplementary of the Company, dated
February 18, 1998 and filed with the Maryland
State Department of Assessments and Taxation on
February 19, 1998
3.4 Articles Supplementary of the Company, dated
December 1, 1998 as filed with the Maryland State
Department of Assessments and Taxation on December
4, 1998 (incorporated herein by reference to
Exhibit 4.3 of the Company's Registration
Statement on Form 8-A dated December 1, 1998)
3.5** Articles Supplementary of the Company, dated
February 28, 2000 and filed with the Maryland
State Department of Assessments and Taxation on
March 17, 2000
3.6.1 Bylaws of the Company (incorporated herein by
reference to Exhibit 3.2 of the Company's Current
Report on Form 8-K filed with the SEC on
September 30, 1998)
3.6.2+ Amendment Nos. 3 and 4 to the Bylaws of the
Company
3.6.3+ Amended Bylaws of the Company
4.1* Indenture, dated as of September 2, 1997, between
the Operating Partnership and State Street Bank
and Trust Company
4.2* First Supplemental Indenture, dated as of February
9, 1998, between the Operating Partnership and
State Street Bank and Trust Company
4.3 Form of 6.375% Note due 2003 (incorporated herein
by reference to Exhibit 4.4 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-47347))
4.4 Form of 6.625% Note due 2005 (incorporated herein
by reference to Exhibit 4.5 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-47347))
4.5 Form of 6.750% Note due 2008 (incorporated herein
by reference to Exhibit 4.6 of the Operating
Partnership's Registration Statement of
3
<PAGE> 4
Form S-4 (Reg. No. 333-47347))
4.6 Form of 7.250% Note due 2018 (incorporated herein
by reference to Exhibit 4.7 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-47347))
4.7 Form of 6.376% Mandatory Par Put Remarketed
Securities due 2012 (incorporated herein by
reference to Exhibit 4.8 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-47347))
4.8 $30,000,000 7.24% Senior Note due 2004
(incorporated herein by reference to Exhibit 4.9
of the Operating Partnership's Registration
Statement on Form S-4 (Reg. No. 333-47347))
4.9 $50,000,000 7.36% Senior Note due 2005
(incorporated herein by reference to Exhibit 4.10
of the Operating Partnership's Registration
Statement on Form S-4 (Reg. No. 333-47347))
4.10 $50,000,000 7.44% Senior Note due 2006
(incorporated herein by reference to Exhibit 4.11
to the Operating Partnership's Registration
Statement on Form S-4 (Reg. No. 333-47347))
4.11 $50,000,000 7.41% Senior Note due 2007
(incorporated herein by reference to Exhibit 4.12
to the Operating Partnership's Registration
Statement on Form S-4 (Reg. No. 333-47347))
4.12 Form of 6.50% Notes due 2004 (incorporated herein
by reference to Exhibit 4.3 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-61469))
4.13 Form of 6.763% Notes due 2007 (incorporated herein
by reference to Exhibit 4.4 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-61469))
4.14 Form of 7.25% Notes due 2028 (incorporated herein
by reference to Exhibit 4.5 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-61469))
4.15 Form of 6.375% Notes due 2002 (incorporated herein
by reference to Exhibit 4.1 of the Operating
Partnership's Current Report on Form 8-K filed
with the SEC on January 25, 1999)
4.16 Form of 6.5% Notes due 2004 (incorporated herein
by reference to Exhibit 4.2 of the Operating
Partnership's Current Report on Form 8-K filed
with the SEC on January 25, 1999)
4.17 Form of 6.8% Notes due 2009 (incorporated herein
by reference to Exhibit 4.3 of the Operating
Partnership's Current Report on Form 8-K filed
with the SEC on January 25, 1999)
4.18 Form of 7.5% Notes due April 19, 2029
(incorporated herein by reference to Exhibit 4.23
of the Operating Partnership's Current Report on
Form 8-K filed with the SEC on April 19, 1999)
4.19 Form of $400,000,000 8.375% Note due March 15,
2006 (incorporated herein by reference to Exhibit
4.25 of the Operating
4
<PAGE> 5
Partnership's Form 8-K dated March 24, 2000)
4.20 Form of $100,000,000 8.375% Note due March 15,
2006 (incorporated herein by reference to Exhibit
4.26 of the Operating Partnership's Form 8-K dated
March 24, 2000)
4.21** First Amendment to Second Amended and Restated
Revolving Credit Agreement
4.22** Fixed Rate Promissory Note with The Chase
Manhattan Bank
4.23** Second Amended and Restated Revolving Credit
Facility $1 Billion Revolving Credit Facility
dated as of May 29, 1998
10.1.1* Agreement of Limited Partnership of the Operating
Partnership, dated as of July 3, 1997, as amended
10.1.2+ Fifth Amendment to Agreement of Limited
Partnership of EOP Operating Limited Partnership
10.1.3+ Amendment to Agreement of Limited Partnership of
EOP Operating Limited Partnership
10.1.4+ Seventh Amendment to Agreement of Limited
Partnership of EOP Operating Limited Partnership
10.1.5+ Eighth Amendment to Agreement of Limited
Partnership of EOP Operating Limited Partnership
10.1.6+ Tenth Amendment to Agreement of Limited
Partnership of EOP Operating Limited Partnership
10.2* Registration Rights Agreement, dated as of July
11, 1997, among the Company and the persons named
therein
10.3* Noncompetition Agreement between the Company and
Samuel Zell
10.4* Each member of the Company's Board of Trustees and
each Executive Officer of the Company has entered
into an Indemnification Agreement with the
Company. These Indemnification Agreements are
identical in all material respects. The schedule
below sets for the terms of each Indemnification
Agreement not filed which differ from the copy of
the example Indemnification Agreement (between the
Company and Samuel Zell, dated as of October 9,
1996), which is filed as Exhibit 10.6 to the
Company's Annual Report on Form 10-K for the year
ended December 31, 1997, as amended:
Name Date as of
---- ----------
Timothy H. Callahan 10/9/96
Richard D. Kincaid 3/14/97
Sheli Z. Rosenberg 3/12/97
Thomas E. Dobrowski 7/11/97
James D. Harper, Jr. 7/11/97
Jerry M. Reinsdorf 7/11/97
William M. Goodyear 7/11/97
5
<PAGE> 6
David K. McKown 7/11/97
H. Jon Runstad 12/18/97
Edwin N. Sidman 12/24/97
D.J. Andre de Bock 5/15/98
Michael A. Steele 10/9/96
Stanley M. Stevens 10/9/96
10.5 Stock Option Agreement by and among Cornerstone
Properties Inc., the Company, Deutsche Bank AG and
Deutscher Herold Lebensversicherungs-AG dated as
of February 11, 2000 (incorporated herein by
reference to Exhibit 10.1 to the Company's Current
Report on Form 8-K dated February 11, 2000)
10.9** Equity Office Supplemental Retirement Savings
Plan, including the first and second amendment
12.1** Statement Regarding Computation of Ratios
21.1** List of Subsidiaries
23.1** Consent of Independent Auditors
24.1** Power of Attorney (included in signature page)
27.1** Financial Data Schedule
99.1** Equity Office Properties Trust 1997 Non-Qualified
Employee Share Purchase Plan Financial Statements
as of and for the years ended December 31, 1999
and 1998
* Incorporated herein by reference to the same-numbered exhibit to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended
** Previously filed
+ Filed herewith
6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, the Registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized,
in Chicago, Illinois, as of the 11th day of May, 2000.
EQUITY OFFICE PROPERTIES TRUST
By: /s/ STANLEY M. STEVENS
-----------------------------------
Stanley M. Stevens
Executive Vice President, Chief
Legal Counsel and Secretary
7
<PAGE> 8
EXHIBIT INDEX
Exhibit No. Exhibit Description
---------- -------------------
2.1 Agreement and Plan of Merger, dated as of February
11, 2000, among the Company, the Operating
Partnership, Cornerstone Properties Inc. and
Cornerstone Properties Limited Partnership
(incorporated herein by reference to Exhibit 2.1
to the Company's Current Report on Form 8-K dated
February 11, 2000)
3.1 Articles of Amendment and Restatement of
Declaration of Trust of the Company (incorporated
herein by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-11
(Reg. No. 333-26629))
3.2* Articles Supplementary of the Company, dated
December 15, 1997 and filed with the Maryland
State Department of Assessments and Taxation on
December 17, 1997
3.3* Articles Supplementary of the Company, dated
February 18, 1998 and filed with the Maryland
State Department of Assessments and Taxation on
February 19, 1998
3.4 Articles Supplementary of the Company, dated
December 1, 1998 as filed with the Maryland State
Department of Assessments and Taxation on December
4, 1998 (incorporated herein by reference to
Exhibit 4.3 of the Company's Registration
Statement on Form 8-A dated December 1, 1998)
3.5** Articles Supplementary of the Company, dated
February 28, 2000 and filed with the Maryland
State Department of Assessments and Taxation on
March 17, 2000
3.6.1 Bylaws of the Company (incorporated herein by
reference to Exhibit 3.2 of the Company's Current
Report on Form 8-K filed with the SEC on
September 30, 1998)
3.6.2+ Amendment Nos. 3 and 4 to the Bylaws of the
Company
3.6.3+ Amended Bylaws of the Company
4.1* Indenture, dated as of September 2, 1997, between
the Operating Partnership and State Street Bank
and Trust Company
4.2* First Supplemental Indenture, dated as of February
9, 1998, between the Operating Partnership and
State Street Bank and Trust Company
4.3 Form of 6.375% Note due 2003 (incorporated herein
by reference to Exhibit 4.4 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-47347))
4.4 Form of 6.625% Note due 2005 (incorporated herein
by reference to Exhibit 4.5 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-47347))
4.5 Form of 6.750% Note due 2008 (incorporated herein
by reference to Exhibit 4.6 of the Operating
Partnership's Registration Statement of Form S-4
(Reg. No. 333-47347))
4.6 Form of 7.250% Note due 2018 (incorporated herein
by reference to Exhibit 4.7 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-47347))
4.7 Form of 6.376% Mandatory Par Put Remarketed
Securities due 2012
8
<PAGE> 9
(incorporated herein by reference to Exhibit 4.8
of the Operating Partnership's Registration
Statement on Form S-4 (Reg. No. 333-47347))
4.8 $30,000,000 7.24% Senior Note due 2004
(incorporated herein by reference to Exhibit 4.9
of the Operating Partnership's Registration
Statement on Form S-4 (Reg. No. 333-47347))
4.9 $50,000,000 7.36% Senior Note due 2005
(incorporated herein by reference to Exhibit 4.10
of the Operating Partnership's Registration
Statement on Form S-4 (Reg. No. 333-47347))
4.10 $50,000,000 7.44% Senior Note due 2006
(incorporated herein by reference to Exhibit 4.11
to the Operating Partnership's Registration
Statement on Form S-4 (Reg. No. 333-47347))
4.11 $50,000,000 7.41% Senior Note due 2007
(incorporated herein by reference to Exhibit 4.12
to the Operating Partnership's Registration
Statement on Form S-4 (Reg. No. 333-47347))
4.12 Form of 6.50% Notes due 2004 (incorporated herein
by reference to Exhibit 4.3 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-61469))
4.13 Form of 6.763% Notes due 2007 (incorporated herein
by reference to Exhibit 4.4 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-61469))
4.14 Form of 7.25% Notes due 2028 (incorporated herein
by reference to Exhibit 4.5 of the Operating
Partnership's Registration Statement on Form S-4
(Reg. No. 333-61469))
4.15 Form of 6.375% Notes due 2002 (incorporated herein
by reference to Exhibit 4.1 of the Operating
Partnership's Current Report on Form 8-K filed
with the SEC on January 25, 1999)
4.16 Form of 6.5% Notes due 2004 (incorporated herein
by reference to Exhibit 4.2 of the Operating
Partnership's Current Report on Form 8-K filed
with the SEC on January 25, 1999)
4.17 Form of 6.8% Notes due 2009 (incorporated herein
by reference to Exhibit 4.3 of the Operating
Partnership's Current Report on Form 8-K filed
with the SEC on January 25, 1999)
4.18 Form of 7.5% Notes due April 19, 2029
(incorporated herein by reference to Exhibit 4.23
of the Operating Partnership's Current Report on
Form 8-K filed with the SEC on April 19, 1999)
4.19 Form of $400,000,000 8.375% Note due March 15,
2006 (incorporated herein by reference to Exhibit
4.25 of the Operating Partnership's Form 8-K dated
March 24, 2000)
4.20 Form of $100,000,000 8.375% Note due March 15,
2006 (incorporated herein by reference to Exhibit
4.26 of the Operating Partnership's Form 8-K dated
March 24, 2000)
4.21** First Amendment to Second Amended and Restated
Revolving Credit
9
<PAGE> 10
Agreement
4.22** Fixed Rate Promissory Note with The Chase
Manhattan Bank
4.23** Second Amended and Restated Revolving Credit
Facility $1 Billion Revolving Credit Facility
dated as of May 29, 1998
10.1.1* Agreement of Limited Partnership of the Operating
Partnership, dated as of July 3, 1997, as amended
10.1.2+ Fifth Amendment to Agreement of Limited
Partnership of EOP Operating Limited Partnership
10.1.3+ Amendment to Agreement of Limited Partnership of
EOP Operating Limited Partnership
10.1.4+ Seventh Amendment to Agreement of Limited
Partnership of EOP Operating Limited Partnership
10.1.5+ Eighth Amendment to Agreement of Limited
Partnership of EOP Operating Limited Partnership
10.1.6+ Tenth Amendment to Agreement of Limited
Partnership of EOP Operating Limited Partnership
10.2* Registration Rights Agreement, dated as of July
11, 1997, among the Company and the persons named
therein
10.3* Noncompetition Agreement between the Company and
Samuel Zell
10.4* Each member of the Company's Board of Trustees and
each Executive Officer of the Company has entered
into an Indemnification Agreement with the
Company. These Indemnification Agreements are
identical in all material respects. The schedule
below sets for the terms of each Indemnification
Agreement not filed which differ from the copy of
the example Indemnification Agreement (between the
Company and Samuel Zell, dated as of October 9,
1996), which is filed as Exhibit 10.6 to the
Company's Annual Report on Form 10-K for the year
ended December 31, 1997, as amended:
Name Date as of
---- ----------
Timothy H. Callahan 10/9/96
Richard D. Kincaid 3/14/97
Sheli Z. Rosenberg 3/12/97
Thomas E. Dobrowski 7/11/97
James D. Harper, Jr. 7/11/97
Jerry M. Reinsdorf 7/11/97
William M. Goodyear 7/11/97
David K. McKown 7/11/97
H. Jon Runstad 12/18/97
Edwin N. Sidman 12/24/97
D.J. Andre de Bock 5/15/98
Michael A. Steele 10/9/96
Stanley M. Stevens 10/9/96
10.5 Stock Option Agreement by and among Cornerstone
Properties Inc., the
10
<PAGE> 11
Company, Deutsche Bank AG and Deutscher Herold
Lebensversicherungs-AG dated as of February 11,
2000 (incorporated herein by reference to Exhibit
10.1 to the Company's Current Report on Form 8-K
dated February 11, 2000)
10.9** Equity Office Supplemental Retirement Savings
Plan, including the first and second amendment
12.1** Statement Regarding Computation of Ratios
21.1** List of Subsidiaries
23.1** Consent of Independent Auditors
24.1** Power of Attorney (included in signature page of
Form 10-K)
27.1** Financial Data Schedule
99.1** Equity Office Properties Trust 1997 Non-Qualified
Employee Share Purchase Plan Financial Statements
as of and for the years ended December 31, 1999
and 1998
* Incorporated herein by reference to the same-numbered exhibit to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended
** Previously filed
+ Filed herewith
11
<PAGE> 1
EXHIBIT 3.6.2
AMENDMENT NO. 3 TO THE BYLAWS OF
EQUITY OFFICE PROPERTIES TRUST
EFFECTIVE JULY 14, 1999
This will confirm that, effective as of July 14, 1999, the Bylaws of
Equity Office Properties Trust have been amended in order to add Section 11 as
follows:
SECTION 11. COMMITTEE ON TRUST GOVERNANCE. The Committee on Trust
Governance shall be composed of not less than three Trustees. The Committee on
Trust Governance shall be authorized to (i) study, and review with management,
the overall effectiveness of the organization of the Board of Trustees and the
conduct of its business, and make appropriate recommendations to the Trustees
with regard thereto; (ii) review the appropriateness and adequacy of information
supplied to the Trustees prior to and during Board of Trustee meetings of the
Trustees; (iii) develop, submit to the Trustees for their approval and
thereafter monitor implementation of Guidelines on Trust Governance Issues in
respect to the operation of the Board of Trustees and propose to the Trustees
for their approval from time to time such revisions therein as the Committee on
Trust Governance deems to be appropriate; (iv) develop and maintain criteria and
procedures for the identification and recruitment or retention of candidates for
election or reelection to serve as Trustees of the Trust, including
consideration of the performance of incumbent Trustees in determining whether to
nominate them for reelection; and (v) recommend to the Trustees, with the advice
of the Chairman and the President and Chief Executive Officer of the Trust,
nominees for election or reelection as Trustees. The Chairman of the Board as
well as the President and Chief Executive Officer shall be ex-officio members of
the Committee on Trust Governance.
