<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 14, 1998
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
EOP OPERATING LIMITED PARTNERSHIP
(Exact name of registrant as specified in its governing instrument)
<TABLE>
<S> <C> <C>
DELAWARE 6798 36-4156801
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
TWO NORTH RIVERSIDE PLAZA, SUITE 2200
CHICAGO, ILLINOIS 60606
(Address of principal executive offices)
------------------------
STANLEY M. STEVENS
EXECUTIVE VICE PRESIDENT-CHIEF LEGAL COUNSEL
EQUITY OFFICE PROPERTIES TRUST
TWO NORTH RIVERSIDE PLAZA, SUITE 2200
CHICAGO, ILLINOIS 60606
(Name and address of agent for service)
------------------------
COPIES TO:
J. WARREN GORRELL, JR.
JAMES E. SHOWEN
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]______________________________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]______________________________
------------------------
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT BEING OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BEING REGISTERED REGISTERED SECURITY(1) PRICE(1) REGISTRATION FEE
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6.50% Notes due 2004................. $250,000,000 100% $250,000,000
6.763% Notes due 2007................ 300,000,000 100% 300,000,000
7.25% Notes due 2028................. 225,000,000 100% 225,000,000
Debt Warrants to Purchase 6.763%
Notes due 2008..................... 300,000 $8.00 $ 2,400,000
Total Notes and Debt Warrants...... $777,400,000 $229,333
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(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(a).
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED AUGUST 14, 1998
PROSPECTUS
EOP OPERATING LIMITED PARTNERSHIP
OFFER TO EXCHANGE
$250,000,000 6.50% NOTES DUE 2004 FOR ANY AND ALL OUTSTANDING 6.50% NOTES DUE
2004
$300,000,000 6.763% NOTES DUE 2007 FOR ANY AND ALL OUTSTANDING 6.763% NOTES DUE
2007
$225,000,000 7.25% NOTES DUE 2028 FOR ANY AND ALL OUTSTANDING 7.25% NOTES DUE
2028
300,000 DEBT WARRANTS TO PURCHASE $300,000,000 6.763% NOTES DUE 2008 FOR ANY AND
ALL
OUTSTANDING DEBT WARRANTS TO PURCHASE $300,000,000 6.763% NOTES DUE 2008
------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 1998 UNLESS EXTENDED.
------------------------
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Company"), is making this Exchange Offer (the "Exchange Offer") to exchange its
outstanding 6.50% Notes due 2004 (the "2004 Notes"), 6.763% Notes due 2007 (the
"2007 Notes"), 7.25% Notes due 2028 (the "2028 Notes" and collectively with the
2004 Notes and the 2007 Notes, the "Private Notes") and Debt Warrants (the
"Private Warrants") to Purchase $300,000,000 6.763% Notes due 2008 (the
"Underlying Notes"), which are not freely transferable, for its 6.50% Notes due
2004 (the "2004 Exchange Notes"), 6.763% Notes due 2007 (the "2007 Exchange
Notes"), 7.25% Notes due 2028 (the "2028 Exchange Notes" and collectively with
the 2004 Exchange Notes and the 2007 Exchange Notes, the "Exchange Notes") and
Debt Warrants to Purchase $300,000,000 6.763% Notes due 2008 (the "Exchange
Warrants") offered hereby, which will be subject to fewer restrictions on
transfer, as described below. The Private Notes, the Underlying Notes and the
Exchange Notes are sometimes collectively referred to as the "Notes." The
Private Warrants and the Exchange Warrants are sometimes collectively referred
to as the "Warrants."
SEE "RISK FACTORS" COMMENCING ON PAGE 15 FOR A DISCUSSION OF MATERIAL RISKS
THAT SHOULD BE CONSIDERED IN CONNECTION WITH THE EXCHANGE OFFER AND AN
INVESTMENT IN THE EXCHANGE NOTES OR THE EXCHANGE WARRANTS, INCLUDING:
- Restrictions on transfer of the Private Notes and the Private Warrants
will continue for holders who do not exchange such Private Notes and
Private Warrants in the Exchange Offer;
- Payments due under the Notes will be effectively subordinated to
mortgages and other secured indebtedness of the Company, as well as to
indebtedness and other liabilities of the Company's subsidiaries;
- The Exchange Notes and the Exchange Warrants will not be listed on any
exchange. A public market for the Exchange Notes and the Exchange
Warrants may not develop, which could make it difficult or impossible to
sell the Exchange Notes and the Exchange Warrants, or, if such a market
were to develop, the Exchange Notes and the Exchange Warrants could trade
at prices that may be higher or lower than the initial offering prices of
the Private Notes and the Private Warrants, respectively; and
[Cover page continued on next page]
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OF THESE SECURITIES, OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. IT IS ILLEGAL FOR ANY PERSON TO TELL YOU OTHERWISE.
------------------------
The date of this Prospectus is August , 1998.
<PAGE> 3
[Cover page continued from prior page]
- The Exchange Notes are subject to provisions that allow them to be
redeemed at any time prior to the stated maturity date at the option of
the Company.
The 2004 Exchange Notes will mature on June 15, 2004; the 2007 Exchange
Notes will mature on June 15, 2007; and the 2028 Exchange Notes will mature on
June 15, 2028. The Exchange Notes will be redeemable at any time at the option
of the Company, in whole or in part, at a redemption price equal to the sum of
(i) the principal amount of the Exchange Notes being redeemed plus accrued
interest to the redemption date and (ii) the Make-Whole Amount (as defined in
"Description of the Exchange Notes -- Optional Redemption"), if any. The
Exchange Notes will not be subject to any mandatory sinking fund. See
"Description of the Exchange Notes."
Interest on the Exchange Notes will be payable semi-annually in arrears on
June 15 and December 15 of each year, commencing December 15, 1998.
The Private Notes are, and the Exchange Notes will be, senior unsecured
obligations of the Company and will rank equal with each other and with the
Company's other unsecured and unsubordinated indebtedness. The Private Notes
are, and the Exchange Notes and Underlying Notes will be, effectively
subordinated to mortgages and other secured indebtedness of the Company as well
as to indebtedness and other liabilities of the Company's subsidiaries.
The Company will accept for exchange any and all validly tendered Private
Notes and Private Warrants not withdrawn prior to 5:00 p.m., New York City time,
on , 1998 (the "Expiration Date"), unless the Exchange Offer is
extended by the Company in its sole discretion. The Company believes that the
Exchange Notes and the Exchange Warrants issued pursuant to the Exchange Offer
in exchange for the Private Notes and Private Warrants, respectively, may be
offered for resale, resold and otherwise transferred by a holder thereof (other
than by (i) a broker-dealer who purchased the Private Notes or the Private
Warrants, as applicable, directly from the Company or (ii) a person that is an
affiliate of the Company within the meaning of Rule 405 under the Securities Act
of 1933, as amended (the "Securities Act")), without compliance with the
registration and prospectus delivery requirements of the Securities Act,
provided that the holder is acquiring Exchange Notes or Exchange Warrants, as
applicable, in the ordinary course of its business and is not participating,
does not intend to participate, and has no arrangement or understanding with any
person to participate, in the distribution of the Exchange Notes or Exchange
Warrants, as applicable. Holders of Private Notes or Private Warrants, as
applicable, wishing to accept the Exchange Offer must represent to the Company
that such conditions have been met. This Prospectus, as it may be amended or
supplemented from time to time, also may be used by a broker-dealer in
connection with any resale of the Exchange Notes and the Exchange Warrants
received for Private Notes or Private Warrants, respectively, where such Private
Notes or Private Warrants were acquired by a broker-dealer as a result of
market-making or other trading activities. The Company has agreed that for a
period of 180 days after the Expiration Date, it will make this Prospectus, as
may be amended or supplemented from time to time, available to any broker-dealer
for use in connection with any such resales. See "Plan of Distribution."
Any beneficial owner whose Private Notes or Private Warrants, as
applicable, are registered in the name of a broker, dealer, commercial bank,
trust company or other nominee and who wishes to tender such Private Notes or
Private Warrants in the Exchange Offer should contact such registered holder
promptly and instruct such registered holder to tender on the beneficial owner's
behalf. Any such beneficial owner that wishes to tender on its own behalf must,
prior to completing and executing the letter of transmittal delivered herewith
and delivering its Private Notes or Private Warrants, as applicable, either make
appropriate arrangements to register ownership of the Private Notes or the
Private Warrants, as applicable, in its own name, if permitted pursuant to the
terms of such Private Notes or Private Warrants, as applicable, or obtain a
properly completed bond power from the registered holder. The transfer of
registered ownership may take considerable time, and it may not be possible to
complete the transfer prior to the Expiration Date.
THIS PROSPECTUS INCORPORATES BY REFERENCE IMPORTANT BUSINESS AND FINANCIAL
INFORMATION ABOUT THE COMPANY THAT IS NOT INCLUDED HEREIN OR DELIVERED HEREWITH.
COPIES OF THIS INFORMATION WILL BE PROVIDED
ii
<PAGE> 4
WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM THIS
PROSPECTUS IS DELIVERED UPON WRITTEN OR ORAL REQUEST. REQUESTS SHOULD BE
DIRECTED TO EOP OPERATING LIMITED PARTNERSHIP C/O EQUITY OFFICE PROPERTIES
TRUST, TWO NORTH RIVERSIDE PLAZA, SUITE 2200, CHICAGO, ILLINOIS 60606,
ATTENTION: DIANE MOREFIELD (TELEPHONE NUMBER: (312) 466-3300). TO ENSURE TIMELY
DELIVERY, REQUESTS MUST BE MADE NO LATER THAN , 1998. [INSERT
DATE FIVE BUSINESS DAYS BEFORE THE EXPIRATION DATE.]
iii
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
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PAGE
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Available Information................... 2
Incorporation of Certain Documents by
Reference............................. 2
Summary................................. 4
The Company........................... 4
The Exchange Offer.................... 6
The Exchange Notes.................... 9
The Exchange Warrants................. 10
No Cash Proceeds to the Company....... 10
Summary Risk Factors.................. 11
Summary Selected Financial
Information........................ 12
Risk Factors............................ 15
Restrictions on Transfer of Private
Notes and Private Warrants Will
Continue If Private Notes or
Private Warrants, As Applicable,
Are Not Tendered or Are Not
Accepted for Exchange.............. 15
There Is No Current Public Market for
Exchange Notes or Exchange
Warrants........................... 15
The Notes Are Effectively Subordinated
to Our Secured Indebtedness and
Certain Other Indebtedness of Our
Subsidiaries....................... 16
The Exchange Notes May Not Remain
Outstanding for Their Full Terms to
Maturity........................... 16
The Company............................. 17
No Cash Proceeds to the Company......... 17
Ratios of Earnings to Fixed Charges..... 17
Capitalization.......................... 18
Selected Financial Information.......... 19
The Exchange Offer...................... 22
Purpose of the Exchange Offer......... 22
Terms of the Exchange Offer........... 22
Expiration Date; Extensions;
Amendments......................... 23
</TABLE>
<TABLE>
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PAGE
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Interest on the Exchange Notes and
Accrued Interest on the Private
Notes.............................. 24
Resale of the Exchange Notes and the
Exchange Warrants.................. 24
Procedures for Tendering.............. 25
Return of Private Notes and Private
Warrants........................... 27
Book-Entry Transfer................... 27
Guaranteed Delivery Procedures........ 27
Withdrawal of Tenders................. 28
Termination of Certain Rights......... 28
Exchange Agent........................ 29
Fees and Expenses..................... 29
Consequences of Failure to Exchange... 30
Accounting Treatment.................. 30
Description of the Exchange Notes....... 31
General............................... 31
Principal and Interest................ 31
Optional Redemption................... 32
Certain Indenture Covenants........... 33
Merger, Consolidation or Sale......... 36
Events of Default, Notice and
Waiver............................. 37
Modification of the Indenture......... 38
Satisfaction and Discharge............ 39
No Conversion Rights.................. 40
Global Securities..................... 40
Description of the Exchange Warrants.... 42
Certain Federal Income Tax
Consequences.......................... 45
Plan of Distribution.................... 45
Experts................................. 46
Legal Matters........................... 46
Glossary................................ 47
</TABLE>
iv
<PAGE> 6
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, is required to file reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the Public
Reference Room of the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World
Trade Center, Suite 1300, New York, New York 10048. The public may obtain
information on the operation of the Public Reference Room by calling the
Commission at 1-800-SEC-0330. Copies of the reports, proxy statements and other
information filed with the Commission by the Company can be obtained from the
Public Reference Room of the Commission, Washington, D.C. 20549, upon payment of
prescribed rates, or in certain cases by accessing the Commission's World Wide
Web site at http://www.sec.gov.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement"), of which this Prospectus is a part, under
the Securities Act, with respect to the securities offered hereby. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain portions of which have been omitted as permitted by the rules
and regulations of the Commission. Statements contained in this Prospectus as to
the contents of any contract or other document are not necessarily complete, and
in each instance, reference is made to the copy of such contract or document
filed as an exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference and the exhibits and schedules
thereto. For further information regarding the Company and the securities,
reference is hereby made to the Registration Statement and such exhibits and
schedules which may be obtained from the Commission at its principal office in
Washington, D.C. upon payment of the fees prescribed by the Commission. The
Commission maintains a "web site" that contains reports, proxy and information
statements and other information regarding issuers that file electronically with
the Commission. The address of such site is "http://www.sec.gov."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company under the
Exchange Act with the Commission and are incorporated herein by reference:
a. The Company's Annual Report on Form 10-K for the year ended December 31,
1997, as amended.
b. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998.
c. The Company's Current Report on Form 8-K/A, filed with the Commission on
February 18, 1998 (amending the Company's Current Report on Form 8-K
filed with the Commission on December 30, 1997), and the Company's
Current Reports on Form 8-K filed with the Commission on March 18, 1998
and July 10, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c) 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of a particular offering of securities to which this Prospectus
relates shall be deemed to be incorporated by reference in this Prospectus and
to be a part hereof from the date of filing such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained in the
Prospectus (in the case of a statement in a previously filed document
incorporated or deemed to be incorporated by reference herein), in any
applicable Prospectus Supplement relating to a specific offering of securities,
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus or any accompanying
Prospectus Supplement. Subject to the foregoing, all information appearing in
this
2
<PAGE> 7
Prospectus and any accompanying Prospectus Supplement is qualified in its
entirety by the information appearing in the documents incorporated by
reference.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner, to whom this
Prospectus is delivered upon written or oral request. Requests should be
directed to EOP Operating Limited Partnership c/o Equity Office Properties
Trust, Two North Riverside Plaza, Suite 2200, Chicago, Illinois 60606,
Attention: Diane Morefield (telephone number: (312) 466-3300).
3
<PAGE> 8
SUMMARY
The following summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information and financial data, including
the financial statements and notes thereto, included elsewhere in this
Prospectus or incorporated herein by reference. The offer by the Company to
exchange the Exchange Notes and the Exchange Warrants, which have been
registered under the Securities Act, for an equal principal amount of its
outstanding Private Notes and an equal number of its outstanding Private
Warrants, respectively, is referred to as the "Exchange Offer." As used herein,
"Company" means EOP Operating Limited Partnership, a Delaware limited
partnership, and one or more of its subsidiaries, and the predecessors thereof.
The Company is the "operating partnership" of Equity Office Properties Trust
(the "Trust"), a Maryland real estate investment trust and managing general
partner of the Company. See "Glossary" for the meanings of other terms used
herein. All references to the historical activities of the Trust or the Company
prior to July 11, 1997 refer to the activities of the Equity Office
Predecessors.
Information contained in this Prospectus contains "forward-looking
statements" which relate to, without limitation, future economic performance,
plans and objectives of management for future operations and projections of
revenue and other financial items, and which can be identified by the use of
forward-looking terminology such as "may," "will," "should," "expect,"
"anticipate," "estimate" or "continue" or the negative thereof or other
variations thereon or comparable terminology. The cautionary statements set
forth under the caption "Risk Factors" and elsewhere in this Prospectus identify
important factors with respect to such forward-looking statements, including
certain risks and uncertainties, that could cause actual results to differ
materially from those in such forward-looking statements.
THE COMPANY
The Company and the Trust were formed to continue and expand the national
office property business organized by Samuel Zell, Chairman of the Board of
Trustees of the Trust. The Trust, a self-administered and self-managed real
estate investment trust ("REIT"), is the managing general partner of, and
controls a majority of the partnership interests in, the Company. The Trust owns
all of its assets and conducts substantially all of its business through the
Company and its subsidiaries.
The Company was formed on November 1, 1996, as a limited partnership under
the Delaware Revised Uniform Limited Partnership Act. The Company's executive
offices are located at Two North Riverside Plaza, Suite 2200, Chicago, Illinois
60606, and its telephone number is (312) 466-3300.
4
<PAGE> 9
The following diagram depicts in summary form the Company's structure:
COMPANY'S STRUCTURE DIAGRAM
5
<PAGE> 10
THE EXCHANGE OFFER
The following is a summary of the principal terms of the Exchange Offer. A
more detailed description is contained herein under the caption "The Exchange
Offer."
The Exchange Offer............ The Company is hereby offering to exchange the
Exchange Notes and the Exchange Warrants for an
equal aggregate principal amount of Private
Notes and an equal number of Private Warrants,
respectively, that are properly tendered and
accepted.
Holders of Private Notes or Private Warrants
who do not validly tender such notes or
warrants and accept the Exchange Offer will
continue to hold such Private Notes or Private
Warrants and will continue to be subject to the
rights and limitations applicable thereto,
including existing restrictions upon transfer
thereof. The Company will have no further
obligation to provide for the registration
under the Securities Act of any offering of
Private Notes or Private Warrants which
continue to be held after the Exchange Offer.
See "The Exchange Offer -- Consequences of
Failure to Exchange."
Based on interpretations set forth in no-action
letters issued to third parties by the staff of
the Commission, the Company believes that the
Exchange Notes and the Exchange Warrants issued
pursuant to the Exchange Offer in exchange for
Private Notes and Private Warrants,
respectively, may be offered for resale, resold
and otherwise transferred by a holder thereof
without compliance with the registration and
prospectus delivery provisions of the
Securities Act, provided that the holder is
acquiring Exchange Notes or Exchange Warrants,
as applicable, in the ordinary course of its
business, is not participating, does not intend
to participate and has no arrangement or
understanding with any person to participate in
the distribution of the Exchange Notes or
Exchange Warrants, as applicable, is not an
"affiliate" of the Company within the meaning
of Rule 405 under the Securities Act and is not
a broker-dealer who acquired Private Notes or
Private Warrants as a result of market-making
or other trading activities. See "The Exchange
Offer -- Resale of the Exchange Notes and the
Exchange Warrants."
If the Company fails to consummate the Exchange
Offer with respect to the Private Notes and the
Private Warrants prior to December 12, 1998 or,
if applicable, fails to fulfill its obligations
under a registration rights agreement to obtain
and maintain effectiveness of a shelf
registration statement to cover resales of the
Private Notes and the Private Warrants by the
holders thereof during specified time periods,
then liquidated damages will accrue on the
principal amounts of the Private Notes at an
annual rate of 0.50%. See "The Exchange Offer
-- Purpose of the Exchange Offer."
Expiration Date............... The Exchange Offer will expire at 5:00 P.M.,
New York City time, on ,
1998 (the "Expiration Date"), unless the
Exchange Offer is extended by the Company in
its sole discretion, in which case the term
"Expiration Date" shall mean the latest date
and time to which the Exchange Offer is
extended. The
6
<PAGE> 11
Company will announce any extensions of the
Exchange Offer through a press release or other
public announcement. See "The Exchange Offer --
Expiration Date; Extensions; Amendments."
Procedures for Tendering
Private Notes and Private
Warrants...................... Each holder of Private Notes or Private
Warrants wishing to accept the Exchange Offer
must complete, sign and date the letter of
transmittal accompanying this Prospectus (the
"Letter of Transmittal"), or a facsimile
thereof, in accordance with the instructions
contained herein and therein, and mail or
otherwise deliver such Letter of Transmittal,
or such facsimile, together with such Private
Notes or Private Warrants and any other
required documentation, to State Street Bank
and Trust Company, as exchange agent (the
"Exchange Agent"), at the address set forth
under "The Exchange Offer -- Exchange Agent."
By executing the Letter of Transmittal, the
holder will represent to and agree with the
Company that, among other things, (i) any
Exchange Notes or Exchange Warrants acquired in
exchange for Private Notes or Private Warrants,
respectively, are being acquired in the
ordinary course of business of the person
receiving such Exchange Notes or Exchange
Warrants, (ii) the person receiving such
Exchange Notes or Exchange Warrants is not
engaging in and does not intend to engage in a
distribution of such Exchange Notes or Exchange
Warrants, (iii) the person receiving such
Exchange Notes or Exchange Warrants does not
have an arrangement or understanding with any
person to participate in the distribution of
such Exchange Notes or Exchange Warrants and
(iv) neither the holder nor any other person
receiving the Exchange Notes or Exchange
Warrants, as applicable, from the holder is an
"affiliate," as defined in Rule 405 under the
Securities Act, of the Company. Certain
brokers, dealers, commercial banks, trust
companies and other nominees may effect tenders
by book-entry transfer, including an Agent's
Message (defined below) in lieu of a Letter of
Transmittal. See "The Exchange Offer --
Procedures for Tendering."
Special Procedures for
Beneficial Owners............. Any beneficial owner whose Private Notes or
Private Warrants are registered in the name of
a broker, dealer, commercial bank, trust
company or other nominee and who wishes to
tender such Private Notes or Private Warrants
in the Exchange Offer should contact such
registered holder promptly and instruct such
registered holder to tender on such beneficial
owner's behalf. Any such beneficial owner that
wishes to tender on its own behalf must, prior
to completing and executing the Letter of
Transmittal and delivering its Private Notes or
Private Warrants, as applicable, either make
appropriate arrangements to register ownership
of such Private Notes or Private Warrants in
its own name, if permitted pursuant to the
terms of such Private Notes or Private
Warrants, or obtain a properly completed bond
power from the registered holder. The transfer
of registered ownership may take considerable
time, and it may not be possible to complete
the transfer prior to the Expiration Date. See
"The Exchange Offer -- Procedures for
Tendering."
7
<PAGE> 12
Guaranteed Delivery
Procedures.................... Holders of Private Notes or Private Warrants
who wish to tender their Private Notes or
Private Warrants and whose Private Notes or
Private Warrants are not immediately available
or who cannot deliver their Private Notes or
Private Warrants, the Letter of Transmittal or
any other documentation required by the Letter
of Transmittal to the Exchange Agent prior to
the Expiration Date must tender their Private
Notes or Private Warrants according to the
guaranteed delivery procedures described under
"The Exchange Offer -- Guaranteed Delivery
Procedures."
Acceptance of the Private
Notes and Private Warrants and
Delivery of Exchange Notes and
Exchange Warrants............. Subject to the satisfaction or waiver of the
conditions to the Exchange Offer, the Company
will accept for exchange any and all Private
Notes and Private Warrants that are properly
tendered in the Exchange Offer prior to the
Expiration Date. The Exchange Notes and
Exchange Warrants issued pursuant to the
Exchange Offer will be delivered on the
earliest practicable date following the
Expiration Date. See "The Exchange Offer --
Terms of the Exchange Offer."
Withdrawal Rights............. Tenders of Private Notes or Private Warrants
may be withdrawn at any time prior to the
Expiration Date by delivering a notice of
withdrawal to the Exchange Agent prior to the
Expiration Date. Any such notice of withdrawal
must (i) specify the name of the person who
deposited the Private Notes or Private Warrants
to be withdrawn, (ii) identify the Private
Notes or Private Warrants to be withdrawn
(including the certificate number or numbers)
and (iii) be signed by the holder in the same
manner as the original signature on the Letter
of Transmittal by which such Private Notes or
Private Warrants were tendered (including any
required signature guarantees). See "The
Exchange Offer -- Withdrawal of Tenders."
Federal Income Tax
Consequences.................. In the opinion of Hogan & Hartson L.L.P.,
special tax counsel to the Company, the
exchange of the Private Notes and the Private
Warrants for the Exchange Notes and the
Exchange Warrants, respectively, will not be a
taxable exchange for federal income tax
purposes, and holders of Private Notes or
Private Warrants will not recognize any taxable
gain or loss or any interest income as a result
of such exchange. See "Certain Federal Income
Tax Consequences."
Exchange Agent................ State Street Bank and Trust Company is serving
as the Exchange Agent in connection with the
Exchange Offer. State Street Bank and Trust
Company also serves as trustee (the "Trustee")
under the indenture relating to the Notes and
as warrant agent (the "Warrant Agent") under
the warrant agreement relating to the Warrants.
See "The Exchange Offer -- Exchange Agent."
8
<PAGE> 13
THE EXCHANGE NOTES
The form and terms of the respective Exchange Notes will be identical in
all material respects to the form and terms of the Private Notes, except that
the Exchange Notes will not bear legends restricting the transfer thereof and
the holders of the Exchange Notes will not be entitled to any of the
registration rights of holders of the Private Notes under any registration
rights agreement, which rights will terminate upon consummation of the Exchange
Offer. The Exchange Notes will evidence the same indebtedness as the Private
Notes (which they replace) and will be issued under, and be entitled to the
benefits of, an indenture, dated as of September 2, 1997, as amended or
supplemented, between the Company and the Trustee (the "Indenture").
All capitalized terms used herein and not defined herein have the meanings
provided in "Description of the Exchange Notes." For a more complete description
of the terms of the Exchange Notes specified in the following summary, see
"Description of the Exchange Notes."
Issuer........................ EOP Operating Limited Partnership
Exchange Notes................ $250,000,000 principal amount of 6.50% Notes
due 2004
$300,000,000 principal amount of 6.763% Notes
due 2007
$225,000,000 principal amount of 7.25% Notes
due 2028
Maturity...................... Unless, in each case, redeemed prior to
maturity as described below, the 2004 Exchange
Notes will mature on June 15, 2004; the 2007
Exchange Notes will mature on June 15, 2007;
and the 2028 Exchange Notes will mature on June
15, 2028. See "Description of the Exchange
Notes -- General."
Optional Redemption........... The Exchange Notes will be redeemable at any
time at the option of the Company, in whole or
in part, at a redemption price equal to the sum
of (i) the principal amount of the Exchange
Notes being redeemed plus accrued interest to
the redemption date and (ii) the Make-Whole
Amount, if any. See "Description of the
Exchange Notes -- Optional Redemption."
Interest Payment Dates........ Interest on the Exchange Notes will be payable
semiannually in arrears on each June 15 and
December 15, commencing December 15, 1998. The
Exchange Notes will bear interest from their
date of issuance. Interest on the Private Notes
will cease to accrue on the day preceding the
date of issuance of the Exchange Notes.
Interest payable on the first Interest Payment
Date with respect to the Exchange Notes will
include accrued but unpaid interest due on the
Private Notes (which they replace) for the
period from the later of June 15, 1998 or the
Interest Payment Date immediately preceding the
date of issuance of the applicable Exchange
Notes. See "Description of the Exchange Notes
-- Principal and Interest."
Ranking....................... The Exchange Notes will be senior unsecured
obligations of the Company and will rank
equally with each other and with all other
unsecured and unsubordinated indebtedness of
the Company. The Exchange Notes will be
effectively subordinated to the prior claims of
any secured indebtedness of the Company to the
extent of the value of the property securing
such indebtedness. The Exchange Notes also will
be effectively subordinated to all existing and
future third-party indebtedness and other
liabilities of the Company's Subsidiaries. As
of March 31, 1998, on a Pro Forma Basis, the
secured indebtedness of the Company and all
other liabilities of the Company's Subsidiaries
aggregated approximately $2.6 billion and
9
<PAGE> 14
the unsecured and unsubordinated indebtedness
of the Company aggregated approximately $3.2
billion. See "Capitalization."
Limitations on Incurrence of
Debt.......................... The Indenture contains various covenants,
including covenants limiting the ability of the
Company and its Subsidiaries to incur
additional secured and unsecured debt unless
certain financial standards are satisfied. See
"Description of the Exchange Notes -- Certain
Covenants." Except as described in "Description
of the Exchange Notes -- Certain Covenants --
Limitations on Incurrence of Debt" and "--
Merger, Consolidation or Sale," the Indenture
does not contain any other provisions that
would limit the ability of the Company to incur
indebtedness or that would afford holders of
Exchange Notes protection in the event of a
highly leveraged transaction involving the
Company and its affiliates, a change in control
of the Company or the Trust or a
reorganization, merger or similar transaction
involving the Company that may severely affect
the holders of the Exchange Notes.
THE EXCHANGE WARRANTS
The form and terms of the Exchange Warrants are identical in all material
respects to the form and terms of the Private Warrants, except that the Exchange
Warrants will not bear legends restricting the transfer thereof and the holders
of the Exchange Warrants will not be entitled to any of the registration rights
of holders of the Private Warrants under any registration rights agreement,
which rights will terminate upon consummation of the Exchange Offer.
All capitalized terms used herein and not defined herein have the meanings
provided in "Description of the Exchange Warrants." For a more complete
description of the terms of the Exchange Warrants specified in the following
summary, see "Description of the Exchange Warrants."
Issuer........................ EOP Operating Limited Partnership.
Exchange Warrants............. 300,000 Warrants to purchase $300,000,000
principal amount of 6.763% Notes due 2008.
Exercise of Exchange
Warrants...................... Each Exchange Warrant will entitle the holder
to purchase $1,000 principal amount of
Underlying Notes at par on December 15, 1999
(or, in certain circumstances, January 18,
2000). If for any reason the Company does not
deliver the Underlying Notes purchasable upon
exercise of the Exchange Warrants on the
Exercise Date, the Company will pay the Warrant
Make-Whole Amount. See "Description of the
Exchange Warrants."
Terms of the Underlying
Notes......................... The Underlying Notes will have terms identical
to the Exchange Notes except (i) as to maturity
and the dates on which interest thereon accrues
and interest payments commence and (ii) the
Underlying Notes will be entitled to a special
interest premium if not registered under the
Securities Act at the time of issuance and
delivery and in certain other circumstances.
See "Description of the Warrants."
NO CASH PROCEEDS TO THE COMPANY
The Company will not receive any proceeds from the issuance of the Exchange
Notes or the Exchange Warrants offered hereby and has agreed to pay the expenses
of the Exchange Offer. Private Notes and Private Warrants surrendered in
exchange for Exchange Notes and Exchange Warrants, respectively, will be retired
10
<PAGE> 15
and canceled and cannot be reissued. Accordingly, issuance of the Exchange Notes
and the Exchange Warrants will not result in any increase in the outstanding
indebtedness of the Company. The Company used the net proceeds from the issuance
of the Private Notes and Private Warrants to repay indebtedness outstanding
under the Company's credit facility. See "No Cash Proceeds to the Company."
SUMMARY RISK FACTORS
See "Risk Factors" for a detailed discussion of important risks associated
with an investment in the debt of the Company, including risks associated with
exchanging or not exchanging Private Notes or Private Warrants in the Exchange
Offer. These risks include:
- Holders of Private Notes or Private Warrants who do not exchange those
Private Notes or Private Warrants will hold an investment subject to
restrictions on transfer not applicable to the Exchange Notes and the
Exchange Warrants and may have difficulty selling the Private Notes or
Private Warrants unless a public market for the Private Notes or Private
Warrants develops;
- Payments due under the Exchange Notes will be effectively subordinated to
mortgages and other secured indebtedness of the Company, as well as to
indebtedness and other liabilities of the Company's Subsidiaries;
- The Exchange Notes and the Exchange Warrants will not be listed on any
exchange. A public market for the Exchange Notes and the Exchange
Warrants may not develop, which could make it difficult or impossible to
sell the Exchange Notes and the Exchange Warrants, or, if such a market
were to develop, the Exchange Notes and the Exchange Warrants could trade
at prices that may be higher or lower than the initial offering prices of
the Private Notes and the Private Warrants, respectively; and
- The Exchange Notes are subject to provisions that allow them to be
redeemed at any time prior to the stated maturity date at the option of
the Company.
11
<PAGE> 16
SUMMARY SELECTED FINANCIAL INFORMATION
The following sets forth summary selected consolidated and combined
financial and operating information on a pro forma basis for the Company and on
an historical basis for the Company and the Company's predecessors ("Equity
Office Predecessors"). The following information should be read in conjunction
with all of the financial statements and notes thereto included in the Quarterly
Report on Form 10-Q for the quarter ended March 31, 1998 and the Annual Report
on Form 10-K for the year ended December 31, 1997, as amended, and Form 8-K
filed on July 10, 1998, which documents are incorporated by reference into the
accompanying Prospectus. The summary selected combined financial and operating
of Equity Office Predecessors at December 31, 1994 and 1993, and for the year
ended December 31, 1993, has been derived from the historical unaudited combined
financial statements of Equity Office Predecessors.
12
<PAGE> 17
<TABLE>
<CAPTION>
EQUITY OFFICE
PREDECESSORS
COMPANY (COMBINED
PRO FORMA COMPANY FOR HISTORICAL) COMPANY COMPANY FOR
FOR THE THREE THE THREE FOR THE THREE PRO FORMA THE PERIOD
MONTHS MONTHS MONTHS FOR THE YEAR FROM JULY 11,
ENDED ENDED ENDED ENDED 1997 TO
MARCH 31, MARCH 31, MARCH 31, DECEMBER 31, DECEMBER 31,
1998 1998 1997 1997 1997
------------- ------------ ------------- ----------------- -------------
(DOLLARS IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Revenues:
Rental, parking and other..... $ 413,169 $ 369,593 $ 148,471 $ 1,586,304 $ 406,713
----------- ----------- ----------- ----------- -----------
Total revenues............. $ 417,396 $ 373,820 $ 154,567 $ 1,617,872 $ 412,968
----------- ----------- ----------- ----------- -----------
Expenses:
Interest...................... $ 94,456 $ 69,884 $ 36,355 $ 385,609 $ 76,675
Depreciation and
amortization................ 72,649 67,792 28,081 294,650 70,346
Property operating(1)......... 153,891 137,865 58,148 578,730 155,679
General and administrative.... 13,948 13,948 7,073 76,048 17,690
Provision for value
impairment.................. -- -- -- -- --
----------- ----------- ----------- ----------- -----------
Total expenses............. $ 336,051 $ 289,489 $ 129,657 $ 1,335,037 $ 320,390
----------- ----------- ----------- ----------- -----------
Income before (income) loss
allocated to minority
interests, income from
investments in unconsolidated
joint ventures, gain on sales
of real estate, and
extraordinary items........... $ 81,345 $ 84,331 $ 24,910 $ 282,835 $ 92,578
Minority interests
allocation.................... (538) (538) (529) (1,701) (789)
Income from investments in
unconsolidated joint
ventures...................... 3,200 3,634 922 10,976 3,173
Gain/(Loss) on sales of real
estate and extraordinary
items(2)...................... -- (6,959) 5,466 -- (16,240)
----------- ----------- ----------- ----------- -----------
Net income before preferred
distributions................. 84,007 80,468 30,769 292,110 78,722
Preferred distributions........ (8,459) (6,271) -- (33,710) (649)
----------- ----------- ----------- ----------- -----------
Net income available to
Units......................... $ 75,548 $ 74,197 $ 30,769 $ 258,400 $ 78,073
=========== =========== =========== =========== ===========
Net income available per
weighted average Unit
outstanding --
Basic......................... $.27 $.27 $.92 $.44
=========== =========== =========== ===========
Net income available per
weighted average Unit
outstanding --
Diluted....................... $.27 $.27 $.92 $.43
=========== =========== =========== ===========
Weighted average Units
outstanding -- Basic.......... 280,581,593 278,797,811 280,318,729 178,647,562
=========== =========== =========== ===========
Weighted average Units
outstanding -- Diluted........ 282,967,000 280,327,761 282,095,690 180,014,027
=========== =========== =========== ===========
BALANCE SHEET DATA:
(at end of period)
Investment in real estate after
accumulated depreciation...... $12,563,675 $11,200,676 -- -- $10,976,319
Total assets................... $13,157,012 $11,803,994 -- -- $11,751,672
Mortgage debt, unsecured notes
and lines of credit........... $ 5,296,389 $ 3,987,530 -- -- $ 4,284,317
Total liabilities.............. $ 5,672,683 $ 4,363,724 -- -- $ 4,591,697
Minority interests............. $ 29,200 $ 29,200 -- -- $ 29,612
Partners' Capital/Owners'
equity........................ $ 7,455,229 $ 7,411,070 -- -- $ 7,130,363
OTHER DATA:
General and administrative
expenses as a percentage of
total revenues................ 3.3% 3.7% 4.6% 4.7% 4.3%
Number of Office Properties
owned at period end(3)........ 283 260 86 283 258
Net rentable square feet of
Office Properties(3).......... 73.4 66.6 29.7 73.4 65.3
Occupancy of Office Properties
owned at period end(3)........ 94% 94% 91% 94% 94%
Number of Parking Facilities
owned at period end........... 17 17 10 17 17
Number of spaces at Parking
Facilities owned at period
end........................... 16,749 16,749 7,321 16,749 16,749
Funds from Operations(4)....... $ 150,836 $ 52,755 $ 163,253
Cash flow from operating
activities.................... $ 110,765 $ 41,087 $ 190,754
Cash flow used for investing
activities.................... $ (270,947) $ (109,506) $(1,592,272)
Cash flow from/used for
financing activities.......... $ (56,990) $ 34,120 $ 1,630,346
<CAPTION>
EQUITY OFFICE PREDECESSORS (COMBINED HISTORICAL)
---------------------------------------------------------------
FOR THE
PERIOD FROM
JANUARY 1,
1997 TO FOR THE YEARS ENDED DECEMBER 31,
JULY 10, -------------------------------------------------
1997 1996 1995 1994 1993
----------- ---- ---- ---- ----
(DOLLARS IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Revenues:
Rental, parking and other..... $ 327,017 $ 493,396 $ 356,959 $ 230,428 $ 150,315
--------- ---------- ---------- ---------- ----------
Total revenues............. $ 339,104 $ 508,124 $ 371,457 $ 240,878 $ 159,246
--------- ---------- ---------- ---------- ----------
Expenses:
Interest...................... $ 80,481 $ 119,595 $ 100,566 $ 59,316 $ 36,755
Depreciation and
amortization................ 66,034 96,237 74,156 46,905 29,752
Property operating(1)......... 127,285 201,067 151,488 107,412 74,028
General and administrative.... 17,201 23,145 21,987 15,603 12,012
Provision for value
impairment.................. -- -- 20,248 -- --
--------- ---------- ---------- ---------- ----------
Total expenses............. $ 291,001 $ 440,044 $ 368,445 $ 229,236 $ 152,547
--------- ---------- ---------- ---------- ----------
Income before (income) loss
allocated to minority
interests, income from
investments in unconsolidated
joint ventures, gain on sales
of real estate, and
extraordinary items........... $ 48,103 $ 68,080 $ 3,012 $ 11,642 $ 6,699
Minority interests
allocation.................... (912) (2,086) (2,129) 1,437 1,772
Income from investments in
unconsolidated joint
ventures...................... 1,982 2,093 2,305 1,778 --
Gain/(Loss) on sales of real
estate and extraordinary
items(2)...................... 12,236 5,338 31,271 1,705 --
--------- ---------- ---------- ---------- ----------
Net income before preferred
distributions................. 61,409 73,425 34,459 16,562 8,471
Preferred distributions........ -- -- -- -- --
--------- ---------- ---------- ---------- ----------
Net income available to
Units......................... $ 61,409 $ 73,425 $ 34,459 $ 16,562 $ 8,471
========= ========== ========== ========== ==========
Net income available per
weighted average Unit
outstanding --
Basic.........................
Net income available per
weighted average Unit
outstanding --
Diluted.......................
Weighted average Units
outstanding -- Basic..........
Weighted average Units
outstanding -- Diluted........
BALANCE SHEET DATA: (at end of
Investment in real estate after
accumulated depreciation...... -- $3,291,815 $2,393,403 $1,815,160 $1,220,268
Total assets................... -- $3,912,565 $2,650,890 $2,090,933 $1,318,644
Mortgage debt, unsecured notes
and lines of credit........... -- $1,964,892 $1,434,827 $1,261,156 $ 798,897
Total liabilities.............. -- $2,174,483 $1,529,334 $1,350,552 $ 845,315
Minority interests............. -- $ 11,080 $ 31,587 $ 9,283 $ (15,298)
Partners' Capital/Owners'
equity........................ -- $1,727,002 $1,089,969 $ 731,098 $ 488,627
OTHER DATA:
General and administrative
expenses as a percentage of
total revenues................ 5.1% 4.6% 5.9% 6.5% 7.5%
Number of Office Properties
owned at period end(3)........ -- 83 73 63 48
Net rentable square feet of
Office Properties(3).......... -- 29.2 23.1 18.5 13.6
Occupancy of Office Properties
owned at period end(3)........ -- 90% 86% 88% 80%
Number of Parking Facilities
owned at period end........... -- 10 3 -- --
Number of spaces at Parking
Facilities owned at period
end........................... -- 7,321 3,323 -- --
Funds from Operations(4)....... $ 113,022 $ 160,460 $ 96,104 $ 60,372 --
Cash flow from operating
activities.................... $ 95,960 $ 165,975 $ 93,878 $ 73,821 --
Cash flow used for investing
activities.................... $(571,068) $ (924,227) $ (380,615) $ (513,965) --
Cash flow from/used for
financing activities.......... $ 245,851 $1,057,551 $ 276,513 $ 514,923 --
</TABLE>
13
<PAGE> 18
- -------------------------
(1) Includes property operating expenses, real estate taxes and insurance, as
well as repair and maintenance expenses.
(2) The column entitled "Company Pro Forma for the year ended December 31, 1997"
and "Company Pro Forma for the three months ended March 31, 1998" excludes
the effect of any gain (loss) on sales of real estate and extraordinary
items.
(3) The pro forma number of Office Properties as of March 31, 1998, includes
Office Properties acquired subsequent to March 31, 1998 and Probable
Acquisitions.
(4) The White Paper on Funds from Operations approved by the Board of Governors
of the National Association of Real Estate Investment Trusts ("NAREIT") in
March 1995 defines Funds from Operations as net income (loss) (computed in
accordance with GAAP), excluding gains (or losses) from debt restructuring
and sales of properties, plus real estate related depreciation and
amortization and after adjustments for unconsolidated partnerships and joint
ventures. The Company believes that Funds from Operations is helpful to
investors as a measure of the performance of an equity REIT because, along
with cash flow from operating activities, financing activities and investing
activities, it provides investors with an indication of the ability of the
Company to incur and service debt, to make capital expenditures and to fund
other cash needs. The Company computes Funds from Operations in accordance
with standards established by NAREIT, which may not be comparable to Funds
from Operations reported by other REITs that do not define the term in
accordance with the current NAREIT definition or that interpret the current
NAREIT definition differently than the Company. Funds from Operations does
not represent cash generated from operating activities in accordance with
GAAP and should not be considered as an alternative to net income
(determined in accordance with GAAP) as an indication of the Company's
financial performance or to cash flow from operating activities (determined
in accordance with GAAP) as a measure of the Company's liquidity, nor is it
indicative of funds available to fund the Company's cash needs, including
its ability to make cash distributions. For a reconciliation of net income
and Funds from Operations. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Funds from Operations."
14
<PAGE> 19
RISK FACTORS
An investment in the Exchange Notes or the Exchange Warrants involves
various risks. Prospective investors should carefully consider the following
material risks in conjunction with the other information contained in this
Prospectus and incorporated herein by reference, including, without limitation,
the risks of an investment in the Company set forth under the caption "Item
1. Business -- Risk Factors" in the Company's Annual Report on Form 10-K for the
year ended December 31, 1997, as amended, before deciding whether to tender
Private Notes or Private Warrants in exchange for Exchange Notes or Exchange
Warrants, respectively, pursuant to the Exchange Offer.
RESTRICTIONS ON TRANSFER OF PRIVATE NOTES AND PRIVATE WARRANTS WILL CONTINUE IF
PRIVATE NOTES OR PRIVATE WARRANTS, AS APPLICABLE, ARE NOT TENDERED OR ARE NOT
ACCEPTED FOR EXCHANGE
We will issue Exchange Notes and Exchange Warrants in exchange for Private
Notes and Private Warrants, respectively, timely received by the Exchange Agent
and accompanied by a properly completed and duly executed Letter of Transmittal
and all other required documentation. Therefore, if you want to tender your
Private Notes or Private Warrants in exchange for Exchange Notes or Exchange
Warrants, respectively, you must properly complete all required documentation
and allow sufficient time to ensure timely delivery. Neither we nor the Exchange
Agent is under any duty to give notification of defects or irregularities with
respect to your tender of Private Notes or Private Warrants for exchange.
If you do not tender your Private Notes or Private Warrants or they are not
accepted by the Exchange Agent, your Private Notes or Private Warrants, as
applicable, will continue to be subject to the existing restrictions upon
transfer thereof even after the Exchange Offer is consummated. Moreover, if you
tender in the Exchange Offer for the purpose of participating in a distribution
of the Exchange Notes or the Exchange Warrants, you will be required, in the
absence of an applicable exemption, to comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale transaction. See "The Exchange Offer."
To the extent that Private Notes or Private Warrants are tendered and
accepted in the Exchange Offer, the trading market for untendered and tendered
but unaccepted Private Notes or Private Warrants could be adversely affected due
to the limited principal amount of the Private Notes or limited number of
Private Warrants, respectively, that is expected to remain outstanding following
the Exchange Offer. A small outstanding amount of Private Notes or Private
Warrants could result in less demand to purchase Private Notes or Private
Warrants, respectively, and could, therefore, result in lower prices for Private
Notes or Private Warrants, respectively. Moreover, if you do not tender your
Private Notes or Private Warrants, you will hold an investment subject to
certain restrictions on transfer not applicable to the Exchange Notes and
Exchange Warrants and, as a result, you may only be able to sell your Private
Notes or Private Warrants at a price that is less than the price available to
sellers of the freely tradeable Exchange Notes or Exchange Warrants,
respectively.
The Exchange Notes and any Private Notes that remain outstanding after
consummation of the Exchange Offer will vote together as a single series for
purposes of determining whether holders of the requisite percentage in principal
amount have taken certain actions or exercised certain rights under the
Indenture.
THERE IS NO CURRENT PUBLIC MARKET FOR EXCHANGE NOTES OR EXCHANGE WARRANTS
We do not intend to apply for listing of the Exchange Notes or the Exchange
Warrants on any securities exchange or to seek approval through any automated
quotation system. A public market for the Exchange Notes or the Exchange
Warrants may not develop, which could make it difficult or impossible to sell
the Exchange Notes or the Exchange Warrants. If such a market were to develop,
the Exchange Notes and the Exchange Warrants could trade at prices that may be
higher or lower than the initial offering prices of the Private Notes or the
Private Warrants, respectively, depending on many factors, including prevailing
interest rates, our operating results and financial condition, the market for
similar securities and other factors beyond our control, including general
economic conditions. If no such market develops, you may not be able to sell
15
<PAGE> 20
your Exchange Notes or Exchange Warrants or you may only be able to sell them at
a price that is less than the initial offering price of the related Private
Notes or Private Warrants, respectively. Further, to the extent that a large
amount of Private Notes or Private Warrants are not tendered or are tendered and
not accepted in the Exchange Offer, the trading market for the Exchange Notes or
the Exchange Warrants, respectively, could be adversely affected. See "Plan of
Distribution."
THE NOTES ARE EFFECTIVELY SUBORDINATED TO OUR SECURED INDEBTEDNESS AND CERTAIN
OTHER INDEBTEDNESS OF
OUR SUBSIDIARIES
We derive substantially all our operating income from our subsidiaries. The
holders of the Exchange Notes will have, and you have, no direct claim against
our subsidiaries for payment under the Notes. We must rely on dividends and
other payments from our subsidiaries or must raise funds in public or private
equity (either directly or through the Trust) or debt offerings or sell assets
to generate the funds necessary to meet our obligations, including the payment
of principal and interest on the Notes. If the dividends and other payments from
subsidiaries were insufficient to meet such obligations, there could be no
assurance that we would be able to obtain such funds on acceptable terms or at
all.
Given a bankruptcy at the subsidiary level, the Exchange Notes and the
Private Notes would be effectively subordinated in right of payment to all
existing and future indebtedness and liabilities of our subsidiaries. As of
March 31, 1998, on a Pro Forma Basis, the total liabilities of our subsidiaries
(after the elimination of loans and advances to us by our subsidiaries) was
approximately $2.6 billion. In addition, the Indenture permits us and our
subsidiaries to incur additional indebtedness, both secured and unsecured,
provided certain conditions are met. See "Description of the Exchange
Notes -- Certain Indenture Covenants." Consequently, in the event of a
bankruptcy, liquidation, dissolution, reorganization or similar proceeding with
respect to our subsidiaries, the holders of any indebtedness of our subsidiaries
will be entitled to payment thereof from the assets of such subsidiaries prior
to the holders of any of our general unsecured obligations, including the Notes.
The Exchange Notes will be, and the Private Notes are, unsecured and
effectively subordinated to any of our secured indebtedness to the extent of the
value of the assets securing such indebtedness. As of March 31, 1998, on a Pro
Forma Basis, our total secured indebtedness, including that of our subsidiaries,
was approximately $2.3 billion. The Indenture permits us and our subsidiaries to
incur additional secured indebtedness provided certain conditions are met. See
"Description of the Exchange Notes -- Certain Indenture Covenants."
Consequently, in the event we are involved in a bankruptcy, liquidation,
dissolution, reorganization or similar proceeding, the holders of any secured
indebtedness will be entitled to proceed against the collateral that secures
such secured indebtedness and such collateral will not be available for
satisfaction of any amounts owed under our unsecured indebtedness, including the
Notes.
THE EXCHANGE NOTES MAY NOT REMAIN OUTSTANDING FOR THEIR FULL TERMS TO MATURITY
We may redeem the Exchange Notes at any time at our option. If we choose to
redeem your Exchange Notes, you will not be able to hold such Exchange Notes for
their full terms to maturity.
16
<PAGE> 21
THE COMPANY
The Company and the Trust were formed to continue and expand the national
office property business organized by Mr. Zell, Chairman of the Board of
Trustees of the Trust. The Trust, a self-administered and self-managed REIT, is
the managing general partner of, and controls a majority of the partnership
interests in, the Company. The Trust owns all of its assets and conducts
substantially all of its business through the Company and its subsidiaries.
NO CASH PROCEEDS TO THE COMPANY
The Company will not receive any proceeds from the issuance of the Exchange
Notes or the Exchange Warrants offered hereby and has agreed to pay the expenses
of the Exchange Offer. Private Notes and Private Warrants surrendered in
exchange for Exchange Notes and Exchange Warrants, respectively, will be retired
and canceled and cannot be reissued. Accordingly, issuance of the Exchange Notes
and the Exchange Warrants will not result in any increase in the outstanding
indebtedness of the Company. The Company used the approximately $770 million of
net proceeds from the issuance of the Private Notes and the Private Warrants to
repay indebtedness outstanding under the Company's credit facility. As of June
30, 1998, the outstanding amounts of indebtedness which were repaid with the
proceeds from the issuance of the Private Notes and the Private Warrants, which
bore interest at various floating rates, had an annual rate of 6.4% and had a
maturity of three years.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's ratios of earnings to fixed charges are as follows:
<TABLE>
<CAPTION>
THREE EQUITY OFFICE
MONTHS PREDECESSORS EQUITY OFFICE PREDECESSORS
ENDED COMPANY (COMBINED (COMBINED HISTORICAL)
MARCH 31, (HISTORICAL) HISTORICAL) YEARS ENDED DECEMBER 31,
----------- JULY 11, 1997 TO JANUARY 1, 1997 --------------------------------
1998 1997 DECEMBER 31, 1997 TO JULY 10, 1997 1996 1995 1994 1993 1992
---- ---- ----------------- ---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges....... 1.94 1.97 2.11 1.52 1.49 1.21 1.24 1.23 1.24
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings
by fixed charges. For this purpose, earnings consist of income (loss) before
gains from sales of property and extraordinary items plus fixed charges. Fixed
charges consist of interest expense (including interest costs capitalized), the
amortization of debt issuance costs and rental expense deemed to represent
interest expense.
17
<PAGE> 22
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
March 31, 1998 on a historical basis and a Pro Forma Basis. The information set
forth in the table should be read in conjunction with the financial statements
and notes thereto and "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources" included
elsewhere in this Prospectus.
<TABLE>
<CAPTION>
MARCH 31, 1998
-------------------------
PRO FORMA
HISTORICAL BASIS
----------- -----------
(IN THOUSANDS)
<S> <C> <C>
Debt:
Mortgage Debt............................................. $ 2,060,105 $ 2,108,214
Credit Facilities......................................... 243,000 671,269
Notes Payable............................................. 1,684,425 2,516,906
Minority Interest........................................... 29,200 24,200
Owners' Equity.............................................. 7,411,070 7,455,229
----------- -----------
Total Capitalization................................... $11,427,800 $12,775,818
=========== ===========
</TABLE>
18
<PAGE> 23
SELECTED FINANCIAL INFORMATION
The following sets forth selected consolidated and combined financial and
operating information on a pro forma basis for the Company and on a historical
basis for the Company and the Company's predecessors ("Equity Office
Predecessors"). The following information should be read in conjunction with all
of the financial statements and notes thereto included in the Quarterly Report
on Form 10-Q for the quarter ended March 31, 1998 and the Annual Report on Form
10-K for the year ended December 31, 1997, as amended, and Form 8-K filed on
July 10, 1998, which documents are incorporated by reference into the
accompanying Prospectus. The selected combined financial and operating of Equity
Office Predecessors at December 31, 1994 and 1993, and for the year ended
December 31, 1993, has been derived from the historical unaudited combined
financial statements of Equity Office Predecessors.
