SUPPLEMENTAL INDENTURE NO. 7

Exhibit 4.1

 

BOSTON PROPERTIES LIMITED PARTNERSHIP

as Issuer

and

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

as Trustee

SUPPLEMENTAL INDENTURE NO. 7

Dated as of August 19, 2008

3.625% Exchangeable Senior Notes due 2014

 

TABLE OF CONTENTS

 

 

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SUPPLEMENTAL INDENTURE NO. 7 dated as of August 19, 2008 (the “ Seventh Supplemental Indenture ”) between Boston Properties Limited Partnership, a Delaware limited partnership, as issuer (hereinafter called the “ Company ”), and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (hereinafter called the “ Trustee ”).

WITNESSETH:

WHEREAS, the Company has heretofore delivered to the Trustee an Indenture dated as of December 13, 2002 (the “ Senior Indenture ”), providing for the issuance by the Company from time to time of its senior debt securities evidencing its unsecured and unsubordinated indebtedness (the “ Securities ”).

WHEREAS, Section 3.01 of the Senior Indenture provides for various matters with respect to any series of Securities issued under the Senior Indenture to be established in an indenture supplemental to the Senior Indenture.

WHEREAS, Section 9.01(7) of the Senior Indenture provides for the Company and the Trustee to enter into an indenture supplemental to the Senior Indenture to establish the form or terms of Securities of any series as provided by Sections 2.01 and 3.01 of the Senior Indenture.

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its 3.625% Exchangeable Senior Notes due 2014 (hereinafter referred to as the “ Notes ”), initially in an aggregate principal amount not to exceed $650,000,000 (or $747,500,000 if the Initial Purchasers exercise their option to purchase additional Notes in full as set forth in the Purchase Agreement), and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company and the Board of Directors of Boston Properties, the general partner of the Company, has duly authorized the execution and delivery of this Seventh Supplemental Indenture; and

WHEREAS, the Notes, the certificate of authentication to be borne by the Notes, a form of assignment and transfer, a form of the Fundamental Change Repurchase Notice and a form of exchange notice to be borne by the Notes are to be substantially in the forms hereinafter provided for; and

WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this Seventh Supplemental Indenture provided, the valid, binding and legal obligations of the Company, have been done and performed, and the execution of this Seventh Supplemental Indenture and the issue hereunder of the Notes have in all respects been duly authorized.

NOW, THEREFORE, THIS SEVENTH SUPPLEMENTAL INDENTURE WITNESSETH:

That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the

purchase and acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective holders from time to time of the Notes (except as otherwise provided below), as follows:

ARTICLE I

DEFINITIONS

Section 1.01 Relation to Senior Indenture . This Seventh Supplemental Indenture constitutes an integral part of the Senior Indenture.

Section 1.02 Definitions . For all purposes of this Seventh Supplemental Indenture, except as otherwise expressly provided for or unless the context otherwise requires:

(a) Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Senior Indenture;

(b) Terms defined both herein and in the Senior Indenture shall have the meanings assigned to them herein;

(c) All references herein to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Seventh Supplemental Indenture; and

(d) All other terms used in this Seventh Supplemental Indenture, which are defined in the Trust Indenture Act or which are by reference therein defined in the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this Seventh Supplemental Indenture. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Seventh Supplemental Indenture as a whole and not to any particular Article, Section or other Subdivision. The terms defined in this Article include the plural as well as the singular.

“ Additional Interest ” shall have the meaning specified for Liquidated Damages in the Registration Rights Agreement.

“ Additional Settlement Consideration ” shall have the meaning specified in Section 8.02(k).

“ Additional Shares ” shall have the meaning specified in Section 8.01(g).

“ Boston Properties ” means Boston Properties, Inc., a Delaware corporation and, at the date of this Seventh Supplemental Indenture, the general partner of the Company.

“ close of business ” means 5:00 p.m. (New York City time).

“ Common Stock ” means, subject to Section 8.06, shares of common stock of Boston Properties, par value $0.01 per share, at the date of this Seventh Supplemental Indenture

 

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or shares of any class or classes resulting from any reclassification or reclassifications thereof and that have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of Boston Properties and that are not subject to redemption by Boston Properties; provided that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

“ Common Units ” shall have the meaning specified in Section 8.02(k).

“ Company ” means Boston Properties Limited Partnership, a Delaware limited partnership, and subject to the provisions of Article 7, shall include its successors and assigns.

“ Company Recourse Obligation “ means any Recourse indebtedness for money borrowed of the Company having an aggregate principal amount outstanding of at least $50,000,000.

“ Daily Exchange Value ” means, for each of the 20 consecutive Trading Days during the Observation Period, one-twentieth (1/20) of the product of (a) the applicable Exchange Rate and (b) the Daily VWAP of the Common Stock (or the Reference Property, if applicable) on such day.