/s/ STANLEY M. STEVENS
--------------------------------
Secretary
<PAGE> 2
AMENDMENT NO. 4 TO THE BYLAWS OF
EQUITY OFFICE PROPERTIES TRUST
EFFECTIVE SEPTEMBER 27, 1999
This will confirm that, effective as of September 27, 1999, Sections 8.2
and 8.3 of the Bylaws of Equity Office Properties Trust have been amended and
restated in its entirety as follows:
8.2 The Special Conflicts Committee shall have the power to consider
and, in each case where the transaction obligates or is expected to obligate the
Trust in an amount not greater than Fifty Million Dollars ($50,000,000), to
approve any transaction in which the Trust is or is proposed to be a party and
as to which any Trustee knows at the time of commitment that any of the
following persons either is or is entitled to be a party, whether directly or
indirectly, to the transaction or has a sufficiently material beneficial
interest that the interest might reasonably be expected to exert an influence on
the Trustee's judgment if he were called upon to vote on the transaction: (a)
any Trustee or any Related Person of any Trustee; (b) any person (other than the
Trust) of which the Trustee is the owner of more than 5% of any class of equity
securities or is a director, trustee, general partner, agent or employee; (c)
any person that controls one or more of the persons specified in clause (b) or a
person that is controlled by, or is under common control with, one or more of
the persons specified in clause (b); or (d) an individual who is a general
partner, principal or employer of the Trustee.
8.3 Any Trustee who knows of a transaction covered by Section 8.2
shall immediately notify and provide all material information about the
transaction to the Special Conflicts Committee, which shall thereafter promptly
consider the transaction. The Board of Trustees, any Trustee or any officer of
the Trust may notify the Special Conflicts Committee about any transaction that
it has reason to believe is covered by Section 8.2 and, upon request, such
Trustee shall provide to the Special Conflicts Committee all relevant
information known or in the control of the referring person. Upon receipt of
notice pursuant to this paragraph, the Special Conflicts Committee shall notify
the Chairman of the Board and the Secretary of the Trust in order that the Board
of Trustees which, absent the Board's determination that such notice was
improper, shall take no further action with respect to the transaction unless
and until approved, ratified or recommended to the Board by the Special
Conflicts Committee. The Trust shall not enter into such transaction without the
approval, ratification or recommendation of the Special Conflicts Committee
acting by unanimous written consent or by the affirmative vote of a majority of
its members present and voting at any meeting thereof (excluding any members
disqualified pursuant to Section 8.4). Nothing in this Section 8 shall require
approval of fees or other compensation to Independent Trustees for their service
as Trustees.
/s/ STANLEY M. STEVENS
--------------------------------
Secretary
<PAGE> 1
EXHIBIT 3.6.3
EQUITY OFFICE PROPERTIES TRUST
AMENDED BYLAWS
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of Equity Office
Properties Trust (the "Trust") shall be located at such place or places as the
Trustees may designate.
Section 2. ADDITIONAL OFFICES. The Trust may have additional offices at
such places as the Trustees may from time to time determine or the business of
the Trust may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE. All meetings of shareholders shall be held at the
principal office of the Trust or at such other place within the United States as
shall be stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the shareholders for the
election of Trustees and the transaction of any business within the powers of
the Trust shall be held during the month of May of each year, after the delivery
of the annual report referred to in Section 12 of this Article II, at a
convenient location and on proper notice, on a date and at the time set by the
Trustees, beginning with the year 1998. Failure to hold an annual meeting does
not invalidate the Trust's existence or affect any otherwise valid acts of the
Trust.
Section 3. SPECIAL MEETINGS. The chairman of the board or the president
or one-third of the Trustees may call special meetings of the shareholders.
Special meetings of shareholders shall also be called by the secretary upon the
written request of the holders of shares entitled to cast not less than a
majority of all the votes entitled to be cast at such meeting. Such request
shall state the purpose of such meeting and the matters proposed to be acted on
at such meeting. Within ten (10) days of the receipt of such a request, the
secretary shall inform such shareholders of the reasonably estimated cost of
preparing and mailing notice of the meeting (including all proxy materials that
may be required in connection therewith) and, upon payment by such shareholders
to the Trust of such costs, the secretary shall, within thirty (30) days of such
payment, or such longer period as may be necessitated by compliance with any
applicable statutory or regulatory requirements, give notice to each shareholder
entitled to notice of the meeting.
Unless requested by shareholders entitled to cast a majority of all the
votes entitled to be cast at such meeting, a special meeting need not be called
to consider any matter
<PAGE> 2
which is substantially the same as a matter voted on at any meeting of the
shareholders held during the preceding twelve months.
Section 4. NOTICE. Not less than ten nor more than 90 days before each
meeting of shareholders, the secretary shall give to each shareholder entitled
to vote at such meeting and to each shareholder not entitled to vote who is
entitled to notice of the meeting written or printed notice stating the time and
place of the meeting and, in the case of a special meeting or as otherwise may
be required by any statute, the purpose for which the meeting is called, either
by mail or by presenting it to such shareholder personally or by leaving it at
his residence or usual place of business. If mailed, such notice shall be deemed
to be given when deposited in the United States mail addressed to the
shareholder at his post office address as it appears on the records of the
Trust, with postage thereon prepaid.
Section 5. SCOPE OF NOTICE. Any business of the Trust may be transacted
at an annual meeting of shareholders without being specifically designated in
the notice, except such business as is required by any statute to be stated in
such notice. No business shall be transacted at a special meeting of
shareholders except as specifically designated in the notice.
Section 6. ORGANIZATION. At every meeting of the shareholders, the
Chairman of the Board, if there be one, shall conduct the meeting or, in the
case of vacancy in office or absence of the Chairman of the Board, one of the
following officers present shall conduct the meeting in the order stated: the
Vice Chairman of the Board, if there be one, the President, the Vice Presidents
in their order of rank and seniority, or a Chairman chosen by the shareholders
entitled to cast a majority of the votes which all shareholders present in
person or by proxy are entitled to cast, shall act as Chairman, and the
Secretary, or, in his absence, an assistant secretary, or in the absence of both
the Secretary and assistant secretaries, a person appointed by the Chairman
shall act as Secretary.
Section 7. QUORUM. At any meeting of shareholders, the presence in person
or by proxy of shareholders entitled to cast a majority of all the votes
entitled to be cast at such meeting shall constitute a quorum; but this section
shall not affect any requirement under any statute or the declaration of trust
("Declaration of Trust") for the vote necessary for the adoption of any measure.
If, however, such quorum shall not be present at any meeting of the
shareholders, the shareholders entitled to vote at such meeting, present in
person or by proxy, shall have the power to adjourn the meeting from time to
time to a date not more than 120 days after the original record date without
notice other than announcement at the meeting. At such adjourned meeting at
which a quorum shall be present, any business may be transacted which might have
been transacted at the meeting as originally notified.
Section 8. VOTING. A plurality of all the votes cast at a meeting of
shareholders duly called and at which a quorum is present shall be sufficient to
elect a Trustee. Each share may be voted for as many individuals as there are
Trustees to be elected and for whose election the share is entitled to be voted.
A majority of the votes cast at a meeting of shareholders duly called and at
which a quorum is present shall be sufficient to approve any other matter which
may properly come before the meeting, unless more than a majority of the votes
cast is required herein or by statute or by the Declaration of Trust.
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Unless otherwise provided in the Declaration of Trust, each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders.
Section 9. PROXIES. A shareholder may cast the votes entitled to be cast
by the shares owned of record by him either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney in fact. Such
proxy shall be filed with the Secretary of the Trust before or at the time of
the meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
Section 10. VOTING OF SHARES BY CERTAIN HOLDERS. Shares of the Trust
registered in the name of a corporation, partnership, trust or other entity, if
entitled to be voted, may be voted by the president or a vice president, a
general partner or trustee thereof, as the case may be, or a proxy appointed by
any of the foregoing individuals, unless some other person who has been
appointed to vote such shares pursuant to a bylaw or a resolution of the
governing board of such corporation or other entity or agreement of the partners
of the partnership presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote such shares. Any trustee or other
fiduciary may vote shares registered in his name as such fiduciary, either in
person or by proxy.
Shares of the Trust directly or indirectly owned by it shall not be voted
at any meeting and shall not be counted in determining the total number of
outstanding shares entitled to be voted at any given time, unless they are held
by it in a fiduciary capacity, in which case they may be voted and shall be
counted in determining the total number of outstanding shares at any given time.
The Trustees may adopt by resolution a procedure by which a shareholder
may certify in writing to the Trust that any shares registered in the name of
the shareholder are held for the account of a specified person other than the
shareholder. The resolution shall set forth the class of shareholders who may
make the certification, the purpose for which the certification may be made, the
form of certification and the information to be contained in it; if the
certification is with respect to a record date or closing of the share transfer
books, the time after the record date or closing of the share transfer books
within which the certification must be received by the Trust; and any other
provisions with respect to the procedure which the Trustees consider necessary
or desirable. on receipt of such certification, the person specified in the
certification shall be regarded as, for the purposes set forth in the
certification, the shareholder of record of the specified shares in place of the
shareholder who makes the certification.
Notwithstanding any other provision contained herein or in the
Declaration of Trust or these Bylaws, Title 3, Subtitle 7 of the Corporations
and Associations Article of the Annotated Code of Maryland (or any successor
statute) shall not apply to any acquisition by any person of shares of
beneficial interest of the Trust. This section may be repealed, in whole or in
part, at any time, whether before or after an acquisition of control shares and,
upon such repeal, may, to the extent provided by any successor bylaw, apply to
any prior or subsequent control share acquisition.
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Section 11. INSPECTORS. At any meeting of shareholders, the chairman of
the meeting may appoint one or more persons as inspectors for such meeting. Such
inspectors shall ascertain and report the number of shares represented at the
meeting based upon their determination of the validity and effect of proxies,
count all votes, report the results and perform such other acts as are proper to
conduct the election and voting with impartiality and fairness to all the
shareholders.
Each report of an inspector shall be in writing and signed by him or by a
majority of them if there is more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
Section 12. REPORTS TO SHAREHOLDERS. The Trustees shall submit to the
shareholders at or before the annual meeting of shareholders a report of the
business and operations of the Trust during such fiscal year, containing a
balance sheet and a statement of income and surplus of the Trust, accompanied by
the certification of an independent certified public accountant, and such
further information as the Trustees may determine is required pursuant to any
law or regulation to which the Trust is subject. Within the earlier of 20 days
after the annual meeting of shareholders or 120 days after the end of the fiscal
year of the Trust, the Trustees shall place the annual report on file at the
principal office of the Trust and with any governmental agencies as may be
required by law and as the Trustees may deem appropriate.
Section 13. NOMINATIONS AND PROPOSALS BY SHAREHOLDERS.
(a) Annual Meetings of Shareholders. (1) Nominations of persons
for election to the Board of Trustees and the proposal of business to be
considered by the shareholders may be made at an annual meeting of shareholders
(i) pursuant to the Trust's notice of meeting, (ii) by or at the direction of
the Trustees or (iii) by any shareholder of the Trust who was a shareholder of
record both at the time of giving of notice provided for in this Section 13 (a)
and at the time of the annual meeting, who is entitled to vote at the meeting
and who complied with the notice procedures set forth in this Section 13(a).
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (iii) of paragraph
(a) (1) of this Section 13, the shareholder must have given timely notice
thereof in writing to the Secretary of the Trust and such other business must
otherwise be a proper matter for action by shareholders. To be timely, a
shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Trust not later than the close of business on the 60th
day nor earlier than the close of business on the 90th day prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date or if the Trust has
not previously held an annual meeting, notice by the shareholder to be timely
must be so delivered not earlier than the close of business on the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of such meeting is first made
by the Trust. In no
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event shall the public announcement of a postponement or adjournment of an
annual meeting to a later date or time commence a new time period for the giving
of a shareholder's notice as described above. Such shareholder's notice shall
set forth as to each person whom the shareholder proposes to nominate for
election or reelection as a Trustee all information relating to such person that
is required to be disclosed in solicitations of proxies for election of Trustees
in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a Trustee if elected); (ii) as to
any other business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareholder and of the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the shareholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made, (x) the name and address of such shareholder, as they appear on the
Trust's books, and of such beneficial owner and (y) the number of each class of
shares of the Trust which are owned beneficially and of record by such
shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a) (2) of this Section 13 to the contrary, in the event that the
number of Trustees to be elected to the Board of Trustees is increased and there
is no public announcement by the Trust naming all of the nominees for Trustee or
specifying the size of the increased Board of Trustees at least 70 days prior to
the first anniversary of the preceding year's annual meeting, a shareholder's
notice required by this Section 13(a) shall also be considered timely, but only
with respect to nominees for any new positions created by such increase, if it
shall be delivered to the secretary at the principal executive offices of the
Trust not later than the close of business on the tenth day following the day on
which such public announcement is first made by the Trust.
(b) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the Trust's notice of meeting. Nominations of persons
for election to the Board of Trustees may be made at a special meeting of
shareholders at which Trustees are to be elected (i) pursuant to the Trusts
notice of meeting (ii) by or at the direction of the Board of Trustees or (iii)
provided that the Board of Trustees has determined that Trustees shall be
elected at such special meeting, by any shareholder of the Trust who was a
shareholder of record both at the time of giving of notice provided for in this
Section 13(b) and at the time of the special meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this
Section 13 (b). In the event the Trust calls a special meeting of shareholders
for the purpose of electing one or more Trustees to the Board of Trustees, any
such shareholder may nominate a person or persons (as the case may be) for
election to such position as specified in the Trust's notice of meeting, if the
shareholder's notice containing the information required by paragraph (a) (2) of
this Section 13 shall be delivered to the Secretary at the principal executive
offices of the Trust not earlier than the close of business on the 90th day
prior to such special meeting and not later than the close of business on the
later of the 60th day prior to such special meeting or the tenth day following
the day on which public announcement is first made of the date of the special
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meeting and of the nominees proposed by the Trustees to be elected at such
meeting. In no event shall the public announcement of a postponement or
adjournment of a special meeting to a later date or time commence a new time
period for the giving of a shareholder's notice as described above.