19
<PAGE> 24
<TABLE>
<CAPTION>
EQUITY OFFICE
PREDECESSORS
COMPANY PRO (COMBINED
FORMA FOR COMPANY FOR HISTORICAL) COMPANY COMPANY FOR
THE THREE THE THREE FOR THE THREE PRO FORMA THE PERIOD
MONTHS MONTHS MONTHS FOR THE YEAR FROM JULY 11,
ENDED ENDED ENDED ENDED 1997 TO
MARCH 31, MARCH 31, MARCH 31, DECEMBER 31, DECEMBER 31,
1998 1998 1997 1997 1997
------------ ------------ ------------- ------------ -------------
(DOLLARS IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Revenues:
Rental, parking and other.......... $ 413,169 $ 369,593 $ 148,471 $ 1,586,304 $ 406,713
----------- ----------- --------- ----------- -----------
Total revenues.................. $ 417,396 $ 373,820 $ 154,567 $ 1,617,872 $ 412,968
----------- ----------- --------- ----------- -----------
Expenses:
Interest........................... $ 94,456 $ 69,884 $ 36,355 $ 385,609 $ 76,675
Depreciation and amortization...... 72,649 67,792 28,081 294,650 70,346
Property operating(1).............. 153,891 137,865 58,148 578,730 155,679
General and administrative......... 13,948 13,948 7,073 76,048 17,690
Provision for value impairment..... -- -- -- -- --
----------- ----------- --------- ----------- -----------
Total expenses.................. $ 336,051 $ 289,489 $ 129,657 $ 1,335,037 $ 320,390
----------- ----------- --------- ----------- -----------
Income before (income) loss
allocated to minority interests,
income from investments in
unconsolidated joint ventures, gain
on sales of real estate, and
extraordinary items................ $ 81,345 $ 84,331 $ 24,910 $ 282,835 $ 92,578
Minority interests allocation....... (538) (538) (529) (1,701) (789)
Income from investments in
unconsolidated joint ventures...... 3,200 3,634 922 10,976 3,173
Gain/(Loss) on sales of real estate
and extraordinary items(2)......... -- (6,959) 5,466 -- (16,240)
----------- ----------- --------- ----------- -----------
Net income before preferred
distributions...................... 84,007 80,468 30,769 292,110 78,722
Preferred distributions............. (8,459) (6,271) -- (33,710) (649)
----------- ----------- --------- ----------- -----------
Net income available to Units....... $ 75,548 $ 74,197 $ 30,769 $ 258,400 $ 78,073
=========== =========== ========= =========== ===========
Net income available per weighted
average Unit outstanding --
Basic.............................. $.27 $.27 $.92 $.44
=========== =========== =========== ===========
Net income available per weighted
average Unit outstanding --
Diluted............................ $.27 $.27 $.92 $.43
=========== =========== =========== ===========
Weighted average Units outstanding
-- Basic........................... 280,581,593 278,797,811 280,318,729 178,647,562
=========== =========== =========== ===========
Weighted average Units outstanding
-- Diluted......................... 282,967,000 280,327,761 282,095,690 180,014,027
=========== =========== =========== ===========
BALANCE SHEET DATA: (at end of period)
Investment in real estate after
accumulated depreciation........... $12,563,675 $11,200,676 -- -- $10,976,319
Total assets........................ $13,157,012 $11,803,944 -- -- $11,751,672
Mortgage debt, unsecured notes and
lines of credit.................... $ 5,296,389 $ 3,987,530 -- -- $ 4,284,317
Total liabilities................... $ 5,672,583 $ 4,363,724 -- -- $ 4,591,697
Minority interests.................. $ 29,200 $ 29,200 -- -- $ 29,612
Partners' Capital/Owners' equity.... $ 7,455,229 $ 7,411,070 -- -- $ 7,130,363
OTHER DATA:
General and administrative expenses
as a percentage of total
revenues........................... 3.3% 3.7% 4.6% 4.7% 4.3%
Number of Office Properties owned at
period end(3)...................... 283 260 86% 283 258
Net rentable square feet of Office
Properties owned at period end (in
millions)(3)....................... 73.4 66.6 29.7 73.4 65.3
Occupancy of Office Properties owned
at period end(3)................... 94% 94% 91% 94% 94%
Number of Parking Facilities owned
at period end...................... 17 17 10 17 17
Number of spaces at Parking
Facilities owned at period end..... 16,749 16,749 7,321 16,749 16,749
Funds from Operations(4)............ $ 150,836 $ 52,755 $ 163,253
Cash flow from operating
activities......................... $ 110,765 $ 41,087 $ 190,754
Cash flow used for investing
activities......................... $ (270,947) $(109,506) $(1,592,272)
Cash flow from/used for financing
activities......................... $ (56,990) $ 34,120 $ 1,630,346
<CAPTION>
EQUITY OFFICE PREDECESSORS (COMBINED HISTORICAL)
---------------------------------------------------------------
FOR THE
PERIOD FROM
JANUARY 1,
1997 TO FOR THE YEARS ENDED DECEMBER 31,
JULY 10, -------------------------------------------------
1997 1996 1995 1994 1993
----------- ---- ---- ---- ----
(DOLLARS IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Revenues:
Rental, parking and other.......... $ 327,017 $ 493,396 $ 356,959 $ 230,428 $ 150,315
--------- ---------- ---------- ---------- ----------
Total revenues.................. $ 339,104 $ 508,124 $ 371,457 $ 240,878 $ 159,246
--------- ---------- ---------- ---------- ----------
Expenses:
Interest........................... $ 80,481 $ 119,595 $ 100,566 $ 59,316 $ 36,755
Depreciation and amortization...... 66,034 96,237 74,156 46,905 29,752
Property operating(1).............. 127,285 201,067 151,488 107,412 74,028
General and administrative......... 17,201 23,145 21,987 15,603 12,012
Provision for value impairment..... -- -- 20,248 -- --
--------- ---------- ---------- ---------- ----------
Total expenses.................. $ 291,001 $ 440,044 $ 368,445 $ 229,236 $ 152,547
--------- ---------- ---------- ---------- ----------
Income before (income) loss
allocated to minority interests,
income from investments in
unconsolidated joint ventures, gain
on sales of real estate, and
extraordinary items................ $ 48,103 $ 68,080 $ 3,012 $ 11,642 $ 6,699
Minority interests allocation....... (912) (2,086) (2,129) 1,437 1,772
Income from investments in
unconsolidated joint ventures...... 1,982 2,093 2,305 1,778 --
Gain/(Loss) on sales of real estate
and extraordinary items(2)......... 12,236 5,338 31,271 1,705 --
--------- ---------- ---------- ---------- ----------
Net income before preferred
distributions...................... 61,409 73,425 34,459 16,562 8,471
Preferred distributions............. -- -- -- -- --
--------- ---------- ---------- ---------- ----------
Net income available to Units....... $ 61,409 $ 73,425 $ 34,459 $ 16,562 $ 8,471
========= ========== ========== ========== ==========
Net income available per weighted
average Unit outstanding --
Basic..............................
Net income available per weighted
average Unit outstanding --
Diluted............................
Weighted average Units outstanding
-- Basic...........................
Weighted average Units outstanding
-- Diluted.........................
BALANCE SHEET DATA: (at end of perio
Investment in real estate after
accumulated depreciation........... -- $3,291,815 $2,393,403 $1,815,160 $1,220,268
Total assets........................ -- $3,912,565 $2,650,890 $2,090,933 $1,318,644
Mortgage debt, unsecured notes and
lines of credit.................... -- $1,964,892 $1,434,827 $1,261,156 $ 798,897
Total liabilities................... -- $2,174,483 $1,529,334 $1,350,552 $ 845,315
Minority interests.................. -- $ 11,080 $ 31,587 $ 9,283 $ (15,298)
Partners' Capital/Owners' equity.... -- $1,727,002 $1,089,969 $ 731,098 $ 488,627
OTHER DATA:
General and administrative expenses
as a percentage of total
revenues........................... 5.1% 4.6% 5.9% 6.5% 7.5%
Number of Office Properties owned at
period end(3)...................... -- 83 73 63 48
Net rentable square feet of Office
Properties owned at period end (in
millions)(3)....................... -- 29.2 23.1 18.5 13.6
Occupancy of Office Properties owned
at period end(3)................... -- 90% 86% 88% 80%
Number of Parking Facilities owned
at period end...................... -- 10 3 -- --
Number of spaces at Parking
Facilities owned at period end..... -- 7,321 3,323 -- --
Funds from Operations(4)............ $ 113,022 $ 160,460 $ 96,104 $ 60,372 --
Cash flow from operating
activities......................... $ 95,960 $ 165,975 $ 93,878 $ 73,821 --
Cash flow used for investing
activities......................... $(571,068) $ (924,227) $ (380,615) $ (513,965) --
Cash flow from/used for financing
activities......................... $ 245,851 $1,057,551 $ 276,513 $ 514,923 --
</TABLE>
20
<PAGE> 25
- -------------------------
(1) Includes property operating expenses, real estate taxes and insurance, as
well as repair and maintenance expenses.
(2) The column entitled "Company Pro Forma for the year ended December 31, 1997"
and "Company Pro Forma for the three months ended March 31, 1998" excludes
the effect of any gain (loss) on sales of real estate and extraordinary
items.
(3) The pro forma number of Office Properties as of March 31, 1998 includes
Office Properties acquired subsequent to March 31, 1998 and Probable
Acquisitions.
(4) The White Paper on Funds from Operations approved by the Board of Governors
of NAREIT in March 1995 defines Funds from Operations as net income (loss)
(computed in accordance with GAAP), excluding gains (or losses) from debt
restructuring and sales of properties, plus real estate related depreciation
and amortization and after adjustments for unconsolidated partnerships and
joint ventures. The Company believes that Funds from Operations is helpful
to investors as a measure of the performance of an equity REIT because,
along with cash flow from operating activities, financing activities and
investing activities, it provides investors with an indication of the
ability of the Company to incur and service debt, to make capital
expenditures and to fund other cash needs. The Company computes Funds from
Operations in accordance with standards established by NAREIT, which may not
be comparable to Funds from Operations reported by other REITs that do not
define the term in accordance with the current NAREIT definition or that
interpret the current NAREIT definition differently than the Company. Funds
from Operations does not represent cash generated from operating activities
in accordance with GAAP and should not be considered as an alternative to
net income (determined in accordance with GAAP) as an indication of the
Company's financial performance or to cash flow from operating activities
(determined in accordance with GAAP) as a measure of the Company's
liquidity, nor is it indicative of funds available to fund the Company's
cash needs, including its ability to make cash distributions. For a
reconciliation of net income and Funds from Operations, see "Management's
Discussion and Analysis of Financial Condition and Results of Operations --
Funds from Operations."
21
<PAGE> 26
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
The Exchange Offer is designed to provide holders of Private Notes and
Private Warrants the opportunity to acquire Exchange Notes and Exchange
Warrants, respectively, which, unlike the Private Notes and the Private
Warrants, will be freely transferable under the Securities Act at all times
(subject to certain exceptions relating to the nature of the holders, as
described below under the caption "-- Resale of Exchange Notes and Exchange
Warrants").
The Private Notes and the Private Warrants were sold by the Company on June
15, 1998 to the Initial Purchasers (as defined in the Glossary) pursuant to
purchase agreements, dated as of June 10, 1998, among the Company and the
Initial Purchasers. The Initial Purchasers subsequently sold the Private Notes
and the Private Warrants to "qualified institutional buyers" ("QIBs"), as
defined in Rule 144A under the Securities Act ("Rule 144A"), in reliance on Rule
144A and to institutional "accredited investors" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) in transactions exempt from
registration under the Securities Act. As a condition to the sale of the Private
Notes and the Private Warrants, the Company and the Initial Purchasers entered
into registration rights agreements, dated as of June 10, 1998 (the
"Registration Rights Agreements"). Pursuant to the Registration Rights
Agreements, the Company agreed that it would use its reasonable best efforts to
(i) cause an exchange offer registration statement under the Securities Act with
respect to the Exchange Notes and the Exchange Warrants to be filed with the
Commission and (ii) cause such registration statement to remain effective under
the Securities Act until the closing of the Exchange Offer or such date as is
otherwise required by law to consummate the Exchange Offer on or before December
12, 1998. Copies of the Registration Rights Agreements have been filed as
exhibits to the registration statement of which this Prospectus is a part (the
"Registration Statement"). If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the Commission, the Company is not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not
consummated within 180 days of the Closing Date, or (iii) in the case of any
holder that participates in the Exchange Offer, such holder does not receive
Exchange Notes or Exchange Warrants, as applicable, on the date of the exchange
that may be sold without restriction under state and federal securities laws
(other than due solely to the status of such holder as an affiliate of the
Company within the meaning of the Securities Act or as a broker-dealer), then in
each case, the Company will (x) promptly deliver to the holders written notice
thereof and (y) at the Company's sole expense (a) as promptly as practicable
(but in no event more than 60 days after so required or requested pursuant to
the Registration Rights Agreements), file a shelf registration statement
covering resales of the Private Notes and the Private Warrants (the "Shelf
Registration Statement"), (b) use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act and (c)
use its reasonable best efforts to keep effective the Shelf Registration
Statement until the earlier of two years (or, if Rule 144(k) is amended to
provide a shorter restrictive period, such shorter period) after the Closing
Date or such time as all of the applicable Private Notes and Private Warrants
have been sold thereunder. If the Company fails to consummate the Exchange Offer
with respect to the Private Notes and the Private Warrants prior to December 12,
1998 or, if applicable, fails to fulfill its obligations under the Registration
Rights Agreements to obtain and maintain effectiveness of the Shelf Registration
Statement during specified time periods, then liquidated damages will accrue on
the principal amounts of the Private Notes at an annual rate of 0.50%.
The Exchange Offer is intended to satisfy the Company's obligations under
the Registration Rights Agreements.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Company will accept any and all Private
Notes and Private Warrants validly tendered and not withdrawn prior to the
Expiration Date.
22
<PAGE> 27
The Company will issue Exchange Notes and Exchange Warrants in exchange for
an equal aggregate principal amount of outstanding Private Notes and an equal
aggregate number of Private Warrants, respectively, validly tendered pursuant to
the Exchange Offer and not withdrawn prior to the Expiration Date. Private Notes
may only be tendered in minimum denominations of $100,000 principal amount and
in integral multiples of $1,000 in excess thereof.
The form and terms of the Exchange Notes and the Exchange Warrants are the
same as the form and terms of the Private Notes and the Private Warrants,
respectively, except that (i) the Exchange Notes and the Exchange Warrants have
been registered under the Securities Act and, therefore, will not bear legends
restricting the transfer thereof and (ii) holders of the Exchange Notes and the
Exchange Warrants will not be entitled to any of the registration rights of
holders of Private Notes and Private Warrants under the Registration Rights
Agreements, which rights will terminate upon the consummation of the Exchange
Offer. The Exchange Notes will evidence the same indebtedness as the Private
Notes (which they replace) and will be issued under, and be entitled to the
benefits of, the Indenture, which also authorized the issuance of the Private
Notes, such that each of the 2004 Notes, the 2004 Exchange Notes, the 2007
Notes, the 2007 Exchange Notes, the 2028 Notes and the 2028 Exchange Notes will
respectively be treated as a single series under the Indenture.
In the Letter of Transmittal, holders of Private Notes whose Private Notes
are accepted for exchange will waive the right to receive any payment in respect
of interest on the Private Notes accrued from the later of June 15, 1998 or the
Interest Payment Date immediately preceding the date of issuance of the Exchange
Notes to the date of issuance of the Exchange Notes.
As of the date of this Prospectus, $250 million in aggregate principal
amount of the 2004 Notes is outstanding, $300 million in aggregate principal
amount of the 2007 Notes is outstanding, $225 million in aggregate principal
amount of the 2028 Notes is outstanding, and 300,000 Private Warrants are
outstanding. Only a registered holder of the Private Notes or Private Warrants,
as the case may be (or such holder's legal representative or attorney-in-fact),
as reflected on the records of the Trustee under the Indenture or the Warrant
Agent under the Warrant Agreement, as applicable, may participate in the
Exchange Offer. There will be no fixed record date for determining registered
holders of the Private Notes and Private Warrants entitled to participate in the
Exchange Offer.
Holders of Private Notes and Private Warrants do not have any appraisal or
dissenters' rights under the Delaware Revised Uniform Limited Partnership Act,
the Indenture or the Warrant Agreement in connection with the Exchange Offer.
The Company intends to conduct the Exchange Offer in accordance with the
provisions of the Registration Rights Agreements and the applicable requirements
of the Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder.
The Company shall be deemed to have accepted validly tendered Private Notes
and Private Warrants when, and if, the Company has given oral or written notice
of acceptance to the Exchange Agent. The Exchange Agent will act as agent for
the tendering holders of Private Notes and Private Warrants for the purpose of
receiving the Exchange Notes and the Exchange Warrants from the Company.
Holders who tender Private Notes or Private Warrants, as the case may be in
the Exchange Offer will not be required to pay brokerage commissions or fees or,
subject to the instructions in the Letter of Transmittal, transfer taxes with
respect to the exchange of Private Notes or Private Warrants, as the case may
be, pursuant to the Exchange Offer. The Company will pay all charges and
expenses, other than certain applicable taxes described below, in connection
with the Exchange Offer. See "-- Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
, 1998, unless the Company, in its sole discretion, extends
the Exchange Offer, in which case the term "Expiration Date" shall mean the
latest date and time to which the Exchange Offer is extended.
In order to extend the Exchange Offer, the Company will notify the Exchange
Agent of any extension by oral or written notice and will notify the registered
holders through a press release or other public
23
<PAGE> 28
announcement thereof, each prior to 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date.
The Company reserves the right, in its sole discretion, (i) to delay
accepting any Private Notes or Private Warrants, (ii) to extend the Exchange
Offer or (iii) if, in the opinion of counsel for the Company, the consummation
of the Exchange Offer would violate any applicable law, rule or regulation or
any applicable interpretation of the staff of the Commission, to terminate or
amend the Exchange Offer by giving oral or written notice of such delay,
extension, termination or amendment to the Exchange Agent. Any such delay,
extension, termination or amendment will be followed as promptly as practicable
by notice thereof to the registered holders through a press release or other
public announcement. If the Exchange Offer is amended in a manner determined by
the Company to constitute a material change, the Company will promptly disclose
such amendment by means of a prospectus supplement that will be distributed to
the registered holders, and the Company will extend the Exchange Offer to the
extent required by the rules promulgated under the Exchange Act.
Without limiting the manner in which the Company may choose to make a
public announcement of any delay, extension, amendment or termination of the
Exchange Offer, the Company shall have no obligation to publish, advertise, or
otherwise communicate any such public announcement, other than as required by
law or by making a timely release to an appropriate news agency.
INTEREST ON THE EXCHANGE NOTES AND ACCRUED INTEREST ON THE PRIVATE NOTES
The 2004 Exchange Notes, the 2007 Exchange Notes and the 2028 Exchange
Notes will bear interest at an annual rate of 6.50%, 6.763% and 7.25%,
respectively, payable semiannually in arrears on June 15 and December 15 of each
year, commencing December 15, 1998. The Exchange Notes will bear interest from
their date of issuance. Interest on the Private Notes which are exchanged for
the Exchange Notes will cease to accrue on the day preceding the date of
issuance of the Exchange Notes. Interest payable on the first Interest Payment
Date with respect to the Exchange Notes will include accrued but unpaid interest
due on the Private Notes (which they replace) for the period from the later of
June 15, 1998 or the Interest Payment Date immediately preceding the date of
issuance of the applicable Exchange Notes to the date of such issuance and will
be paid to the persons in whose names the applicable Exchange Notes are
registered in the security register applicable to the Exchange Notes as of the
close of business on the date 15 days prior to such payment date.
RESALE OF THE EXCHANGE NOTES AND THE EXCHANGE WARRANTS
Based upon interpretations by the staff of the Commission set forth in
certain no-action letters issued to third parties, the Company believes that a
holder who exchanges Private Notes or Private Warrants for Exchange Notes or
Exchange Warrants, respectively, in the ordinary course of business, who is not
participating, does not intend to participate, and has no arrangement with any
person to participate, in a distribution of the Exchange Notes or Exchange
Warrants, as applicable, and who is not an "affiliate" of the Company within the
meaning of Rule 405 of the Securities Act, will be allowed to resell Exchange
Notes or Exchange Warrants, as applicable, to the public without further
registration under the Securities Act and without delivering to the purchasers
of the Exchange Notes or Exchange Warrants, as applicable, a prospectus that
satisfies the requirements of Section 10 of the Securities Act. If, however, any
holder acquires Exchange Notes or Exchange Warrants in the Exchange Offer for
the purpose of distributing or participating in the distribution of the Exchange
Notes or Exchange Warrants, as applicable, such holder cannot rely on the
position of the staff of the Commission enumerated in certain no-action letters
issued to third parties and instead must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale transaction, unless an exemption from registration is otherwise
available. In addition, each broker-dealer that receives Exchange Notes or
Exchange Warrants for its own account in exchange for Private Notes or Private
Warrants, respectively, acquired by such broker-dealer as a result of
market-making or other trading activities must acknowledge that it will deliver
a prospectus in connection with any resale of Exchange Notes or Exchange
Warrants, as applicable. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus a broker-dealer will not be deemed
to admit that it is an
24
<PAGE> 29
"underwriter" within the meaning of the Securities Act. Such broker-dealer may
use this Prospectus in connection with resales of any Exchange Notes or Exchange
Warrants received in exchange for Private Notes or Private Warrants,
respectively, acquired by such broker-dealer (other than Private Notes or
Private Warrants, respectively, acquired directly from the Company) as a result
of market-making or other trading activities. Pursuant to the Registration
Rights Agreements, the Company has agreed to make this Prospectus available to
any such broker-dealer that requests copies of such Prospectus in the Letter of
Transmittal for use in connection with any such resale for a period not to
exceed 180 days after the closing of the Exchange Offer. The Company will
undertake to update such Prospectus during such 180-day period. See "Plan of
Distribution."
PROCEDURES FOR TENDERING
Only a registered holder of Private Notes or Private Warrants may tender
such Private Notes or Private Warrants in the Exchange Offer. To tender in the
Exchange Offer, a holder of Private Notes or Private Warrants must complete,
sign and date the Letter of Transmittal, or a facsimile thereof, have the
signatures thereon guaranteed if required by the Letter of Transmittal, and mail
or otherwise deliver such Letter of Transmittal or such facsimile or an Agent's
Message (as defined below) to the Exchange Agent at the address set forth below
under "-- Exchange Agent" for receipt prior to the Expiration Date. In addition,
prior to the Expiration Date, either (i) certificates for such Private Notes or
Private Warrants must be received by the Exchange Agent along with the Letter of
Transmittal, (ii) a timely confirmation of a book-entry transfer (a "Book-Entry
Confirmation") of such Private Notes or Private Warrants, if such procedure is
available, into the Exchange Agent's account at The Depository Trust Company,
New York, New York ("DTC"), pursuant to the procedure for book-entry transfer
described below, must be received by the Exchange Agent or (iii) the holder must
comply with the guaranteed delivery procedures described below.
A tender of Private Notes or Private Warrants by a holder that is not
withdrawn prior to the Expiration Date will constitute an agreement between such
holder and the Company in accordance with the terms and subject to the
conditions set forth herein and in the Letter of Transmittal.
THE METHOD OF DELIVERY OF PRIVATE NOTES OR PRIVATE WARRANTS AND THE LETTER
OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE
ELECTION AND RISK OF THE HOLDER AND DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. INSTEAD OF DELIVERY BY MAIL, IT IS
RECOMMENDED THAT HOLDERS USE AN OVERNIGHT OR HAND DELIVERY SERVICE, PROPERLY
INSURED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO
THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. DO NOT SEND THE LETTER OF
TRANSMITTAL OR ANY PRIVATE NOTES OR PRIVATE WARRANTS TO THE COMPANY. HOLDERS MAY
REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR
NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR SUCH HOLDERS.
Any beneficial owner of Private Notes or Private Warrants whose Private
Notes or Private Warrants are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee and who wishes to tender such
securities should contact the registered holder promptly and instruct such
registered holder to tender on such beneficial owner's behalf. If such
beneficial owner wishes to tender on such owner's own behalf, such owner either
must make appropriate arrangements to register ownership of the Private Notes or
Private Warrants in such owner's name or must obtain a properly completed bond
power from the registered holder prior to completing and executing the Letter of
Transmittal and delivering such owner's Private Notes or Private Warrants. The
transfer of registered ownership may take considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal described
below (see "-- Withdrawal of Tenders"), as the case may be, must be guaranteed
by an Eligible Institution (as defined below) unless the Private Notes or
Private Warrants tendered pursuant thereto are tendered (i) by a registered
holder to whom Exchange Notes or Exchange Warrants, as applicable, are to be
issued directly and who has not completed the box titled "Special Delivery
Instructions" nor the box titled "Special Registration Instructions" on the
Letter of Transmittal or (ii) for the account of an Eligible Institution. In the
event that signatures on a Letter of
25
<PAGE> 30
Transmittal or a notice of withdrawal, as the case may be, are required to be
guaranteed, such guarantee must be made by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" within
the meaning of Rule 17Ad-15 under the Exchange Act (an "Eligible Institution").
If the Letter of Transmittal is signed by a person other than the
registered holder of any Private Notes or Private Warrants listed therein, such
Private Notes or Private Warrants must be endorsed or accompanied by a properly
completed bond power, signed by such registered holder exactly as such
registered holder's name appears on such Private Notes or Private Warrants.
If the Letter of Transmittal or any Private Notes or Private Warrants or
bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and,
unless waived by the Company, evidence satisfactory to the Company of their
authority to so act must be submitted with the Letter of Transmittal.
The Exchange Agent and DTC have confirmed that any financial institution
that is a participant in DTC's system may utilize DTC's Automated Tender Offer
Program ("ATOP") to tender Private Notes or Private Warrants. Accordingly,
participants in DTC's ATOP may, in lieu of physically completing and signing the
Letter of Transmittal and delivering it to the Exchange Agent, electronically
transmit their acceptance of the Exchange Offer by causing DTC to transfer the
Private Notes or the Private Warrants to the Exchange Agent in accordance with
DTC's ATOP procedures for transfer. DTC will then send an Agent's Message to the
Exchange Agent.
The term "Agent's Message" means a message transmitted by DTC, received by
the Exchange Agent and forming part of the Book-Entry Confirmation, which states
that DTC has received an express acknowledgment from a participant in DTC's ATOP
that is tendering Private Notes or Private Warrants which are the subject of
such Book-Entry Confirmation, that such participant has received and agrees to
be bound by the terms of the Letter of Transmittal (or, in the case of an
Agent's Message relating to guaranteed delivery, that such participant has
received and agrees to be bound by the applicable notice of guaranteed
delivery), and that the agreement may be enforced against such participant.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Private Notes and Private
Warrants will be resolved by the Company in its sole discretion, which
determination will be final and binding. The Company reserves the absolute right
to reject any and all Private Notes or Private Warrants not properly tendered or
any Private Notes or Private Warrants the Company's acceptance of which would,
in the opinion of counsel for the Company, be unlawful. The Company also
reserves the right to waive any defects, irregularities or conditions of tender
as to particular Private Notes or Private Warrants. The Company's interpretation
of the terms and conditions of the Exchange Offer (including the instructions in
the Letter of Transmittal) will be final and binding on all parties. Unless
waived, any defects or irregularities in connection with tenders of Private
Notes or Private Warrants must be cured within such time as the Company shall
determine. Although the Company intends to notify holders of defects or
irregularities with respect to tenders of Private Notes or Private Warrants,
none of the Company, the Exchange Agent or any other person shall incur any
liability for failure to give such notification. Tenders of Private Notes or
Private Warrants will not be deemed to have been made until such defects or
irregularities have been cured or waived.
While the Company has no present plan to acquire any Private Notes or
Private Warrants that are not tendered in the Exchange Offer, the Company
reserves the right in its sole discretion to purchase or make offers for any
Private Notes or Private Warrants that remain outstanding subsequent to the
Expiration Date and, to the extent permitted by applicable law, to purchase
Private Notes or Private Warrants in the open
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market, in privately negotiated transactions or otherwise. The terms of any such
purchases or offers could differ from the terms of the Exchange Offer.
By tendering, each holder of Private Notes or Private Warrants will
represent to the Company that, among other things, (i) any Exchange Notes or
Exchange Warrants acquired in exchange for Private Notes or Private Warrants,
respectively, tendered thereby are being acquired in the ordinary course of
business of the person receiving such Exchange Notes or Exchange Warrants, (ii)
the person receiving such Exchange Notes or Exchange Warrants is not engaging in
and does not intend to engage in a distribution of such Exchange Notes or
Exchange Warrants, (iii) the person receiving such Exchange Notes or Exchange
Warrants does not have an arrangement or understanding with any person to
participate in the distribution of such Exchange Notes or Exchange Warrants and
(iv) neither the holder nor any other person receiving such Exchange Notes or
Exchange Warrants from the holder is an "affiliate," as defined in Rule 405
under the Securities Act, of the Company. If the holder is a broker-dealer that
will receive Exchange Notes or Exchange Warrants for its own account in exchange
for Private Notes or Private Warrants, respectively, that were acquired as a
result of market-making activities or other trading activities, such holder will
be required to acknowledge in the Letter of Transmittal that such holder will
deliver a prospectus in connection with any resale of such Exchange Notes or
Exchange Warrants. Such acknowledgement and prospectus delivery by such holder
will not be deemed to constitute an admission by such holder that it is an
"underwriter" within the meaning of the Securities Act. By tendering, each
holder of Private Notes or Private Warrants will be required to acknowledge
that, if it is participating in the Exchange Offer for the purpose of
distributing the Exchange Notes or Exchange Warrants, (i) it cannot rely on the
position of the staff of the Commission in certain no-action letters and, in the
absence of an exemption therefrom, must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction of the Exchange Notes or the Exchange Warrants, in
which case the registration statement must contain the selling security holder
information required by Item 507 or Item 508, as applicable, of Regulation S-K
of the Securities Act and (ii) failure to comply with such requirements in such
instance could result in such holder incurring liability under the Securities
Act for which it is not indemnified by the Company.
RETURN OF PRIVATE NOTES AND PRIVATE WARRANTS
If any tendered Private Notes or Private Warrants are not accepted for any
reason set forth in the terms and conditions of the Exchange Offer or if Private
Notes or Private Warrants are withdrawn, such unaccepted, withdrawn or
non-exchanged Private Notes or Private Warrants will be returned without expense
to the tendering holder thereof (or, in the case of Private Notes or Private
Warrants tendered by book-entry transfer into the Exchange Agent's account at
DTC pursuant to the book-entry transfer procedures described below, such Private
Notes or Private Warrants will be credited to an account maintained with DTC) as
promptly as practicable.
BOOK-ENTRY TRANSFER
The Exchange Agent will make a request to establish an account with respect
to the Private Notes and the Private Warrants with DTC for purposes of the
Exchange Offer within two business days after the date of this Prospectus, and
any financial institution that is a participant in DTC's system may make
book-entry delivery of Private Notes or Private Warrants by causing DTC to
transfer such Private Notes or Private Warrants into the Exchange Agent's
account at DTC in accordance with DTC's procedures for transfer. However,
although delivery of Private Notes or Private Warrants may be effected through
book-entry transfer at DTC, the Letter of Transmittal or facsimile thereof, with
any required signature guarantees and any other required documents, must, in any
case, be transmitted to and received by the Exchange Agent at the address set
forth below under "-- Exchange Agent" on or prior to the Expiration Date or
pursuant to the guaranteed delivery procedures described below.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Private Notes or Private Warrants and (i)
whose Private Notes or Private Warrants are not immediately available, (ii) who
cannot deliver their Private Notes, the Private
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<PAGE> 32
Warrants, the Letter of Transmittal or any other required documents to the
Exchange Agent prior to the Expiration Date or (iii) who are unable to complete
the procedure for book-entry transfer on a timely basis, may effect a tender if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed notice of
guaranteed delivery (a "Notice of Guaranteed Delivery") substantially in
the form provided by the Company (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the holder, the certificate
number(s) of such Private Notes or Private Warrants, as applicable, and the
principal amount of Private Notes or Private Warrants tendered, stating
that the tender is being made thereby and guaranteeing that, within three
(3) New York Stock Exchange, Inc. ("NYSE") trading days after the
Expiration Date, either (x) the Letter of Transmittal (or facsimile
thereof) together with the Private Notes or Private Warrants (or a
Book-Entry Confirmation) in proper form for transfer will be deposited by
the Eligible Institution with the Exchange Agent or (y) an Agent's Message
will be properly transmitted to the Exchange Agent; and
(c) Such properly executed Letter of Transmittal (or facsimile
thereof), as well as the certificate(s) for all physically tendered shares
of Private Notes or Private Warrants, as applicable, in proper form for
transfer, or Book-Entry Confirmation, as the case may be, and all other
documents required by the Letter of Transmittal or a properly transmitted
Agent's Message, are received by the Exchange Agent within three (3) NYSE
trading days after the date of execution of the Notice of Guaranteed
Delivery.
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will be
sent to holders who wish to tender their Private Notes or Private Warrants
according to the guaranteed delivery procedures set forth above.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Private Notes or Private
Warrants may be withdrawn at any time prior to the Expiration Date. To withdraw
a tender of Private Notes or Private Warrants in the Exchange Offer, a written
or facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its address set forth herein prior to the Expiration Date. Any such
notice of withdrawal must (i) specify the name of the person having deposited
the Private Notes or Private Warrants to be withdrawn, (ii) identify the Private
Notes or Private Warrants to be withdrawn (including the certificate number or
numbers) and (iii) be signed by the holder in the same manner as the original
signature on the Letter of Transmittal by which such Private Notes or Private
Warrants were tendered (including any required signature guarantees). All
questions as to the validity, form and eligibility (including time of receipt)
of such notices will be determined by the Company, in its sole discretion, whose
determination shall be final and binding on all parties. Any Private Notes or
Private Warrants so withdrawn will be deemed not to have been validly tendered
for purposes of the Exchange Offer, and no Exchange Notes or Exchange Warrants
will be issued with respect thereto unless the Private Notes or Private Warrants
so withdrawn are validly retendered. Properly withdrawn Private Notes and
Private Warrants may be retendered by following one of the procedures described
above under "-- Procedures for Tendering" at any time prior to the Expiration
Date.
TERMINATION OF CERTAIN RIGHTS
All registration rights under the Registration Rights Agreements accorded
to holders of the Private Notes and the Private Warrants eligible to participate
in the Exchange Offer (and all rights to receive additional interest due to
failure to consummate the Exchange Offer on a timely basis, if the Exchange
Offer is not consummated on or before December 12, 1998, with respect to the
Private Notes and the Private Warrants) will terminate upon consummation of the
Exchange Offer except with respect to the Company's duty to keep the
Registration Statement effective until the closing of the Exchange Offer and,
for a period of 180 days after the closing of the Exchange Offer, to provide
copies of the latest version of the Prospectus to any broker-dealer that
requests copies of such Prospectus in the Letter of Transmittal for use in
connection with any resale by such broker-dealer of Exchange Notes or Exchange
Warrants received for its own account pursuant to the
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Exchange Offer in exchange for Private Notes or Private Warrants, respectively,
that were acquired for its own account as a result of market-making or other
trading activities.
EXCHANGE AGENT
State Street Bank and Trust Company has been appointed as Exchange Agent
for the Exchange Offer. Questions and requests for assistance, requests for
additional copies of this Prospectus or of the Letter of Transmittal and
requests for Notice of Guaranteed Delivery should be directed to the Exchange
Agent addressed as follows:
By Facsimile Transmission:
(For Eligible Institutions Only)
(617) 664-5290
Confirm by Telephone:
(617) 664-5249
<TABLE>
<CAPTION>
By Mail: By Overnight Delivery: By Hand:
<S> <C> <C>
State Street Bank and Trust State Street Bank and Trust State Street Bank and Trust
Company Company Company
P.O. Box 778 Two International Place Two International Place
Boston, Massachusetts 4th Floor 4th Floor
02102-0778 Boston, Massachusetts 02110 Boston, Massachusetts 02110
Attention: Corporate Trust Attention: Corporate Trust Window Attention: Corporate Trust
Window Window
</TABLE>
State Street Bank and Trust Company also serves as Trustee under the
Indenture and Warrant Agent under the Warrant Agreement.
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitations
may be made by telegraph, facsimile transmission, telephone or in person by
officers and regular employees of the Company and their affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
it for its reasonable, out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer will
be paid by the Company and are estimated in the aggregate to be approximately
$500,000. Such expenses include registration fees, fees and expenses of the
Exchange Agent and the Trustee, accounting and legal fees and printing costs,
among others.
The Company will pay all transfer taxes, if any, applicable to the exchange
of Private Notes or Private Warrants pursuant to the Exchange Offer. If,
however, a transfer tax is imposed for any reason other than the exchange of the
Private Notes or Private Warrants pursuant to the Exchange Offer, then the
amount of any such transfer tax (whether imposed on the registered holder or any
other persons) will be payable by the tendering holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with the Letter
of Transmittal, the amount of such transfer taxes will be billed directly to
such tendering holder.
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CONSEQUENCES OF FAILURE TO EXCHANGE
Participation in the Exchange Offer is voluntary. Holders of Private Notes
or Private Warrants are urged to consult their financial and tax advisors in
making their own decisions on what action to take.
Private Notes and Private Warrants that are not exchanged for Exchange
Notes and Exchange Warrants, respectively, pursuant to the Exchange Offer will
remain "restricted securities" within the meaning of Rule 144(a)(3)(iv) of the
Securities Act. Accordingly, such Private Notes or Private Warrants may not be
offered, sold, pledged or otherwise transferred except (i) to a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act or
to a person whom the seller reasonably believes is a qualified institutional
buyer purchasing for its own account in a transaction meeting the requirements
of Rule 144A, (ii) to the Company or any subsidiary thereof, (iii) pursuant to
an effective registration statement under the Securities Act or (iv) to
institutional accredited investors for investment purposes and not with a view
to, or for offer or sale in connection with, any distribution in violation of
the Securities Act, in a transaction exempt from the registration requirements
of the Securities Act, and, in each case, in accordance with all other
applicable securities laws and the transfer restrictions set forth in the
Indenture or the Warrant Agreement, as applicable.
ACCOUNTING TREATMENT
For accounting purposes, the Company will recognize no gain or loss as a
result of the Exchange Offer. The expenses of the Exchange Offer will be
amortized over the remaining terms of the Notes and the Warrants.
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<PAGE> 35
DESCRIPTION OF THE EXCHANGE NOTES
The Exchange Notes will be issued under the Indenture, a copy of which is
filed as an exhibit to the Registration Statement and which will be made
available upon request. The terms of the Exchange Notes include those provisions
contained in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The
Exchange Notes are subject to all such terms, and holders of Exchange Notes are
referred to the Indenture and the Trust Indenture Act for a statement thereof.
The following summary of certain provisions of the Exchange Notes and the
Indenture does not purport to be complete and is subject to and qualified in its
entirety by reference to the actual provisions of the Exchange Notes and the
Indenture. As used in this section, the term "Company" means EOP Operating
Limited Partnership and not any of its Subsidiaries unless otherwise expressly
stated or the context otherwise requires.
GENERAL
Each of the 2004 Exchange Notes, the 2007 Exchange Notes and the 2028
Exchange Notes constitute a separate series of securities under the Indenture
and is limited to an aggregate principal amount of $250 million, $300 million
and $225 million, respectively. The Exchange Notes will be direct, unsecured and
unsubordinated obligations of the Company and will rank equally with each other
and with all other unsecured and unsubordinated indebtedness of the Company from
time to time outstanding. The Exchange Notes will be effectively subordinated to
mortgages and other secured indebtedness of the Company to the extent of the
value of the property securing such indebtedness. The Exchange Notes also will
be effectively subordinated, in the context of a bankruptcy proceeding, to all
existing and future third-party indebtedness and other liabilities of the
Company's Subsidiaries. As of March 31, 1998, on a Pro Forma Basis, such secured
indebtedness of the Company and its Subsidiaries aggregated approximately $2.3
billion and the total liabilities of the Company's Subsidiaries was
approximately $2.6 billion. See "Capitalization." Subject to certain limitations
set forth in the Indenture, and as described under "-- Certain
Covenants -- Limitations on Incurrence of Debt" below, the Indenture will permit
the Company to incur additional secured and unsecured indebtedness. Such
additional indebtedness may consist of, but is not limited to, indebtedness
issued under the Indenture.
Unless redeemed prior to maturity as described under "-- Optional
Redemption," the 2004 Exchange Notes will mature on June 15, 2004; the 2007
Exchange Notes will mature on June 15, 2007; and the 2028 Exchange Notes will
mature on June 15, 2028 (each, a "Stated Maturity Date"). The Exchange Notes are
not subject to any sinking fund provisions.
As described under "-- Certain Indenture Covenants -- Limitations on
Incurrence of Debt" and "-- Merger, Consolidation or Sale" below, the Indenture
contains provisions that may limit the ability of the Company to incur
indebtedness or effect a reorganization, restructuring, merger or similar
transaction involving the Company that may adversely affect the holders of the
Exchange Notes.
PRINCIPAL AND INTEREST
The 2004 Exchange Notes, the 2007 Exchange Notes and the 2028 Exchange
Notes will bear interest at an annual rate of 6.50%, 6.763% and 7.25%,
respectively, payable semiannually in arrears on June 15 and December 15 of each
year, commencing December 15, 1998 (each, an "Interest Payment Date"), and on
the applicable Stated Maturity Date or date of earlier redemption or accelerated
payment, as the case may be (each, a "Maturity Date"). The Exchange Notes will
bear interest from their date of issuance. Interest on the Private Notes which
are exchanged for the Exchange Notes will cease to accrue on the day preceding
the date of issuance of the Exchange Notes. Interest payable on the first
Interest Payment Date with respect to the Exchange Notes will include accrued
but unpaid interest due on the Private Notes (which they replace) for the period
from the later of June 15, 1998 or the Interest Payment Date immediately
preceding the date of issuance of the Exchange Notes to the date of such
issuance and will be paid to the persons in whose names the applicable Exchange
Notes are registered in the security register applicable to the Exchange Notes
(the "Holders") as of the close of business on the date 15 days prior to such
payment day, regardless of whether
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such day is a Business Day, as defined below (each, a "Regular Record Date").
Interest on the Exchange Notes will be computed on the basis of a 360-day year
composed of twelve 30-day months.
The principal of, and Make-Whole Amount (as defined below), if any, with
respect to, each Exchange Note payable on the applicable Maturity Date will be
paid against presentation and surrender of such Exchange Note at the corporate
trust office of the Trustee, located initially at Two International Place,
Financial Services, Corporate Trust Department, Boston, Massachusetts 02110, or
at the corporate trust window of the Trustee initially maintained at 61
Broadway, Concourse Level, New York, New York 10006, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
If any Interest Payment Date or a Maturity Date falls on a day that is not
a Business Day, the required payment shall be made on the next Business Day as
if it were made on the date such payment was due and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or such Maturity Date, as the case may be, to such next Business Day. "Business
Day" means any day, other than a Saturday or Sunday, on which banking
institutions in New York, New York, and Boston, Massachusetts, are open for
business.
OPTIONAL REDEMPTION
The Exchange Notes may be redeemed at any time at the option of the
Company, in whole or from time to time in part, at a redemption price equal to
the sum of (i) 100% of the principal amount of the Exchange Notes being redeemed
plus accrued interest thereon to the redemption date and (ii) the Make-Whole
Amount, if any, with respect to such Exchange Notes (collectively, the
"Redemption Price"); provided, however, that interest installments due on an
Interest Payment Date which is on or prior to the Redemption Date will be
payable to the Holders of such Exchange Notes (or one or more predecessor
Exchange Notes) as of the close of business on the Record Date preceding such
Interest Payment Date.
If notice has been given as provided in the Indenture and funds for the
redemption of any Exchange Notes called for redemption shall have been made
available on the redemption date referred to in such notice, such Exchange Notes
will cease to bear interest on the date fixed for such redemption specified in
such notice and the only right of the Holders of such Exchange Notes will be to
receive payment of the Redemption Price.
Notice of any optional redemption of any Exchange Notes will be given to
Holders at their addresses, as shown in the security register for the Exchange
Notes, not more than 60 nor less than 30 days prior to the date fixed for
redemption. The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of Exchange Notes held by such Holder
to be redeemed.
If less than all the Exchange Notes are to be redeemed at the option of the
Company, the Company will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the series and aggregate principal amount of Exchange Notes to be redeemed
and their redemption date. The Trustee shall select, in such manner as it shall
deem fair and appropriate, Exchange Notes to be redeemed of such series in whole
or in part.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Exchange Notes, the excess, if any, of (i)
the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid and
the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in respect
of each such dollar if such redemption or accelerated payment had not been
made, determined by discounting, on a semiannual basis, such principal and
interest at the Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption or accelerated payment is
given) from the respective dates on which such principal and interest would
have been payable if such redemption or accelerated payment had not been
made to the date of redemption or accelerated payment, over (ii) the
aggregate principal amount of the Exchange Notes being redeemed or paid.
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<PAGE> 37
"Reinvestment Rate" means .25% plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid.
If no maturity exactly corresponds to such maturity, yields for the two
published maturities most closely corresponding to such maturity shall be
calculated pursuant to the immediately preceding sentence and the
Reinvestment Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used. If the format or
content of the Statistical Release changes in a manner that precludes
determination of the Treasury yield in the above manner, then the Treasury
yield shall be determined in the manner that most closely approximates the
above manner, as reasonably determined by the Company.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under
the Indenture, then such other reasonably comparable index which shall be
designated by the Company.
CERTAIN INDENTURE COVENANTS
LIMITATIONS ON INCURRENCE OF DEBT. The Company will not, and will not
permit a Subsidiary to, incur any Debt (as defined below), other than
intercompany Debt (representing Debt to which the only parties are the Trust,
the Company and any of their Subsidiaries, but only so long as such Debt is held
solely by any of the Trust, the Company and any Subsidiary and provided that, in
the case of Debt owed to Subsidiaries of the Company, such Debt is subordinate
in right of payment to the Exchange Notes), if, immediately after giving effect
to the incurrence of such additional Debt, the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries on a consolidated basis
determined in accordance with GAAP is greater than 60% of the sum of (i) Total
Assets (as defined below) as of the end of the fiscal quarter covered in the
Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the
case may be, most recently filed with the Commission (or, if such filing is not
required under the Exchange Act, with the Trustee) prior to the incurrence of
such additional Debt and (ii) the increase or decrease in Total Assets from the
end of such quarter including, without limitation, any increase in Total Assets
resulting from the incurrence of such additional Debt (such increase or decrease
together with the Company's Total Assets is referred to as the "Adjusted Total
Assets") (Indenture Section 1004(a)).
In addition to the foregoing limitations on the incurrence of Debt, the
Company will not, and will not permit any Subsidiary to, incur any Secured Debt
(as defined below) of the Company or any Subsidiary if, immediately after giving
effect to the incurrence of such additional Secured Debt, the aggregate
principal amount of all outstanding Secured Debt of the Company and its
Subsidiaries on a consolidated basis is greater than 40% of Adjusted Total
Assets (Indenture Section 1004(b)).
In addition to the foregoing limitation on the incurrence of Debt, the
Company will not, and will not permit any Subsidiary to, incur any Debt, other
than intercompany Debt (provided that, in the case of Debt owed to Subsidiaries
of the Company, such Debt is subordinate in right of payment to the Exchange
Notes), if the ratio of Consolidated Income Available for Debt Service to the
Annual Debt Service Charge (in each case as defined below) for the period
consisting of the four consecutive fiscal quarters most recently ended prior to
the date on which such additional Debt is to be incurred shall have been less
than 1.5 to 1 on a pro forma basis after giving effect to the incurrence of such
Debt and to the application of the proceeds therefrom, and calculated on the
assumption that (i) such Debt and any other Debt incurred by the Company or its
Subsidiaries since the first day of such four-quarter period, which was
outstanding at the end of such period, had been incurred at the beginning of
such period and continued to be outstanding throughout such period, and the
application of the proceeds of such Debt, including to refinance other Debt, had
occurred at the beginning of such period, (ii) the repayment or retirement of
any other Debt by the Company or its
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<PAGE> 38
Subsidiaries since the first day of such four-quarter period had been repaid or
retired at the beginning of such period (except that, in determining the amount
of Debt so repaid or retired, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance of such Debt
during such period), (iii) in the case of Acquired Indebtedness or Debt incurred
in connection with any acquisition since the first day of the four-quarter
period, the related acquisition had occurred as of the first day of the period
with the appropriate adjustments with respect to the acquisition being included
in the pro forma calculation and (iv) in the case of any increase or decrease in
Total Assets, or any other acquisition or disposition by the Company or any
Subsidiary of any asset or group of assets, since the first day of such
four-quarter period, including, without limitation, by merger, stock purchase or
sale, or asset purchase or sale, such increase, decrease or other acquisition or
disposition or any related repayment of Debt had occurred as of the first day of
such period with the appropriate adjustments to revenues, expenses and Debt
levels with respect to such increase, decrease or other acquisition or
disposition being included in such pro forma calculation (Indenture Section
1004(c)).
MAINTENANCE OF TOTAL UNENCUMBERED ASSETS. The Company is required at all
times to maintain Total Unencumbered Assets of not less than 150% of the
aggregate outstanding principal amount of all outstanding Unsecured Debt of the
Company and its Subsidiaries on a consolidated basis (Indenture Section
1004(d)).
As used in the Indenture and the description thereof herein:
"Acquired Indebtedness" means Debt of a Person (i) existing at the
time the Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from the Person, in each case, other than Debt
incurred in connection with, or in contemplation of, the Person becoming a
Subsidiary or that acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person
or the date the acquired Person becomes a Subsidiary.
"Annual Debt Service Charge" as of any date means the amount which is
expensed in any 12-month period for Consolidated Interest Expense of the
Company and its Subsidiaries.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income plus amounts which have been deducted in
determining Consolidated Net Income during such period for (i) Consolidated
Interest Expense, (ii) provision for taxes of the Company and its
Subsidiaries based on income, (iii) amortization (other than amortization
of debt discount) and depreciation, (iv) provisions for losses from sales
or joint ventures, (v) increases in deferred taxes and other noncash items,
(vi) charges resulting from a change in accounting principles, and (vii)
charges for early extinguishment of debt, and less amounts which have been
added in determining Consolidated Net Income during such period for (a)
provisions for gains from sales or joint ventures and (b) decreases in
deferred taxes and other noncash items.
"Consolidated Interest Expense" means, for any period, and without
duplication, all interest (including the interest component of rentals on
leases reflected in accordance with GAAP as capitalized leases on the
Company's consolidated balance sheet, letter of credit fees, commitment
fees and other like financial charges) and all amortization of debt
discount on all Debt (including, without limitation, payment-in-kind, zero
coupon and other securities) of the Company and its Subsidiaries, but
excluding legal fees, title insurance charges and other out-of-pocket fees
and expenses incurred in connection with the issuance of Debt, all
determined in accordance with GAAP.
"Consolidated Net Income" for any period means the amount of net
income (or loss) of the Company and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Debt" of the Company or any Subsidiary means, without duplication,
any indebtedness of the Company and its Subsidiaries, whether or not
contingent, in respect of (i) borrowed money evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness secured by any
mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by the Company and its Subsidiaries, (iii) the
reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the balance
deferred and unpaid of the purchase price of
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any property except any such balance that constitutes an accrued expense or
trade payable or (iv) any lease of property by the Company and its
Subsidiaries as lessee which is reflected in the Company's consolidated
balance sheet as a capitalized lease in accordance with GAAP, in the case
of items of indebtedness under (i) through (iii) above to the extent that
any such items (other than letters of credit) would appear as a liability
on the Company's consolidated balance sheet in accordance with GAAP, and
also includes, to the extent not otherwise included, any obligation by the
Company or any Subsidiary to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), indebtedness of another person (other than
the Company or any Subsidiary) (it being understood that "Debt" shall be
deemed to be incurred by the Company and its Subsidiaries on a consolidated
basis whenever the Company and its Subsidiaries on a consolidated basis
shall create, assume, guarantee or otherwise become liable in respect
thereof; Debt of a Subsidiary of the Company existing prior to the time it
became a Subsidiary of the Company shall be deemed to be incurred upon such
Subsidiary's becoming a Subsidiary of the Company; and Debt of a person
existing prior to a merger or consolidation of such person with the Company
or any Subsidiary of the Company in which such person is the successor to
the Company or such Subsidiary shall be deemed to be incurred upon the
consummation of such merger or consolidation); provided, however, the term
Debt shall not include any such indebtedness that has been the subject of
an "in substance" defeasance in accordance with GAAP.
"Secured Debt" means, without duplication, Debt secured by any
mortgage, trust deed, deed of trust, deed to secure debt, security
agreement, pledge, conditional sale or other title retention agreement,
capitalized lease, or other like agreement granting or conveying security
title to or a security interest in real property or other tangible assets.
Secured Debt shall be deemed to be incurred (i) on the date the Company or
any Subsidiary creates, assumes, guarantees or otherwise becomes liable in
respect thereof if it is secured in the manner described in the preceding
sentence on such date or (ii) on the date the Company or any Subsidiary
first secures such Debt in the manner described in the preceding sentence
if such Debt was not so secured on the date it was incurred.
"Subsidiary" means (i) a corporation, partnership, limited liability
company, trust, real estate investment trust or other entity a majority of
the voting power of the voting equity securities of which are owned,
directly or indirectly, by the Company or by one or more Subsidiaries of
the Company, (ii) a partnership, limited liability company, trust, real
estate investment trust or other entity not treated as a corporation for
federal income tax purposes, the majority of the value of the equity
interests of which are owned, directly or indirectly, by the Company or by
one or more other Subsidiaries of the Company and (iii) one or more
corporations which, either individually or in the aggregate, would be
Significant Subsidiaries (as defined below, except that the investment,
asset and equity thresholds for purposes of this definition shall be 5%),
the majority of the value of the equity interests of which are owned,
directly or indirectly, by the Company or by one or more Subsidiaries.
