Second Supplemental Indenture

 

Exhibit 4.1
EXECUTION COPY
EOP OPERATING LIMITED PARTNERSHIP,
Issuer,
EQUITY OFFICE PROPERTIES TRUST,
Co-Obligor and Guarantor
and
U.S. BANK NATIONAL ASSOCIATION
(FORMERLY, U.S. BANK TRUST NATIONAL ASSOCIATION),
Trustee
 
SECOND SUPPLEMENTAL INDENTURE
Dated as of June 27, 2006
 
4.00% Exchangeable Senior Notes due 2026

 


 

SECOND SUPPLEMENTAL INDENTURE
     THIS SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), is entered into asof June 27, 2006, among EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership (the“Operating Partnership” or “Issuer”), having its principal offices at Two North Riverside Plaza,Suite 2100, Chicago, Illinois 60606, EQUITY OFFICE PROPERTIES TRUST, a Maryland real estateinvestment trust (the “Company” or “Guarantor”), having its principal offices at Two NorthRiverside Plaza, Suite 2100, Chicago, Illinois 60606, and U.S. BANK NATIONAL ASSOCIATION (formerly,U.S. Bank Trust National Association), a bank duly organized and existing under the laws of theUnited States, as Trustee hereunder (the “Trustee”), having its Corporate Trust Office at 100 WallStreet, 16th floor, New York, New York 10004.
     WHEREAS, the Issuer and the Trustee entered into that certain Indenture dated as of August 29,2000 (the “Original Indenture”), relating to the Issuer’s senior debt securities;
     WHEREAS, the Issuer, the Guarantor and the Trustee entered into that certain FirstSupplemental Indenture, dated as of June 18, 2001, to provide for the Guarantee in respect of theGuaranteed Securities, to establish the terms of the Guarantee and to provide for the rights,obligations and duties of the Trustee with respect to the Guarantee (the “First SupplementalIndenture”);
     WHEREAS, pursuant to Section 901 of the Indenture, the Issuer, the Guarantor and the Trusteemay enter into supplemental indentures to establish the terms and provisions of a series ofSecurities issued pursuant to the Indenture;
     WHEREAS, pursuant to Section 301 of the Indenture, the Issuer, the Guarantor and the Trusteedesire to establish the terms of a series of Guaranteed Securities entitled the “4.00% ExchangeableSenior Notes due 2026” of the Operating Partnership in respect of which the Company shall be aco-obligor (the “Notes”); and
     WHEREAS, the Issuer, the Company and the Trustee have duly authorized the execution anddelivery of this instrument to establish the terms of the Notes set forth herein and have done allthings necessary to make this instrument (together with the Original Indenture and the FirstSupplemental Indenture, the “Indenture”) a valid agreement of the parties hereto, in accordancewith its terms;
     NOW, THEREFORE, in consideration of the premises and the covenants and agreements containedherein, and for other good and valuable consideration the receipt of which is hereby acknowledged,and for the equal and proportionate benefit of the Holders of the Securities, the Issuer, theCompany and the Trustee agree as follows:
ARTICLE ONE
DEFINITIONS
     Section 1.01. Definitions. Capitalized terms used in this instrument and nototherwise defined herein shall have the meanings assigned to such terms in the Original Indenture,as

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supplemented by the First Supplemental Indenture, or in the form of Note attached as Exhibit Ahereto.
     “Additional Notes” has the meaning provided in Section 2.02 hereof.
     “Additional Interest” has the meaning specified for Liquidated Damages in the RegistrationRights Agreement.
     “Additional Interest Notice” has the meaning specified in Section 2.28.
     “Additional Shares” has the meaning specified in Section 2.10.
     “Applicable Exchange Period” means, with respect to an exchange of Notes, the 10 consecutiveTrading Day period commencing on the third Trading Day following the date the Notes are tenderedfor exchange.
     “Average Price” means, with respect to an exchange of Notes, an amount equal to the average ofthe Closing Sale Prices of Company Common Shares for each Trading Day in the Applicable ExchangePeriod.
     “Business Day” means, with respect to any Note, any day, other than a Saturday, Sunday or anyother day on which banking institutions in The City of New York are authorized or obligated by lawor executive order to close.
     “Change in Control” means the occurrence at any time any of any of the following events: (1)consummation of any transaction or event (whether by means of a share exchange or tender offerapplicable to Company Common Shares, a liquidation, consolidation, recapitalization,reclassification, combination or merger of the Company or a sale, lease or other transfer of all orsubstantially all of the consolidated assets of the Company) or a series of related transactions orevents pursuant to which all of the outstanding Company Common Shares are exchanged for, convertedinto or constitute solely the right to receive, cash, securities or other property; (2) any“person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of theExchange Act, whether or not applicable), other than the Company, the Operating Partnership or anymajority-owned subsidiary of the Company or the Operating Partnership or any employee benefit planof the Company, the Operating Partnership or such subsidiary, is or becomes the “beneficial owner”(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 70% of thetotal voting power in the aggregate of all classes of shares of beneficial interest of the Companythen outstanding entitled to vote generally in elections of trustees; (3) during any period of 12consecutive months after the date of original issuance of the Notes (for so long as the Company isthe general partner of the Operating Partnership immediately prior to such transaction or series ofrelated transactions), persons who at the beginning of such 12-month period constituted the Boardof Trustees of the Company, together with any new persons whose election was approved by a vote ofa majority of the persons then still comprising the Board of Trustees of the Company who wereeither members of the Board of Trustees of the Company at the beginning of such period or whoseelection, designation or nomination for election was previously so approved, cease for any reasonto constitute a majority of the Board of Trustees of the Company; or (4) the Company ceases to bethe general partner of the Operating Partnership or ceases to control the Operating Partnership;provided, however, that

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the pro rata distribution by the Company to its shareholders of its shares of beneficialinterest or shares of any of the Company’s other direct or indirect subsidiaries will not, in andof itself, constitute a Change in Control for purposes of this definition. Notwithstanding theforegoing, even if any of the events specified in the preceding clauses (1) through (4) haveoccurred, except as specified in clause (x), a Change in Control will not be deemed to haveoccurred if either: (x) the Closing Sale Price per Company Common Share for any five Trading Dayswithin (i) the period of 10 consecutive Trading Days ending immediately after the later of theChange in Control or the public announcement of the Change in Control, in the case of a Change inControl relating to an acquisition of capital stock, or (ii) the period of 10 consecutive TradingDays ending immediately after the Change in Control, in the case of a Change in Control relating toa merger, consolidation or asset sale, equals or exceeds 105% of the Exchange Price applicable tothe Notes in effect on each of those Trading Days; provided, however, that the exception to thedefinition of “Change in Control” specified in this clause (x) shall not apply in the context of aChange in Control for purposes of Section 2.10 or Section 2.11(d); or (y) at least 90% of theconsideration (excluding cash payments for fractional shares and cash payments made pursuant todissenters’ appraisal rights) in a merger, consolidation or other transaction otherwiseconstituting a Change in Control consists of shares of common stock (or depositary receipts orother certificates representing common equity interests) traded on a U.S. national securitiesexchange or quoted on the Nasdaq National Market or another established automated over-the-countertrading market in the United States (or will be so traded or quoted immediately following suchmerger, consolidation or other transaction) and as a result of the merger, consolidation or othertransaction the Notes become exchangeable into such shares of common stock (or depositary receiptsor other certificates representing common equity interests). For the purposes of this definition,“person” includes any syndicate or group that would be deemed to be a “person” under Section13(d)(3) of the Exchange Act.
     “Change in Control Purchase Date” has the meaning provided in Section 2.09 hereof.
     “Change in Control Purchase Notice” has the meaning provided in Section 2.09 hereof.
     “Change in Control Purchase Price” has the meaning provided in Section 2.09 hereof.
     “Closing Sale Price” of the Company Common Shares or other capital stock or similar equityinterests or other publicly traded securities on any date means the closing sale price per share(or, if no closing sale price is reported, the average of the closing bid and ask prices or, ifmore than one in either case, the average of the average closing bid and the average closing askprices) on such date as reported on the principal U.S. securities exchange on which the CompanyCommon Shares or such other capital stock or similar equity interests or other securities aretraded or, if the Company Common Shares or such other capital stock or similar equity interests orother securities are not listed on a U.S. national or regional securities exchange, as reported bythe Nasdaq National Market or by the National Quotation Bureau Incorporated or another establishedover-the-counter trading market in the United States. The Closing Sale Price shall be determinedwithout regard to after-hours trading or extended market making. In the absence of the foregoing,the Operating Partnership shall determine the Closing Sale Price on such basis as it considersappropriate.

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     “Company” has the meaning provided in the first paragraph of this instrument until a successorPerson shall have become such pursuant to the applicable provisions of the Indenture, andthereafter “Company” shall mean such successor Person.
     “Company Common Shares” means common shares of beneficial interest, par value $0.01 per share,of the Company.
     “Company Notice” has the meaning provided in Section 2.09 hereof.
     “Daily Share Amount” has the meaning provided in Section 2.12 hereof.
     “Depositary” has the meaning provided in Section 2.03 hereof.
     “Effective Date” has the meaning specified in Section 2.10.
     “Exchange Act” means the Securities Exchange Act of 1934, as amended.
     “Exchange Agent” means the office or agency designated by the Operating Partnership where theNotes may be presented for exchange.
     “Exchange Price” means, as of any date of determination, for $1,000 principal amount of Notes,the quotient of $1,000 divided by the Exchange Rate in effect as of such date, rounded to thenearest $0.01, with $0.005 rounded upward.
     “Exchange Rate” means the number of Company Common Shares by reference to which the ExchangeValue shall be determined, which shall be initially 23.2542 Company Common Shares for each $1,000principal amount of Notes and as the same shall be adjusted from time to time in accordance withthe provisions hereof and of the Notes.
     “Exchange Value” means, for each $1,000 principal amount of Notes, the product of (a) theapplicable Exchange Rate, multiplied by (b) the Average Price.
     “Expiration Time” has the meaning specified in Section 2.14.
     “Guarantee” means the full and unconditional guarantee provided by the Company in respect ofthe Notes as made applicable to the Notes in accordance with the provisions of Section 2.20 hereof.
     “Initial Purchasers” means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Banc ofAmerica Securities LLC, J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC (each, an“Initial Purchaser”).
     “interest” means, when used with reference to the Notes, any interest payable under the termsof the Notes, including Additional Interest, if any, payable under the terms of the RegistrationRights Agreement.
     “Indenture” has the meaning provided in the preamble of this instrument.
     “Interest Payment Date” has the meaning provided in Section 2.05 hereof.

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     “Net Amount” has the meaning provided in Section 2.12 hereof.
     “Net Cash Amount” has the meaning provided in Section 2.12 hereof.
     “Net Shares” has the meaning provided in Section 2.12 hereof.
     “Notes” has the meaning provided in Section 2.01 hereof which shall be substantially in theform attached as Exhibit A hereto.
     “Operating Partnership” has the meaning specified in the first paragraph of this instrumentuntil a successor Person shall have become such pursuant to the applicable provisions of theIndenture, and thereafter “Operating Partnership” shall mean such successor Person.
     “Optional Repurchase Date” has the meaning provided in Section 2.08 hereof.
     “Optional Repurchase Notice” has the meaning provided in Section 2.08 hereof.
     “Optional Repurchase Price” has the meaning provided in Section 2.08 hereof.
     “PORTALSM Market” means The PORTAL Market operated by the Nasdaq Stock Market orany successor thereto.
     “Principal Return” has the meaning provided in Section 2.12 hereof.
     “Purchase Agreement” means the Purchase Agreement, dated June 22, 2006, among the Company, theOperating Partnership and the Initial Purchasers.
     “Redemption Date” means, with respect to any Note or portion thereof to be redeemed inaccordance with the provisions of Section 2.07 hereof, the date fixed for such redemption inaccordance with the provisions of Section 2.07 hereof.
     “Redemption Price” has the meaning provided in Section 2.07 hereof.
     “Reference Dividend” has the meaning specified in Section 2.14.
     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of June 27,2006, among the Company, the Operating Partnership and the Initial Purchasers, as amended from timeto time in accordance with its terms.
     “Regular Record Date” has the meaning provided in Section 2.05 hereof.
     “Restricted Securities” has the meaning specified in Section 2.25.
     “Rule 144A” means Rule 144A as promulgated under the Securities Act as it may be amended fromtime to time hereafter.
     “Securities Act” means the Securities Act of 1933, as amended.
     “Spin-Off” has the meaning specified in Section 2.14.