“ Daily Settlement Amount ,” for each of the 20 Trading Days during the Observation Period, shall consist of:

(i) cash equal to the lesser of $50 and the Daily Exchange Value relating to such day; and

(ii) if such Daily Exchange Value exceeds $50, then at the Company’s option, either (A) cash equal to the difference between such daily exchange value and $50 or (B) a number of shares of Common Stock equal to (x) the difference between such Daily Exchange Value and $50, divided by (y) the Daily VWAP of the Common Stock for such day.

“ Daily VWAP ” for the Common Stock means, for each of the 20 consecutive Trading Days during the Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page BXP.N <equity> AQR (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such Trading Day as the Board of Directors determines in good faith using a volume-weighted method). The Daily VWAP will be determined without regard to after hours trading or any other trading outside of the regular trading session hours.

“ Debt Instrument “ means any bond, debenture, note, mortgage, indenture (including the Senior Indenture) or other instrument.

 

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“ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the person specified in the Senior Indenture as the Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Seventh Supplemental Indenture, and thereafter, “ Depositary ” shall mean or include such successor.

“ Designated Financial Institution ” shall have the meaning specified in Section 8.12.

“ Distributed Property ” shall have the meaning specified in Section 8.04(c).

“ Dividend Threshold Amount ” shall have the meaning specified in Section 8.04(d).

“ Effective Date ” shall have the meaning specified in Section 8.01(g).

“ Event of Default ” means, with respect to the Notes, any event specified in Section 5.01, continued for the period of time, if any, and after the giving of notice, if any, therein designated.

“ Ex-Dividend Date ” means, (a) with respect to Section 8.01(e), the first date upon which a sale of the Common Stock does not automatically transfer the right to receive the relevant dividend from the seller of the Common Stock to its buyer, and (b) in all other cases, with respect to any issuance or distribution on the Common Stock or any other equity security, the first date on which the shares of Common Stock or such other equity security trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance or distribution.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“ Exchange Agent ” shall mean the Trustee or any successor office or agency where the Notes may be surrendered for exchange.

“ Exchange Date ” shall have the meaning specified in Section 8.02(c).

“ Exchange Election ” shall have the meaning specified in Section 8.12.

“ Exchange Obligation ” shall have the meaning specified in Section 8.01(a).

“ Exchange Price ” means as of any date $1,000 divided by the Exchange Rate as of such date.

“ Exchange Rate ” shall have the meaning specified in Section 8.01(a).

“ Exchange Trigger Price ” shall have the meaning specified in Section 8.01(c).

 

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“ Fundamental Change ” shall be deemed to occur upon the consummation of any transaction or event (whether by means of an exchange offer, liquidation, tender offer, consolidation, merger, combination, reclassification, recapitalization or otherwise) in connection with which more than 50% of the Common Stock is exchanged for, converted into, acquired for or constitutes solely the right to receive, consideration which is not at least 90% common stock (or American Depositary Shares representing shares of common stock) that is: (a) listed on, or immediately after the consummation of such transaction or event, will be listed on, a United States national securities exchange or (b) approved, or immediately after such transaction or event will be approved, for listing or quotation on any United States system of automated dissemination of quotations of securities prices similar to an exchange described in clause (a).

“ Fundamental Change Company Notice ” shall have the meaning specified in Section 9.01(b).

“ Fundamental Change Repurchase Date ” shall have the meaning specified in Section 9.01(a).

“ Fundamental Change Repurchase Notice ” shall have the meaning specified in Section 9.01(a)(i).

“ Fundamental Change Repurchase Price ” shall have the meaning specified in Section 9.01(a).

“ Global Note ” shall have the meaning specified in Section 2.06(d).

“ Initial Purchasers ” shall have the meaning specified in the Purchase Agreement.

“ interest ” means, when used with reference to the Notes, any interest payable under the terms of the Notes, including Additional Interest, if any, payable under the terms of the Registration Rights Agreement and Supplemental Interest, if any.

“ Interest Payment Date ” means February 15 and August 15 of each year, beginning on February 15, 2009.

“ Last Reported Sale Price ” means, with respect to the Common Stock or any other security for which a Last Reported Sale Price must be determined, on any date, the closing sale price per share of the Common Stock or unit of such other security (or, if no closing sale price is reported, the average of the last bid and last ask prices or, if more than one in either case, the average of the average last bid and the average last ask prices) on such date as reported in composite transactions for the principal securities exchange or market on which the Common Stock or such other security is traded. If the Common Stock or such other security is not listed for trading on a securities exchange or market on the relevant date, the Last Reported Sale Price shall be the last quoted bid price per share of Common Stock or such other security in the over-the-counter market on the relevant date, as reported by the National Quotation Bureau or similar organization. If the Common Stock or such other security is not so quoted, the Last Reported Sale Price shall be the average of the mid-point of the last bid and ask prices for the Common Stock or such other security on the relevant date from each of at least three nationally recognized independent investment banking firms selected from time to time by the Board of Directors of the Company for that purpose. The Last Reported Sale Price shall be determined without reference to extended or after hours trading.