"Total Assets" as of any date means the sum of (i) Undepreciated Real
Estate Assets and (ii) all other assets of the Company and its Subsidiaries
on a consolidated basis determined in accordance with GAAP (but excluding
intangibles and accounts receivable).
"Total Unencumbered Assets" as of any date means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured Debt
and (ii) all other assets of the Company and its Subsidiaries on a
consolidated basis not securing any portion of Secured Debt determined in
accordance with GAAP (but excluding intangibles and accounts receivable).
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the
Company and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP.
"Unsecured Debt" means Debt of the Company or any Subsidiary that is
not Secured Debt.
EXISTENCE. Except as permitted under "-- Merger, Consolidation or Sale"
below, the Company is required to do or cause to be done all things necessary to
preserve and keep in full force and effect its
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existence, rights and franchises; provided, however, that the Company shall not
be required to preserve any right or franchise if the Board of Trustees of the
Trust determines that the preservation thereof is no longer desirable in the
conduct of the Company's business and that the loss thereof is not
disadvantageous in any material respect to the Holders (Indenture Section 1006).
MAINTENANCE OF PROPERTIES. The Company is required to cause all of its
material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and to cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the reasonable judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that the Company and
its Subsidiaries shall not be prevented from discontinuing the operation and
maintenance of any of the properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business and not disadvantageous
in any material respect to the Holders (Indenture Section 1007).
INSURANCE. The Company is required to, and is required to cause each of
its Subsidiaries to, maintain insurance coverage by financially sound and
reputable insurance companies in such forms and amounts and against such risks
as are customary for companies of established reputation engaged in the same or
a similar business (Indenture Section 1008).
PAYMENT OF TAXES AND OTHER CLAIMS. The Company is required to pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent (i) all material taxes, assessments and governmental charges levied
or imposed upon it or any Subsidiary or upon its income, profits or property or
that of any Subsidiary and (ii) all material lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings so long as appropriate
reserves are established therefor in accordance with GAAP (Indenture Section
1009).
PROVISION OF FINANCIAL INFORMATION. Whether or not the Company is subject
to Section 13 or 15(d) of the Exchange Act and for so long as any Exchange Notes
are outstanding, the Company will, to the extent permitted under the Exchange
Act, be required to file with the Commission the annual reports, quarterly
reports and other documents which the Company would have been required to file
with the Commission pursuant to such Section 13 or 15(d) if the Company were so
subject (the "Financial Statements"), such documents to be filed with the
Commission on or prior to the respective dates by which the Company would have
been required to file such documents if the Company were so subject (the
"Required Filing Dates"). The Company will also in any event (x) within 15 days
of each Required Filing Date (i) transmit by mail to all Holders of Exchange
Notes, as their names and addresses appear in the security register for the
Exchange Notes, without cost to such Holders, copies of the annual reports and
quarterly reports which the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company
were subject to such Sections and (ii) file with the Trustee copies of the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act if the Company were subject to such Sections and (y) if
filing such documents by the Company with the Commission is not made under the
Exchange Act, promptly upon written request and payment of the reasonable cost
of duplication and delivery, supply copies of such documents to any prospective
Holder (Indenture Section 1010).
MERGER, CONSOLIDATION OR SALE
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
corporation, limited liability company, association, partnership, real estate
investment trust, company or business trust (collectively, a "Corporation"),
provided that (a) the Company shall be the continuing Corporation, or the
successor Corporation or its transferees or assignees of such assets (if other
than the Company) formed by or resulting from any such consolidation or merger
or which shall have received the transfer of such assets by lease (subject to
the continuing obligations of the Company set
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forth in the Indenture) or otherwise, either directly or indirectly, shall
expressly assume payment of the principal of (and premium or Make-Whole Amount,
if any) and interest on all the debt securities issued by the Company under the
Indenture ("Debt Securities") and the due and punctual performance and
observance of all of the covenants and conditions contained in the Indenture;
(b) the successor Corporation formed by or resulting from any such consolidation
or merger or which shall have received the transfer of assets shall be a United
States Corporation; (c) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or any
Subsidiary of the Company as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default
under the Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing; and (d) an officer's certificate and legal opinion covering such
conditions shall be delivered to the Trustee (Indenture Sections 801 and 803).
The foregoing requirements are applicable regardless of whether the merger,
consolidation or other transaction is supported by the Company.
EVENTS OF DEFAULT, NOTICE AND WAIVER
The following events are "Events of Default" with respect to the Notes of a
series: (a) default for 30 days in the payment of any installment of interest on
any Note of such series; (b) default in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Note at its maturity; (c) default
in the performance of any other covenant of the Company contained in the
Indenture, such default having continued for 60 days after written notice as
provided pursuant to the Indenture; (d) default in the payment of an aggregate
principal amount exceeding $5,000,000 of any evidence of recourse indebtedness
of the Company or any mortgage, indenture or other instrument under which such
indebtedness is issued or by which such indebtedness is secured, such default
having occurred after the expiration of any applicable grace period and having
resulted in the acceleration of the maturity of such indebtedness, but only if
such indebtedness is not discharged or such acceleration is not rescinded or
annulled, such default having continued for a period of 10 days after written
notice as provided pursuant to the Indenture; and (e) certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Company or any Significant Subsidiary or any of
their respective property. The term "Significant Subsidiary" means each
significant subsidiary (as defined in Regulation S-X promulgated under the
Securities Act) of the Company (Indenture Section 501).
If an Event of Default under the Indenture occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Notes of a series may declare the principal amount of
all of the Notes of such series to be due and payable immediately by written
notice thereof to the Company (and to the Trustee if given by the Holders).
However, at any time after such a declaration of acceleration with respect to
such Notes has been made, but before a judgment or decree for payment of the
money due has been obtained by the Trustee, the Holders of not less than a
majority in principal amount of such Outstanding Notes may rescind and annul
such declaration and its consequences if (a) the Company shall have paid or
deposited with the Trustee all required payments of the principal of (and
premium or Make-Whole Amount, if any) and interest on such Notes, plus certain
fees, expenses, disbursements and advances of the Trustee and (b) all Events of
Default, other than the nonpayment of accelerated principal of (or specified
portion thereof) or premium (if any) or interest on such Notes have been cured
or waived as provided in the Indenture (Indenture Section 502). The Indenture
also provides that the Holders of not less than a majority in principal amount
of the Outstanding Notes of a series may waive any past default with respect to
such series and its consequences, except a default (x) in the payment of the
principal of (or premium or Make-Whole Amount, if any) or interest on any such
Note or (y) in respect of a covenant or provision contained in the Indenture
that cannot be modified or amended without the consent of the Holder of each
Outstanding Note affected thereby (Indenture Section 513).
The Trustee will be required to give notice to the Holder of Exchange Notes
within 90 days of a default under the Indenture unless such default has been
cured or waived; provided, however, that the Trustee may withhold notice to the
Holders of any default (except a default in the payment of the principal of (or
premium or Make-Whole Amount, if any) or interest on any Exchange Note or in the
payment of any sinking fund
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installment in respect of any Exchange Note) if specified Responsible Officers
of the Trustee consider such withholding to be in the interest of such Holders
(Indenture Section 601).
The Indenture provides that no Holder of Exchange Notes may institute any
proceedings, judicial or otherwise, with respect to the Indenture or for any
remedy thereunder, except in the case of failure of the Trustee, for 60 days, to
act after it has received a written request to institute proceedings in respect
of an Event of Default from the Holders of not less than 25% in principal amount
of the Outstanding Notes of a series, as well as an offer of indemnity
reasonably satisfactory to it (Indenture Section 507). This provision will not
prevent, however, any holder of Notes from instituting suit for the enforcement
of payment of the principal of (and premium or Make-Whole Amount, if any) and
interest on such Exchange Notes at the respective due dates thereof (Indenture
Section 508).
Subject to provisions in the Indenture relating to its duties in case of
default, the Trustee is under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any Holders of any
Exchange Notes then Outstanding under the Indenture, unless such Holders shall
have offered to the Trustee thereunder reasonable security or indemnity (Section
602). The Holders of not less than a majority in principal amount of the
Outstanding Notes of a series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
in respect of such Notes, or of exercising any trust or power conferred upon the
Trustee in respect of such Notes. However, the Trustee may refuse to follow any
direction which is in conflict with any law or the Indenture, which may involve
the Trustee in personal liability or which may be unduly prejudicial to the
holders of Notes of such series not joining therein (Indenture Section 512).
Within 120 days after the close of each fiscal year, the Company must
deliver to the Trustee a certificate, signed by one of several specified
officers of the Company, stating whether or not such officer has knowledge of
any default under the Indenture and, if so, specifying each such default and the
nature and status thereof (Indenture Section 1011).
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture will be permitted to be made
only with the consent of the Holders of not less than a majority in principal
amount of all Outstanding Debt Securities of each series which is affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holders of each such Debt Security
affected thereby, (a) change the Stated Maturity of the principal of, or premium
or Make-Whole Amount, if any, or any installment of interest on, any such Debt
Security; (b) reduce the principal amount of, or the rate or amount of interest
on, or any premium or Make-Whole Amount, if any, payable on redemption of, any
such Debt Security; (c) change the place of payment, or the coin or currency,
for payment of principal of, or premium or Make-Whole Amount, if any, or
interest on any such Debt Security; (d) impair the right to institute suit for
the enforcement of any payment on or with respect to any such Debt Security; (e)
reduce the above stated percentage in principal amount of Outstanding Debt
Securities of any series necessary to modify or amend the Indenture, to waive
compliance with certain provisions thereof or certain defaults and consequences
thereunder or to reduce the quorum or voting requirements set forth in the
Indenture; or (f) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to provide
that certain other provisions may not be modified or waived without the consent
of the Holders of each such Debt Security affected thereby (Indenture Section
902). A Debt Security shall be deemed outstanding ("Outstanding") if it has been
authenticated and delivered under the Indenture unless, among other things, such
Debt Security has been cancelled or redeemed.
The Indenture provides that the Holders of not less than a majority in
principal amount of Outstanding Debt Securities of a series have the right to
waive compliance by the Company with certain covenants in the Indenture in
respect of such Debt Securities (Indenture Section 1013). Compliance with the
covenants described herein and such additional covenants with respect to the
Debt Securities of a series generally may
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not be waived by the Board of Trustees of the Trust, as managing general partner
of the Company, or by the Trustee.
Modifications and amendments of the Indenture will be permitted to be made
by the Company and the Trustee without the consent of any Holder for any of the
following purposes: (i) to evidence the succession or addition of another Person
to the Company as obligor under the Indenture; (ii) to add to the covenants of
the Company for the benefit of the Holders or to surrender any right or power
conferred upon the Company in the Indenture; (iii) to add Events of Default for
the benefit of the Holders; (iv) to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided, that such action shall not
adversely affect the interests of the Holders in any material respect; (v) to
secure the Debt Securities; (vi) to establish the form or terms of additional
Debt Securities of any series; (vii) to provide for the acceptance of
appointment by a successor Trustee or facilitate the administration of the
trusts under the Indenture by more than one Trustee; (viii) to cure any
ambiguity, defect or inconsistency in the Indenture, provided that such action
shall not adversely affect the interests of Holders in any material respect; or
(ix) to supplement any of the provisions of the Indenture to the extent
necessary to permit or facilitate defeasance and discharge of any series of Debt
Securities under the Indenture, provided that such action shall not adversely
affect the interests of the Holders in any material respect (Indenture Section
901).
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities (Indenture Section 1501). A meeting will be permitted to be
called at any time by the Trustee, and also, upon request, by the Company or the
Holders of at least 10% in principal amount of the Outstanding Debt Securities,
in any such case upon notice given as provided in the Indenture (Indenture
Section 1502). Except for any consent that must be given by the Holder of each
Debt Security affected by certain modifications and amendments of the Indenture,
any resolution presented at a meeting or adjourned meeting duly reconvened at
which a quorum is present will be permitted to be adopted by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series; provided, however, that, except as referred to above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Debt Securities may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Debt Securities. Any resolution passed or decision taken at
any meeting of Holders of Debt Securities duly held in accordance with the
Indenture will be binding on all Holders of Debt Securities of such series. The
quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be Persons holding or representing a majority in principal amount
of the Outstanding Debt Securities; provided, however, that if any action is to
be taken at such meeting with respect to a consent or waiver which may be given
by the Holders of not less than a specified percentage in principal amount of
the Outstanding Debt Securities of a series, the Persons holding or representing
such specified percentage in principal amount of the Outstanding Debt Securities
of such series will constitute a quorum (Indenture Section 1504).
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of Holders of Debt Securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
the Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding Debt Securities
affected thereby, or of the Holders of such series and one or more additional
series: (i) there shall be no minimum quorum requirement for such meeting and
(ii) the principal amount of the Outstanding Debt Securities that vote in favor
of such request, demand, authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or other action has
been made, given or taken under the Indenture (Indenture Section 1504).
SATISFACTION AND DISCHARGE
The Company may discharge certain obligations to Holders of Exchange Notes
that have not already been delivered to the Trustee for cancellation and that
either have become due and payable or will become due and payable within one
year (or scheduled for redemption within one year) by irrevocably depositing
with
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the Trustee, in trust, funds in such currency or currencies, currency unit or
units or composite currency or currencies in which such Exchange Notes are
payable in an amount sufficient to pay the entire indebtedness on such Exchange
Notes in respect of principal (and premium or Make-Whole Amount, if any) and
interest to the date of such deposit (if such Exchange Notes have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be
(Indenture Section 401).
The defeasance and covenant defeasance provisions of Article Fourteen of
the Indenture will apply to the Exchange Notes upon satisfaction of certain
conditions specified therein.
NO CONVERSION RIGHTS
The Exchange Notes will not be convertible into or exchangeable for any
equity interest in or debt security of the Trust or equity interest in the
Company.
GLOBAL SECURITIES
Exchange Notes issued in exchange for Private Notes currently evidenced by
one or more fully registered global notes will be evidenced by one or more
global notes of the related series (the "Global Securities"), which will be
deposited upon issuance with, or on behalf of, DTC and registered in the name of
Cede & Co. ("Cede"), as DTC's nominee. Exchange Notes issued in exchange for
Private Notes in non-book-entry-form will be issued in registered, certificated
form.
Holders may hold their interests in any of the Global Securities directly
through DTC, or indirectly through organizations which are participants in DTC
("Participants"). Transfers between Participants will be effected in the
ordinary way in accordance with DTC rules and will be settled in immediately
available funds.
Holders who are not Participants may beneficially own interests in a Global
Security held by DTC only through Participants, including certain banks,
brokers, dealers, trust companies and other parties that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly, and have indirect access to the DTC system ("Indirect
Participants"). So long as Cede, as the nominee of DTC, is the registered owner
of any Global Security, Cede for all purposes will be considered the sole holder
of such Global Security. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have certificates
registered in their names, will not receive or be entitled to receive physical
delivery of certificates in definitive form, and will not be considered the
holder thereof.
Neither the Company nor the Trustee (nor any registrar or paying agent)
will have any responsibility for the performance by DTC or their Participants or
Indirect Participants of their respective obligations under the rules and
procedures governing their operations. DTC has advised the Company that it will
take any action permitted to be taken by a holder of Notes only at the direction
of one or more Participants whose accounts are credited with DTC interests in a
Global Security.
DTC has advised the Company as follows: DTC is a limited purpose trust
company organized under the laws of the State of New York, a "banking
organization" within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its Participants and to facilitate the clearance and settlement
of securities transactions, such as transfers and pledges, among Participants in
deposited securities through electronic book-entry changes to accounts of its
Participants, thereby eliminating the need for physical movement of securities
certificates. Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. Certain of
such Participants (or their representatives), together with other entities, own
DTC. The rules applicable to DTC and its Participants are on file with the
Commission.
DTC has further advised the Company that pursuant to the procedures
established by it, (i) upon deposit of the Global Securities representing
Private Notes, DTC will credit the accounts of its Participants with portions of
the principal amount of the Global Securities representing the Exchange Notes
issued in exchange for the Private Notes that each such Participant has
instructed DTC to surrender for exchange and
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(ii) ownership of such interests in the Global Securities will be shown on, and
the transfer of ownership thereof will be effected only through, records
maintained by DTC (with respect to the Participants) or by the Participants and
the Indirect Participants (with respect to other owners of beneficial interests
in the Global Securities).
Purchases of Exchange Notes under the DTC system must be made by or through
Participants, which will receive a credit for the Exchange Notes on DTC's
records. The ownership interest of each actual purchaser of each Exchange Note
(a "Beneficial Owner") is in turn to be recorded on the Participant's and
Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic statements of their holdings, from the Participant or Indirect
Participant through which the Beneficial Owner entered into the transaction.
Transfers of ownership interests in the Exchange Notes are to be accomplished by
entries made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Exchange Notes, except in the event that use of the book-entry
system for the Exchange Notes is discontinued.
The deposit of Exchange Notes with DTC and their registration in the name
of Cede effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Exchange Notes; DTC's records reflect only the
identity of the Participants whose accounts such Exchange Notes are credited,
which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Redemption notices shall be sent to Cede. If less than all of the principal
amount of the Global Securities of the same series is being redeemed, DTC's
practice is to determine by lot the amount of the interest of each Participant
therein to be redeemed.
Conveyance of notices and other communications by DTC to Participants, by
Participants to Indirect Participants and by Participants and Indirect
Participants to Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements that may be in effect from
time to time.
Principal, Make-Whole Amount, if any, and interest payments on the Exchange
Notes will be made to DTC by wire transfer of immediately available funds. DTC's
practice is to credit Participants' accounts on the payable date in accordance
with their respective holdings shown on DTC's records unless DTC has reason to
believe that it will not receive payment on the payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC or the Company, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payments of principal, Make-Whole Amount, if any, and interest to DTC is the
responsibility of the Company, disbursement of such payments to Participants
shall be the responsibility of DTC, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Participants and Indirect
Participants. Neither the Company nor the Trustee will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in the Global Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
DTC may discontinue providing its services as securities depository with
respect to the Exchange Notes at any time by giving reasonable notice to the
Company. In the event that DTC notifies the Company that it is unwilling or
unable to continue as depository for any Global Security or if at any time DTC
ceases to be a clearing agency registered as such under the Exchange Act when
DTC is required to be so registered to act as such depository and no successor
depository shall have been appointed within 90 days of such notification or of
the Company becoming aware of DTC's ceasing to be so registered, as the case may
be, certificates for the relevant Exchange Notes will be printed and delivered
in exchange for interests in such Global Security. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
relevant Exchange Notes in authorized denominations registered in such names as
DTC shall direct. It is expected that
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such instruction will be based upon directions received by DTC from its
Participants with respect to ownership of beneficial interests in such Global
Security.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
certificates representing the Exchange Notes will be printed and delivered.
DESCRIPTION OF THE EXCHANGE WARRANTS
The Exchange Warrants will be, and the Private Warrants are, issued
pursuant to a debt warrant agreement (the "Warrant Agreement"), dated as of June
15, 1998, between the Company and State Street Bank and Trust Company, as debt
warrant agent (the "Warrant Agent"), a copy of which is filed as an exhibit to
the Registration Statement and which will be made available upon request. The
following summary of certain provisions of the Warrant Agreement and the
certificates representing the Exchange Warrants (the "Warrant Certificates")
does not purport to be complete and is subject to and qualified in its entirety
by reference to the actual provisions of the Warrant Agreement and the Warrant
Certificates.
The Exchange Warrants will be issued in fully registered form, with (i)
Exchange Warrants issued in exchange for Private Warrants currently evidenced by
one or more fully registered global certificates being represented by one or
more global certificates deposited with the Warrant Agent as custodian for, and
registered in the name of, a nominee of DTC, and (ii) Exchange Warrants issued
in exchange for Private Warrants in non-book-entry-form being represented by
physical certificates. For a discussion of the depositary arrangements with DTC,
see "Description of the Exchange Notes -- Global Securities."
Each Exchange Warrant will entitle the holder thereof to purchase $1,000
principal amount of the Underlying Notes, at an exercise price equal to 100% of
the principal amount thereof (the "Exercise Price"). The Underlying Notes will
have terms identical to the Exchange Notes, except that (i) the maturity of such
Underlying Notes shall be June 15, 2008 (the "Underlying Notes Maturity Date"),
(ii) interest will accrue on such Underlying Notes from and including the
Exercise Date and will be paid on such Underlying Notes commencing June 15,
2000, (iii) if the Underlying Notes issued and delivered upon exercise of the
Exchange Warrants are not registered under the Securities Act, the interest rate
per annum on the Underlying Notes shall be increased by 0.50% until such
unregistered Underlying Notes have been so registered and (iv) the interest rate
per annum on the Underlying Notes may be increased as described in the third
succeeding paragraph.
Exchange Warrants may be exercised on December 15, 1999 unless, in
accordance with the Warrant Agreement, the Company notifies holders of the
Exchange Warrants in writing at their registered addresses at least five
Business Days prior to December 15, 1999 that, based on an opinion of counsel,
it is aware of material non-public information with respect to the Company, in
which case the Company may postpone such date to January 18, 2000, or, in each
case, if such day is not a Business Day, the succeeding Business Day (the
"Exercise Date"), upon (i) notice by a holder of an Exchange Warrant of such
holder's intention to exercise its Exchange Warrant submitted to the Warrant
Agent and forwarded by the Warrant Agent to the Company no later than the
Determination Date (as defined below), (ii) delivery to the Warrant Agent at its
corporate trust office or its corporate trust window on or prior to the Exercise
Date of payment of the Exercise Price in the form of certified or official bank
check payable to the order of the Company and (iii) delivery to the Warrant
Agent at its corporate trust office on or prior to the Exercise Date of the
related Warrant Certificate(s) properly completed and duly executed, whereupon
the Company will, on or promptly after the Exercise Date, deliver the Underlying
Notes purchasable upon such exercise; provided, however, that Exchange Warrants
may only be exercised if notice of such exercise has been delivered to the
Company no later than the Determination Date. Notice of a holder's intention to
exercise an Exchange Warrant shall be irrevocable, except that after a
postponement of the date of exercise of the Exchange Warrants under the
conditions specified above such notice shall be null and void. After such
postponement, a holder must redeliver a notice of intention to exercise an
Exchange Warrant no later than the Determination Date immediately preceding
January 18, 2000. After the close of business on the Determination Date,
unexercised Exchange Warrants will become void.
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Prior to the delivery of the Underlying Notes purchasable upon exercise of
Exchange Warrants on the Exercise Date, holders of the Exchange Warrants will
not be entitled to any of the rights of holders of the Underlying Notes so
purchasable, including payments in respect thereof.
In the event that the Company postpones the date of the exercise of the
Exchange Warrants to January 18, 2000 in accordance with the Warrant Agreement,
the interest rate per annum on the Underlying Notes will be increased by the
positive value, if any, of the sum of (i) the value (positive or negative,
expressed in the form of a percentage or in basis points), if any, of the result
from subtracting the December 1999 Credit Spread from the January 2000 Credit
Spread and (ii) the value (positive or negative, expressed in the form of a
percentage or in basis points), if any, of the result from subtracting the
December 1999 Treasury Rate from the January 2000 Treasury Rate.
If for any reason the Company elects not to, or fails to, issue and deliver
the Underlying Notes purchasable upon exercise of the Exchange Warrants on the
Exercise Date, then the Company shall promptly pay to the holders who have given
notice of their intention to exercise their Exchange Warrants an amount equal to
the Warrant Make-Whole Amount, as calculated by the Calculation Agent on the
third Business Day prior to December 15, 1999. The "Warrant Make-Whole Amount"
means the present value, as of December 15, 1999, of the Remaining Scheduled
Payments (as defined below) discounted to December 15, 1999, on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months), at the
Warrant Reinvestment Rate.
As used herein:
"Calculation Agent" means initially Merrill Lynch, Pierce, Fenner & Smith
Incorporated or an affiliate thereof.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Calculation Agent as having an actual or interpolated
maturity or maturities comparable to the stated term to maturity of the
Underlying Notes.
"Comparable Treasury Price" means, with respect to December 15, 1999 or
January 18, 2000, as applicable, (a) the offer-side prices for the Comparable
Treasury Issues (expressed in each case as a percentage of its principal amount)
on the third Business Day prior to such date, as set forth on "Telerate Page
500", or (b) if "Telerate Page 500" is not displayed or does not contain such
offer-side prices on the third Business Day prior to such date, (i) the average
of three Reference Treasury Dealer Quotations for December 15, 1999 or January
18, 2000, as applicable, after excluding the highest and lowest of five
Reference Treasury Dealer Quotations obtained on the third Business Day prior to
such date, or (ii) if the Calculation Agent obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury
Dealer Quotations obtained on the third Business Day prior to such date.
"Telerate Page 500" means the display designated as "Telerate Page 500" on Dow
Jones Markets Limited (or such other page as may replace Telerate Page 500 on
such service) or such other service displaying the offer-side prices specified
in (a) above as may replace Dow Jones Markets Limited.
The "December 1999 Credit Spread" will be the average (arithmetic mean) of
the bid indications, excluding the highest and the lowest bids, expressed as a
spread (in the form of a percentage or in basis points) above the December 1999
Treasury Rate, obtained by the Calculation Agent on the date three Business Days
prior to December 15, 1999, from the bids quoted by five Reference Corporate
Dealers in accordance with customary financial practice in the pricing of a new
issue of publicly registered senior, unsecured indebtedness of the Company for
the full aggregate principal amount of the Underlying Notes purchasable upon the
exercise of all Exchange Warrants, assuming that the Underlying Notes have (i)
an issue price equal to 100%, (ii) an issue date equal to December 15, 1999,
with settlement on such date without accrued interest, (iii) a maturity date
equal to the Underlying Notes Maturity Date, (iv) interest initially payable to
holders thereof commencing June 15, 2000 and (v) a stated annual interest rate,
payable semiannually on each June 15 and December 15, equal to the December 1999
Treasury Rate plus the spread bid by the applicable Reference Corporate Dealer.
If fewer than five Reference Corporate Dealers bid as
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described above, then the December 1999 Credit Spread shall be the average
(arithmetic mean) of all bid indications obtained.
"December 1999 Treasury Rate" means, with respect to December 15, 1999, the
rate per annum equal to the semiannual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues, assuming a price for the Comparable Treasury Issues (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
December 15, 1999.
"Determination Date" means three Business Days prior to the Exercise Date.
The "January 2000 Credit Spread" will be the average (arithmetic mean) of
the bid indications, excluding the highest and the lowest bids, expressed as a
spread (in the form of a percentage or in basis points) above the January 2000
Treasury Rate, obtained by the Calculation Agent on the date three Business Days
prior to January 18, 2000, from the bids quoted by five Reference Corporate
Dealers in accordance with customary financial practice in the pricing of a new
issue of publicly registered senior, unsecured indebtedness of the Company for
the full aggregate principal amount of the Underlying Notes purchasable upon the
exercise of all Exchange Warrants, assuming that the Underlying Notes have (i)
an issue price equal to 100%, (ii) an issue date equal to January 18, 2000, with
settlement on such date without accrued interest, (iii) a maturity date equal to
the Underlying Notes Maturity Date, (iv) interest initially payable to holders
thereof commencing June 15, 2000 and (v) a stated annual interest rate, payable
semiannually on each June 15 and December 15, equal to the January 2000 Treasury
Rate plus the spread bid by the applicable Reference Corporate Dealer. If fewer
than five Reference Corporate Dealers bid as described above, then the January
2000 Credit Spread shall be the average (arithmetic mean) of all bid indications
obtained.
"January 2000 Treasury Rate" means, with respect to January 18, 2000, the
rate per annum equal to the semiannual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues, assuming a price for the Comparable Treasury Issues (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
January 18, 2000.
"Reference Corporate Dealers" means leading dealers of publicly traded debt
securities of the Company in The City of New York (which may include the
Calculation Agent or one of its affiliates) selected by the Calculation Agent.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, and Salomon Brothers Inc (or
their respective affiliates which are primary U.S. Government securities
dealers) and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"), the
Calculation Agent shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and December 15, 1999 or January 18, 2000, as
applicable, the offer-side prices for the Comparable Treasury Issues (expressed
in each case as a percentage of its principal amount) quoted to the Calculation
Agent by such Reference Treasury Dealer by 3:30 p.m., New York City time, on the
third Business Day prior to such date.
"Remaining Scheduled Payments" means, with respect to the Underlying Notes,
all scheduled payments of the interest thereon, calculated at the interest rate
of the Underlying Notes only, that would accrue from December 15, 1999 and would
be due thereafter to and including the Underlying Notes Maturity Date.
"Warrant Reinvestment Rate" means the per annum rate equal to the December
1999 Treasury Rate plus the December 1999 Credit Spread. The Warrant
Reinvestment Rate announced by the Calculation Agent, absent manifest error,
shall be binding and conclusive upon the holders of the Exchange Warrants, the
Company and the Warrant Agent.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following discussion summarizes, subject to the limitations described
below, certain material federal income tax considerations relating to the
exchange of the Private Notes and the Private Warrants for the Exchange Notes
and the Exchange Warrants, respectively, pursuant to the Exchange Offer. The
following description is not exhaustive of all possible tax considerations and
is not intended to be tax advice. This summary does not purport to deal with
persons in special tax situations, such as financial institutions, insurance
companies, regulated investment companies, dealers in securities or currencies,
persons holding Notes or Warrants as a hedge against currency risk or as a
position in a "straddle" for U.S. tax purposes, persons whose functional
currency is not the U.S. dollar, tax-exempt organizations or foreign
corporations and persons who are not citizens or residents of the United States.
It does not give a detailed discussion of any state, local or foreign tax
consequences and does not discuss all aspects of federal income taxation that
might be relevant to a specific holder in light of its particular investment or
tax circumstances.
The information in this section is based on the Internal Revenue Code of
1986, as amended (the "Code"), current, temporary and proposed Treasury
Regulations thereunder, the legislative history of the Code, current
administrative interpretations and practices of the IRS and court decisions, all
as of the date hereof. No assurance can be given that future legislation,
Treasury Regulations, administrative interpretations and court decisions will
not significantly change current law or adversely affect existing
interpretations of current law. Any such change could apply retroactively to
transactions preceding the date of the change. Thus, no assurance can be
provided that the statements set forth herein (which do not bind the IRS or the
courts) will not be challenged by the IRS or will be sustained by a court if so
challenged.
EACH PROSPECTIVE PURCHASER IS STRONGLY URGED TO CONSULT WITH ITS OWN TAX
ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES TO IT OF THE EXCHANGE OF THE
PRIVATE NOTES AND THE PRIVATE WARRANTS FOR THE EXCHANGE NOTES AND THE EXCHANGE
WARRANTS, RESPECTIVELY, IN LIGHT OF ITS SPECIFIC TAX AND INVESTMENT SITUATIONS
AND THE SPECIFIC FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS APPLICABLE TO IT.
In the opinion of Hogan & Hartson L.L.P., special tax counsel to the
Company, the exchange of Private Notes and Private Warrants for Exchange Notes
and Exchange Warrants, respectively, pursuant to the Exchange Offer will not be
treated as an exchange for federal income tax purposes because the Exchange
Notes and the Exchange Warrants will not differ materially in kind or extent
from the Private Notes and Private Warrants, respectively, and because the
exchange will occur by operation of the original terms of the Private Notes and
the Private Warrants. As a result, Holders who exchange their Private Notes and
Private Warrants for Exchange Notes and Exchange Warrants, respectively, will
not recognize any income, gain or loss for federal income tax purposes. A Holder
will have the same adjusted basis and holding period in the Exchange Notes and
the Exchange Warrants immediately after the exchange as it had in the Private
Notes and Private Warrants, respectively, immediately before the exchange.
PLAN OF DISTRIBUTION
This Prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of any Exchange Notes
or Exchange Warrants received in exchange for Private Notes or Private Warrants,
respectively, acquired by such broker-dealer for its own account as a result of
market-making or other trading activities. Each broker-dealer that receives
Exchange Notes or Exchange Warrants for its own account in exchange for such
Private Notes or Private Warrants pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes or Exchange Warrants. The Company has agreed that for a
period of up to 180 days after the closing of the Exchange Offer, it will make
this Prospectus, as amended or supplemented, available to any such broker-dealer
that requests copies of this Prospectus in the Letter of Transmittal for use in
connection with any such resale.
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The Company will not receive any proceeds from any sale of Exchange Notes
or Exchange Warrants by broker-dealers or any other persons. Exchange Notes or
Exchange Warrants received by broker-dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions in
the over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Notes or the Exchange Warrants, or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes or Exchange
Warrants. Any broker-dealer that resells Exchange Notes or Exchange Warrants
that were received by it for its own account pursuant to the Exchange Offer and
any broker-dealer that participates in a distribution of such Exchange Notes or
Exchange Warrants may be deemed to be an "underwriter" within the meaning of the
Securities Act and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the Securities Act. The
Letter of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus a broker-dealer that receives Exchange Notes or Exchange
Warrants in exchange for Private Notes or Private Warrants, respectively,
acquired by such broker-dealer as a result of market-making or other trading
activities will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
The Company has agreed to pay all expenses incident to the Company's
performance of, or compliance with, the Registration Rights Agreements, and will
indemnify the holders of Private Notes and Private Warrants (including any
broker-dealers), and certain parties related to such holders, against certain
liabilities, including liabilities under the Securities Act.
EXPERTS
The consolidated financial statements of EOP Operating Limited Partnership
appearing in EOP Operating Limited Partnership's Annual Report (Form 10-K, as
amended by Form 10-K/A) for the year ended December 31, 1997 and the statements
of revenue and certain expenses for the Denver Post Tower, 301 Howard Street and
215 Fremont Street, the Mountain Properties, Milennium Plaza, Polk & Taylor,
Colonnade I, Colonnade II and the Walker Building and Columbia Seafirst Center
appearing in the Current Report of EOP Operating Limited Partnership on Form 8-K
dated June 26, 1998; have all been audited by Ernst & Young LLP, independent
auditors, as set forth in their reports thereon included therein and
incorporated herein by reference in reliance upon such reports given upon the
authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Beacon Properties, L.P., appearing
in the Current Report on Form 8-K/A of EOP Operating Limited Partnership filed
with the Commission on February 18, 1998, have been audited by
PricewaterhouseCoopers LLP, independent auditors, as set forth in their reports
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
reports given upon the authority of such firm as experts in accounting and
auditing.
LEGAL MATTERS
The legality of the Exchange Notes and the Exchange Warrants will be passed
upon for the Company by Hogan & Hartson L.L.P., Washington, D.C. In addition,
the description of federal income tax consequences under the heading "Federal
Income Tax Consequences" is based upon the opinion of Hogan & Hartson L.L.P.,
special tax counsel for the Company.
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GLOSSARY
For purposes of this Prospectus, the following capitalized terms shall have
the meanings set forth below:
"Adjusted Total Assets" means Total Assets together with the increase or
decrease in Total Assets, as described in "Description of the Exchange Notes --
Certain Indenture Covenants -- Limitations on Incurrence of Debt."
"Agent's Message" means a message transmitted by DTC, received by the
Exchange Agent and forming part of the Book-Entry Confirmation, which states
that DTC has received an express acknowledgement from a participant in DTC's
ATOP that is tendering Private Notes which are the subject of such Book-Entry
Confirmation, that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal (or, in the case of an Agent's Message
relating to guaranteed delivery, that such participant has received and agrees
to be bound by the applicable notice of guaranteed delivery), and that the
agreement may be enforced against such participant.
"Applicable Spread" means the lowest bid indication, expressed as a spread
(in the form of a percentage or in basis points) above the Base Rate, obtained
by the Remarketing Dealer on the Determination Date from the bids quoted by five
Reference Corporate Dealers for the full aggregate principal amount of the
Exchange MOPPRS at the Dollar Price, but assuming (i) an issue date equal to the
Remarketing Date, with settlement on such date without accrued interest, (ii) a
maturity date equal to the Stated Maturity Date of the Exchange MOPPRS, and
(iii) a stated annual interest rate, payable semiannually on each Interest
Payment Date, equal to the Base Rate plus the spread bid by the applicable
Reference Corporate Dealer. If fewer than five Reference Corporate Dealers bid
as described above, then the Applicable Spread shall be the lowest of such bid
indications obtained as described above. The Interest Rate to Maturity announced
by the Remarketing Dealer, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and Holders of the Exchange MOPPRS, the
Company and the Trustee.
"ATOP" means Automated Tender Offer Program.
"Beneficial Owner" means an actual purchaser of an Exchange Note.
"Book-Entry Confirmation" means a confirmation of a book-entry transfer.
"Business Day" means any day, other than a Saturday or Sunday, on which
banking institutions in New York, New York, and Boston, Massachusetts, are open
for business.
"Bylaws" means the bylaws adopted by the Board of Trustees of the Trust, as
amended from time to time.
"Cede" means Cede & Co., as DTC's nominee.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the common shares of beneficial interest, $.01 par
value per share, of the Trust.
"Company" means either EOP Operating Limited Partnership, a Delaware
limited partnership, alone as an entity, or, as the context may require, the
combined enterprise consisting of EOP Operating Limited Partnership and one or
more of its subsidiaries, and the predecessors thereof, except as defined in
"Description of the Exchange Notes," where "the Company" does not include the
subsidiaries. All references to the historical activities of EOP Operating
Limited Partnership refer to the activities of the Equity Office Predecessors.
"Debt Securities" means all the debt securities issued by the Company under
the Indenture.
"Debt to Market Capitalization Ratio" means the total consolidated and
unconsolidated debt of the Company as a percentage of the market value of
outstanding Common Shares, Preferred Shares and Units plus total consolidated
and unconsolidated debt, but excluding (i) all nonrecourse consolidated debt in
excess
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of the Company's proportionate share of such debt and (ii) all nonrecourse
unconsolidated debt of partnerships in which the Company is a partner in excess
of the Company's proportionate share of such debt.
"Declaration of Trust" means the Trust's declaration of trust, as amended
from time to time, and as filed with the State Department of Assessments and
Taxation of Maryland.
"DTC" means The Depository Trust Company, New York, New York.
"EGI" means Equity Group Investments, Inc., an owner, manager and financier
of real estate and corporations.
"Eligible Institution" means an "eligible guarantor institution" within the
meaning of Rule 17Ad-15 under the Exchange Act.
"EOH" means Equity Office Holdings, L.L.C., a Delaware limited liability
company.
"Equity Group" means one or both of EGI and EOH.
"Equity Office Predecessors" means, on a combined basis, the office
properties and parking facilities of the ZML Funds and the management business
of the Equity Group that were combined into the Company pursuant to its
formation.
"Exchange Agent" means State Street Bank and Trust Company.
"Exchange Notes" means the 6.50% Notes due 2004, 6.763% Notes due 2007 and
7.50% Notes due 2028 offered in this Exchange Offer.
"Exchange Offer" means the offer by the Company to exchange the Exchange
Notes and the Exchange Warrants, which have been registered under the Securities
Act, for an equal principal amount of the Company's outstanding Private Notes
and an equal amount of the Company's outstanding Private Warrants, respectively.
"Exchange Warrants" means the debt warrants of the Company offered in this
Exchange Offer entitling holders thereof to purchase an aggregate of
$300,000,000 in principal amount of the Underlying Notes.
"Expiration Date" means , 1998.
"GAAP" means generally accepted accounting principles in the United States.
"Global Securities" means one or more global notes evidencing each series
of Exchange Notes and the Exchange Warrants in book-entry form.
"Holders" means the persons in whose names the applicable Notes are
registered in the security register applicable to the Notes.
"Indenture" means the indenture, dated as of September 2, 1997, as amended
or supplemented, between the Company and the Trustee.
"Indirect Participants" means Participants, including certain banks,
brokers, dealers, trust companies and other parties that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly, and have indirect access to the DTC system.
"Initial Purchasers" means, in the case of the 2004 Notes and the 2028
Notes, J.P. Morgan Securities Inc., Lehman Brothers Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and Salomon
Brothers Inc. In the case of the 2007 Notes and the Private Warrants, "Initial
Purchasers" means Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman,
Sachs & Co., J.P. Morgan Securities Inc. and NationsBanc Montgomery Securities
LLC.
"Interest Payment Date" means the semiannual dates June 15 and December 15,
commencing, with respect to the Private Notes and the Exchange Notes, December
15, 1998, and June 15, 2000, with respect to the Underlying Notes.
"IRS" means the United States Internal Revenue Service.
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"Letter of Transmittal" means the letter of transmittal accompanying this
Prospectus.
"LIBOR" means the London Interbank Offering Rate.
"Maturity Date" means the applicable Stated Maturity Date or date of
earlier redemption or acceleration, as the case may be, of the Notes.
"MGCL" means the Maryland General Corporation Law, as amended from time to
time.
"Notes" means the Private Notes, the Underlying Notes and the Exchange
Notes.
"Notice of Guaranteed Delivery" means a properly completed and duly
executed notice of guaranteed delivery.
"NYSE" means the New York Stock Exchange, Inc.
"Outstanding" means the Debt Security has been authenticated and delivered
under the Indenture unless, among other things, such Debt Security has been
cancelled or redeemed.
"Participants" means organizations which are participants in DTC.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, joint-stock company, trust, unincorporated organization,
real estate investment trust, or government or any agency or political
subdivision thereof.
"Private Notes" means the 2004 Notes, the 2007 Notes and the 2028 Notes.
"Private Warrants" means the debt warrants of the Company entitling holders
thereof to purchase, on the eighteen month anniversary of the date of issuance,
an aggregate of $300,000,000 in principal amount of the Underlying Notes.
"Pro Forma Basis" means giving effect to the following transactions which
occurred subsequent to March 31, 1998: (a) the acquisition or probable
acquisition of twenty-two office properties and the purchase of the remaining
partnership interests in one of the Company's unconsolidated joint ventures; (b)
the Trust's private placement of $44 million of restricted Common Shares in
April 1998; and (c) the offering of the Private Notes and Private Warrants in
June 1998.
"Prospectus" means this prospectus, as the same may be amended or
supplemented from time to time.
"QIB" means "qualified institutional buyer," as defined in Rule 144A.
"Redemption Price" means the sum of (i) the principal amount of the
Exchange Notes being redeemed plus accrued interest thereon the redemption date
and (ii) the Make-Whole Amount, if any, with respect to such Exchange Notes.
"Registration Rights Agreements" means the registration rights agreements
among the Company and the Initial Purchasers, dated as of June 10, 1998.
"Registration Statement" means the registration statement of the Company on
Form S-4, together with all amendments and exhibits, of which this Prospectus is
a part.
"Regular Record Date" means the date 15 calendar days prior to such payment
day, regardless of whether such day is a Business Day.
"REIT" means a real estate investment trust as defined under Sections 856
through 860 of the Code and applicable Treasury regulations.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the shelf registration statement
covering resales of the Private Notes and the Private Warrants.
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"Staff" means the staff of the Commission.
"Stated Maturity Date" means June 15, 2004, in the case of the 2004
Exchange Notes; June 15, 2007, in the case of the 2007 Exchange Notes; June 15,
2008, in the case of the Underlying Notes; and June 15, 2028, in the case of the
2028 Exchange Notes.
"Trust" means Equity Office Properties Trust, a Maryland real estate
investment trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trustee" means State Street Bank and Trust Company.
"2004 Exchange Notes" means the Company's 6.50% Notes due 2004 offered in
this Exchange Offer.
"2007 Exchange Notes" means the Company's 6.763% Notes due 2007 offered in
this Exchange Offer.
"2028 Exchange Notes" means the Company's 7.25% Notes due 2028 offered in
this Exchange Offer.
"2004 Notes" means the Company's 6.50% Notes due 2004.
"2007 Notes" means the Company's 6.763% Notes due 2007.
"2028 Notes" means the Company's 7.25% Notes due 2028.
"Underlying Notes" means the Company's 6.763% Notes due 2008.
"Warrant Agent" means State Street Bank and Trust Company.
"Warrant Agreement" means that certain debt warrant agreement, dated June
15, 1998, between the Company and the Warrant Agent.
"Warrants" means the Private Warrants and the Exchange Warrants.
"Withholding Agent" means the last U.S. payor in the chain of payment prior
to payment to a non-U.S. holder.
"ZML Fund I" means Opportunity Partnership I and its general and limited
partners, including ZML REIT I.
"ZML Fund II" means Opportunity Partnership II and its general and limited
partners, including ZML REIT II.
"ZML Fund III" means Opportunity Partnership III and its general and
limited partners, including ZML REIT III.
"ZML Fund IV" means Opportunity Partnership IV and its general and limited
partners, including ZML REIT IV.
"ZML Funds" means, collectively, the ZML Opportunity Partnerships, together
with their limited and general partners, including the ZML REITs.
"ZML Opportunity Partnership I" means Zell/Merrill Lynch Real Estate
Opportunity Partners Limited Partnership.
"ZML Opportunity Partnership II" means Zell/Merrill Lynch Real Estate
Opportunity Partners Limited Partnership II.
"ZML Opportunity Partnership III" means Zell/Merrill Lynch Real Estate
Opportunity Partners Limited Partnership III.
"ZML Opportunity Partnership IV" means Zell/Merrill Lynch Real Estate
Opportunity Partners Limited Partnership IV.
"ZML Opportunity Partnerships" means, collectively, ZML Opportunity
Partnership I, ZML Opportunity Partnership II, ZML Opportunity Partnership III
and ZML Opportunity Partnership IV, each of which is a limited partnership
organized under the laws of the State of Illinois.
50
<PAGE> 55
------------------------------------------------------
------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING MADE BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE EXCHANGE NOTES IN ANY JURISDICTION WHERE,
OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN
THE FACTS SET FORTH IN THIS PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................. 2
Incorporation of Certain Documents by
Reference............................ 2
Summary................................ 4
Risk Factors........................... 15
The Company............................ 17
No Cash Proceeds to the Company........ 17
Ratios of Earnings to Fixed Charges.... 17
Capitalization......................... 18
Selected Financial Information......... 19
The Exchange Offer..................... 22
Description of the Exchange Notes...... 31
Description of the Exchange Warrants... 42
Certain Federal Income Tax
Consequences......................... 45
Plan of Distribution................... 45
Experts................................ 46
Legal Matters.......................... 46
Glossary............................... 47
</TABLE>
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
EOP OPERATING
LIMITED PARTNERSHIP
OFFER TO EXCHANGE
$250,000,000 6.50% NOTES DUE 2004 FOR ANY
AND ALL OUTSTANDING 6.50% NOTES DUE 2004
$300,000,000 6.763% NOTES DUE 2007 FOR ANY
AND ALL OUTSTANDING 6.763% NOTES DUE 2007
$225,000,000 7.25% NOTES DUE 2028 FOR ANY
AND ALL OUTSTANDING 7.25% NOTES DUE 2028
300,000 DEBT WARRANTS TO PURCHASE
$300,000,000 6.763% NOTES DUE 2008
FOR ANY AND ALL OUTSTANDING DEBT WARRANTS
TO PURCHASE $300,000,000 6.763% DUE 2008
------------------------
PROSPECTUS
------------------------
, 1998
------------------------------------------------------
------------------------------------------------------
<PAGE> 56
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF TRUSTEES AND OFFICERS
Pursuant to its Agreement of Limited Partnership, the Company is obligated
to indemnify, to the fullest extent provided by law, any person or entity made a
party to a proceeding by reason of its status as a general partner, a limited
partner or a trustee, director or officer of the Company or any general partner
and such other persons or entities as the Trust may designate from time to time
in its sole discretion (an "Indemnitee") from and against any and all losses,
claims, damages, liabilities, joint or several, expenses (including without
limitation, attorneys fees and other legal fees and expenses), judgments, fines,
settlements and other amounts arising from or in connection with any and all
claims, demands, actions, suits or proceedings, civil, criminal, administrative
or investigative, incurred by the Indemnitee and relating to the Company or the
general partners or the operation of, or the ownership of property by, any of
them as set forth in the Partnership Agreement in which any such Indemnitee may
be involved, or is threatened to be involved, as a party or otherwise, unless it
is established by a final determination of a court of competent jurisdiction
that: (i) the act or omission of the Indemnitee was material to the matter
giving rise to the proceeding and either was committed in bad faith or was the
result of active and deliberate dishonesty, (ii) the Indemnitee actually
received an improper personal benefit in money, property or services or (iii) in
the case of any criminal proceeding, the Indemnitee had reasonable cause to
believe that the act or omission was unlawful. Any indemnification shall be made
only out of the assets of the Company, and any insurance proceeds from the
liability policy covering the general partners and any Indemnitee, and neither a
general partner nor any limited partner shall have any obligation to contribute
to the capital of the Company or otherwise provide funds to enable the Company
to fund its indemnity obligations. The Company is obligated to advance amounts
to an Indemnitee for expenses upon receipt of (i) a written affirmation of the
Indemnitee that it believes it has met the standard of conduct necessary to
entitle it to indemnification and (ii) a written undertaking of the Indemnitee
that it will repay any such advances if it shall be ultimately determined that
it did not meet such standard of conduct. The foregoing indemnification rights
are in addition to any other rights afforded to an Indemnitee under any other
agreement, by vote of the partners, under applicable law or otherwise, and shall
continue as to an Indemnitee who has ceased to serve in such capacity unless
otherwise provided in a written agreement pursuant to which such Indemnitees are
indemnified. The Company is authorized to purchase and maintain insurance on
behalf of the Indemnitees with respect to the foregoing matters. The Company
shall be deemed to have requested an Indemnitee to serve as fiduciary of an
employee benefit plan whenever the performance by it of its duties to the
Company also imposes duties on, or otherwise involves services by, it to the
plan or participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall constitute fines; and actions taken or omitted by the Indemnitee with
respect to an employee benefit plan in the performance of its duties for a
purpose reasonably believed by it to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Company. An Indemnitee shall not be denied
indemnification in whole or in part because the Indemnitee had an interest in
the transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of the Partnership Agreement.
II-1
<PAGE> 57
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<C> <S> <C>
4.1* -- Indenture, dated as of September 2, 1997, between the
Registrant and State Street Bank and Trust Company, as
supplemented.
4.2* -- First Supplemental Indenture, dated as of February 2, 1998,
between the Company and State Street Bank and Trust Company
4.3 -- Form of 2004 Exchange Note.
4.4 -- Form of 2007 Exchange Note.
4.5 -- Form of 2028 Exchange Note.
4.6 -- Registration Rights Agreement, dated as of June 10, 1998,
among the Company and the Initial Purchasers named therein
relating to the 2004 Notes and the 2028 Notes.
4.7 -- Registration Rights Agreement, dated as of June 10, 1998,
among the Company and the Initial Purchasers named therein
relating to the 2007 Notes and the Private Warrants.
4.8 -- Debt Warrant Agreement, dated as of June 15, 1998, between
the Company and the Warrant Agent.
4.9 -- Form of Global Debt Warrant Certificate representing
Exchange Warrants.
5.1 -- Opinion of Hogan & Hartson L.L.P. regarding the validity of
the securities being registered.
8.1 -- Opinion of Hogan & Hartson L.L.P. regarding certain tax
matters.
10.1* -- Agreement of Limited Partnership of the Registrant.
10.2 -- Contribution Agreement, dated as of April 30, 1997, among
the Company and the persons named therein (incorporated
herein by reference to Exhibit 10.4 to the Trust's Annual
Report on Form 10-K, as amended, for the fiscal year ended
December 31, 1997).
10.3 -- Agreement and Plan of Merger, dated September 15, 1997, as
amended among the Registrant, the Trust, Beacon and Beacon
Partnership (incorporated herein by reference to Exhibit 2.1
to the Trust's Current Report or Form 8-K dated September
15, 1997.)
12.1** -- Statement of Computation of Ratios.
23.1 -- Consent of Hogan & Hartson L.L.P. (included as part of
Exhibit 5.1).
23.2 -- Consent of Hogan & Hartson L.L.P. (included as part of
Exhibit 8.1).
23.3 -- Consent of Ernst & Young LLP.
23.4 -- Consent of PricewaterhouseCoopers LLP
24.1 -- Power of Attorney (included in the Signature Page).
25.1** -- Statement of Eligibility of the Trustee on Form T-1.
99.1 -- Form of Letter of Transmittal.
99.2 -- Form of Notice of Guaranteed Delivery.
</TABLE>
- ---------------
* Incorporated herein by reference to the same-numbered exhibit to the Trust's
Annual Report on Form 10-K, as amended, for the fiscal year ended December 31,
1997.
** Incorporated herein by reference to the same-numbered exhibit to the
Company's Registration Statement on Form S-4, File No. 333-47347.
II-2
<PAGE> 58
ITEM 22. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, such
changes in volume and price represent no more than a 20% change in the
maximum aggregated offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(5) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this
form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
(6) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it became effective.
(7) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
II-3
<PAGE> 59
(8) That every prospectus: (i) that is filed pursuant to paragraph (1)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to the initial bona fide offering thereof.
II-4
<PAGE> 60
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Chicago, Illinois, on this 14th day
of August, 1998.