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     “Stock Price” has the meaning specified in Section 2.10.
     “Trading Day” means a day during which trading in securities generally occurs on the New YorkStock Exchange or, if Company Common Shares are not then listed on the New York Stock Exchange, onthe principal other U.S. national or regional securities exchange on which Company Common Sharesare then listed or, if Company Common Shares are not then listed on a U.S. national or regionalsecurities exchange, on the Nasdaq National Market or, if Company Common Shares are not then quotedon the Nasdaq National Market, on the principal other market on which Company Common Shares arethen traded.
     “Trading Price” means, with respect to the Notes on any date of determination, the average ofthe secondary market bid quotations per $1,000 principal amount of Notes obtained by the Trusteefor a $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on suchdetermination date from two independent nationally recognized securities dealers selected by theOperating Partnership, which may include one or more of the Initial Purchasers or any successor tosuch entities. If at least two such bids cannot reasonably be obtained by the Trustee, but onesuch bid can reasonably be obtained by the Trustee, then one bid shall be used. If the Trusteecannot reasonably obtain at least one bid for a $5,000,000 principal amount of Notes from anationally recognized securities dealer or, in the reasonable judgment of the OperatingPartnership, the bid quotations are not indicative of the secondary market value of the Notes, thenthe Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of theproduct of the Closing Sale Price of Company Common Shares and the Exchange Rate on suchdetermination date.
     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
ARTICLE TWO
TERMS
     Section 2.01. Title. The Notes shall constitute a series of Securities designated asthe “4.00% Exchangeable Senior Notes due 2026” of the Operating Partnership in respect of which theCompany shall be a co-obligor.
     Section 2.02. Aggregate Principal Amount. The aggregate principal amount of Noteswhich may be authenticated and delivered under the Indenture is initially limited in aggregateprincipal amount to $1,500,000,000, except for Notes authenticated and delivered upon registrationof transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 304, 305, 306,906, 1107 or 1203 of the Indenture and except for any Notes which, pursuant to Section 303 of theIndenture, are deemed never to have been authenticated and delivered thereunder; provided that theOperating Partnership may from time to time, without the consent of the Holders of the Notes,increase the principal amount of the Notes by issuing additional Securities in the future (the“Additional Notes”) having the same terms and ranking equally and ratably with the Notes in allrespects and with the same CUSIP number as the Notes, except for the difference in the issue priceand interest accrued prior to the issue date of such Additional Notes, provided that suchAdditional Notes constitute part of the same issue as the Notes for U.S. federal income taxpurposes. Any Additional Notes will be treated as a single series with the Notes under

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the Indenture and shall have the same terms as to status, redemption, repurchase, exchange andotherwise as the Notes.
     Section 2.03. Registered Securities in Book-Entry Form. The Notes shall be issuablein the form of one or more global Securities registered in the name of The Depository TrustCompany’s nominee, and shall be deposited with, or on behalf of, The Depository Trust Company, NewYork, New York (the “Depositary”). The Notes may be surrendered for registration of transfer andfor exchange at the office or agency of the Operating Partnership or the Company (including theTrustee) maintained for such purpose in the Borough of Manhattan, The City of New York, or at anyother office or agency maintained by the Operating Partnership or the Company for such purpose.
     Section 2.04. Stated Maturity of Principal. The Stated Maturity of the principal ofthe Notes shall be July 15, 2026.
     Section 2.05. Interest. The Notes shall bear interest at the rate of 4.00% per annumfrom June 27, 2006 or from the most recent Interest Payment Date to which interest has been paid orprovided for, as the case may be, and will be payable semi-annually in arrears on January 15 andJuly 15 of each year (each, an “Interest Payment Date”), commencing on January 15, 2007, until theprincipal thereof is paid or duly made available for payment, to the Persons in whose names suchNotes are registered at the close of business on the January 1 or July 1 (whether or not a BusinessDay) immediately preceding the applicable Interest Payment Date (each, a “Regular Record Date”).Interest payable on each Interest Payment Date shall equal the amount of interest accrued for theperiod commencing on and including the immediately preceding Interest Payment Date in respect ofwhich interest has been paid (or commencing on and including June 27, 2006, if no interest has beenpaid) and ending on and including the day preceding such Interest Payment Date. Interest on theNotes will be computed on the basis of a 360-day year consisting of twelve 30-day months.
     If the Operating Partnership shall redeem the Notes in accordance with the provisions ofSection 2.07 hereof, or if a Holder shall surrender a Note for repurchase by the OperatingPartnership in accordance with the provisions of 2.08 or 2.09 hereof, subject to the nextsucceeding sentence, accrued and unpaid interest (including Additional Interest, if any) shall bepayable to the Holder that shall have surrendered such Note for redemption or repurchase, as thecase may be. However, if an Interest Payment Date shall fall on or prior to the Redemption Date orOptional Repurchase Date or Change in Control Purchase Date, as the case may be, for a Note,accrued and unpaid interest (including Additional Interest, if any) due on such Interest PaymentDate shall be payable instead to the Person in whose name such Note is registered at the close ofbusiness on the related Regular Record Date.
     Section 2.06. Place of Payment. The principal of and the interest on the Notes shallbe payable at the office or agency of the Company or the Operating Partnership (including theTrustee) maintained for such purpose in the Borough of Manhattan, The City of New York in the inthe manner specified in the Indenture.
     Section 2.07. Redemption. The Operating Partnership shall not have the right toredeem any Notes prior to January 18, 2012, except to preserve the Company’s status as a realestate

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investment trust. If, at any time, the Operating Partnership determines it is necessary toredeem the Notes in order to preserve the Company’s status as a real estate investment trust, theOperating Partnership may, upon not less than 30 nor more than 60 days’ prior written notice bymail to the Holders of the Notes, redeem the Notes in whole or in part, for cash equal to 100% ofthe principal amount of the Notes to be redeemed plus unpaid interest (including AdditionalInterest, if any) accrued thereon to the Redemption Date. In such case, the Operating Partnershipshall provide the Trustee with an Officers’ Certificate evidencing that the Board of Trustees ofthe Company has, in good faith, made the determination that it is necessary to redeem the Notes inorder to preserve the Company’s status as a real estate investment trust.
     The Operating Partnership shall have the right to redeem the Notes, in whole or in part at anytime or from time to time, on or after January 18, 2012 upon not less than 30 nor more than 60days’ prior written notice by mail to the Holders of the Notes, at a redemption price (“RedemptionPrice”) for cash equal to 100% of the principal amount of the Notes to be redeemed plus unpaidinterest (and Additional Interest, if any) accrued thereon to the Redemption Date. If less than allthe Notes are to be redeemed, the Trustee shall select the Notes to be redeemed (in principalamounts of $1,000 and integral multiples thereof) on a pro rata basis or by such other method theTrustee considers fair and appropriate. The Trustee shall make the selection at least 30 days butnot more than 60 days before the Redemption Date from Outstanding Notes not previously called forredemption. Notes and portions of the principal amount thereof selected for redemption shall be inintegral multiples of $1,000. The Trustee shall notify the Operating Partnership promptly of theNotes or portions of the principal amount thereof to be redeemed. If the Trustee selects a portionof a Note for partial redemption and a Holder exchanges a portion of the same Note in accordancewith the provisions of Section 2.11 hereof before termination of the exchange right with respect tothe portion of the Note so selected, the exchanged portion of such Note shall be deemed to be fromthe portion selected for redemption. Notes that have been exchanged during a selection of Notes tobe redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
     In the event of any redemption in part, the Operating Partnership shall not be required to:(i) issue or register the transfer or exchange of any Note during a period beginning at the openingof business 15 days before any selection of Notes for redemption and ending at the close ofbusiness on the earliest date on which the relevant notice of redemption is deemed to have beengiven to all Holders of Notes to be so redeemed, or (ii) register the transfer or exchange of anyNote so selected for redemption, in whole or in part, except the unredeemed portion of any Notebeing redeemed in part.
     In addition to those matters set forth in Section 1104 of the Indenture, a notice ofredemption sent to the Holders of Notes to be redeemed in accordance with the provisions of the twopreceding paragraphs shall state:
          (a) the name of the Paying Agent and Exchange Agent;
          (b) the then current Exchange Rate;

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     (c) that Notes called for redemption may be exchanged at any time prior to the close ofbusiness on the third Business Day immediately preceding the Redemption Date; and
     (d) that Holders who wish to exchange Notes must comply with the procedures relatingthereto specified in Section 2.13 hereof.
     Section 2.08. Repurchase Rights. A Holder of Notes shall have the right to requirethe Operating Partnership to repurchase such Holder’s Notes, in whole or in part (in principalamounts of $1,000 or an integral multiple thereof), on each of January 18, 2012, July 15, 2016 andJuly 15, 2021 (each, an “Optional Repurchase Date”) for cash equal to 100% of the principal amountof the Notes to be repurchased plus unpaid interest (including Additional Interest, if any,)accrued thereon to the Optional Repurchase Date (such amount, the “Optional Repurchase Price”),subject to satisfaction by or on behalf of the Holder of the requirements set forth below.
     On or before to the 30th day prior to each Optional Repurchase Date, the Operating Partnershipshall provide a written notice by first-class mail to the Trustee, any Paying Agent and all Holders(and to beneficial owners as required by applicable law). The notice shall include a form ofOptional Repurchase Notice to be completed by the Holder and shall state:
     (a) the date by which the Optional Repurchase Notice must be delivered to the PayingAgent;
     (b) the Optional Repurchase Date;
     (c) the Optional Repurchase Price;
     (d) the name and address of the Trustee, the Paying Agent and the Exchange Agent;
     (e) that Notes must be surrendered to the Paying Agent to collect payment of theOptional Repurchase Price;
     (f) that the Optional Repurchase Price for any Note as to which an Optional RepurchaseNotice has been duly given will be paid within two Business Days after the later of theOptional Repurchase Date or the time at which such Notes are surrendered for repurchase;
     (g) that, unless the Operating Partnership defaults in making payment of the OptionalRepurchase Price, interest on Notes surrendered for repurchase will cease to accrue on andafter the Optional Repurchase Date;
     (h) that Notes in respect of which an Optional Repurchase Notice is provided by aHolder shall not be exchangeable in accordance with their terms even if otherwiseexchangeable unless such Holder validly withdraws such Optional Repurchase Notice inaccordance with the provisions of this Section 2.08; and

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     (i) the CUSIP number of the Notes.
     The Operating Partnership shall also disseminate a press release through Dow Jones & Company,Inc. or Bloomberg Business News containing the information specified in such notice or publish suchinformation in a newspaper of general circulation in The City of New York or on the Company’swebsite, or through such other public medium as the Operating Partnership shall deem appropriate atsuch time.
     A Holder may exercise its rights specified in this Section 2.08 upon delivery of a writtennotice of repurchase (an “Optional Repurchase Notice”) to the Paying Agent during the periodbeginning at any time from the opening of business on the date that is 30 days prior to theapplicable Optional Repurchase Date until the close of business on the third Business Day prior tosuch Optional Repurchase Date, stating:
     (a) if such Notes are in certificated form, the certificate number(s) of the Noteswhich the Holder will deliver to be repurchased;
     (b) the portion of the principal amount of the Notes to be repurchased, in integralmultiples of $1,000, provided that the remaining principal amount of Notes is in anauthorized denomination; and
     (c) that such Notes shall be repurchased pursuant to the applicable provisions hereofand the Notes.
     The Paying Agent shall promptly notify the Operating Partnership and the Company in writing ofthe receipt by it of any Optional Repurchase Notice.
     Book-entry transfer of Notes in book-entry form in compliance with appropriate procedures ofthe Depositary or delivery of Notes in certificated form, together with all necessary endorsements,to the Paying Agent on or after the Optional Repurchase Date at the offices of the Paying Agentshall be a condition to the receipt by the Holder of the Optional Repurchase Price therefor.Holders electing to require the Operating Partnership to repurchase Notes must effect such transferor delivery to the Paying Agent prior to the Optional Repurchase Date to receive payment of theOptional Repurchase Price on or within two Business Days after the Optional Repurchase Date. TheOperating Partnership shall pay the Optional Repurchase Price within two Business Days after thelater of the Optional Repurchase Date or the time of such transfer or delivery of the Notes.
     An Optional Repurchase Notice may be withdrawn in whole or in part by a Holder by means of awritten notice of withdrawal delivered to the office of the Paying Agent prior to the close ofbusiness on the third Business Day prior to the Optional Repurchase Date specifying:
     (a) the Holder’s name;
     (b) the principal amount of Notes in respect of which the Optional Repurchase Notice isbeing withdrawn, which must be an integral multiple of $1,000;

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     (c) if the Notes subject to the notice of withdrawal are in certificated form, thecertificate number(s) of all Notes subject to the notice of withdrawal; and
     (d) the principal amount of Notes, if any, that remains subject to the OptionalRepurchase Notice, which must be an integral multiple of $1,000.
     If Notes subject to the notice of withdrawal are in book-entry form, the above notices mustalso comply with the applicable procedures of the Depositary.
     On or before 10:00 a.m. (New York City time) on the Optional Repurchase Date, the OperatingPartnership shall deposit with the Paying Agent (or if the Operating Partnership or an Affiliate ofthe Operating Partnership is acting as the Paying Agent, shall segregate and hold in trust) moneysufficient to pay the aggregate Optional Repurchase Price of the Notes to be purchased pursuant tothis Section 2.08. If the Paying Agent holds, in accordance with the terms of the Indenture, moneysufficient to pay the Optional Repurchase Price of such Notes on the Optional Repurchase Date, thenon and after such date, such Notes shall cease to be Outstanding and interest on such Notes shallcease to accrue, and all rights of the Holder of such Notes shall terminate (other than the rightto receive the Optional Repurchase Price after delivery or transfer of the Notes). Such will bethe case whether or not book-entry transfer of the Notes in book-entry form is made and whether ornot Notes in certificated form, together with the necessary endorsements, are delivered to thePaying Agent.
     Notwithstanding the foregoing, no Notes may be purchased by the Operating Partnership inaccordance with the provisions of this Section 2.08 if there has occurred and is continuing anEvent of Default with respect to the Notes (other than a default in the payment of the OptionalRepurchase Price).
     To the extent legally required in connection with a repurchase of Notes, the OperatingPartnership shall comply with the provisions of Rule 13e-4 and other tender offer rules under theExchange Act then applicable, if any, and will file a Schedule TO or any other schedule requiredunder the Exchange Act.
     The Operating Partnership may arrange for a third party to purchase Notes for which theOperating Partnership has received a valid Optional Repurchase Notice that has not been properlywithdrawn, in the manner and otherwise in compliance with the requirements set forth herein and inthe Notes. If a third party purchases any Notes under such circumstances, then interest willcontinue to accrue on the Notes and such Notes will continue to be Outstanding after the OptionalRepurchase Date for all purposes of the Indenture and will be fungible with all other Notes thenOutstanding.
     Section 2.09. Repurchase at Option of Holders upon a Change in Control. If a Changein Control occurs at any time prior to January 18, 2012, a Holder of Notes shall have the right torequire the Operating Partnership to repurchase such Holder’s Notes, in whole or in part (inprincipal amounts of $1,000 or an integral multiple thereof) for cash equal to 100% of theprincipal amount of the Notes to be repurchased, plus unpaid interest (including AdditionalInterest, if any) accrued thereon to the Change in Control Purchase Date (such amount, the “Changein Control Purchase Price”), subject to satisfaction by or on behalf of the Holder of