 

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“ Market Disruption Event ” means (i) a failure by the primary exchange, market or quotation system on which the Common Stock trades or is quoted to open for trading during its regular trading session or (ii) the occurrence or existence for more than a one-half hour period in the aggregate on any Scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such day.

“ Maturity Date ” means February 15, 2014.

“ Measurement Period ” shall have the meaning specified in Section 8.01(b).

“ Merger Event ” shall have the meaning specified in Section 8.06.

“ Noteholder ” or “ Holder ” or “ holder ,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any person in whose name at the time a particular Note is registered on the Security Register.

“ Notice of Exchange ” shall have the meaning specified in Section 8.02(c).

“ Observation Period ” means (1) with respect to any Exchange Date occurring on or after January 1, 2014, the 20 consecutive Trading Day period beginning on, and including, the 22nd Scheduled Trading Day prior to the Maturity Date (or if such day is not a Trading Day, the next succeeding Trading Day) and (2) in all other instances, the 20 consecutive Trading Day period beginning on and including the second Trading Day after the Exchange Date.

“ Offering Memorandum ” shall have the meaning specified in Section 8.02(k).

“ Predecessor Note ” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 3.06 of the Senior Indenture in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed or stolen Note that it replaces.

“ Purchase Agreement ” means that certain Purchase Agreement relating to the Notes, dated August 14, 2008, among the Company, Boston Properties (solely for purposes of Sections 4(k), 4(n) and 5(k) therein) and the Representatives as representatives of the Initial Purchasers.

“ Record Date, ” with respect to the payment of interest on any Interest Payment Date, shall have the meaning specified in Section 2.03.

“ Reference Property ” shall have the meaning specified in Section 8.06(b).

 

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“ Registration Rights Agreement ” means that certain Registration Rights Agreement, dated August 19, 2008, between the Company, Boston Properties and the Representatives, as amended from time to time in accordance with its terms.

“ Representatives ” means Morgan Stanley & Co. Incorporated, J.P. Morgan Securities Inc., Banc of America Securities LLC, Deutsche Bank Securities Inc. and Citigroup Global Markets Inc.

“ Restricted Securities ” shall have the meaning specified in Section 2.06(b).

“ Rights Plan ” means that certain Shareholder Rights Agreement, dated as of June 18, 2007, between Boston Properties and Computershare Trust Company, N.A., as Rights Agent.

“ Rule 144A ” means Rule 144A as promulgated under the Securities Act as it may be amended from time to time hereafter.

“ Scheduled Trading Day ” means a day that is scheduled to be a Trading Day on the primary exchange or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, then “Scheduled Trading Day” means any Business Day.

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“ Spin-Off ” shall have the meaning specified in Section 8.04(c).

“ Stock Price ” means the price paid per share of Common Stock in connection with a Fundamental Change pursuant to which Additional Shares shall be added to the Exchange Rate as set forth in Section 8.01(e)(ii) hereof, which shall be equal to (i) if holders of Common Stock receive only cash in such Fundamental Change, the cash amount paid per share of Common Stock and (ii) in all other cases, the average of the Last Reported Sale Prices of the Common Stock over the five consecutive Trading Day period ending on the Trading Day preceding the Effective Date of the Fundamental Change.

“ Supplemental Interest ” shall have the meaning specified in Section 5.01(g).

“ Trading Day ” means a day during which (i) trading in Common Stock generally occurs and (ii) there is no Market Disruption Event; provided that if the Common Stock is not admitted for trading or quotation on or by any exchange, market, bureau or other organization referred to in the definition of Last Reported Sale Price, Trading Date shall mean any Business Day.

“ Trading Price ” with respect to the Notes, on any date of determination, means the average of the secondary market bid quotations obtained by the Trustee for $2.0 million principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company; provided that if three such bids cannot reasonably be obtained by the Trustee, but two such bids are obtained, then the average of the two bids shall be used, and if only one such

 

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bid can reasonably be obtained by the Trustee, that one bid shall be used. If the Trustee cannot reasonably obtain at least one bid for $2.0 million principal amount of Notes from a nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on such Trading Day.

“ Trigger Event ” shall have the meaning specified in Section 8.04(c).

ARTICLE II

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

Section 2.01 Designation and Amount . The Notes shall be designated as the “3.625% Exchangeable Senior Notes due 2014.” The aggregate principal amount of Notes that may be authenticated and delivered under this Seventh Supplemental Indenture is initially limited to $650,000,000 (or $745,500,000 if the Initial Purchasers exercise their option to purchase additional Notes in full as set forth in the Purchase Agreement), subject to Section 2.07 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes pursuant Section 2.06, Section 8.02 and Section 9.01 hereof and Section 3.06 and Section 9.06 of the Senior Indenture.