EOP Operating Limited Partnership
By: Equity Office Properties Trust
By: /s/ TIMOTHY H. CALLAHAN
------------------------------------
Timothy H. Callahan
President and Chief Executive
Officer
We, the undersigned trustees and officers of Equity Office Properties
Trust, the managing general partner of EOP Operating Limited Partnership, do
hereby constitute and appoint Samuel Zell and Timothy H. Callahan and each and
either of them, our true and lawful attorneys-in-fact and agents, to do any and
all acts and things in our names and on our behalf in our capacities as trustees
and officers and to execute any and all instruments for us and in our names in
the capacities indicated below, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said Trust to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission, in
connection with this registration statement, or any registration statement for
this offering that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act, including specifically, but without limitation, any and all
amendments (including post-effective amendments) hereto; and we hereby ratify
and confirm all that said attorneys and agents, or either of them, shall do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 14th day of August, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ TIMOTHY H. CALLAHAN President, Chief Executive Officer and
- -------------------------------------------------------- Trustee (principal executive officer)
Timothy H. Callahan
/s/ RICHARD D. KINCAID Chief Financial Officer (principal
- -------------------------------------------------------- financial officer and principal
Richard D. Kincaid accounting officer)
/s/ SAMUEL ZELL Chairman of the Board of Trustees
- --------------------------------------------------------
Samuel Zell
/s/ SHELI Z. ROSENBERG Trustee
- --------------------------------------------------------
Sheli Z. Rosenberg
/s/ THOMAS E. DOBROWSKI Trustee
- --------------------------------------------------------
Thomas E. Dobrowski
Trustee
- --------------------------------------------------------
James D. Harper, Jr.
Trustee
- --------------------------------------------------------
Jerry M. Reinsdorf
</TABLE>
II-5
<PAGE> 61
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
Trustee
- --------------------------------------------------------
William M. Goodyear
Trustee
- --------------------------------------------------------
David K. McKown
Trustee
- --------------------------------------------------------
H. Jon Runstad
/s/ EDWIN N. SIDMAN Trustee
- --------------------------------------------------------
Edwin N. Sidman
/s/ D. J. A. DE BOCK Trustee
- --------------------------------------------------------
D. J. A. de Bock
</TABLE>
II-6
<PAGE> 62
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. DESCRIPTION OF EXHIBIT NO.
- ------- ---------------------- ----
<C> <C> <S> <C>
4.1* -- Indenture, dated as of September 2, 1997, between the
Registrant and State Street Bank and Trust Company.
4.2* -- First Supplemental Indenture, dated as of February 2, 1998,
between the Company and State Street Bank and Trust Company
4.3 -- Form of 2004 Exchange Note.
4.4 -- Form of 2007 Exchange Note.
4.5 -- Form of 2028 Exchange Note.
4.6 -- Registration Rights Agreement, dated as of June 10, 1998,
among the Company and the Initial Purchasers named therein
relating to the 2004 Notes and the 2028 Notes.
4.7 -- Registration Rights Agreement, dated as of June 10, 1998,
among the Company and the Initial Purchasers named therein
relating to the 2007 Notes and the Private Warrants.
4.8 -- Debt Warrant Agreement, dated as of June 15, 1998, between
the Company and the Warrant Agent.
4.9 -- Form of Global Debt Warrant Certificate representing
Exchange Warrants.
5.1 -- Opinion of Hogan & Hartson L.L.P. regarding the validity of
the securities being registered.
8.1 -- Opinion of Hogan & Hartson L.L.P. regarding certain tax
matters.
10.1* -- Agreement of Limited Partnership of the Registrant.
10.2 -- Contribution Agreement, dated as of April 30, 1997, among
the Company and the persons named therein (incorporated
herein by reference to Exhibit 10.4 to the Trust's Annual
Report on Form 10-K, as amended, for the fiscal year ended
December 31, 1997).
10.3 -- Agreement and Plan of Merger, dated September 15, 1997, as
amended, among the Registrant, the Trust, Beacon and Beacon
Partnership (incorporated herein by reference to Exhibit 2.1
to the Trust's Current Report on Form 8-K dated September
15, 1997).
12.1** -- Statement of Computation of Ratios.
23.1 -- Consent of Hogan & Hartson L.L.P. (included as part of
Exhibit 5.1).
23.2 -- Consent of Hogan & Hartson L.L.P. (included as part of
Exhibit 8.1)
23.3 -- Consent of Ernst & Young L.L.P.
23.4 -- Consent of PricewaterhouseCoopers LLP
24.1 -- Power of Attorney (included in the Signature Page).
25.1** -- Statement of Eligibility of the Trustee on Form T-1.
99.1 -- Form of Letter of Transmittal.
99.2 -- Form of Notice of Guaranteed Delivery.
</TABLE>
- ---------------
* Incorporated herein by reference to the same-numbered exhibit to the Trust's
Annual Report on Form 10-K, as amended, for the fiscal year ended December 31,
1997.
** Incorporated herein by reference to the same-numbered exhibit to the
Company's Registration Statement on Form S-4, File No. 333-47347.
II-7
<PAGE> 1
EXHIBIT 4.3
[FACE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
6.50% NOTES DUE 2004
NO. 001 PRINCIPAL AMOUNT
CUSIP NO.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY
DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN INTEGRAL
MULTIPLES OF $1,000.
<PAGE> 2
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of Dollars on June
15, 2004 (the "Stated Maturity Date"), (or any Redemption Date (as defined on
the reverse hereof)) or any earlier date of acceleration of maturity, (each
such date being referred to as the "Maturity Date" with respect to the
principal repayable on such date and to pay interest thereon from June 15, 1998
(or from the most recent Interest Payment Date (as defined below) to which
interest has been paid or duly provided for), semiannually in arrears on June
15 and December 15 of each year, commencing on December 15, 1998 (each, an
"Interest Payment Date"), and on the Maturity Date, at a rate of 6.50% per
annum, until payment of said principal sum has been made or duly provided for.
Interest on this Note will be computed on the basis of a 360-day year of twelve
30-day months.
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date will, subject to certain exceptions described below, be
paid to the Holder in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the "Regular Record Date" for such
payment, which will be the date 15 calendar days (regardless of whether such day
is a Business Day (as defined below)) next preceding such Interest Payment Date.
Any interest not so punctually paid or duly provided for on an Interest Payment
Date ("Defaulted Interest") shall forthwith cease to be payable to the Holder on
such Regular Record Date, and shall be paid to the Holder in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on a special record date (the "Special Record Date") for the payment of such
Defaulted Interest to be fixed by the Trustee hereinafter referred to, notice
whereof shall be given to the Holder of this Note by the Trustee not less
2
<PAGE> 3
than 10 calendar days prior to such Special Record Date or may be paid at any
time in any other lawful manner, all as more fully provided for in the
Indenture.
The principal of and Make-Whole Amount, if any, with respect to this Note
payable on the Maturity Date will be paid against presentation and surrender of
this Note at the office or agency of the Issuer maintained for that purpose in
Boston, Massachusetts with a drop facility maintained in New York, New York. The
Issuer hereby initially designates the Corporate Trust Office of the Trustee in
Boston, Massachusetts as the office to be maintained by it where Notes may be
presented for payment, registration of transfer, or exchange and where notices
or demands to or upon the Issuer in respect of the Notes or the Indenture may be
served.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued during
the applicable Interest Period (as defined below).
An "Interest Period" is each period from and including the immediately
preceding Interest Payment Date (or from and including June 15, 1998, in the
case of the initial Interest Period) to but excluding the applicable Interest
Payment Date or the Maturity Date, as the case may be. If any Interest Payment
Date or Maturity Date falls on a day that is not a Business Day, principal,
Make-Whole Amount, if any, and interest payable on such date will be paid on the
succeeding Business Day with the same force and effect as if it were paid on the
date such payment was due, and no interest will accrue on the amount so payable
for the period from and after such date to such succeeding Business Day.
"Business Day" means any day, other than a Saturday or a Sunday, on which
banking institutions in New York, New York and Boston, Massachusetts are not
required or authorized by law or executive order to close.
Payments of principal, Make-Whole Amount, if any, and interest in respect
of this Note will be made by U.S. dollar check or by wire transfer (such a wire
transfer to be made only to a Holder of an aggregate principal amount of Notes
in excess of $10,000,000, and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date and acknowledged that a wire transfer fee shall be
payable) of immediately available funds in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place. Capitalized terms used herein,
including on the reverse hereof, and not defined herein or on the reverse hereof
shall have the respective meanings given to such terms in the Indenture.
This Note shall not be entitled to the benefits of the Indenture or be
valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee.
3
<PAGE> 4
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually
or by facsimile by duly authorized officers of the General Partner.
Dated: June 15, 1998 EOP OPERATING LIMITED PARTNERSHIP,
as Issuer
By: EQUITY OFFICE PROPERTIES TRUST, not
individually but as Managing General Partner
By: ____________________________________________
Michael A. Steele
Its: Executive Vice President and
Vice President - Real Estate Operations
and By: ____________________________________________
Richard D. Kincaid
Its: Executive Vice President and
Chief Financial Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in the
within-mentioned Indenture.
Dated: June 15, 1998 STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: __________________________________________
Authorized Officer
4
<PAGE> 5
[REVERSE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
6.50% NOTES DUE 2004
This Note is one of a duly authorized issue of Notes of the Issuer
(hereinafter called the "Notes") of the series hereinafter specified, all issued
or to be issued under and pursuant to an Indenture dated as of September 2, 1997
(as amended, the "Indenture"), duly executed and delivered by the Issuer to
State Street Bank and Trust Company, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Notes of which this Note is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties, and immunities
thereunder of the Trustee, the Issuer, and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered. The
Notes may be issued in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), and may otherwise vary as provided in the Indenture. This
Note is one of a series designated as the 6.50% Notes due 2004 of the Issuer
(the "Notes"), limited in aggregate principal amount to $250,000,000, subject to
the provisions in the Indenture.
In case an Event of Default with respect to the Notes shall have occurred
and be continuing, the principal hereof and Make-Whole Amount (if any) may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Issuer may redeem this Note, at any time in whole or from time to time
in part, at the election of the Issuer, at a redemption price equal to the sum
of (i) the principal amount being redeemed plus accrued interest thereon to the
date fixed for redemption (the "Redemption Date") and (ii) the Make-Whole
Amount with respect hereto (the "Redemption Price"); provided, however, that
interest installments due on an Interest Payment Date which is on or prior to
the Redemption Date will be payable to the Holder hereof (or one or more
predecessor Notes) as of the close of business on the Record Date preceding
such Interest Payment Date. If notice has been given as provided in the
Indenture and funds for the redemption of this Note or any part thereof called
for redemption shall have been made available on the Redemption Date, this Note
or such part thereof will cease to bear interest on the Redemption Date
referred to in such notice and the only right of the Holder will be to receive
payment of the Redemption Price. Notice of any optional redemption of any Notes
will be given to the Holder hereof (in accordance with the provisions of the
Indenture), not more than 60 nor less than 30 days prior to the Redemption
Date. In the event of redemption of this Note in part only, a new Note of like
tenor for the unredeemed portion hereof and otherwise having the same terms and
provisions as this Note shall be issued by the Issuer in the name of the Holder
hereof upon the presentation and surrender hereof.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
5
<PAGE> 6
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority of the aggregate
principal amount of the Notes at the time Outstanding of all series to be
affected (voting as one class), evidenced as provided in the Indenture, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Notes of each series; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Note at the time Outstanding so
affected, (i) change the final maturity of any Note, or reduce the principal
amount thereof or any premium or Make-Whole Amount thereon, if any, or reduce
the rate or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment on any Note,
or (ii) reduce the percentage in principal amount of Outstanding Notes, the
Holders of which are required to consent to any such supplemental indenture, or
(iii) reduce the percentage in principal amount of Outstanding Notes, the
Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults
thereunder. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Notes of any series, the Holders of
a majority in aggregate principal amount Outstanding of the Notes of such series
(or, in the case of certain defaults or Events of Default, all series of Notes)
may on behalf of the Holders of all the Notes of such series (or all of the
Notes, as the case may be) waive any such past default or Event of Default and
its consequences, prior to any declaration accelerating the maturity of such
Notes, or, subject to certain conditions, may rescind a declaration of
acceleration and its consequences with respect to such Notes. The preceding
sentence shall not, however, apply to a default in or Event of Default relating
to, the payment of the principal of or premium or Make-Whole Amount, if any, or
interest on any of the Notes or in respect of a covenant or provision contained
in the Indenture that cannot be modified or amended without the consent of the
Holders of each Note at the time Outstanding affected thereby. Any such consent
or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes that may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any Make-Whole Amount
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
6
<PAGE> 7
This Note is issuable only in registered form without coupons in integral
multiples U.S. of $1,000. Notes may be exchanged for a like aggregate principal
amount of Notes of this series of other authorized denominations at the office
or agency of the Issuer in Boston, Massachusetts, in the manner and subject to
the limitations provided herein and in the Indenture, but without the payment
of any service charge except for any tax or other governmental charge imposed
in connection therewith.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in Boston, Massachusetts, one or more new Notes
of authorized denominations in an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, but without the payment of any service charge except
for any tax or other governmental charge imposed in connection therewith.
This Note is not subject to a sinking fund requirement.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture, or any Note, or because of any indebtedness evidenced hereby
or thereby (including, without limitation, any obligation or indebtedness
relating to the principal of, or premium or Make-Whole Amount, if any, interest
or any other amounts due, or claimed to be due, on this Note), or for any claim
based thereon or otherwise in respect thereof, shall be had (i) against the
General Partner or any other partner, or any Person which owns an interest,
directly or indirectly, in any partner, in the Issuer, or (ii) against any
promoter, as such, or against any past, present or future shareholder, officer,
trustee or partner, as such, of the Issuer or the General Partner or of any
successor, either directly or through the Issuer or the General Partner or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance hereof and as part of the consideration for the issue hereof.
Prior to due presentation of this Note for registration of transfer, the
Issuer, the Trustee, and any authorized agent of the Issuer or the Trustee may
deem and treat the Person in whose name this Note is registered as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
Make-Whole Amount, if any, and subject to the provisions herein and on the face
hereof, interest hereon, and for all other purposes, and neither the Issuer nor
the Trustee nor any authorized agent of the Issuer or the Trustee shall be
affected by any notice to the contrary, except as required by law.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
7
<PAGE> 8
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Note fill in the form below:
(I) or (we) assign and transfer this Note to
_______________________________________________________________________________
(Insert assignee's social security or tax identification number, if any)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your signature: __________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Date: ________________________________________
Signature Guarantee:* ________________________________________
In connection with any transfer of any of the Notes evidenced by this Note
Certificate occurring prior to the date that is two years (or such shorter
period as may then be applicable under Rule 144(k) of the United States
Securities Act of 1933, as amended (the "Securities Act") (or any successor
provision)) after the later of the date of original issuance of such Notes and
the last date, if any, on which such Notes were owned by the Issuer or any
affiliate of the Issuer, the undersigned confirms that this Note Certificate is
being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer or a Subsidiary thereof; or
(2) [ ] to a "qualified institutional buyer" pursuant to and in
compliance with Rule 144A under the Securities Act; or
(3) [ ] to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3), or (7) of Rule 501 under the
Securities Act; or
(4) [ ] pursuant to an effective registration statement under the
Securities Act; or
(5) [ ] pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
this Note Certificate in the name of any person other than the Holder hereof;
provided, however, that if box (5) is checked, the Trustee (as instructed by the
Issuer) and the Issuer may require, prior to registering any transfer of this
Note Certificate, such certifications, legal opinions and/or other information
as the Issuer has reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
_______________________________
*Signature must be guaranteed by a commercial bank, trust company or
member firm or a major stock exchange
<PAGE> 1
EXHIBIT 4.4
[FACE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
6.763% NOTES DUE 2007
NO. 001 PRINCIPAL AMOUNT
CUSIP NO.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY
DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN INTEGRAL MULTIPLES
OF $1,000.
<PAGE> 2
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
ed assigns, the principal sum of Dollars on June 15, 2007
(the "Stated Maturity Date"), (or any Redemption Date (as defined on the
reverse hereof)) or any earlier date of acceleration of maturity, (each such
date being referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon from June 15, 1998 (or from
the most recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for), semiannually in arrears on June 15 and
December 15 of each year, commencing on December 15, 1998 (each, an "Interest
Payment Date"), and on the Maturity Date, at a rate of 6.763% per annum, until
payment of said principal sum has been made or duly provided for. Interest on
this Note will be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date will, subject to certain exceptions described below, be
paid to the Holder in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the "Regular Record Date" for such
payment, which will be the date 15 calendar days (regardless of whether such day
is a Business Day (as defined below)) next preceding such Interest Payment Date.
Any interest not so punctually paid or duly provided for on an Interest Payment
Date ("Defaulted Interest") shall forthwith cease to be
2
<PAGE> 3
payable to the Holder on such Regular Record Date, and shall be paid to the
Holder in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on a special record date (the "Special Record Date")
for the payment of such Defaulted Interest to be fixed by the Trustee
hereinafter referred to, notice whereof shall be given to the Holder of this
Note by the Trustee not less than 10 calendar days prior to such Special Record
Date or may be paid at any time in any other lawful manner, all as more fully
provided for in the Indenture.
The principal of and Make-Whole Amount, if any, with respect to this Note
payable on the Maturity Date will be paid against presentation and surrender of
this Note at the office or agency of the Issuer maintained for that purpose in
Boston, Massachusetts with a drop facility maintained in New York, New York. The
Issuer hereby initially designates the Corporate Trust Office of the Trustee in
Boston, Massachusetts as the office to be maintained by it where Notes may be
presented for payment, registration of transfer, or exchange and where notices
or demands to or upon the Issuer in respect of the Notes or the Indenture may be
served.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued during
the applicable Interest Period (as defined below).
An "Interest Period" is each period from and including the immediately
preceding Interest Payment Date (or from and including June 15, 1998, in the
case of the initial Interest Period) to but excluding the applicable Interest
Payment Date or the Maturity Date, as the case may be. If any Interest Payment
Date or Maturity Date falls on a day that is not a Business Day, principal,
Make-Whole Amount, if any, and interest payable on such date will be paid on the
succeeding Business Day with the same force and effect as if it were paid on the
date such payment was due, and no interest will accrue on the amount so payable
for the period from and after such date to such succeeding Business Day.
"Business Day" means any day, other than a Saturday or a Sunday, on which
banking institutions in New York, New York and Boston, Massachusetts are not
required or authorized by law or executive order to close.
Payments of principal, Make-Whole Amount, if any, and interest in respect
of this Note will be made by U.S. dollar check or by wire transfer (such a wire
transfer to be made only to a Holder of an aggregate principal amount of Notes
in excess of $10,000,000, and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date and acknowledged that a wire transfer fee shall be
payable) of immediately available funds in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place. Capitalized terms used herein,
including on the reverse hereof, and not defined herein or on the reverse hereof
shall have the respective meanings given to such terms in the Indenture.
3
<PAGE> 4
This Note shall not be entitled to the benefits of the Indenture or be
valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually
or by facsimile by duly authorized officers of the General Partner.
Dated: June 15, 1998 EOP OPERATING LIMITED PARTNERSHIP,
as Issuer
By: EQUITY OFFICE PROPERTIES TRUST, not
individually but as Managing General Partner
By: ___________________________________________
Michael A. Steele
Its: Chief Operating Officer and Executive
Vice President - Real Estate Operations
and By: ____________________________________________
Richard D. Kincaid
Its: Executive Vice President and
Chief Financial Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in the
within-mentioned Indenture.
Dated: June 15, 1998 STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: ______________________________________
Authorized Officer
4
<PAGE> 5
[REVERSE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
6.763% NOTES DUE 2007
This Note is one of a duly authorized issue of Notes of the Issuer
(hereinafter called the "Notes") of the series hereinafter specified, all issued
or to be issued under and pursuant to an Indenture dated as of September 2, 1997
(as amended, the "Indenture"), duly executed and delivered by the Issuer to
State Street Bank and Trust Company, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Notes of which this Note is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties, and immunities
thereunder of the Trustee, the Issuer, and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered. The
Notes may be issued in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), and may otherwise vary as provided in the Indenture. This
Note is one of a series designated as the 6.763% Notes due 2007 of the Issuer
(the "Notes"), limited in aggregate principal amount to $300,000,000, subject to
the provisions in the Indenture.
In case an Event of Default with respect to the Notes shall have occurred
and be continuing, the principal hereof and Make-Whole Amount (if any) may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Issuer may redeem this Note, at any time in whole or from time to time
in part, at the election of the Issuer, at a redemption price equal to the sum
of (i) the principal amount being redeemed plus accrued interest thereon
to the date fixed for redemption (the "Redemption Date") and (ii) the
Make-Whole Amount with respect hereto (the "Redemption Price"); provided,
however, that interest installments due on an Interest Payment Date which is on
or prior to the Redemption Date will be payable to the Holder hereof (or one or
more predecessor Notes) as of the close of business on the Record Date
preceding such Interest Payment Date. If notice has been given as provided in
the Indenture and funds for the redemption of this Note or any part thereof
called for redemption shall have been made available on the Redemption Date,
this Note or such part thereof will cease to bear interest on the Redemption
Date referred to in such notice and the only right of the Holder will be to
receive payment of the Redemption Price. Notice of any optional redemption of
any Notes will be given to the Holder hereof (in accordance with the provisions
of the Indenture), not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note of like tenor for the unredeemed portion hereof and otherwise having the
same terms and provisions as this Note shall be issued by the Issuer in the
name of the Holder hereof upon the presentation and surrender hereof.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
5
<PAGE> 6
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority of the aggregate
principal amount of the Notes at the time Outstanding of all series to be
affected (voting as one class), evidenced as provided in the Indenture, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Notes of each series; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Note at the time Outstanding so
affected, (i) change the final maturity of any Note, or reduce the principal
amount thereof or any premium or Make-Whole Amount thereon, if any, or reduce
the rate or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment on any Note,
or (ii) reduce the percentage in principal amount of Outstanding Notes, the
Holders of which are required to consent to any such supplemental indenture, or
(iii) reduce the percentage in principal amount of Outstanding Notes, the
Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults
thereunder. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Notes of any series, the Holders of
a majority in aggregate principal amount Outstanding of the Notes of such series
(or, in the case of certain defaults or Events of Default, all series of Notes)
may on behalf of the Holders of all the Notes of such series (or all of the
Notes, as the case may be) waive any such past default or Event of Default and
its consequences, prior to any declaration accelerating the maturity of such
Notes, or, subject to certain conditions, may rescind a declaration of
acceleration and its consequences with respect to such Notes. The preceding
sentence shall not, however, apply to a default in or Event of Default relating
to, the payment of the principal of or premium or Make-Whole Amount, if any, or
interest on any of the Notes or in respect of a covenant or provision contained
in the Indenture that cannot be modified or amended without the consent of the
Holders of each Note at the time Outstanding affected thereby. Any such consent
or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes that may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any Make-Whole Amount
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
6
<PAGE> 7
This Note is issuable only in registered form without coupons in integral
multiples of U.S. $1,000. Notes may be exchanged for a like aggregate
principal amount of Notes of this series of other authorized denominations
at the office or agency of the Issuer in Boston, Massachusetts, in the manner
and subject to the limitations provided herein and in the Indenture, but
without the payment of any service charge except for any tax or other
governmental charge imposed in connection therewith.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in Boston, Massachusetts, one or more new Notes
of authorized denominations in an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, but without the payment of any service charge except
for any tax or other governmental charge imposed in connection therewith.
This Note is not subject to a sinking fund requirement.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture, or any Note, or because of any indebtedness evidenced hereby
or thereby (including, without limitation, any obligation or indebtedness
relating to the principal of, or premium or Make-Whole Amount, if any,
interest or any other amounts due, or claimed to be due, on this Note), or for
any claim based thereon or otherwise in respect thereof, shall be had (i)
against the General Partner or any other partner, or any Person which owns an
interest, directly or indirectly, in any partner, in the Issuer, or (ii)
against any promoter, as such, or against any past, present or future
shareholder, officer, trustee or partner, as such, of the Issuer or the General
Partner or of any successor, either directly or through the Issuer or the
General Partner or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance hereof and as part of the consideration
for the issue hereof.
Prior to due presentation of this Note for registration of transfer, the
Issuer, the Trustee, and any authorized agent of the Issuer or the Trustee may
deem and treat the Person in whose name this Note is registered as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
Make-Whole Amount, if any, and subject to the provisions herein and on the face
hereof, interest hereon, and for all other purposes, and neither the Issuer nor
the Trustee nor any authorized agent of the Issuer or the Trustee shall be
affected by any notice to the contrary, except as required by law.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
7
<PAGE> 8
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Note fill in the form below:
(I) or (we) assign and transfer this Note to
____________________________________________________________________________
(Insert assignee's social security or tax identification number, if any)
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your signature: _______________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Date: ________________________________________
Signature Guarantee:* ___________________________________________
In connection with any transfer of any of the Notes evidenced by this Note
Certificate occurring prior to the date that is two years (or such shorter
period as may then be applicable under Rule 144(k) of the United States
Securities Act of 1933, as amended (the "Securities Act") (or any successor
provision)) after the later of the date of original issuance of such Notes and
the last date, if any, on which such Notes were owned by the Issuer or any
affiliate of the Issuer, the undersigned confirms that this Note Certificate is
being transferred:
CHECK ONE BOX BELOW
(1) to the Issuer or a Subsidiary thereof; or
(2) to a "qualified institutional buyer" pursuant to and in compliance
with Rule 144A under the Securities Act; or
(3) to a institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act; or
(4) pursuant to an effective registration statement under the Securities
Act; or
(5) pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
this Note in the name of any person other than the Holder hereof; provided,
however, that if box (5) is checked, the Issuer may require, prior to
registering any transfer of this Note Certificate, such certifications, legal
opinions and/or other information as the Issuer has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
______________________________
*Signature must be guaranteed by a commercial bank, trust company or
member firm or a major stock exchange
<PAGE> 1
EXHIBIT 4.5
[FACE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
7.25% NOTES DUE 2028
NO. 001 PRINCIPAL AMOUNT
CUSIP NO.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY
DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN INTEGRAL MULTIPLES
OF $1,000.
<PAGE> 2
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of Dollars on June
15, 2028 (the "Stated Maturity Date"), (or any Redemption Date (as defined on
the reverse hereof) or any earlier date of acceleration of maturity, (each such
date being referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon from June 15, 1998 (or from
the most recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for), semiannually in arrears on June 15 and December
15 of each year, commencing on December 15, 1998 (each, an "Interest Payment
Date"), and on the Maturity Date, at a rate of 7.25% per annum, until payment
of said principal sum has been made or duly provided for. Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date will, subject to certain exceptions described below, be
paid to the Holder in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the "Regular Record Date" for such
payment, which will be the date 15 calendar days (regardless of whether such day
is a Business Day (as defined below)) next preceding such Interest Payment Date.
Any interest not so punctually paid or duly provided for on an Interest Payment
Date ("Defaulted Interest") shall forthwith cease to be payable to the Holder on
such Regular Record Date, and shall be paid to the Holder in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on a special record date (the "Special Record Date") for the payment of such
Defaulted Interest to be fixed by the Trustee hereinafter referred to, notice
whereof shall be given to the Holder of this Note by the Trustee not less
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<PAGE> 3
than 10 calendar days prior to such Special Record Date or may be paid at any
time in any other lawful manner, all as more fully provided for in the
Indenture.
The principal of and Make-Whole Amount, if any, with respect to this Note
payable on the Maturity Date will be paid against presentation and surrender of
this Note at the office or agency of the Issuer maintained for that purpose in
Boston, Massachusetts with a drop facility maintained in New York, New York. The
Issuer hereby initially designates the Corporate Trust Office of the Trustee in
Boston, Massachusetts as the office to be maintained by it where Notes may be
presented for payment, registration of transfer, or exchange and where notices
or demands to or upon the Issuer in respect of the Notes or the Indenture may be
served.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued during
the applicable Interest Period (as defined below).
An "Interest Period" is each period from and including the immediately
preceding Interest Payment Date (or from and including June 15, 1998, in the
case of the initial Interest Period) to but excluding the applicable Interest
Payment Date or the Maturity Date, as the case may be. If any Interest Payment
Date or Maturity Date falls on a day that is not a Business Day, principal,
Make-Whole Amount, if any, and interest payable on such date will be paid on the
succeeding Business Day with the same force and effect as if it were paid on the
date such payment was due, and no interest will accrue on the amount so payable
for the period from and after such date to such succeeding Business Day.
"Business Day" means any day, other than a Saturday or a Sunday, on which
banking institutions in New York, New York and Boston, Massachusetts are not
required or authorized by law or executive order to close.
Payments of principal, Make-Whole Amount, if any, and interest in respect
of this Note will be made by U.S. dollar check or by wire transfer (such a wire
transfer to be made only to a Holder of an aggregate principal amount of Notes
in excess of $10,000,000, and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date and acknowledged that a wire transfer fee shall be
payable) of immediately available funds in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place. Capitalized terms used herein,
including on the reverse hereof, and not defined herein or on the reverse hereof
shall have the respective meanings given to such terms in the Indenture.
This Note shall not be entitled to the benefits of the Indenture or be
valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee.
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<PAGE> 4
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually
or by facsimile by duly authorized officers of the General Partner.
Dated: June 15, 1998 EOP OPERATING LIMITED PARTNERSHIP,
as Issuer
By: EQUITY OFFICE PROPERTIES TRUST, not
individually but as Managing General Partner
By: __________________________________________
Michael A. Steele
Its: Chief Operating Officer and Executive
Vice President - Real Estate Operations
and By: ___________________________________________
Richard D. Kincaid
Its: Executive Vice President and
Chief Financial Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in the
within-mentioned Indenture.
Dated: June 15, 1998 STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: __________________________________________
Authorized Officer
4
<PAGE> 5
[REVERSE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
7.25% NOTES DUE 2028
This Note is one of a duly authorized issue of Notes of the Issuer
(hereinafter called the "Notes") of the series hereinafter specified, all issued
or to be issued under and pursuant to an Indenture dated as of September 2, 1997
(as amended, the "Indenture"), duly executed and delivered by the Issuer to
State Street Bank and Trust Company, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the series of Notes of which this Note is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties, and immunities
thereunder of the Trustee, the Issuer, and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered. The
Notes may be issued in one or more series, which different series may be issued
in various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), and may otherwise vary as provided in the Indenture. This
Note is one of a series designated as the 7.25% Notes due 2028 of the Issuer
(the "Notes"), limited in aggregate principal amount to $225,000,000, subject to
the provisions in the Indenture.
In case an Event of Default with respect to the Notes shall have occurred
and be continuing, the principal hereof and Make-Whole Amount (if any) may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Issuer may redeem this Note, at any time in whole or from time to time
in part, at the election of the Issuer, at a redemption price equal to the sum
of (i) the principal amount being redeemed plus accrued interest thereon to the
date fixed for redemption (the "Redemption Date") and (ii) the Make-Whole
Amount with respect hereto (the "Redemption Price"); provided, however, that
interest installments due on an Interest Payment Date which is on or prior to
the Redemption Date will be payable to the Holder hereof (or one or more
predecessor Notes) as of the close of business on the Record Date preceding
such Interest Payment Date. If notice has been given as provided in the
Indenture and funds for the redemption of this Note or any part thereof called
for redemption shall have been made available on the Redemption Date, this Note
or such part thereof will cease to bear interest on the Redemption Date
referred to in such notice and the only right of the Holder will be to receive
payment of the Redemption Price. Notice of any optional redemption of any Notes
will be given to the Holder hereof (in accordance with the provisions of the
Indenture), not more than 60 nor less than 30 days prior to the Redemption
Date. In the event of redemption of this Note in part only, a new Note of like
tenor for the unredeemed portion hereof and otherwise having the same terms and
provisions as this Note shall be issued by the Issuer in the name of the Holder
hereof upon the presentation and surrender hereof.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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<PAGE> 6
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority of the aggregate
principal amount of the Notes at the time Outstanding of all series to be
affected (voting as one class), evidenced as provided in the Indenture, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Notes of each series; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Note at the time Outstanding so
affected, (i) change the final maturity of any Note, or reduce the principal
amount thereof or any premium or Make-Whole Amount thereon, if any, or reduce
the rate or extend the time of payment of any interest thereon, or impair or
affect the rights of any Holder to institute suit for the payment on any Note,
or (ii) reduce the percentage in principal amount of Outstanding Notes, the
Holders of which are required to consent to any such supplemental indenture, or
(iii) reduce the percentage in principal amount of Outstanding Notes, the
Holders of which are required to consent to any waiver of compliance with
certain provisions of the Indenture or any waiver of certain defaults
thereunder. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Notes of any series, the Holders of
a majority in aggregate principal amount Outstanding of the Notes of such series
(or, in the case of certain defaults or Events of Default, all series of Notes)
may on behalf of the Holders of all the Notes of such series (or all of the
Notes, as the case may be) waive any such past default or Event of Default and
its consequences, prior to any declaration accelerating the maturity of such
Notes, or, subject to certain conditions, may rescind a declaration of
acceleration and its consequences with respect to such Notes. The preceding
sentence shall not, however, apply to a default in or Event of Default relating
to, the payment of the principal of or premium or Make-Whole Amount, if any, or
interest on any of the Notes or in respect of a covenant or provision contained
in the Indenture that cannot be modified or amended without the consent of the
Holders of each Note at the time Outstanding affected thereby. Any such consent
or waiver by the Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes that may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any Make-Whole Amount
and interest on this Note in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
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<PAGE> 7
This Note is issuable only in registered form without coupons in integral
multiples of U.S. $1,000. Notes may be exchanged for a like aggregate
principal amount of Notes of this series of other authorized denominations at
the office or agency of the Issuer in Boston, Massachusetts, in the manner and
subject to the limitations provided herein and in the Indenture, but without
the payment of any service charge except for any tax or other governmental
charge imposed in connection therewith.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in Boston, Massachusetts, one or more new Notes
of authorized denominations in an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, but without the payment of any service charge except
for any tax or other governmental charge imposed in connection therewith.
This Note is not subject to a sinking fund requirement.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture, or any Note, or because of any indebtedness evidenced hereby
or thereby (including, without limitation, any obligation or indebtedness
relating to the principal of, or premium or Make-Whole Amount, if any, interest
or any other amounts due, or claimed to be due, on this Note), or for any claim
based thereon or otherwise in respect thereof, shall be had (i) against the
General Partner or any other partner, or any Person which owns an interest,
directly or indirectly, in any partner, in the Issuer, or (ii) against any
promoter, as such, or against any past, present or future shareholder, officer,
trustee or partner, as such, of the Issuer or the General Partner or of any
successor, either directly or through the Issuer or the General Partner or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance hereof and as part of the consideration for the issue hereof.
Prior to due presentation of this Note for registration of transfer, the
Issuer, the Trustee, and any authorized agent of the Issuer or the Trustee may
deem and treat the Person in whose name this Note is registered as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
Make-Whole Amount, if any, and subject to the provisions herein and on the face
hereof, interest hereon, and for all other purposes, and neither the Issuer nor
the Trustee nor any authorized agent of the Issuer or the Trustee shall be
affected by any notice to the contrary, except as required by law.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
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<PAGE> 8
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Note fill in the form below:
(I) or (we) assign and transfer this Note to
______________________________________________________________________________
(Insert assignee's social security or tax identification number, if any)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your signature: _________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Date: ________________________________________
Signature Guarantee:* __________________________________________
In connection with any transfer of any of the Notes evidenced by this Note
Certificate occurring prior to the date that is two years (or such shorter
period as may then be applicable under Rule 144(k) of the United States
Securities Act of 1933, as amended (the "Securities Act") (or any successor
provision)) after the later of the date of original issuance of such Notes and
the last date, if any, on which such Notes were owned by the Issuer or any
affiliate of the Issuer, the undersigned confirms that this Note Certificate is
being transferred:
CHECK ONE BOX BELOW
(1) to the Issuer or a Subsidiary thereof; or
(2) to a "qualified institutional buyer" pursuant to and in compliance
with Rule 144A under the Securities Act; or
(3) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act; or
(4) pursuant to an effective registration statement under the Securities
Act; or
(5) pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
this Note Certificate in the name of any person other than the Holder hereof;
provided, however, that if box (5) is checked, the Trustee (as instructed by the
Issuer) and the Issuer may require, prior to registering any transfer of this
Note Certificate, such certifications, legal opinions and/or other information
as the Issuer has reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
________________________________
*Signature must be guaranteed by a commercial bank, trust company
or member firm or a major stock exchange
<PAGE> 1
EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of June 10, 1998 between EOP OPERATING LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Company"), and the Initial Purchasers (as
hereinafter defined).
This Agreement is made pursuant to the Purchase Agreement dated June
10, 1998 (the "Purchase Agreement"), between the Company, as issuer of the 6.50%
Notes due 2004 (the "2004 Notes") and the 7.25% Notes due 2028 (the "2028
Notes", and together with the 2004 Notes, the "Notes"), and the Initial
Purchasers, which provides for, among other things, the sale by the Company to
the Initial Purchasers of the aggregate principal amount of Notes specified
therein. In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchasers and their
direct and indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section 3
hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u) hereof.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions in New York, New York or Boston, Massachusetts are
authorized or required by law or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this Agreement
and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
<PAGE> 2
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes for a like amount of Exchange Notes of the
same series pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the Securities
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Exchange Notes" shall mean the 6.50% Notes due 2004 and the 7.25% Notes due
2028 containing terms identical to the Notes (except that they will not contain
terms with respect to the transfer restrictions under the Securities Act and
will not provide for any Liquidated Damages thereon).
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its respective successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes under the
Indenture.
"Indenture" shall mean the Indenture, dated as of September 2, 1997, as
amended or supplemented to the date hereof, between the Company, as issuer, and
State Street Bank and Trust Company, as trustee, as the same may be further
amended or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean J.P. Morgan Securities Inc. ("J.P. Morgan"),
Lehman Brothers Inc. ("Lehman"), Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Morgan Stanley & Co. Incorporated ("Morgan
Stanley") and Salomon Brothers Inc ("Salomon").
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
"Issue Date" shall mean June 15, 1998, the date of delivery of the Notes
from the Company to the Initial Purchasers.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Notes and Exchange Notes of the same series.
"Notes" shall have the meaning set forth in the preamble to this Agreement.
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<PAGE> 3
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Notes covered by a Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and in each
case including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
"Registrable Notes" shall mean the Notes; provided, however, that Notes
shall cease to be Registrable Notes when the earlier of the following occurs:
(i) a Registration Statement with respect to such Notes for the exchange or
resale thereof shall have been declared effective under the Securities Act and
such Notes shall have been disposed of pursuant to such Registration Statement,
(ii) such Notes shall have been sold to the public pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under the Securities Act
or are eligible to be sold without restriction as contemplated by Rule 144(k),
(iii) such Notes shall have ceased to be outstanding or (iv) no Shelf
Registration Event has occurred and the Exchange Offer has concluded in
accordance with the provisions hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Notes in accordance
with the rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for all underwriters or Holders
as a group in connection with blue sky qualification of any of the Exchange
Notes or Registrable Notes) and compliance with the rules of the NASD, (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus and any
amendments or supplements thereto, and in preparing or assisting in preparing,
printing and distributing any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, (v) the fees and disbursements
of counsel for the Company and of the independent certified public accountants
of the Company, including the expenses of any "cold comfort" letters required by
or incident to the performance of and compliance with this Agreement, (vi) the
reasonable fees and expenses of the Trustee and
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<PAGE> 4
its counsel and any exchange agent or custodian, and (vii) the reasonable fees
and expenses of any special experts retained by the Company in connection with
any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Notes pursuant to
the provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from time
to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Event Date" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Notes on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a). Exchange Offer. Except as set forth in Section 2(b) below, the
Company shall, for the benefit of the Holders, at the Company's cost, use its
reasonable best efforts to (i) cause to be filed with the SEC within 60 calendar
days after the Issue Date an Exchange Offer Registration Statement on an
appropriate form under the Securities Act relating to the Exchange Offer, (ii)
cause such Exchange Offer Registration Statement to be declared effective under
the Securities Act by the SEC not later than the date which is 135 calendar days
after the Issue Date, (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders and (iv) cause the Exchange Offer to be consummated within 180 calendar
days after the Issue Date. Promptly after the effectiveness of the Exchange
Offer Registration Statement, the Company shall commence the Exchange Offer, it
being the objective of such
4
<PAGE> 5
Exchange Offer to enable each Holder eligible and electing to exchange
Registrable Notes for a like principal amount of Exchange Notes of the same
series (provided that such Holder (i) is not an Affiliate of the Company, (ii)
is not a broker-dealer tendering Registrable Notes acquired directly from the
Company, (iii) acquires the Exchange Notes in the ordinary course of such
Holder's business and (iv) has no arrangements or understandings with any Person
to participate in the Exchange Offer for the purpose of distributing the
Exchange Notes) to transfer such Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities Act and under state
securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(i). mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii). keep the Exchange Offer open for acceptance for a period of not less
0han 30 days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as the "Exchange
Period");
(iii). utilize the services of the Depositary for the Exchange Offer with
respect to Notes represented by a global certificate;
(iv). permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York City time, on the last Business Day of the Exchange
Period, by sending to the institution specified in the notice to Holders, a
telegram, telex, facsimile transmission or letter setting forth the name of such
Holder, the series and amount of Notes delivered for exchange, and a statement
that such Holder is withdrawing his election to have such Notes exchanged;
(v). notify each Holder that any Note not tendered by such Holder in the
Exchange Offer will remain outstanding and continue to accrue interest but will
not retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(vi). otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Notes or portions thereof so accepted for exchange by the Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, Exchange Notes of the same series equal
in principal amount to the principal amount of the Notes as are surrendered by
such Holder.
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<PAGE> 6
Interest on each Exchange Note issued pursuant to the Exchange Offer
will accrue from the last date on which interest was paid on the Note
surrendered in exchange therefor or, if no interest has been paid on such Note,
from the Issue Date. To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company shall use reasonable best
efforts to complete the Exchange Offer as provided above, and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions other than the conditions referred to in
Section 2(b)(i) and (ii) below and those conditions that are customary in
similar exchange offers. Each Holder of Registrable Notes who wishes to exchange
such Registrable Notes for Exchange Notes in the Exchange Offer will be required
to make certain customary representations in connection therewith, including, in
the case of any Holder of Notes, representations that (i) it is not an Affiliate
of the Company, (ii) it is not a broker-dealer tendering Registrable Notes
acquired directly from the Company, (iii) the Exchange Notes to be received by
it are being acquired in the ordinary course of its business and (iv) at the
time of the Exchange Offer, it has no arrangements or understandings with any
Person to participate in the distribution (within the meaning of the Securities
Act) of the Exchange Notes. The Company shall inform the Initial Purchasers,
after consultation with the Trustee, of the names and addresses of the Holders
to whom the Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders in order to facilitate the tender of Registrable
Notes in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Notes held by Participating
Broker-Dealers, and the Company shall have no further obligation to register the
Registrable Notes held by any Holder pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the Company reasonably
determines, after conferring with counsel (which may be in-house counsel), that
the Exchange Offer Registration provided in Section 2(a) above is not available
under applicable law and regulations and currently prevailing interpretations of
the staff of the SEC, (ii) the Exchange Offer is not consummated within 180 days
after the Issue Date or (iii) upon the request of any Initial Purchaser with
respect to any Registrable Notes held by it, if such Initial Purchaser is not
permitted, in the reasonable opinion of Brown & Wood LLP, pursuant to applicable
law or applicable interpretations of the staff of the SEC, to participate in the
Exchange Offer and thereby receive securities that are freely tradeable without
restriction under the Securities Act and applicable blue sky or state securities
laws (any of the events specified in (i), (ii) or (iii) being a "Shelf
Registration Event", and the date of occurrence thereof, the "Shelf Registration
Event Date"), then in addition to or in lieu of conducting the Exchange Offer
contemplated by Section 2(a), as the case may be, the Company shall promptly
notify the Holders thereof and shall, at its cost, use its reasonable best
efforts to cause to be filed as promptly as practicable after such Shelf
Registration Event Date, as the case may be, and, in any event, within 60 days
after such Shelf Registration Event Date (provided that in no event shall such
filing date be required to be earlier than 75 days after the Issue Date), a
Shelf Registration Statement providing for the sale by the Holders of all of the
Registrable Notes, and shall use its reasonable best efforts to have such
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<PAGE> 7
Shelf Registration Statement declared effective by the SEC as soon as
practicable. No Holder of Registrable Notes shall be entitled to include any of
its Registrable Notes in any Shelf Registration pursuant to this Agreement
unless and until such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and furnishes to the
Company in writing, within 15 days after receipt of a request therefor, such
information as the Company may, after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to be included
in such Shelf Registration Statement or Prospectus included therein, reasonably
request for inclusion in any Shelf Registration Statement or Prospectus included
therein. Each Holder as to which any Shelf Registration is being effected agrees
to furnish to the Company all information with respect to such Holder necessary
to make the information previously furnished to the Company by such Holder not
materially misleading.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales for the earlier of: (a) the Rule 144(k) Period or (b) such time as all
of the Securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be Registrable Notes
(the "Effectiveness Period"). The Company shall not permit any securities other
than (i) the Company's issued and outstanding securities currently possessing
incidental registration rights and (ii) Registrable Notes, to be included in the
Shelf Registration. The Company will, in the event a Shelf Registration
Statement is declared effective, provide to each Holder a reasonable number of
copies of the Prospectus which is a part of the Shelf Registration Statement,
notify each such Holder when the Shelf Registration has become effective and
take any other action required to permit unrestricted resales of the Registrable
Notes. The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Notes copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to Section 2(a) and/or
2(b) hereof and will reimburse the Initial Purchasers for the reasonable fees
and disbursements of Brown & Wood LLP incurred in connection with the Exchange
Offer. Except as provided herein, each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes pursuant
to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable Notes pursuant
to such Exchange Offer Registration Statement or Shelf
7
<PAGE> 8
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Exchange Offer Registration Statement or Shelf Registration Statement will be
deemed not to have been effective during the period of such interference, until
the offering of Registrable Notes pursuant to such Registration Statement may
legally resume. The Company will be deemed not to have used its reasonable best
efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if voluntarily takes any action that would result in
any such Registration Statement not being declared effective or that would
result in the Holders of Registrable Notes covered thereby not being able to
exchange or offer and sell such Registrable Notes during that period, unless
such action is required by applicable law.
(e) Liquidated Damages. In the event that:
(i) the Exchange Offer Registration Statement is not filed with
the SEC on or prior to the 60th day after the Issue Date, then, commencing on
the 61st day after the Issue Date, liquidated damages ("Liquidated Damages")
shall accrue on the principal amount of the Notes at a rate of 0.50% per annum;
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 135th day after the Issue Date, then,
commencing on the 136th day after the Issue Date, Liquidated Damages shall
accrue on the principal amount of the Notes at a rate of 0.50% per annum;
(iii) the Shelf Registration Statement, if required pursuant to
Section 2(b), is not filed with the SEC on or prior to the date required
pursuant to such section, then, commencing on the first day after the applicable
required filing date, Liquidated Damages shall accrue on the principal amount of
the Notes at the rate of 0.50% per annum;
(iv) (A) the Company has not exchanged Exchange Notes for all
Notes, validly tendered in accordance with the terms of the Exchange Offer on or
prior to the 180th day after the Issue Date or (B) if the Shelf Registration
Statement is required to be filed pursuant to Section 2(b) but is not declared
effective by the SEC on or prior to the 180th day after the Issue Date, then,
commencing on the 181st day after the Issue Date, Liquidated Damages shall
accrue on the principal amount of the Notes at the rate of 0.50% per annum; or
(v) the Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective or the Prospectus
usable for resales (I) at any time prior to the expiration of the Effectiveness
Period or (II) if related to corporate developments, public filings or similar
events or to correct a material misstatement or omission in the Prospectus, for
more than 60 days (whether or not consecutive) in any twelve-month period, then
Liquidated Damages shall accrue on the principal amount of Notes at a rate of
0.50% per annum commencing on the day (in the case of (I) above), or the 61st
day after (in the case of (II) above), such Shelf Registration Statement ceases
to be effective or the Prospectus usable for resales;
provided, however, that the Liquidated Damages rate on the Notes may not exceed
in the aggregate 0.50% per annum; provided, further, however, that (1) upon the
filing of the Exchange
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<PAGE> 9
Offer Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement (in the case of
clause (ii) above), (3) upon the filing of the Shelf Registration Statement (in
the case of clause (iii) above), (4) upon the exchange of Exchange Notes for all
Notes validly tendered (in the case of clause (iv)(A) above) or upon the
effectiveness of the Shelf Registration Statement (in the case of clause (iv)
(B) above) or (5) the earlier of (y) such time as the Shelf Registration
Statement which had ceased to remain effective or the Prospectus usable for
resales again becomes effective and usable for resales and (z) the expiration of
the Effectiveness Period (in the case of clause (v) above), Liquidated Damages
on the principal amount of the Notes as a result of such clause (or the relevant
subclause thereof) shall cease to accrue;
provided, further, however, that if the Exchange Offer Registration Statement is
not declared effective by the SEC on or prior to the 135th day after the Issue
Date and the Company shall request Holders to provide the information required
by the SEC for inclusion in the Shelf Registration Statement, the Notes owned by
Holders who do not provide such information when required pursuant to Section
2(b) will not be entitled to any Liquidated Damages following the 180th day
after the Issue Date.