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the requirements set forth below. If a Change in Control occurs on or after January 18, 2012,Holders of Notes will not have any right to require the Operating Partnership to repurchase itsNotes, except in accordance with Section 2.08.
     Within 20 days after the occurrence of a Change in Control, the Operating Partnership shallmail a written notice of Change in Control and of the repurchase right arising as a result of theChange in Control (the “Company Notice”) by first-class mail to the Trustee, any Paying Agent andto each Holder (and to beneficial owners as required by applicable law). The notice shall includea form of Change in Control Purchase Notice to be completed by the Holder and shall state:
     (a) briefly, the events causing a Change in Control and the date of such Change inControl;
     (b) the date by which the Change in Control Purchase Notice must be delivered to thePaying Agent;
     (c) the date on which the Operating Partnership will repurchase Notes upon a Change inControl, which must be not less than 15 days nor more than 30 days after the date of theCompany Notice (such date, the “Change in Control Purchase Date”);
     (d) the Change in Control Purchase Price;
     (e) the name and address of the Trustee, the Paying Agent and the Exchange Agent;
     (f) that Notes in respect of which a Change in Control Purchase Notice is provided by aHolder shall not be exchangeable unless such Holder validly withdraws such Change in ControlPurchase Notice in accordance with the provisions of this Section 2.09;
     (g) that Notes must be surrendered to the Paying Agent to collect payment of the Changein Control Purchase Price;
     (h) that the Change in Control Purchase Price for any Note as to which a Change inControl Purchase Notice has been duly given will be paid within two Business Days after thelater of the Change in Control Purchase Date or the time at which such Notes are surrenderedfor repurchase;
     (i) that, unless the Operating Partnership defaults in making payment of the Change inControl Purchase Price, interest on Notes surrendered for repurchase will cease to accrue onand after the Change in Control Purchase Date; and
     (j) the CUSIP number of the Notes.
     The Operating Partnership shall also disseminate a press release through Dow Jones & Company,Inc. or Bloomberg Business News announcing the occurrence of such Change in Control or publish suchinformation in a newspaper of general circulation in The City of New

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York or on the Company’s website, or through such other public medium as the OperatingPartnership shall deem appropriate at such time.
     A Holder may exercise its rights specified in this Section 2.09 upon delivery of a writtennotice of such Holder’s exercise of its repurchase right (a “Change in Control Purchase Notice”) tothe Trustee (or any Paying Agent) at any time prior to the close of business on the third BusinessDay prior to the Change in Control Purchase Date, stating:
     (a) if such Notes are in certificated form, the certificate number(s) of the Noteswhich the Holder will deliver to be repurchased;
     (b) the portion of the principal amount of the Notes to be repurchased, in multiples of$1,000, provided that the remaining principal amount of Notes is in an authorizeddenomination; and
     (c) that such Note shall be repurchased pursuant to the applicable provisions hereofand of the Notes.
     The Trustee (or any Paying Agent) shall promptly notify the Operating Partnership and theCompany in writing of the receipt by it of any Change in Control Purchase Notice.
     Book-entry transfer of Notes in book-entry form in compliance with appropriate procedures ofthe Depositary or delivery of Notes in certificated form (together with all necessary endorsements)to the Paying Agent on or after the Change in Control Purchase Date at the offices of the PayingAgent shall be a condition to the receipt by the Holder of the Change in Control Purchase Pricetherefor. Holders electing to require the Operating Partnership to repurchase Notes must effectsuch transfer or delivery to the Paying Agent prior to the Change in Control Purchase Date toreceive payment of the Change in Control Purchase Price on or within two Business Days after theChange in Control Purchase Date. The Operating Partnership shall pay the Change in Control PurchasePrice within two Business Days after the later of the Change in Control Purchase Date or the timeof such transfer or delivery of the Notes.
     A Change in Control Purchase Notice may be withdrawn in whole or in part by a Holder by meansof a written notice of withdrawal delivered to the office of the Paying Agent prior to the close ofbusiness on the third Business Day prior to the Change in Control Purchase Date specifying:
     (a) the Holder’s name;
     (b) the principal amount of Notes in respect of which the Change in Control PurchaseNotice is being withdrawn, which must be an integral multiple of $1,000;
     (c) if the Notes subject to the notice of withdrawal are in certificated form, thecertificate number(s) of all Notes subject to the notice of withdrawal; and
     (d) the principal amount of Notes, if any, that remains subject to the Change inControl Purchase Notice, which must be an integral multiple of $1,000.

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     If Notes subject to the notice of withdrawal are in book-entry form, the above notices mustalso comply with the applicable procedures of the Depositary.
     On or before 10:00 a.m. (New York City time) on the Change in Control Purchase Date, theOperating Partnership shall deposit with the Paying Agent (or if the Operating Partnership or anAffiliate of the Operating Partnership is acting as the Paying Agent, shall segregate and hold intrust) money sufficient to pay the aggregate Change in Control Purchase Price of the Notes to bepurchased pursuant to this Section 2.09. If the Paying Agent holds, in accordance with the terms ofthe Indenture, money sufficient to pay the Change in Control Purchase Price of such Notes on theChange in Control Purchase Date, then, on and after such date, such Notes shall cease to beOutstanding and interest on such Notes shall cease to accrue and all rights of the Holders of suchNotes shall terminate (other than the right to receive the Change in Control Purchase Price afterdelivery or transfer of the Notes). Such will be the case whether or not book-entry transfer ofthe Notes in book-entry form is made and whether or not Notes in certificated form, together withthe necessary endorsements, are delivered to the Paying Agent.
     Notwithstanding the foregoing, no Notes may be repurchased by the Operating Partnership inaccordance with the provisions of this Section 2.09 if there has occurred and is continuing anEvent of Default with respect to the Notes (other than a default in the payment of the Change inControl Purchase Price).
     To the extent legally required in connection with a repurchase of Notes, the OperatingPartnership shall comply with the provisions of Rule 13e-4 and other tender offer rules under theExchange Act then applicable, if any, and will file a Schedule TO or any other schedule requiredunder the Exchange Act.
     The Operating Partnership may arrange for a third party to purchase Notes for which theOperating Partnership has received a valid Change in Control Purchase Notice that has not beenproperly withdrawn, in the manner and otherwise in compliance with the requirements set forthherein and in the Notes. If a third party purchases any Notes under such circumstances, theninterest will continue to accrue on the Notes and such Notes will continue to be Outstanding afterthe Change in Control Purchase Date for all purposes of the Indenture and will be fungible with allother Notes then Outstanding.
     Section 2.10. Make Whole Amount. If a Change in Control occurs prior to January 18,2012 as a result of a transaction or event described in clauses (1) or (2) of the definition ofChange in Control and a Holder elects to exchange its Notes in connection with such Change inControl pursuant to Section 2.11(d), the Operating Partnership shall increase the applicableExchange Rate for such Notes surrendered for exchange by a number of additional Company CommonShares (the “Additional Shares”) as specified below. An exchange of Notes shall be deemed forthese purposes to be “in connection with” such a Change in Control if the notice of exchange of theNotes is received by the Exchange Agent on any date from and including the date that is theEffective Date (as defined below) of such Change in Control up to and including the 30th BusinessDay following the Effective Date of such Change in Control.
     The number of Additional Shares will be determined by reference to the table below and isbased on the date on which such Change in Control transaction becomes effective (the

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“Effective Date”) and the price (the “Stock Price”) paid per Company Common Share in suchChange in Control transaction. If holders of Company Common Shares receive only cash in a Changein Control transaction described in clause (1) of the definition of such term, the Stock Priceshall be the cash amount paid per Company Common Share. In all other cases, the Stock Price shallbe the average of the Closing Sale Prices of Company Common Shares on the 10 consecutive TradingDays up to but excluding the Effective Date.
     The Stock Prices set forth in the first row of the table (i.e., the column headers) will beadjusted as of any date on which the Exchange Rate of the Notes is adjusted. The adjusted StockPrices will equal the Stock Prices applicable immediately prior to such adjustment multiplied by afraction, the numerator of which is the Exchange Rate immediately prior to the adjustment givingrise to the Stock Price adjustment and the denominator of which is the Exchange Rate as soadjusted. In addition, the number of Additional Shares will be subject to adjustment in the samemanner as the Exchange Rate in accordance with the provisions of Section 2.14 hereof.
     The following table sets forth the Stock Price and number of Additional Shares to be receivedper $1,000 principal amount of Notes:
                                                                         
Effective   Stock Price
Date   $36.21   $40.00   $45.00   $50.00   $60.00   $70.00   $80.00   $90.00   $100.00
June 27, 2006
    4.3624       3.1072       2.0598       1.4864       0.9190       0.6840       0.5749       0.5031       0.4507  
July 15, 2007
    4.3624       3.0078       1.9270       1.3190       0.7702       0.5661       0.4734       0.4150       0.3722  
July 15, 2008
    4.3624       2.8765       1.7748       1.1194       0.6071       0.4406       0.3692       0.3246       0.2918  
July 15, 2009
    4.3624       2.6984       1.5273       0.8772       0.4301       0.3145       0.2669       0.2365       0.2132  
July 15, 2010
    4.3624       2.4372       1.1807       0.5665       0.2407       0.1847       0.1600       0.1424       0.1285  
July 15, 2011
    4.3624       2.0126       0.5727       0.1616       0.0725       0.0617       0.0541       0.0482       0.0435  
January 18, 2012
    4.3624       1.7458       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000  
     The exact Stock Prices and Effective Dates may not be set forth on the table, in whichcase:
     (a) if the Stock Price is between two Stock Price amounts in the table or the EffectiveDate is between two dates in the table, the Additional Shares will be determined bystraight-line interpolation between the number of Additional Shares set forth for the higherand lower Stock Price amounts and the two dates, as applicable, based on a 365-day year;
     (b) if the Stock Price is equal to or in excess of $100.00 per Company Common Share(subject to adjustment as specified in the second preceding paragraph), no Additional Shareswill be issued upon an exchange of Notes; and
     (c) if the Stock Price is less than $36.21 per Company Common Share (subject toadjustment as specified in the second preceding paragraph), no Additional Shares will beissued upon an exchange of Notes.
     Notwithstanding the foregoing, in no event shall the total number of Company Common Sharesissuable upon an exchange of Notes exceed 27.6166 shares per $1,000 principal amount of Notes,subject to adjustment in the same manner as the Exchange Rate pursuant to Section 2.14 hereof.

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     Section 2.11. Exchange Rights.
     Subject to the restrictions on ownership of Company Common Shares as set forth in Section 2.15hereof and to the conditions set forth herein, Holders may surrender their Notes for exchange forcash, Company Common Shares or a combination of cash and Company Common Shares, at the OperatingPartnership’s option, at the applicable Exchange Rate prior to the close of business on the secondBusiness Day immediately preceding the Stated Maturity of the Notes at any time on or after July15, 2025 and also under any of the circumstances set forth in this Section 2.11.
     (a) Exchange Upon Satisfaction of Market Price Condition. A Holder may surrender any of itsNotes for exchange during any calendar quarter beginning after September 30, 2006 (and only duringsuch calendar quarter) if, and only if, the Closing Sale Price of Company Common Shares for atleast 20 Trading Days (whether or not consecutive) in the period of 30 consecutive Trading Daysending on the last Trading Day of the preceding calendar quarter is more than 125% of the ExchangePrice per Company Common Share in effect on the applicable Trading Day. The Board of Trustees ofthe Company shall make appropriate adjustments, in its good faith determination, to account for anyadjustment to the Exchange Rate that becomes effective, or any event requiring an adjustment to theExchange Rate where the ex-dividend date of the event occurs, during that 30 consecutivetrading-day period.
     (b) Exchange Upon Satisfaction of Trading Price Condition. A Holder may surrender any of itsNotes for exchange during the five consecutive Trading Day period following any five consecutiveTrading Days in which the Trading Price per $1,000 principal amount of Notes (as determinedfollowing a reasonable request by a Holder of the Notes) was less than 98% of the product of theClosing Sale Price of Company Common Shares multiplied by the Exchange Rate.
     The Trustee shall have no obligation to determine the Trading Price of the Notes unless theOperating Partnership shall have requested such determination, and the Operating Partnership shallhave no obligation to make such request unless a Holder provides the Operating Partnership withwritten reasonable evidence that the Trading Price per $1,000 principal amount of the Notes wouldbe less than 98% of the product of the Closing Sale Price of Company Common Shares and the ExchangeRate, whereupon the Operating Partnership shall instruct the Trustee to determine the Trading Priceof the Notes beginning on the next Trading Day and on each successive Trading Day until the TradingPrice is greater than or equal to 98% of the product of the Closing Sale Price of Company CommonShares and the Exchange Rate.
     (c) Exchange Upon Notice of Redemption. A Holder may surrender for exchange any of the Notescalled for redemption at any time prior to the close of business on the third Business Day prior tothe Redemption Date, even if the Notes are not otherwise exchangeable at such time. The right toexchange Notes pursuant to this clause (c) will expire after the close of business on the thirdBusiness Day prior to the Redemption Date unless the Operating Partnership defaults in making thepayment due upon redemption. A Holder may exchange fewer than all of its Notes so long as theNotes exchanged are an integral multiple of $1,000 principal amount and the remaining principalamount of Notes is in an authorized denomination. However, if a Holder has already delivered anOptional Repurchase Notice or a Change in Control Purchase Notice with respect to a Note, suchHolder may not surrender such Note for