(c) General. (1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 13 shall be eligible to serve as
Trustees and only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 13. The chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 13 and, if any proposed
nomination or business is not in compliance with this Section 13, to declare
that such nomination or proposal shall be disregarded.
(2) For purposes of this Section 13, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable news service or in a document publicly filed by
the Trust with the Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
13, a shareholder shall also comply with all applicable requirements of state
law and of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 13. Nothing in this Section 13
shall be deemed to affect any rights of shareholders to request inclusion of
proposals in, nor any of the rights of the Trust to omit a proposal from, the
Trust's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 14. INFORMAL ACTION BY SHAREHOLDERS. Notwithstanding the
provisions of Section 13 of this Article II, any action required or permitted to
be taken at a meeting of shareholders may be taken without a meeting if a
consent in writing, setting forth such action, is signed by shareholders
entitled to cast a sufficient number of votes to approve the matter, as required
by statute, the Declaration of Trust of the Trust or these Bylaws, and such
consent is filed with the minutes of proceedings of the shareholders.
Section 15. VOTING BY BALLOT. Voting on any question or in any election
may be viva voce unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
ARTICLE III
TRUSTEES
Section 1. GENERAL POWERS; QUALIFICATIONS; TRUSTEES HOLDING OVER. The
business and affairs of the Trust shall be managed under the direction of its
Board of Trustees. A Trustee shall be an individual at least 21 years of age who
is not under legal disability. In case of failure to elect Trustees at an annual
meeting of the
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shareholders, the Trustees holding over shall continue to direct the management
of the business and affairs of the Trust until their successors are elected and
qualify.
Section 2. NUMBER. At any regular meeting or at any special meeting
called for that purpose, a majority of the entire Board of Trustees may
establish, increase or decrease the number of Trustees, subject to any
limitations on the number of Trustees set forth in the Declaration of Trust.
Except during the period when a vacancy exists, at least two-thirds of the
Trustees shall be persons who are not executive officers of the Trust or persons
affiliated with Samuel Zell or his affiliates ("Independent Trustees"). For
purposes of this Section, the terms "executive officers" and "affiliated" shall
have the definitions set forth in Rule 405 under the Securities Act of 1933, as
amended.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Trustees
shall be held immediately after and at the same place as the annual meeting of
shareholders, no notice other than this Bylaw being necessary. The Trustees may
provide, by resolution, the time and place, either within or without the State
of Maryland, for the holding of regular meetings of the Trustees without other
notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Trustees may be
called by or at the request of the chairman of the board or the president or by
a majority of the Trustees then in office. The person or persons authorized to
call special meetings of the Trustees may fix any place, either within or
without the State of Maryland, as the place for holding any special meeting of
the Trustees called by them.
Section 5. NOTICE. Notice of any special meeting shall be given by
written notice delivered personally, telegraphed, facsimile-transmitted or
mailed to each Trustee at his business or residence address. Personally
delivered or telegraphed notices shall be given at least two days prior to the
meeting. Notice by mail shall be given at least five days prior to the meeting.
Telephone or facsimile-transmission notice shall be given at least 24 hours
prior to the meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail properly addressed, with postage thereon
prepaid. If given by telegram, such notice shall be deemed to be given when the
telegram is delivered to the telegraph company. Telephone notice shall be deemed
given when the Trustee is personally given such notice in a telephone call to
which he is a party. Facsimile-transmission notice shall be deemed given upon
completion of the transmission of the message to the number given to the Trust
by the Trustee and receipt of a completed answer-back indicating receipt.
Neither the business to be transacted at, nor the purpose of, any annual,
regular or special meeting of the Trustees need be stated in the notice, unless
specifically required by statute or these Bylaws.
Section 6. QUORUM. A majority of the Trustees shall constitute a quorum
for transaction of business at any meeting of the Trustees, provided that, if
less than a majority of such Trustees are present at said meeting, a majority of
the Trustees present may adjourn the meeting from time to time without further
notice, and provided further that if, pursuant to the Declaration of Trust or
these Bylaws, the vote of a majority of a particular group of Trustees is
required for action, a quorum must also include a majority of such group.
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The Trustees present at a meeting which has been duly called and convened
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough Trustees to leave less than a quorum.
Section 7. VOTING. The action of the majority of the Trustees present at
a meeting at which a quorum is present shall be the action of the Trustees,
unless the concurrence of a greater proportion is required for such action by
applicable statute.
Section 8. TELEPHONE MEETINGS. Trustees may participate in a meeting by
means of a conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at
the meeting.
Section 9. INFORMAL ACTION BY TRUSTEES. Any action required or permitted
to be taken at any meeting of the Trustees may be taken without a meeting, if a
consent in writing to such action is signed by each Trustee and such written
consent is filed with the minutes of proceedings of the Trustees.
Section 10. VACANCIES. If for any reason any or all of the Trustees cease
to be Trustees, such event shall not terminate the Trust or affect these Bylaws
or the powers of the remaining Trustees hereunder (even if fewer than two
Trustees remain). Any vacancy (including a vacancy created by an increase in the
number of Trustees) shall be filled, at any regular meeting or at any special
meeting called for that purpose, by a majority of the Trustees. Any individual
so elected as Trustee shall hold office until the next annual meeting of
shareholders.
Section 11. COMPENSATION; FINANCIAL ASSISTANCE.
(a) Compensation. Trustees shall not receive any stated salary for
their services as Trustees but, by resolution of the Trustees, may receive fixed
sums per year and/or per meeting and/or per visit to real property owned or to
be acquired by the Trust and for any service or activity they performed or
engaged in as Trustees. Such fixed sums may be paid either in cash or in shares
of the Trust. Trustees may be reimbursed for expenses of attendance, if any, at
each annual, regular or special meeting of the Trustees or of any committee
thereof; and for their expenses, if any, in connection with each property visit
and any other service or activity performed or engaged in as Trustees; but
nothing herein contained shall be construed to preclude any Trustees from
serving the Trust in any other capacity and receiving compensation therefor.
(b) Financial Assistance to Trustees. The Trust may lend money to,
guarantee an obligation of or otherwise assist a Trustee or a trustee or
director of a direct or indirect subsidiary of the Trust; provided, however,
that such Trustee or other person is also an executive officer of the Trust or
of such subsidiary, or the loan, guarantee or other assistance is in connection
with the purchase of Shares. The loan, guarantee or other assistance may be with
or without interest, unsecured, or secured in any manner that the Board of
Trustees approves, including a pledge of shares.
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Section 12. REMOVAL OF TRUSTEES. The shareholders may, at any time,
remove any Trustee in the manner provided in the Declaration of Trust.
Section 13. LOSS OF DEPOSITS. No Trustee shall be liable for any
loss which may occur by reason of the failure of the bank, trust company,
savings and loan association, or other institution with whom moneys or shares
have been deposited.
Section 14. SURETY BONDS. Unless required by law, no Trustee shall be
obligated to give any bond or surety or other security for the performance of
any of his duties.
Section 15. RELIANCE. Each Trustee, officer, employee and agent of the
Trust shall, in the performance of his duties with respect to the Trust, be
fully justified and protected with regard to any act or failure to act in
reliance in good faith upon the books of account or other records of the Trust,
upon an opinion of counsel or upon reports made to the Trust by any of its
officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Trustees or officers of the Trust,
regardless of whether such counsel or expert may also be a Trustee.
Section 16. INTERESTED TRUSTEE TRANSACTIONS. Section 2-419 of the
Maryland General Corporation Law (the "MGCL") shall be available for and apply
to any contract or other transaction between the Trust and any of its Trustees
or between the Trust and any other trust, corporation, firm or other entity in
which any of its Trustees is a trustee or director or has a material financial
interest.
Section 17. CERTAIN RIGHTS OF TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS.
The Trustees shall have no responsibility to devote their full time to the
affairs of the Trust. Any Trustee or officer, employee or agent of the Trust
(other than a full-time officer, employee or agent of the Trust), in his
personal capacity or in a capacity as an affiliate, employee, or agent of any
other person, or otherwise, may have business interests and engage in business
activities similar or in addition to those of or relating to the Trust.)
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATION. The Trustees may appoint
from among its members an Audit Committee, a Compensation Committee and other
committees, each composed of at least three Trustees, to serve at the pleasure
of the Trustees. A majority of the Trustees on the Compensation Committee and
all of the Trustees on the Audit Committee shall be Independent Trustees. In
addition, the Trustees may from time to time appoint from among its members a
Pricing Committee composed of one or more Trustees to serve at the pleasure of
the Trustees.
Section 2. POWERS. The Trustees may delegate to committees appointed
under Section 1 of this Article any of the powers of the Trustees, except as
prohibited by law.
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Section 3. MEETINGS. In the absence of any member of any such committee,
the members thereof present at any meeting, whether or not they constitute a
quorum, may appoint another Trustee to act in the place of such absent member.
Notice of committee meetings shall be given in the same manner as notice for
special meetings of the Board of Trustees.
One-third, but not less than two (except for one-member committees), of
the members of any committee shall be present in person at any meeting of such
committee in order to constitute a quorum for the transaction of business at
such meeting, and the act of a majority present shall be the act of such
committee. The Board of Trustees may designate a chairman of any committee, and
such chairman or any two members of any committee (except for one-member
committees) may fix the time and place of its meetings unless the Board shall
otherwise provide. In the absence or disqualification of any member of any such
committee, the members thereof present at any meeting and not disqualified from
voting, whether or not they constitute a quorum, may unanimously appoint another
Trustee to act at the meeting in the place of such absent or disqualified
members.
Each committee shall keep minutes of its proceedings and shall report the
same to the Board of Trustees at the next succeeding meeting, and any action by
the committee shall be subject to revision and alteration by the Board of
Trustees, provided that no rights of third persons shall be affected by any such
revision or alteration.
Section 4. TELEPHONE MEETINGS. Members of a committee of the Trustees may
participate in a meeting by means of a conference telephone or similar
communications equipment if all persons participating in the meeting can hear
each other at the same time. Participation in a meeting by these means shall
constitute presence in person at the meeting.
Section 5. INFORMAL ACTION BY COMMITTEES. Any action required or
permitted to be taken at any meeting of a committee of the Trustees may be taken
without a meeting, if a consent in writing to such action is signed by each
member of the committee and such written consent is filed with the minutes of
proceedings of such committee.
Section 6. VACANCIES. Subject to the provisions hereof, the Board of
Trustees shall have the power at any time to change the membership of any
committee, to fill all vacancies, to designate alternate members to replace any
absent or disqualified member or to dissolve any such committee.
Section 7. EXECUTIVE COMMITTEE. The Executive Committee shall be composed
of not less than three Trustees and, subject to the exceptions hereafter
described, established for the purpose of undertaking or authorizing, on behalf
of the Board, any and all actions which might be undertaken or authorized by the
Board itself; provided that, in the absence of further resolution from the
Board, the Executive Committee shall not be empowered (i) to bind the Trust in
respect to an acquisition or disposition or series of acquisitions or
dispositions which have not been approved by or reported to the Board at a
duly-called meeting of the Board and any one of which exceeds Fifty Million
Dollars ($50,000,000) individually or Seventy-Five Million Dollars
($75,000,000), when aggregated with all other such unreported or unapproved
acquisitions or dispositions; (ii) to approve
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any merger or other re-organization of the Trust; (iii) to make any
recommendation to the shareholders of the Trust; (iv) to elect any individual to
an office of executive vice-president or higher of the Trust; (v) to amend the
Bylaws of the Trust; (vi) to undertake any action which is within the
jurisdiction of any other committee of the Board; (vii) to authorize or fix the
terms of any shares of beneficial interest or other securities to be issued by
the Trust or any OP Units to be issued by the Operating Partnership unless (x)
the maximum number of securities of the Trust or OP Units of the Operating
Partnership is not greater than the quotient of $50,000,000 (in any one
transaction) or $75,000,000 (in a series of transactions which are unapproved by
or unreported to the Board), and in either case the Board has approved the terms
and conditions of the securities, divided by the fair market value (as
determined by the Executive Committee, whose determination shall be final and
binding) of a share, OP Units or other security or (y) the Board has given
general authorization for issuance of securities providing for or establishing a
method or procedure for determining the maximum number of such securities to be
issued by the Trust or the Operating Partnership;(viii) to enter into any
transaction in which any member of the Executive Committee has a financial
interest which is adverse to the Trust; or (ix) to borrow or enter into
agreements to borrow in excess of One Hundred Million Dollars ($100,000,000)
individually or in the aggregate, in loans which have not been reported to or
approved by the Board; and provided further that the Executive Committee is
expressly empowered, upon its determination that any such increase in purchase
price or decrease in sales price is required in order to close a given
transaction, to increase any purchase price or to decrease any sales price
previously approved by the Board by an amount not greater than the lesser of (x)
five percent (5%) of the purchase or sales price previously approved by the
Board or (y) Fifty Million Dollars ($50,000,000).
Section 8. SPECIAL CONFLICTS COMMITTEE.
8.1 The Special Conflicts Committee shall be composed of not less than
three (3) members, all of whom shall be Independent Trustees. The chair and
other members of the Special Conflicts Committee shall be appointed by the Board
of Trustees, with the affirmative vote of at least a majority of the Independent
Trustees.
8.2 The Special Conflicts Committee shall have the power to consider
and, in each case where the transaction obligates or is expected to obligate the
Trust in an amount not greater than Fifty Million Dollars ($50,000,000), to
approve any transaction in which the Trust is or is proposed to be a party and
as to which any Trustee knows at the time of commitment that any of the
following persons either is or is entitled to be a party, whether directly or
indirectly, to the transaction or has a sufficiently material beneficial
interest that the interest might reasonably be expected to exert an influence on
the Trustee's judgment if he were called upon to vote on the transaction: (a)
any Trustee or any Related Person of any Trustee; (b) any person (other than the
Trust) of which the Trustee is the owner of more than 5% of any class of equity
securities or is a director, trustee, general partner, agent or employee; (c)
any person that controls one or more of the persons specified in clause (b) or a
person that is controlled by, or is under common control with, one or more of
the persons specified in clause (b); or (d) an individual who is a general
partner, principal or employer of the Trustee.
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8.3 Any Trustee who knows of a transaction covered by Section 8.2
shall immediately notify and provide all material information about the
transaction to the Special Conflicts Committee, which shall thereafter promptly
consider the transaction. The Board of Trustees, any Trustee or any officer of
the Trust may notify the Special Conflicts Committee about any transaction that
it has reason to believe is covered by Section 8.2 and, upon request, such
Trustee shall provide to the Special Conflicts Committee all relevant
information known or in the control of the referring person. Upon receipt of
notice pursuant to this paragraph, the Special Conflicts Committee shall notify
the Chairman of the Board and the Secretary of the Trust in order that the Board
of Trustees which, absent the Board's determination that such notice was
improper, shall take no further action with respect to the transaction unless
and until approved, ratified or recommended to the Board by the Special
Conflicts Committee. The Trust shall not enter into such transaction without the
approval, ratification or recommendation of the Special Conflicts Committee
acting by unanimous written consent or by the affirmative vote of a majority of
its members present and voting at any meeting thereof (excluding any members
disqualified pursuant to Section 8.4). Nothing in this Section 8 shall require
approval of fees or other compensation to Independent Trustees for their service
as Trustees.