Any amounts of Liquidated Damages due pursuant to Section 2(e)(i), (ii),
(iii), (iv) or (v) above will be payable in cash on the next succeeding June 15
or December 15, as the case may be, to Holders on the relevant record dates for
the payment of interest pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies available to
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall use its reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form shall (i) be
selected by the Company, (ii) in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the selling Holders
thereof and, in the case of an Exchange Offer, be available for the
exchange of Registrable Notes, and (iii) comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith; the Company shall use its reasonable best efforts to cause
such Registration Statement to become effective and remain effective
(and, in the case of a Shelf Registration Statement, the Prospectus
usable
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<PAGE> 10
for resales) in accordance with Section 2 hereof; provided, however,
that if (1) such filing is pursuant to Section 2(b), or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto, the Company shall furnish to
and afford the Holders of the Registrable Notes and each such
Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing underwriters, if
any, a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed; and the Company
shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must
be afforded an opportunity to review prior to the filing of such
document if the Majority Holders or such Participating Broker-Dealer,
as the case may be, their counsel or the managing underwriters, if any,
shall reasonably object in a timely manner;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep
such Registration Statement effective for the Effectiveness Period or
the Applicable Period, as the case may be, and cause each Prospectus to
be supplemented, if so determined by the Company or requested by the
SEC, by any required prospectus supplement and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in force)
under the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition
of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement (including sales by
any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes included in the Shelf Registration Statement, at
least three Business Days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Notes is being filed and
advising such Holder that the distribution of Registrable Notes will be
made in accordance with the method selected by the Majority Holders,
(ii) furnish to each Holder of Registrable Notes included in the Shelf
Registration Statement and to each underwriter of an underwritten
offering of Registrable Notes, if any, without charge, as many copies
of each Prospectus, including each preliminary prospectus, and any
amendment or supplement thereto, and such other documents as such
Holder or underwriter may reasonably request, in order to facilitate
the public sale or other disposition of the Registrable Notes and (iii)
consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Notes included in
the Shelf Registration
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<PAGE> 11
Statement in connection with the offering and sale of the Registrable
Notes covered by the Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Notes under all applicable state securities or "blue sky"
laws of such jurisdictions by the time the applicable Registration
Statement is declared effective by the SEC as any Holder of Registrable
Notes covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Notes shall reasonably request in
writing in advance of such date of effectiveness, and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder and underwriter to consummate the disposition in
each such jurisdiction of such Registrable Notes owned by such Holder;
provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), (ii) file any general consent to service of
process in any jurisdiction where it would not otherwise be subject to
such service of process or (iii) subject itself to taxation in any such
jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice
that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(u) hereof, are
seeking to sell Exchange Notes and are required to deliver
Prospectuses, promptly notify each Holder of Registrable Notes, or such
Participating Broker-Dealers, as the case may be, their counsel and the
managing underwriters, if any, and promptly confirm such notice in
writing (i) when a Registration Statement has become effective and when
any post-effective amendments thereto become effective, (ii) of any
request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement or Prospectus or for additional
information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of a Registration Statement
or the qualification of the Registrable Notes or the Exchange Notes to
be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in Section 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration,
if, between the effective date of a Registration Statement and the
closing of any sale of Registrable Notes covered thereby, the
representations and warranties of the Company contained in any purchase
agreement, securities sales agreement or other similar agreement cease
to be true and correct in all material respects, (v) of the happening
of any event or the failure of any event to occur or the discovery of
any facts, during the Effectiveness Period, which makes any statement
made in such Registration Statement or the related Prospectus untrue in
any material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made,
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<PAGE> 12
not misleading, as well as any other corporate developments, public
filings with the SEC or similar events causing such Registration
Statement not to be effective or the Prospectus not useable for resales
and (vi) of the reasonable determination of the Company that a
post-effective amendment to the Registration Statement would be
appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of
a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes included within the coverage of such Shelf
Registration Statement, without charge, at least one conformed copy of
each Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and
not bearing any restrictive legends and in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders or the underwriters may reasonably
request at least two Business Days prior to the closing of any sale of
Registrable Notes pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 60-day grace period
within any twelve-month period) or 3(e)(vi) hereof, prepare a
supplement or post-effective amendment to such Registration Statement
or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes, such Prospectus
will not include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and the Company shall notify each Holder to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an
event, and each Holder hereby agrees to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct
such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time prior to the
filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such
document to the Holders and make such of the representatives of the
Company as shall be reasonably requested by the
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<PAGE> 13
Holders of Registrable Notes or the Initial Purchasers on behalf of
such Holders available for discussion of such document;
(k) obtain a CUSIP number for each series of Notes, as the case may be,
not later than the effective date of a Registration Statement, and
provide the Trustee with certificates for the Exchange Notes or the
Registrable Notes, as the case may be, in a form eligible for deposit
with the Depositary;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of
the Exchange Notes or Registrable Notes, as the case may be, and effect
such changes to such documents as may be required for them to be so
qualified in accordance with the terms of the TIA and execute, and
cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be
filed with the SEC to enable such documents to be so qualified in a
timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions in connection
therewith as are reasonably requested by the Holders of at least 25% in
aggregate principal amount of the Registrable Notes of a series in
order to expedite or facilitate the registration or the disposition of
such Registrable Notes;
(n) in the case of a Shelf Registration, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) an Initial Purchaser, in
the case where such Initial Purchaser holds Notes acquired by it as
part of its initial placement and (y) Holders of at least 25% in
aggregate principal amount of the Registrable Notes of a series covered
thereby: (i) make such representations and warranties to Holders of
such Registrable Notes and the underwriters (if any), with respect to
the business of the Company and the subsidiaries of the Company as then
conducted and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company and updates thereof
(which may be in the form of a reliance letter) in form and substance
reasonably satisfactory to the managing underwriters (if any) and the
Holders of a majority in amount of the Registrable Notes of a series
being sold, addressed to each selling Holder and the underwriters (if
any) covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such underwriters (it being agreed that the matters to be
covered by such opinion may be subject to customary qualifications and
exceptions); (iii) obtain "cold comfort" letters and updates thereof in
form and substance reasonably satisfactory to the managing underwriters
from the
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<PAGE> 14
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings and
such other matters as reasonably requested by such underwriters in
accordance with Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those
set forth in Section 4 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes of a series covered by such Registration Statement
and the managing underwriters) customary for such agreements with
respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders);
and in the case of an underwritten registration, the above requirements
shall be satisfied at each closing under the related underwriting
agreement or as and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make reasonably available
for inspection by any selling Holder or Registrable Notes or
Participating Broker-Dealer, as applicable, who certifies to the
Company that it has a current intention to sell Registrable Notes
pursuant to the Shelf Registration, any underwriter participating in
any such disposition of Registrable Notes, if any, and any attorney,
accountant or other agent retained by any such selling Holder,
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during the Company's normal business hours, all financial and other
records, pertinent organizational and operational documents and
properties of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers,
trustees and employees of Equity Office Properties Trust and the
Company and its subsidiaries to supply all relevant information in each
case reasonably requested by any such Inspector in connection with such
Registration Statement; records and information which the Company
determines, in good faith, to be confidential and any Records and
information which it notifies the Inspectors are confidential shall not
be disclosed to any Inspector except where (i) the disclosure of such
Records or information is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the
release of such Records or information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or is
necessary in connection with any action, suit or proceeding or (iii)
such Records or information previously has been
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<PAGE> 15
made generally available to the public; each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to agree in writing that Records and information obtained by
it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally
available to the public through no fault of an Inspector or a selling
Holder; and each selling Holder of such Registrable Notes and each such
Participating Broker-Dealer will be required to further agree in
writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in
connection with any action, suit or proceeding, give notice to the
Company and allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records and information deemed
confidential;
(p) comply with all applicable rules and regulations of the SEC so long
as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 60 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods, provided that the obligations under this paragraph (p) shall
be satisfied by the timely filing of quarterly and annual reports on
Forms 10-Q and 10-K under the Exchange Act;
(q) upon consummation of an Exchange Offer, if requested by the
Trustee, obtain an opinion of counsel to the Company addressed to the
Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer, substantially to the effect that
(i) the Company has duly authorized, executed and delivered the
Exchange Notes, and (ii) each of the Exchange Notes constitutes a
legal, valid and binding obligation of the Company, enforceable against
the Company, in accordance with its respective terms (in each case,
with customary exceptions);
(r) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as
directed by the Company), in exchange for the Exchange Notes, the
Company shall mark, or cause to be marked, on such Registrable Notes
delivered by such Holders that such Registrable Notes are being
cancelled in exchange for the Exchange Notes; it being understood that
in no event shall such Registrable Notes be marked as paid or otherwise
satisfied;
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<PAGE> 16
(s) cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Notes and their respective counsel
in connection with any filings required to be made with the NASD;
(t) take all other steps necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated
hereby;
(u) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," which section shall be reasonably acceptable to
the Initial Purchasers or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect
to the potential "underwriter" status of any broker-dealer that holds
Registrable Notes acquired for its own account as a result of
market-making activities or other trading activities (a "Participating
Broker-Dealer") and that will be the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Notes to be received by
such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or
such positions or policies, in the reasonable judgment of the Initial
Purchasers or such other representative, represent the prevailing views
of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Notes for Registrable Notes
pursuant to the Exchange Offer may be deemed a statutory underwriter
and must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes,
(ii) furnish to each Participating Broker-Dealer who has delivered to
the Company the notice referred to in Section 3(e), without charge, as
many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary Prospectus, and any
amendment or supplement thereto, as such Participating Broker-Dealer
may reasonably request (the Company hereby consents to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or
any amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer
of the Exchange Notes covered by the Prospectus or any amendment or
supplement thereto), (iii) use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and
supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period
of time as such Persons must comply with such requirements under the
Securities Act and applicable rules and regulations in order to resell
the Exchange Notes; provided, however, that such period shall not be
required to exceed 180 days (or such longer period if extended pursuant
to the last sentence of Section 3 hereof) (the "Applicable Period"),
and (iv) include in
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<PAGE> 17
the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the
following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Notes acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of Exchange Notes received in respect
of such Registrable Notes pursuant to the Exchange Offer"
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Notes, the broker-dealer
will not be deemed to admit that it is an underwriter within the
meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if reasonably
requested by an Initial Purchaser or such other representative of
Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i) an opinion
of counsel in form and substance reasonably satisfactory to such
Initial Purchaser or such other representative of the Participating
Broker-Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 5(c) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public offering of
debt securities and (iii) upon the effectiveness of the Exchange Offer
Registration Statement, comfort letter(s), in each case, in customary
form if permitted by Statement on Auditing Standards No. 72.
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. The Company may exclude from such registration the
Registrable Notes of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall have no obligation to register under the Securities Act the Registrable
Notes of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the
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<PAGE> 18
Exchange Offer Registration Statement as provided in this Section 3(u) hereof
are seeking to sell Exchange Notes and are required to deliver Prospectuses,
each Holder agrees that, upon receipt of any notice from the Company of the
occurrence of any event specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies in such Holder's possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Notes or Exchange Notes, as the case may be, current at the time of
receipt of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Notes or Exchange Notes, as the case may be, pursuant
to a Registration Statement, the Company shall use its reasonable best efforts
to file and have declared effective (if an amendment) as soon as practicable
after the resolution of the related matters an amendment or supplement to the
Registration Statement and shall extend the period during which such
Registration Statement is required to be maintained effective and the Prospectus
usable for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company shall have made available to the Holders (x) copies of
the supplemented or amended Prospectus necessary to resume such dispositions or
(y) the Advice.
4. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company shall indemnify and hold harmless the
Initial Purchasers, each Holder, each underwriter who participates in an
offering of the Registrable Notes, each Participating Broker-Dealer, each
Person, if any, who controls any of such parties within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and each of their
respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto), covering
Registrable Notes or Exchange Notes, as applicable, or the omission or
alleged omission therefrom of a material fact required to be stated
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 4(d) hereof) any such settlement is effected with the prior
written consent of the Company; and
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<PAGE> 19
(iii) against any and all expenses whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by such Holder,
such Participating Broker-Dealer, or any underwriter (except to the
extent otherwise expressly provided in Section 4(c) hereof)),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company by the
Initial Purchasers or such Holder, underwriter or Participating Broker-Dealer
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Each of the Initial Purchasers and each Holder, underwriter or
Participating Broken-Dealer agrees, severally and not jointly, to indemnify and
hold harmless the Company, Equity Office Properties Trust and the trustees and
officers of Equity Office Properties Trust, and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in such Registration
Statement (or any amendment thereto), or any such Prospectus (or any amendment
or supplement thereto); provided, however, that in the case of a Shelf
Registration Statement, no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Notes pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have under this Section 4 to the extent that it is not materially
prejudiced by such failure as a result thereof, and in any event shall not
relieve it from liability which it may have otherwise on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 4(a)
or (b) above, counsel to the indemnified parties shall be selected by such
parties. An indemnifying party may participate at its own expense in the defense
of such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel),
separate from their own counsel, for all indemnified parties in connection with
any one action or separate but similar or
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<PAGE> 20
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional written release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, the Company and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Holders, as incurred; provided, however, that no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any Person that was not guilty of
such fraudulent misrepresentation. As between the Company and the Holders, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the Company,
on the one hand, and the Holders, on the other hand, with respect to the
statements or omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holders, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by or on behalf of the Holders, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Holders of the Registrable Notes agree that it would not be just and
equitable if contribution pursuant to this Section 4 were to be determined by
pro rata allocation or by any other method of allocation that does not take into
account the relevant equitable considerations. For purposes of this Section 4,
each Affiliate of a Holder, and each director, officer and employee and Person,
if any, who controls a Holder or such Affiliate within
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<PAGE> 21
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as such Holder, and each trustee
and officer of Equity Office Properties Trust and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Company.
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Notes on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Notes covered
by the Shelf Registration Statement who desire to do so may sell the Securities
covered by such Shelf Registration in an underwritten offering, subject to the
provisions of Section 3(m) hereof. In any such underwritten offering, the
underwriter or underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount of the Registrable Notes of the particular series included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company will file the reports required
to be filed by it under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC thereunder;
provided, however, that if the Company ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable Notes, (a) make
publicly available such information as is necessary to permit sales of its
securities pursuant to Rule 144 under the Securities Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales of its
securities pursuant to Rule 144A under the Securities Act, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, (ii) Rule 144A under the Securities Act, as such
rule may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Notes, the Company will deliver to such Holder a written statement as to whether
it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, nor
will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise
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<PAGE> 22
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of a
majority in aggregate principal amount of the outstanding Registrable Notes
affected by such amendment, modification, supplement, waiver or departure;
provided that no amendment, modification or supplement or waiver or consent to
the departure with respect to the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder of Registrable Notes. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended, without the consent of any Holder
of Registrable Notes, by written agreement signed by the Company and the Initial
Purchasers, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company and the Initial Purchasers to the extent
that any such amendment, modification, supplement, waiver or consent is, in
their reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to an Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by such Initial Purchaser and the Company.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to each Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
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<PAGE> 23
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Notes, in any manner,
whether by operation of law or otherwise, such Registrable Notes shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Notes, such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder between the Initial Purchasers and the Company, and the Initial
Purchasers shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK
OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
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<PAGE> 25
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
EOP OPERATING LIMITED PARTNERSHIP
By: EQUITY OFFICE PROPERTIES TRUST,
as Managing General Partner
By: /s/ Richard D. Kincaid
-----------------------------------
Name: Richard D. Kincaid
Title: Executive Vice President and
Chief Financial Officer
Confirmed and accepted as of
the date first above
written:
J.P. MORGAN SECURITIES INC.
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SALOMON BROTHERS INC
By: J.P. MORGAN SECURITIES INC.
For itself and as Representative of the
several Initial Purchasers
By: /s/ Richard Posh
---------------------------------------
Authorized Signatory
25
<PAGE> 1
EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of June 10, 1998 between EOP OPERATING LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Company"), and the Initial Purchasers (as
hereinafter defined).
This Agreement is made pursuant to the Purchase Agreement dated June
10, 1998 (the "Purchase Agreement"), between the Company, as issuer of the
6.763% Notes due 2007 (the "Notes") and Warrants to purchase 6.763% Notes due
2008 (the "Warrants"), and the Initial Purchasers, which provides for, among
other things, the sale by the Company to the Initial Purchasers of the aggregate
principal amount of Notes and number of Warrants specified therein. In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section 3
hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u) hereof.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions in New York, New York or Boston, Massachusetts are
authorized or required by law or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this Agreement
and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
<PAGE> 2
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes and Registrable Warrants for a like amount
of Exchange Notes and Exchange Warrants pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the Securities
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Exchange Notes" shall mean the 6.763% Notes due 2007 containing terms
identical to the Notes (except that they will not contain terms with respect to
the transfer restrictions under the Securities Act and will not provide for any
Liquidated Damages thereon).
"Exchange Warrants" shall mean the Warrants to purchase the 6.763% Notes due
2008 containing terms identical to the Warrants (except that they will not
contain terms with respect to the transfer restrictions under the Securities
Act).
"Exercise Date" shall mean the date upon which Warrants may be exchanged for
the Underlying Notes in accordance with the terms of such Warrants.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes or Registrable Warrants, and each of its respective
successors, assigns and direct and indirect transferees who become registered
owners of Registrable Notes under the Indenture, or Registrable Warrants under
the Warrant Agreement, as the case may be.
"Indenture" shall mean the Indenture, dated as of September 2, 1997, as
amended or supplemented to the date hereof, between the Company, as issuer, and
State Street Bank and Trust Company, as trustee, as the same may be further
amended or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Goldman, Sachs & Co. ("Goldman,
Sachs"), J.P. Morgan Securities Inc. ("J.P. Morgan") and NationsBanc Montgomery
Securities LLC ("NationsBanc").
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
"Issue Date" shall mean June 15, 1998, the date of delivery of the Notes and
Warrants from the Company to the Initial Purchasers.
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<PAGE> 3
"Issuer" shall mean the Company as defined in the preamble hereto.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean, as the context requires, the Holders of a
majority of the aggregate principal amount of outstanding Notes and Exchange
Notes or the Holders of a majority of the outstanding number of Warrants and
Exchange Warrants.
"Notes" shall have the meaning set forth in the preamble to this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Notes or Registrable Warrants covered by a Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all documents incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
"Registrable Notes" shall mean the Notes; provided, however, that Notes
shall cease to be Registrable Notes when the earlier of the following occurs:
(i) a Registration Statement with respect to such Notes for the exchange or
resale thereof shall have been declared effective under the Securities Act and
such Notes shall have been disposed of pursuant to such Registration Statement,
(ii) such Notes shall have been sold to the public pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under the Securities Act
or are eligible to be sold without restriction as contemplated by Rule 144(k),
(iii) such Notes shall have ceased to be outstanding or (iv) no Shelf
Registration Event has occurred and the Exchange Offer has concluded in
accordance with the provisions hereof.
"Registrable Warrants" shall mean the Warrants; provided, however, that
Warrants shall cease to be Registrable Warrants when the earlier of the
following occurs: (i) a Registration Statement with respect to such Warrants for
the exchange or resale thereof shall have been declared effective under the
Securities Act and such Warrants shall have been disposed of pursuant to such
Registration Statement, (ii) such Warrants shall have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act or are eligible to be sold without restriction as
contemplated by Rule 144(k), (iii)
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<PAGE> 4
such Warrants shall have ceased to be outstanding or (iv) no Shelf Registration
Event has occurred and the Exchange Offer has concluded in accordance with the
provisions hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Notes or
Registrable Warrants in accordance with the rules and regulations of the NASD,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of one
counsel for all underwriters or Holders as a group in connection with blue sky
qualification of any of the Exchange Notes, Exchange Warrants, Registrable
Notes, or Registrable Warrants) and compliance with the rules of the NASD, (iii)
all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any Prospectus
and any amendments or supplements thereto, and in preparing or assisting in
preparing, printing and distributing any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and of the independent certified public
accountants of the Company, including the expenses of any "cold comfort" letters
required by or incident to the performance of and compliance with this
Agreement, (vi) the reasonable fees and expenses of the Trustee, the Warrant
Agent, and their counsel and any exchange agent or custodian, and (vii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes, Exchange Warrants, Registrable
Notes or Registrable Warrants pursuant to the provisions of this Agreement, and
all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from time
to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Event Date" shall have the meaning set forth in Section
2(b) hereof.
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"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Notes and Registrable Warrants on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by
reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee under the Indenture.
"Underlying Notes" shall mean the 6.763% Notes due 2008 which are
purchasable upon exercise of the Warrants.
"Warrant Agent" shall mean the Debt Warrant Agent under the Warrant
Agreement.
"Warrant Agreement" shall mean the Warrant Agreement, dated as of June 15,
1998, between the Company, as issuer, and State Street Bank and Trust company,
as warrant agent, as the same may be amended or supplemented from time to time
in accordance with the terms thereof.
"Warrants" shall have the meaning set forth in the preamble to this
Agreement.
2. Registration Under the Securities Act.
(a.) Exchange Offer. Except as set forth in Section 2(b) below, the
Company shall, for the benefit of the Holders, at the Company's cost, use its
reasonable best efforts to (i) cause to be filed with the SEC within 60 calendar
days after the Issue Date an Exchange Offer Registration Statement on an
appropriate form under the Securities Act relating to the Exchange Offer, (ii)
cause such Exchange Offer Registration Statement to be declared effective under
the Securities Act by the SEC not later than the date which is 135 calendar days
after the Issue Date, (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders and (iv) cause the Exchange Offer to be consummated within 180 calendar
days after the Issue Date. Promptly after the effectiveness of the Exchange
Offer Registration Statement, the Company shall commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Notes and Registrable Warrants for a like
principal amount or number of Exchange Notes and Exchange Warrants, respectively
(provided that such Holder (i) is not an Affiliate of the Company, (ii) is not a
broker-dealer tendering Registrable Notes or Registrable Warrants acquired
directly from the Company, (iii) acquires the Exchange Notes or the Exchange
Warrants, as applicable, in the ordinary course of such Holder's business and
(iv) has no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange
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<PAGE> 6
Notes or Exchange Warrants) to transfer such Exchange Notes and / or such
Exchange Warrants from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue sky
laws.
In connection with the Exchange Offer, the Company shall:
(i.) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii.) keep the Exchange Offer open for acceptance for a period of not less
than 30 days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as the "Exchange
Period");
(iii.) utilize the services of the Depositary for the Exchange Offer with
respect to Notes and Warrants represented by a global certificate;
(iv.) permit Holders to withdraw tendered Notes and Warrants at any time
prior to the close of business, New York City time, on the last Business Day of
the Exchange Period, by sending to the institution specified in the notice to
Holders, a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the series and amount of Notes and / or Warrants delivered
for exchange, and a statement that such Holder is withdrawing his election to
have such Notes and / or Warrants exchanged;
(v.) notify each Holder that any Note or Warrant not tendered by such Holder
in the Exchange Offer will remain outstanding and continue to accrue interest
but will not retain any rights under this Agreement (except in the case of the
Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi.) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes and Warrants or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Notes and Warrants or portions thereof so accepted for exchange by the Company;
and
(iii) issue, and cause the Trustee under the Indenture and Warrant Agent
under the Warrant Agreement, as the case may be, to promptly authenticate and
deliver to each Holder, Exchange Notes of the same series equal in principal
amount to the principal amount of the Notes as are surrendered by such Holder,
and Exchange Warrants equal in number to the number of the Warrants as are
surrendered by such Holder.
Interest on each Exchange Note issued pursuant to the Exchange Offer
will accrue from the last date on which interest was paid on the Note
surrendered in exchange therefor or, if
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<PAGE> 7
no interest has been paid on such Note, from the Issue Date. To the extent not
prohibited by any law or applicable interpretation of the staff of the SEC, the
Company shall use reasonable best efforts to complete the Exchange Offer as
provided above, and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions
other than the conditions referred to in Section 2(b)(i) and (ii) below and
those conditions that are customary in similar exchange offers. Each Holder of
Registrable Notes or Registrable Warrants who wishes to exchange such
Registrable Notes or Registrable Warrants for Exchange Notes or Exchange
Warrants in the Exchange Offer will be required to make certain customary
representations in connection therewith, including, in the case of any Holder,
representations that (i) it is not an Affiliate of the Company, (ii) it is not a
broker-dealer tendering Registrable Notes or Registrable Warrants acquired
directly from the Company, (iii) the Exchange Notes or Exchange Warrants to be
received by it are being acquired in the ordinary course of its business and
(iv) at the time of the Exchange Offer, it has no arrangements or understandings
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes or the Exchange Warrants. The Company
shall inform the Initial Purchasers, after consultation with the Trustee, of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders in order to
facilitate the tender of Registrable Notes or Registrable Warrants in the
Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Notes and Exchange Warrants held by
Participating Broker-Dealers, and the Company shall have no further obligation
to register the Registrable Notes or Registrable Warrants held by any Holder
pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the Company reasonably
determines, after conferring with counsel (which may be in-house counsel), that
the Exchange Offer Registration provided in Section 2(a) above is not available
under applicable law and regulations and currently prevailing interpretations of
the staff of the SEC, (ii) the Exchange Offer is not consummated within 180 days
after the Issue Date or (iii) upon the request of any Initial Purchaser with
respect to any Registrable Notes or Registrable Warrants held by it, if such
Initial Purchaser is not permitted, in the reasonable opinion of Brown & Wood
LLP, pursuant to applicable law or applicable interpretations of the staff of
the SEC, to participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws (any of the events specified in
(i), (ii) or (iii) being a "Shelf Registration Event", and the date of
occurrence thereof, the "Shelf Registration Event Date"), then in addition to or
in lieu of conducting the Exchange Offer contemplated by Section 2(a), as the
case may be, the Company shall promptly notify the Holders thereof and shall, at
its cost, use its reasonable best efforts to cause to be filed as promptly as
practicable after such Shelf Registration Event Date, as the case may be, and,
in any event, within 60 days after such Shelf Registration Event Date (provided
that in no event shall such filing date be required to be earlier than 75 days
after the Issue Date), a Shelf Registration Statement providing for the sale by
the Holders of all of the Registrable Notes and all of the Registrable Warrants,
and shall use its reasonable best efforts to have such Shelf Registration
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<PAGE> 8
Statement declared effective by the SEC as soon as practicable. No Holder of
Registrable Notes or Registrable Warrants shall be entitled to include any of
its Registrable Notes or Registrable Warrants in any Shelf Registration pursuant
to this Agreement unless and until such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder and furnishes
to the Company in writing, within 15 days after receipt of a request therefor,
such information as the Company may, after conferring with counsel with regard
to information relating to Holders that would be required by the SEC to be
included in such Shelf Registration Statement or Prospectus included therein,
reasonably request for inclusion in any Shelf Registration Statement or
Prospectus included therein. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company all information with respect to
such Holder necessary to make the information previously furnished to the
Company by such Holder not materially misleading.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales for the earlier of: (a) the Rule 144(k) Period or (b) such time as all
of the securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be Registrable Notes
(the "Effectiveness Period"). The Company shall not permit any securities other
than (i) the Company's issued and outstanding securities currently possessing
incidental registration rights (ii) Registrable Notes and (iii) Registrable
Warrants, to be included in the Shelf Registration. The Company will, in the
event a Shelf Registration Statement is declared effective, provide to each
Holder a reasonable number of copies of the Prospectus which is a part of the
Shelf Registration Statement, notify each such Holder when the Shelf
Registration has become effective and take any other action required to permit
unrestricted resales of the Registrable Notes and Registrable Warrants. The
Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Notes or Registrable Warrants copies of
any such supplement or amendment promptly after its being used or filed with the
SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to Section 2(a) and/or
2(b) hereof and will reimburse the Initial Purchasers for the reasonable fees
and disbursements of Brown & Wood LLP incurred in connection with the Exchange
Offer. Except as provided herein, each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes or
Registrable Warrants pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable Notes and
Registrable Warrants pursuant to such Exchange Offer Registration Statement or
Shelf
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<PAGE> 9
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Exchange Offer Registration Statement or Shelf Registration Statement will
be deemed not to have been effective during the period of such interference,
until the offering of Registrable Notes and Registrable Warrants pursuant to
such Registration Statement may legally resume. The Company will be deemed not
to have used its reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if voluntarily
takes any action that would result in any such Registration Statement not being
declared effective or that would result in the Holders of Registrable Notes or
Registrable Warrants covered thereby not being able to exchange or offer and
sell such Registrable Notes or such Registrable Warrants during that period,
unless such action is required by applicable law.
(e) Liquidated Damages. In the event that:
(i) the Exchange Offer Registration Statement is not filed with
the SEC on or prior to the 60th day after the Issue Date, then, commencing on
the 61st day after the Issue Date, liquidated damages ("Liquidated Damages")
shall accrue on the principal amount of the Notes at a rate of 0.50% per annum;
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 135th day after the Issue Date, then,
commencing on the 136th day after the Issue Date, Liquidated Damages shall
accrue on the principal amount of the Notes at a rate of 0.50% per annum;
(iii) the Shelf Registration Statement, if required pursuant to
Section 2(b), is not filed with the SEC on or prior to the date required
pursuant to such section, then, commencing on the first day after the applicable
required filing date, Liquidated Damages shall accrue on the principal amount of
the Notes at the rate of 0.50% per annum;
(iv) (A) the Company has not exchanged Exchange Notes and Exchange
Warrants for all Notes and Warrants, respectively, validly tendered in
accordance with the terms of the Exchange Offer on or prior to the 180th day
after the Issue Date or (B) if the Shelf Registration Statement is required to
be filed pursuant to Section 2(b) but is not declared effective by the SEC on or
prior to the 180th day after the Issue Date, then, commencing on the 181st day
after the Issue Date, Liquidated Damages shall accrue on the principal amount of
the Notes at the rate of 0.50% per annum; or
(v) the Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective or the Prospectus
usable for resales (I) at any time prior to the expiration of the Effectiveness
Period or (II) if related to corporate developments, public filings or similar
events or to correct a material misstatement or omission in the Prospectus, for
more than 60 days (whether or not consecutive) in any twelve-month period, then
Liquidated Damages shall accrue on the principal amount of Notes at a rate of
0.50% per annum commencing on the day (in the case of (I) above), or the 61st
day after (in the
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<PAGE> 10
case of (II) above), such Shelf Registration Statement ceases to be effective or
the Prospectus usable for resales;
provided, however, that the Liquidated Damages rate on the Notes may not exceed
in the aggregate 0.50% per annum; provided, further, however, that (1) upon the
filing of the Exchange Offer Registration Statement (in the case of clause (i)
above), (2) upon the effectiveness of the Exchange Offer Registration Statement
(in the case of clause (ii) above), (3) upon the filing of the Shelf
Registration Statement (in the case of clause (iii) above), (4) upon the
exchange of Exchange Notes and Exchange Warrants for all Notes and Warrants,
respectively, validly tendered (in the case of clause (iv)(A) above) or upon the
effectiveness of the Shelf Registration Statement (in the case of clause (iv)
(B) above) or (5) the earlier of (y) such time as the Shelf Registration
Statement which had ceased to remain effective or the Prospectus usable for
resales again becomes effective and usable for resales and (z) the expiration of
the Effectiveness Period (in the case of clause (v) above), Liquidated Damages
on the principal amount of the Notes as a result of such clause (or the relevant
subclause thereof) shall cease to accrue;
provided, further, however, that if the Exchange Offer Registration Statement is
not declared effective by the SEC on or prior to the 135th day after the Issue
Date and the Company shall request Holders to provide the information required
by the SEC for inclusion in the Shelf Registration Statement, the Notes owned by
Holders who do not provide such information when required pursuant to Section
2(b) will not be entitled to any Liquidated Damages following the 180th day
after the Issue Date.
Any amounts of Liquidated Damages due pursuant to Section 2(e)(i), (ii),
(iii), (iv) or (v) above will be payable in cash on the next succeeding June 15
or December 15, as the case may be, to Holders on the relevant record dates for
the payment of interest pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies available to
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall use its reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form shall (i) be
selected by the Company, (ii) in the case of a Shelf Registration, be
available for the sale of the Registrable Notes and the Registrable
Warrants by the selling Holders thereof and, in the case of an Exchange
Offer, be available for the exchange of Registrable Notes and the
Registrable Warrants, and
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(iii) comply as to form in all material respects with the requirements
of the applicable form and include all financial statements required by
the SEC to be filed therewith; the Company shall use its reasonable
best efforts to cause such Registration Statement to become effective
and remain effective (and, in the case of a Shelf Registration
Statement, the Prospectus usable for resales) in accordance with
Section 2 hereof; provided, however, that if (1) such filing is
pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes or Exchange Warrants,
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and
afford the Holders of the Registrable Notes and Registrable Warrants
and each such Participating Broker-Dealer, as the case may be, covered
by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed; and
the Company shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto in respect of which the Holders
must be afforded an opportunity to review prior to the filing of such
document if the Majority Holders of either or both the Registrable
Notes or Registrable Warrants, depending solely upon which Holders must
be afforded the opportunity of such review, or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object in a timely manner;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep
such Registration Statement effective for the Effectiveness Period or
the Applicable Period, as the case may be, and cause each Prospectus to
be supplemented, if so determined by the Company or requested by the
SEC, by any required prospectus supplement and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in force)
under the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition
of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement (including sales by
any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes and Registrable Warrants included in the Shelf
Registration Statement, at least three Business Days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Notes and the Registrable Warrants is being filed and advising such
Holder that the distribution of Registrable Notes and Registrable
Warrants will be made in accordance with the method selected by (1) the
Majority
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Holders of the Registrable Notes solely in respect to the method of
distribution for the Registrable Notes and (2) the Majority Holders of
the Registrable Warrants solely in respect to the method of
distribution for the Registrable Warrants, (ii) furnish to each Holder
of Registrable Notes and Registrable Warrants included in the Shelf
Registration Statement and to each underwriter of an underwritten
offering of Registrable Notes and Registrable Warrants, if any, without
charge, as many copies of each Prospectus, including each preliminary
prospectus, and any amendment or supplement thereto, and such other
documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Notes and Registrable Warrants and (iii) consent to the use
of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Notes and Registrable Warrants included
in the Shelf Registration Statement in connection with the offering and
sale of the Registrable Notes and Registrable Warrants covered by the
Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Notes and Registrable Warrants under all applicable state
securities or "blue sky" laws of such jurisdictions by the time the
applicable Registration Statement is declared effective by the SEC as
any Holder of Registrable Notes or Registrable Warrants covered by a
Registration Statement and each underwriter of an underwritten offering
of Registrable Notes or Registrable Warrants shall reasonably request
in writing in advance of such date of effectiveness, and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder and underwriter to consummate the disposition in
each such jurisdiction of such Registrable Notes or Registrable
Warrants owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(d), (ii) file any general
consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself
to taxation in any such jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice
that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(u) hereof, are
seeking to sell Exchange Notes or Exchange Warrants and are required to
deliver Prospectuses, promptly notify each Holder of Registrable Notes
and Registrable Warrants, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters, if any, and
promptly confirm such notice in writing (i) when a Registration
Statement has become effective and when any post-effective amendments
thereto become effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement or Prospectus or for additional information after the
Registration Statement has become effective, (iii)
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<PAGE> 13
of the issuance by the SEC or any state securities authority of any
stop order suspending the effectiveness of a Registration Statement or
the qualification of the Registrable Notes, the Registrable Warrants,
the Exchange Notes or the Exchange Warrants to be offered or sold by
any Participating Broker-Dealer in any jurisdiction described in
Section 3(d) hereof or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Notes or Registrable Warrants covered thereby, the
representations and warranties of the Company contained in any purchase
agreement, securities sales agreement or other similar agreement cease
to be true and correct in all material respects, (v) of the happening
of any event or the failure of any event to occur or the discovery of
any facts, during the Effectiveness Period, which makes any statement
made in such Registration Statement or the related Prospectus untrue in
any material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, as well as any other corporate
developments, public filings with the SEC or similar events causing
such Registration Statement not to be effective or the Prospectus not
useable for resales and (vi) of the reasonable determination of the
Company that a post-effective amendment to the Registration Statement
would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of
a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes and Registrable Warrants included within the coverage
of such Shelf Registration Statement, without charge, at least one
conformed copy of each Registration Statement relating to such Shelf
Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes and Registrable Warrants to facilitate the
timely preparation and delivery of certificates representing
Registrable Notes and Registrable Warrants to be sold and not bearing
any restrictive legends and in such denominations (consistent with the
provisions of the Indenture in the case of the Registrable Notes) and
registered in such names as the selling Holders or the underwriters may
reasonably request at least two Business Days prior to the closing of
any sale of Registrable Notes or Registrable Warrants pursuant to such
Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 60-day grace period
within any twelve-month period) or 3(e)(vi) hereof, prepare a
supplement or post-effective amendment to such
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Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Notes and Registrable Warrants, such Prospectus will not include any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
Company shall notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Company
has amended or supplemented the Prospectus to correct such misstatement
or omission;
(j) in the case of a Shelf Registration, a reasonable time prior to the
filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such
document to the Holders and make such of the representatives of the
Company as shall be reasonably requested by the Holders of Registrable
Notes or Registrable Warrants or the Initial Purchasers on behalf of
such Holders available for discussion of such document;
(k) obtain a CUSIP number the Notes and Warrants, as the case may be,
not later than the effective date of a Registration Statement, and
provide the Trustee with certificates for the Exchange Notes or the
Registrable Notes and the Warrant Agent with certificates for the
Exchange Warrants or the Registrable Warrants, as the case may be, in a
form eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of
the Exchange Notes or Registrable Notes, as the case may be, and effect
such changes to such documents as may be required for them to be so
qualified in accordance with the terms of the TIA and execute, and
cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be
filed with the SEC to enable such documents to be so qualified in a
timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions in connection
therewith as are reasonably requested by (1) in the case of the
Registrable Notes, the Holders of at least 25% in aggregate principal
amount of the Registrable Notes in order to expedite or facilitate the
registration or the disposition of the Registrable Notes and (2) in the
case of the Registrable Warrants, the Holders of at least 25% of the
number of outstanding Warrants in order to expedite or facilitate the
registration or the disposition of the Registrable Warrants;
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(n) in the case of a Shelf Registration, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) an Initial Purchaser, in
the case where such Initial Purchaser holds Notes or Warrants acquired
by it as part of its initial placement and (y) Holders of at least 25%
in aggregate principal amount of the Registrable Notes or 25% of the
outstanding number of Registrable Warrants, as the case may be, covered
thereby: (i) make such representations and warranties to Holders of
such Registrable Notes or Registrable Warrants and the underwriters (if
any), with respect to the business of the Company and the subsidiaries
of the Company as then conducted and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings, and confirm
the same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which may be in the form of a reliance
letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in amount of the
Registrable Notes or Registrable Warrants being sold, addressed to each
selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such underwriters
(it being agreed that the matters to be covered by such opinion may be
subject to customary qualifications and exceptions); (iii) obtain "cold
comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any business acquired
by the Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and such
other matters as reasonably requested by such underwriters in
accordance with Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those
set forth in Section 4 hereof (or such other provisions and procedures
acceptable to Holders of a majority (1) in aggregate principal amount
of Registrable Notes or (2) of the outstanding number of Registrable
Warrants, as the context requires, covered by such Registration
Statement and the managing underwriters) customary for such agreements
with respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders);
and in the case of an underwritten registration, the above requirements
shall be satisfied at each closing under the related underwriting
agreement or as and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating
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<PAGE> 16
Broker-Dealer who seeks to sell Exchange Notes or Exchange Warrants
during the Applicable Period, make reasonably available for inspection
by any selling Holder or Registrable Notes or Registrable Warrants or
Participating Broker-Dealer, as applicable, who certifies to the
Company that it has a current intention to sell Registrable Notes or
Registrable Warrants pursuant to the Shelf Registration, any
underwriter participating in any such disposition of Registrable Notes
or Registrable Warrants, if any, and any attorney, accountant or other
agent retained by any such selling Holder, Participating Broker-Dealer,
as the case may be, or underwriter (collectively, the "Inspectors"), at
the offices where normally kept, during the Company's normal business
hours, all financial and other records, pertinent organizational and
operational documents and properties of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, trustees and employees of
Equity Office Properties Trust and the Company and its subsidiaries to
supply all relevant information in each case reasonably requested by
any such Inspector in connection with such Registration Statement;
records and information which the Company determines, in good faith, to
be confidential and any Records and information which it notifies the
Inspectors are confidential shall not be disclosed to any Inspector
except where (i) the disclosure of such Records or information is
necessary to avoid or correct a material misstatement or omission in
such Registration Statement, (ii) the release of such Records or
information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or is necessary in connection with any
action, suit or proceeding or (iii) such Records or information
previously has been made generally available to the public; each
selling Holder of such Registrable Notes or Registrable Warrants and
each such Participating Broker-Dealer will be required to agree in
writing that Records and information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as
the basis for any market transactions in the securities of the Company
unless and until such is made generally available to the public through
no fault of an Inspector or a selling Holder; and each selling Holder
of such Registrable Notes or Registrable Warrants and each such
Participating Broker-Dealer will be required to further agree in
writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in
connection with any action, suit or proceeding, give notice to the
Company and allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records and information deemed
confidential;
(p) comply with all applicable rules and regulations of the SEC so long
as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 60 days after the end of any 12-month period if such period
is a fiscal year)
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<PAGE> 17
(i) commencing at the end of any fiscal quarter in which Registrable
Notes and / or Registrable Warrants are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods, provided that the obligations under this paragraph (p) shall
be satisfied by the timely filing of quarterly and annual reports on
Forms 10-Q and 10-K under the Exchange Act;
(q) upon consummation of an Exchange Offer, if requested by the Trustee
or Warrant Agent, obtain an opinion of counsel to the Company addressed
to the Trustee or Warrant Agent for the benefit of all Holders of
Registrable Notes or Registable Warrants participating in the Exchange
Offer, substantially to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange Notes or Exchange
Warrants, as the case may be, and (ii) each of the Exchange Notes or
Exchange Warrants constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company, in accordance with its
respective terms (in each case, with customary exceptions);
(r) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes and Registrable Warrants by Holders to the Company
(or to such other Person as directed by the Company), in exchange for
the Exchange Notes and Exchange Warrants, the Company shall mark, or
cause to be marked, on such Registrable Notes and Registrable Warrants
delivered by such Holders that such Registrable Notes and Registrable
Warrants are being cancelled in exchange for the Exchange Notes and
Exchange Warrants; it being understood that in no event shall such
Registrable Notes or Registrable Warrants be marked as paid or
otherwise satisfied;
(s) cooperate with each seller of Registrable Notes or Registrable
Warrants covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Registrable Notes or
Registrable Warrants and their respective counsel in connection with
any filings required to be made with the NASD;
(t) take all other steps necessary to effect the registration of the
Registrable Notes and Registrable Warrants covered by a Registration
Statement contemplated hereby;
(u) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," which section shall be reasonably acceptable to
the Initial Purchasers or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect
to the potential "underwriter" status of any
17
<PAGE> 18
broker-dealer that holds Registrable Notes or Registrable Warrants
acquired for its own account as a result of market-making activities or
other trading activities (a "Participating Broker-Dealer") and that
will be the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes or Exchange Warrants to be received by
such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or
such positions or policies, in the reasonable judgment of the Initial
Purchasers or such other representative, represent the prevailing views
of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Notes for Registrable Notes and /
or Exchange Warrants for Registrable Warrants pursuant to the Exchange
Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the Securities Act in connection
with any resale of such Exchange Notes or Exchange Warrants, (ii)
furnish to each Participating Broker-Dealer who has delivered to the
Company the notice referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary Prospectus, and any amendment or
supplement thereto, as such Participating Broker-Dealer may reasonably
request (the Company hereby consents to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto by any Person subject to the prospectus
delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer
of the Exchange Notes or Exchange Warrants covered by the Prospectus or
any amendment or supplement thereto), (iii) use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective and
to amend and supplement the Prospectus contained therein in order to
permit such Prospectus to be lawfully delivered by all Persons subject
to the prospectus delivery requirements of the Securities Act for such
period of time as such Persons must comply with such requirements under
the Securities Act and applicable rules and regulations in order to
resell the Exchange Notes or the Exchange Warrants; provided, however,
that such period shall not be required to exceed 180 days (or such
longer period if extended pursuant to the last sentence of Section 3
hereof) (the "Applicable Period"), and (iv) include in the transmittal
letter or similar documentation to be executed by an exchange offeree
in order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding Registrable Notes
or Registrable Warrants acquired for its own account as a result of
market-making activities or other trading activities, it will deliver a
prospectus meeting the requirements of the Securities Act in connection
with any resale of Exchange Notes or Exchange Warrants received in
respect of such Registrable Notes or Registrable Warrants pursuant to
the Exchange Offer";
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<PAGE> 19
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Notes or Registrable
Warrants, the broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if reasonably
requested by an Initial Purchaser or such other representative of
Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i) an opinion
of counsel in form and substance reasonably satisfactory to such
Initial Purchaser or such other representative of the Participating
Broker-Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 5(c) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public offering of
debt securities and (iii) upon the effectiveness of the Exchange Offer
Registration Statement, comfort letter(s), in each case, in customary
form if permitted by Statement on Auditing Standards No. 72.
The Company may require each seller of Registrable Notes or Registrable
Warrants as to which any registration is being effected to furnish to the
Company such information regarding such seller as may be required by the staff
of the SEC to be included in a Registration Statement. The Company may exclude
from such registration the Registrable Notes and the Registrable Warrants of any
seller who unreasonably fails to furnish such information within a reasonable
time after receiving such request. The Company shall have no obligation to
register under the Securities Act the Registrable Notes or Registrable Warrants
of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
this Section 3(u) hereof are seeking to sell Exchange Notes or Exchange Warrants
and are required to deliver Prospectuses, each Holder agrees that, upon receipt
of any notice from the Company of the occurrence of any event specified in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Notes and Registrable Warrants
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof or
until it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of
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<PAGE> 20
the Prospectus covering such Registrable Notes, Registrable Warrants, Exchange
Notes, or Exchange Warrants, as the case may be, current at the time of receipt
of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Notes, Registrable Warrants, Exchange Notes or
Exchangeable Warrants , as the case may be, pursuant to a Registration
Statement, the Company shall use its reasonable best efforts to file and have
declared effective (if an amendment) as soon as practicable after the resolution
of the related matters an amendment or supplement to the Registration Statement
and shall extend the period during which such Registration Statement is required
to be maintained effective and the Prospectus usable for resales pursuant to
this Agreement by the number of days in the period from and including the date
of the giving of such notice to and including the date when the Company shall
have made available to the Holders (x) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company shall indemnify and hold harmless the
Initial Purchasers, each Holder, each underwriter who participates in an
offering of the Registrable Notes or Registrable Warrants, each Participating
Broker-Dealer, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto), covering
Registrable Notes, Registrable Warrants, Exchange Notes, or Exchange
Warrants, as applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 4(d) hereof) any such settlement is effected with the prior
written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by such Holder,
such Participating Broker-Dealer, or any underwriter (except to the
extent otherwise expressly provided in Section 4(c) hereof)),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) of this Section 4(a);
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<PAGE> 21
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company by the
Initial Purchasers or such Holder, underwriter or Participating Broker-Dealer
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Each of the Initial Purchasers and each Holder, underwriter or
Participating Broken-Dealer agrees, severally and not jointly, to indemnify and
hold harmless the Company, Equity Office Properties Trust and the trustees and
officers of Equity Office Properties Trust, and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in such Registration
Statement (or any amendment thereto), or any such Prospectus (or any amendment
or supplement thereto); provided, however, that in the case of a Shelf
Registration Statement, no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Notes or Registrable Warrants pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have under this Section 4 to the extent that it is not materially
prejudiced by such failure as a result thereof, and in any event shall not
relieve it from liability which it may have otherwise on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 4(a)
or (b) above, counsel to the indemnified parties shall be selected by such
parties. An indemnifying party may participate at its own expense in the defense
of such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel),
separate from their own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release of each indemnified party from all liability
arising out of such litigation,
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<PAGE> 22
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have validly requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, the Company and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Holders, as incurred; provided, however, that no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any Person that was not guilty of
such fraudulent misrepresentation. As between the Company and the Holders, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the Company,
on the one hand, and the Holders, on the other hand, with respect to the
statements or omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holders, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by or on behalf of the Holders, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Holders agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each director, officer and employee and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such Holder, and each trustee and officer of Equity Office Properties Trust
and each Person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company.
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's
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<PAGE> 23
Registrable Notes or Registrable Warrants on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Notes and / or
Registrable Warrants covered by the Shelf Registration Statement who desire to
do so may sell the Securities covered by such Shelf Registration in an
underwritten offering, subject to the provisions of Section 3(m) hereof. In any
such underwritten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by the Holders of a
majority in aggregate principal amount of the Registrable Notes or a majority of
the outstanding number of the Registrable Warrants included in such offering;
provided, however, that such underwriters and managers must be reasonably
satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes or Registrable Warrants remain outstanding, the Company will
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder; provided, however, that if the Company ceases to be so required
to file such reports, it will, upon the request of any Holder of Registrable
Notes or Registrable Warrants, (a) make publicly available such information as
is necessary to permit sales of its securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales of its securities pursuant to Rule 144A under the
Securities Act, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Notes or Registrable Warrants without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, (ii) Rule 144A under the Securities Act, as such rule may be
amended from time to time, or (iii) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Notes or
Registrable Warrants, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, nor
will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes or the Registrable Warrants in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has
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obtained the written consent of Holders of a majority in aggregate principal
amount of the outstanding Registrable Notes or a majority of the outstanding
number of the Registrable Warrants affected by such amendment, modification,
supplement, waiver or departure; provided that no amendment, modification or
supplement or waiver or consent to the departure with respect to the provisions
of Section 4 hereof shall be effective as against any Holder of Registrable
Notes or Registrable Warrants unless consented to in writing by such Holder of
Registrable Notes or Registrable Warrants. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended, without the consent of any Holder
of Registrable Notes or Registrable Warrants, by written agreement signed by the
Company and the Initial Purchasers, to cure any ambiguity, correct or supplement
any provision of this Agreement that may be inconsistent with any other
provision of this Agreement or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement, (ii) this Agreement may be
amended, modified or supplemented, and waivers and consents to departures from
the provisions hereof may be given, by written agreement signed by the Company
and the Initial Purchasers to the extent that any such amendment, modification,
supplement, waiver or consent is, in their reasonable judgment, necessary or
appropriate to comply with applicable law (including any interpretation of the
Staff of the SEC) or any change therein and (iii) to the extent any provision of
this Agreement relates to an Initial Purchaser, such provision may be amended,
modified or supplemented, and waivers or consents to departures from such
provisions may be given, by written agreement signed by such Initial Purchaser
and the Company.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to each Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other
24
<PAGE> 25
disposition of Registrable Notes or Registrable Warrants in violation of the
terms of the Purchase Agreement, the Indenture, or the Warrant Agreement. If any
transferee of any Holder shall acquire Registrable Notes or Registrable Warrants
in any manner, whether by operation of law or otherwise, such Registrable Notes
or Registrable Warrants shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Notes or Registrable
Warrants, such Person shall be conclusively deemed to have agreed to be bound by
and to perform all of the terms and provisions of this Agreement and such Person
shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder between the Initial Purchasers and the Company, and the Initial
Purchasers shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK
OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable,
25
<PAGE> 26
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(k) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes or
Registrable Warrants is required hereunder, Registrable Notes or Registrable
Warrants held by the Company or its Affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
26
<PAGE> 27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EOP OPERATING LIMITED PARTNERSHIP
By: EQUITY OFFICE PROPERTIES TRUST,
As Managing General Partner
By: /s/ Richard D. Kincaid
------------------------------------
Name: Richard D. Kincaid
Title:Executive Vice President and
Chief Financial Officer
Confirmed and accepted as of
the date first above
written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
For itself and as Representative of the
several Initial Purchasers
By: /s/ Michael Berman
----------------------------------------
Authorized Signatory
27
<PAGE> 1
EXHIBIT 4.8
---------------------------
EOP OPERATING LIMITED PARTNERSHIP
and
STATE STREET BANK AND TRUST COMPANY
As Debt Warrant Agent
----------
Debt Warrant Agreement
Dated as of June 15, 1998
--------------
---------------------------
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF DEBT WARRANT CERTIFICATES
<TABLE>
<S> <C> <C>
SECTION 1.01 Issuance of Debt Warrant Certificates..................................................1
SECTION 1.02 Form of Debt Warrants..................................................................1
SECTION 1.03 Form of Debt Warrants Certificates.....................................................2
SECTION 1.04 Execution and Authentication of Debt Warrant Certificates..............................2
SECTION 1.05 Temporary Debt Warrant Certificates....................................................3
SECTION 1.06 Payment of Taxes.......................................................................3
SECTION 1.07 Definition of Holder, Transferor, and Transferee.......................................4
</TABLE>
ARTICLE II
WARRANT PRICE, DURATION, EXERCISE OF DEBT WARRANTS, AND DEBT
WARRANT SECURITIES
<TABLE>
<S> <C> <C>
SECTION 2.01 Warrant Price..........................................................................4
SECTION 2.02 Duration of Debt Warrants..............................................................4
SECTION 2.03 Exercise of Debt Warrants..............................................................4
SECTION 2.04 Debt Warrant Securities................................................................5
</TABLE>
i
<PAGE> 3
ARTICLE III
REGISTRATION, EXCHANGE, SUBSTITUTION, TRANSFER AND LIMITATIONS ON
TRANSFER OF DEBT WARRANT CERTIFICATES AND
REGISTRATION OF THE
WARRANTS UNDER THE SECURITIES ACT
<TABLE>
<S> <C> <C>
SECTION 3.01 Registration, Exchange and Transfer of Debt Warrant Certificates.......................8
SECTION 3.02 Mutilated, Destroyed, Lost or Stolen Debt Warrant Certificates.........................9
SECTION 3.03 Reserved..............................................................................10
SECTION 3.04 Restrictions and Limitations on Transfers of Debt Warrants............................10
SECTION 3.05 Persons Deemed Holders................................................................13
SECTION 3.06 Cancellation of Debt Warrant Certificates.............................................13
</TABLE>
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF DEBT WARRANT
CERTIFICATES
<TABLE>
<S> <C> <C>
SECTION 4.01 No Rights as Holders of Debt Warrant Securities Conferred by Debt Warrants or
Debt Warrant Certificates.............................................................13
SECTION 4.02 Holder of Debt Warrant Certificate May Enforce Rights.................................13
</TABLE>
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
<TABLE>
<S> <C> <C>
SECTION 5.01 Debt Warrant Agent....................................................................14
SECTION 5.02 Conditions of Debt Warrant Agent's Obligations........................................14
SECTION 5.03 Resignation, Removal and Appointment of Successor.....................................16
</TABLE>
ii
<PAGE> 4
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Modification, Supplementation or Amendment ................ 18
SECTION 6.02 Consolidations and Mergers of the Company and Sales
Leases and Conveyances Permitted Subject to
Certain Conditions ........................................ 19
SECTION 6.03 Rights and Duties of Successor Corporation................. 19
SECTION 6.04 Notices and Demands to the Company and
Debt Warrant Agent ........................................ 19
SECTION 6.05 Governing Law ............................................. 19
SECTION 6.06 Addresses ................................................. 19
SECTION 6.07 Notices to Holders of Debt Warrant Certificates ........... 20
SECTION 6.08 Delivery of Offering Memorandum ........................... 20
SECTION 6.09 Obtaining of Governmental Approvals ....................... 20
SECTION 6.10 Persons Having Rights Under Debt Warrant Agreement ........ 20
ANNEX A -- Transferee Letter of Representation
EXHIBIT A -- Form of Debt Warrant Certificate in Certificated Form
EXHIBIT B -- Form of Global Debt Warrant Certificate
EXHIBIT C -- Form of Exercise Notice
EXHIBIT D -- Form of Debt Warrant Security
ARTICLE I ISSUANCE, EXECUTION AND AUTHENTICATION OF DEBT WARRANT
CERTIFICATES ............................................................. i
ARTICLE IV OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF DEBT WARRANT
CERTIFICATES ............................................................. ii
ARTICLE I. ISSUANCE, EXECUTION AND COUNTERSIGNATURE ...................... I
Section 1.01. Issuance of Debt Warrant Certificates. Upon issuance,
each Debt Warrant Certificate shall evidence one or more
Debt Warrants. Each Debt Warrant
iii
<PAGE> 5
evidenced by a Debt Warrant Certificate shall represent the
right, subject to the provisions contained herein and therein, to
purchase from the Company Debt Warrant Securities, as more fully
described in Article II, in the principal amount of
$1,000..........................................................1
Section 1.02. Form of Debt Warrants. The Debt Warrants shall be issued in fully
registered form, with (i) Debt Warrants sold to "qualified
institutional buyers" (as defined in 1
Rule 144A(a)(1)(i) of the Securities Act) ("QIBs") and transferees, directly or
indirectly, of such Debt Warrants (and beneficial interests
therein) being represented by one or more global Debt Warrant
Certificates deposited with the Debt Warrant Agent as custodian
for, and registered in the name of a nominee of, The Depository
Trust Company ("DTC") and (ii) Debt Warrants sold to
institutional "accredited investors" (as defined in Rule 501
(a)(1),(2),(3), or (7) of the Securities Act) ("AIs") other than
as described in clause (i) above being represented by physical
Debt Warrant Certificates.......................................1
Section 1.03. Form of Debt Warrants Certificates. The Debt Warrant Certificates
(including the Forms of Exercise and Assignment to be set forth
on the reverse thereof) shall be in substantially the form set
forth in Exhibit A hereto with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Agreement, shall be printed, lithographed or
engraved on steel engraved borders or in any other manner
determined by the officer executing such Debt Warrant
Certificates and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which the Debt Warrant Certificates
may be listed or as may, consistently herewith, be determined by
the officer executing such Debt Warrant Certificates, as
evidenced by their execution thereof............................2
Section 1.04. Execution and Authentication of Debt Warrant Certificates. The
Debt Warrant Certificates shall be executed on behalf of the
Company by Equity Office Properties Trust by its Chairman of the
Board, its President or one of its Vice Presidents (whether or
not designated by a number or word or words added before or after
the title "vice president"), manually or by facsimile signature,
under its corporate seal reproduced thereon attested to by its
Secretary or one of its Assistant Secretaries, either manually or
by facsimile signature. Typographical and other minor errors or
defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of the
Debt Warrant Certificate that has been duly executed by the
Company and authenticated by the Debt Warrant
Agent...........................................................2
iv
<PAGE> 6
Section 1.05. Temporary Debt Warrant Certificates. Pending the preparation of
definitive Debt Warrant Certificates, the Company may execute,
and upon the order of the Company the Debt Warrant Agent shall
authenticate and deliver, temporary Debt Warrant Certificates
which are printed, lithographed, typewritten, mimeographed or
otherwise produced substantially of the tenor of the definitive
Debt Warrant Certificates in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and
other variations as the officer executing such Debt Warrant
Certificates may determine, as evidenced by their execution
thereof ........................................................3
Section 1.06. Payment of Taxes. The Company will pay all stamp taxes and other
duties, if any, to which, under the laws of the United States of
America or any state or political subdivision thereof, this
Agreement or the original issuance of the Debt Warrant
Certificates may be subject ....................................4
Section 1.07. Definition of Holder, Transferor and Transferee. The term
"Holder" shall mean the person in whose name at the relevant time
the particular Debt Warrant Certificate shall be registered upon
the books to be maintained by the Debt Warrant Agent for that
purpose pursuant to Section 3.01. The term "Transferor" shall
mean a Holder which, according to the terms and conditions
specified herein, transfers its interest in Debt Warrants. The
term "Transferee" shall mean a person to whom a Transferor
transfers its interest in Debt Warrants. A Transferee, upon a
transfer in accordance with the terms and conditions specified
herein, shall be deemed a Holder upon consummation of the
transfer .......................................................4
ARTICLES II. WARRANT PRICE, DURATION, EXERCISE OF DEBT WARRANTS, AND DEBT
WARRANT SECURITIES .............................................4
Section 2.01. Warrant Price. On the Exercise Date (as defined in Section 2.02),
each Debt Warrant evidenced by a Debt Warrant Certificate shall
entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company Debt Warrant Securities
in the principal amount of $1,000 at the exercise price of 100%
of the principal amount thereof, the "Exercise Price"). ........4
Section 2.02. Duration of Debt Warrants. Any Debt Warrant evidenced by a Debt
Warrant Certificate may be exercised, subject to provisions of
Section 2.03, on December 15, 1999 unless the Company notifies
the Holders in writing at their registered address at least five
Business Days (as hereinafter defined) prior to the December 15,
1999 that, based on an opinion of counsel, it is aware of
material non-public information with respect to the Company, in
v
<PAGE> 7
which case the Company may postpone such date to January 18,
2000, or, in each case, if such day is not a Business Day, the
succeeding Business Day (the "Exercise Date"). "Business Day"
means any day, other than a Saturday or Sunday, on which banking
institutions in New York, New York and Boston, Massachusetts are
open for business. After the close of business on the
Determination Date (as defined in Section 2.04), each Debt
Warrant as to which a Holder has theretofore failed to provide
notice of such Holder's intention to exercise shall become void,
and all rights of the Holder of the Debt Warrant Certificate
evidencing such Debt Warrant under this Agreement or otherwise
shall cease......................................................4
Section 2.03. Exercise of Debt Warrants........................................4
(a) On the Exercise Date, one or more Debt Warrants may be exercised upon (i)
notice by the Holder thereof of such Holder's intention to
exercise its Debt Warrants submitted to the Debt Warrant Agent
and thereafter promptly forwarded by the Debt Warrant Agent to
the Company no later than the Determination Date, (ii) delivery
to the Debt Warrant Agent at its corporate trust office or window
on or prior to the Exercise Date of payment of the Exercise Price
in the form of certified or official bank check payable to the
order of the Company, and (iii) delivery to the Debt Warrant
Agent at its corporate trust office or window on or prior to the
Exercise Date of the related Debt Warrant Certificate(s) and the
purchase form set forth in the Debt Warrant Certificate properly
completed and duly executed, whereupon the Company will, on or
promptly after the Exercise Date, deliver the related Debt
Warrant Securities, in accordance with clause (c) of this Section
2.03; provided however, that Debt Warrants may only be exercised
if such notice of exercise has been delivered to the Debt Warrant
Agent prior to the close of business on the Determination Date.