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exchange until it has withdrawn such notice in accordance with the applicable provisions ofSection 2.08 or 2.09 hereof, as the case may be.
     (d) Exchange Upon Specified Transactions. If the Company elects to:
     (i) distribute to all holders of Company Common Shares rights entitling them topurchase, for a period expiring within 45 days, Company Common Shares at less thanthe Closing Sale Price of Company Common Shares on the Trading Day immediatelypreceding the declaration date of the distribution; or
     (ii) distribute to all holders of Company Common Shares assets, debt securitiesor certain rights to purchase securities of the Operating Partnership or theCompany, which distribution has a per share value exceeding 15% of the Closing SalePrice of Company Common Shares on the Trading Day immediately preceding thedeclaration date of such distribution,
the Operating Partnership shall notify the Holders of the Notes in writing at least 20 days priorto the ex-dividend date for such distribution. Following the giving of such notice, Holders maysurrender their Notes for exchange at any time until the earlier of the close of business on theBusiness Day prior to the ex-dividend date or an announcement that such distribution will not takeplace; provided, however, that a Holder may not exercise this right to exchange if the Holder mayparticipate, on an as-exchanged basis, in the distribution without an exchange of Notes. Theex-dividend date is the first date upon which a sale of the Company Common Shares does notautomatically transfer the right to receive the relevant distribution from the seller of CompanyCommon Shares to its buyer.
     In addition, if the Operating Partnership or the Company is party to a consolidation, mergeror binding share exchange pursuant to which all of the Company Common Shares would be exchanged forcash, securities or other property that is not otherwise a Change in Control, a Holder maysurrender Notes for exchange at any time from and including the date that is 15 Business Days priorto the anticipated effective time of the transaction up to and including five Business Days afterthe actual date of such transaction. The Operating Partnership shall notify Holders as promptly aspracticable following the date it publicly announces such transaction (but in no event less than 15Business Days prior to the anticipated effective time of such transaction).
     If a Change in Control occurs as a result of a transaction described in clauses (1) or (2) ofthe definition of “Change in Control”, a Holder will have the right to exchange its Notes at anytime from and including the Effective Date of such transaction up to and including the 30thBusiness Day following the Effective Date of the transaction, provided that, if a Holder hasalready delivered an Optional Repurchase Notice or a Change in Control Purchase Notice with respectto a Note, such Holder may not surrender such Note for exchange until it has withdrawn such noticein accordance with the applicable provisions of Section 2.08 or 2.09 hereof, as the case may be.The Operating Partnership will notify Holders as promptly as practicable following the date that itpublicly announces such Change in Control (but in no event later than five Business Days prior tothe Effective Date of such Change in Control).

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     If the Operating Partnership or the Company is a party to a consolidation, merger or bindingshare exchange pursuant to which all of the Company Common Shares are exchanged for cash,securities or other property, then at the effective time of the transaction any exchange of Notesand the Exchange Value will be based on the kind and amount of cash, securities or other propertythat the Holder would have received if such Holder had exchanged its Notes for Company CommonShares immediately prior to the effective time of the transaction. For purposes of the foregoing,where a consolidation, merger or binding share exchange involves a transaction that causes CompanyCommon Shares to be converted into the right to receive more than a single type of considerationbased upon any form of stockholder election, such consideration will be deemed to be the weightedaverage of the types and amounts of consideration received by the holders of Company Common Sharesthat affirmatively make such an election. If a Change of Control occurs prior to January 18, 2012as a result of a transaction described in clauses (1) or (2) of the definition thereof, theOperating Partnership will adjust the Exchange Rate for Notes tendered for exchange in connectionwith such a Change in Control transaction, as described in Section 2.10 hereof.
     (e) Exchange Upon Delisting of Company Common Shares. A Holder of Notes may surrender any ofits Notes for exchange at any time beginning on the first Business Day after the Company CommonShares have ceased to be listed on a U.S. national or regional securities exchange or quoted onthe Nasdaq National Market for a 30 consecutive Trading Day period.
     Section 2.12. Exchange Settlement. Upon an exchange of Notes, the OperatingPartnership shall deliver, in respect of each $1,000 principal amount of Notes tendered forexchange in accordance with their terms:
     (a) cash in an amount (the “Principal Return”) equal to the lesser of (1) the principalamount of the Notes surrendered for exchange and (2) the Exchange Value, and
     (b) if the Exchange Value is greater than the Principal Return, an amount (the “NetAmount”) in cash or Company Common Shares with an aggregate value equal to the differencebetween the Exchange Value and the Principal Return.
     The Operating Partnership may elect to deliver any portion of the Net Amount in cash (the “NetCash Amount”) or Company Common Shares, and any portion of the Net Amount the Operating Partnershipelects to deliver in Company Common Shares (the “Net Shares”) will be the sum of the Daily ShareAmounts for each Trading Day during the Applicable Exchange Period. Prior to the close of businesson the second Trading Day following the date on which Notes are tendered for exchange, theOperating Partnership shall inform Holders of such Notes of its election to pay cash for all or aportion of the Net Amount and, if applicable, the portion of the Net Amount that will be paid incash and the portion that will be delivered in the form of Net Shares.
     The Operating Partnership shall deliver cash in lieu of any fractional Company Common Sharesissuable in connection with payment of the Net Shares based upon the Average Price.
     The “Daily Share Amount” for each $1,000 principal amount of Notes and each Trading Day in theApplicable Exchange Period is equal to the greater of:

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     (a) zero; and
     (b) a number of Company Common Shares determined by the following formula:
         
 
[
(CSP x ER)-($1,000 + The Net Cash Amount, if any)
]
 
     
  10 x CSP  
     where
     CSP means the Closing Sale Price of Company Common Shares on such Trading Day, and
     ER means the applicable Exchange Rate
     The Operating Partnership will determine the Exchange Value, Principal Return, Net Amount, NetCash Amount and the number of Net Shares, as applicable, promptly after the end of the ApplicableExchange Period. The Operating Partnership shall pay the Principal Return and cash in lieu offractional shares, and deliver Net Shares or pay the Net Cash Amount, as applicable, no later thanthe third Business Day following the last Trading Day of the Applicable Exchange Period.
     Section 2.13. Exchange Procedures. To exchange Notes, a Holder must satisfy therequirements set forth in this Section 2.13.
     To exchange the Notes, a Holder must (a) complete and manually sign the irrevocable exchangenotice on the reverse of the Note (or complete and manually sign a facsimile of such notice) anddeliver such notice to the Exchange Agent at the office maintained by the Exchange Agent for suchpurpose, (b) with respect to Notes which are in certificated form, surrender the Notes to theExchange Agent, or, if the Notes are in book-entry form, comply with the appropriate procedures ofthe Depositary, (c) furnish appropriate endorsements and transfer documents if required by theExchange Agent, the Company or the Trustee and (d) pay any transfer or similar tax, if required.The date on which the Holder satisfies all such requirements shall be deemed to be the date onwhich the applicable Notes shall have been tendered for exchange.
     Notes in respect of which a Holder has delivered an Optional Repurchase Notice or Change inControl Purchase Notice may be exchanged only if such notice is withdrawn in accordance with theterms of Section 2.08 or Section 2.09, as the case may be.
     In case any Note shall be surrendered for partial exchange, the Operating Partnership shallexecute and the Trustee shall authenticate and deliver to, or upon the written order of, the Holderof the Note so surrendered, without charge to such holder, a new Note or Notes in authorizeddenominations in an aggregate principal amount equal to the portion of the surrendered Notes notsurrendered for exchange. A Holder may exchange fewer than all of such Holder’s Notes so long asthe Notes exchanged are an integral multiple of $1,000 principal amount.

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     Upon surrender of a Note for exchange by a Holder, such Holder shall deliver to the OperatingPartnership cash equal to the amount that the Operating Partnership is required to deduct andwithhold under applicable law in connection with the exchange; provided, however, if the Holderdoes not deliver such cash, the Operating Partnership may deduct and withhold from the amount ofconsideration otherwise deliverable to such Holder the amount required to be deducted and withheldunder applicable law.
     Upon exchange of a Note a Holder will not receive any cash payment representing accrued andunpaid interest on such Note. Instead, upon an exchange of Notes, the Operating Partnership willdeliver to tendering Holders only the consideration specified in Section 2.12. Delivery of cash andCompany Common Shares, if any, upon an exchange of Notes will be deemed to satisfy the OperatingPartnership’s obligation to pay the principal amount of the Notes and any accrued and unpaidinterest. Accordingly, upon an exchange of Notes, any accrued and unpaid interest will be deemedpaid in full rather than cancelled, extinguished or forfeited. In no event will the Exchange Ratebe adjusted to account for accrued and unpaid interest on the Notes.
     Holders of Notes at the close of business on a Regular Record Date for an interest paymentwill receive payment of interest payable on the corresponding Interest Payment Date notwithstandingthe exchange of such Notes at any time after the close of business on the applicable Regular RecordDate. Notes tendered for exchange by a Holder after the close of business on any Regular RecordDate for an interest payment and on or prior to the corresponding Interest Payment Date must beaccompanied by payment of an amount equal to the interest that such Holder is to receive on suchNotes on such Interest Payment Date; provided, however, that no such payment shall be required tobe made (1) if such Notes have been called for redemption on a Redemption Date that is after suchRegular Record Date and on or prior to such Interest Payment Date or (2) with respect to overdueinterest (including Additional Interest), if any overdue interest exists at the time of exchangewith respect to such Notes.
     Upon exchange of a Note, the Operating Partnership, if it elects to deliver Net Shares, willpay any documentary, stamp or similar issue or transfer tax due on the issue of the Net Shares uponthe exchange, if any, unless the tax is due because the Holder requests the shares to be issued ordelivered to a person other than the Holder, in which case the Holder must pay the tax due prior tothe delivery of such Net Shares. Certificates representing Company Common Shares will not be issuedor delivered unless all taxes and duties, if any, payable by the Holder have been paid.
     A Holder of Notes, as such, shall not be entitled to any rights of a holder of Company CommonShares. Such Holder shall only acquire such rights upon the delivery by the Operating Partnership,at its option, of Net Shares in accordance with the provisions of Section 2.12 in connection withthe exchange by a Holder of Notes.
     If a Holder exchanges more than one Note at the same time, the number of Net Shares, if any,issuable upon the exchange shall be based on the total principal amount of the Notes surrenderedfor exchange.

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     The Company shall, prior to issuance of any Notes hereunder, and from time to time as may benecessary, reserve out of its authorized but unissued common stock a sufficient number of CompanyCommon Shares to permit the exchange of the Notes at the applicable Exchange Rate. Any CompanyCommon Shares delivered upon an exchange of Notes shall be newly issued shares or treasury shares,shall be duly and validly issued and fully paid and nonassessable and shall be free from preemptiverights and free of any lien or adverse claim.
     The Company shall endeavor promptly to comply with all federal and state securities lawsregulating the issuance and delivery of Company Common Shares, if any, upon an exchange of Notesand shall cause to have listed or quoted all such Company Common Shares on each U.S. nationalsecurities exchange or over-the-counter or other domestic market on which the Company Common Sharesare then listed or quoted.
     Except as set forth herein, no other payment or adjustment for interest shall be made uponexchange of Notes.
     Section 2.14. Exchange Rate Adjustments. The Exchange Rate shall be adjusted fromtime to time as follows:
     (a) If the Company issues Company Common Shares as a dividend or distribution onCompany Common Shares to all holders of Company Common Shares, or if the Company effects ashare split or share combination, the Exchange Rate will be adjusted based on the followingformula:
  ER1 =   ER0 x OS1/OS0
 
  where    
 
  ER0 =   the Exchange Rate in effect immediately priorto the adjustment relating to such event
 
  ER1 =   the new Exchange Rate in effect taking suchevent into account
 
  OS0 =   the number of Company Common Sharesoutstanding immediately prior to such event
 
  OS1 =   the number of Company Common Sharesoutstanding immediately after such event.
Any adjustment made pursuant to this paragraph (a) shall become effective on the date thatis immediately after (x) the date fixed for the determination of shareholders entitled toreceive such dividend or other distribution or (y) the date on which such split orcombination becomes effective, as applicable. If any dividend or distribution described inthis paragraph (a) is declared but not so paid or made, the new Exchange Rate shall bereadjusted to the Exchange Rate that would then be in effect if such dividend ordistribution had not been declared.