8.4. Any member of the Special Conflicts Committee who is a party to or
who has an interest in the transaction of the type described in Section 8.2
shall take no part in the deliberations of the Special Conflicts Committee on
the transaction.
8.5. For purposes of this Section 8, the following terms shall have the
followings meanings:
"Affiliate" means a person or entity that directly or
indirectly controls, or is controlled by, or is under common
control with, a specified person or entity.
"Control", including the terms "controlling" or "under
common control with," means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether by ownership of
voting securities, by contract or otherwise. The beneficial
ownership of ten percent or more of securities entitled to be
voted generally in the election of directors creates a presumption
of control.
"Independent Trustee" shall mean a Trustee who is not an
officer, employee or agent of the Trust or an Affiliate of the
Trust. For these purposes, Equity Group Investments, L.L.C. and
its Affiliates shall be deemed to be Affiliates of the Trust until
such time, if any, as the Board shall determine otherwise.
"Time of commitment" as to a transaction means the time
when the transaction is consummated or, if made pursuant to
contract, the time when the Trust becomes contractually obligated
so that its unilateral withdrawal from the transaction would
entail significant loss, liability or other damage.
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"Related Person" of a Trustee means (a) the spouse (or a
parent or sibling thereof) of the Trustee, or a child, grandchild,
sibling, parent (or spouse of any thereof) of the Trustee, or an
individual sharing the same residence as the Trustee, or a Trust
or estate of which a Trustee or an individual specified in this
definition is a substantial beneficiary or (b) a trust, estate,
incompetent, conservatee or minor of which the Trustee is a
fiduciary.
Section 9. AUDIT COMMITTEE. The Audit Committee shall be composed of not
less than three Trustees. The function of the Audit Committee shall be (i) to
review the professional services and independence of the Trust's independent
auditors, (ii) to ensure that the scope of the annual external audit by the
independent auditors of the Trust is sufficiently comprehensive, (iii) to
review, in consultation with the independent auditors and the internal auditors,
the plan and results of the annual external audit, the adequacy of the Trust's
internal control systems and the results of the Trust's internal audits, (iv) to
review, with management and the independent auditors, the Trust's annual
financial statements, financial reporting practices and the results of each
external audit and (v) to undertake reasonably related activities to those set
forth in clauses (i) through (iv) of this Section. The Audit Committee shall
also have the authority to consider the qualification of the Trust's independent
auditors, to make recommendations to the Board as to their selection and to
review and resolve disputes between such independent auditors and management
relating to the preparation of the annual financial statements.
Section 10. COMPENSATION AND OPTION COMMITTEE. The Compensation and
Option Committee shall be composed of not less than three Trustees. The
Compensation and Option Committee shall be authorized to establish the
compensation and benefit arrangements for the officers and key employees of the
Trust and to establish general policy relating to compensation and benefit
arrangements of employees of the Trust. The Compensation and Option Committee
shall also administer the share plans and compensation programs of the Trust.
The Compensation and Option Committee shall discharge the duties of a
Compensation Committee under the Proxy Rules established by the Securities and
Exchange Commission.
The Compensation and Option Committee shall be authorized to establish
awards under and administer the Trust's Supplemental Retirement Savings Plan and
compensation programs of the Trust insofar as they relate to executive officers
of the Trust so that any such award or component that is intended to qualify
under Rule 16b-3 under the Exchange Act or that any share plan or executive
compensation program (or a component thereof) or other form of compensation that
is intended to qualify for an exception under such Section 162 (m) (or any
successor provision) of the Code does qualify for such exception. Composition of
the Compensation and Option Committee shall satisfy requirements set forth under
Rule 16(b)(3) under the Exchange Act and Section 162(m) under the Internal
Revenue Code.
Section 11. COMMITTEE ON TRUST GOVERNANCE. The Committee on Trust
Governance shall be composed of not less than three Trustees. The Committee on
Trust Governance shall be authorized to (i) study, and review with management,
the overall effectiveness of the organization of the Board of Trustees and the
conduct of its business,
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and make appropriate recommendations to the Trustees with regard thereto; (ii)
review the appropriateness and adequacy of information supplied to the Trustees
prior to and during Board of Trustee meetings of the Trustees; (iii) develop,
submit to the Trustees for their approval and thereafter monitor implementation
of Guidelines on Trust Governance Issues in respect to the operation of the
Board of Trustees and propose to the Trustees for their approval from time to
time such revisions therein as the Committee on Trust Governance deems to be
appropriate; (iv) develop and maintain criteria and procedures for the
identification and recruitment or retention of candidates for election or
reelection to serve as Trustees of the Trust, including consideration of the
performance of incumbent Trustees in determining whether to nominate them for
reelection; and (v) recommend to the Trustees, with the advice of the Chairman
and the President and Chief Executive Officer of the Trust, nominees for
election or reelection as Trustees. The Chairman of the Board as well as the
President and Chief Executive Officer shall be ex-officio members of the
Committee on Trust Governance.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Trust shall include a
president, a secretary and a treasurer and may include a chairman of the board,
a vice chairman of the board, a chief executive officer, a chief operating
officer, a chief financial officer, a chief legal counsel, one or more vice
presidents, one or more assistant secretaries and one or more assistant
treasurers. In addition, the Trustees may from time to time appoint such other
officers with such powers and duties as they shall deem necessary or desirable.
The officers of the Trust shall be elected annually by the Trustees at the first
meeting of the Trustees held after each annual meeting of shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as may be convenient. Each officer shall hold office
until his successor is elected and qualifies or until his death, resignation or
removal in the manner hereinafter provided. Any two or more offices except
president and vice president may be held by the same person. In their
discretion, the Trustees may leave unfilled any office except that of president
and secretary. Election of an officer or agent shall not of itself create
contract rights between the Trust and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Trust may
be removed by the Trustees if in their judgment the best interests of the Trust
would be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Any officer of the Trust may
resign at any time by giving written notice of his resignation to the Trustees,
the chairman of the board, the president or the secretary. Any resignation shall
take effect at any time subsequent to the time specified therein or, if the time
when it shall become effective is not specified therein, immediately upon its
receipt. The acceptance of a resignation shall not be necessary to make it
effective unless otherwise stated in the resignation. Such resignation shall be
without prejudice to the contract rights, if any, of the Trust.
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Section 3. VACANCIES. A vacancy in any office may be filled by the
Trustees for the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. The Trustees may designate a chief
executive officer from among the elected officers. The chief executive officer
shall have responsibility for implementation of the policies of the Trust, as
determined by the Trustees, and for the administration of the business affairs
of the Trust. In the absence of both the chairman and vice chairman of the
board, the chief executive officer shall preside over the meetings of the
Trustees and of the shareholders at which he shall be present.
Section 5. CHIEF OPERATING OFFICER. The Trustees may designate a chief
operating officer from among the elected officers. Said officer will have the
responsibilities and duties as set forth by the Trustees or the chief executive
officer.
Section 6. CHIEF FINANCIAL OFFICER. The Trustees may designate a chief
financial officer from among the elected officers. Said officer will have the
responsibilities and duties as set forth by the Trustees or the chief executive
officer.
Section 7. CHIEF LEGAL COUNSEL. The Trustees may designate a chief legal
counsel from among the elected officers. Said officer will have the
responsibilities and duties as set forth by the trustees or the chief executive
officer.
Section 8. CHAIRMAN AND VICE CHAIRMAN OF THE BOARD. The chairman of the
board shall preside over the meetings of the Trustees and of the shareholders at
which he shall be present and shall in general oversee all of the business and
affairs of the Trust. In the absence of the chairman of the board, the vice
chairman of the board shall preside at such meetings at which he shall be
present. The chairman and the vice chairman of the board may execute any deed,
mortgage, bond, contract or other instrument, except in cases where the
execution thereof shall be expressly delegated by the Trustees or by these
Bylaws to some other officer or agent of the Trust or shall be required by law
to be otherwise executed. The chairman of the board and the vice chairman of the
board shall perform such other duties as may be assigned to him or them by the
Trustees.
Section 9. PRESIDENT. In the absence of the chairman, the vice chairman
of the board and the chief executive officer, the president shall preside over
the meetings of the Trustees and of the shareholders at which he shall be
present. In the absence of a designation of a chief executive officer by the
Trustees, the president shall be the chief executive officer and shall be ex
officio a member of all committees that may, from time to time, be constituted
by the Trustees. The president may execute any deed, mortgage, bond, contract or
other instrument, except in cases where the execution thereof shall be expressly
delegated by the Trustees or by these Bylaws to some other officer or agent of
the Trust or shall be required by law to be otherwise executed; and in general
shall perform all duties incident to the office of president and such other
duties as may be prescribed by the Trustees from time to time.
Section 10. VICE PRESIDENTS. In the absence of the president or in the
event of a vacancy in such office, the vice president (or in the event there be
more than one vice president, the vice presidents in the order designated at the
time of their election or, in the
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absence of any designation, then in the order of their election) shall perform
the duties of the president and when so acting shall have all the powers of and
be subject to all the restrictions upon the president; and shall perform such
other duties as from time to time may be assigned to him by the president or by
the Trustees. The Trustees may designate one or more vice presidents as
executive vice president, senior vice president or as vice president for
particular areas of responsibility.
Section 11. SECRETARY. The secretary shall (a) keep the minutes of the
proceedings of the shareholders, the Trustees and committees of the Trustees in
one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these Bylaws or as required by law;
(c) be custodian of the trust records and of the seal of the Trust; (d) keep a
register of the post office address of each shareholder which shall be furnished
to the secretary by such shareholder; (e) have general charge of the share
transfer books of the Trust; and (f) in general perform such other duties as
from time to time may be assigned to him by the chief executive officer, the
president or by the Trustees.
Section 12. TREASURER. The treasurer shall have the custody of the funds
and securities of the Trust and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Trust and shall deposit all
moneys and other valuable effects in the name and to the credit of the Trust in
such depositories as may be designated by the Trustees.
He shall disburse the funds of the Trust as may be ordered by the
Trustees, taking proper vouchers for such disbursements, and shall render to the
president and Trustees, at the regular meetings of the Trustees or whenever they
may require it, an account of all his transactions as treasurer and of the
financial condition of the Trust.
If required by the Trustees, he shall give the Trust a bond in such sum
and with such surety or sureties as shall be satisfactory to the Trustees for
the faithful performance of the duties of his office and for the restoration to
the Trust, in case of his death, resignation, retirement or removal from office,
of all books, papers, vouchers, moneys and other property of whatever kind in
his possession or under his control belonging to the Trust.
Section 13. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or treasurer, respectively, or by the
president or the Trustees. The assistant treasurers shall, if required by the
Trustees, give bonds for the faithful performance of their duties in such sums
and with such surety or sureties as shall be satisfactory to the Trustees.
Section 14. SALARIES. The salaries and other compensation of the officers
shall be fixed from time to time by the Trustees and no officer shall be
prevented from receiving such salary or other compensation by reason of the fact
that he is also a Trustee.
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ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Trustees may authorize any officer or agent to
enter into any contract or to execute and deliver any instrument in the name of
and on behalf of the Trust and such authority may be general or confined to
specific instances. Any agreement, deed, mortgage, lease or other document
executed by one or more of the Trustees or by an authorized person shall be
valid and binding upon the Trustees and upon the Trust when authorized or
ratified by action of the Trustees.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Trust shall be signed by such officer or agent of the Trust in such manner
as shall from time to time be determined by the Trustees.
Section 3. DEPOSITS. All funds of the Trust not otherwise employed shall
be deposited from time to time to the credit of the Trust in such banks, trust
companies or other depositories as the Trustees may designate.
ARTICLE VII
SHARES
Section 1. CERTIFICATES. Each shareholder shall be entitled to a
certificate or certificates which shall represent and certify the number of
shares of each class of beneficial interest held by him in the Trust. Each
certificate shall be signed by the chief executive officer, the president or a
vice president and countersigned by the secretary or an assistant secretary or
the treasurer or an assistant treasurer and may be sealed with the seal, if any,
of the Trust. The signatures may be either manual or facsimile. Certificates
shall be consecutively numbered; and if the Trust shall, from time to time,
issue several classes of shares, each class may have its own number series. A
certificate is valid and may be issued whether or not an officer who signed it
is still an officer when it is issued. Each certificate representing shares
which are restricted as to their transferability or voting powers, which are
preferred or limited as to their dividends or as to their allocable portion of
the assets upon liquidation or which are redeemable at the option of the Trust,
shall have a statement of such restriction, limitation, preference or redemption
provision, or a summary thereof, plainly stated on the certificate. In lieu of
such statement or summary, the Trust may set forth upon the face or back of the
certificate a statement that the Trust will furnish to any shareholder, upon
request and without charge, a full statement of such information.
Section 2. TRANSFERS. Certificates shall be treated as negotiable and
title thereto and to the shares they represent shall be transferred by delivery
thereof to the same extent as those of a Maryland stock corporation. Upon
surrender to the Trust or the transfer agent of the Trust of a share certificate
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Trust shall issue a new
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certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
The Trust shall be entitled to treat the holder of record of any share or
shares as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Maryland.
Notwithstanding the foregoing, transfers of shares of beneficial interest
of the Trust will be subject in all respects to the Declaration of Trust and all
of the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the
Trustees may direct a new certificate to be issued in place of any certificate
previously issued by the Trust alleged to have been lost, stolen or destroyed
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost, stolen or destroyed. When authorizing the issuance of a
new certificate, an officer designated by the Trustees may, in his discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or the owner's legal representative to
advertise the same in such manner as he shall require and/or to give bond, with
sufficient surety, to the Trust to indemnify it against any loss or claim which
may arise as a result of the issuance of a new certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The
Trustees may set, in advance, a record date for the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
determining shareholders entitled to receive payment of any dividend or the
allotment of any other rights, or in order to make a determination of
shareholders for any other proper purpose. Such date, in any case, shall not be
prior to the close of business on the day the record date is fixed and shall be
not more than 90 days and, in the case of a meeting of shareholders not less
than ten days, before the date on which the meeting or particular action
requiring such determination of shareholders of record is to be held or taken.
In lieu of fixing a record date, the Trustees may provide that the share
transfer books shall be closed for a stated period but not longer than 20 days.
If the share transfer books are closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books shall be closed for at least ten days before the date of such meeting.
If no record date is fixed and the share transfer books are not closed
for the determination of shareholders, (a) the record date for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders
shall be at the close of business on the day on which the notice of meeting is
mailed or the 30th day before the meeting, whichever is the closer date to the
meeting; and (b) the record date for the determination of shareholders entitled
to receive payment of a dividend or an allotment of any other rights shall be
the close of business on the day on which the resolution of the Trustees,
declaring the dividend or allotment of rights, is adopted.
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When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except when (i) the determination has been
made through the closing of the transfer books and the stated period of closing
has expired or (ii) the meeting is adjourned to a date more than 120 days after
the record date fixed for the original meeting, in either of which case a new
record date shall be determined as set forth herein.
Section 5. STOCK LEDGER. The Trust shall maintain at its principal office
or at the office of its counsel, accountants or transfer agent, an original or
duplicate share ledger containing the name and address of each shareholder and
the number of shares of each class held by such shareholder.