Notice of a Holder's intention to exercise a Debt Warrant shall
be irrevocable, except that after a postponement of the date of
exercise of the Debt Warrants under the conditions specified in
Section 2.02 such notice shall be null and void. Accordingly,
after such postponement, a Holder must redeliver a notice of
intention to exercise a Debt Warrant no later than the
Determination Date immediately preceding January 18,
2000.............................................................5
The Debt Warrant Agent shall deposit all funds received by it as payment for the
exercise of Debt Warrants to the account of the Company
maintained with it for such purpose on the date on which such
Debt Warrants and such funds are received and shall advise the
Company by telephone or in writing, by facsimile transmission or
otherwise, at the end of each day on which such a payment is
received of the amount so deposited to its account. The Debt
Warrant Agent shall promptly confirm any telephonic advice to the
Company in writing.
vi
<PAGE> 8
Absent written agreement with the Company, the Warrant Agent
shall have no obligation to invest any such funds...............5
(b) Promptly after the Exercise Date, the Debt Warrant Agent shall, in
accordance with the terms and conditions of this Agreement and
the Debt Warrant Certificates, advise the Company and the
Trustee of (i) the number of Debt Warrants as to which notice of
an intention to exercise has been received, (ii) the
instructions of each Holder of the Debt Warrant Certificates
evidencing such Debt Warrants with respect to delivery of the
Debt Warrant Securities to which such Holder is entitled upon
such exercise and (iii) such other information as the Company or
the Trustee shall reasonably
require.........................................................5
(c) On or promptly after the Exercise Date, the Company shall issue and the
Trustee shall authenticate and deliver, pursuant to the
Indenture, in authorized denominations, to or upon the order of
each Holder who has exercised its Debt Warrants, the Debt
Warrant Securities to which such Holder is entitled in fully
registered form, registered in such name or names as may be
directed by such
Holder..........................................................5
(d) The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any
transfer involved in the issue
of.........................................................,....5
the Debt Warrant Securities upon the order of the Holders of
the related Debt Warrant Certificate evidencing exercised Debt
Warrants........................................................6
Section 2.04. Debt Warrant Securities. At the time of issuance, (i) the Company
shall have registered the Debt Warrant Securities issued upon
exercise of the Debt Warrants under the Securities Act of 1933,
as amended (the "Securities Act"), (ii) the Company shall have
taken all necessary steps to issue the Debt Warrant Securities
under the Indenture, the Company shall have used its best efforts
to obtain a rating of the Debt Warrant Securities from Standard &
Poor's Ratings Services and Moody's Investors Service, Inc. Debt
Warrant Securities issued upon exercise of Debt Warrants shall
have identical terms to the Offered Debt Securities except: (i)
the maturity of the Debt Warrant Securities shall be June 15,
2008 (the "Debt Warrant Security Maturity Date"); (ii) interest
will accrue on the Debt Warrant Securities from and including the
Exercise Date and will be paid on such Debt Warrant Securities
commencing on June 15, 2000, (iii) if the Debt Warrant Securities
issued upon exercise of Debt Warrants have not been registered
under the Securities Act on or before the Exchange Date, then the
interest rate per annum on the Debt Warrant Securities shall be
increased by .50% (one half of one percent) until such
unregistered Debt Warrant Securities shall be so registered, and
(iv) if the Company, pursuant to Section 2.02, postpones the date
of the exercise of the Debt Warrants, then the interest rate per
annum on the Debt Warrant Securities shall be increased by the
positive value, if any, of the sum of (x) the value (positive or
negative, expressed in the form of a percentage or in basis
points), if any, of the result from subtracting the December 1999
Credit Spread (as hereinafter defined) from the January 2000
Credit Spread (as hereinafter defined) and (y) the value
(positive or negative, expressed in the form of a percentage or
in basis points), if any, of the result from subtracting the
December 1999 Treasury Rate (as hereinafter defined) from the
January
vii
<PAGE> 9
2000 Treasury Rate (as hereinafter defined) determined by the
Calculation Agent...............................................6
ARTICLE III. REGISTRATION, EXCHANGE, SUBSTITUTION, TRANSFER AND LIMITATIONS
ON TRANSFER OF DEBT WARRANT CERTIFICATES AND REGISTRATION OF THE
WARRANTS UNDER THE SECURITIES ACT..............................9
Section 3.01. Registration, Exchange and Transfer of Debt Warrant Certificates.
The Debt Warrant Agent shall keep, at its corporate trust office,
books in which, subject to such reasonable regulations as it may
prescribe, it shall register the Debt Warrant Certificates and
transfers and exchanges of outstanding Debt Warrant Certificates.
Prior to registration of the Debt Warrants under the Securities
Act, (i) no Holder shall transfer to any single purchaser any
Debt Warrants in a block consisting of fewer than 100 Debt
Warrants and (ii) Debt Warrants will be subject to the other
restrictions on transfer set forth in Section 3.04. Subject to
the foregoing, upon surrender at the place or places set forth in
Debt Warrant Certificate or at the corporate trust office of the
Debt Warrant Agent, located initially at Two International Place,
Financial Services, Corporate Trust Department, Boston,
Massachusetts 02110, or at the corporate trust window of the Debt
Warrant Agent, located initially at 61 Broadway, Concourse Level,
New York, New York 10006, of Debt Warrant Certificates properly
endorsed or accompanied by appropriate instruments of transfer,
with signature guaranteed thereon and accompanied by written
instructions for transfer or exchange, all in form reasonably
satisfactory to the Company and the Debt Warrant Agent, such Debt
Warrant Certificates may be exchanged for other Debt Warrants; it
being understood that Debt Warrant Certificates issued in
exchange for or upon transfer of surrendered Debt Warrant
Certificates shall evidence the same aggregate number of Debt
Warrants as the Debt Warrant Certificates so
surrendered.....................................................9
Section 3.02. Mutilated, Destroyed, Lost or Stolen Debt Warrant Certificates.
If any mutilated Debt Warrant Certificate is surrendered to the
Debt Warrant Agent, the Company shall execute, and an authorized
officer of the Debt Warrant Agent shall manually authenticate and
deliver in exchange therefor, a new Debt Warrant Certificate of
like tenor representing a like number of unexercised Debt
Warrants and bearing a number not contemporaneously
outstanding....................................................10
Section 3.04. Restrictions and Limitations on Transfers of Debt Warrants.
Unless and until the earlier of (i) registration under the
Securities Act in accordance with the Registration Rights
Agreement relating to the Offered Debt Securities and the Debt
Warrants (the "Registration Rights Agreement") and (ii) the
Resale Restriction Termination Date (as hereinafter defined), the
Debt Warrants have
viii
<PAGE> 10
not been and will not be registered under the Securities Act or
any state securities law and therefore will be subject to the
following restrictions on transfer. The Debt Warrant Agent shall
not register the resale or other transfer of Debt Warrants unless
such resale or other transfer is in accordance with such
restrictions, provided that for such purposes it may conclusively
rely on the statement set forth on the Assignment Form and
Certificate of Transfer. ......................................10
Each purchaser of such Debt Warrants, by its acceptance thereof, will be deemed
to have acknowledged, represented and agreed with the Company and
the Initial Purchasers (as defined in the Registration Rights
Agreement) that it will not offer, sell or otherwise transfer
such Debt Warrants prior to the date that is two years from the
later of the date of original issue and the last date on which
the Company or any affiliate of the Company was the owner of such
Debt Warrants (or any predecessor thereto) (the "Resale
Restriction Termination Date") unless such sale: ..............11
Section 3.05. Persons Deemed Holders. The Company and the Debt Warrant Agent
may treat the Holder as the owner thereof for any purpose and as
the person entitled to exercise the rights represented by the
Debt Warrants evidenced thereby, any notice to the contrary
notwithstanding. ..............................................13
Section 3.06. Cancellation of Debt Warrant Certificates. Any Debt Warrant
Certificate surrendered for exchange, transfer or exercise of the
Debt Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Debt Warrant Agent, all Debt Warrant
Certificates surrendered or so delivered to the Debt Warrant
Agent shall be promptly canceled by it and shall not be reissued
and, except as expressly permitted by this Agreement, no Debt
Warrant Certificate shall be issued hereunder in lieu or in
exchange thereof. The Company may at any time deliver to the Debt
Warrant Agent for cancellation any Debt Warrant Certificates
previously issued hereunder which the Company may have acquired
in any manner whatsoever, and all Debt Warrant Certificates so
delivered shall be promptly canceled by the Debt Warrant Agent.
All canceled Debt Warrant Certificates held by the Debt Warrant
Agent shall be disposed of as instructed by the Company, subject
to applicable law. ........................................... 13
ARTICLE IV. OTHER PROVISIONS RELATING TO RIGHTS ...........................14
Section 4.01. No Rights as Holders of Debt Warrant Securities Conferred by Debt
Warrants or Debt Warrant Certificates. No Debt Warrant
Certificate or Debt Warrants evidenced thereby shall entitle the
Holder thereof to any of the rights of a Holder of the Debt
Warrant(s) Securities, including, without limitation, the
ix
<PAGE> 11
right to receive the payment of principal of (or premium, if any)
or interest on the Debt Warrant Securities or to enforce any of
the covenants in the Indenture.................................14
Section 4.02. Holder of Debt Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any
Holder of any Debt Warrant Certificate, without the consent of
the Debt Warrant Agent, the Trustee, the Holder of any Debt
Warrant Securities or the Holder of any other Debt Warrant
Certificate, may, on his own behalf and for his own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce or otherwise
in respect of, such Holder's right to exercise the Debt
Warrant(s) evidenced by such Holder's Debt Warrant Certificate in
the manner provided in such Debt Warrant Certificate and in this
Agreement......................................................14
ARTICLE V. CONCERNING THE DEBT WARRANT AGENT .............................14
Section 5.01. Debt Warrant Agent. The Company hereby appoints State Street Bank
and Trust Company as Debt Warrant Agent of the Company in respect
of the Debt Warrants and the Debt Warrant Certificates upon the
terms and subject to the conditions set forth herein and in the
Debt Warrant Certificate, and State Street Bank and Trust Company
hereby accepts such appointment. The Debt Warrant Agent shall
have the power and authority granted to and conferred upon it in
the Debt Warrant Certificates and in this Agreement and such
further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such power and authority
contained in the Debt Warrant Certificates are subject to and
governed by the terms and provisions hereof....................14
Section 5.02. Conditions of Debt Warrant Agent's Obligations. The Debt Warrant
Agent accepts its obligations herein set forth, upon the terms
and conditions hereof, including the following, to all of which
the Company agrees and to all of which the rights hereunder of
the Holders from time to time of the Debt Warrant Certificates
shall be subject:..............................................14
(a) Compensation and Indemnification. The Company agrees promptly to pay the
Debt Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Debt Warrant
Agent and to reimburse the Debt Warrant Agent for reasonable
out-of-pocket expenses (including reasonable attorney's fees and
expenses) incurred by the Debt Warrant Agent without negligence,
bad faith or wilful misrepresentation on its part in connection
with the services rendered hereunder by the Debt Warrant Agent;
the Company also agrees to indemnify the Debt Warrant Agent for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or wilful
misrepresentation on the part of the Debt Warrant Agent, arising
out of or in connection with its acting as such Debt Warrant
Agent hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance at any time of its powers or
duties hereunder or with respect to the Debt Warrants; and the
obligations of the Company under this
x
<PAGE> 12
subsection (a) shall survive the exercise of the Debt Warrant
Certificates, termination of this Agreement and the resignation
or removal of the Debt Warrant
Agent...........................................................15
(b) Agent for the Company. In acting under this Debt Warrant Agreement and in
connection with the Debt Warrant Certificates, the Debt Warrant
Agent is acting solely as agent of the Company and does not
assume any obligation or relationship of agency or trust for or
with any of the owners or Holders of the Debt Warrant
Certificates....................................................15
(c) Counsel. The Debt Warrant Agent may consult with counsel, which may include
counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon...........................15
(d) Documents. The Debt Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted by
it in reliance upon any Debt Warrant Certificate, notice, opinion
of counsel, direction, consent, certificate, affidavit, statement
or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper
parties.........................................................15
(e) Certain Transactions. The Debt Warrant Agent, any of its officers,
directors and employees, in its or their individual or any
other capacity, may become the owner of, or acquire any interest
in, any Debt Warrant Certificates, with the same rights that it
would have if it were not such Debt Warrant Agent, officer,
director, employee or other agent, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on,
or as...........................................................15
(e) depository, trustee or agent for, any committee or body of Holders of Debt
Warrant Securities or other obligations of the Company as
freely as if it were not such Debt Warrant Agent, officer,
director, employee or other agent. Nothing in this Debt Warrant
Agreement shall be deemed to prevent the Debt Warrant Agent from
acting as Trustee under the Indenture...........................16
(f) No Liability for Interest. The Debt Warrant Agent shall not be under any
liability for interest on any moneys at any time received by it
pursuant to any of the provisions of this Agreement or of the
Debt Warrant Certificates unless otherwise agreed to in writing
by the Company and the Debt Warrant Agent.......................16
(g) No Liability for Invalidity. The Debt Warrant Agent shall not incur any
liability with respect to the validity of this Agreement or any
of the Debt Warrant
Certificates....................................................16
(h) No Responsibility for Representations. The Debt Warrant Agent shall not be
responsible for any of the recitals or representations
contained herein or in the Debt Warrant Certificates (except as to
the Debt Warrant Agent's authentication thereon), all of which
are made solely by the Company..................................16
(i) No Implied Obligations. The Debt Warrant Agent shall be obligated to
perform such duties as are herein and in the Debt Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Debt Warrant
Certificates against the Debt Warrant Agent. The Debt Warrant
Agent shall not be under any obligation to advance its own funds
or to take any action hereunder which may tend to involve it in
any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it.
The Debt Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Debt
Warrant Certificates authenticated by the Debt Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for
the application by the Company of the proceeds of the Debt
Warrant Certificates or any exercise of the Debt Warrants
evidenced thereby. The Debt Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in
the Debt Warrant Certificates or in the Debt Warrant Securities
or in the case of the receipt of any written demand from a Holder
of a Debt Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any
duty or responsibility to initiate or attempt to initiate any
proceeding at law or otherwise or, except as provided in Section
6.04 hereof, to make any demand upon the
Company.........................................................16
Section 5.03. Resignation, Removal and Appointment of Successor...............16
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<PAGE> 13
(a) The Company agrees, for the benefit of the Holders from time to time of the
Debt Warrant Certificates, that there shall at all times be a
Debt Warrant Agent hereunder until all of the Debt Warrants are
no longer
exercisable.....................................................17
(b) The Debt Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become
effective; provided that, without the consent of the Company,
such date shall not be less than three months after the date on
which such notice is given and shall be subject to the
appointment of a successor Debt Warrant Agent and the acceptance
of such appointment by such successor Debt Warrant Agent, as
hereinafter provided. The Debt Warrant Agent may be removed at
any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and
the date on which the Company expects such removal to become
effective. Such resignation or removal shall take effect upon the
appointment by the Company of a successor Debt Warrant Agent
(which shall be a bank or trust company organized and doing
business under the laws of the United States of America, any
State thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers) by an instrument in
writing filed with such successor Debt Warrant Agent and the
acceptance of such appointment by such successor Debt Warrant
Agent pursuant to clause (c) of this Section 5.03. In the event a
successor Debt Warrant Agent has not been appointed and has not
accepted its duties within 90 days of the Debt Warrant Agent's
notice of resignation, the Debt Warrant Agent may apply to any
court of competent jurisdiction for the designation of a
successor Debt Warrant
Agent...........................................................17
(c) In case at any time the Debt Warrant Agent shall resign, or be removed, or
shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or shall file a voluntary petition in bankruptcy or
make an assignment for the benefit of its creditors or consent to
the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of
its property shall be appointed, or if an order of any court
shall be entered approving any petition filed by or against it
under the provisions of any applicable bankruptcy or similar law
or if any public officer shall have taken charge or control of
the Debt Warrant Agent or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, a
successor Debt Warrant Agent qualified as aforesaid shall be
appointed by the Company by an instrument in writing that is
filed with the successor Debt Warrant Agent. Upon the appointment
as aforesaid of a successor Debt Warrant Agent and acceptance by
the latter of such appointment, the then
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<PAGE> 14
current Debt Warrant Agent shall cease to be Debt Warrant Agent
hereunder ......................................................17
(d) Any successor Debt Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company
an instrument accepting such appointment hereunder, and thereupon
such successor Debt Warrant Agent, without any further act, deed
or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if.........................17
originally named as Debt Warrant Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and
such successor Debt Warrant Agent shall be entitled to receive
all moneys, securities and other property on deposit with or held
by such predecessor, as Debt Warrant Agent hereunder. ..........18
(e) Any corporation into which the Debt Warrant Agent hereunder may be merged or
converted or any corporation with which the Debt Warrant Agent
may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Debt Warrant
Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Debt
Warrant Agent, provided that it shall be qualified as aforesaid,
shall be the successor Debt Warrant Agent under this Agreement
without the execution or filing of any paper or any further act
on the part of any of the parties hereto. ......................18
(f) The Company may designate agencies for the surrender for exercise of Debt
Warrant Certificates at such place or places as the Company may
determine, and the Company shall keep the Debt Warrant Agent
advised of the names and locations of such agencies, if any are
so designated. The Debt Warrant Agent shall arrange directly with
such agencies for the delivery of Debt Warrant Securities upon
exercise of Debt Warrant Certificates surrendered for exercise at
such agencies. The Debt Warrant Agent shall be in no way
responsible or accountable for the action or failure to act of
any agencies designated pursuant to this Section 5.03(f)........18
ARTICLE VI. MISCELLANEOUS ....................................................18
Section 6.01. Modification Supplementation or Amendment.......................18
(a) This Agreement may be modified, supplemented or amended by the parties
hereto, without the consent of the Holder of any Debt Warrant
Certificate, for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective
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<PAGE> 15
provision contained herein or in such Debt Warrant Certificate,
or making such provisions in regard to matters or questions
arising under this Agreement as the Company may deem necessary or
desirable; provided that such action shall not adversely affect
the interests of the Holders of the Debt Warrant Certificates in
any material respect. The Debt Warrant Agent may, but shall not
be obligated to, enter into any amendment to this Agreement which
affects the Debt Warrant Agent's own rights, duties or immunities
under this Agreement or otherwise .............................18
(b) The Company and the Debt Warrant Agent may modify or amend this Agreement
and the Debt Warrant Certificates, with the consent of the
Holders of not fewer than a ...................................18
majority in number of the then outstanding unexercised Debt Warrants affected by
such modification or amendment, for any purpose; provided,
however, that no modification or amendment of any of the
provisions of Article II and no modification or amendment that
reduces the number of outstanding Debt Warrants the consent of
the Holders of which is required for modification or amendment of
this Agreement or the Debt Warrant Certificates may be made
without the consent of each Holder affected thereby ...........19
Section 6.02. Consolidations and Mergers of the Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions. To the
extent permitted in the Indenture, the Company may consolidate
with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into, any other corporation or other
entity. .......................................................19
Section 6.03. Rights and Duties of Successor Corporation. In case of any such
consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation or entity, such
successor corporation or entity shall succeed to and be
substituted for the Company, with the same effect as if it had
been named herein, and the Company, except in the event of a
lease, shall be relieved of any further obligation under this
Agreement and the Debt Warrants. Such successor or assuming
corporation or entity shall expressly assume, by an amendment to
this Agreement, executed and delivered to the Debt Warrant Agent,
in form satisfactory to such Debt Warrant Agent, the due and
punctual payment of any and all amounts payable by the Company
pursuant to this Agreement and the performance of every covenant
of this Agreement on the part of the Company to be performed or
observed. Such successor corporation or entity thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Debt Warrant
Securities issuable pursuant to the terms hereof. All the Debt
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<PAGE> 16
Warrant Securities so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Debt Warrant
Securities theretofore or thereafter issued in accordance with
the terms of this Agreement and the Indenture..................19
Section 6.04. Notices and Demands to the Company and Debt Warrant Agent. If the
Debt Warrant Agent shall receive any notice or demand addressed
to the Company by the Holder of a Debt Warrant Certificate
pursuant to the provisions of the Debt Warrant Certificates, the
Debt Warrant Agent shall promptly forward such notice or demand
to the Company.................................................19
Section 6.05. Governing Law. This Agreement and each Debt Warrant Certificate
issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.........................19
Section 6.06. Addresses. Any communications from the Company to the Debt
Warrant Agent with respect to this Agreement shall be addressed
to the STATE STREET BANK AND TRUST COMPANY, Two International
Place, Financial Services, Corporate Trust Apartment, Boston,
Massachusetts 02110 (facsimile: (617) 664-5371) (telephone: (617)
664-5371), Attention: Don Smith, and any communications from the
Debt Warrant Agent, to the Company with respect to this Agreement
shall be addressed to EOP OPERATING LIMITED PARTNERSHIP, Two
North Riverside Plaza, Suite 2200, Chicago, Illinois 60606
(facsimile: (312) 559-5008) (telephone: (312) 466-3300),
Attention: Stanley M. Stevens, Chief Legal Counsel (or such other
address as shall be specified in writing by the Debt Warrant
Agent or by the Company).......................................20
Section 6.07. Notices to Holders of Debt Warrant Certificates................20
Any notice to Holders of Debt Warrant Certificates which by any provisions of
this Agreement is required or permitted to be given shall be
delivered by first class mail postage prepaid at such Holder's
address as it appears on the books of the Debt Warrant
Agent..........................................................20
Section 6.08. Delivery of Offering Memorandum. The Company will furnish to the
Debt Warrant Agent sufficient copies of a prospectus,
appropriately supplemented, relating to the Debt Warrant
Securities (the "Offering Memorandum"), and the Debt Warrant
Agent agrees that, upon the exercise of any Debt Warrant
Certificate, the Debt Warrant Agent will deliver to the person
designated to receive Debt Warrant Securities, prior to or
concurrently with the delivery of such Securities, the Offering
Memorandum.....................................................20
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<PAGE> 17
Section 6.09. Obtaining of Governmental Approvals. The Company will from time
to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of
governmental agencies and authorities and securities acts filings
under United States federal and state laws (including, without
limitation, the maintenance of the effectiveness of a
registration statement in respect of the Debt Warrant Securities
under the Securities Act), which may be or become required in
connection with the Registration Rights Agreement, the exercise
of the Debt Warrant Certificates or the original issuance and
delivery of the Debt Warrant Securities........................20
Section 6.10. Persons Having Rights Under Debt Warrant Agreement. Nothing in
this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall
be construed, to confer upon, or give to, any person or
corporation other than the Company, the Debt Warrant Agent and
the Holders of the Debt Warrant Certificates any right, remedy or
claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof; and all
covenants, conditions, stipulations, promises and agreements in
this Agreement shall be for the sole and exclusive benefit of the
Company and the Debt Warrant Agent and their successors and of
the Holders of the Debt Warrant Certificates...................20
Section 6.11. Headings. The Article and Section headings herein and the Table
of Contents are for convenience of reference only and shall not
affect the construction hereof.................................21
Section 6.12. Counterparts. This Agreement may be execute in any number of
counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one
and the same instrument........................................21
Section 6.13. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate
trust office of the Debt Warrant Agent for inspection by the
Holder of any Debt Warrant Certificate.........................21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, and their respective corporate seal to be hereunto
affixed and attested, all as of the day and year first above
written........................................................22
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<PAGE> 18
THIS AGREEMENT, dated as of June 15, 1998, between EOP OPERATING
LIMITED PARTNERSHIP, a Delaware limited partnership (the "Company"),and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as Debt Warrant
Agent (the "Debt Warrant Agent").
WHEREAS, the Company has entered into an Indenture, dated as of
September 2, 1997, as supplemented by a Supplemental Indenture, dated as of
February 9, 1998 (the "Indenture"), with State Street Bank and Trust Company, as
trustee (such trustee, and any successors to such trustee, herein called the
"Trustee"), providing for the issuance from time to time of its unsecured and
unsubordinated notes or other evidences of senior indebtedness, to be issued in
one or more series as provided in the Indenture;
WHEREAS, the Company proposes to sell 6.763% Notes due 2007 (the
"Offered Debt Securities") and warrants (the "Debt Warrants") to purchase 6.763%
Notes due 2008 of the Company (the "Debt Warrant Securities") represented by
warrant certificates (such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein referred to as the "Debt Warrant
Certificates"), in each case pursuant to the Offering Memorandum dated June 10,
1998 (the "Offering Memorandum"); and
WHEREAS, the Company desires the Debt Warrant Agent to act on
behalf of the Company, and the Debt Warrant Agent is willing to so act in
accordance with the terms hereof, in connection with the issuance, exchange,
exercise and replacement of the Debt Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of the Debt
Warrant Certificates and the terms and conditions on which they may be issued,
exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF DEBT WARRANT CERTIFICATES
Section 1.01. Issuance of Debt Warrant Certificates. Upon issuance,
each Debt Warrant Certificate shall evidence one or more Debt Warrants. Each
Debt Warrant evidenced by a Debt Warrant Certificate shall represent the right,
subject to the provisions contained herein and therein, to purchase from the
Company Debt Warrant Securities, as more fully described in Article II, in the
principal amount of $1,000.
Section 1.02 Form of Debt Warrants. The Debt Warrants shall be issued
in fully registered form, with (i) Debt Warrants sold to "qualified
institutional buyers" (as defined in Rule 144A (a) (1) (i) of the Securities
Act) ("QIBs") and transferees, directly or indirectly, of
<PAGE> 19
such Debt Warrants (and beneficial interests therein) being represented by one
or more global Debt Warrant Certificates deposited with the Debt Warrant Agent
as custodian for, and registered in the name of a nominee of, The Depository
Trust Company ("DTC") and (ii) Debt Warrants sold to institutional "accredited
investors" (as defined in Rule 501 (a) (1), (2), (3), or (7) of the Securities
Act) ("AIs") other than as described in clause (i) above being represented by
physical Debt Warrant Certificates.
Section 1.03 Form of Debt Warrants Certificates The Debt Warrant
Certificates (including the Forms of Exercise and Assignment to be set forth on
the reverse thereof) shall be in substantially the form set forth in Exhibit A
hereto with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, shall be printed,
lithographed or engraved on steel engraved borders or in any other manner
determined by the officer executing such Debt Warrant Certificates and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any securities exchange on which the Debt Warrant Certificates may be listed or
as may, consistently herewith, be determined by the officer executing such Debt
Warrant Certificates, as evidenced by their execution thereof.
Section 1.04 Execution and Authentication of Debt Warrant Certificates.
The Debt Warrant Certificates shall be executed on behalf of the Company by
Equity Office Properties Trust by its Chairman of the Board, its President or
one of its Vice Presidents (whether or not designated by a number or word or
words added before or after the title "vice president"), manually or by
facsimile signature, under its corporate seal reproduced thereon attested to by
its Secretary or one of its Assistant Secretaries, either manually or by
facsimile signature. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of the Debt Warrant Certificate that has been duly executed by
the Company and authenticated by the Debt Warrant Agent.
Debt Warrant Certificates evidencing the right to purchase an
aggregate principal amount not exceeding $300 million of Debt Warrant Securities
(except as provided in Sections 1.04, 2.03(c), 3.01 and 3.02) may be executed by
the Company and delivered to the Debt Warrant Agent upon the execution of this
Debt Warrant Agreement or from time to time thereafter. The Debt Warrant Agent
shall, upon receipt of Debt Warrant Certificates duly executed on behalf of the
Company, together with a Company request for the authentication and delivery of
such certificates, authenticate Debt Warrant Certificates evidencing Debt
Warrants representing the right to purchase up to and including $300 million
aggregate principal amount of Debt Warrant Securities and shall deliver such
Debt Warrant Certificates to or upon the order of the Company. Subsequent to
such original issuance of the Debt Warrant Certificates, the Debt Warrant Agent
shall authenticate a Debt Warrant Certificate only if the Debt Warrant
Certificate is issued in exchange or substitution for one or more previously
authenticated Debt Warrant Certificates.
2
<PAGE> 20
Each Debt Warrant Certificate shall be dated the date of its
authentication by the Debt Warrant Agent.
No Debt Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Debt Warrant
evidenced thereby shall be exercisable, until such Debt Warrant Certificate has
been authenticated by the manual signature of a duly authorized representative
of the Debt Warrant Agent. Such signature by the Debt Warrant Agent upon any
Debt Warrant Certificate executed by the Company shall be conclusive evidence,
and the only evidence, that the Debt Warrant Certificate so authenticated has
been duly issued hereunder.
In case any officer of the Company who shall have signed the Debt
Warrant Certificate, either manually or by facsimile signature, shall cease to
be such officer before the Debt Warrant Certificate so signed shall have been
authenticated and delivered by the Debt Warrant Agent to the Company or
delivered by the Company, such Debt Warrant Certificate nevertheless may be
authenticated and delivered as though the person who signed such Debt Warrant
Certificate had not ceased to be such officer of the Company.
Section 1.05 Temporary Debt Warrant Certificates. Pending the
preparation of definitive Debt Warrant Certificates, the Company may execute,
and upon the order of the Company the Debt Warrant Agent shall authenticate and
deliver, temporary Debt Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Debt Warrant Certificates in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officer executing such Debt Warrant Certificates may determine, as
evidenced by their execution thereof.
If temporary Debt Warrant Certificates are issued, the Company
will cause definitive Debt Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Debt Warrant
Certificates, the temporary Debt Warrant Certificates shall be exchangeable for
definitive Debt Warrant Certificates upon surrender of the temporary Debt
Warrant Certificates at the corporate trust office of the Debt Warrant Agent,
located initially at Two International Place, Financial Services, Corporate
Trust Department, Boston, Massachusetts 02110, or at the corporate trust window
of the Debt Warrant Agent, located initially maintained at 61 Broadway,
Concourse Level, New York, New York 10006, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Warrant
Certificates, the Company shall execute, and the Debt Warrant Agent shall
authenticate and deliver, in exchange therefor definitive Debt Warrant
Certificates representing the same aggregate number of Debt Warrants represented
thereby. Until so exchanged, the temporary Debt Warrant Certificates shall in
all respects be entitled to the same benefits under this Agreement as definitive
Debt Warrant Certificates.
3
<PAGE> 21
Section 1.06 Payment of Taxes. The Company will pay all stamp taxes and
other duties, if any, to which, under the laws of the United States of America
or any state or political subdivision thereof, this Agreement or the original
issuance of the Debt Warrant Certificates may be subject.
Section 1.07 Definition of Holder, Transferor, and Transferee. The term
"Holder" shall mean the person in whose name at the relevant time the particular
Debt Warrant Certificate shall be registered upon the books to be maintained by
the Debt Warrant Agent for that purpose pursuant to Section 3.01. The term
"Transferor" shall mean a Holder which, according to the terms and conditions
specified herein, transfers its interest in Debt Warrants. The term "Transferee"
shall mean a person to whom a Transferor transfers its interest in Debt
Warrants. A Transferee, upon a transfer in accordance with the terms and
conditions specified herein, shall be deemed a Holder upon consummation of the
transfer.
ARTICLE II.
WARRANT PRICE, DURATION, EXERCISE OF DEBT WARRANTS, AND DEBT
WARRANT SECURITIES
Section 2.01. Warrant Price. On the Exercise Date (as defined in
Section 2.02), each Debt Warrant evidenced by a Debt Warrant Certificate shall
entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase from the Company Debt Warrant Securities in the principal amount of
$1,000 at the exercise price of 100 % of the principal amount thereof, the
"Exercise Price").
Section 2.02. Duration of Debt Warrants. Any Debt Warrant evidenced by
a Debt Warrant Certificate may be exercised, subject to provisions of Section
2.03, on December 15, 1999 unless the Company notifies the Holders in writing at
their registered address at least five Business Days (as hereinafter defined)
prior to the December 15, 1999 that, based on an opinion of counsel, it is aware
of material non-public information with respect to the Company, in which case
the Company may postpone such date to January 18, 2000, or, in each case, if
such day is not a Business Day, the succeeding Business Day (the "Exercise
Date"). "Business Day" means any day, other than a Saturday or Sunday, on which
banking institutions in New York, New York and Boston, Massachusetts are open
for business. After the close of business on the Determination Date (as defined
in Section 2.04), each Debt Warrant as to which a Holder has theretofore failed
to provide notice of such Holder's intention to exercise shall become void, and
all rights of the Holder of the Debt Warrant Certificate evidencing such Debt
Warrant under this Agreement or otherwise shall cease.
Section 2.03. Exercise of Debt Warrants.
4
<PAGE> 22
(a) On the Exercise Date, one or more Debt Warrants may be
exercised upon (i) notice by the Holder thereof of such Holder's intention to
exercise its Debt Warrants submitted to the Debt Warrant Agent and thereafter
promptly forwarded by the Debt Warrant Agent to the Company no later than the
Determination Date, (ii) delivery to the Debt Warrant Agent at its corporate
trust office or window on or prior to the Exercise Date of payment of the
Exercise Price in the form of certified or official bank check payable to the
order of the Company, and (iii) delivery to the Debt Warrant Agent at its
corporate trust office or window on or prior to the Exercise Date of the related
Debt Warrant Certificate(s) and the purchase form set forth in the Debt Warrant
Certificate properly completed and duly executed, whereupon the Company will, on
or promptly after the Exercise Date, deliver the related Debt Warrant
Securities, in accordance with clause (c) of this Section 2.03; provided
however, that Debt Warrants may only be exercised if such notice of exercise has
been delivered to the Debt Warrant Agent prior to the close of business on the
Determination Date. Notice of a Holder's intention to exercise a Debt Warrant
shall be irrevocable, except that after a postponement of the date of exercise
of the Debt Warrants under the conditions specified in Section 2.02 such notice
shall be null and void. Accordingly, after such postponement, a Holder must
redeliver a notice of intention to exercise a Debt Warrant no later than the
Determination Date immediately preceding January 18, 2000.
The Debt Warrant Agent shall deposit all funds received by it as
payment for the exercise of Debt Warrants to the account of the Company
maintained with it for such purpose on the date on which such Debt Warrants and
such funds are received and shall advise the Company by telephone or in writing,
by facsimile transmission or otherwise, at the end of each day on which such a
payment is received of the amount so deposited to its account. The Debt Warrant
Agent shall promptly confirm any telephonic advice to the Company in writing.
Absent written agreement with the Company, the Warrant Agent shall have no
obligation to invest any such funds.
(b) Promptly after the Exercise Date, the Debt Warrant Agent
shall, in accordance with the terms and conditions of this Agreement and the
Debt Warrant Certificates, advise the Company and the Trustee of (i) the number
of Debt Warrants as to which notice of an intention to exercise has been
received, (ii) the instructions of each Holder of the Debt Warrant Certificates
evidencing such Debt Warrants with respect to delivery of the Debt Warrant
Securities to which such Holder is entitled upon such exercise and (iii) such
other information as the Company or the Trustee shall reasonably require.
(c) On or promptly after the Exercise Date, the Company shall
issue and the Trustee shall authenticate and deliver, pursuant to the Indenture,
in authorized denominations, to or upon the order of each Holder who has
exercised its Debt Warrants, the Debt Warrant Securities to which such Holder is
entitled in fully registered form, registered in such name or names as may be
directed by such Holder.
(d) The Company shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with any
transfer involved in the issue of
5
<PAGE> 23
the Debt Warrant Securities upon the order of the Holders of the related Debt
Warrant Certificate evidencing exercised Debt Warrants.
Section 2.04 Debt Warrant Securities. At the time of issuance, (i) the
Company shall have registered the Debt Warrant Securities issued upon exercise
of the Debt Warrants under the Securities Act of 1933, as amended (the
"Securities Act"), (ii) the Company shall have taken all necessary steps to
issue the Debt Warrant Securities under the Indenture, the Company shall have
used its best efforts to obtain a rating of the Debt Warrant Securities from
Standard & Poor's Ratings Services and Moody's Investors Service, Inc. Debt
Warrant Securities issued upon exercise of Debt Warrants shall have identical
terms to the Offered Debt Securities except: (i) the maturity of the Debt
Warrant Securities shall be June 15, 2008 (the "Debt Warrant Security Maturity
Date"); (ii) interest will accrue on the Debt Warrant Securities from and
including the Exercise Date and will be paid on such Debt Warrant Securities
commencing on June 15, 2000, (iii) if the Debt Warrant Securities issued upon
exercise of Debt Warrants have not been registered under the Securities Act on
or before the Exchange Date, then the interest rate per annum on the Debt
Warrant Securities shall be increased by .50% (one half of one percent) until
such unregistered Debt Warrant Securities shall be so registered, and (iv) if
the Company, pursuant to Section 2.02, postpones the date of the exercise of the
Debt Warrants, then the interest rate per annum on the Debt Warrant Securities
shall be increased by the positive value, if any, of the sum of (x) the value
(positive or negative, expressed in the form of a percentage or in basis
points), if any, of the result from subtracting the December 1999 Credit Spread
(as hereinafter defined) from the January 2000 Credit Spread (as hereinafter
defined) and (y) the value (positive or negative, expressed in the form of a
percentage or in basis points), if any, of the result from subtracting the
December 1999 Treasury Rate (as hereinafter defined) from the January 2000
Treasury Rate (as hereinafter defined) determined by the Calculation Agent.
If for any reason the Company elects not to, or fails to, issue
and deliver the Debt Warrant Securities purchasable upon exercise of the Debt
Warrants on the Exercise Date, then the Company shall promptly pay to the
Holders who have given notice of their intention to exercise their Debt Warrants
an amount equal to the Debt Warrant Make-Whole Amount (as hereinafter defined),
as calculated by the Calculation Agent (as hereinafter defined) on the third
Business Day prior to December 15, 1999.
As used herein:
"Calculation Agent" means initially Merrill Lynch, Pierce, Fenner
& Smith Incorporated or an affiliate thereof.
"Comparable Treasury Issues" means the United States Treasury
security or securities selected by the Calculation Agent as having an actual or
interpolated maturity or maturities comparable to the stated term to maturity of
the Debt Warrant Securities.
"Comparable Treasury Price" means, with respect to December 15,
1999 or January 18, 2000, as applicable, (a) the offer-side prices for the
Comparable Treasury Issues
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<PAGE> 24
(expressed in each case as a percentage of its principal amounts) on the third
Business Day prior to such date, as set forth on Telerate Page 500 (as
hereinafter defined), or (b) if Telerate Page 500 is not displayed or does not
contain such offer-side prices on the third Business Day prior to such date, (i)
the average of three Reference Treasury Dealer Quotations for December 15, 1999
or January 18, 2000, as applicable, after excluding the highest and lowest of
five Reference Treasury Dealer Quotations obtained on the third Business Day
prior to such date, or (ii) if the Calculation Agent obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such Reference
Treasury Dealer Quotations obtained on the third Business Day prior to such
date. "Telerate Page 500" means the display designated as "Telerate Page 500" on
Dow Jones Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer-side prices
specified in (a) above as may replace Dow Jones Markets Limited.
"December 1999 Credit Spread" will be the average (arithmetic
mean) of the bid indications, excluding the highest and the lowest bids,
expressed as a spread (in the form of a percentage or in basis points) above the
December 1999 Treasury Rate, obtained by the Calculation Agent on the date three
Business Days prior to December 15, 1999, from the bids quoted by five Reference
Corporate Dealers in accordance with customary financial practice in the pricing
of a new issue of publicly registered, senior unsecured indebtedness of the
Company for the full aggregate principal amount of the Debt Warrant Securities
purchasable upon the exercise of all Debt Warrants, assuming the Debt Warrant
Securities have (i) an issue price equal to 100%, (ii) an issue date equal to
December 15, 1999, with settlement on such date without accrued interest, (iii)
a maturity date equal to the Debt Warrant Security Maturity Date, (iv) interest
initially payable to Holders thereof commencing June 15, 2000 and (v) a stated
annual interest rate, payable semiannually on each June 15 and December 15,
equal to the December 1999 Treasury Rate plus the spread bid by the applicable
Reference Corporate Dealer. If fewer than five Reference Corporate Dealers bid
as described above, then the December 1999 Credit Spread shall be the average
(arithmetic mean) of all bid indications obtained.
"December 1999 Treasury Rate" means, with respect to December 15,
1999, the rate per annum equal to the semiannual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues, assuming a price for the Comparable Treasury Issues (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
December 15, 1999.
"Debt Warrant Make-Whole Amount" means the present value, as of
December 15, 1999, of the Remaining Scheduled Payments (as hereinafter defined)
discounted to December 15, 1999, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Warrant Reinvestment Rate.
"Determination Date" means three Business Days prior to the
Exercise Date.
"January 2000 Credit Spread" will be the average (arithmetic mean)
of the bid indications, excluding the highest and the lowest bids, expressed as
a spread (in the form of a
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<PAGE> 25
percentage or in basis points) above the January 2000 Treasury Rate, obtained by
the Calculation Agent on the date three Business Days prior to January 18, 2000,
from the bids quoted by five Reference Corporate Dealers in accordance with
customary financial practice in the pricing of a new issue of publicly
registered, senior unsecured indebtedness of the Company for the full aggregate
principal amount of the Debt Warrant Securities purchasable upon the exercise of
all Debt Warrants, assuming that the Debt Warrant Securities have (i) an issue
price equal to 100%, (ii) an issue date equal to January 18, 2000, with
settlement on such date without accrued interest, (iii) a maturity date equal to
the Debt Warrant Security Maturity Date, (iv) interest initially payable to
Holders thereof commencing June 15, 2000, and (v) a stated annual interest rate,
payable semiannually on each June 15 and December 15, equal to the January 2000
Treasury Rate plus the spread bid by the applicable Reference Corporate Dealer.
If fewer than five Reference Corporate Dealers bid as described above, then the
January 2000 Credit Spread shall be the average (arithmetic mean) of all bid
indications obtained.
"January 2000 Treasury Rate" means, with respect to January 18,
2000, the rate per annum equal to the semiannual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues, assuming a price for the Comparable Treasury Issues (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
January 18, 2000.
"Reference Corporate Dealers" means leading dealers of publicly
traded debt securities of the Company in The City of New York (which may include
the Calculation Agent or one of its affiliates) selected by the Calculation
Agent.
"Reference Treasury Dealer" means each of Credit Suisse First
Boston Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley and Co. Incorporated and Salomon Brothers Inc (or
their respective affiliates which are primary U.S. Government securities
dealers) and their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"), the
Calculation Agent shall substitute thereof another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and December 15, 1999 or January 18, 2000, as
applicable, the offer-side prices for the Comparable Treasury Issues (expressed
in each case as a percentage of its principal amount) quoted to the Calculation
Agent by such Reference Treasury Dealer by 3:30 PM, New York City time, on the
third Business Day prior to such date.
"Remaining Scheduled Payments" means, with respect to the Debt
Warrant Securities, all scheduled payments of the interest thereon, calculated
at the interest rate of the Debt Warrant Securities only, that would accrue from
December 15, 1999 and would be due thereafter to and including the Debt Warrant
Security Maturity Date.
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<PAGE> 26
"Warrant Reinvestment Rate" means the per annum rate equal to the
December 1999 Treasury Rate plus the December 1999 Credit Spread. The Warrant
Reinvestment Rate announced by the Calculation Agent, absent manifest error,
shall be binding and conclusive upon the Holders of the Debt Warrants, the
Company and the Debt Warrant Agent.
ARTICLE III.
REGISTRATION, EXCHANGE, SUBSTITUTION, TRANSFER AND LIMITATIONS ON
TRANSFER OF DEBT WARRANT CERTIFICATES AND REGISTRATION OF THE
WARRANTS UNDER THE SECURITIES ACT
Section 3.01. Registration, Exchange and Transfer of Debt Warrant
Certificates The Debt Warrant Agent shall keep, at its corporate trust office,
books in which, subject to such reasonable regulations as it may prescribe, it
shall register the Debt Warrant Certificates and transfers and exchanges of
outstanding Debt Warrant Certificates. Prior to registration of the Debt
Warrants under the Securities Act, (i) no Holder shall transfer to any single
purchaser any Debt Warrants in a block consisting of fewer than 100 Debt
Warrants and (ii) Debt Warrants will be subject to the other restrictions on
transfer set forth in Section 3.04. Subject to the foregoing, upon surrender at
the place or places set forth in Debt Warrant Certificate or at the corporate
trust office of the Debt Warrant Agent, located initially at Two International
Place, Financial Services, Corporate Trust Department, Boston, Massachusetts
02110, or at the corporate trust window of the Debt Warrant Agent, located
initially at 61 Broadway, Concourse Level, New York, New York 10006, of Debt
Warrant Certificates properly endorsed or accompanied by appropriate instruments
of transfer, with signature guaranteed thereon and accompanied by written
instructions for transfer or exchange, all in form reasonably satisfactory to
the Company and the Debt Warrant Agent, such Debt Warrant Certificates may be
exchanged for other Debt Warrants; it being understood that Debt Warrant
Certificates issued in exchange for or upon transfer of surrendered Debt Warrant
Certificates shall evidence the same aggregate number of Debt Warrants as the
Debt Warrant Certificates so surrendered.
No service charge shall be made for any exchange or transfer of
Debt Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or governmental charge that may be
imposed in connection with any such exchange or transfer. Whenever any Debt
Warrant Certificates are so surrendered for exchange or transfer, the Company
shall execute, and an authorized officer of the Debt Warrant Agent shall
manually authenticate and deliver to the person or persons entitled thereto, a
Debt Warrant Certificate or Debt Warrant Certificates as so requested. The Debt
Warrant Agent shall not be required to effect any exchange or transfer which
would result in the issuance of a Debt Warrant Certificate evidencing a fraction
of a Debt Warrant or a number of full Debt Warrants and a fraction of a Debt
Warrant. All Debt Warrant Certificates issued upon any exchange or transfer of
Debt Warrant Certificates shall evidence the same obligations, and be entitled
to the same benefits under this Agreement, as the Debt Warrant Certificate
surrendered for such exchange or transfer.
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<PAGE> 27
Section 3.02. Mutilated, Destroyed, Lost or Stolen Debt Warrant
Certificates. If any mutilated Debt Warrant Certificate is surrendered to the
Debt Warrant Agent, the Company shall execute, and an authorized officer of the
Debt Warrant Agent shall manually authenticate and deliver in exchange therefor,
a new Debt Warrant Certificate of like tenor representing a like number of
unexercised Debt Warrants and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Debt Warrant
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Debt Warrant Certificate and of the ownership thereof, (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, and (iii) funds sufficient to cover any cost or expense
to the Company (including any fees charged by the Debt Warrant Agent) relating
to the issuance of a new Debt Warrant Certificate, then, in the absence of
notice to the Company or the Debt Warrant Agent that such Debt Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and upon its request an authorized officer of the Debt Warrant Agent
shall manually authenticate and deliver, in lieu of any such destroyed, lost or
stolen Warrant Certificate, a new Debt Warrant Certificate of like tenor
representing a like number of unexercised Debt Warrants and bearing a number not
contemporaneously outstanding.
In case the Debt Warrants evidenced by any such mutilated,
destroyed, lost or stolen Debt Warrant Certificate have been exercised, the
Company in its discretion may, instead of issuing a new Debt Warrant
Certificate, treat the same as if it had received written irrevocable notice of
exercise in good form in respect thereof, as provided herein.
Every new Debt Warrant Certificate issued pursuant to this Section
3.01 in lieu of any mutilated, destroyed, lost or stolen Debt Warrant
Certificate shall constitute an original additional contractual obligation of
the Company, whether or not the mutilated, destroyed, lost or stolen Debt
Warrant Certificate shall be at any time enforceable by anyone, and shall be
entitled to all of the benefits of this Agreement equally and proportionately
with any and all other Debt Warrant Certificates duly issued hereunder. The
provisions of this Section 3.01 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Warrant Certificates.
Section 3.03 Reserved.
Section 3.04. Restrictions and Limitations on Transfers of Debt
Warrants. Unless and until the earlier of (i) registration under the Securities
Act in accordance with the Registration Rights Agreement relating to the Offered
Debt Securities and the Debt Warrants (the "Registration Rights Agreement") and
(ii) the Resale Restriction Termination Date (as hereinafter defined), the Debt
Warrants have not been and will not be registered under the Securities Act or
any state securities law and therefore will be subject to the following
restrictions on transfer. The Debt Warrant Agent shall not register the resale
or other transfer of Debt Warrants unless such resale or other transfer is in
accordance with such restrictions, provided that for such purposes it may
conclusively rely on the statement set forth on the Assignment Form and
Certificate of Transfer.
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<PAGE> 28
Each purchaser of such Debt Warrants, by its acceptance thereof, will
be deemed to have acknowledged, represented and agreed with the Company and the
Initial Purchasers (as defined in the Registration Rights Agreement) that it
will not offer, sell or otherwise transfer such Debt Warrants prior to the date
that is two years from the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such Debt
Warrants (or any predecessor thereto) (the "Resale Restriction Termination
Date") unless such sale:
(1) to the Company or any subsidiary thereof;
(2) pursuant to a registration statement that has been
declared effective under the Securities Act;
(3) for so long as the Debt Warrants are eligible for resale
under Rule 144A, to a person it reasonably believes is a
QIB that purchases for its own account or for the
account of a QIB to whom notice is given that the
transfer is being made in reliance upon Rule 144A;
(4) to an institutional "accredited investor" within the
meaning of subparagraph (a) (1), (2), (3) or (7) of Rule
501 under the Securities Act that is acquiring the Debt
Warrants for its own account, or for the account of such
an institutional "accredited investor," or as fiduciary
for the account of one or more trusts, each of which is
an "accredited investor" within the meaning of
subparagraph (a) (7) of Rule 501 under the Securities
Act, for investment purposes and not with a view to, or
for offer or sale in connection with, any distribution
in violation of the Securities Act; or
(5) pursuant to any other available exemption from the
registration requirements of the Securities Act;
subject in each of the foregoing cases to any requirement of law
that the disposition of its property or the property of such
investor account or accounts be at all times within its or their
control and to compliance with any applicable state securities
laws; it being understood that prior to any offer, sale, or other
transfer of Debt Warrants in certificated form prior to the Resale
Restriction Termination Date (i) pursuant to clause (4) above, the
transferor shall deliver a letter substantially in the form of
Annex A from the transferee to the Debt Warrant Agent and (ii)
pursuant to clause (5) above, the Company reserves the right to
require the delivery of an opinion of counsel, certifications and
/ or other information satisfactory to the Company.