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     (b) If the Company issues to all holders of Company Common Shares any rights, warrants,options or other securities entitling them for a period of not more than 45 days after thedate of issuance thereof to subscribe for or purchase Company Common Shares, or issues toall holders of Company Common Shares securities convertible into Company Common Shares for aperiod of not more than 45 days after the date of issuance thereof, in either case at anexercise price per Company Common Share or a conversion price per Company Common Share lessthan the Closing Sale Price of Company Common Shares on the Business Day immediatelypreceding the time of announcement of such issuance, the Exchange Rate will be adjustedbased on the following formula:
  ER1 =   ER0 x (OS0+X)/(OS0+Y)
 
  where   where
 
  ER0 =   the Exchange Rate in effect immediately prior to the adjustmentrelating to such event
 
  ER1 =   the new Exchange Rate taking such event into account
 
  OS0 =   the number of Company Common Sharesoutstanding immediately prior to such event
 
  X =   the total number of Company Common Sharesissuable pursuant to such rights, warrants, options, other securitiesor convertible securities
 
  Y =   the number of Company Common Shares equal tothe quotient of (A) the aggregate price payable to exercise suchrights, warrants, options, other securities or convertible securitiesand (B) the average of the Closing Sale Prices of Company Common Sharesfor the 10 consecutive Trading Days prior to the Business Dayimmediately preceding the date of announcement for the issuance of suchrights, warrants, options, other securities or convertible securities.
For purposes of this paragraph (b), in determining whether any rights, warrants, options,other securities or convertible securities entitle the holders to subscribe for or purchase,or exercise a conversion right for, Company Common Shares at less than the applicableClosing Sale Price of Company Common Shares, and in determining the aggregate exercise orconversion price payable for such Company Common Shares, there shall be taken into accountany consideration received by the Company for such rights, warrants, options, othersecurities or convertible securities and any amount payable on exercise or conversionthereof, with the value of such consideration, if other than cash, to be determined by theBoard of Trustees of the Company. If any right, warrant, option, other security orconvertible security described in this paragraph (b) is not exercised or converted prior tothe expiration of the exercisability or convertibility thereof, the new

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Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if suchright, warrant, option, other security or convertible security had not been so issued.
     (c) If the Company distributes shares of capital stock, evidences of indebtedness orother assets or property of the Company to all holders of Company Common Shares, excluding:
     (i) dividends, distributions, rights, warrants, options, other securities orconvertible securities referred to in paragraph (a) or (b) above,
     (ii) dividends or distributions paid exclusively in cash, and
     (iii) Spin-Offs described below in this paragraph (c),
 then the Exchange Rate will be adjusted based on the following formula:
  ER1 =   ER0 x SP0/(SP0-FMV)
 
  where    
 
  ER0 =   the Exchange Rate in effect immediately priorto the adjustment relating to such event
 
  ER1 =   the new Exchange Rate taking such event intoaccount
 
  SP0 =   the average of the Closing Sale Prices ofCompany Common Shares for the 10 consecutive Trading Days prior to theBusiness Day immediately preceding the earlier of the record date orthe ex-dividend date for such distribution
 
  FMV =   the fair market value (as determined in goodfaith by the Board of Trustees of the Company) of the shares of capitalstock, evidences of indebtedness, assets or property distributed withrespect to each outstanding Company Common Share on the earlier of therecord date or the ex-dividend date for such distribution.
     An adjustment to the Exchange Rate made pursuant to the immediately precedingparagraph shall be made successively whenever any such distribution is made and shallbecome effective on the day immediately after the date fixed for the determination ofholders of Company Common Shares entitled to receive such distribution.
     If the Company distributes to all holders of Company Common Shares capital stock ofany class or series, or similar equity interest, of or relating to a subsidiary or otherbusiness unit of the Company (a “Spin-Off”), the Exchange Rate in effect immediatelybefore the close of business on the date fixed for determination of holders of CompanyCommon Shares entitled to receive such distribution will be adjusted based on thefollowing formula:

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  ER1 =   ER0 x (FMV0+MP0)/MP0
 
  where    
 
  ER0 =   the Exchange Rate in effect immediately priorto the adjustment relating to such event
 
  ER1 =   the new Exchange Rate taking such event intoaccount
 
  FMV0 =   the average of the Closing Sale Prices of thecapital stock or similar equity interest distributed to holders ofCompany Common Shares applicable to one Company Common Share over thefirst 10 consecutive Trading Days after the effective date of theSpin-Off
 
  MP0 =   the average of the Closing Sale Prices ofCompany Common Shares over the first 10 consecutive Trading Days afterthe effective date of the Spin-Off.
     An adjustment to the Exchange Rate made pursuant to the immediately precedingparagraph will occur on the 10th Trading Day from and including the effective date ofthe Spin-Off.
     If any such dividend or distribution described in this paragraph (c) is declared butnot paid or made, the new Exchange Rate shall be readjusted to be the Exchange Rate thatwould then be in effect if such dividend or distribution had not been declared.
     (d) If the Company makes any cash dividend or distribution in respect of any of itsquarterly fiscal periods (without regard to when paid) to all holders of Company CommonShares in an aggregate amount that, together with other cash dividends or distributions madein respect of such quarterly fiscal period, exceeds the product of $0.33 (the “ReferenceDividend”) multiplied by the number of Company Common Shares outstanding on the record datefor such distribution, the Exchange Rate will be adjusted based on the following formula:
  ER1 =   ER0 x SP0/(SP0-C)
 
  where    
 
  ER0 =   the Exchange Rate in effect immediately priorto the adjustment relating to such event
 
  ER1 =   the new Exchange Rate taking such event intoaccount
 
  SP0 =   the average of the Closing Sale Prices ofCompany Common Shares for the 10 consecutive Trading Days prior to thebusiness day immediately preceding the earlier of the record date orthe day prior to the ex-dividend date for such distribution

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  C =   the amount in cash per Company Common Sharethat the Company distributes to holders of Company Common Shares inrespect of such quarterly fiscal period that exceeds the ReferenceDividend.
     An adjustment to the Exchange Rate made pursuant to this paragraph (d) shall becomeeffective on the date immediately after the date fixed for the determination of holders ofCompany Common Shares entitled to receive such dividend or distribution. If any dividend ordistribution described in this paragraph (d) is declared but not so paid or made, the newExchange Rate shall be readjusted to the Exchange Rate that would then be in effect if suchdividend or distribution had not been declared.
     The Reference Dividend shall be subject to adjustment on account of any of the eventsset forth in paragraphs (a), (b) and (c) above and paragraph (e) below. Any such adjustmentwill be effected by multiplying the Reference Dividend by a fraction, the numerator of whichwill equal the Exchange Rate in effect immediately prior to the adjustment on account ofsuch event and the denominator of which will equal the Exchange Rate as adjusted.
     (e) If the Company or any of its subsidiaries makes a payment in respect of a tenderoffer or exchange offer for Company Common Shares to the extent that the cash and value ofany other consideration included in the payment per Company Common Share exceeds the ClosingSale Price of a Company Common Share on the Trading Day next succeeding the last date onwhich tenders or exchanges may be made pursuant to such tender or exchange offer (the“Expiration Time”), the Exchange Rate will be adjusted based on the following formula:
  ER1 =   ER0 x (AC + (SP1 x OS1))/(SP1 x OS0)
 
  where    
 
  ER0 =   the Exchange Rate in effect immediately priorto the adjustment relating to such event
 
  ER1 =   the new Exchange Rate taking such event into account
 
  AC =   the aggregate value of all cash and any otherconsideration (as determined by the Board of Trustees of the Company)paid or payable for Company Common Shares purchased in such tender orexchange offer
 
  OS0 =   the number of Company Common Sharesoutstanding immediately prior to the date such tender or exchange offerexpires
 
  OS1 =   the number of Company Common Sharesoutstanding immediately after such tender or exchange offer expires(after giving effect to the purchase or exchange of shares pursuant tosuch tender or exchange offer)

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  SP1 =   the average of the Closing Sale Prices ofCompany Common Shares for the 10 consecutive Trading Days commencing onthe Trading Day next succeeding the date such tender or exchange offerexpires.
     If the application of the foregoing formula would result in a decrease in the ExchangeRate, no adjustment to the Exchange Rate will be made.
     Any adjustment to the Exchange Rate made pursuant to this paragraph (e) shall becomeeffective on the date immediately following the Expiration Time. If the Company or one ofits subsidiaries is obligated to purchase Company Common Shares pursuant to any such tenderor exchange offer but is permanently prevented by applicable law from effecting any suchpurchase or all such purchases are rescinded, the new Exchange Rate shall be readjusted tobe the Exchange Rate that would be in effect if such tender or exchange offer had not beenmade.
     (f) Notwithstanding the foregoing, in the event of an adjustment to the Exchange Ratepursuant to paragraph (d) or (e) above, in no event will the Exchange Rate exceed 27.6166,subject to adjustment pursuant to paragraphs (a), (b) and (c) above.
     (g) If the Company has in effect a rights plan while any Notes remain Outstanding,Holders of Notes will receive, upon an exchange of Notes in respect of which the OperatingPartnership has elected to deliver Net Shares, in addition to such Net Shares, rights underthe Company’s shareholder rights agreement unless, prior to exchange, the rights haveexpired, terminated or been redeemed or unless the rights have separated from the CompanyCommon Shares. If the rights provided for in the rights plan adopted by the Company haveseparated from the Company Common Shares in accordance with the provisions of the applicableshareholder rights agreement so that Holders of Notes would not be entitled to receive anyrights in respect of Company Common Shares that the Operating Partnership elects to deliveras Net Shares upon exchange of Notes, the Exchange Rate will be adjusted at the time ofseparation as if the Company had distributed to all holders of Company Common Shares capitalstock, evidences of indebtedness or other assets or property pursuant to paragraph (c)above, subject to readjustment upon the subsequent expiration, termination or redemption ofthe rights. In lieu of any such adjustment, the Company may amend such applicableshareholder rights agreement to provide that upon an exchange of Notes the Holders willreceive, in addition to Company Common Shares that the Operating Partnership elects todeliver as Net Shares upon such exchange, the rights which would have attached to suchCompany Common Shares if the rights had not become separated from the Company Common Sharesunder such applicable shareholder rights agreement. To the extent that the Company adoptsany future shareholder rights agreement, upon an exchange of Notes in respect of which theOperating Partnership elects to deliver Company Common Shares as Net Shares, a Holder ofNotes shall receive, in addition to such Company Common Shares, the rights under the futureshareholder rights agreement whether or not the rights have separated from Company CommonShares at the time of exchange and no adjustment will be made in accordance with paragraph(c) or otherwise.

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        In addition to the adjustments pursuant to paragraphs (a) through (g) above, theOperating Partnership may increase the Exchange Rate in order to avoid or diminish anyincome tax to holders of Company Common Shares resulting from any dividend or distributionof capital stock (or rights to acquire Company Common Shares) or from any event treated assuch for income tax purposes. The Operating Partnership may also, from time to time, to theextent permitted by applicable law, increase the Exchange Rate by any amount for any periodif the Operating Partnership has determined that such increase would be in the bestinterests of the Operating Partnership or the Company. If the Operating Partnership makessuch determination, it will be conclusive and Operating Partnership will mail to Holders ofthe Notes a notice of the increased Exchange Rate and the period during which it will be ineffect at least fifteen (15) days prior to the date the increased Exchange Rate takes effectin accordance with applicable law.
     If, in connection with any adjustment to the Exchange Rate as set forth in this Section2.14 a Holder shall be deemed for U.S. federal tax purposes to have received a distributionor an Additional Interest payment, the Operating Partnership may set off any withholding taxit or the Company reasonably believes it is required to collect with respect to any suchdeemed distribution or payment against cash payments of interest in accordance with theprovisions of Section 2.05 hereof or from cash and Company Common Shares, if any, otherwisedeliverable to a Holder upon an exchange of Notes in accordance with the provisions ofSection 2.12 hereof or a redemption or repurchase of a Note in accordance with theprovisions of Section 2.07, 2.08 or 2.09 hereof.
     The Operating Partnership will not make any adjustment to the Exchange Rate if Holdersof the Notes are permitted to participate, on an as-exchanged basis, in the transactionsdescribed above.
     Notwithstanding anything to the contrary contained herein, in addition to the otherevents set forth herein on account of which no adjustment to the Exchange Rate shall bemade, the applicable Exchange Rate shall not be adjusted for:
     (i) the issuance of any Company Common Shares pursuant to any present or futureplan providing for the reinvestment of dividends or interest payable on securitiesof the Operating Partnership or those of the Company and the investment ofadditional optional amounts in Company Common Shares under any plan;
     (ii) the issuance of any Company Common Shares or options or rights to purchasethose shares pursuant to any present or future employee, trustee or consultantbenefit plan, employee agreement or arrangement or program of the OperatingPartnership or the Company;
     (iii) the issuance of any Company Common Shares pursuant to any option,warrant, right, or exercisable, exchangeable or convertible security outstanding asof the date the Notes were first issued;
     (iv) a change in the par value of Company Common Shares;

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     (v) accumulated and unpaid dividends or distributions;
     (vi) as a result of a tender offer solely to holders of less than 100 CompanyCommon Shares; and
     (vii) the issuance of limited partnership units by the Operating Partnershipand the issuance of Company Common Shares or the payment of cash upon redemptionthereof.
     No adjustment in the Exchange Rate will be required unless the adjustment would require anincrease or decrease of at least 1% of the Exchange Price. If the adjustment is not made becausethe adjustment does not change the Exchange Price by at least 1%, then the adjustment that is notmade will be carried forward and taken into account in any future adjustment. All requiredcalculations will be made to the nearest cent or 1/1000th of a share, as the case may be.Notwithstanding the foregoing, if the Notes are called for redemption, all adjustments notpreviously made will be made on the applicable Redemption Date. Except as specifically describedabove, the applicable Exchange Rate will not be subject to adjustment in the case of the issuanceof any Company Common Shares or Company preferred shares, or securities exchangeable into orexchangeable for Company Common Shares or Company preferred shares.
     Whenever the Exchange Rate is adjusted as herein provided, the Company or the OperatingPartnership shall as promptly as reasonably practicable file with the Trustee and any ExchangeAgent other than the Trustee an Officers’ Certificate setting forth the Exchange Rate after suchadjustment and setting forth a brief statement of the facts requiring such adjustment. Promptlyafter delivery of such certificate, the Company or the Operating Partnership shall prepare a noticeof such adjustment of the Exchange Rate setting forth the adjusted Exchange Rate and the date onwhich each adjustment becomes effective and shall mail such notice of such adjustment of theExchange Rate to the Holders of the Notes upon request within 20 Business Days of the EffectiveDate of such adjustment. Failure to deliver such notice shall not affect the legality or validityof any such adjustment.
     For purposes of this Section 2.14, the number of Company Common Shares at any time outstandingshall not include shares held in the treasury of the Company but shall include shares issuable inrespect of scrip certificates issued in lieu of fractions of Company Common Shares.
     Notwithstanding anything in this Section 2.14 to the contrary, in no event shall the ExchangeRate be adjusted so that the Exchange Rate would be less than $0.01.
     Section 2.15. Ownership Limit; Withholding. Notwithstanding any other provision ofthe Notes or the instructions contained herein, no Holder of Notes shall be entitled to exchangesuch Notes for Company Common Shares to the extent that receipt of such shares would cause suchHolder (together with such Holder’s affiliates) to exceed the ownership limit contained in theDeclaration of Trust of the Company as in effect from time to time.
     At the Maturity of the principal of the Notes, whether at Stated Maturity or upon earlierredemption or repurchase of Notes or otherwise, and as otherwise required by law, the OperatingPartnership may deduct and withhold from the amount of consideration otherwise deliverable to suchHolder the amount required to be deducted and withheld under applicable law.