Section 6. FRACTIONAL SHARES; ISSUANCE OF UNITS. The Trustees may issue
fractional shares or provide for the issuance of scrip, all on such terms and
under such conditions as they may determine. Notwithstanding any other provision
of the Declaration of Trust or these Bylaws, the Trustees may issue units
consisting of different securities of the Trust. Any security issued in a unit
shall have the same characteristics as any identical securities issued by the
Trust, except that the Trustees may provide that for a specified period
securities of the Trust issued in such unit may be transferred on the books of
the Trust only in such unit.
ARTICLE VIII
ACCOUNTING YEAR
The Trustees shall have the power, from time to time, to fix the fiscal
year of the Trust by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the
shares of beneficial interest of the Trust may be authorized and declared by the
Trustees, subject to the provisions of law and the Declaration of Trust.
Dividends and other distributions may be paid in cash, property or shares of the
Trust, subject to the provisions of law and the Declaration of Trust.
Section 2. CONTINGENCIES. Before payment of any dividends or other
distributions, there may be set aside out of any funds of the Trust available
for dividends or other distributions such sum or sums as the Trustees may from
time to time, in their absolute discretion, think proper as a reserve fund for
contingencies, for equalizing dividends or other distributions, for repairing or
maintaining any property of the Trust or for such other purpose as the Trustees
shall determine to be in the best interest of the
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Trust, and the Trustees may modify or abolish any such reserve in the manner in
which it was created.
ARTICLE X
PROHIBITED INVESTMENTS AND ACTIVITIES;
INVESTMENT POLICIES
Notwithstanding anything to the contrary in the Declaration of Trust, the
Trust shall not enter into any transaction referred to in (i), (ii) or (iii)
below which it does not believe is in the best interests of the Trust, and will
not, without the approval of a majority of the disinterested Trustees, (i)
acquire from or sell to any Trustee, officer or employee of the Trust, any
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in which a Trustee, officer or employee of the Trust owns more than a
one percent interest or any affiliate of any of the foregoing, any of the assets
or other property of the Trust, except for the acquisition directly or
indirectly of certain properties or interest therein, directly or indirectly,
through entities in which it owns an interest in connection with the initial
public offering of shares by the Trust or pursuant to agreements entered into in
connection with such offering, which properties shall be described in the
prospectus relating to such initial public offering, (ii) make any loan to or
borrow from any of the foregoing persons or (iii) engage in any other
transaction with any of the foregoing persons. Each such transaction will be in
all respects on such terms as are, at the time of the transaction and under the
circumstances then prevailing, fair and reasonable to the Trust. Subject to the
foregoing and the provisions of the Declaration of Trust, the Board of Trustees
may from time to time adopt, amend, revise or terminate any policy or policies
with respect to investments by the Trust as it shall deem appropriate in its
sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Trustees may authorize the adoption of a seal by the
Trust. The seal shall have inscribed thereon the name of the Trust and the year
of its formation. The Trustees may authorize one or more duplicate seals and
provide for the custody thereof.
Section 2. AFFIXING SEAL. Whenever the Trust is permitted or required to
affix its seal to a document, it shall be sufficient to meet the requirements of
any law, rule or regulation relating to a seal to place the word "(SEAL)"
adjacent to the signature of the person authorized to execute the document on
behalf of the Trust.
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ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time to
time, the Trust shall indemnify (a) any Trustee, officer or shareholder or any
former Trustee, officer or shareholder (including among the foregoing, for all
purposes of this Article XII and without limitation, any individual who, while a
Trustee, officer or shareholder and at the express request of the Trust, serves
or has served another corporation, partnership, joint venture, trust, employee
benefit plan or any other enterprise as a director, officer, shareholder,
partner or trustee of such corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise) who has been successful, on the
merits or otherwise, in the defense of a proceeding to which he was made a party
by reason of service in such capacity, against reasonable expenses incurred by
him in connection with the proceeding, (b) any Trustee or officer or any former
Trustee or officer against any claim or liability to which he may become subject
by reason of such status unless it is established that (i) his act or omission
was material to the matter giving rise to the proceeding and was committed in
bad faith or was the result of active and deliberate dishonesty, (ii) he
actually received an improper personal benefit in money, property or services or
(iii) in the case of a criminal proceeding, he had reasonable cause to believe
that his act or omission was unlawful and (c) each shareholder or former
shareholder against any claim or liability to which he may become subject by
reason of such status. In addition, the Trust shall, without requiring a
preliminary determination of the ultimate entitlement to indemnification, pay or
reimburse, in advance of final disposition of a proceeding, reasonable expenses
incurred by a Trustee, officer or shareholder or former Trustee, officer or
shareholder made a party to a proceeding by reason such status, provided that,
in the case of a Trustee or officer, the Trust shall have received (i) a written
affirmation by the Trustee or officer of his good faith belief that he has met
the applicable standard of conduct necessary for indemnification by the Trust as
authorized by these Bylaws and (ii) a written undertaking by or on his behalf to
repay the amount paid or reimbursed by the Trust if it shall ultimately be
determined that the applicable standard of conduct was not met. The Trust may,
with the approval of its Trustees, provide such indemnification or payment or
reimbursement of expenses to any Trustee, officer or shareholder or any former
Trustee, officer or shareholder who served a predecessor of the Trust and to any
employee or agent of the Trust or a predecessor of the Trust. Neither the
amendment nor repeal of this Article, nor the adoption or amendment of any other
provision of the Declaration of Trust or these Bylaws inconsistent with this
Article, shall apply to or affect in any respect the applicability of this
Article with respect to any act or failure to act which occurred prior to such
amendment, repeal or adoption.
Any indemnification or payment or reimbursement of the expenses permitted
by these Bylaws shall be furnished in accordance with the procedures provided
for indemnification or payment or reimbursement of expenses, as the case may be,
under Section 2-418 of the MGCL for directors of Maryland corporations. The
Trust may provide to Trustees, officers and shareholders such other and further
indemnification or payment or reimbursement of expenses, as the case may be, to
the fullest extent permitted by the MGCL, as in effect from time to time, for
directors of Maryland corporations.
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ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Declaration
of Trust or Bylaws or pursuant to applicable law, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at nor the purpose of any meeting
need be set forth in the waiver of notice, unless specifically required by
statute. The attendance of any person at any meeting shall constitute a waiver
of notice of such meeting, except where such person attends a meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
The Trustees shall have the power to adopt, alter or repeal any provision
of these Bylaws and to make new Bylaws; provided, however, that Article II,
Section 2 of Article III and this Article XIV of these Bylaws shall not be
amended without the consent of shareholders by a vote of a majority of the votes
cast at a meeting of shareholders duly called and at which a quorum is present.
ARTICLE XV
EXCLUSIVE POWER OF THE BOARD OF TRUSTEES TO AMEND THE BYLAWS
Except as provided in Article XIV, the Board of Trustees shall have the
exclusive power to adopt, alter or repeal any provision of these Bylaws and to
make new Bylaws.
ARTICLE XVI
MISCELLANEOUS
All references to the Declaration of Trust shall include any amendments
thereto.
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EXHIBIT 10.1.2
FIFTH AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
EOP OPERATING LIMITED PARTNERSHIP
This Fifth Amendment is made as of February 19, 1998 by and among
Equity Office Properties Trust, a Maryland real estate investment trust, as
managing general partner (the "Company" or the "Managing General Partner") of
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Partnership"), and as attorney-in-fact for the Persons named on Exhibit A to
the Agreement of Limited Partnership of EOP Operating Limited Partnership, dated
as of July 3, 1997, as amended, (the "Partnership Agreement") for the purpose of
amending the Partnership Agreement. Capitalized terms used herein and not
defined shall have the meanings given to them in the Partnership Agreement.
WHEREAS, the Board of Trustees of the Company (the "Board"), by
Unanimous Consent of the Trustees dated February 12, 1998 and by action of the
Pricing Committee of the Board pursuant to delegated authority on February 13,
1998, classified and designated 7,000,000 Preferred Shares (as defined in the
Declaration of Trust of the Company (the "Declaration of Trust")) as Series B
Preferred Shares (as defined below);
WHEREAS, the Board filed Articles Supplementary to the Declaration of
Trust (the "Articles Supplementary") with the State Department of Assessments
and Taxation of Maryland on February 19, 1998, establishing the series of
preferred shares, designated Series B Preferred Shares;
WHEREAS, on February 19, 1998, the Company issued 6,000,000 of the
Series B Preferred Shares;
WHEREAS, the Managing General Partner has determined that, in
connection with the issuance of the Series B Preferred Shares, it is necessary
and desirable to amend the Partnership Agreement to create additional
Partnership Units having designations, preferences and other rights which are
substantially the same as the economic rights of the Series B Preferred Shares.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the Managing General Partner hereby amends the Partnership
Agreement as follows:
<PAGE> 2
1. Article I of the Partnership Agreement is hereby amended by adding
the following definitions:
"Series B Preferred Shares" means the 5.25% Series B Convertible,
Cumulative Preferred Shares of the Company, with the preferences, conversion
and other rights, voting powers, restrictions, limitations as to distributions,
qualifications and terms and conditions of redemption of shares as described in
the Articles Supplementary; and
"Series B Preferred Units" means the series of Partnership Units
representing units of Limited Partnership Interest designated as the 5.25%
Series B Convertible, Cumulative Preferred Units with the preferences,
conversion and other rights, voting powers, restrictions, limitations as to
distributions, qualifications and terms and conditions of redemption of units as
described herein; and
2. In accordance with Section 4.2.A of the Partnership Agreement, set
forth below are the terms and conditions of the Series B Preferred Units hereby
established and issued to the Company in consideration of the Company's
contribution to the Partnership of the net proceeds following the issuance and
sale of the Series B Preferred Shares by the Company:
A. Designation and Number. A series of Partnership Units, designated
as Series B Preferred Units, is hereby established. The number of Series B
Preferred Units shall be 6,000,000.
B. Rank. The Series B Preferred Units shall, with respect to
distribution rights and rights upon voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Partnership, rank (a) senior to
the Class A Units, Class B Units and all Partnership Interests ranking junior to
the Series B Preferred Units; (b) on a parity with the Series A Preferred Units
and all other Partnership Interests issued by the Partnership the terms of which
specifically provide that such Partnership Interests rank on a parity with the
Series B Preferred Units; and (c) junior to all Partnership Interests issued by
the Partnership the terms of which specifically provide that such Partnership
Interests rank senior to the Series B Preferred Units.
C. Distributions.
(i) Pursuant to Section 5.1 of the Partnership Agreement, holders of
Series B Preferred Units shall be entitled to receive, out of Available Cash,
cumulative preferential cash distributions at the rate of 5.25% of the $50.00
liquidation preference per annum (equivalent to a fixed annual amount of $2.625
per unit). Distributions (which term as used herein shall include liquidated
2
<PAGE> 3
damages, if any, payable pursuant to subsection 2.C.(vi)) on the Series B
Preferred Units shall be payable quarterly and be cumulative from the fifteenth
day of each February, May, August and November or, if not a business day, the
next succeeding business day (each, a "Series B Preferred Unit Distribution
Payment Date"). Any distribution (including the initial distribution) payable on
the Series B Preferred Units for any partial distribution period shall be
prorated and computed on the basis of a 360-day year consisting of twelve 30-day
months.
(ii) No distribution on the Series B Preferred Units shall be
authorized by the Board or paid or set apart for payment by the Partnership at
such time as the terms and provisions of any agreement of the Partnership,
including any agreement relating to its indebtedness, prohibits such
authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach
thereof, or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law. No interest, or sum of money in lieu of
interest, shall be payable in respect of any distribution payment or payments on
the Series B Preferred Units which may be in arrears.
Notwithstanding the foregoing, distributions with respect to the
Series B Preferred Units shall accumulate whether or not any of the foregoing
restrictions exist, whether or not there is sufficient Available Cash for the
payment thereof and whether or not such distributions are authorized.
Accumulated but unpaid distributions on the Series B Preferred Units shall not
bear interest and holders of the Series B Preferred Units shall not be entitled
to any distributions in excess of full cumulative distributions. Any
distribution payment made on the Series B Preferred Units shall first be
credited against the earliest accumulated but unpaid distribution due with
respect to such units which remains payable.
(iii) Except as provided in subsection 2.C.(iv), if any Series B
Preferred Units are outstanding, no distributions (other than in Partnership
Interests ranking junior to the Series B Preferred Units as to distributions and
upon liquidation, dissolution or winding up of the affairs of the Partnership)
shall be declared or paid or set apart for payment nor shall any other
distribution be declared or made upon the Class A Units, the Class B Units, or
any other Partnership Interests ranking junior to or on a parity with the Series
B Preferred Units as to distributions or upon liquidation, dissolution or
winding up of the affairs of the Partnership for any period unless full
cumulative distributions have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such payment
on the Series B Preferred Units for all past distribution periods and the then
current distribution period, nor shall any Class A Units, Class B Units, or any
other Partnership Interests ranking junior to or on a parity with the Series B
Preferred Units as to distributions or upon liquidation, dissolution or winding
up of the affairs of the Partnership, be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or
3
<PAGE> 4
made available for a sinking fund for the redemption of any such Partnership
Interests) by the Partnership (except by conversion into or exchange for
Partnership Interests ranking junior to the Series B Preferred Units as to
distributions and upon liquidation, dissolution or winding up of the affairs of
the Partnership).
(iv) When distributions are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series B Preferred Units and any
other Partnership Interests ranking on a parity as to distributions with the
Series B Preferred Units, all distributions declared upon the Series B Preferred
Units and any other Partnership Interests ranking on a parity as to
distributions with the Series B Preferred Units shall be declared pro rata so
that the amount of distributions declared per unit of Series B Preferred Units
and such other Partnership Interests shall in all cases bear to each other the
same ratio that accumulated distributions per unit on the Series B Preferred
Units and such other Partnership Interests (which shall not include any
accumulation in respect of unpaid distributions for prior distribution periods
if such other Partnership Interests do not have a cumulative distribution) bear
to each other.
(v) Holders of Series B Preferred Units shall not be entitled to any
distribution, whether payable in cash, property or Partnership Interests, in
excess of full cumulative distributions on the Series B Preferred Units as
described above. Accumulated but unpaid distributions on the Series B Preferred
Units will accumulate as of the Series B Preferred Unit Distribution Payment
Date on which they first become payable.
(vi) If the Company fails to file a registration statement within the
period of time required by the Registration Rights Agreement dated February 19,
1998 between the Company and Lehman Brothers Inc. (the "Registration Rights
Agreement"), or the required registration statement does not become effective
within the period of time required by the Registration Rights Agreement, or the
Company fails to maintain the effectiveness of the registration statement as
required by the Registration Rights Agreement, or the Series B Preferred Shares
are not approved for listing by the New York Stock Exchange within the period of
time required by the Registration Rights Agreement, liquidated damages shall
accumulate on the $50.00 liquidation preference of the Series B Preferred Units
at a rate of 0.25% per annum (equivalent to a fixed annual amount of $0.125 per
unit) with respect to the first quarter immediately following such event and at
a rate of 0.50% per annum (equivalent to a fixed annual amount of $0.25 per
unit) with respect to the second quarter and all subsequent quarters following
such event ("Liquidated Damages").
4
<PAGE> 5
D. Allocations.
Allocations of the Partnership's items of income, gain, loss and
deduction shall be allocated among holders of Series B Preferred Units in
accordance with Article VI of the Partnership Agreement.