Section 2.02 Form of Notes . The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the form set forth in Exhibit A.

Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Seventh Supplemental Indenture, or as may be required by the Depositary or by the Nasdaq Stock Market, Inc. (or its successor) in order for the Notes to be tradable on The PORTAL Market or as may be required for the Notes to be tradable on any other market developed for trading of securities pursuant to Rule 144A or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.

The Global Note shall represent such principal amount of the Outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of Outstanding Notes represented thereby may from time to time be increased or reduced to reflect repurchases, exchanges, transfers or exchanges permitted hereby. Any endorsement of the Global Note to reflect the amount of any increase or decrease in the amount of Outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the holder of such Notes in accordance with this Seventh Supplemental Indenture. Payment of principal and accrued and unpaid interest on the Global Note shall be made to the holder of such Note on the date of payment, unless a Record Date or other means of determining holders eligible to receive payment is provided for herein.

 

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The terms and provisions contained in the form of Note attached as Exhibit A hereto are incorporated herein and shall constitute, and are hereby expressly made, a part of this Seventh Supplemental Indenture and to the extent applicable, the Company and the Trustee, by their execution and delivery of this Seventh Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.

Section 2.03 Date and Denomination of Notes; Payments of Interest . The Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Note attached as Exhibit A hereto. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

The Person in whose name any Note (or its Predecessor Note) is registered on the Security Register at 5:00 p.m., New York City time, on any Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be payable at the office of the Company maintained by the Company for such purposes in the Borough of Manhattan, City of New York, which shall initially be an office or agency of the Trustee. The Company shall pay interest (i) on any Notes in certificated form by check mailed to the address of the Person entitled thereto as it appears in the Security Register (or upon written application by such Person to the Security Registrar not later than the relevant record date, by wire transfer in immediately available funds to such Person’s account within the United States, if such Person is entitled to interest on an aggregate principal in excess of $1,000,000) or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee. The term “ Record Date ” with respect to any Interest Payment Date shall mean the February 1 or August 1 (whether or not a Business Day) preceding the applicable February 15 or August 15 Interest Payment Date, respectively.

Section 2.04 Date and Denomination of Notes . The Notes shall be issuable in fully registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. Every Note shall be dated the date of its authentication.

Section 2.05 Execution, Authentication and Delivery of Notes . The Notes shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chairman or Vice-Chairman of the Board of Directors, Chief Executive Officer, President, any of its Executive or Senior Vice Presidents, Managing Director, or any of its Vice Presidents (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”).

At any time and from time to time after the execution and delivery of this Seventh Supplemental Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder.

 

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Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, manually executed by the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 6.11 of the Senior Indenture), shall be entitled to the benefits of this Seventh Supplemental Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Seventh Supplemental Indenture.

In case any officer of the Company who shall have signed any of the Notes shall cease to be such officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such officer of the Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the proper officers of the Company, although at the date of the execution of this Seventh Supplemental Indenture any such person was not such an officer.

Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary .

(a) The Company shall provide for the registration of the Notes and of transfers of the Notes in the Security Register. Upon surrender for registration of transfer of any Note to the Security Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Seventh Supplemental Indenture.

Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes which the Noteholder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.

All Notes presented or surrendered for registration of transfer or for exchange, repurchase or exchange shall (if so required by the Company, the Trustee, the Security Registrar or any co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or his attorney-in-fact duly authorized in writing.

No service charge shall be charged to the Noteholder for any exchange or registration of transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover any tax, assessments or other governmental charges that may be imposed in connection therewith.

 

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None of the Company, the Trustee, the Security Registrar or any co-registrar shall be required to exchange or register a transfer of (a) any Notes surrendered for exchange or, if a portion of any Note is surrendered for exchange, such portion thereof surrendered for exchange, (b) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article IX hereof or (c) Notes selected for redemption in accordance with Article III hereof during a period beginning at the open of business 15 calendar days before the day that the notice of redemption is mailed and ending at the close of business on the day of such mailing.

All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Seventh Supplemental Indenture shall be the valid, binding and legal obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Seventh Supplemental Indenture as the Notes surrendered upon such registration of transfer or exchange.

(b) Every Note (and all Notes issued in exchange therefor or in substitution thereof) that bears or is required under this Section 2.06(b) to bear the legend set forth in this Section 2.06(b) (together with any Common Stock issued upon exchange of the Notes, collectively, the “ Restricted Securities ”) shall be subject to the restrictions on transfer set forth in this Section 2.06(b) (including those set forth in the legend below) unless such restrictions on transfer shall be waived by written consent of the Company, 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 2.06(b), the term “transfer” means any sale, pledge, loan, transfer or other disposition whatsoever of any Restricted Security or any interest therein.