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     Section 2.16. Merger, Consolidation or Sale.
     (a) Section 801(a) of the First Supplemental Indenture is modified and amended for purposesof the Notes to read as follows:
     “the Issuer or the Guarantor shall be the continuing entity, or the successor Person orits transferees or assignees of such assets (if other than the Issuer or the Guarantor),formed by or resulting from any such consolidation or merger or which shall have receivedthe transfer of such assets by lease (subject to the continuing obligations of Issuer andthe Guarantor set forth in Section 802) or otherwise, either directly or indirectly, shallexpressly assume the payment of the principal of and interest on all the Notes, in the caseof the Issuer and the Guarantor, or the obligations of the Guarantor under the Guarantee, asthe case may be, and the due and punctual performance and observance of all of the othercovenants in this Indenture;”
     (b) Section 801(c) of the First Supplemental Indenture is modified and amended for purposesof the Notes to read as follows:
     “immediately after giving effect to such transaction, no Event of Default, and no eventwhich, after notice or the lapse of time, or both, would become such an Event of Default,shall have occurred and be continuing; and”
     (c) Section 801 of the First Supplemental Indenture, for purposes of the Notes, is herebymodified and amended to include, in addition to provisos (a), (b) and (c), the following additionalproviso:
     “(d) if as a result of such transaction the Notes become exchangeable into common stockor other securities issued by a third party, such third party shall assume or fully andunconditionally guarantee all obligations under the Notes and the Indenture.”
     Section 2.17. Satisfaction and Discharge. The provisions of ARTICLE FOURTEEN of theIndenture shall not be applicable to the Notes. The Operating Partnership and the Company maysatisfy and discharge their obligations under the Indenture by delivering to the Trustee forcancellation all Outstanding Notes or by depositing with the Trustee, the Paying Agent or theExchange Agent, if applicable, after the Notes have become due and payable, whether on the date ofthe Stated Maturity of the principal amount of the Notes, any Redemption Date, Optional RepurchaseDate or Change in Control Repurchase Date or upon exchange or otherwise, cash or Company CommonShares in accordance with the terms hereof sufficient to pay all of the Outstanding Notes andpaying all other sums payable under the Notes and the Indenture in respect of the Notes.
     Section 2.18. Events of Default; Waiver of Past Defaults.
     (a) Section 501 of the Indenture is modified and amended for purposes of the Notes to add thefollowing Events of Default:

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     “default in the delivery when due of the Exchange Value, on the terms set forth hereinand in the Notes, upon exercise of a Holder’s exchange right in accordance with the termshereof and of the Notes and the continuation of such default for 10 days;”
– and –
     “failure of the Operating Partnership to provide a Company Notice within 20 days afterthe occurrence of a Change in Control as provided in Section 2.09 of the Second SupplementalIndenture.”
     (b) Section 501(e) of the Indenture is modified and amended for purposes of the Notes toreplace all references therein to $5,000,000 with $50,000,000.
     (c) Section 513 of the Indenture is modified and amended for purposes of the Notes to add thefollowing as clause (c):
     (c) “in respect of the failure by the Operating Partnership to exchange any Notes inaccordance with the provisions of this Indenture.”
     Section 2.19. Modification. Section 902 of the Indenture is modified for purposes ofthe Notes to read as follows:
     “With the consent of the Holders of a majority in principal amount of all OutstandingSecurities affected by such supplemental indenture (voting together as a single class), by Act ofsaid Holders delivered to the Issuer, the Guarantor and the Trustee, the Issuer, when authorized byor pursuant to a Board Resolution, the Guarantor (when authorized by or pursuant to a Guarantor’sBoard Resolution), and the Trustee may enter into an indenture or indentures supplemental heretofor the purpose of adding any provisions to or changing in any manner or eliminating any of theprovisions of this Indenture or of modifying in any manner the rights of the Holders of Securitiesunder this Indenture; provided, however, that no such supplemental indenture shall, without theconsent of the Holder of each Outstanding Note affected thereby:
     (a) change the Stated Maturity of the principal of, or any installment interest(including Additional Interest, if any) on, the Notes;
     (b) reduce the principal amount of, the rate of interest (including AdditionalInterest, if any) on, or change the timing or reduce the amount payable on the redemptionof, the Notes;
     (c) make any change that impairs or adversely affects the rights of a Holder toexchange Notes in accordance herewith;
     (d) change the Place of Payment, or the coin or currency, for payment of principal of,or interest (including Additional Interest, if any) on, the Notes;
     (e) impair the right to institute suit for the enforcement of any payment on or withrespect to Notes or the delivery of the Exchange Value as required by the Indenture upon anexchange of Notes;

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     (f) reduce the percentage in principal amount of the Outstanding Notes, the consent ofwhose Holders is required for any such supplemental indenture, or the consent of whoseHolders is required for any waiver with respect to the Outstanding Notes (or compliance withspecified provisions of the Indenture or specified defaults and consequences thereunder) orto reduce the quorum or voting requirements set forth in the Indenture;
     (g) modify any of the provisions of this Section 902, Section 513 or Section 1013 ofthe Indenture, except to increase the required percentage to effect such action or toprovide that specified other provisions of the Indenture which may not be modified or waivedwithout the consent of the Holders of each Outstanding Note affected thereby; or
     (h) modify or affect the terms and conditions of the obligations of the Company or anysuccessor entity, as co-obligor and guarantor of the Notes.
     It shall not be necessary for any Act of Holders under this Section 2.19 to approve theparticular form of any proposed supplemental indenture, but it shall be sufficient if suchAct shall approve the substance thereof.
     A supplemental indenture which changes or eliminates any covenant or other provision ofthis Indenture which has expressly been included solely for the benefit of one or moreparticular series of Securities, or which modifies the rights of the Holders of Securitiesof such series with respect to such covenant or other provision, shall be deemed not toaffect the rights under this Indenture of the Holders of Securities of any other series.
     Section 2.20. Full and Unconditional Guarantee by the Company. The provisions ofARTICLE SEVENTEEN of the Indenture shall be applicable to the Notes and the Notes shall be“Guaranteed Securities” within the meaning of the Indenture. In addition, the Company herebyagrees that it is a co-obligor of the Notes for all purposes hereunder and under the Notes.
     Section 2.21. Certain Covenants Not Applicable to the Notes. The Notes shall not beentitled to the benefits of the covenants set forth in Section 1004 of the Indenture.
     Section 2.22. Calculations in Respect of the Notes. Except as otherwise specificallystated herein or in the Notes, all calculations to be made in respect of the Notes shall be theobligation of the Operating Partnership. All calculations made by the Operating Partnership or itsagent as contemplated pursuant to the terms hereof and of the Notes shall be made in good faith andbe final and binding on the Operating Partnership and the Holders absent manifest error. TheOperating Partnership shall provide a schedule of calculations to the Trustee, and the Trusteeshall be entitled to rely upon the accuracy of the calculations by the Operating Partnershipwithout independent verification. The Trustee shall forward calculations made by the OperatingPartnership to any Holder of Notes upon request within 20 Business Days after the effective date ofany adjustment.
     Section 2.23. Authorized Denominations. The Notes shall be issued in denominations of$1,000 and integral multiples thereof and payments of principal, interest (including AdditionalInterest) and Additional Amounts, if any, on the Notes shall be made in U.S. dollars.

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     Section 2.24. Exchange Agent, Paying Agent and Securities Registrar. U.S. BankNational Association is hereby appointed as Exchange Agent, Paying Agent and the Security Registrarfor the Notes. The Security Register for the Notes will be maintained by the Security Registrar inthe Borough of Manhattan, The City of New York. The rights, privileges, protections, immunitiesand benefits given to the Trustee pursuant to the Indenture, including, without limitation, itsright to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of itscapacities with respect to the Notes.
     Section 2.25. Restrictions on Transfer. (a) Every Note (and all Notes issued inexchange therefor or in substitution thereof) that bears or is required under this Section 2.25(a)to bear the legend set forth in this Section 2.25(a) (together with any Company Common Sharesissued upon exchange of the Notes, collectively, the “Restricted Securities”) shall be subject tothe restrictions on transfer set forth in this Section 2.25(a) (including those set forth in thelegend below) unless such restrictions on transfer shall be waived by written consent of theIssuer, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof,agrees to be bound by all such restrictions on transfer. As used in this Section 2.25(a), the term“transfer” means any sale, pledge, loan, transfer or other disposition whatsoever of any RestrictedSecurity or any interest therein.
     Until the expiration of the holding period applicable to sales of Restricted Securities underRule 144(k) under the Securities Act (or any successor provision), any certificate evidencing aRestricted Security shall bear a legend in substantially the following form, unless such RestrictedSecurity has been sold pursuant to a registration statement that has been declared effective underthe Securities Act (and which continues to be effective at the time of such transfer) or soldpursuant to Rule 144 under the Securities Act or any similar provision then in force, or unlessotherwise agreed by the Issuer in writing, with written notice thereof to the Trustee:
     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIESACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THEFOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:
          (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THESECURITIES ACT) IS AWARE THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THESECURITIES ACT AND IS PURCHASING THIS SECURITY IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIESACT;
          (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THISSECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR AN AFFILIATE THEREOF WAS THE OWNEROF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THIS SECURITY OR THE COMMON SHARES ISSUABLE UPONEXCHANGE OF SUCH SECURITY EXCEPT (A) TO THE COMPANY, THE ISSUER OR ANY OF THEIR RESPECTIVESUBSIDIARIES, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THESECURITIES ACT, (C) PURSUANT TO THE

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EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR(D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACTAND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
          (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED (OTHERTHAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THISLEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE LATER OF THEORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR ANAFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SETFORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THETRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE2(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSORTRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY,THE ISSUER OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADEPURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OFTHE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITYPURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE LATER OF THE ORIGINALISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR AN AFFILIATETHEREOF WAS THE OWNER OF THIS SECURITY.
     Any Notes that are Restricted Securities and as to which such restrictions on transfer shallhave expired in accordance with their terms or as to conditions for removal of the foregoing legendset forth therein have been satisfied may, upon surrender of such Note for exchange to theSecurities Registrar in accordance with the provisions of this Section 2.25, be exchanged for a newNote or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictivelegend required by this Section 2.25(a). If such Restricted Security surrendered for exchange isrepresented by a global Note bearing the legend set forth in this Section 2.25(a), the principalamount of the legended global Note shall be reduced by the appropriate principal amount and theprincipal amount of a global Note without the legend set forth in this Section 2.25(a) shall beincreased by an equal principal amount. If a global Note without the legend set forth in thisSection 2.25(a) is not then outstanding, the Issuer shall execute and the Trustee shallauthenticate and deliver an unlegended global Note to the Depositary.
     In the event Rule 144(k) under the Securities Act (or any successor provision) is amended toshorten the two-year period under Rule 144(k), then, the references in the restrictive legends setforth above to “TWO YEARS,” and in the corresponding transfer restrictions described above, and inthe Notes and the Company Common Shares will be deemed to refer to such shorter period, from andafter receipt by the Trustee of an Officers’ Certificate and an Opinion of