E. Liquidation Preference.
(i) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Partnership, the holders of the
Series B Preferred Units shall be entitled to receive out of the assets of the
Partnership available for distribution to the Partners pursuant to Section
13.2.A of the Partnership Agreement a liquidation preference of $50.00 per
Series B Preferred Unit, plus an amount equal to any accumulated and unpaid
distributions to the date of payment, before any distribution of assets is made
to holders of Class A Units, Class B Units or any other Partnership Interests
that rank junior to the Series B Preferred Units as to liquidation rights.
(ii) If upon any such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Partnership, the assets of the
Partnership are insufficient to make such full payment to holders of the Series
B Preferred Units and the corresponding amounts payable on all other Partnership
Interests ranking on a parity with the Series B Preferred Units in the
distribution of assets, then the holders of such Partnership Interests shall
share ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be respectively
entitled.
(iii) After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series B Preferred
Units shall have no right or claim to any of the remaining assets of the
Partnership.
(iv) None of a consolidation or merger of the Partnership with or into
another entity, merger of another entity with or into the Partnership, a
statutory unit exchange by the Partnership or a sale, lease or conveyance of all
or substantially all of the Partnership's property or business shall be
considered a liquidation, dissolution or winding up of the affairs of the
Partnership.
F. Redemption.
In connection with redemption by the Company of any of its Series B
Preferred Shares in accordance with the provisions of the Articles
Supplementary, the Partnership shall provide cash to the Company for such
purpose which shall be equal to the redemption price (as set forth in the
Articles Supplementary) and one Series B Preferred Unit shall be canceled with
respect to each Series B Preferred Share so redeemed by the Company. From and
after the Series B Preferred Share Redemption Date (as defined in the Articles
Supplementary), the Series B Preferred
5
<PAGE> 6
Units so canceled shall no longer be outstanding and all rights hereunder, to
distributions or otherwise, with respect to such Series B Preferred Units shall
cease.
G. Conversion.
In connection with conversion into common shares of beneficial
interest, $.01 par value per share of the Company ("Common Shares") of any
Series B Preferred Shares in accordance with the provisions of the Articles
Supplementary, the Partnership shall (i) issue to the Company a number of Class
A Units equal to the number of Common Shares issued by the Company upon such
conversion; and (ii) provide cash to the Company, if necessary, in an amount
equal to the amount of cash paid by the Company upon conversion of any Series B
Preferred Shares which would otherwise result in the issuance of fractional
Common Shares. One Series B Preferred Unit, or any fraction thereof, shall be
canceled with respect to each Series B Preferred Share, or any fraction thereof,
so converted, and from and after such conversion, the Series B Preferred Units
so canceled shall no longer be outstanding and all rights hereunder, to
distributions or otherwise, with respect to such Series B Preferred Units shall
cease.
3. Except as modified herein, all terms and conditions of the
Partnership Agreement shall remain in full force and effect, which terms and
conditions the Managing General Partner hereby ratifies and confirms.
* * * * *
6
<PAGE> 7
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first set forth above.
EQUITY OFFICE PROPERTIES TRUST,
a Maryland real estate investment trust, as
Managing General Partner of EOP
Operating Limited Partnership and on
behalf of existing Limited Partners.
By:/s/ STANLEY M. STEVENS
-----------------------------------
Name: Stanley M. Stevens
Title: Executive Vice President and Chief
Legal Counsel
ZELL/MERRILL LYNCH REAL ESTATE
OPPORTUNITY PARTNERS LIMITED
PARTNERSHIP II, General Partner
By: Equity Office Properties Trust, its
managing general partner
By: /s/ STANLEY M. STEVENS
------------------------------
Name: Stanley M. Stevens
Title: Executive Vice President and
Chief Legal Counsel
7
<PAGE> 1
EXHIBIT 10.1.3
AMENDMENT
AGREEMENT OF LIMITED PARTNERSHIP
OF
EOP OPERATING LIMITED PARTNERSHIP
THIS AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF EOP OPERATING
LIMITED PARTNERSHIP (this "Amendment"), dated September 3, 1998, is entered into
by EQUITY OFFICE PROPERTIES TRUST, a Maryland real estate investment trust, as
managing general partner (the "General Partner") of EOP Operating Limited
Partnership, a Delaware limited partnership (the "Partnership"), for itself and
on behalf of the limited partners of the Partnership.
WHEREAS, on September 2, 1997, Columbus America Properties, L.L.C.
("CAP") received 1,692,546 Class A (CAP Series) of limited partnership interest
("OP Units") in the Partnership in exchange for the office properties known as
Texaco Center, LL&E Tower and 601 Tchoupitoulas Garage pursuant to that certain
First Amendment to Agreement of Limited Partnership of EOP Operating Limited
Partnership dated September 2, 1997 (the "First Amendment"); and
WHEREAS, pursuant to the authority granted to the General Partner
under the Agreement of Limited Partnership of the Partnership dated as of July
3, 1997 (the "Partnership Agreement"), the General Partner desires to amend the
Partnership Agreement to reflect an extension and amendment of the provisions
contained in Paragraph 3(ii) of the First Amendment.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement as
follows:
1. Paragraph 3(ii) of the First Amendment is hereby amended and
restated in its entirety to read as follows:
"(ii) CAP shall have the right, exercisable
upon written notice to Partnership at any time and from
time to time before the earlier to occur of (a)
September 3, 2000, or (b) the date that CAP shall have
either transferred or converted all of its OP Units into
Common Shares, to require Partnership or General Partner
to acquire all, or any portion or portions, of CAP's OP
Units at $29.00 per OP Unit. The price for such OP Units
shall be paid by Partnership or General Partner, in
immediately available funds, within five (5) days after
receipt of such notice from CAP. The OP Units shall be
conveyed to the Partnership free and clear of all liens
and encumbrances, other than those liens and
encumbrances, if any, in favor of General Partner or
Partnership. At the closing of the acquisition of the OP
Units, the parties shall execute instruments of
assignment and conveyance in the form attached as
Exhibit "B" to the First Amendment and an
<PAGE> 2
amendment to the Partnership Agreement evidencing the
assignment of the OP Units to the Partnership or the
General Partner and the withdrawal of CAP as a Limited
partner of the Partnership with respect to the OP Units
assigned (the "Unit Acquisition Documents"). CAP agrees
not to exercise its rights to require acquisition of any
of the OP Units until January 1, 1999 and that its right
thereafter to require the Partnership or the General
Partner to acquire OP Units prior to September 3, 1999,
shall be limited to an aggregate of 846,273 OP Units,
exercisable at any time and from time to time. After
September 2, 1999 there shall be no limit on CAP's
ability to require the Partnership or the General
Partner to acquire from time to time all or any portion
or portions of the OP Units."
2. The last paragraph of paragraph 4 of the First Amendment
is hereby amended and restated in its entirety to read as follows:
"Upon the sale, redemption , conversion or other
disposition of the OP Units, the Deficit Obligation and the
Indemnity Obligation of CAP under this provision shall terminate
proportionately with the number of OP Units sold, redeemed,
converted or otherwise disposed of; provided however, a transferee
of CAP may in its sole discretion, assume the Deficit Obligation
and/or the Indemnity Obligation of CAP and, in such event, the
Deficit Obligation and the Indemnity Obligation shall be the
obligation solely of such transferee (but CAP's obligation shall in
all events be proportionately terminated as of the date of any such
disposition of its interest in the Partnership). Nothing in this
paragraph 4 of the Amendment shall in any way effect the sale,
exchange or conversion rights of CAP under the Partnership Agreement
or this Amendment.
All capitalized terms used in this Amendment and not otherwise
defined shall have the meanings assigned in the Partnership Agreement or the
First Amendment. Except as modified herein, all terms and conditions of the
Partnership Agreement and the First Amendment shall remain in full force and
effect, which terms and conditions the General Partner hereby ratifies and
affirms.
IN WITNESS WHEREOF, the undersigned as executed this Amendment as of
the date first set forth above.
EQUITY OFFICE PROPERTIES TRUST, a Maryland real
estate investment trust, as General Partner of EOP
Operating Limited Partnership and on behalf of
existing Limited Partners.
By: /s/ TIMOTHY H. CALLAHAN
----------------------------
Name: Timothy H. Callahan
Title: President and Chief Executive Officer
2
<PAGE> 3
COLUMBUS AMERICA PROPERTIES, L.L.C.
a Louisiana limited liability company
By: Columbus Southeast Properties, Inc., Manager
By: /s/ JOSEPH C. CANIZARO
-------------------------
Joseph C. Canizaro, President
3
<PAGE> 1
EXHIBIT 10.1.4
SEVENTH AMENDMENT
TO AGREEMENT OF LIMITED PARTNERSHIP
OF EOP OPERATING LIMITED PARTNERSHIP
THIS SEVENTH AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF EOP
OPERATING LIMITED PARTNERSHIP (this "Amendment"), dated September 30, 1998, is
entered into by EQUITY OFFICE PROPERTIES TRUST, a Maryland real estate
investment trust, as managing general partner (the "General Partner") of EOP
Operating Limited Partnership, a Delaware limited partnership (the
"Partnership"), for itself and on behalf of the limited partners of the
Partnership.
WHEREAS, on the date hereof, BRE/WORLDWIDE L.L.C. ("BRE") is
receiving 6,861,166 Class B units of limited partnership interest ("OP Units")
in the Partnership in exchange for, among other things, the office property
known as Worldwide Plaza in New York, New York (the "Property") pursuant to a
closing under, and as more particularly described in, that certain Agreement of
Purchase and Sale dated as of July 31, 1998 by and between the Partnership, BRE
and others (the "Purchase Agreement"); and
WHEREAS, BRE has assigned certain of the OP Units to its constituent
members as set forth on Schedule I (the "BRE Partnerships") which in turn have
assigned certain of the OP Units to their constituent partners as set forth on
Schedule 2 (the "BRE Partners" and together with BRE and the BRE Partnerships,
the "BRE Entities"); and
WHEREAS, the BRE Entities set forth on Schedule 3, Column A (the
"Electing BRE Entities") have elected to exercise their Redemption Rights under
the Partnership Agreement as evidenced by that certain Certificate of Election
dated September _, 1998; and
WHEREAS, BRE, the BRE Partnerships and the non-Electing BRE Entities
set forth on Schedule 3, Column B (collectively, the "Remaining BRE Entities")
desire to become parties to the Partnership Agreement and to be bound by all the
terms, conditions and other provisions of this Amendment and the Partnership
Agreement; and
WHEREAS, pursuant to the authority granted to the General Partner
under the Agreement of Limited Partnership of the Partnership dated as of July
3, 1997, and as amended thereafter (the "Partnership Agreement"), the General
Partner desires to amend the Partnership Agreement to admit the Remaining BRE
Entities as a result of the foregoing transactions, and to reflect in its
records the admission of the Remaining BRE Entities as Additional Limited
Partners and the holders of the OP Units; and
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement as
follows:
1. The Remaining BRE Entities (i) are hereby admitted as Additional
Limited Partners in accordance with Section 12.2 of this Partnership Agreement
holding the OP Units and (ii) hereby agree
<PAGE> 2
to become parties to the Partnership Agreement and to be bound by all of the
terms, conditions and other provisions of the Partnership Agreement.
2. Exhibit A to the Partnership Agreement hereby is amended by
inserting in such Exhibit A, the information set forth on Exhibit "A-1" attached
to this Amendment to reflect (i) those Remaining BRE Entities which remain as
Limited Partners subsequent to the consummation of all transactions contemplated
by, and/or closed immediately subsequent to, the closing of the Purchase
Agreement and (ii) the number of additional OP Units held by the General Partner
as a result of the election by the Electing BRE Entities to redeem the OP Units
set forth on Schedule 3, Column A.
3. Notwithstanding any provision in the Partnership Agreement to the
contrary, the Specified Redemption Date with respect to the OP Units shall be
September __, 1998.
4. The General Partner agrees that, notwithstanding the provisions
of Section 2.C of Exhibit C to the Partnership Agreement, for purposes of
allocating items of income, gain, loss and deduction with respect to the Assets
(as defined in the Purchase Agreement) in the manner required by Section 704(c)
of the Internal Revenue Code, as amended, the Partnership shall employ, and
shall cause any entity controlled by the Partnership which holds title to any of
the Assets to employ, the "traditional method" as set forth in Treasury
Regulations section 1.704-3(b).
5. Time is of the essence of each and every provision of this
Amendment.
6. All capitalized terms used in this Amendment and not otherwise
defined shall have the meanings assigned in the Partnership Agreement. Except as
modified herein, all terms and conditions of the Partnership Agreement shall
remain in full force and effect, which terms and conditions the General Partner
hereby ratifies and affirms.
2
<PAGE> 3
IN WITNESS WHEREOF, the undersigned has executed this Amendment as
of the date first set forth above.
GENERAL PARTNER:
EQUITY OFFICE PROPERTIES TRUST, a Maryland real
estate investment trust, as General Partner of EOP
Operating Limited Partnership and on behalf of
existing Limited Partners
By: /s/ STANLEY STEVENS
-------------------------------------
Name: Stanley Stevens
Title: EVP
REMAINING BRE ENTITIES:
BRE/WORLDWIDE L.L.C., a Delaware limited liability company
By: /s/ THOMAS J. SAYLAK
-------------------------------------
Name: Thomas J. Saylak
Title: Vice President
BLACKSTONE REAL ESTATE PARTNERS I L.P.
BLACKSTONE REAL ESTATE PARTNERS TWO L.P.
BLACKSTONE REAL ESTATE PARTNERS III L.P.
BLACKSTONE REAL ESTATE PARTNERS IV L.P.
BLACKSTONE RE CAPITAL PARTNERS L.P.
BLACKSTONE RE CAPITAL PARTNERS II L.P.
BLACKSTONE RE OFFSHORE CAPITAL PARTNERS L.P.
By: Blackstone Real Estate Associates L.P., a Delaware
limited partnership, general partner
By: BREA L.L.C., a Delaware limited liability
company, general partner
By: /s/ STEPHEN A. SCHWARZMAN
-----------------------------
Name: Stephen A. Schwarzman
Title: Founding Member
3
<PAGE> 4
WW WEST "A" ASSOCIATES L.P.
By: GLK West "A" Corp., general partner
By: /s/
------------------------------------
Name:
Title:
BLACKSTONE REAL ESTATE HOLDINGS L.P.
By: BREA L.L.C., a Delaware limited liability
company, general partner
By: /s/
------------------------------------
Name:
Title:
TRAVELERS INSURANCE CO.
By: /s/
--------------------------------------------
Name: John W. Fletcher
Title: Second Vice President
BLACKSTONE REAL ESTATE ASSOCIATES L.P.
By: BREA L.L.C., a Delaware limited liability
company, general partner
By: /s/
---------------------------------
Name:
Title:
BREA L.L.C.
By: /s/
------------------------------------------
Name:
Title:
4
<PAGE> 5
CENTAUR PARTNERS IV L.P.
By: SB WESTRIDGE, INC.
By: /s/
------------------------------------
Name:
Title:
SB WESTRIDGE, INC.
By: /s/
-----------------------------------
Name:
Title:
BLACKSTONE REAL ESTATE
CAPITAL ASSOCIATES L.P.
By: BCAS L.L.C., general partner
By: /s/ STEPHEN A. SCHWARZMAN
------------------------------------
Name: Stephen A. Schwarzman
Title:
BLACKSTONE REAL ESTATE
MANAGEMENT ASSOCIATES L.P.
By: /s/ STEPHEN A. SCHWARZMAN
-------------------------------------------
Name: Stephen A. Schwarzman
Title:
BLACKSTONE GROUP HOLDINGS L.P.
