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As filed with the Securities and Exchange Commission on August 13, 1996
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): AUGUST 8, 1996
ERP OPERATING LIMITED PARTNERSHIP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
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<CAPTION>
<S> <C> <C>
ILLINOIS 0-24920 36-3894853
(STATE OR OTHER JURISDICTION (COMMISSION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) FILE NUMBER) IDENTIFICATION NO.)
TWO NORTH RIVERSIDE PLAZA, SUITE 450
CHICAGO, ILLINOIS 60606
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (312) 474-1300
NOT APPLICABLE
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 7. Financial Statements, Pro forma Financial Information and Exhibits
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<C> <S>
Exhibit
Number Exhibit
- -------- -------
1 Terms Agreement dated August 8, 1996 which is being filed pursuant
to Regulation S-K, Item 601(b)(1) as an exhibit to the Registrant's
registration statement on Form S-3, file no. 33-84892, under the
Securities Act of 1933, as amended, and which, as this Form 8-K
filing is incorporated by reference in such registration statements,
is set forth in full in such registration statements.
5 Opinion of Rosenberg & Liebentritt, P.C., which is being filed
pursuant to Regulation 601(b)(5) as an exhibit to the Registrant's
registration statement on Form S-3, file no. 33-84892, under the
Securities Act of 1933, as amended, and which, as this Form 8-K
filing is incorporated by reference in such registration statements,
is set forth in full in such registration statements.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ERP OPERATING LIMITED PARTNERSHIP
By: EQUITY RESIDENTIAL PROPERTIES TRUST,
its general partner
Date: August 13, 1996 By: /s/ Bruce C. Strohm
------------------------------
Bruce C. Strohm, Secretary,
Executive Vice President and
General Counsel
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Exhibit 1
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
7.57% Notes due August 15, 2026
TERMS AGREEMENT
---------------
Dated: August 8, 1996
To: ERP Operating Limited Partnership
Two North Riverside Plaza
Chicago, Illinois 60606
Attention:
Ladies and Gentlemen:
We understand that ERP Operating Limited Partnership, an Illinois limited
partnership ("ERP"), proposes to issue and sell $150,000,000 aggregate principal
amount of its 7.57% Notes due August 15, 2026 (the "Notes") (such Notes being
hereinafter also referred to as the "Underwritten Securities"). Subject to the
terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the respective principal amounts of Underwritten Securities set
forth below opposite their respective names, to the extent any are purchased, at
the purchase price set forth below.
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<CAPTION>
Principal Amount of
Underwriter Underwritten Securities
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<S> <C>
Merrill Lynch, Pierce, Fenner & Smith $105,000,000
Incorporated
Alex. Brown & Sons Incorporated 22,500,000
J.P. Morgan Securities Inc. 22,500,000
____________
Total $150,000,000
============
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The Underwritten Securities shall have the following terms:
7.57% Notes due August 15, 2026
TITLE OF SECURITIES: 7.57% Notes due August 15, 2026 ("Notes").
CURRENCY: U.S. Dollars.
PRINCIPAL AMOUNT TO BE ISSUED: $150,000,000.
CURRENT RATINGS: Moody's Investors Service, Inc. Baa2; Standard & Poor's
Corporation BBB; Duff & Phelps BBB+
INTEREST RATE OR FORMULA: 7.57%.
INTEREST PAYMENT DATES: February 15 and August 15 of each year, beginning on
February 15, 1997.
STATED MATURITY DATE: August 15, 2026.
REDEMPTION OR REPAYMENT PROVISIONS: The Underwritten Securities may be redeemed
at the option of the holders, and ERP may redeem the Underwritten Securities, as
set forth below.
DELAYED DELIVERY CONTRACTS: Not authorized.
INITIAL PUBLIC OFFERING PRICE: 100% plus accrued interest, if any, from August
13, 1996.
PURCHASE PRICE: 99.3% payable in same day funds.
ADDITIONAL CO-MANAGERS, IF ANY: Alex. Brown & Sons Incorporated and J.P. Morgan
& Co.
OTHER TERMS: The Underwritten Securities shall be in the form of Annex B
attached hereto. Additional covenants: ERP is required to maintain Total
Unencumbered Assets of not less than 150% of the aggregate outstanding principal
amount of the Unsecured Debt of ERP.
CLOSING DATE AND LOCATION: August 13, 1996, Rosenberg & Liebentritt, P.C., Two
North Riverside Plaza, Suite 1515, Chicago, Illinois 60606
All the provisions contained in the document attached as Annex A hereto
entitled "ERP Operating Limited Partnership--Debt Securities--Purchase
Agreement" (the "Purchase Agreement") are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this Terms Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in the Purchase Agreement are used herein as therein defined
unless otherwise indicated.