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Counsel to that effect. As soon as reasonably practicable after the Issuer knows of theeffectiveness of any such amendment to shorten the two-year period under Rule 144(k), unless suchchanges would otherwise be prohibited by, or would cause a violation of, the federal securitieslaws applicable at the time, the Issuer will provide to the Trustee an Officers’ Certificate and anOpinion of Counsel as to the effectiveness of such amendment and the effectiveness of such changeto the restrictive legends and transfer restrictions.
     (b) Any Restricted Securities, prior to the expiration of the holding period applicable tosales thereof under Rule 144(k) under the Securities Act (or any successor provision), purchased orowned by the Issuer or any Affiliate thereof may not be resold by the Issuer or such Affiliate andwill be surrendered to the Trustee for cancellation. Upon expiration of the holding periodapplicable Restricted Securities under Rule 144(k) under the Securities Act (or any successorprovision), the Notes may, to the extent permitted by applicable law, be reissued or sold or may besurrendered to the Trustee for cancellation. Any Notes surrendered for cancellation may not bereissued or resold and will be canceled promptly by the Trustee.
     (c) The Trustee shall have no obligation or duty to monitor, determine or inquire as tocompliance with any restrictions on transfer imposed under this instrument or under applicable lawwith respect to any transfer of any interest in any Note other than to require delivery of suchcertificates and other documentation or evidence as are expressly required by, and to do so if andwhen expressly required by, the terms of this instrument, and to examine the same to determinesubstantial compliance as to form with the express requirements hereof.
     Section 2.26. Rule 144A Information Requirement. Within the period prior to theexpiration of the holding period applicable to sales thereof under Rule 144(k) under the SecuritiesAct (or any successor provision), each of the Issuer and the Guarantor covenants and agrees that itshall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act,make available to any holder or beneficial holder of Notes or any Company Common Shares issued uponexchange thereof which continue to be Restricted Securities in connection with any sale thereof andany prospective purchaser of Notes or such Company Common Shares designated by such holder orbeneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Actupon the request of any holder or beneficial holder of the Notes or such Company Common Shares, allto the extent required to enable such holder or beneficial holder to sell its Notes or CompanyCommon Shares without registration under the Securities Act within the limitation of the exemptionprovided by Rule 144A unless a resale shelf registration statement in respect of the Notes and theCompany Common Shares is available.
     Section 2.27. Provision of Financial Information. Each of the Issuer and theGuarantor, for so long as any Notes are outstanding, within 15 days after it is required to filethe same with the Commission, will furnish to the Holders of the Notes, or cause the Trustee tofurnish to the Holders of the Notes, all annual, quarterly and other reports that it may berequired to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.Delivery of such reports, information and documents to the Trustee is for informational purposesonly and the Trustee’s receipt of such shall not constitute constructive notice of any informationcontained therein or determinable from information contained therein, including the Issuer’scompliance with any of its covenants hereunder (as to which the Trustee is entitled to relyexclusively on an Officers’ Certificate). If either the Issuer or the Guarantor is not required tofile the foregoing

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forms or reports with the commission, then it will file with the Trustee and the Commissionsuch reports as may be prescribed by the Commission at such time.
     Section 2.28. Additional Interest Notice. In the event that the Issuer is required topay Additional Interest to Holders of Notes pursuant to the Registration Rights Agreement, theIssuer will provide written notice (“Additional Interest Notice”) to the Trustee of its obligationto pay Additional Interest no later than fifteen (15) calendar days prior to the proposed paymentdate for Additional Interest, and the Additional Interest Notice shall set forth the amount ofAdditional Interest to be paid by the Issuer on such payment date. The Trustee shall not at anytime be under any duty or responsibility to any Holder of Notes to determine the AdditionalInterest, or with respect to the nature, extent or calculation of the amount of Additional Interestwhen made, or with respect to the method employed in such calculation of the Additional Interest.
ARTICLE THREE
FORM OF NOTES
     Section 3.01. Form of Notes. The Notes and the Trustee’s certificate ofauthentication to be borne by such Notes shall be substantially in the form set forth in Exhibit Ahereto. Any of the Notes may have such letters, numbers or other marks of identification and suchnotations, legends, endorsements or changes as the officers executing the same may approve(execution thereof to be conclusive evidence of such approval) and as are not inconsistent withthe provisions of the Indenture, or as may be required by the Depositary or by the NationalAssociation of Securities Dealers, Inc. in order for the Notes to be tradable on ThePORTALSM Market or as may be required for the Notes to be tradable on any other marketdeveloped for trading of securities pursuant to Rule 144A or as may be required to comply with anyapplicable law or with any rule or regulation made pursuant thereto or with any rule or regulationof any securities exchange or automated quotation system on which the Notes may be listed, or toconform to usage, or to indicate any special limitations or restrictions to which any particularNotes are subject.
ARTICLE FOUR
MISCELLANEOUS
     Section 4.01. Relation to Original Indenture. This Second Supplemental Indenturesupplements the Original Indenture, as amended, and shall be a part and subject to all the termsthereof. Except as supplemented hereby, all of the terms, provisions and conditions of the OriginalIndenture, as amended, and the Securities issued thereunder shall continue in full force andeffect.
     Section 4.02. Concerning the Trustee. The Trustee shall not be responsible for anyrecital herein (other than the second and fourth recitals as they appear and as they apply to theTrustee) as such recitals shall be taken as statements of the Issuer and the Guarantor, or thevalidity of the execution by the Issuer or the Guarantor of this Second Supplemental Indenture. TheTrustee makes no representations as to the validity or sufficiency of this instrument.
     Section 4.03. Effect of Headings. The Article and Section headings herein are forconvenience of reference only and shall not affect the construction hereof.

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     Section 4.04. Counterparts. This instrument may be executed in counterparts, each ofwhich shall be deemed an original, but all of which shall together constitute one and the sameinstrument.
     Section 4.05. Governing Law. This instrument shall be governed by and construed inaccordance with the laws of the State of New York.
[signature pages follow]

37


 

     IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indentureto be duly executed as of the day and year first above written.
             
    EOP OPERATING LIMITED
PARTNERSHIP, as Issuer of the Notes
   
 
           
    By:   Equity Office Properties Trust,
its General Partner
 
           
 
  By:   /s/ Stanley M. Stevens    
 
           
        Name: Stanley M. Stevens
Title: Executive Vice President and Secretary
 
           
    EQUITY OFFICE PROPERTIES TRUST,
as Co-Obligor and Guarantor of the Notes
   
 
           
 
  By:   /s/ Stanley M. Stevens    
 
           
        Name: Stanley M. Stevens
Title: Executive Vice President and Secretary
 
           
    U.S. BANK NATIONAL ASSOCIATION,
as Trustee
   
 
           
 
  By:   /s/ Richard Prokosch    
 
           
        Name: Richard Prokosch
Title: Vice President

38


 

Exhibit A
[FORM OF NOTE]
[Include only for Global Notes]
     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, EXCHANGEOR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS ISREQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCHOTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHERUSE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNERHEREOF, 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 NOMINEETHEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR ANOMINEE OF SUCH SUCCESSOR.
[Include only for Notes that are Restricted Securities]
     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTHIN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:
     (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THESECURITIES ACT), IS AWARE THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THESECURITIES ACT AND IS PURCHASING THIS SECURITY IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIESACT;
     (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THISSECURITY AND THE LAST DATE ON WHICH EOP OPERATING LIMITED PARTNERSHIP (THE “ISSUER”) OR EQUITYOFFICE PROPERTIES TRUST (THE “COMPANY”) OR AN AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY,RESELL OR OTHERWISE TRANSFER THIS SECURITY OR THE COMMON SHARES ISSUABLE UPON EXCHANGE OF SUCHSECURITY EXCEPT (A) TO THE COMPANY, THE ISSUER OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (B) TO AQUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANTTO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR(D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES

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ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
     (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED (OTHERTHAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THISLEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE LATER OF THEORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR ANAFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SETFORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THETRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE2(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSORTRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER,THE COMPANY OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADEPURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OFTHE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITYPURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE LATER OF THE ORIGINALISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR THE COMPANY OR AN AFFILIATETHEREOF WAS THE OWNER OF THIS SECURITY.
     THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (ASSUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCEHEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTSAGREEMENT.

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NO.                     
  PRINCIPAL AMOUNT
 
CUSIP NO. 268766 CF 7
  $                                        
EOP OPERATING LIMITED PARTNERSHIP
4.00% Exchangeable Senior Note due 2026
     EOP Operating Limited Partnership, a limited partnership duly organized and existing under thelaws of the State of Delaware (the “Issuer,” which term shall include any successor under theIndenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., orits registered assigns, the principal sum of                                          Dollars ($                    ) on July 15,2026 unless redeemed, repurchased or exchanged prior to such date in accordance with the termshereof and of the Indenture. The Company (as defined on the reverse hereof) is a co-obligor inrespect of this Note and this Note is a Guaranteed Security within the meaning of the Indenture.
     This Note shall bear interest as specified on the reverse hereof. This Note is exchangeablefor the consideration specified on the reverse hereof. This Note is subject to redemption by theIssuer at its option and to repurchase by the Issuer at the option of the Holder as specified onthe reverse hereof.
     Reference is hereby made to the further provisions of this Note set forth on the reversehereof, which further provisions shall for all purposes have the same effect as if set forth atthis place.
     This Note shall not be entitled to the benefits of the Indenture or the Guarantee of theGuarantor (as defined on the reverse hereof) or be valid or become obligatory for any purpose untilthe certificate of authentication hereon shall have been signed by the Trustee.

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     IN WITNESS WHEREOF, each of the Issuer and the Guarantor has caused this Note to be signedmanually or by facsimile by an authorized signatory.
             
Dated: June 27, 2006
           
 
           
    EOP OPERATING LIMITED PARTNERSHIP
   as Issuer
   
 
           
       By: Equity Office Properties Trust,
        its General Partner
   
 
           
 
  By:   /s/ Maureen Fear    
 
           
 
      Name: Maureen Fear
Title: Senior Vice President, Treasurer
   
     
Attest:
   
 
   
/s/ Robin Mariella
   
     
Name: Robin Mariella
   
Title: Assistant Secretary
   
             
    EQUITY OFFICE PROPERTIES TRUST
    as Co-Obligor and Guarantor
   
 
           
 
  By:   /s/ Maureen Fear    
 
           
 
      Name: Maureen Fear
Title: Senior Vice President, Treasurer
   
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
     This is one of the Securities of the series designated therein referred to in thewithin-mentioned Indenture.
             
    U.S. BANK NATIONAL ASSOCIATION,
   as Trustee
   
 
           
 
  By:   /s/ Richard Prokosch    
 
           
 
      Authorized Signatory    

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[REVERSE OF NOTE]
EOP OPERATING LIMITED PARTNERSHIP
4.00% Exchangeable Senior Note due 2026
     This Note is one of a duly authorized issue of notes, debentures, bonds, or other evidences ofindebtedness of the Issuer (hereinafter called the “Securities”) of the series hereinafterspecified, all issued or to be issued under and pursuant to an Indenture, dated as of August 29,2000 (as amended and supplemented by the First Supplemental Indenture, dated as of June 18, 2001,and the Second Supplemental Indenture, dated as of June 27, 2006, and as further amended orsupplemented from time to time, the “Indenture”), duly executed and delivered by the Issuer andEquity Office Properties Trust, a Maryland real estate investment trust (“Equity Office” or the“Company”), as guarantor (the “Guarantor”) in respect of any Guaranteed Securities, to U.S. BankNational Association, as trustee (the “Trustee,” which term includes any successor trustee underthe Indenture with respect to the series of Securities of which this Notes is a part), andreference is hereby made to the Indenture, and all modifications and amendments and indenturessupplemental thereto relating to the Notes, for a description of the rights, limitations of rights,obligations, duties, and immunities thereunder of the Trustee, the Issuer, Equity Office and theHolders of the Notes and the terms upon which the Notes are authenticated and delivered. TheSecurities may be issued in one or more series, which different series may be issued in variousaggregate principal amounts, may mature at different times, may accrue interest (if any) atdifferent rates or formulas and may otherwise vary as provided in the Indenture. This Note is oneof a series of Securities designated as the “4.00% Exchangeable Senior Notes due 2026” of theIssuer with respect to which the Company is a co-obligor, initially limited (except as permittedunder the Indenture) in aggregate principal amount to $1,500,000,000. Terms used herein withoutdefinition and which are defined in the Indenture have the meanings assigned to them in theIndenture.
1. INTEREST
     The Notes shall bear interest at the rate of 4.00% per annum from June 27, 2006 or from themost recent Interest Payment Date (as defined below) to which interest has been paid or dulyprovided for, as the case may be, payable semi-annually in arrears on January 15 and July 15 ofeach year (each, an “Interest Payment Date”), commencing on January 15, 2007, until the principalhereof is paid or duly made available for payment. Interest payable on each Interest Payment Dateshall equal the amount of interest accrued for the period commencing on and including theimmediately preceding Interest Payment Date in respect of which interest has been paid or dulyprovided for (or commencing on and including June 27, 2006, if no interest has been paid or dulyprovided for) and ending on and including the day preceding such Interest Payment Date. Intereston the Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months
2. METHOD OF PAYMENT
     Except as provided in the Indenture, the Issuer shall pay interest on the Notes to the Personswho are Holders of record of Notes at the close of business (whether or not a Business