By: Blackstone Group Holdings L.L.C., general partner
By: /s/ STEPHEN A. SCHWARZMAN
---------------------------------------
Name: Stephen A. Schwarzman
Title: Founding Member
5
<PAGE> 6
BLACKSTONE FAMILY REAL
ESTATE PARTNERSHIP L.P.
By: Blackstone Real Estate Management Associates
L.P., general partner
By: /s/ STEPHEN A. SCHWARZMAN
-----------------------------
Name: Stephen A. Schwarzman
Title:
6
<PAGE> 1
EXHIBIT 10.1.5
EIGHTH AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
EOP OPERATING LIMITED PARTNERSHIP
This Eighth Amendment (this "Amendment") is made as of December 14, 1998
by and among Equity Office Properties Trust, a Maryland real estate investment
trust, as managing general partner (the "Company" or the "Managing General
Partner") of EOP Operating Limited Partnership, a Delaware limited partnership
(the "Partnership"), and as attorney-in-fact for the Persons named on Exhibit A
to the Agreement of Limited Partnership of EOP Operating Limited Partnership,
dated as of July 3, 1997, as amended, (the "Partnership Agreement") for the
purpose of amending the Partnership Agreement. Capitalized terms used herein and
not defined shall have the meanings given to them in the Partnership Agreement.
WHEREAS, the Company has issued and sold 4,600,000 8 5/8% Series C
Cumulative Redeemable Preferred Shares of Beneficial Interest (the "Series C
Preferred Shares") in an underwritten public offering (the "Offering") made
pursuant to the Company's effective shelf registration statement on Form S-3
(Reg. No. 333-58729), its prospectus dated July 22, 1998, and its related
prospectus supplement dated December 1, 1998; and
WHEREAS, the Managing General Partner has determined that it is necessary
and desirable to amend the Partnership Agreement (i) to create additional
Partnership Units having designations, preferences and other rights which are
substantially the same as the economic rights of the Series C Preferred Shares.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the Managing General Partner hereby amends the Partnership
Agreement as follows:
1. Article I of the Partnership Agreement is hereby amended by adding the
following definitions:
<PAGE> 2
"Series C Preferred Shares" means the 8 5/8% Series C Cumulative
Redeemable Preferred Shares of Beneficial Interest of the Company issued and
sold in the Offering; and
"Series C Preferred Units" means the series of Partnership Units
representing units of Limited Partnership Interests designated as the 8 5/8%
Series C Cumulative Redeemable Preferred Units with the designations,
preferences and other rights set forth herein.
2. In accordance with Section 4.2.A of the Partnership Agreement, set
forth below are the terms and conditions of the Series C Preferred Units hereby
established and issued to the Company in connection with the Partnership Merger.
A. Designation and Number. A series of Partnership Units designated
as Series C Preferred Units is hereby established. The number of Series C
Preferred Units shall be 4,600,000.
B. Rank. The Series C Preferred Units will, with respect to
distribution rights and rights upon liquidation, dissolution or winding up of
the Partnership, rank (a) senior to the Class A Units, Class B Units and all
Partnership Interests ranking junior to the Series C Preferred Units; (b) on a
parity with the Series A Preferred Units, the Series B Preferred Units and all
other Partnership Interests issued by the Partnership the terms of which
specifically provide that such Partnership Interests rank on a parity with the
Series C Preferred Units; and (c) junior to all Partnership Interests issued by
the Partnership the terms of which specifically provide that such Partnership
Interests rank senior to the Series C Preferred Units.
C. Distributions.
(i) Pursuant to Section 5.1 of the Partnership Agreement, holders of
Series C Preferred Units shall be entitled to receive, out of Available Cash,
cumulative preferential distributions of Available Cash at the rate of 8 5/8% of
the $25.00 liquidation preference per annum (equivalent to a fixed annual amount
of $2.15625 per unit). Such distributions shall accumulate on a daily basis and
be cumulative from the date of original issuance (December 8, 1998) and shall be
payable quarterly in arrears on March 15, June 15, September 15 and December 15
of each year or, if not a business day, the next succeeding business day (each a
"Series C Preferred Unit Distribution Payment Date"), commencing March 15, 1999.
Any distribution payable on the Series C Preferred Units for any partial
distribution period will be computed on the basis of a 360-day year consisting
of twelve 30-day months.
(ii) No distributions on Series C Preferred Units shall be authorized
or paid or set apart for payment at such time as the terms and provisions of any
2
<PAGE> 3
agreement of the Partnership, including any agreement relating to its
indebtedness, prohibits such authorization, payment or setting apart for payment
or provides that such authorization, payment or setting apart for payment would
constitute a breach thereof, or a default thereunder, or if such authorization
or payment shall be restricted or prohibited by law.
(iii) Notwithstanding the foregoing, distributions with respect to the
Series C Preferred Units will accumulate whether or not the terms and provisions
set forth in Section 2.C.(ii) at any time prohibit the current payment of
distributions, whether or not there is sufficient Available Cash for such
distributions and whether or not such distributions are authorized. Accumulated
but unpaid distributions on the Series C Preferred Units will accumulate as of
the Series C Preferred Unit Distribution Payment Date on which they first become
payable.
(iv) When distributions are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series C Preferred Units and any
other Partnership Interests ranking on a parity as to distributions with the
Series C Preferred Units, all distributions authorized upon the Series C
Preferred Units and any other Partnership Interests ranking on a parity as to
distributions with the Series C Preferred Units shall be authorized pro rata so
that the amount of distributions authorized per Partnership Unit of Series C
Preferred Units and such other Partnership Interests shall in all cases bear to
each other the same ratio that accumulated distributions per Partnership Unit on
the Series C Preferred Units and such other Partnership Interests (which shall
not include any accumulation in respect of unpaid distributions for prior
distribution periods if such other Partnership Interests do not have a
cumulative distribution) bear to each other. No interest, or sum of money in
lieu of interest, shall be payable in respect of any distribution payment or
payments on Series C Preferred Units which may be in arrears.
(v) Except as provided in Section 2.B.(iv), unless full cumulative
distributions on the Series C Preferred Units have been or contemporaneously are
authorized and paid or authorized and a sum sufficient for the payment thereof
is set apart for payment for all past distribution periods and the then current
distribution period, no distributions (other than in Partnership Interests
ranking junior to the Series C Preferred Units as to distributions and upon
liquidation) shall be authorized or paid or set aside for payment nor shall any
other distribution be authorized or made upon the Class A Units, the Class B
Units, or any other Partnership Interests ranking junior to or on a parity with
the Series C Preferred Units as to distributions or upon liquidation, nor shall
any Class A Units, Class B Units, or any other Partnership Interests ranking
junior to or on a parity with the Series C Preferred Shares as to distributions
or upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any such units or other
3
<PAGE> 4
Partnership Interests) by the Partnership (except by conversion into or
exchange for Partnership Interests ranking junior to the Series C Preferred
Units as to distributions and upon liquidation).
(vi) Holders of the Series C Preferred Units shall not be entitled to
any distribution, whether payable in cash, property or Partnership Units in
excess of full cumulative distributions on the Series C Preferred Units as
described above. Any distribution payment made on the Series C Preferred Units
shall first be credited against the earliest accumulated but unpaid distribution
due with respect to such Series C Preferred Units which remains payable.
D. Allocations.
Allocations of the Partnership's items of income, gain, loss and
deduction shall be allocated among holders of Series C Preferred Units in
accordance with Article VI of the Partnership Agreement.
E. Liquidation Preference.
(i) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Partnership, the holders of Series C Preferred
Units then outstanding are entitled to be paid out of the assets of the
Partnership available for distribution to the Partners pursuant to Section
13.2.A of the Partnership Agreement a liquidation preference of $25.00 per
Series C Preferred Unit, plus an amount equal to any accumulated and unpaid
distributions to the date of payment, before any distribution of assets is made
to holders of Class A Units, Class B Units or any other Partnership Interests
that rank junior to the Series C Preferred Units as to liquidation rights.
(ii) In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Partnership
are insufficient to pay the amount of the liquidating distributions on all
outstanding Series C Preferred Units and the corresponding amounts payable on
all other Partnership Interests ranking on a parity with the Series C Preferred
Units in the distribution of assets, then such assets shall be allocated among
the Series C Preferred Units, as a class, and each class or series of such other
such Partnership Interests, as a class, in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled.
(iii) After payment of the full amount of the liquidating distributions
to which they are entitled, the holders of Series C Preferred Units will have no
right or claim to any of the remaining assets of the Partnership.
(iv) The consolidation or merger of the Partnership with or into any
other partnership, corporation, trust or entity or of any other partnership,
corporation, trust or other entity with or into the Partnership or the sale,
lease or
4
<PAGE> 5
conveyance of all or substantially all of, the property or business of
the Partnership, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Partnership for purposes of this Section 2.E.
F. Redemption.
In connection with a redemption by the Company of any or all of the
Series C Preferred Shares, the Partnership shall provide cash to the Company for
such purpose which shall be equal to redemption price of the Series C Preferred
Shares to be redeemed and one Series C Preferred Unit shall be canceled with
respect to each Series C Preferred Share so redeemed. From and after the date in
which the Series C Preferred Shares are redeemed, the Series C Preferred Units
so canceled shall no longer be outstanding and all rights hereunder, to
distributions or otherwise, with respect to such Series C Preferred Units shall
cease.
3. Except as modified herein, all terms and conditions of the
Partnership Agreement shall remain in full force and effect, which terms and
conditions the Managing General Partner hereby ratifies and confirms.
4. This Amendment is effective as of the date first set forth above.
5
<PAGE> 6
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first set forth above.
EQUITY OFFICE PROPERTIES TRUST, a Maryland
real estate investment trust, as Managing
General Partner of EOP Operating Limited
Partnership and on behalf of existing
Limited Partners.
By: /s/ STANLEY M. STEVENS
--------------------------------------
Name: Stanley M. Stevens
--------------------------------------
Title: Executive Vice President and Chief
Legal Counsel
ZELL/MERRILL LYNCH REAL ESTATE
OPPORTUNITY PARTNERS LIMITED
PARTNERSHIP II, General Partner
By: Equity Office Properties Trust, its
managing general partner
By: /s/ STANLEY M. STEVENS
------------------------------------
Name: Stanley M. Stevens
------------------------------------
Title: Executive Vice President and
Chief Legal Counsel
6
<PAGE> 1
EXHIBIT 10.1.6
TENTH AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP
OF EOP OPERATING LIMITED PARTNERSHIP
THIS TENTH AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF EOP OPERATING
LIMITED PARTNERSHIP (this "AMENDMENT"), dated October 1, 1999, is entered into
by EQUITY OFFICE PROPERTIES TRUST, a Maryland real estate investment trust, as
managing general partner (the "GENERAL PARTNER") of EOP Operating Limited
Partnership, a Delaware limited partnership (the "PARTNERSHIP"), for itself and
on behalf of itself and the Limited Partners of the Partnership, and that or
those persons whose signatures are set forth on the signature pages attached
hereto.
WHEREAS, on the date hereof, PALO ALTO SQUARE LIMITED PARTNERSHIP, an
Illinois limited partnership ("CONTRIBUTOR"), is receiving 1,012,623 Class B
Units of limited partnership interest in the Partnership ("OP UNITS") in
exchange for certain real property interests, pursuant to a closing under, and
as more particularly described in, that certain Contribution Agreement dated
September 28, 1999, by and between the General Partner (or its permitted
assignees) and Contributor (the "CONTRIBUTION AGREEMENT"). The Contributor is
the owner of certain property (the "PROPERTY") described in the Contribution
Agreement.
WHEREAS, Contributor has assigned the OP Units to its constituent partners
as set forth on Schedule 1 who desire to become Limited Partners of the
Partnership (the "EQUITY HOLDERS").
WHEREAS, pursuant to the authority granted to the General Partner under
the Agreement of Limited Partnership of the Partnership dated as of July 3,
1997, as amended thereafter (as so amended, the "PARTNERSHIP AGREEMENT"), the
General Partner desires to amend the Partnership Agreement to reflect (i) the
admission of the Contributor as an Additional Limited Partner, (ii) the
admission of the Equity Holders as Substituted Limited Partners and the holders
of the OP Units and (iii) certain other matters described herein.
WHEREAS, the Contributor and the Equity Holders desire to become a party
to the Partnership Agreement and to be bound by all of the terms, conditions
and other provisions of this Amendment and the Partnership Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement as
follows:
1. ADMISSION TO PARTNERSHIP. The Contributor is hereby admitted to the
Partnership as an Additional Limited Partner in accordance with Section 12.2 of
the Partnership Agreement and hereby agrees to become a party to the
Partnership Agreement and to be bound by all of the terms, conditions and other
provisions of the Partnership Agreement, including, but not limited to, the
power of attorney set forth in Section 15.11 of the Partnership Agreement. The
General Partner hereby consents to the transfer of the OP Units from the
<PAGE> 2
Contributor to the Equity Holders as reflected on Schedule 1 attached hereto.
Accordingly, the Equity Holders are hereby admitted to the Partnership as
Substituted Limited Partners in accordance with Section 11.4 of this
Partnership Agreement and hereby agree to become parties to the Partnership
Agreement and to be bound by all of the terms, conditions and other provisions
of the Partnership Agreement (as amended by this Amendment), including, but not
limited to, the power of attorney set forth in Section 15.11 of the Partnership
Agreement, and the Contributor is no longer a Limited Partner of the
Partnership.
2. RESTATEMENT OF EXHIBIT A. Exhibit A to the Partnership Agreement
hereby is amended by replacing such Exhibit A with Exhibit "A" attached to this
Amendment.
3. RIGHT TO ASSIGN. Notwithstanding any other provision of this
Amendment or of the Partnership Agreement, the Equity Holders shall have the
right to assign all or any portion of their OP Units, together with any and all
other rights of the Equity Holders pursuant to this Amendment or the
Partnership Agreement, to one or more of the constituent partners or
shareholders, members, partners or beneficiaries of constituent partners of the
Equity Holders on the date hereof, whether direct or indirect, without the need
for the consent of the Managing General Partner or any other General Partner or
Limited Partner and without being subject to the right of first refusal set
forth in Section 11.3.A(a) of the Partnership Agreement, but in each case
subject to the restrictions and conditions set forth in Sections 11.3.C,
11.3.D, 11.3.E, 11.6.E and 11.6.F of the Partnership Agreement. Upon the
delivery of written notice of such an assignment to the Managing General
Partner, each assignee of OP Units pursuant to the immediately preceding
sentence shall be admitted to the Partnership as a Substituted Limited Partner
owning the OP Units so assigned and having all of the rights of a Limited
Partner under the Partnership Agreement and this Amendment, subject only to
such assignee executing and delivering, to the Partnership an acceptance of all
of the terms and conditions of the Partnership Agreement and such other
documents or instruments as the Managing General Partner may reasonably require
to effect such admission, in accordance with Section 11.4.B of the Partnership
Acreement. Each permitted assignee of any of the OP Units, issued to the
Contributors pursuant to the Contribution Agreement and subsequently
transferred to the Equity Holders, that is admitted as a Substituted Limited
Partner in accordance with this Section 3 or Article XI of the Partnership
Agreement, for so long as such Person owns any such OP Units, is referred to in
this Amendment as an "Indirect Equity Holder." Upon satisfaction of the
condition described in the second sentence of this Section 3, the Managing
General Partner shall amend Exhibit A to the Partnership Agreement in the manner
described in Section 11.4.C of the Partnership Agreement. For purposes of
Section 8.6 of the Partnership Agreement, each Equity Holder and Indirect Equity
Holder shall be entitled to exercise its right to require the Partnership to
redeem all or any portion of the OP Units assigned to it by an Equity Holder at
any time on or after the date hereof.