(i) Any certificate evidencing a Note shall bear a legend in substantially the following form:

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 FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:

 

(1)

REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), IS AWARE THAT THE TRANSFER TO IT IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THIS SECURITY IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT;

 

(2)

AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO BOSTON PROPERTIES, INC., BOSTON PROPERTIES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE SUBSIDIARIES OR (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; AND

 

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(3)

AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE).

(ii) Each share certificate representing shares of Common Stock issued upon exchange of Notes will bear a legend substantially to the following effect unless such Common Stock has been sold pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer) or sold pursuant to Rule 144 under the Securities Act or any similar provision then in force, or unless otherwise agreed by the Company in writing, with written notice thereof to the Trustee:

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 FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:

 

(1)

REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT;; AND

 

(2)

AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO BOSTON PROPERTIES, INC., BOSTON PROPERTIES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT UNDER THE SECURITIES ACT (IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH RESALE OR TRANSFER; AND

 

(3)

AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.

 

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IF A TRANSFER OF THE SECURITIES IS TO BE MADE PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST FURNISH TO THE TRANSFER AGENT FOR THE BOSTON PROPERTIES, INC. COMMON STOCK, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS BOSTON PROPERTIES, INC., THE TRUSTEE OR SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE PROPOSED TRANSFER IS BEING MADE PURSUANT TO RULE 144 OR ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR IN A TRANSACTION NOT SUBJECT TO THE SECURITIES ACT. !

Any Notes that are Restricted Securities and as to which such restrictions on transfer have been waived by written consent of the Company and the Holder of each such Restricted Security, upon surrender of such Note for exchange to the Securities Registrar in accordance with the provisions of this Section 2.06, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.06(b). If such Restricted Security surrendered for exchange is represented by a Global Note bearing the legend set forth in this Section 2.06(b), the principal amount of the legended Global Note shall be reduced by the appropriate principal amount and the principal amount of a Global Note without the legend set forth in this Section 2.06(b) shall be increased by an equal principal amount. If a Global Note without the legend set forth in this Section 2.06(b) is not then outstanding, the Company shall execute and the Trustee shall authenticate and deliver an unlegended Global Note to the Depositary.

(c) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this instrument or under applicable law with respect to any transfer of any interest in any Note other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this instrument, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

(d) So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, all Notes shall be represented by one or more Notes in global form (each, a “ Global Note ”) registered in the name of the Depositary or the nominee of the Depositary. The transfer and exchange of beneficial interests in a Global Note, which does not involve the issuance of a definitive Note, shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Seventh Supplemental Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor.

Section 2.07 Additional Notes; Repurchases . The Company may, without the consent of the Noteholders and notwithstanding Section 2.01, reopen the Notes and issue additional Notes hereunder with the same terms and with the same CUSIP number as the Notes initially issued hereunder in an unlimited aggregate principal amount, which will form the same

 

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series with the Notes initially issued hereunder, provided that no such additional Notes may be issued unless fungible with the Notes initially issued hereunder for U.S. federal income tax purposes. The Company may also from time to time repurchase the Notes in open market purchases or negotiated transactions without prior notice to Noteholders.

Section 2.08 No Sinking Fund . The provisions of Article Twelve of the Senior Indenture shall not be applicable to the Notes. No sinking fund is provided for the Notes.

Section 2.09 Ranking . The Notes constitute a senior unsecured general obligation of the Company, ranking equally with other existing and future senior unsecured and unsubordinated indebtedness of the Company and ranking senior in right of payment to any future indebtedness of the Company that is expressly made subordinate to the Notes by the terms of such indebtedness.

ARTICLE III

REDEMPTION

Section 3.01 Right to Redeem .

(a) Notwithstanding any provision of the Senior Indenture, as modified by this Seventh Supplemental Indenture, to the contrary, the Company may redeem the Notes, in whole, in order to preserve Boston Properties’ status as a real estate investment trust under the Code.

(b) Any redemption of Notes shall be at a Redemption Price equal to 100% of the principal amount of the Notes being redeemed, plus accrued and unpaid interest to the Redemption Date; provided , however , that the Company may deduct from such Redemption Price any amount required to be deducted and withheld under applicable law.

Section 3.02 Reserved .

Section 3.03 Notice of Redemption . The provisions of Section 11.04 of the Senior Indenture shall govern notices of redemption of the Notes; provided , however , that in addition to the information specified in Section 11.04 of the Senior Indenture, notices of redemption of the Notes shall also state:

(a) the then-current Exchange Price;

(b) the name and address of the Exchange Agent; and

(c) that Holders who wish to exchange Notes must surrender such Notes for exchange no later than the close of business on the second Business Day immediately preceding the Redemption Date and must satisfy the other requirements set forth herein.

 

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ARTICLE IV

PARTICULAR COVENANTS OF THE COMPANY

Section 4.01 Payment of Principal and Interest .