Each purchaser of such Debt Warrants acknowledges that each Debt
Warrant will contain a legend substantially to the following effect:
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<PAGE> 29
[FOR QIBS, INSERT: UNLESS THIS WARRANT IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND
ANY WARRANT ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS WARRANT IS EXCHANGED IN WHOLE OR IN PART FOR WARRANTS IN A
CERTIFICATED FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC
TO A NOMINEE OF DTC OR BY DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.]
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NEITHER THIS
WARRANT NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERRED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS WARRANT WILL BE ISSUED AND UNTIL REGISTERED MAY
BE TRANSFERRED ONLY IN A MINIMUM BLOCK OF 100.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS WARRANT, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY "AFFILIATE" OF THE COMPANY
WAS THE OWNER OF THIS WARRANT (OR ANY PREDECESSOR OF SUCH WARRANT), ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE WARRANTS ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT
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<PAGE> 30
THAT IS ACQUIRING THIS WARRANT FOR ITS OWN ACOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," OR AS A FIDUCIARY FOR THE ACCOUNT OF ONE OR MORE TRUSTS,
EACH OF WHICH IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a)(7) OF RULE 501 UNDER THE SECURITIES ACT, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; IT BEING
UNDERSTOOD THAT PRIOR TO ANY OFFER, SALE OR TRANSFER OF A WARRANT IN CERTIFCATED
FORM PRIOR TO A RESALE RESTRICTION TERMINATION DATE (i) PURSUANT TO CLAUSE (D)
ABOVE, THE TRANSFEROR SHALL DELIVER A LETTER SUBSTANTIALLY IN THE FORM OF ANNEX
A TO THE WARRANT AGREEMENT DATED AS OF JUNE 15, 1998 FROM THE TRANSFEREE TO THE
DEBT WARRANT AGENT AND (ii) PURSUANT TO CLAUSE (E) ABOVE, THE COMPANY RESERVES
THE RIGHT TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO THE COMPANY. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINTION DATE.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL WARRANTS ISSUED
HEREUNDER.
Section 3.05. Persons Deemed Holders. The Company and the Debt Warrant
Agent may treat the Holder as the owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Debt Warrants
evidenced thereby, any notice to the contrary notwithstanding.
Section 3.06. Cancellation of Debt Warrant Certificates. Any Debt
Warrant Certificate surrendered for exchange, transfer or exercise of the Debt
Warrants evidenced thereby shall, if surrendered to the Company, be delivered to
the Debt Warrant Agent, all Debt Warrant Certificates surrendered or so
delivered to the Debt Warrant Agent shall be promptly canceled by it and shall
not be reissued and, except as expressly permitted by this Agreement, no Debt
Warrant Certificate shall be issued hereunder in lieu or in exchange thereof.
The Company may at any time deliver to the Debt Warrant Agent for cancellation
any Debt Warrant Certificates previously issued hereunder which the Company may
have acquired in any manner whatsoever, and all Debt Warrant Certificates so
delivered shall be promptly canceled by the Debt Warrant Agent. All canceled
Debt Warrant Certificates held by the Debt Warrant Agent shall be disposed of as
instructed by the Company, subject to applicable law.
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<PAGE> 31
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF DEBT WARRANT CERTIFICATES
Section 4.01. No Rights as Holders of Debt Warrant Securities Conferred
by Debt Warrants or Debt Warrant Certificates. No Debt Warrant Certificate or
Debt Warrants evidenced thereby shall entitle the Holder thereof to any of the
rights of a Holder of the Debt Warrant(s) Securities, including, without
limitation, the right to receive the payment of principal of (or premium, if
any) or interest on the Debt Warrant Securities or to enforce any of the
covenants in the Indenture.
Section 4.02. Holder of Debt Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder of any Debt
Warrant Certificate, without the consent of the Debt Warrant Agent, the Trustee,
the Holder of any Debt Warrant Securities or the Holder of any other Debt
Warrant Certificate, may, on his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company suitable to enforce or otherwise in respect of, such Holder's right to
exercise the Debt Warrant(s) evidenced by such Holder's Debt Warrant Certificate
in the manner provided in such Debt Warrant Certificate and in this Agreement.
ARTICLE V.
CONCERNING THE DEBT WARRANT AGENT
Section 5.01. Debt Warrant Agent. The Company hereby appoints State
Street Bank and Trust Company as Debt Warrant Agent of the Company in respect of
the Debt Warrants and the Debt Warrant Certificates upon the terms and subject
to the conditions set forth herein and in the Debt Warrant Certificate, and
State Street Bank and Trust Company hereby accepts such appointment. The Debt
Warrant Agent shall have the power and authority granted to and conferred upon
it in the Debt Warrant Certificates and in this Agreement and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such power and authority contained in the Debt Warrant Certificates
are subject to and governed by the terms and provisions hereof.
Section 5.02. Conditions of Debt Warrant Agent's Obligations. The Debt
Warrant Agent accepts its obligations herein set forth, upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of the
Debt Warrant Certificates shall be subject:
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<PAGE> 32
(a) Compensation and Indemnification. The Company agrees promptly
to pay the Debt Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Debt Warrant
Agent and to reimburse the Debt Warrant Agent for reasonable
out-of-pocket expenses (including reasonable attorney's fees and
expenses) incurred by the Debt Warrant Agent without negligence,
bad faith or wilful misrepresentation on its part in connection
with the services rendered hereunder by the Debt Warrant Agent;
the Company also agrees to indemnify the Debt Warrant Agent for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or wilful misrepresentation
on the part of the Debt Warrant Agent, arising out of or in
connection with its acting as such Debt Warrant Agent hereunder,
including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance at any time of its powers or duties hereunder or with
respect to the Debt Warrants; and the obligations of the Company
under this subsection (a) shall survive the exercise of the Debt
Warrant Certificates, termination of this Agreement and the
resignation or removal of the Debt Warrant Agent.
(b) Agent for the Company. In acting under this Debt Warrant
Agreement and in connection with the Debt Warrant Certificates,
the Debt Warrant Agent is acting solely as agent of the Company
and does not assume any obligation or relationship of agency or
trust for or with any of the owners or Holders of the Debt Warrant
Certificates.
(c) Counsel. The Debt Warrant Agent may consult with counsel,
which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(d) Documents. The Debt Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or
omitted by it in reliance upon any Debt Warrant Certificate,
notice, opinion of counsel, direction, consent, certificate,
affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed
by the proper parties.
(e) Certain Transactions. The Debt Warrant Agent, any of its
officers, directors and employees, in its or their individual or
any other capacity, may become the owner of, or acquire any
interest in, any Debt Warrant Certificates, with the same rights
that it would have if it were not such Debt Warrant Agent,
officer, director, employee or other agent, and, to the extent
permitted by applicable law, it or they may engage or be
interested in any financial or other transaction with the Company
and may act on, or as
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<PAGE> 33
depository, trustee or agent for, any committee or body of Holders
of Debt Warrant Securities or other obligations of the Company as
freely as if it were not such Debt Warrant Agent, officer,
director, employee or other agent. Nothing in this Debt Warrant
Agreement shall be deemed to prevent the Debt Warrant Agent from
acting as Trustee under the Indenture.
(f) No Liability for Interest. The Debt Warrant Agent shall not
be under any liability for interest on any moneys at any time
received by it pursuant to any of the provisions of this Agreement
or of the Debt Warrant Certificates unless otherwise agreed to in
writing by the Company and the Debt Warrant Agent.
(g) No Liability for Invalidity. The Debt Warrant Agent shall not
incur any liability with respect to the validity of this Agreement
or any of the Debt Warrant Certificates.
(h) No Responsibility for Representations. The Debt Warrant Agent
shall not be responsible for any of the recitals or
representations contained herein or in the Debt Warrant
Certificates (except as to the Debt Warrant Agent's authentication
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Debt Warrant Agent shall be
obligated to perform such duties as are herein and in the Debt
Warrant Certificates specifically set forth and no implied duties
or obligations shall be read into this Agreement or the Debt
Warrant Certificates against the Debt Warrant Agent. The Debt
Warrant Agent shall not be under any obligation to advance its own
funds or to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it.
The Debt Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Debt
Warrant Certificates authenticated by the Debt Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for
the application by the Company of the proceeds of the Debt Warrant
Certificates or any exercise of the Debt Warrants evidenced
thereby. The Debt Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in
the Debt Warrant Certificates or in the Debt Warrant Securities or
in the case of the receipt of any written demand from a Holder of
a Debt Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any
duty or responsibility to initiate or attempt to initiate any
proceeding at law or otherwise or, except as provided in Section
6.04 hereof, to make any demand upon the Company.
Section 5.03. Resignation, Removal and Appointment of Successor
16
<PAGE> 34
(a) The Company agrees, for the benefit of the
Holders from time to time of the Debt Warrant Certificates, that there shall at
all times be a Debt Warrant Agent hereunder until all of the Debt Warrants are
no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as
such agent by giving written notice to the Company of such intention on its
part, specifying the date on which it desires its resignation to become
effective; provided that, without the consent of the Company, such date shall
not be less than three months after the date on which such notice is given and
shall be subject to the appointment of a successor Debt Warrant Agent and the
acceptance of such appointment by such successor Debt Warrant Agent, as
hereinafter provided. The Debt Warrant Agent may be removed at any time by the
filing with it of an instrument in writing signed by or on behalf of the Company
and specifying such removal and the date on which the Company expects such
removal to become effective. Such resignation or removal shall take effect upon
the appointment by the Company of a successor Debt Warrant Agent (which shall be
a bank or trust company organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia and
authorized under such laws to exercise corporate trust powers) by an instrument
in writing filed with such successor Debt Warrant Agent and the acceptance of
such appointment by such successor Debt Warrant Agent pursuant to clause (c) of
this Section 5.03. In the event a successor Debt Warrant Agent has not been
appointed and has not accepted its duties within 90 days of the Debt Warrant
Agent's notice of resignation, the Debt Warrant Agent may apply to any court of
competent jurisdiction for the designation of a successor Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall
resign, or be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or shall
admit in writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian of it or of all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered approving any
petition filed by or against it under the provisions of any applicable
bankruptcy or similar law or if any public officer shall have taken charge or
control of the Debt Warrant Agent or of its property or affairs, for the purpose
of rehabilitation, conservation or liquidation, a successor Debt Warrant Agent
qualified as aforesaid shall be appointed by the Company by an instrument in
writing that is filed with the successor Debt Warrant Agent. Upon the
appointment as aforesaid of a successor Debt Warrant Agent and acceptance by the
latter of such appointment, the then current Debt Warrant Agent shall cease to
be Debt Warrant Agent hereunder.
(d) Any successor Debt Warrant Agent appointed
hereunder shall execute, acknowledge and deliver to its predecessor and to the
Company an instrument accepting such appointment hereunder, and thereupon such
successor Debt Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if
17
<PAGE> 35
originally named as Debt Warrant Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Debt Warrant
Agent shall be entitled to receive all moneys, securities and other property on
deposit with or held by such predecessor, as Debt Warrant Agent hereunder.
(e) Any corporation into which the Debt Warrant Agent
hereunder may be merged or converted or any corporation with which the Debt
Warrant Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Debt Warrant Agent shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Debt Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Debt Warrant Agent under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
(f) The Company may designate agencies for the
surrender for exercise of Debt Warrant Certificates at such place or places as
the Company may determine, and the Company shall keep the Debt Warrant Agent
advised of the names and locations of such agencies, if any are so designated.
The Debt Warrant Agent shall arrange directly with such agencies for the
delivery of Debt Warrant Securities upon exercise of Debt Warrant Certificates
surrendered for exercise at such agencies. The Debt Warrant Agent shall be in no
way responsible or accountable for the action or failure to act of any agencies
designated pursuant to this Section 5.03(f).
ARTICLE VI.
MISCELLANEOUS
Section 6.01. Modification, Supplementation or Amendment
(a) This Agreement may be modified, supplemented or
amended by the parties hereto, without the consent of the Holder of any Debt
Warrant Certificate, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or in such
Debt Warrant Certificate, or making such provisions in regard to matters or
questions arising under this Agreement as the Company may deem necessary or
desirable; provided that such action shall not adversely affect the interests of
the Holders of the Debt Warrant Certificates in any material respect. The Debt
Warrant Agent may, but shall not be obligated to, enter into any amendment to
this Agreement which affects the Debt Warrant Agent's own rights, duties or
immunities under this Agreement or otherwise.
(b) The Company and the Debt Warrant Agent may modify
or amend this Agreement and the Debt Warrant Certificates, with the consent of
the Holders of not fewer than a
18
<PAGE> 36
majority in number of the then outstanding unexercised Debt Warrants affected by
such modification or amendment, for any purpose; provided, however, that no
modification or amendment of any of the provisions of Article II and no
modification or amendment that reduces the number of outstanding Debt Warrants
the consent of the Holders of which is required for modification or amendment of
this Agreement or the Debt Warrant Certificates may be made without the consent
of each Holder affected thereby.
Section 6.02. Consolidations and Mergers of the Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. To the extent
permitted in the Indenture, the Company may consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge with or into, any
other corporation or other entity.
Section 6.03. Rights and Duties of Successor Corporation In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation or entity, such successor corporation or
entity shall succeed to and be substituted for the Company, with the same effect
as if it had been named herein, and the Company, except in the event of a lease,
shall be relieved of any further obligation under this Agreement and the Debt
Warrants. Such successor or assuming corporation or entity shall expressly
assume, by an amendment to this Agreement, executed and delivered to the Debt
Warrant Agent, in form satisfactory to such Debt Warrant Agent, the due and
punctual payment of any and all amounts payable by the Company pursuant to this
Agreement and the performance of every covenant of this Agreement on the part of
the Company to be performed or observed. Such successor corporation or entity
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Debt Warrant Securities issuable pursuant
to the terms hereof. All the Debt Warrant Securities so issued shall in all
respects have the same legal rank and benefit under the Indenture as the Debt
Warrant Securities theretofore or thereafter issued in accordance with the terms
of this Agreement and the Indenture.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Debt Warrant Securities thereafter to be issued as may be
appropriate.
Section 6.04. Notices and Demands to the Company and Debt Warrant Agent
If the Debt Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder of a Debt Warrant Certificate pursuant to the provisions
of the Debt Warrant Certificates, the Debt Warrant Agent shall promptly forward
such notice or demand to the Company.
Section 6.05. Governing Law. This Agreement and each Debt Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.
19
<PAGE> 37
Section 6.06. Addresses. Any communications from the Company to the
Debt Warrant Agent with respect to this Agreement shall be addressed to STATE
STREET BANK AND TRUST COMPANY, Two International Place, Financial Services,
Corporate Trust Apartment, Boston, Massachusetts 02110 (facsimile: (617)
664-5371) (telephone: (617) 664-5371), Attention: Don Smith, and any
communications from the Debt Warrant Agent, to the Company with respect to this
Agreement shall be addressed to EOP OPERATING LIMITED PARTNERSHIP, Two North
Riverside Plaza, Suite 2200, Chicago, Illinois 60606 (facsimile: (312) 559-5008)
(telephone: (312) 466-3300), Attention: Stanley M. Stevens, Chief Legal Counsel
(or such other address as shall be specified in writing by the Debt Warrant
Agent or by the Company).
Section 6.07. Notices to Holders of Debt Warrant Certificates.
Any notice to Holders of Debt Warrant Certificates which by any
provisions of this Agreement is required or permitted to be given shall be
delivered by first class mail postage prepaid at such Holder's address as it
appears on the books of the Debt Warrant Agent.
Section 6.08. Delivery of Offering Memorandum. The Company will furnish
to the Debt Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the Debt Warrant Securities (the "Offering
Memorandum"), and the Debt Warrant Agent agrees that, upon the exercise of any
Debt Warrant Certificate, the Debt Warrant Agent will deliver to the person
designated to receive Debt Warrant Securities, prior to or concurrently with the
delivery of such Securities, the Offering Memorandum.
Section 6.09. Obtaining of Governmental Approvals The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States federal and state
laws (including, without limitation, the maintenance of the effectiveness of a
registration statement in respect of the Debt Warrant Securities under the
Securities Act), which may be or become required in connection with the
Registration Rights Agreement, the exercise of the Debt Warrant Certificates or
the original issuance and delivery of the Debt Warrant Securities.
Section 6.10. Persons Having Rights Under Debt Warrant Agreement
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Debt
Warrant Agent and the Holders of the Debt Warrant Certificates any right, remedy
or claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement shall be for the sole
and exclusive benefit of the Company and the Debt Warrant Agent and their
successors and of the Holders of the Debt Warrant Certificates.
20
<PAGE> 38
Section 6.11. Headings. The Article and Section headings herein and the
Table of Contents are for convenience of reference only and shall not affect the
construction hereof.
Section 6.12. Counterparts. This Agreement may be execute in any number
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 6.13. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Debt Warrant Agent for inspection by the Holder of any Debt Warrant
Certificate.
21
<PAGE> 39
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, and their respective corporate seal to be hereunto affixed and
attested, all as of the day and year first above written.
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust,
as Managing General Partner
By: /s/ Richard D. Kincaid
----------------------------------------
Name: Richard D. Kincaid
Title: Executive Vice President and
Chief Financial Officer
[SEAL]
Attest:
- ---------------------------
STATE STREET BANK AND TRUST COMPANY
By:/s/ Donald E. Smith
----------------------------------------
Name: Donald E. Smith
Title: Vice President
[SEAL]
Attest:
/s/ Paul Dale
- ---------------------------
22
<PAGE> 40
ANNEX A
TRANSFEREE LETTER OF REPRESENTATION
(FOR 2007 NOTES AND WARRANTS IN CERTIFICATED FORM ONLY)
State Street Bank & Trust Company
Two International Place
Financial Services
Corporate Trust Department
Boston, Massachusetts 02110
Ladies and Gentlemen:
In connection with the proposed transfer to us of [6.763% Notes due
2007] [Warrants to Purchase % Notes due 2008] (the "Securities") of EOP
Operating Limited Partnership (the "Company"), we confirm that:
1. We understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or
other applicable securities laws, and may not be offered, sold or
otherwise transferred except as permitted in the following sentence. We
agree on our behalf and on behalf of any investor account for which we
are purchasing Securities to offer, sell or otherwise transfer such
Securities prior to the date which is two years after the later of the
date of original issue thereof and the last date on which the Company
or any "affiliate" of the Company was the owner of such Securities (or
any predecessor thereto) (the "Resale Restriction Termination Date")
only (a) to the Company or any subsidiary thereof, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) so long as the Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act (a "QIB") that purchases for its own
account or for the account of a QIB to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) to an
institutional "accredited investor" (an "Institutional Accredited
Investor") within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 under the Securities Act that is acquiring the Securities
for its own account or for the account of such an Institutional
Accredited Investor for investment purposes and not with a view to, or
for offer and sale in connection with, any distribution in violation of
the Securities Act or (e) pursuant to any other available exemption
from the registration requirements under the Securities Act; it being
understood that prior to any such offer, sale or transfer (i) pursuant
to clause (e) above, the Company shall have the right to require the
delivery of an opinion of
23
<PAGE> 41
counsel, certifications and/or other information satisfactory to each
of them and (ii) pursuant to clause (d) above, the transferor shall
deliver to the [Trustee] [Warrant Agent] a letter from the transferee
substantially similar to this letter.
2. We are an Institutional Accredited Investor purchasing for
our own account or for the account of such an Institutional Accredited
Investor for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution in violation of the
Securities Act or any other applicable securities laws and we have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investments in the
Securities, and we and any accounts 1for which we are acting are each
able to bear the economic risk of our or its investment for an
indefinite period.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion.
4. You and the Company are entitled to rely upon this letter
and you are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
________________________________
Name of Purchaser:
By:
Date:
The Securities will be registered in the name of the beneficial owner
as follows:
Name:
Address:
Taxpayer ID Number:
24
<PAGE> 42
EXHIBIT A
[FORM OF DEBT WARRANT CERTIFICATE IN CERTIFICATED FORM]
EOP OPERATING LIMITED PARTNERSHIP
Debt Warrant Certificate representing
Debt Warrants to purchase
6.763% Notes due 2008
as described herein
------------------------
[FACE]
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NEITHER THIS
WARRANT NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERRED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS WARRANT WILL BE ISSUED AND UNTIL REGISTERED MAY
BE TRANSFERRED ONLY IN A MINIMUM BLOCK OF 100.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS WARRANT, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY "AFFILIATE" OF THE COMPANY
WAS THE OWNER OF THIS WARRANT (OR ANY PREDECESSOR OF SUCH WARRANT), ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE WARRANTS ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS WARRANT FOR ITS OWN ACOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," OR AS A FIDUCIARY FOR THE ACCOUNT
OF ONE OR MORE TRUSTS, EACH OF WHICH IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(7) OF RULE 501 UNDER THE SECURITIES ACT, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION
A-1
<PAGE> 43
OF THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; IT BEING UNDERSTOOD THAT PRIOR
TO ANY OFFER, SALE OR TRANSFER OF THIS WARRANT PRIOR TO A RESALE RESTRICTION
TERMINATION DATE (i) PURSUANT TO CLAUSE (D) ABOVE, THE TRANSFEROR SHALL DELIVER
A LETTER SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE WARRANT AGREEMENT DATED AS
OF JUNE 15, 1998 FROM THE TRANSFEREE TO THE DEBT WARRANT AGENT AND (ii) PURSUANT
TO CLAUSE (E) ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
THE COMPANY. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINTION DATE.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL WARRANTS ISSUED
HEREUNDER.
EXERCISABLE ONLY IF AUTHENTICATED BY THE DEBT WARRANT
AGENT AS PROVIDED HEREIN
________________________
No. _________________Debt Warrants
This certifies that __________________ or registered assigns is
the registered owner (the "Holder") of the above indicated number of Debt
Warrants, each Debt Warrant entitling such Holder to purchase on the Exercise
Date (as hereinafter defined) $ _________ principal amount of 6.763% Notes due
2008 (the "Debt Warrant Securities"), a form of which is attached as Exhibit D
to the Warrant Agreement (as hereinafter defined), of EOP OPERATING LIMITED
PARTNERSHIP (the "Company"), representing $1,000 principal amount of Debt
Warrant Securities for each Debt Warrant, issued or to be issued under the
Indenture (as hereinafter defined), at the exercise price of 100% of the
principal amount of Debt Warrant Securities purchased (the "Exercise Price").
The "Exercise Date" means December 15, 1999 unless, in accordance
with the Warrant Agreement, dated as of June 15, 1998 (the "Warrant Agreement"),
between the Company and State Street Bank and Trust Company, as warrant agent
(including any successor thereto, the "Debt Warrant Agent"), the Company
notifies all Holders in writing at least five Business Days (as defined in the
Warrant Agreement) prior to December 15, 1999 that, based on an opinion of
counsel, it is aware of material non-public information with respect to the
Company, in which case the Company may postpone such date to January 18, 2000,
or, in each case, if such day is not a Business Day, the succeeding Business
Day.
A-2
<PAGE> 44
The Holder of this Debt Warrant Certificate may exercise the Debt
Warrants evidenced hereby, in whole or in part, upon compliance with and subject
to the conditions set forth on the reverse hereof and in the Debt Warrant
Agreement.
Any whole number of Debt Warrants evidenced by this Debt Warrant
Certificate may be exercised to purchase Debt Warrant Securities in registered
form.
This Debt Warrant Certificate is issued under and in accordance
with the Debt Warrant Agreement and is subject to the terms and provisions
contained in the Debt Warrant Agreement, to all of which terms and provisions
the Holder of this Debt Warrant Certificate consents by acceptance hereof.
Copies of the Debt Warrant Agreement are on file at the corporate trust office
of the Debt Warrant Agent.
The Debt Warrant Securities to be issued and delivered upon the
exercise of Debt Warrants evidenced by this Debt Warrant Certificate will be
issued under and in accordance with an Indenture, dated as of September 2, 1997,
as supplemented by a Supplemental Indenture, dated as of February 9, 1998, and
as further supplemented from time to time (the "Indenture"), between the Company
and State Street Bank and Trust Company, as trustee (including any successors
thereto, the "Trustee") and will be subject to the terms and provisions
contained in the Indenture. Copies of the Indenture are on file at the corporate
trust office of the Trustee.
This Debt Warrant Certificate, and all rights hereunder, may be
when surrendered for transfer at the address specified on the reverse hereof by
the Holder, in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations contained on the reverse hereof and in the
Debt Warrant Agreement.
This Debt Warrant Certificate may be exchanged at the address
specified on the reverse hereof for Debt Warrant Certificates representing the
same aggregate number of Debt Warrants.
This Debt Warrant Certificate shall not entitle the Holder to any
of the rights of a holder of the Debt Warrant Securities, including, without
limitation, the right to receive payments of principal of (or premium, if any)
or interest on the Debt Warrant Securities or to enforce any of the covenants of
the Indenture.
Reference is hereby made to the further provisions of this Debt
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Debt Warrant Certificate shall not be valid or obligatory for
any purpose until authenticated by the Debt Warrant Agent.
A-3
<PAGE> 45
IN WITNESS WHEREOF, the Company has caused this Debt Warrant
Certificate to be duly executed under its corporate seal.
Dated:
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust,
as Managing General Partner
By:_______________________________________
Name:
Title:
Attest:
_______________________
Authenticated:
STATE STREET BANK AND TRUST COMPANY,
as Debt Warrant Agent
By:
____________________________________
Authorized Signatory
A-4
<PAGE> 46
[REVERSE]
To exercise any Debt Warrants evidenced by this Debt Warrant
Certificate, the Holder must (i) deliver an Exercise Notice prior to the close
of business on the third Business Day preceding the Exercise Date (the
"Determination Date"), which Exercise Notice shall be substantially in the form
of Exhibit C to the Warrant Agreement, (ii) pay, by certified check or official
bank check, on or prior to the Exercise Date, the Exercise Price for each of the
Debt Warrants exercised to the Debt Warrant Agent, at its corporate trust
office, initially located at Two International Place, Financial Services,
Corporate Trust Department, Boston, Massachusetts 02110, or at its corporate
trust window, initially located at 61 Broadway, Concourse level, New York, New
York 10006, which payment should specify the name of the Holder of this Debt
Warrant Certificate and the number of Debt Warrants exercised by such Holder and
(iii) deliver this Debt Warrant Certificate to the Debt Warrant Agent at either
of the addresses specified above on or prior to the Exercise Date. After the
close of business on the Determination Date, unexercised Debt Warrants shall
become void.
At any time when the Company is not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, upon the request of a
Holder, the Company will promptly furnish or cause to be furnished the
information specified in Rule 144A(d)(4) to such Holder, or to a prospective
purchaser of any Debt Warrant designated by any such Holder, to the extent
required to permit compliance by such Holder with Rule 144A under the Securities
Act in connection with the resale or other transfer of any such Debt Warrant.
A-5
<PAGE> 47
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
<TABLE>
<S><C>
To assign this Debt Warrant, fill in the form below:
(I) or (we) assign and transfer this Debt Warrant to
- ------------------------------------------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number, if any)
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Your signature:
------------------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Debt Warrant)
Date:
--------------------------------------------------------------
Signature Guarantee:*
----------------------------------------------
</TABLE>
In connection with any transfer of any of the Debt Warrants evidenced
by this Debt Warrant Certificate occurring prior to the date that is two years
(or such shorter period as may then be applicable under Rule 144(k) of the
United States Securities Act of 1933, as amended (the "Securities Act") (or any
successor provision)), after the later of the date of original issuance of such
Debt Warrants and the last date, if any, on which such Debt Warrants were owned
by the Company or any affiliate of the Company, the undersigned confirms that
this Debt Warrant Certificate is being transferred:
CHECK ONE BOX BELOW
(1) - to the Company or a subsidiary thereof; or
(2) - to a "qualified institutional buyer" pursuant to and in
compliance with Rule 144A under the Securities Act; or
(3) - to an institutional "accredited investor" within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Securities Act; or
(4) - pursuant to an effective registration statement under
the Securities Act; or
(5) - pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless one of the boxes is checked, the Debt Warrant Agent will refuse
to register this Debt Warrant Certificate in the name of any person other than
the Holder hereof; provided, however, that (i) if box (3) is checked, the
transferee shall deliver a letter in the form of Annex A to the Debt Warrant
Agreement to the Debt Warrant Agent and (ii) if box (5) is checked, the Company
may require, prior to registering any transfer of this Debt Warrant Certificate,
such certifications, legal opinions and/or other information as the Company has
reasonably requested to confirm that
- --------------
* Signature must be guaranteed by a commercial bank, trust company or member
firm or a major stock exchange
A-6
<PAGE> 48
such transfer is being made pursuant to the exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act.
A-7
<PAGE> 49
EXHIBIT B
[FORM OF GLOBAL DEBT WARRANT CERTIFICATE]
EOP OPERATING LIMITED PARTNERSHIP
Global Debt Warrant Certificate representing
Debt Warrants to purchase
6.763% Notes due 2008
as described herein
------------------------
[FACE]
UNLESS THIS WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY WARRANT ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS WARRANT IS EXCHANGED IN WHOLE OR IN PART FOR WARRANTS IN A
CERTIFICATED FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC
TO A NOMINEE OF DTC OR BY DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW. NEITHER THIS
WARRANT NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERRED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS WARRANT WILL BE ISSUED AND UNTIL REGISTERED MAY
BE TRANSFERRED ONLY IN A MINIMUM BLOCK OF 100.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS WARRANT, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY "AFFILIATE" OF THE COMPANY
WAS THE OWNER
B-1
<PAGE> 50
OF THIS WARRANT (OR ANY PREDECESSOR OF SUCH WARRANT), ONLY (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE WARRANTS ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THIS WARRANT FOR ITS OWN ACOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," OR AS A FIDUCIARY FOR THE ACCOUNT OF ONE OR MORE TRUSTS,
EACH OF WHICH IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a)(7) OF RULE 501 UNDER THE SECURITIES ACT, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINTION DATE.
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL WARRANTS ISSUED
HEREUNDER.
EXERCISABLE ONLY IF AUTHENTICATED BY THE DEBT WARRANT
AGENT AS PROVIDED HEREIN
___________________
No. __________________Debt Warrants
This certifies that CEDE & CO. or registered assigns is the
registered owner (the "Holder") of the above indicated number of Debt Warrants,
each Debt Warrant entitling such Holder to purchase on the Exercise Date (as
hereinafter defined) $ _________ principal amount of 6.763% Notes due 2008 (the
"Debt Warrant Securities"), a form of which is attached as Exhibit D to the
Warrant Agreement (as hereinafter defined), of EOP OPERATING LIMITED PARTNERSHIP
(the "Company"), representing $1,000 principal amount of Debt Warrant Securities
for each Debt Warrant, issued or to be issued under the Indenture (as
hereinafter defined), at the exercise price of 100% of the principal amount of
Debt Warrant Securities purchased (the "Exercise Price").
B-2
<PAGE> 51
The "Exercise Date" means December 15, 1999 unless, in accordance
with the Warrant Agreement, dated as of June 15, 1998 (the "Warrant Agreement"),
between the Company and State Street Bank and Trust Company, as warrant agent
(including any successor thereto, the "Debt Warrant Agent"), the Company
notifies all Holders in writing at least five Business Days (as defined in the
Warrant Agreement) prior to December 15, 1999 that, based on an opinion of
counsel, it is aware of material non-public information with respect to the
Company, in which case the Company may postpone such date to January 18, 2000,
or, in each case, if such day is not a Business Day, the succeeding Business
Day.
The Holder of this Debt Warrant Certificate may exercise the Debt
Warrants evidenced hereby, in whole or in part, upon compliance with and subject
to the conditions set forth on the reverse hereof and in the Debt Warrant
Agreement.
Any whole number of Debt Warrants evidenced by this Debt Warrant
Certificate may be exercised to purchase Debt Warrant Securities in registered
form.
This Debt Warrant Certificate is issued under and in accordance
with the Debt Warrant Agreement and is subject to the terms and provisions
contained in the Debt Warrant Agreement, to all of which terms and provisions
the Holder of this Debt Warrant Certificate consents by acceptance hereof.
Copies of the Debt Warrant Agreement are on file at the corporate trust office
of the Debt Warrant Agent.
The Debt Warrant Securities to be issued and delivered upon the
exercise of Debt Warrants evidenced by this Debt Warrant Certificate will be
issued under and in accordance with an Indenture, dated as of September 2, 1997,
as supplemented by a Supplemental Indenture, dated as of February 9, 1998, and
as further supplemented from time to time (the "Indenture"), between the Company
and State Street Bank and Trust Company, as trustee (including any successors
thereto, the "Trustee") and will be subject to the terms and provisions
contained on the reverse hereof and in the Indenture. Copies of the Indenture
are on file at the corporate trust office of the Trustee.
This Debt Warrant Certificate, and all rights hereunder, may be
when surrendered for transfer at the address specified on the reverse hereof by
the Holder, in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations contained in the Debt Warrant Agreement.
This Debt Warrant Certificate may be exchanged at the address
specified on the reverse hereof for Debt Warrant Certificates representing the
same aggregate number of Debt Warrants.
This Debt Warrant Certificate shall not entitle the Holder to any
of the rights of a holder of the Debt Warrant Securities, including, without
limitation, the right to receive payments of principal of (or premium, if any)
or interest on the Debt Warrant Securities or to enforce any of the covenants of
the Indenture.
B-3
<PAGE> 52
Reference is hereby made to the further provisions of this Debt
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Debt Warrant Certificate shall not be valid or obligatory for
any purpose until authenticated by the Debt Warrant Agent.
B-4
<PAGE> 53
IN WITNESS WHEREOF, the Company has caused this Debt Warrant
Certificate to be duly executed under its corporate seal.
Dated:
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust,
as Managing General Partner
By:__________________________________________
Name:
Title:
Attest:
_______________________________
Authenticated:
STATE STREET BANK AND TRUST COMPANY,
as Debt Warrant Agent
By
________________________________________
Authorized Signatory
B-5
<PAGE> 54
[REVERSE]
To exercise any Debt Warrants evidenced by this Debt Warrant
Certificate, the Holder must (i) deliver an Exercise Notice prior to the close
of business on the third Business Day preceding the Exercise Date (the
"Determination Date"), which Exercise Notice shall be substantially in the form
of Exhibit C to the Warrant Agreement, (ii) pay, by certified check or official
bank check, on or prior to the Exercise Date, the Exercise Price for each of the
Debt Warrants exercised to the Debt Warrant Agent, at its corporate trust
office, initially located at Two International Place, Financial Services,
Corporate Trust Department, Boston, Massachusetts 02110, or at its corporate
trust window, initially located at 61 Broadway, Concourse level, New York, New
York 10006, which payment should specify the name of the Holder of this Debt
Warrant Certificate and the number of Debt Warrants exercised by such Holder and
(iii) deliver this Debt Warrant Certificate to the Debt Warrant Agent at either
of the addresses specified above on or prior to the Exercise Date. After the
close of business on the Determination Date, unexercised Debt Warrants shall
become void.
At any time when the Company is not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, upon the request of a
Holder, the Company will promptly furnish or cause to be furnished the
information specified in Rule 144A(d)(4) to such Holder, or to a prospective
purchaser of any Debt Warrant designated by any such Holder, to the extent
required to permit compliance by such Holder with Rule 144A under the Securities
Act in connection with the resale or other transfer of any such Debt Warrant.
B-6
<PAGE> 55
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
<TABLE>
<S><C>
To assign this Debt Warrant, fill in the form below:
(II) or (we) assign and transfer this Debt Warrant to
- -------------------------------------------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number, if any)
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Your signature:
------------------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Debt Warrant)
Date:
------------------------------------------------------------
Signature Guarantee:*
-------------------------------------------
</TABLE>
In connection with any transfer of any of the Debt Warrants evidenced
by this Debt Warrant Certificate occurring prior to the date that is two years
(or such shorter period as may then be applicable under Rule 144(k) of the
United States Securities Act of 1933, as amended (the "Securities Act") (or any
successor provision)), after the later of the date of original issuance of such
Debt Warrants and the last date, if any, on which such Debt Warrants were owned
by the Company or any affiliate of the Company, the undersigned confirms that
this Debt Warrant Certificate is being transferred:
CHECK ONE BOX BELOW
(1) - to the Company or a subsidiary thereof; or
(2) - to a "qualified institutional buyer"
pursuant to and in compliance with Rule 144A under
the Securities Act; or
(3) - to an institutional "accredited investor"
within the meaning of subparagraph (a)(1), (2), (3)
or (7) of Rule 501 under the Securities Act; or
(4) - pursuant to an effective registration statement under the
Securities Act; or
(5) - pursuant to another available exemption from
the registration requirements of the Securities
Act.
Unless one of the boxes is checked, the Debt Warrant Agent will refuse
to register this Debt Warrant Certificate in the name of any person other than
the Holder hereof; provided, however, that (i) if box (3) is checked, the
transferee shall deliver a letter in the form of Annex A to the Debt Warrant
Agreement to the Debt Warrant Agent and (ii) if box (5) is checked, the Company
may require, prior to registering any transfer of this Debt Warrant Certificate,
- --------------
* Signature must be guaranteed by a commercial bank, trust company or member
firm or a major stock exchange
B-7
<PAGE> 56
such certifications, legal opinions and/or other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to the
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
B-8
<PAGE> 57
EXHIBIT C
[FORM OF EXERCISE NOTICE]
The undersigned Holder hereby elects to exercise
__________________ Debt Warrants, represented by Debt Warrant Certificate No.
_____, to purchase $_________ principal amount of the 6.763% Notes due 2008 (the
"Debt Warrant Securities") of EOP OPERATING LIMITED PARTNERSHIP (the "Company").
The undersigned Holder requests that said principal amount of Debt Warrant
Securities be in fully registered form, in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below.
The foregoing election shall be irrevocable, except that after a
postponement of the date of the exercise of the Debt Warrants under the
conditions specified in the Warrant Agreement, dated as of June 15, 1998,
between the Company and State Street Bank and Trust Company, such election shall
be null and void. Accordingly, after such postponement, the undersigned Holder
must make another election in order to exercise the Debt Warrants.
Dated: _________
_______________________________________ _________________________
(Insert Social Security or Other Name:
Identifying Number of Holder) Address:
(Instructions as to form and delivery of Debt Warrant Securities):
C-1
<PAGE> 58
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
<TABLE>
<S><C>
To assign this Debt Warrant, fill in the form below:
(III) or (we) assign and transfer this Debt Warrant to
- -------------------------------------------------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number, if any)
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Your signature:
-------------------------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Debt Warrant)
Date:
--------------------------------------------------
Signature Guarantee:*
---------------------------------
</TABLE>
In connection with any transfer of any of the Debt Warrants evidenced
by this Debt Warrant Certificate occurring prior to the date that is two years
(or such shorter period as may then be applicable under Rule 144(k) of the
United States Securities Act of 1933, as amended (the "Securities Act") (or any
successor provision)), after the later of the date of original issuance of such
Debt Warrants and the last date, if any, on which such Debt Warrants were owned
by the Company or any affiliate of the Company, the undersigned confirms that
this Debt Warrant Certificate is being transferred:
CHECK ONE BOX BELOW
(1) - to the Company or a subsidiary thereof; or
(2) - to a "qualified institutional buyer" pursuant to and in
compliance with Rule 144A under the Securities Act; or
(3) - to an institutional "accredited investor" within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under
the Securities Act; or
(4) - pursuant to an effective registration statement under the
Securities Act; or
(5) - pursuant to another available exemption from
the registration requirements of the Securities Act.
Unless one of the boxes is checked, the Debt Warrant Agent will refuse
to register this Debt Warrant Certificate in the name of any person other than
the Holder hereof; provided, however, that (i) if box (3) is checked, the
transferee shall deliver a letter in the form of Annex A to the Debt Warrant
Agreement to the Debt Warrant Agent and (ii) if box (5) is checked, the Company
may require, prior to registering any transfer of this Debt Warrant Certificate,
such certifications, legal opinions and/or other information as the Company has
reasonably requested to confirm that
- --------------
* Signature must be guaranteed by a commercial bank, trust company or
member firm or a major stock exchange
C-2
<PAGE> 59
such transfer is being made pursuant to the exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act.
C-3
<PAGE> 1
EXHIBIT 4.9
EOP OPERATING LIMITED PARTNERSHIP
GLOBAL DEBT WARRANT CERTIFICATE REPRESENTING
DEBT WARRANTS TO PURCHASE
6.763% NOTES DUE 2008
AS DESCRIBED HEREIN
_____________________
[FACE]
UNLESS THIS WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY WARRANT ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS WARRANT IS EXCHANGED IN WHOLE OR IN PART FOR WARRANTS IN A
CERTIFICATED FORM, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC
TO A NOMINEE OF DTC OR BY DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
<PAGE> 2
EXERCISABLE ONLY IF AUTHENTICATED BY THE DEBT WARRANT
AGENT AS PROVIDED HEREIN
NO. 001 DEBT WARRANTS
CUSIP NO.
This certifies that CEDE & CO. or registered assigns is the registered
owner (the "Holder") of the above indicated number of Debt Warrants, each Debt
Warrant entitling such Holder to purchase on the Exercise Date (as hereinafter
defined) $_____________ principal amount of 6.763% Notes due 2008 (the "Debt
Warrant Securities"), a form of which is attached as Exhibit D to the Warrant
Agreement (as hereinafter defined), of EOP OPERATING LIMITED PARTNERSHIP (the
"Company"), representing $1,000 principal amount of Debt Warrant Securities for
each Debt Warrant, issued or to be issued under the Indenture (as hereinafter
defined), at the exercise price of 100% of the principal amount (the "Exercise
Price").
The "Exercise Date" means December 15, 1999 unless, in accordance with the
Warrant Agreement, dated as of June 15, 1998 (the "Warrant Agreement"), between
the Company and State Street Bank and Trust Company, as warrant agent (including
any successor thereto, the "Debt Warrant Agent"), the Company notifies all
Holders in writing at least five Business Days (as defined in the Warrant
Agreement) prior to December 15, 1999 that, based on an opinion of counsel, it
is aware of material non-public information with respect to the Company, in
which case the Company may postpone such date to January 18, 2000, or, in each
case, if such day is not a Business Day, the succeeding Business Day.
The Holder of this Debt Warrant Certificate may exercise the Debt Warrants
evidenced hereby, in whole or in part, upon compliance with and subject to the
conditions set forth on the reverse hereof and in the Debt Warrant Agreement.
Any whole number of Debt Warrants evidenced by this Debt Warrant
Certificate may be exercised to purchase Debt Warrant Securities in registered
form.
This Debt Warrant Certificate is issued under and in accordance with the
Debt Warrant Agreement and is subject to the terms and provisions contained in
the Debt Warrant Agreement, to all of which terms and provisions the Holder of
this Debt Warrant Certificate consents by acceptance hereof. Copies of the Debt
Warrant Agreement are on file at the corporate trust office of the Debt Warrant
Agent.
The Debt Warrant Securities to be issued and delivered upon the exercise of
Debt Warrants evidenced by this Debt Warrant Certificate will be issued under
and in accordance with an Indenture, dated as of September 2, 1997, as
supplemented by a Supplemental Indenture, dated as of February 9, 1998, and as
further supplemented from time to time (the "Indenture"), between the Company
and State Street Bank and Trust Company, as trustee (including any successors
thereto, the "Trustee") and will be subject to the terms and provisions
contained on the reverse hereof and in the Indenture. Copies of the Indenture
are on file at the corporate trust office of the Trustee.
2
<PAGE> 3
This Debt Warrant Certificate, and all rights hereunder, may be when
surrendered for transfer at the address specified on the reverse hereof by the
Holder, in person or by an attorney duly authorized in writing, in the manner
and subject to the limitations contained in the Debt Warrant Agreement.
This Debt Warrant Certificate may be exchanged at the address specified on
the reverse hereof for Debt Warrant Certificates representing the same aggregate
number of Debt Warrants.
This Debt Warrant Certificate shall not entitle the Holder to any of the
rights of a holder of the Debt Warrant Securities, including, without
limitation, the right to receive payments of principal of (or premium, if any)
or interest on the Debt Warrant Securities or to enforce any of the covenants of
the Indenture.
Reference is hereby made to the further provisions of this Debt Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Debt Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Debt Warrant Agent.
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this Debt Warrant Certificate to
be duly executed under its corporate seal.
Dated: June 15, 1998
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust,
as Managing General Partner
By:____________________________________
Name: Stanley M. Stevens
Title: Executive Vice President and
Chief Legal Counsel
Attest:
______________________________________
Authenticated:
STATE STREET BANK AND TRUST COMPANY,
as Debt Warrant Agent
By____________________________________
Authorized Signatory
4
<PAGE> 5
[REVERSE]
To exercise any Debt Warrants evidenced by this Debt Warrant Certificate,
the Holder must (i) deliver an Exercise Notice prior to the close of business on
the third Business Day preceding the Exercise Date (the "Determination Date"),
which Exercise Notice shall be substantially in the form of Exhibit C to the
Warrant Agreement, (ii) pay, by certified check or official bank check, on or
prior to the Exercise Date, the Exercise Price for each of the Debt Warrants
exercised to the Debt Warrant Agent, at its corporate trust office, initially
located at Two International Place, Financial Services, Corporate Trust
Department, Boston, Massachusetts 02110, or at its corporate trust window,
initially located at 61 Broadway, Concourse level, New York, New York 10006,
which payment should specify the name of the Holder of this Debt Warrant
Certificate and the number of Debt Warrants exercised by such Holder and (iii)
deliver this Debt Warrant Certificate to the Debt Warrant Agent at either of the
addresses specified above on or prior to the Exercise Date. After the close of
business on the Determination Date, unexercised Debt Warrants shall become void.
5
<PAGE> 6
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Debt Warrant, fill in the form below:
(I) or (we) assign and transfer this Debt Warrant to
________________________________________________________________________________
(Insert assignee's social security or tax identification number, if any)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your signature:____________________________________________________________
(Sign exactly as your name appears on the other side of this Debt Warrant)
Date:_______________________________________
Signature Guarantee:*_________________________________________________
In connection with any transfer of any of the Debt Warrants evidenced by
this Debt Warrant Certificate occurring prior to the date that is two years (or
such shorter period as may then be applicable under Rule 144(k) of the United
States Securities Act of 1933, as amended (the "Securities Act") (or any
successor provision)), after the later of the date of original issuance of such
Debt Warrants and the last date, if any, on which such Debt Warrants were owned
by the Company or any affiliate of the Company, the undersigned confirms that
this Debt Warrant Certificate is being transferred:
CHECK ONE BOX BELOW
(1) to the Company or a subsidiary thereof; or
(2) to a "qualified institutional buyer" pursuant to and in
compliance with Rule 144A under the Securities Act; or
(3) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act; or
(4) pursuant to an effective registration statement under the Securities
Act; or
(5) pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Debt Warrant Agent will refuse to
register this Debt Warrant Certificate in the name of any person other than the
Holder hereof; provided, however, that (i) if box (3) is checked, the transferee
shall deliver a letter in the form of Annex A to the Debt Warrant Agreement to
the Debt Warrant Agent and (ii) if box (5) is checked, the Company may require,
prior to registering any transfer of this Debt Warrant Certificate, such
certifications, legal opinions and/or other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to the
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
____________________________________________
*Signature must be guaranteed by a commercial bank, trust company
or member firm or a major stock exchange
6
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF HOGAN & HARTSTON L.L.P.]
August 14, 1998
EOP Operating Limited Partnership
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Dear Ladies and Gentlemen:
We are acting as counsel to EOP Operating Limited Partnership, a Delaware
limited partnership (the "COMPANY"), in connection with its registration
statement on Form S-4 (the "REGISTRATION STATEMENT") filed with the Securities
and Exchange Commission relating to the proposed public offering of up to (i)
$775,000,000 in aggregate principal amount of the Company's 6.50% Notes due
2004, 6.763% Notes due 2007 and 7.25% Notes due 2028 (collectively, the
"EXCHANGE NOTES") in exchange for up to $775,000,000 in aggregate principal
amount of the Company's outstanding 6.50% Notes due 2004, 6.763% Notes due 2007
and 7.25% Notes due 2028 (collectively, the "PRIVATE NOTES") and (ii) 300,000 of
the Company's Warrants to Purchase $300,000,000 6.763% Notes due 2008 (the
"EXCHANGE WARRANTS") in exchange for up to 300,000 of the Company's outstanding
Warrants to Purchase $300,000,000 6.763% Notes due 2008 (the "PRIVATE
WARRANTS"). This opinion letter is furnished to you at your request to enable
you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R.
sec. 229.601(b)(5), in connection with the Registration Statement.
For purposes of the opinions expressed in this letter, we have examined
copies of the following documents:
1. An executed copy of the Registration Statement.
2. An executed copy of the Indenture, dated September 2, 1997, between
the Company and State Street Bank and Trust Company, as Trustee (the
"TRUSTEE"), as supplemented by the Supplemental Indenture, dated February
2, 1998, between the Company and the Trustee (together, the "INDENTURE").
3. An executed copy of the Warrant Agreement, dated as of June 15,
1998, between the Company and State Street Bank and Trust Company, as
warrant agent (the "WARRANT AGREEMENT").
4. The Certificate of Limited Partnership of the Company, as certified
by the Secretary of State of the State of Delaware on July 6, 1998, and by
the Secretary of Equity Office Properties Trust (the "TRUST"), as managing
general partner of the Company, on the date hereof as then being complete,
accurate and in effect.
5. The Agreement of Limited Partnership of the Company, as certified
by the Secretary of the Trust, as managing general partner of the Company,
on the date hereof as then being complete, accurate and in effect.
6. The Articles of Amendment and Restatement of Declaration of Trust
of the Trust, as certified by the Maryland State Department of Assessments
and Taxation on August 3, 1998, and by the Secretary of the Trust on the
date hereof as then being complete, accurate and in effect.
7. The Bylaws of the Trust, as certified by the Secretary of the Trust
on the date hereof as then being complete, accurate and in effect.
8. Certain resolutions of the Board of Trustees of the Trust, as
managing general partner of the Company, adopted at a meeting duly held on
June 10, 1998, and certain resolution of the Pricing Committee of the Board
of Trustees of the Trust adopted at a meeting duly held on June 10, 1998,
as certified by the Secretary of the Trust on the date hereof as then being
complete, accurate and in effect, relating, among other things, to the
issuance and sale of the Exchange Notes and Exchange Warrants and
arrangements in connection therewith.
<PAGE> 2
EOP Operating Limited Partnership
August 14, 1998
Page 2
9. Forms of Exchange Notes to be issued pursuant to the Indenture, as
filed as Exhibits 4.3, 4.4 and 4.5 to the Registration Statement.
10. Form of Global Debt Warrant Certificate representing Exchange
Warrants to be issued pursuant to the Warrant Agreement, as filed as
Exhibit 4.9 to the Registration Statement.
In our examination of the aforesaid certificates, documents and agreements,
we have assumed the genuineness of all signatures, the legal capacity of all
natural persons, the accuracy and completeness of all documents submitted to us,
the authenticity of all original documents and the conformity to authentic
original documents of all documents submitted to us as copies (including
telecopies). We also have assumed the authenticity, accuracy and completeness of
the foregoing certifications (of public officials and corporate officers) and
statements of fact, on which we are relying, and have made no independent
investigations thereof. This opinion letter is given, and all statements herein
are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the Delaware
Revised Uniform Limited Partnership Act, as amended, Title 8 of the Corporations
and Associations Article of the Annotated Code of Maryland and the contract law
of the State of New York (but not including any statutes, ordinances,
administrative decisions, rules, or regulations of any political subdivision of
the State of New York). We express no opinion herein as to any other laws,
statutes, ordinances, rules or regulations.
Based upon, subject to and limited by the foregoing, we are of the opinion
that:
(a) Following (i) execution, authentication, issuance and delivery of
the Exchange Notes in accordance with the terms of the Indenture and as
described in the Registration Statement, (ii) effectiveness of the
Registration Statement, and (iii) receipt by the Company of the Private
Notes in exchange for the Exchange Notes as specified in the resolutions of
the Board of Trustees referred to in paragraph 8 above, the Exchange Notes
will constitute binding obligations of the Company, enforceable in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights (including, without limitation, the effect of statutory and other
law regarding fraudulent conveyances, fraudulent transfers and preferential
transfers) and as may be limited by the exercise of judicial discretion and
the application of principles of equity including, without limitation,
requirements of good faith, fair dealing, conscionability and materiality
(regardless of whether the Exchange Notes are considered in a proceeding in
equity or at law).
(b) Following (i) execution, authentication and delivery in accordance
with the terms of the Warrant Agreement and as described in the
Registration Statement, (ii) effectiveness of the Registration Statement,
and (iii) receipt by the Company of the Private Warrants in exchange for
the Exchange Warrants as specified in the resolutions of the Board of
Trustees referred to in paragraph 8 above, the Exchange Warrants will
constitute valid and legally binding obligations of the Company, entitled
to the benefits of the Warrant Agreement and enforceable against the
Company in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights (including, without limitation, the
effect of statutory and other law regarding fraudulent conveyances,
fraudulent transfers and preferential transfers) and as may be limited by
the exercise of judicial discretion and the application of principles of
equity, including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether enforcement
is considered in a proceeding in equity or at law).
The opinions set forth in paragraphs (a) and (b) above shall be understood
to mean only that if there is a default in performance of an obligation, (i) if
a failure to pay or other damage can be shown and (ii) if the defaulting party
can be brought into a court which will hear the case and apply the governing
law, then, subject to the availability of defenses and to the exceptions set
forth above, the court will provide a money damage (or perhaps injunctive or
specific performance) remedy.