2
<PAGE> 3
4. ADJUSTMENTS TO CARRYING VALUES.
(a) The Carrying Values of the Assets of the Partnership shall be
adjusted in accordance with the procedures described in Section 1.D of Exhibit
B to the Partnership Agreement: provided, however, that in order to minimize
the administrative burden associated with the adjustments required by this
Section 4(a) in connection with the distribution of the Cash Amount to an Equiy
Holder, or an Indirect Equity Holder, the Partnership shall make the
adjustments to the Carrying Values of the Partnership's Assets (and the
resulting adjustments to the Capital Accounts of the Partners) only upon the
happening of the most material event during the calendar year that is described
in Section 1.D(2) of Exhibit B to the Partnership Agreement (the "ANNUAL
ADJUSTMENT"); and provided further, that upon the distribution of the Cash
Amount to an Equity Holder or an Indirect Equity Holder or, at the option of
the General Partner, upon the occurrence of any other event described in
Section 1.D(2) of Exhibit B to the Partnership Agreement, that occurs during
any year other than as of the date of the Annual Adjustment, the Partnership
shall, at the time of such distribution, make adjustments to the Carrying
Values of the Partnership's Assets in accordance with the procedures described
in Section 1.D of Exhibit B to the Partnership Agreement for purposes of
adjusting the Capital Account of an Equity Holder, or such Indirect Equity
Holder who has exercised his Redemption Right or such other affected Partner,
but no such adjustments shall be necessary at such time with respect to the
Capital Account balances of Partners who remain Partners through the date of
the Annual Adjustment or are otherwise not directly affected by any such other
event.
(b) Any determination of the fair market value of Partnership
assets pursuant to Section 1.D of Exhibit B to the Partnership Agreement (for
purposes of calculating Unrealized Gain or Unrealized Loss) with respect to
adjusting the Carrying Values of Partnership assets in connection with the
exercise of Redemption Rights by an Equity Holder or any Indirect Equity Holder
shall be made by assuming that the aggregate fair market value of all
Partnership assets is equal to the aggregate Cash Amount that would be
distributed by the Partnership if all Partnership Units held by all Partners
(including the General Partners) were redeemed in exchange for the Cash Amount
with respect to each such Partnership Unit at such time, provided, however,
such valuation methodology shall not be utilized for purposes of determining the
fair market value of the Partnership's assets with respect to any such exercise
of redemption Rights in contemplation of an assignment by or reorganization of
the Partnership for the benefit of creditors and any liquidation of the
Partnership related thereto or following the filing by (or in contemplation of a
filing) by the Partnership of a case under Title 11 of the U.S. Code.
5. ALLOCATIONS. Nothwithstanding the provisions of Section 2.C of
Exhibit C to the Partnership Agreement, for purposes of allocating items of
income, gain, loss and deduction with respect to the Property in the manner
required by Section 704(c) of the Code, the Partnership shall employ, and shall
cause any entity controlled by the Partnership which holds title to any of the
Property to employ, the "traditional method" as set forth in Regulation Section
1.704-3(b).
3
<PAGE> 4
6. OBLIGATION TO RESTORE DEFICIT CAPITAL ACCOUNTS.
(a) For purposes of this Section 6, the following terms shall have
the meanings set forth below:
(i) "Aggregate Protected Amount" means the aggregate
balances of the Protected Amounts, if any, of all Protected
Partners, as determined on the date in question.
(ii) "Protected Amount" means, with respect to any
Protected Partner, an amount equal to (i) the taxable gain, if
any, that would be realized by such Protected Partner if such
Partner were to dispose of its Partnership Interests for no
consideration other than the release or deemed release of
liabilities of the Partnership assumed by or otherwise
allocable to such Partner under Code Section 752, as such
hypothetical gain is determined from time to time, less (ii)
such Partner's share of "qualified nonrecourse financing" as
defined in Code Section 465(b)(6) and the Treasury Regulations
thereunder, as such share is determined from time to time in
accordance with Treasury Regulations Section 1.752-3(a). The
Protected Amount allocable to any Protected Partner may be
modified from time to time by an amendment to the Agreement or
by execution of a written instrument by and between such
Protected Partner and the General Partner, acting on behalf of
the Partnership and without the prior written consent of any
other Partner (whether or not Protected Partners).
(iii) "Protected Partner(s)" means that or those Limited
Partner(s) designated as Protected Partner(s) on Exhibit A
attached hereto and made a part hereof, as such designation
may be modified from time to time by the General Partner,
whether by express amendment to this Agreement or by execution
of a written instrument by and between any Protected
Partner(s) and the General Partner, acting on behalf of the
Partnership and without the prior consent of other Limited
Partners (whether or not Protected Partners). For purposes
hereof, any successor, assignee, or transferee of Partnership
Interests from a Protected Partner, which successor, assignee
or transferee determines its basis in such Units by reference
to the basis of the predecessor, assignor or transferor
Protected Partner, shall be considered a Protected Partner for
purposes hereof.
(iv) "Recourse Liabilities" means the amount of
liabilities owed by the Partnership (other than Nonrecourse
Liabilities and liabilities to which Partner Nonrecourse
Deductions are attributable in accordance with Treasury
Regulations Section 1.704-2(i)).
(b) Notwithstanding any provision of the Partnership Agreement to
the contrary (including, without limitation, the second sentence of Section
13.3 of the Partnership
4
<PAGE> 5
Agreement), upon liquidation of the Partnership or upon the liquidation of the
Partnership Interest of a Protected Partner, such Protected Partner whose
interest is being liquidated shall contribute to the Partnership in accordance
with Treasury Regulation Section 1.704-1(b)(2)(ii)(b)(2), the deficit balance,
if any, in its Capital Account, calculated after the allocation for such year of
all items of Net Income, Net Losses, Gross Income and Unrealized Gain or
Unrealized Loss allocated in accordance with Section 6.1 of the Partnership
Agreement, Section l.D of Exhibit B to the Partnership Agreement, and modified
by Section 7 of this Amendment; provided, however, that in no event shall such
contribution obligation for any Protected Partner exceed such Protected
Partner's Protected Amount. The obligation created pursuant to this Section
6(b) shall be for the benefit of the Partnership, its general partners (the
"GENERAL PARTNERS"), the creditors of the Partnership or any other person to
whom any debts, liabilities or obligations are owed by (or who otherwise has any
claim against) the Partnership or the General Partners in their capacities as
general partners of the Partnership and shall be enforceable by such parties.
Each Protected Partner unconditionally and irrevocably waives any subrogation,
reimbursement or similar rights to which it might otherwise be entitled as the
result of its performance with respect to the obligation created pursuant to
this Section 6(b), whether such rights arise with respect to the Partnership,
another Partner of the Partnership or a third party; provided, however, that the
General Partners shall in all events be entitled to enforce the contribution
obligation of a Protected Partner undertaken pursuant to Section 6(b).
Notwithstanding anything herein to the contrary, the obligation of a Protected
Partner to contribute amounts pursuant to this paragraph shall continue in full
force and effect in accordance with the terms hereof until one year following
the transfer or other disposition by such Protected Partner of its Partnership
Interests unless the Partnership and such Protected Partner agree otherwise.
Unless expressly agreed by the parties to the contrary in this or an other
agreement, any Partner of the Partnership who is not a Protected Partner shall
have no obligation to contribute amounts to the Partnership.
7. ALLOCATIONS OF NET INCOME AND NET LOSSES.
For purposes of maintaining Capital Accounts and in determining the
rights of the Partners among themselves, Partnership income, gain, loss and
deductions (computed in accordance with Exhibit B of the Partnership Agreement)
shall be allocated among the Partners in each taxable year (or portion thereof)
as provided in Section 6.1 of the Partnership Agreement, subject to the
following adjustments:
(a) Net Income. After giving effect to the special allocations
set forth in Section 1 of Exhibit C of the Partnership Agreement, Net Income
otherwise allocable to the General Partners pursuant to the provisions of
Section 6.1.A(i) of the Partnership Agreement shall be allocated:
(i) first, to the General Partners to the extent that
cumulative Net Losses previously allocated the General
Partners pursuant to Section 7(b)(iii) of this Amendment
exceed cumulative Net Income previously allocated to the
General Partners pursuant to this clause (i);
5
<PAGE> 6
(ii) next, to each Protected Partner until the cumulative
Net Income allocated such Protected Partner under this clause
(ii) equals the cumulative Net Losses allocated such Protected
Partner under Section 7(b)(ii) of this Amendment (and, within
the class of Protected Partners, pro rata in proportion to
their respective percentages of the cumulative Net Losses
allocated all Protected Partners pursuant to Section 7(b)(ii)
hereof); and
(iii) thereafter, to the General Partners until the
cumulative Net Income allocated under this clause (iii) equals
the cumulative Net Losses allocated the General Partners under
Section 7(b)(i) of this Amendment.
(b) Net Losses. After giving effect to the special allocations
set forth in Section 1 of Exhibit C of the Partnership Agreement, Net Losses
otherwise allocable to the General Partners pursuant to the last sentence of
Sections 6.1.B of the Partnership Agreement shall be allocated:
(i) first, to the General Partners in an amount equal to
the excess of (a) the amount of Recourse Liabilities over (b)
the Aggregate Protected Amount;
(ii) next, to and among the Protected Partners, in
proportion to their respective Protected Amounts, until such
time as the Protected Partners have been allocated cumulative
Net Losses pursuant to this clause (ii) equal to the Aggregate
Protected Amount; and
(iii) thereafter, to the General Partners.
8. AMENDMENTS. Notwithstanding any provision in the Partnership
Agreement to the contrary, the provisions of this Amendment may be waived or
amended or otherwise modified with the prior written consent of holders (being
either the Equity Holders and/or the Indirect Equity Holders) of more than
seventy-five percent (75%) of the OP Units at the time outstanding and without
the consent of any other Limited Partner.
9. TIME IS OF THE ESSENCE. Time is of the essence of each and
every provision of this Amendment.
10. DEFINED TERMS. All capitalized terms used in this Amendment
and not otherwise defined shall have the meanings assigned to them in the
Partnership Agreement. Except as modified herein, all terms and conditions of
the Partnership Agreement shall remain in full force and effect, which terms
and conditions the General Partner hereby ratifies and affirms.
6
<PAGE> 7
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of
the date first set forth above.
EQUITY OFFICE PROPERTIES TRUST, a Maryland
real estate investment trust, a General
Partner of EOP Operating Limited
Partnership and on behalf of existing
Limited Partners
By: /s/ STANLEY M. STEVENS
-------------------------------
Name: Stanley M. Stevens
Title: Executive Vice President
CONTRIBUTOR:
PALO ALTO SQUARE LIMITED PARTNERSHIP, an Illinois
limited partnership, by its general partner:
Samuel Zell, Robert Lurie General
Partners, an Illinois partnership, by one
of its general partners:
Zell General Partners, Inc., an
Illinois corporation
By: /s/ DONALD J. LIEBENTRITT
--------------------------
Name: Donald J. Liebentritt
Title: Executive Vice President
7
<PAGE> 8
SIGNATURES CONTINUED
EQUITY HOLDERS:
/s/ ADRIENNE NASSAU
-----------------------------
Adrienne Nassau
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ AN
---------------
ANDA Partnership
By: /s/ MARK SLEVAK
-----------------------
Its: Trustee
-------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ MS
---------------
8
<PAGE> 9
SIGNATURES CONTINUED
/s/ EDWARD H. SCHWARTZ
-----------------------------
Edward H. Schwartz
TO BECOME A PROTECTED PARTNER
INITIAL HERE:
---------------
Estate of Sylvia K. Grossman
By: /s/
-----------------------
Its:
------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE:
---------------
9
<PAGE> 10
SIGNATURES CONTINUED
Henry A. Proesel Descendants Trusts
Partnership
By: /s/ MARGARET E. MCNAMARA, Co-Trustee
------------------------------------
Its: Partner
------------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ MEM
----------------------------
Hugh M. Hefner 1991 Trust
By: /s/ HUGH HEFNER
---------------------------------
Its:
----------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE:
---------------------------
Isabelle Kole Stein Trust
By: /s/ ISABELLE KOLE STEIN
---------------------------------
Its:
----------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ IKS
----------------------------
10
<PAGE> 11
SIGNATURES CONTINUED
James V. Proesel Marital Exempt Trust
By: /s/ MARGARET E. MCNAMARA, Co-Trustee
------------------------------------
Its: Co-Trustee
--------------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ MEM
---------------------------
/s/ JUDITH MOLINSKY
------------------------------------------
Judith Molinsky
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ JM
---------------------------
11
<PAGE> 12
SIGNATURES CONTINUED
LFT Partnership
By: /s/ ANN LURIE
------------------------
Its: Trustee
------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ AL
---------------
/s/ MORTON H. FRIEDMAN
-----------------------------
Morton H. Friedman
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ MHF
--------------
/s/ MORTON S. GROSSMAN
-----------------------------
Morton S. Grossman
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ MSG
--------------
12
<PAGE> 13
SIGNATURES CONTINUED
Robert H. & Ann Lurie Trust
By: /s/ MARK SLEZAK
-------------------------
Its: Trustee
--------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ MS
---------------
Robert Scot Bldg Venture
By: /s/ ROBERT HARRIS
-------------------------
Its: TTEE
--------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ RH
---------------
RSB Properties Trust
By: /s/
-------------------------
Its: Trustee
--------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/
---------------
Seiler Trust UTA dated 3/15/95
By: /s/ DONALD H. SEILER
-------------------------
Its: Trustee
--------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ DS
---------------
13
<PAGE> 14
SIGNATURES CONTINUED
Seiler Family Revocable Trust dated 9/18/90
By: /s/ STUART W. SEILER
---------------------------------------
Its: Trustee
---------------------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ SWS
------------------------------
Helen S. Fredkin Revocable Trust
By: /s/ HELEN S. FREDKIN REV. TRUST
---------------------------------------
Its: Trustee
----------------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ HSF
------------------------------
14
<PAGE> 15
SIGNATURES CONTINUED
Sgm & Pin Trust
By: /s/ STUART MOLDAW
--------------------------
Its:
---------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ SM
--------------
Steven Kole Trust
By: /s/ STEVEN M. KOLE
--------------------------
Its: Trustee
---------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ SMK
--------------
By: /s/ SUSAN HANDELMAN MILLER
--------------------------
Susan Handelman Miller
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ SHM
---------------
By: /s/ VICTOR A. LOWNES
--------------------------
Victor A. Lownes, III
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ VAL
--------------
15
<PAGE> 16
SIGNATURES CONTINUED
Samstock/Alpha, L.L.C.
By: /s/ DONALD J. LIEBENTRITT
---------------------------------------
Its: Vice President
---------------------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ DJL
----------------------------
Samstock/SZRT, L.L.C.
By: /s/ DONALD J. LIEBENTRITT
-------------------------------------
Its: Vice President
--------------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ DJL
----------------------------
Samstock/ZFT, L.L.C.
By: /s/ DONALD J. LIEBENTRITT
---------------------------------------
Its: Vice President
---------------------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ DJL
----------------------------
Samstock/ZGPI, L.L.C.
By: /s/ DONALD J. LIEBENTRITT
---------------------------------------
Its: Vice President
---------------------------------------
TO BECOME A PROTECTED PARTNER
INITIAL HERE: /s/ DJL
----------------------------
16