(a) Sections 3.07 and 10.01 of the Senior Indenture shall apply to the Notes; provided , however , that, with respect to any Noteholder with an aggregate principal amount in excess of $1,000,000, at the application of such holder in writing to the Security Registrar not later than the relevant record date, accrued and unpaid interest on such holder’s Notes shall be paid by wire transfer in immediately available funds to such holder’s account in the United States supplied by such holder from time to time to the Trustee and Paying Agent (if different from Trustee); provided further that payment of accrued and unpaid interest made to the Depositary shall be paid by wire transfer in immediately available funds in accordance with such wire transfer instructions and other procedures provided by the Depositary from time to time.

(b) Except as otherwise provided in this Section 4.01(b), a holder of any Notes at the close of business on a Record Date shall be entitled to receive interest on such Notes on the corresponding Interest Payment Date; provided that if such corresponding Interest Payment Date falls on a date that is not a Business Day, the payment of such interest will be postponed until the next succeeding Business Day, and no additional interest or other amount will be paid as a result of any such postponement. A Holder of any Notes as of a Record Date that are exchanged after the close of business on such Record Date and prior to the opening of business on the corresponding Interest Payment Date shall be entitled to receive interest on the principal amount of such Notes, notwithstanding the exchange of such Notes prior to such Interest Payment Date. However, a Holder that surrenders any Notes for exchange between the close of business on a Record Date and the opening of business on the corresponding Interest Payment Date shall be required to pay the Company an amount equal to the interest payable by the Company with respect to such Notes on such Interest Payment Date at the time such Holder surrenders such Notes for exchange, provided , however , that this sentence shall not apply to a Holder that exchanges Notes:

(i) in respect of which the Company has given notice of redemption pursuant to Section 3.03 on a Redemption Date that is after the relevant Record Date and on or prior to the relevant Interest Payment Date;

(ii) in respect of which the Company has specified a Fundamental Change Repurchase Date that is after a Record Date and on or prior to the corresponding Interest Payment Date;

(iii) if such surrender of Notes for exchange occurs after the Record Date immediately preceding the Maturity Date; or

(iv) to the extent of any overdue interest, if any overdue interest exists at the time of exchange with respect to such Notes.

 

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Accordingly, a Holder that exchanges Notes under any of the circumstances described in clauses (i) through (iv) above will not be required to pay to the Company an amount equal to the interest payable by the Company with respect to such Notes on the relevant Interest Payment Date.

Section 4.02 Maintenance of Office or Agency for Exchange Agent . If at any time the Exchange Agent is not the Trustee or an office or agency designated or appointed by the Trustee, the Company will give prompt written notice to the Trustee of the location of such Exchange Agent. If at any time the Company shall fail to maintain an office or agency for the Exchange Agent, presentations, surrenders, notices and demands related to exchanges of Notes may be made or served at the Corporate Trust Office or the office or agency of the Trustee in the Borough of Manhattan, The City of New York.

Section 4.03 Rule 144A Information Requirement . The Company covenants and agrees that it shall, 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 Common Stock issued upon exchange thereof which continue to be Restricted Securities in connection with any sale thereof and any prospective purchaser of Notes or such Common Stock designated by such holder or beneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any holder or beneficial holder of the Notes or such Common Stock, all to the extent required to enable such holder or beneficial holder to sell its Notes or Common Stock without registration under the Securities Act within the limitation of the exemption provided by Rule 144A unless a resale shelf registration statement in respect of the Notes and the Common Stock is available.

Section 4.04 Additional Interest Notice . In the event that the Issuer is required to pay Additional Interest to Holders of Notes pursuant to the Registration Rights Agreement, the Company will provide written notice (“ Additional Interest Notice ”) to the Trustee of its obligation to pay Additional Interest no later than fifteen (15) calendar days prior to the proposed payment date for Additional Interest, and the Additional Interest Notice shall set forth the amount of Additional Interest to be paid by the Company on such payment date. The Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the Additional Interest, or with respect to the nature, extent or calculation of the amount of Additional Interest when made, or with respect to the method employed in such calculation of the Additional Interest.

ARTICLE V

DEFAULTS AND REMEDIES

Section 5.01 Events of Default . The provisions of Section 5.01(1)-(5) of the Senior Indenture shall not be applicable to the Notes. As contemplated under Section 5.01(8) of the Senior Indenture, the following events, in addition to the events described in Section 5.01(6)-(7) of the Senior Indenture, shall be Events of Default with respect to the Notes:

(a) default in any payment of interest on any Note when due and payable and such default continues for a period of 30 days;

 

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(b) default in the payment of principal of any Note when due and payable on the Maturity Date, upon redemption, repurchase, declaration or otherwise;

(c) failure by the Company to comply with its obligation to exchange the Notes into cash or a combination of cash and Common Stock (or Common Units pursuant to Section 8.02(k) hereof), as applicable, upon exercise of a holder’s exchange right, and such failure continues for a period of 10 days;