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Day) on the January 1 and July 1 immediately preceding the applicable Interest Payment Date(each, a “Regular Record Date”). Holders must surrender Notes to a Paying Agent and comply withthe other terms of the Indenture to collect the principal amount, Redemption Price, OptionalRepurchase Price or Change in Control Purchase Price of the Notes, plus, if applicable, accrued andunpaid interest (including Additional Interest, if any) payable as herein provided at maturity,upon redemption at the Issuer’s option or repurchase at the Holder’s option. The Issuer shall pay,in money of the United States that at the time of payment is legal tender for payment of public andprivate debts, all amounts due in cash with respect to the Notes on the dates and in the mannerprovided in this Note and the Indenture.
3. PAYING AGENT, EXCHANGE AGENT AND SECURITY REGISTRAR
     Initially, the Trustee shall act as Paying Agent, Exchange Agent and Security Registrar. TheIssuer hereby initially designates the Corporate Trust Office of the Trustee in New York, New Yorkas the office to be maintained by it where this Note may be presented for payment, registration oftransfer or exchange, where notices or demands to or upon the Issuer or Equity Office in respect ofthis Note or the Indenture may be served and where the Notes may be surrendered for exchange inaccordance with the provisions of paragraph 6 hereof and the Indenture. The Issuer may appoint andchange any Paying Agent, Exchange Agent, Security Registrar or co-registrar or approve a change inthe office through which any Paying Agent acts without notice, other than notice to the Trustee.
4. REDEMPTION BY THE ISSUER
     The Issuer shall not have the right to redeem any Notes prior to January 18, 2012, except topreserve the status of Equity Office as a real estate investment trust. If the Issuer determinesit is necessary to redeem the Notes in order to preserve the status of Equity Office as a realestate investment trust, the Issuer may redeem the Notes then Outstanding, in whole or in part, at100% of the principal amount of the Notes to be redeemed plus unpaid interest (including AdditionalInterest, if any) accrued thereon to the Redemption Date.
     The Issuer shall have the right to redeem the Notes for cash, in whole or in part at any timeor from time to time, on or after January 18, 2012 at 100% of the principal amount of the Notes tobe redeemed plus unpaid interest (including Additional Interest, if any) accrued thereon to theRedemption Date (the “Redemption Price”).
     Notice of redemption at the option of the Issuer shall be mailed at least 30 days but not morethan 60 days before the Redemption Date to each Holder of Notes to be redeemed at the Holder’sregistered address. Notes in denominations larger than $1,000 principal amount may be redeemed inpart but only in integral multiples of $1,000 principal amount.
5. OPTIONAL REPURCHASERIGHTS; REPURCHASE AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
     (a) Subject to the terms and conditions of the Indenture, a Holder shall have the right torequire the Issuer to repurchase all of its Notes, or any portion of the principal amount thereofthat is equal to $1,000 or an integral multiple thereof, on each of January 18, 2012, July 15, 2016and July 15, 2021 (each, an “Optional Repurchase Date”) for cash equal to 100% of the principal

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amount of the Notes to be repurchased plus unpaid interest (including Additional Interest, ifany) accrued thereon to such Optional Repurchase Date (the “Optional Repurchase Price”), upondelivery to the Paying Agent of an Optional Repurchase Notice containing the information set forthin the Indenture, from the opening of business on the date that is 30 days prior to such OptionalRepurchase Date until the close of business on the third Business Day prior to such OptionalRepurchase Date and upon compliance with the other terms of the Indenture.
     (b) If a Change in Control occurs at any time prior to January 18, 2012, a Holder shall havethe right, at such Holder’s option and subject to the terms and conditions of the Indenture, torequire the Issuer to repurchase all or any of such Holder’s Notes having a principal amount equalto $1,000 or an integral multiple thereof on the date (the “Change in Control Purchase Date”)specified by the Issuer in the Company Notice (which date shall be no earlier than 15 days and nolater than 30 days after the date of such Company Notice) for cash equal to the 100% of theprincipal amount of the Notes to be repurchased plus unpaid interest (including AdditionalInterest, if any) accrued thereon to the Change in Control Purchase Date (the “Change in ControlPurchase Price”).
     (c) Holders have the right to withdraw any Optional Repurchase Notice or Change in ControlPurchase Notice, as the case may be, by delivery to the Paying Agent of a written notice ofwithdrawal in accordance with the provisions of the Indenture.
     (d) If the Paying Agent holds, in accordance with the terms of the Indenture, money sufficientto pay the Optional Repurchase Price or Change in Control Purchase Price of such Notes on theOptional Repurchase Date or Change in Control Purchase Date, as the case may be, then, on and aftersuch date, such Notes shall cease to be Outstanding and interest on such Notes shall cease toaccrue, and all other rights of the Holder shall terminate (other than the right to receive theOptional Repurchase Price or Change in Control Purchase Price upon delivery or transfer of theNotes).
6. EXCHANGE
     The Notes shall be exchangeable into the consideration specified in the Indenture at suchtimes, upon compliance with such conditions and upon the terms set forth in the Indenture.
     The initial Exchange Rate shall be 23.2542 Company Common Shares per $1,000 principal amountof Notes, subject to adjustment in certain circumstances as specified in the Indenture. Notestendered for exchange by a Holder after the close of business on any Regular Record Date for aninterest payment and on or prior to the corresponding Interest Payment Date must be accompanied bypayment of an amount equal to the interest that such Holder is to receive on such Notes on suchInterest Payment Date; provided, however, that no such payment shall be required (1) if such Noteshave been called for redemption on a Redemption Date that is after such Regular Record Date and onor prior to such Interest Payment Date or (2) with respect to overdue interest, if any overdueinterest exists at the time of exchange with respect to such Notes.
     The Exchange Rate applicable to each Note a notice of exchange in respect of which is receivedby the Exchange Agent from and including the Effective Date of a Change in Control

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resulting from a transaction described in clauses (1) or (2) of the definition of Change inControl up to and including the 30th Business Day following the Effective Date of such Change inControl shall be increased by the number of Additional Shares specified in the Indenture.
     To exchange this Note, the Holder must (a) complete and manually sign the irrevocable exchangenotice set forth below (or complete and manually sign a facsimile of such notice) and deliver suchnotice to the Exchange Agent at the office maintained by the Exchange Agent for such purpose, (b)if this Note is in certificated form, surrender such Note to the Exchange Agent, (c) furnishappropriate endorsements and transfer documents if required by the Exchange Agent, Equity Office orthe Trustee and (d) pay any transfer or similar tax, if required. The date on which the Holdersatisfies all such requirements shall be deemed to be the date on which this Note shall have beentendered for exchange.
     If the Holder has delivered an Optional Repurchase Notice or a Change in Control PurchaseNotice requiring the Issuer to repurchase all or a portion of this Note pursuant to paragraph 5hereof, then this Note (or portion hereof subject to such Optional Repurchase Notice or Change inControl Purchase Notice) may be exchanged only if the Optional Repurchase Notice or Change inControl Purchase Notice is withdrawn in accordance with the terms of the Indenture.
7. RANKING
     The Notes are senior unsecured obligations of the Issuer and shall rank pari passu in right ofpayment with all other senior unsecured senior indebtedness of the Issuer from time to timeoutstanding.
8. GUARANTEE
     Equity Office shall be a co-obligor in respect of the Notes. This Note is a GuaranteedSecurity within the meaning of, and subject to the provisions applicable to Equity Office asGuarantor thereof contained in, the Indenture.
9. DEFAULTED INTEREST
     Except as otherwise specified herein or in the Indenture, any Defaulted Interest on this Noteshall forthwith cease to be payable to the Holder hereof on the relevant Regular Record Date byvirtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer asprovided for in Section 307 of the Indenture.
10. DENOMINATIONS; TRANSFER; EXCHANGE
     This Note is issuable only in fully registered form, without coupons, in denominations of$1,000 and integral multiples thereof. This Note may be exchanged for a like aggregate principalamount of Notes of other authorized denominations at the office or agency of the Issuer in The Cityof New York, in the manner and subject to the limitations provided herein and in the Indenture, butwithout the payment of any charge except for any tax or other governmental charge imposed inconnection therewith. Upon due presentment for registration of transfer of this Note at the officeor agency of the Issuer in The City of New York, one or more new Notes of

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authorized denominations in an equal aggregate principal amount will be issued to thetransferee in exchange therefor, and bearing such restrictive legends as may be required by theIndenture, but without payment of any charge except for any tax or other governmental chargeimposed in connection therewith. In the event of any redemption in part, the Issuer shall not berequired to: (i) issue or register the transfer or exchange of any Note during a period beginningat the opening of business 15 days before any selection of Notes for redemption and ending at theclose of business on the earliest date on which the relevant notice of redemption is deemed to havebeen given to all Holders of Notes to be so redeemed, or (ii) register the transfer or exchange ofany Note so selected for redemption, in whole or in part, except the unredeemed portion of any Notebeing redeemed in part.
11. PERSONS DEEMED OWNERS
     The Holder of this Note may be treated as the owner of this Note for all purposes, and none ofthe Issuer, Equity Office or the Trustee nor any authorized agent of the Issuer, Equity Office orthe Trustee shall be affected by any notice to the contrary, except as required by law.
12. ADDITIONAL RIGHTS OF HOLDERS
     In addition to the rights provided to Holders of Notes under the Indenture, Holders shall haveall the rights set forth in the Registration Rights Agreement, dated as of June 27, 2006, among theIssuer, Equity Office and the Initial Purchasers named therein.
13. MODIFICATION AND AMENDMENT; WAIVER
     The Indenture permits, with certain exceptions as therein provided, the amendment thereof andthe modification of the rights and obligations of the Issuer, the Guarantor and the rights of theHolders of the Securities under the Indenture at any time by the Issuer, the Guarantor and theTrustee with the consent of the Holders of a majority in the aggregate principal amount of allOutstanding Securities affected thereby (voting together as a single class). The Indenture alsoprovides that certain amendments or modifications may not be made without the consent of eachHolder to be affected thereby. Furthermore, provisions in the Indenture permit the Holders of amajority in the aggregate principal amount of the Outstanding Securities of any series, in certaininstances, to waive, on behalf of all of the Holders of Securities of such series, certain pastdefaults under the Indenture and their consequences. Any such waiver by the Holder of this Noteshall be conclusive and binding upon such Holder and upon all future Holders of this Note and otherNotes issued upon the registration of transfer hereof or in exchange hereof, or in lieu hereof,whether or not notation of such consent or waiver is made upon this Note.
14. DEFAULTS AND REMEDIES
     If an Event of Default occurs and is continuing, the Trustee, or the Holders of not less than25% in aggregate principal amount of the Notes at the time Outstanding, may declare the principalamount and any accrued and unpaid interest, of all the Notes to be due and payable in the mannerand with the effect provided in the Indenture.

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     Events of Default in respect of the Notes are set forth in Section 501 of the Indenture.Holders may not enforce the Indenture or the Notes except as provided in the Indenture.
15. CONSOLIDATION, MERGER, AND SALE OF ASSETS
     In the event of a consolidation or merger of the Issuer or Equity Office or a sale, lease orconveyance of all or substantially all of the assets of the Issuer or Equity Office as described inARTICLE EIGHT of the Indenture the successor entity to the Issuer or Equity Office, as the case maybe, shall succeed to and be substituted for the Issuer or Equity Office, as the case may be, andmay exercise the rights and powers of the Issuer or Equity Office, as the case may be, under theIndenture, and thereafter, except in the case of a lease, the Issuer or Equity Office, as the casemay be, shall be relieved of all obligations and covenants under the Indenture and the Notes.
16. CERTAIN COVENANTS NOT TO APPLY
     The Notes shall not be entitled to the benefits of the covenants set forth in Section 1004 ofthe Indenture.
17. TRUSTEE AND AGENT DEALINGS WITH THE COMPANY
     The Trustee, Paying Agent, Exchange Agent and Securities Registrar under the Indenture, eachin its individual or any other capacity, may become the owner or pledgee of Notes and may otherwisedeal with and collect obligations owed to it by the Issuer, Equity Office or their respectiveAffiliates and may otherwise deal with the Issuer or its Affiliates with the same rights it wouldhave if it were not Trustee, Paying Agent, Exchange Agent or Registrar.
18. CALCULATIONS IN RESPECT OF THE NOTES
     Except as otherwise specifically stated herein or in the Indenture, all calculations to bemade in respect of the Notes shall be the obligation of the Issuer. All calculations made by theIssuer or its agent as contemplated pursuant to the terms hereof and of the Indenture shall befinal and binding on the Issuer and the Holders absent manifest error. The Issuer shall provide aschedule of calculations to the Trustee, and the Trustee shall be entitled to rely upon theaccuracy of the calculations by the Issuer without independent verification. The Trustee shallforward calculations made my the Issuer to any Holder of Notes upon request.
19. GOVERNING LAW
     The Indenture, this Note and the Guarantee shall be governed by and construed in accordancewith the laws of the State of New York.

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ASSIGNMENT
     
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
 
 
   
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
 
 
(Please print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
 
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints
 
to transfer said Note on the books of the Issuer, with full power of substitution in the premises.
In connection with any transfer of the Note prior to the expiration of the holding periodapplicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision)(other than any transfer pursuant to a registration statement that has been declared effectiveunder the Securities Act), the undersigned confirms that such Note is being transferred:
  o   To EOP Operating Limited Partnership, Equity Office Properties Trust or any of theirrespective subsidiaries; or
 
  o   To a “qualified institutional buyer” in compliance with Rule 144A under theSecurities Act of 1933, as amended; or
 
  o   Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, asamended; or
 
  o   Pursuant to a Registration Statement which has been declared effective under theSecurities Act of 1933, as amended, and which continues to be effective at the timeof transfer.
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidencedby this certificate in the name of any person other than the registered holder thereof.

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Dated:                                        
   
 
   
Signature Guaranteed
   
 
   
NOTICE: Signature must be guaranteedby an eligible Guarantor Institution(banks, stockbrokers, savings andloan associations and credit unions)with membership in an approvedsignature guarantee medallionprogram pursuant to Securities andExchange Commission Rule 17Ad-15.
  NOTICE: The signature to thisAssignment must correspond with thename as written upon the face of thewithin Note in every particular,without alteration or enlargement orany change whatever.

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EXCHANGE NOTICE
     To exchange this Note as provided in the Indenture, check the box: o
     To exchange only part of this Note, state the principal amount to be exchanged (must be $1,000or an integral multiple of $1,000): $___.
     If, in the event the Issuer delivers Net Shares and you want the stock certificate made out inanother person’s name, fill in the form below:
 
(Insert assignee’s soc. sec. or tax I.D. no.)
 
 
 
 
(Print or type assignee’s name, address and zip code)
         
 
      Your Signature:
 
       
Date:
       
 
       
 
      (Sign exactly as your name appears on theother side of this Note)
 
       
1 Signature guaranteed by:    
 
       
By:
       
 
       
 
1   Signature must be guaranteed by an eligible Guarantor Institution (banks,stockbrokers, savings and loan associations and credit unions) with membership in an approvedsignature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15.

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