<PAGE> 3
EOP Operating Limited Partnership
August 14, 1998
Page 3
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and should not be quoted in whole
or in part or otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to
the Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus constituting a part of the Registration
Statement. In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE> 1
EXHIBIT 8.1
[LETTERHEAD OF HOGAN & HARTSON L.L.P.]
August 14, 1998
EOP Operating Limited Partnership
Two North Riverside Plaza
Chicago, Illinois 60606
Ladies and Gentlemen:
We have acted as special tax counsel to EOP Operating Limited Partnership
(the "Company"), a Delaware limited partnership, in connection with the exchange
offer (the "Exchange Offer") to provide holders of its outstanding 6.50% Notes
due 2004, 6.763% Notes due 2007 and 7.25% Notes due 2028 (collectively, the
"Private Notes") and Warrants to Purchase $300,000,000 6.763% Notes due 2008
(the "Private Warrants") the opportunity to exchange such Private Notes and
Private Warrants for its 6.50% Notes due 2004, 6.763% Notes due 2007 and 7.25%
Notes due 2028 (collectively, the "Exchange Notes") and its Warrants to Purchase
$300,000,000 6.763% Notes due 2008 (the "Exchange Warrants"), as more fully
described in the Registration Statement on Form S-4 containing the prospectus of
the Company (the "Prospectus") filed with the Securities and Exchange Commission
on August 14, 1998. Unless otherwise defined herein or the context hereof
otherwise requires, each term used herein with initial capitalized letters has
the meaning given to such term in the Prospectus.
The opinion set forth in this letter is based on relevant current
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury Regulations thereunder (including proposed and temporary Treasury
Regulations), and interpretations of the foregoing as expressed in court
decisions, legislative history, and administrative determinations of the
Internal Revenue Service (the "IRS") (including its practices and policies in
issuing private letter rulings, which are not binding on the IRS, except with
respect to a taxpayer that receives such a ruling), all as of the date hereof.
These provisions and interpretations are subject to changes, which may or may
not be retroactive in effect, that might result in material modifications of our
opinion. Our opinion does not foreclose the possibility of a contrary
determination by the IRS or a court of competent jurisdiction, or of a contrary
position by the IRS or the Treasury Department in regulations or rulings issued
in the future. In this regard, although we believe that our opinion set forth
herein will be sustained if challenged, an opinion of counsel with respect to an
issue is not binding on the IRS or the courts, and is not a guarantee that the
IRS will not assert a contrary position with respect to such issue or that a
court will not sustain such a position asserted by the IRS.
In rendering the following opinion, we have examined such statutes,
regulations, records, certificates and other documents as we have considered
necessary or appropriate as a basis for such opinion, including the following:
(1) the Prospectus, (2) the forms of the Private Notes, Private Warrants,
Exchange Notes and Exchange Warrants, and (3) the Registration Rights Agreement.
For purposes of rendering our opinion, we have not made an independent
investigation or audit of the facts set forth in any of the above referenced
documents, including the Prospectus. We consequently have relied on the
assumption that all such representations and information presented in such
documents or otherwise furnished to us is accurate and complete in all material
respects. We are not, however, aware of any material facts or circumstances
contrary to, or inconsistent with, the representations we have relied upon as
described herein or other assumptions set forth herein.
In our review, we have assumed that all of the representations and
statements set forth in the documents that we reviewed are true and correct, and
all of the obligations imposed by any such documents on the parties thereto have
been and will continue to be performed or satisfied in accordance with their
terms. We also have assumed the genuineness of all signatures, the proper
execution of all documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of documents submitted to us as copies,
and the authenticity of the originals from which any copies were made.
<PAGE> 2
EOP Operating Limited Partnership
August 14, 1998
Page 2
Based upon, subject to, and limited by the assumptions and qualifications
set forth herein, we are of the opinion that the exchange of the Private Notes
and Private Warrants for the Exchange Notes and Exchange Warrants, respectively,
pursuant to the Exchange Offer will not be treated as an exchange for federal
income tax purposes, because the Exchange Notes and Exchange Warrants will not
differ materially in kind or extent from the Private Notes and Private Warrants,
respectively, and because the exchange will occur by operation of the original
terms of the Private Notes and Private Warrants.
We assume no obligation to advise you of any changes in our opinion or of
any new developments in the application or interpretation of the federal income
tax laws subsequent to date of this letter. This opinion letter has been
prepared solely for you use in connection with the filing of the Registration
Statement on the date of the opinion letter and should not be quoted in whole or
in part or otherwise referred to, or filed with or furnished to any government
agency or other person or entity without the prior written consent of this firm.
We hereby consent to the filing of this opinion letter as an Exhibit to the
Registration Statement and to the reference to Hogan & Hartson L.L.P. under the
captions "Summary -- The Exchange Offer," "Legal Matters" and "Federal Income
Tax Consequences" in the Prospectus. In giving this consent, we do not thereby
admit that we are an "expert" within the meaning of the Securities Act of 1933,
as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
--------------------------------------
Hogan & Hartson L.L.P.
<PAGE> 1
EXHIBIT 23.3
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of EOP Operating
Limited Partnership for the registration of debt securities and warrants
exercisable for debt securities and to the incorporation by reference therein
of our reports indicated below with respect to the financial statements
indicated below included in EOP Operating Limited Partnership's filings as
indicated below, filed with the Securities and Exchange Commission.
Financial Statements Date of Auditors' Report
-------------------- ------------------------
Consolidated financial statements of EOP February 23, 1998, except
Operating Limited Partnership included in its for Note 25, as to which the
Annual Report (Form 10-K, as amended by Form date is March 18, 1998
10-K/A) for the year ended December 31, 1997
The following reports are included in the
Current Report of EOP Operating Limited
Partnership on Form 8-K dated June 26, 1998:
Statement of Revenue and Certain Expenses of
Denver Post Tower for the year ended
December 31, 1997 April 28, 1998
Combined Statement of Revenue and Certain
Expenses 301 Howard Street and 215 Fremont
Street for the year ended October 31, 1997 April 29, 1998
Combined Statement of Revenue and Certain
Expenses of the Mountain Properties for the
year ended December 31, 1997 April 28, 1998
Statement of Revenue and Certain Expenses of
Millennium Plaza for the year ended
December 31, 1997 June 22, 1998
Statement of Revenue and Certain Expenses of
Polk & Taylor for the year ended
December 31, 1997 June 18, 1998
Combined Statement of Revenue and Certain
Expenses of Colonnade I, Colonnade II, and the
Walker Building for the year ended
December 31, 1997 June 12, 1998
Statement of Revenue and Certain Expenses of
Columbia Seafirst Center for the year ended
December 31, 1997 July 1, 1998
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
Chicago, Illinois
August 13, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
EOP Operating Limited Partnership on Form S-4 of our reports dated January 21,
1997, on our audits of the financial statements and financial statement
schedules of Beacon Properties, L.P., which reports were filed with the
Securities and Exchange Commission on the Form 8-K/A of EOP Operating Limited
Partnership on February 18, 1998. We also consent to the reference to our firm
under the caption "Experts."
/s/PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
August 13,1998
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
EOP OPERATING LIMITED PARTNERSHIP
OFFER TO EXCHANGE
$250,000,000 6.50% NOTES DUE 2004 FOR ANY AND ALL OUTSTANDING 6.50% NOTES DUE
2004
$300,000,000 6.763% NOTES DUE 2007 FOR ANY AND ALL OUTSTANDING 6.763% NOTES DUE
2007
$225,000,000 7.25% NOTES DUE 2028 FOR ANY AND ALL OUTSTANDING 7.25% NOTES DUE
2028
300,000 DEBT WARRANTS TO PURCHASE $300,000,000 6.763% NOTES DUE 2008 FOR ANY AND
ALL OUTSTANDING
DEBT WARRANTS TO PURCHASE $300,000,000 6.763% NOTES DUE 2008
PURSUANT TO THE PROSPECTUS DATED AUGUST , 1998
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 1998 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS
EXTENDED BY EOP OPERATING LIMITED PARTNERSHIP.
The Exchange Agent for the Exchange Offer is:
STATE STREET BANK AND TRUST COMPANY
<TABLE>
<CAPTION>
By Mail: By Facsimile Transmission: By Overnight Delivery or Hand:
-------- -------------------------- ------------------------------
<S> <C> <C>
State Street Bank and (For Eligible Institutions State Street Bank and
Trust Company Only) Trust Company
P.O. Box 778 (617) 664-5232 Two International Place
Boston 4th Floor
Massachusetts 02102-0778 Confirm by Telephone: Boston Massachusetts 02110
Attention: Corporate Trust (617) 664-5590 Attention: Corporate Trust
Window Window
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE
INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED. CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL
HAVE THE SAME MEANING GIVEN THEM IN THE PROSPECTUS (AS DEFINED BELOW).
Originals of all documents sent by facsimile should be sent promptly by
registered or certified mail, by hand or by overnight delivery service.
Facsimile transmission is available to a member firm of a registered national
securities exchange, a member firm of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" within
the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (an "Eligible Institution").
This Letter of Transmittal is to be completed by holders of Private Notes
and/or Private Warrants (each as defined below) either if Private Notes and/or
Private Warrants are to be forwarded herewith or if tenders of Private Notes
and/or Private Warrants are to be made by book-entry transfer to an account
maintained by State Street Bank and Trust Company (the "Exchange Agent") at The
Depository Trust Company ("DTC") pursuant to the procedures set forth in "The
Exchange Offer -- Procedures for Tendering" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
<PAGE> 2
------------------------
The undersigned hereby acknowledges receipt and review of the Prospectus
dated August , 1998 (the "Prospectus") of EOP Operating Limited Partnership, a
Delaware limited partnership (the "Company"), and this Letter of Transmittal
(the "Letter of Transmittal"), which together describe the Company's offer (the
"Exchange Offer") to provide Holders (as defined below) of its outstanding 6.50%
Notes due 2004 (the "2004 Notes"), 6.763% Notes due 2007 (the "2007 Notes"),
7.25% Notes due 2028 (the "2028 Notes" and collectively with the 2004 Notes and
the 2007 Notes, the "Private Notes") and Debt Warrants to Purchase $300,000,000
6.763% Notes due 2008 (the "Private Warrants") the opportunity to exchange such
securities, for its 6.50% Notes due 2004 (the "2004 Exchange Notes"), 6.763%
Notes due 2007 (the "2007 Exchange Notes"), 7.25% Notes due 2028 (the "2028
Exchange Notes" and collectively with the 2004 Exchange Notes and the 2007
Exchange Notes, the "Exchange Notes") and Debt Warrants to Purchase $300,000,000
6.763% Notes due 2008 (the "Exchange Warrants"), respectively, which Exchange
Notes and Exchange Warrants have been registered under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to a Registration Statement of
which the Prospectus is a part. Capitalized terms used but not defined herein
have the respective meaning given to them in the Prospectus.
The term "Holder" with respect to the Exchange Offer means any person in
whose name Private Notes or Private Warrants, as the case may be, are registered
on the books of the Issuer or any other person who has obtained a properly
completed bond power from the registered Holder. The undersigned has completed,
executed and delivered this Letter of Transmittal to indicate the action the
undersigned desires to take with respect to the Exchange Offer. Holders who wish
to tender their Private Notes or Private Warrants, as the case may be, must
complete this Letter of Transmittal in its entirety. Notwithstanding the
foregoing, Holders of Private Notes or Private Warrants, as the case may be,
eligible to utilize DTC's Automated Tender Offer Program ("ATOP"), who have
opted to comply with the ATOP procedures set forth in the Prospectus under the
caption "Exchange Offer -- Procedures for Tendering," need not complete, sign or
deliver this Letter of Transmittal.
The undersigned has checked the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
IF YOU WISH TO EXCHANGE PRIVATE NOTES OR PRIVATE WARRANTS FOR AN EQUAL
AGGREGATE PRINCIPAL AMOUNT OF EXCHANGE NOTES OR AN EQUAL AGGREGATE NUMBER OF
EXCHANGE WARRANTS, RESPECTIVELY, PURSUANT TO THE EXCHANGE OFFER, YOU MUST
VALIDLY TENDER (AND NOT WITHDRAW) PRIVATE NOTES OR PRIVATE WARRANTS, AS
APPLICABLE, TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS CONTAINED HEREIN MUST BE
FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE
PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
2
<PAGE> 3
Please list below the Private Notes and/or Private Warrants to which this
Letter of Transmittal relates. If the space below is inadequate, please list the
certificate numbers and principal amounts on a separately executed schedule and
affix the schedule to this Letter of Transmittal.
<TABLE>
<CAPTION>
DESCRIPTION OF PRIVATE NOTES AND PRIVATE WARRANTS TENDERED
- ----------------------------------------------------------------------------------------------------------
DESCRIPTION OF 2004 NOTES TENDERED
- ----------------------------------------------------------------------------------------------------------
Aggregate
Name(s) and Address(es) Principal Amount Aggregate
of Registered Owner(s) Represented by Private Principal Amount
(Please fill in, if blank) Notes Tendered(1)
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
TOTAL
- ----------------------------------------------------------------------------------------------------------
<CAPTION>
DESCRIPTION OF 2007 NOTES TENDERED
- ----------------------------------------------------------------------------------------------------------
Aggregate
Name(s) and Address(es) Principal Amount Aggregate
of Registered Owner(s) Represented by Private Principal Amount
(Please fill in, if blank) Notes Tendered(1)
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
TOTAL
- ----------------------------------------------------------------------------------------------------------
<CAPTION>
DESCRIPTION OF 2028 NOTES TENDERED
- ----------------------------------------------------------------------------------------------------------
Aggregate
Name(s) and Address(es) Principal Amount Aggregate
of Registered Owner(s) Represented by Private Principal Amount
(Please fill in, if blank) Notes Tendered(1)
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
TOTAL
- ----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Unless otherwise indicated, any tendering Holder of Private Notes or
Private Warrants, as the case may be, will be deemed to have tendered the entire
aggregate principal amount represented by such Private Notes or the entire
number of Private Warrants represented by a particular Warrant Certificate. All
tenders of Private Notes must be in minimum denominations of $100,000 aggregate
principal amount and integral multiples of $1,000 in excess thereof.
3
<PAGE> 4
<TABLE>
<CAPTION>
DESCRIPTION OF PRIVATE WARRANTS TENDERED
- ----------------------------------------------------------------------------------------------------------
Aggregate
Name(s) and Address(es) Number of Private
of Registered Owner(s) Warrants represented by Aggregate Number
(Please fill in, if blank) Warrant Certificate Tendered(1)
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
TOTAL
- ----------------------------------------------------------------------------------------------------------
</TABLE>
TENDER OF PRIVATE NOTES AND/OR PRIVATE WARRANTS
- --------------------------------------------------------------------------------
[ ] Check here if tendered Private Notes and/or Private Warrants are
enclosed herewith.
[ ] Check here if tendered Private Notes and/or Private Warrants are being
delivered by book-entry transfer made to the account maintained by the
Exchange Agent at DTC and complete the following (For Use By Eligible
Institutions Only):
Name of Tendering Institution:
-------------------------------------------
DTC Account Number:
------------------------------------------------------
Transaction Code Number:
-------------------------------------------------
[ ] Check here if tendered Private Notes and/or Private Warrants are being
delivered pursuant to a Notice of Guaranteed Delivery enclosed
herewith and complete the following (For Use By Eligible Institutions
Only):
Name of Registered Note and/or Warrant Holder(s):
-------------------------
Window Ticket Number (if any):
--------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
-----------------------
Name of Eligible Institution that Guaranteed Delivery:
--------------------
[ ] Check here if you are a broker-dealer who acquired the Private Notes
and/or Private Warrants for its own account as a result of market
making or other trading activities (a "Participating Broker-Dealer")
and wish to receive additional copies of the Prospectus and any
amendments or supplements thereto. In such case, please complete the
following:
Name:
---------------------------------------------------------------------
Address:
------------------------------------------------------------------
Area Code and Telephone Number:
-------------------------------------------
Contact Person:
-----------------------------------------------------------
Quantity:
-----------------------------------------------------------------
4
<PAGE> 5
LADIES AND GENTLEMEN:
The undersigned hereby tenders to the Company the above described aggregate
principal value of Private Notes and aggregate number of Private Warrants in
exchange for a like aggregate principal value of Exchange Notes and a like
aggregate number of Exchange Warrants, respectively, upon the terms and subject
to the conditions set forth in the Prospectus.
Subject to and effective upon the acceptance for exchange of all or any
portion of the Private Notes and Private Warrants tendered herewith in
accordance with the terms and conditions of the Exchange Offer (including, if
the Exchange Offer is extended or amended, the terms and conditions of any such
extension or amendment), the undersigned hereby sells, assigns and transfers to
or upon the order of the Company all right, title and interest in and to such
Private Notes and Private Warrants as are being tendered herewith. The
undersigned hereby irrevocably constitutes and appoints the Exchange Agent as
its agent and attorney-in-fact (with full knowledge that the Exchange Agent is
also acting as agent of Company in connection with the Exchange Offer) with
respect to the tendered Private Notes and Private Warrants, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), subject only to the right of withdrawal described in
the Prospectus, to (i) deliver such Private Notes and Private Warrants, or
transfer ownership of such Private Notes and Private Warrants on the account
books maintained by DTC, to the Company and deliver all accompanying evidences
of transfer and authenticity, and (ii) present such Private Notes and Private
Warrants for transfer on the books of the Company and receive all benefits and
otherwise exercise all rights of beneficial ownership of such Private Notes and
Private Warrants, all in accordance with the terms and conditions of the
Exchange Offer. The power of attorney granted in this paragraph shall be deemed
to be irrevocable and coupled with an interest. See "The Exchange Offer --
Procedures for Tendering" in the Prospectus.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE
PRIVATE NOTES AND PRIVATE WARRANTS TENDERED HEREBY AND TO ACQUIRE THE EXCHANGE
NOTES AND EXCHANGE WARRANTS, RESPECTIVELY, ISSUABLE UPON THE EXCHANGE OF SUCH
TENDERED PRIVATE NOTES AND PRIVATE WARRANTS, AND THAT, WHEN SUCH PRIVATE NOTES
AND PRIVATE WARRANTS ARE ACCEPTED FOR EXCHANGE, THE COMPANY WILL ACQUIRE GOOD,
MARKETABLE AND UNENCUMBERED TITLE THERETO, FREE AND CLEAR OF ALL LIENS,
RESTRICTIONS, CHARGES AND ENCUMBRANCES AND NOT SUBJECT TO ANY ADVERSE CLAIMS OR
PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL
DOCUMENTS DEEMED BY THE COMPANY OR THE EXCHANGE AGENT TO BE NECESSARY OR
DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE PRIVATE NOTES
AND PRIVATE WARRANTS TENDERED HEREBY, INCLUDING THE TRANSFER OF SUCH PRIVATE
NOTES AND PRIVATE WARRANTS ON THE ACCOUNT BOOKS MAINTAINED BY DTC. THE
UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The undersigned understands that tenders of Private Notes and Private
Warrants pursuant to any one of the procedures described in "The Exchange
Offer -- Procedures for Tendering" in the Prospectus and in the instructions
hereto will, upon the Company's acceptance for exchange of such tendered Private
Notes and Private Warrants, constitute a binding agreement between the
undersigned and the Company upon the terms and subject to the conditions of the
Exchange Offer. The undersigned recognizes that, under certain circumstances set
forth in the Prospectus, the Company may not be required to accept for exchange
any of the Private Notes and Private Warrants tendered hereby.
The undersigned, if a Holder of Private Notes, hereby waives the right to
receive any payment in respect of interest on the Private Notes accrued from the
later of June 15, 1998 or the Interest Payment Date immediately preceding the
date of issuance of the Exchange Notes to the date of issuance of the Exchange
Notes. Interest on the Private Notes which are exchanged for the Exchange Notes
will cease to accrue on the day preceding the date of issuance of the Exchange
Notes. Interest payable on the first Interest Payment Date with respect to the
Exchange Notes will include accrued but unpaid interest due on the Private Notes
(which they replace) for the period from the later of June 15, 1998 or the
Interest Payment Date immediately preceding the date of issuance of the
applicable Exchange Notes to the date of such issuance and will be paid to
persons in whose name the applicable Exchange Notes are registered in the
security register applicable to the Exchange Notes as of the close of business
on the date 15 days prior to such payment date.
5
<PAGE> 6
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Notes and
Exchange Warrants issued in exchange for Private Notes and Private Warrants,
respectively, accepted for exchange be issued in the name(s) of the undersigned
or, in the case of a book-entry transfer of such Private Notes and Private
Warrants, that such Exchange Notes and Exchange Warrants be credited to the
account indicated above maintained at DTC. If applicable, substitute
certificates representing Private Notes and Private Warrants not tendered or not
accepted for exchange will be issued to the undersigned or, in the case of a
book-entry transfer of Private Notes and Private Warrants, will be credited to
the account indicated above maintained at DTC. Similarly, unless otherwise
indicated under "Special Delivery Instructions," the undersigned hereby directs
that Exchange Notes and Exchange Warrants, as applicable, be delivered to the
undersigned at the address shown below the undersigned's signature. In the event
that "Special Issuance Instructions" and/or "Special Delivery Instructions" are
completed, the undersigned hereby directs that the Exchange Notes and Exchange
Warrants issued in exchange for Private Notes and Private Warrants,
respectively, accepted for exchange be issued in the name(s) of and/or delivered
to, and any Private Notes and Private Warrants not tendered or not exchanged be
returned to, the person(s) so indicated. The undersigned recognizes that the
Company has no obligation pursuant to the "Special Issuance Instructions" and
"Special Delivery Instructions" to transfer any Private Notes or Private
Warrants from the name of the registered holder(s) thereof if the Company does
not accept for exchange any of the Private Notes or Private Warrants so tendered
for exchange.
The undersigned acknowledges that this Exchange Offer is being made in
reliance upon interpretations contained in no-action letters issued to third
parties by the staff of the Division of Corporation Finance of the Securities
and Exchange Commission (the "Staff") and that the Exchange Notes and Exchange
Warrants issued in exchange for the Private Notes and Private Warrants,
respectively, pursuant to the Exchange Offer may be offered for resale, resold
and otherwise transferred by Holders thereof (other than any such Holder that is
(i) an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act or (ii) a broker-dealer that acquired the Private Notes or
Private Warrants, as applicable, in a transaction other than as part of its
market-making or other trading activities), without compliance with the
registration and prospectus delivery provisions of the Securities Act, provided
that such Exchange Notes and Exchange Warrants are acquired in the ordinary
course of such Holders' business and such Holders are not engaging in and do not
intend to engage in a distribution of such Exchange Notes and Exchange Warrants
and have no arrangement or understanding with any person to participate in a
distribution of such Exchange Notes and Exchange Warrants.
BY TENDERING PRIVATE NOTES AND/OR PRIVATE WARRANTS AND EXECUTING THIS
LETTER OF TRANSMITTAL, THE UNDERSIGNED HEREBY FURTHER REPRESENTS AND WARRANTS
THAT: (I) NEITHER THE HOLDER NOR ANY OTHER PERSON RECEIVING EXCHANGE NOTES,
AND/OR EXCHANGE WARRANTS, AS APPLICABLE, FROM THE HOLDER IS AN "AFFILIATE" OF
THE COMPANY WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES ACT; (II) THE
EXCHANGE NOTES AND/OR EXCHANGE WARRANTS, AS APPLICABLE, TO BE RECEIVED BY THE
UNDERSIGNED IN EXCHANGE FOR PRIVATE NOTES AND/OR PRIVATE WARRANTS, RESPECTIVELY,
TENDERED HEREBY ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS,
WHETHER OR NOT THE UNDERSIGNED IS THE HOLDER; (III) NEITHER THE UNDERSIGNED NOR
ANY OTHER PERSON RECEIVING EXCHANGE NOTES AND/OR EXCHANGE WARRANTS, AS
APPLICABLE, IS ENGAGING IN OR INTENDS TO ENGAGE IN A DISTRIBUTION OF THE
EXCHANGE NOTES AND/OR EXCHANGE WARRANTS, AS APPLICABLE, AND (IV) NEITHER THE
UNDERSIGNED NOR ANY OTHER PERSON RECEIVING EXCHANGE NOTES AND/OR EXCHANGE
WARRANTS, AS APPLICABLE, HAS AN ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO
PARTICIPATE IN A DISTRIBUTION OF EXCHANGE NOTES AND/OR EXCHANGE WARRANTS, AS
APPLICABLE, TO BE RECEIVED IN THE EXCHANGE OFFER.
BY TENDERING PRIVATE NOTES AND/OR PRIVATE WARRANTS PURSUANT TO THE EXCHANGE
OFFER AND EXECUTING THIS LETTER OF TRANSMITTAL, A HOLDER OF PRIVATE NOTES AND/OR
PRIVATE WARRANTS THAT IS A BROKER-DEALER REPRESENTS AND AGREES, CONSISTENT WITH
CERTAIN INTERPRETIVE LETTERS ISSUED BY THE STAFF TO THIRD PARTIES, THAT (A) SUCH
PRIVATE NOTES AND/OR PRIVATE WARRANTS HELD BY THE BROKER-DEALER ARE HELD ONLY AS
A NOMINEE, OR (B) SUCH PRIVATE NOTES AND/OR PRIVATE WARRANTS WERE ACQUIRED BY
SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES
OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER A PROSPECTUS (AS AMENDED OR
SUPPLEMENTED FROM TIME TO TIME) MEETING THE REQUIREMENTS OF THE SECURITIES ACT
IN CONNECTION WITH ANY SALE OF SUCH EXCHANGE NOTES AND/OR EXCHANGE WARRANTS
(PROVIDED THAT, BY SO ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS, SUCH
BROKER-DEALER WILL NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE
MEANING OF THE SECURITIES ACT).
6
<PAGE> 7
The Company has agreed that, subject to the provisions of the Registration
Rights Agreements, the Prospectus, as it may be amended or supplemented from
time to time, may be used by a Participating Broker-Dealer in connection with
resales of the Exchange Notes and/or Exchange Warrants received in exchange for
Private Notes and/or Private Warrants, respectively, for a period ending 180
days after the Expiration Date (subject to extension under certain limited
circumstances described in the Prospectus) or, if earlier, when all such
Exchange Notes and/or Exchange Warrants have been disposed of by such
Participating Broker-Dealer. In that regard, each Participating Broker-Dealer,
by tendering such Private Notes and executing this Letter of Transmittal, agrees
that, upon receipt of notice from the Company of the occurrence of any event or
the discovery of any fact which makes any statement contained or incorporated by
reference in the Prospectus untrue in any material respect or which causes the
Prospectus to omit to state a material fact necessary in order to make the
statements contained or incorporated by reference therein, in light of the
circumstances under which they were made, not misleading or of the occurrence of
certain other events specified in the Registration Rights Agreements, such
Participating Broker-Dealer will suspend the sale of Exchange Notes and/or
Exchange Warrants, as applicable, pursuant to the Prospectus until the Company
has amended or supplemented the Prospectus to correct such misstatement or
omission and has furnished copies of the amended or supplemented Prospectus to
the Participating Broker-Dealer or the Company has given notice that the sale of
the Exchange Notes and/or Exchange Warrants, as applicable, may be resumed, as
the case may be, if the Company gives such notice to suspend the sale of the
Exchange Notes and/or Exchange Warrants, as applicable, it shall extend the
180-day period referred to above during which Participating Broker-Dealers are
entitled to use the Prospectus in connection with the resale of Exchange Notes
and/or Exchange Warrants, as applicable, by the number of days during the period
from and including the date of the giving of such notice to and including the
date when Participating Broker-Dealers shall have received copies of the
supplemented or amended Prospectus necessary to permit resales of the Exchange
Notes and/or Exchange Warrants, as applicable, or to and including the date on
which the Company has given notice that the sale of Exchange Notes and/or
Exchange Warrants, as applicable, may be resumed, as the case may be.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and every
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted for exchange validly tendered Private Notes and Private Warrants when,
as and if the Company gives oral or written notice thereof to the Exchange
Agent. Any tendered Private Notes and Private Warrants that are not accepted for
exchange pursuant to the Exchange Offer for any reason will be returned, without
expense, to the undersigned at the address shown below or at a different address
as may be indicated herein under "Special Delivery Instructions" or, if tendered
by book-entry transfer, by crediting the account indicated above maintained at
DTC, as promptly as practicable after the Expiration Date.
Please be advised that the Company is registering the Exchange Notes and
Exchange Warrants in reliance on the position of the Staff enunciated in Exxon
Capital Holdings Corp. (available April 13, 1989) and Morgan Stanley & Co.
Incorporated (available June 5, 1991). The Company has not entered into any
arrangement or understanding with any person to distribute the Exchange Notes or
the Exchange Warrants to be received in the Exchange Offer and, to the best of
its information and belief, each person participating in the Exchange Offer is
acquiring the Exchange Notes and/or the Exchange Warrants, as the case may be,
in its ordinary course of business and has no arrangement or understanding with
any person to participate in the distribution of the Exchange Notes or the
Exchange Warrants to be received in the Exchange Offer. In this regard, the
undersigned is aware that if the undersigned is participating in the Exchange
Offer for the purpose of distributing the Exchange Notes or the Exchange
Warrants to be acquired in the Exchange Offer, the undersigned (a) may not rely
on the Staff position enunciated in Exxon Capital Holdings Corp. or
interpretative letters to similar effect and (b) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction. The undersigned is aware that
such a secondary resale transaction by a person participating in the Exchange
Offer for the purpose of distributing the Exchange Notes or the Exchange
Warrants should be covered by an effective registration statement containing the
selling securityholder information required by Item 507 of Regulation S-K.
7
<PAGE> 8
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, AND 6)
To be completed ONLY if the Exchange Notes or the Exchange Warrants or any
Private Notes or Private Warrants delivered, but not tendered for exchange, are
to be sent to someone other than the registered holder of the Private Notes or
Private Warrants whose name(s) appear(s) above, or such registered holder(s) at
an address other than that shown above.
Issue: [ ] Exchange Notes and Exchange Warrants and/or
[ ] Private Notes and Private Warrants delivered but not tendered for
exchange:
Name(s)
- --------------------------------------------
(Please Print)
Address:
- --------------------------------------------
(Please Print)
- --------------------------------------------
(Please Include ZIP Code)
- --------------------------------------------
(Telephone number with Area Code)
- --------------------------------------------
Tax ID Number
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, AND 6)
To be completed ONLY if the Exchange Notes or the Exchange Warrants or any
Private Notes or Private Warrants delivered, but not tendered for exchange, are
to be issued in the name of someone other than the registered holder of the
Private Notes or Private Warrants whose name(s) appear(s)
above.
Issue: [ ] Exchange Notes and Exchange Warrants and/or
[ ] Private Notes and Private Warrants delivered but not tendered for
exchange:
Name(s)
- --------------------------------------------
(Please Print)
Address:
- --------------------------------------------
(Please Print)
- --------------------------------------------
(Please Include ZIP Code)
- --------------------------------------------
(Telephone number with Area Code)
- --------------------------------------------
Tax ID Number
8
<PAGE> 9
HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(Please Complete Substitute Form W-9 Contained Herein)
(Note: Signatures Must be Guaranteed if Required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
certificates for the Private Notes and/or Private Warrants tendered (or, in the
case of book-entry securities, on the relevant security position listing), or by
any person(s) authorized to become the registered holder(s) by endorsements and
documents transmitted herewith (including such opinions of counsel,
certifications and other information as may be required by the Company to comply
with the restrictions on transfer applicable to the Private Notes and/or Private
Warrants). If signature is by an attorney-in-fact, executor, administrator,
trustee, guardian, officer or a corporation or another acting in a fiduciary
capacity or representative capacity, please set forth the signer's full title.
See Instruction 5.
X
- ---------------------------------------------------
X
- ---------------------------------------------------
(SIGNATURE(S) OF HOLDER(S) OR AUTHORIZED SIGNATORY)
Date: , 1998
----------------------------------------
Name(s):
-------------------------------------------
- ---------------------------------------------------
(PLEASE PRINT)
Capacity:
------------------------------------------
Address:
-------------------------------------------
- ---------------------------------------------------
(PLEASE INCLUDE ZIP CODE)
Telephone No. (with area code):
- ---------------------------------------------------
Tax ID No.:
----------------------------------------
GUARANTEE OF SIGNATURES
(See Instruction 2 and 5 below)
Certain Signatures Must be Guaranteed
by an Eligible Institution
- ---------------------------------------------------
(AUTHORIZED SIGNATURE)
- ---------------------------------------------------
(CAPACITY (FULL TITLE))
- ---------------------------------------------------
- ---------------------------------------------------
(NAME OF ELIGIBLE INSTITUTION GUARANTEEING SIGNATURE)
- ---------------------------------------------------
(ADDRESS OF FIRM -- PLEASE INCLUDE ZIP CODE)
- ---------------------------------------------------
Telephone No. (with area code) of Firm:
- ---------------------------------------------------
Date: , 1998
----------------------------------------
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND PRIVATE NOTES, PRIVATE WARRANTS
AND/OR BOOK-ENTRY CONFIRMATIONS; GUARANTEED DELIVERY PROCEDURES. This Letter of
Transmittal is to be completed either if (a) certificates are to be forwarded
herewith or (b) tenders are to be made pursuant to the procedures for tender by
book-entry transfer set forth in "The Exchange Offer -- Procedures for
Tendering" in the Prospectus. Certificates representing, or timely confirmation
of a book-entry transfer (a "Book-Entry Confirmation") of, such Private Notes
and/or Private Warrants into the Exchange Agent's account at DTC, as well as
this Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date.
9
<PAGE> 10
Holders who wish to tender their Private Notes and/or Private Warrants and
(i) whose Private Notes and/or Private Warrants are not immediately available or
(ii) who cannot deliver their Private Notes and/or Private Warrants, this Letter
of Transmittal and all other required documents to the Exchange Agent on or
prior to the Expiration Date or (iii) who cannot complete the procedures for
delivery by book-entry transfer on a timely basis, may tender their Private
Notes and/or Private Warrants by properly completing and duly executing a Notice
of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth
in "The Exchange Offer -- Guaranteed Delivery Procedures" in the Prospectus.
Pursuant to such procedures: (i) such tender must be made by or through an
Eligible Institution (as defined on the cover hereof); (ii) a properly completed
and duly executed Notice of Guaranteed Delivery, substantially in the form made
available by the Company, must be received by the Exchange Agent on or prior to
the Expiration Date; and (iii) the certificates (or a Book-Entry Confirmation)
representing all tendered Private Notes and/or Private Warrants, in proper form
for transfer, together with a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees and
any other documents required by this Letter of Transmittal, must be received by
the Exchange Agent within three New York Stock Exchange ("NYSE") trading days
after the date of execution of such Notice of Guaranteed Delivery, all as
provided in "The Exchange Offer -- Guaranteed Delivery Procedures" in the
Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Private Notes
and/or Private Warrants to be properly tendered pursuant to the guaranteed
delivery procedure, the Exchange Agent must receive a Notice of Guaranteed
Delivery on or prior to the Expiration Date.
THE METHOD OF DELIVERY OF PRIVATE NOTES, PRIVATE WARRANTS, THIS LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF
THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE EXCHANGE AGENT, IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH
RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering Holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. GUARANTEE OF SIGNATURES. NO SIGNATURE GUARANTEE ON THIS LETTER OF
TRANSMITTAL IS REQUIRED IF:
(i) this Letter of Transmittal is signed by the registered holder (which
term, for purposes of this document, shall include any participant in
DTC whose name appears on the relevant security position listing as
the owner of the Private Notes or Private Warrants, as applicable) of
Private Notes and/or Private Warrants tendered herewith, unless such
holder(s) has completed either the box entitled "Special Issuance
Instructions" or the box entitled "Special Delivery Instructions"
above, or
(ii) such Private Notes and/or Private Warrants are tendered for the
account of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Private Notes and Private Warrants Tendered" is inadequate, the
certificate number(s) and/or the aggregate principal amount of Private Notes or
aggregate number of Private Warrants, as applicable, and any other required
information should be listed on a separate signed schedule which is attached to
this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. If less than all the Private
Notes or Private Warrants, as applicable, evidenced by any note or certificate
submitted are to be tendered, fill in the aggregate principal amount of Private
Notes or aggregate number of Private Warrants, as applicable, which are to be
tendered in the applicable box entitled "Aggregate Principal Amount Tendered" or
"Aggregate Number Tendered", as applicable. In such case, new certificates(s)
for the remainder of the Private Notes that were evidenced by
10
<PAGE> 11
your old certificate(s) will be sent to the holder of the Private Notes or
Private Warrants, as applicable, (or such other party as you identify in the box
captioned "Special Delivery Instructions"), promptly after the Expiration Date.
All Private Notes and Private Warrants represented by certificates delivered to
the Exchange Agent will be deemed to have been tendered unless otherwise
indicated.
Except as otherwise provided herein, tenders of Private Notes or Private
Warrants may be withdrawn at any time on or prior to the Expiration Date. In
order for a withdrawal to be effective, a written, telegraphic, telex or
facsimile transmission of such notice of withdrawal must be timely received by
the Exchange Agent at its address set forth above on or prior to the Expiration
Date. Any such notice of withdrawal must specify the name of the person who
tendered the Private Notes or Private Warrants to be withdrawn, the aggregate
principal amount of Private Notes or aggregate number of Private Warrants, as
applicable, to be withdrawn, and (if certificates for Private Notes or Private
Warrants have been tendered) the name of the registered holder of such Private
Notes or Private Warrants as set forth on the note or certificate for such
Private Notes or Private Warrants, if different from that of the person who
tendered such Private Notes or Private Warrants. If Private Notes or Private
Warrants have been delivered or otherwise identified to the Exchange Agent, then
prior to the physical release of such Private Notes or Private Warrants, as the
case may be, the tendering holder must submit the serial numbers shown on the
particular Private Notes or Private Warrants to be withdrawn and the signature
on the notice of withdrawal must be guaranteed by an Eligible Institution,
except in the case of Private Notes or Private Warrants tendered for the account
of an Eligible Institution. If Private Notes or Private Warrants have been
tendered pursuant to the procedures for book-entry transfer set forth in "The
Exchange Offer -- Procedures for Tendering," the notice of withdrawal must
specify the name and number of the account at DTC to be credited with the
withdrawal of Private Notes or Private Warrants, as applicable, in which case a
notice of withdrawal will be effective if delivered to the Exchange Agent by
written, telegraphic, telex or facsimile transmission. Withdrawals of tenders of
Private Notes or Private Warrants may not be rescinded. Private Notes and
Private Warrants properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be retendered at any subsequent time on
or prior to the Expiration Date by following any of the procedures described in
the Prospectus under "The Exchange Offer -- Procedures for Tendering."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
The Company, any affiliates or assigns of the Company, the Exchange Agent or any
other person shall not be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification. Any Private Notes and Private Warrants which have
been tendered but which are withdrawn will be returned to the holder thereof
without cost to such holder promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Private
Notes and Private Warrants tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the Private Note(s) and
Private Warrants (or, in the case of book-entry securities, on the relevant
security position listing) without alteration, enlargement or any change
whatsoever.
If any of the Private Notes or Private Warrants tendered hereby are owned
of record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If this Letter of Transmittal or any Private Notes or Private Warrants or
bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing and must
submit proper evidence satisfactory to the Company, in its sole discretion, of
such persons' authority to so act.
When this Letter of Transmittal is signed by the registered owner(s) of the
Private Notes and Private Warrants listed and transmitted hereby, no
endorsement(s) of Private Note(s) and Private Warrants or separate bond power(s)
are required unless Exchange Notes and/or Exchange Warrants, as applicable, are
to be issued in the name of a person other than the registered holder(s).
Signature(s) on such Private Note(s) and Private Warrants or bond power(s) must
be guaranteed by an Eligible Institution.
11
<PAGE> 12
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Private Notes and Private Warrants listed, the
Private Notes and Private Warrants must be endorsed or accompanied by
appropriate bond powers, signed exactly as the name or names of the registered
owner(s) appear(s) on such Private Notes and Private Warrants, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Company may require in accordance with the restrictions on transfer
applicable to the Private Notes and Private Warrants. Signatures on such Private
Notes or Private Warrants or bond powers must be guaranteed by an Eligible
Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTION. If Exchange Notes and/or
Exchange Warrants are to be issued in the name of a person other than the signer
of this Letter of Transmittal, or if Exchange Notes and/or Exchange Warrants are
to be sent to someone other than the signer of this Letter of Transmittal or to
an address other than shown above, the appropriate boxes on this Letter of
Transmittal should be completed. Certificates for Private Notes or Private
Warrants not exchanged will be returned by mail or, if tendered by book-entry
transfer, by crediting the account indicated above maintained at DTC. See
Instruction 4.
7. IRREGULARITIES. The Company will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time of
receipt) and acceptance for exchange of any tender of Private Notes and/or
Private Warrants, which determination shall be final and binding on all parties.
The Company reserves the absolute right to reject any and all tenders determined
by it not to be in proper form or the acceptance of which, or exchange for, may,
in the view of counsel to the Company, be unlawful. The Company also reserves
the absolute right, subject to applicable law, to waive any conditions or
irregularity in any tender of Private Notes and/or Private Warrants of any
particular holder whether or not similar conditions or irregularities are waived
in the case of other holders. The Company's interpretation of the terms and
conditions of the Exchange Offer (including this Letter of Transmittal and the
instructions hereto) will be final and binding. No tender of Private Notes
and/or Private Warrants will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived. The
Company, any affiliates or assigns of the Company, the Exchange Agent, or any
other person shall not be under any duty to give notification of any
irregularities in tenders or incur any liability for failure to give such
notification.
8. QUESTIONS, REQUEST FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any note(s) or certificate(s)
representing Private Notes and/or Private Warrants have been lost, destroyed or
stolen, the holder should promptly notify the Exchange Agent. The holder will
then be instructed as to the steps that must be taken in order to replace the
certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen note(s)
or certificate(s) have been followed.
10. SECURITY TRANSFER TAXES. Holders who tender their Private Notes and/or
Private Warrants for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, Exchange Notes and/or Exchange Warrants are
to be delivered to, or are to be issued in the name of, any person other than
the registered holder of the Private Notes and/or Private Warrants,
respectively, tendered, or if a transfer tax is imposed for any reason other
than the exchange of Private Notes and/or Private Warrants in connection with
the Exchange Offer, then the amount of any such transfer tax (whether imposed on
the registered holder or any other persons) will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption therefrom
is not submitted with the Letter of Transmittal, the amount of such transfer
taxes will be billed directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE
EXPIRATION DATE.
12
<PAGE> 13
IMPORTANT TAX INFORMATION
Under federal income tax law, a holder whose tendered Private Notes and/or
Private Warrants are accepted for exchange is required by law to provide the
Exchange Agent with such holder's correct taxpayer identification number ("TIN")
on Substitute Form W-9 included herein or otherwise establish a basis for
exemption from backup withholding. If such holder is an individual, the TIN is
his or her social security number. If the Exchange Agent is not provided with
the correct TIN, the Internal Revenue Service may subject the holder or
transferee to a $50.00 penalty. In addition, delivery of such holder's Exchange
Notes and/or Exchange Warrants, as applicable, may be subject to backup
withholding. Failure to comply truthfully with the backup withholding
requirements also may result in the imposition of severe criminal and/or civil
fines and penalties.
Certain holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt holders should furnish their TIN, write "Exempt" on the
face of the Substitute Form W-9, and sign, date and return the Substitute Form
W-9 to the Exchange Agent. A foreign person, including entities, may qualify as
an exempt recipient by submitting to the Exchange Agent a properly completed
Internal Revenue Service Form W-8, signed under penalties of perjury, attesting
to that holder's foreign status. A Form W-8 can be obtained from the Exchange
Agent. See the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional instruction.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any payments made to the holder or other transferee. Backup withholding
is not an additional federal income tax. Rather, the federal income tax
liability of persons subject to backup withholding will be reduced by the amount
of tax withheld. If withholding results in an overpayment of taxes, a refund may
be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to Private
Notes and Private Warrants exchanged in the Exchange Offer, the holder is
required to provide the Exchange Agent with either: (i) the holder's correct TIN
by completing the form included herein, certifying that the TIN provided on
Substitute Form W-9 is correct (or that such holder is awaiting a TIN) and that
(A) the holder has not been notified by the Internal Revenue Service that the
holder is subject to backup withholding as a result of failure to report all
interest or dividends or (B) the Internal Revenue Service has notified the
holder that the holder is no longer subject to back withholding; or (ii) an
adequate basis for exemption.
NUMBER TO GIVE THE DEPOSITORY
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered holder of
the Private Notes and/or Private Warrants, as applicable. If the Private Notes
and/or Private Warrants, as applicable, are held in more than one name or are
held not in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
13
<PAGE> 14
<TABLE>
<C> <S> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
PAYER'S NAME:
- -----------------------------------------------------------------------------------------------------------------------
SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX Social Security number or
FORM W-9 AT RIGHT AND CERTIFY BY SIGNING AND DATING ------------------------------
BELOW. Employer identification number
----------------------------------------------------------------------------------
PART 2 -- Certification -- Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Number (or I am waiting
for a number to be issued to me) and
(2) I am not subject to backup withholding because (i) I have not been notified
by the Internal Revenue Service ("IRS") that I am subject to backup withholding
as a result of failure to report all interest of dividends, or (ii) the IRS
has notified me that I am no longer subject to backup withholding.
----------------------------------------------------------------------------------
PAYER'S REQUEST FOR TAXPAYER Certification Instructions -- You must cross out item
IDENTIFICATION NUMBER (TIN) (2) in Part 2 above if you have been notified by the
IRS that you are subject to backup withholding
because of underreporting interest or dividends on
your tax return. However, if after being notified by
the IRS that you are subject to backup withholding
you received another notification from the IRS PART 3
stating that you are no longer subject to backup Awaiting
withholding, do not cross out item (2). TIN [ ]
Signature Date , 1998
-------------------------- ---------
------------------------------------
Name (please print)
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW THE ENCLOSED GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE
IF YOU CHECKED THE BOX IN PART 3 OF THIS SUBSTITUTE FORM W-9
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all payments made to me on account of the Exchange
Notes and/or Exchange Warrants, as applicable, shall be retained until I
provide a taxpayer identification number to the Exchange Agent and that, if I
do not provide my taxpayer identification number with 60 days, such retained
amounts shall be remitted to the Internal Revenue Service as backup
withholding and 31% of all reportable payments made to me thereafter will be
withheld and remitted to the Internal Revenue Service until I provide a
taxpayer identification number.
SIGNATURE DATE: DATE
-------------------------------- ------------------- 1998
NAME (PLEASE PRINT)
--------------------------------------------
14
<PAGE> 15
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
EOP OPERATING LIMITED PARTNERSHIP
OFFER TO EXCHANGE
$250,000,000 6.50% NOTES DUE 2004 FOR ANY AND ALL OUTSTANDING 6.50% NOTES DUE
2004
$300,000,000 6.763% NOTES DUE 2007 FOR ANY AND ALL OUTSTANDING 6.763% NOTES DUE
2007
$225,000,000 7.25% NOTES DUE 2028 FOR ANY AND ALL OUTSTANDING 7.25% NOTES DUE
2028
300,000 DEBT WARRANTS TO PURCHASE $300,000,000 6.763% NOTES DUE 2008 FOR ANY AND
ALL OUTSTANDING
DEBT WARRANTS TO PURCHASE $300,000,000 6.763% NOTES DUE 2008
PURSUANT TO THE PROSPECTUS DATED AUGUST , 1998
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 1998 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS
EXTENDED BY EOP OPERATING LIMITED PARTNERSHIP.
This form or one substantially equivalent hereto must be used by a holder
of Private Notes or Private Warrants (each as defined below) to accept the
Exchange Offer of EOP Operating Limited Partnership (the "Issuer") and to tender
Private Notes or Private Warrants to State Street Bank and Trust Company, as
exchange agent (the "Exchange Agent") pursuant to the guaranteed delivery
procedures described in "The Exchange Offer -- Guaranteed Delivery Procedures"
of the Issuer's Prospectus dated August , 1998 (the "Prospectus") and in
Instruction 1 to the related Letter of Transmittal. The Exchange Offer provides
holders of the Issuer's outstanding 6.50% Notes due 2004 (the "2004 Notes"),
6.763% Notes due 2007 (the "2007 Notes"), 7.25% Notes due 2028 (the "2028 Notes"
and collectively with the 2004 Notes and the 2007 Notes, the "Private Notes")
and Debt Warrants to Purchase $300,000,000 6.763% Notes due 2008 (the "Private
Warrants") the opportunity to exchange such securities for its 6.50% Notes due
2004 (the "2004 Exchange Notes"), 6.763% Notes due 2007 (the "2007 Exchange
Notes"), 7.25% Notes due 2028 (the "2028 Exchange Notes" and collectively with
the 2004 Exchange Notes and the 2007 Exchange Notes, the "Exchange Notes") and
Debt Warrants to Purchase $300,000,000 6.763% Notes due 2008 (the "Exchange
Warrants"), respectively, which Exchange Notes and Exchange Warrants have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a Registration Statement of which the Prospectus is a part. Any
holder who wishes to tender Private Notes and/or Private Warrants pursuant to
such guaranteed delivery procedures must ensure that the Exchange Agent receives
this Notice of Guaranteed Delivery prior to the Expiration Date of the Exchange
Offer. Capitalized terms used but not defined herein have the respective meaning
given to them in the Prospectus.
STATE STREET BANK AND TRUST COMPANY, EXCHANGE AGENT
<TABLE>
<CAPTION>
By Mail: By Facsimile Transmission: By Overnight Delivery or Hand:
-------- -------------------------- ------------------------------
<S> <C> <C>
State Street Bank and (For Eligible Institutions State Street Bank and
Trust Company Only) Trust Company
P.O. Box 778 (617) 664-5232 Two International Place
Boston Massachusetts 4th Floor
02102-0778 Confirm by Telephone: Boston Massachusetts 02110
Attention: Corporate Trust (617) 664-5590 Attention: Corporate Trust
Window Window
</TABLE>
<PAGE> 16
------------------------
Originals of all documents sent by facsimile should be sent promptly by
registered or certified mail, by hand or by overnight delivery service.
Facsimile transmission is available to a member firm of a registered national
securities exchange, a member firm of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" within
the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (an "Eligible Institution").
DELIVERY OF THIS NOTICE TO AN ADDRESS OR TRANSMISSION OF INSTRUCTIONS VIA
FACSIMILE OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN ELIGIBLE INSTITUTION UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED ON THE LETTER
OF TRANSMITTAL FOR GUARANTEE OF SIGNATURES.
<PAGE> 1
LADIES AND GENTLEMEN:
The undersigned hereby tenders to the Issuer, upon the terms and subject to
the conditions set forth in the Prospectus and the related Letter of
Transmittal, receipt of which is hereby acknowledged, the principal amounts of
Private Notes and/or number of Private Warrants set forth below pursuant to the
guaranteed delivery procedures set forth in the Prospectus and in Instruction of
the Letter of Transmittal.
<TABLE>
DESCRIPTION OF PRIVATE NOTES AND PRIVATE WARRANTS TENDERED
- ---------------------------------------------------------------------------------------------------------------------------
CERTIFICATE NUMBER(S) (IF KNOWN) OF PRIVATE
NOTES AND/OR PRIVATE WARRANTS OR ACCOUNT NUMBER AGGREGATE AGGREGATE
AT THE BOOK-ENTRY FACILITY AND PRIVATE NOTES AND/OR AMOUNT AMOUNT
PRIVATE WARRANTS TENDERED REPRESENTED TENDERED
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
TOTAL
- -----------------------------------------------------
</TABLE>
Signature of Registered Holder(s) or Authorized Signatory:
Date:
-------------------------------------------------
Name(s):
----------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
Address:
----------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
Zip Code
Area Code and Tel. No.(s):
----------------------------
- ------------------------------------------------------
(Please Type or Print)
Principal Amount of Private
Notes Tendered: $
-------------------------------------
Number of Private
Warrants Tendered:
------------------------------------
Certificate Nos. (if available):
- ------------------------------------------------------
Total Amount Represented
by Certificate(s):
$
-----------------------------------------------------
CHECK IF PRIVATE NOTES AND PRIVATE WARRANTS WILL BE TENDERED BY BOOK-ENTRY
TRANSFER
[ ] The Depository Trust Company
Account Number:
---------------------------------------
THE GUARANTEE ON THE FOLLOWING PAGE MUST BE COMPLETED
<PAGE> 2
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, being an Eligible Institution, hereby guarantees deposit
with the Exchange Agent of either (i) the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, together with the Private Notes and Private Warrants tendered hereby
in proper form for transfer (or confirmation of the book-entry transfer of such
Private Notes and Private Warrants into the Exchange Agent's account at the
Book-Entry Transfer Facility described in the Prospectus under the caption "The
Exchange Offer -- Guaranteed Delivery Procedures" and in the Letter of
Transmittal, in proper form for transfer), and any other required documents, or
(ii) a properly transmitted Agent's Message as described in the Prospectus under
the caption "The Exchange Offer -- Procedures For Tendering," as the case may
be, all by 5:00 p.m., New York City time, within three New York Stock Exchange
trading days following the Expiration Date.
<TABLE>
<S> <C>
- ---------------------------------------------------- ----------------------------------------------------
Name of Firm Authorized Signature
- ---------------------------------------------------- ----------------------------------------------------
Address Title
- ---------------------------------------------------- Name:
Zip Code ----------------------------------------------
(Please Type or Print)
Area Code and Tel. No.: Dated:
---------------------------- ----------------------------------------------
</TABLE>
NOTE: DO NOT SEND PRIVATE NOTES OR PRIVATE WARRANT CERTIFICATES WITH THIS FORM.
ACTUAL SURRENDER OF PRIVATE NOTES OR PRIVATE WARRANTS MUST BE MADE
PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY EXECUTED
LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