(d) failure by the Company to comply with its obligations under Article 7;

(e) failure by the Company to issue a Fundamental Change Company Notice in accordance with Section 9.01(b) when due, and such failure continues for a period of two days;

(f) failure by the Company for 90 days to comply with any of its other agreements (other than a covenant or warranty or default in whose performance or whose breach is elsewhere in this Section specifically provided for) contained in the Notes or the Indenture after written notice of such default from the Trustee or the holders of at least 25% in principal amount of the Notes then Outstanding has been received by the Company; or

(g) default by the Company under any bond, debenture, note, mortgage, indenture or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any Recourse indebtedness for money borrowed by the Company in excess of $50 million in the aggregate, whether such indebtedness now exists or shall hereafter be created, which default either (A) constitutes a failure to pay any portion of the principal of such Recourse indebtedness when due and payable at its stated maturity after the expiration of any applicable grace period with respect thereto (and without such Recourse indebtedness having been discharged) or (B) resulted in such Recourse indebtedness becoming or being declared due and payable prior to its stated maturity (and without such Recourse indebtedness having been discharged or such acceleration having been rescinded or annulled), and in each case such default shall not have been rescinded or annulled within 10 days after written notice of such default from the Trustee or the holders of at least 10% in principal amount of the Notes then Outstanding has been received by the Company.

Notwithstanding this Section 5.01, for the first 180 days immediately following any violation of any obligations the Company may be deemed to have pursuant to Section 314(a)(1) of the Trust Indenture Act, the sole remedy for any such violation shall be the accrual of additional interest on the Notes at a rate per annum equal to 0.50% of the outstanding principal amount of the Notes, payable semi-annually at the same time and in the same manner as regular interest on the Notes. In no event shall such additional interest accrue at a rate per year in excess of 0.50% pursuant to this Section, regardless of the number of events or circumstances giving rise to the requirement to pay such additional interest. In addition to the accrual of such additional interest, on and after the 180 ^th day of such violation, any violation of any obligations the Company may be deemed to have pursuant to Section 314(a)(1) of the Trust Indenture Act, the Notes shall be subject to acceleration as provided in Section 5.02. Interest accruing pursuant to this paragraph, if any, is referred to in this Indenture as “ Supplemental Interest .”

 

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Section 5.02 Acceleration of Maturity; Rescission and Annulment . Section 5.02 of the Senior Indenture shall not apply to the Notes. In case one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 5.01(6) or Section 5.01(7) of the Senior Indenture with respect to the Company), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the holders of at least 25% in aggregate principal amount of the Notes then Outstanding, by notice in writing to the Company (and to the Trustee if given by Noteholders), may declare 100% of the principal of and accrued and unpaid interest on all the Notes to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in the Senior Indenture, this Seventh Supplemental Indenture or the Notes to the contrary notwithstanding. If an Event of Default specified in Section 5.01(6) or Section 5.01(7) of the Senior Indenture occurs and is continuing with respect to the Company, the principal of all the Notes and any accrued and unpaid interest shall be immediately due and payable. This provision, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid interest upon all Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with interest on overdue installments of accrued and unpaid interest and accrued (to the extent that payment of such interest is enforceable under applicable law) and on such principal at the rate borne by the Notes during the period of such Default) and amounts due to the Trustee pursuant to Article 6 of the Senior Indenture, and if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all Events of Defaults under this Seventh Supplemental Indenture, other than the nonpayment of principal of and accrued and unpaid interest on Notes that shall have become due solely by such acceleration, shall have been cured or waived in accordance with the Senior Indenture as modified by this Seventh Supplemental Indenture, then and in every such case the holders of a majority in aggregate principal amount of the Notes then Outstanding, by written notice to the Company and to the Trustee, may waive all defaults or Events of Default with respect to the Notes and rescind and annul such declaration and its consequences and such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Seventh Supplemental Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right consequent thereon. The Company shall notify the Responsible Officer of the Trustee, promptly upon becoming aware thereof, of any Event of Default by delivering to the Trustee a statement specifying such Event of Default and any action the Company has taken, is taking or proposes to take with respect thereto.

ARTICLE VI

SUPPLEMENTAL INDENTURES

Section 6.01 Supplemental Indentures Without Consent of Noteholders . The provisions of Section 9.01 of the Senior Indenture shall not be applicable to the Notes. With

 

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respect to the Notes, without the consent of any Holders of Notes, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental to the Senior Indenture, as modified by this Seventh Supplemental Indenture, in form satisfactory to the Trustee, for any of the following purposes:

(a) to cure any ambiguity, omission, defect or inconsistency in the Senior Indenture, as modified by this Seventh Supplemental Indenture;

(b) to provide for the assumption by a successor company of the obligations of the Company under the Senior Indenture, as modified by this Seventh Supplemental Indenture, pursuant to Article 7;

(c) to provide for uncertificated Notes in addition to or in place of certificated Notes ( provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code);

(d) to add guarantees with respect to the Notes;

(e) to secure the Notes;

(f) to add to the covenants of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company;

(g) to make any change that does not materially adversely affect the rights of any Holder; or

(h) to comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act.

Section 6.02 Modification and Amendment with Consent of Noteholders . With the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding (including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental to the Senior Indenture, as modified by this Seventh Supplemental Indenture, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Senior Indenture, as modified by this Seventh Supplemental Indenture, or of modifying in any manner the rights of the Holders of Notes and any related coupons under the Senior Indenture, as modified by this Seventh Supplemental Indenture; PROVIDED , HOWEVER , that no such supplemental indenture shall, without the consent of the Holder of each Note affected thereby:

(a) reduce the amount of aggregate principal amount of Notes the Holders of which must consent to an amendment;

 

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(b) reduce the rate, or extend the stated time for payment, of interest on any Note;

(c) reduce the principal, or extend the Maturity Date, of any Note;

(d) make any change that adversely affects the exchange rights of any Notes;

(e) reduce the Fundamental Change Repurchase Price or Redemption Price of any Note or amend or modify in any manner adverse to the Holders of the Notes the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;

(f) change the place or currency of payment of principal or interest in respect of any Note;

(g) impair the right of any Holder to receive payment of principal of, and interest on, such holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;

(h) modify the ranking of the Notes in a manner adverse to the Holders of the Notes; or

(i) make any change in the provisions of this Article 6 that require each holder’s consent or in the waiver provisions of Section 5.01 or Article 5 of the Senior Indenture,

It shall not be necessary for any Act of Holders under this Section 6.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

A supplemental indenture which changes or eliminates any covenant or other provision of the Senior Indenture, as modified by this Seventh Supplemental Indenture, which has expressly been included solely for the benefit of the Notes, or which modifies the rights of the Holders of Notes with respect to such covenant or other provision, shall be deemed not to affect the rights under the Senior Indenture of the Holders of Securities of any other series.

Section 6.03 Effect of Supplemental Indentures . Upon the execution of any supplemental indenture under this Article, the Senior Indenture and this Seventh Supplemental Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Seventh Supplemental Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder and of any coupon appertaining thereto shall be bound thereby.

 

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ARTICLE VII

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

Section 7.01 Company May Consolidate, Etc. on Certain Terms . Section 8.01 of the Senior Indenture shall not be applicable to the Notes and in its place and stead the following provision shall be applicable:

The Company may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other Person, provided that in any such case, (1) either the Company, Boston Properties or another Person controlled by Boston Properties shall be the continuing Person, or the successor Person shall be a Person organized and existing under the laws of the United States, any State thereof or the District of Columbia and such successor Person shall expressly assume the due and punctual payment of the principal of (and premium or make-whole amount, if any) and interest, if any, on the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of the Senior Indenture, as modified by the Seventh Supplemental Indenture, to be performed by the Company by supplemental indenture, complying with Article Nine of the Senior Indenture, as amended by this Seventh Supplemental Indenture, satisfactory to the Trustee, executed and delivered to the Trustee by such Person and (2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result thereof as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing. Upon any such consolidation, merger or transfer, the resulting, surviving or transferee Person shall succeed to, and may exercise every right and power of, the Company under the Senior Indenture, as modified by this Seventh Supplemental Indenture.

ARTICLE VIII

EXCHANGE OF NOTES

Section 8.01 Exchange Privilege .

(a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article 8, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Notes held by such Holder at any time prior to the close of business on the Scheduled Trading Day immediately preceding January 1, 2014 at a rate of 8.5051 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04, the “ Exchange Rate ”) per $1,000 principal amount of Notes under the circumstances and during the periods set forth below (the “ Enumerated Exchange Obligations ”). In addition, on or after January 1, 2014, Holders may exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of Notes held by such Holder at the Exchange Rate per $1,000 principal amount of Notes until the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date (the “ Maturity Exchange Obligation ,” and together with the Enumerated Exchange Obligations, the “ Exchange Obligation ”).

 

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(b) A Holder of Notes shall have the right, at such Holder’s option, to surrender Notes for exchange during the five Business Day period immediately after any ten consecutive Trading Day period (the “ Measurement Period ”) in which the Trading Price per $1,000 principal amount of Notes for each Trading Day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Holder or Holders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall instruct the Trustee to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Holders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Holders.

(c) A Holder of Notes shall have the right, at such Holder’s option, to surrender Notes for exchange during any fiscal quarter after the fiscal quarter ending September 30, 2008, but only during such fiscal quarter, if the Last Reported Sale Price of the Common Stock for each of at least 20 Trading Days during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding fiscal quarter exceeds 130% of the Exchange Price (the “ !Exchange Trigger Price ”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article 8. The Exchange Agent shall, on the Company’s behalf, determine at the be