The Purchase Agreement is hereby amended as follows:
(i) References to "Grant Thornton" shall be deleted in their entirety
and the following text inserted in lieu thereof: "the Company's independent
public accountants";
(ii) References to "Barack, Ferrazzano, Kirschbaum & Perlman" as
counsel to ERP shall be replaced by "Rosenberg & Liebentritt, P.C.";
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(iii) The first sentence in the first full paragraph appearing on
page 3 of the Purchase Agreement shall be deleted in its entirety and the
following sentence inserted in lieu thereof: "ERP owns all of the issued and
outstanding shares of preferred stock of Equity Residential Properties
Management Corp., a Delaware corporation, Equity Residential Properties
Management Corp. II, a Delaware corporation, and Equity Residential Properties
Management Corp. III, a Delaware corporation (collectively, the "Management
Corporations")";
(iv) Subsection 1(a)(vii) and 1(a)(viii) shall be amended so that,
in each case where the word "partnership" appears, the following text shall
follow immediately thereafter: ",limited liability company";
(v) Subsection 1(a)(ix) shall be amended so that immediately
following the words "capital stock" in the first line of such subsection, the
following text shall be added: ",limited liability company interests";
(vi) Subsection 1(a)(xxi) shall be amended so that immediately
following the words "partnership agreement" appearing in the second line of such
subsection, the following text shall be added: "limited liability company
agreement,";
(vii) Subsection 1(a)(xxvii) shall be amended so that immediately
following the words "partnership agreements" appearing in the first line of such
subsection, the following text shall be added: "and limited liability company
agreements";
(viii) Subsection 5(b)(1)(ii) shall be amended so that the text
", limited liability company interests" shall be inserted immediately after the
words "capital stock" in each case where such words appear in such subsection;
(ix) Subsection 5(b)(1)(vi) shall be amended so that the text
", limited liability company agreement" shall be inserted immediately after the
words "partnership agreement" in the 7th line of such subsection; and
(x) Subsection 5(b)(1)(xii) shall be amended to delete in their
entirety the words "Form 10 under Item 8 ("Legal Proceedings") and Item 10
("Recent Sales of Unregistered Securities")" and to insert in lieu thereof, the
following text: "most recent report on Form 10-K or Form 10-Q, as the case may
be, under the caption 'Legal Proceedings'".
REPAYMENT AT THE OPTION OF HOLDERS.
- ----------------------------------
The Notes may be repaid on August 15, 2006, at the option of the registered
holders at 100% of their principal amount together with accrued interest to
August 15, 2006. In order for a holder to exercise this option, ERP must receive
at its office or agency in New York, New York, during the period beginning on
June 16, 2006, and ending at 5:00 p.m. (New York City time) on July 16, 2006
(or, if July 16, 2006 is not a Business Day, the next succeeding Business Day),
the Note with the form entitled "Option to Elect Repayment on August 15, 2006"
on the Note duly
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<PAGE>
completed. Any such notice received by ERP during the period beginning on June
16, 2006, and ending at 5:00 p.m. (New York City time) on July 16, 2006, shall
be irrevocable. The repayment option may be exercised for less than the entire
principal amount of the Notes held by each such holder, so long as the principal
amount that is to be repaid is equal to $1,000 or an integral multiple of
$1,000. All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of any Note for repayment will be determined by ERP,
whose determination will be final and binding.
OPTIONAL REDEMPTION.
- -------------------
ERP may redeem the Underwritten Securities, at any time after August 15,
2006, in whole or from time to time in part, at the election of ERP, at a
redemption price equal to the sum of (i) the principal amount of the
Underwritten Securities being redeemed plus accrued interest thereon to the
redemption date and (ii) the Make-Whole Amount (as defined below), if any, with
respect to such Underwritten Securities (the "Redemption Price"). Notice of any
optional redemption of any Underwritten Securities will be given to holders at
their addresses, as shown in the Security Register, not more than 60 nor less
than 30 days prior to the date fixed for redemption. The notice of redemption
will specify, among other items, the Redemption Price and the principal amount
of the Underwritten Securities held by such person to be redeemed.
DEFINITIONS. As used herein,
- -----------
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Underwritten Securities, the excess, if any, of (i)
the aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount of
interest (exclusive of interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of such dollar if such
redemption or accelerated payment had not been made, determined by discounting,
on a semiannual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Underwritten Securities being redeemed or paid.
"Reinvestment Rate" means .25% (one-fourth of one percent) plus the arithmetic
mean of the yields under the respective heading "Week Ending" published in the
most recent Statistical Release under the caption "Treasury Constant Maturities"
for the maturity (rounded to the nearest month) corresponding to the remaining
life
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to maturity, as of the payment date of the principal being redeemed or paid. If
no maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used.
"Statistical Release" means the statistical release designated "H.15(519)" or
any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the Indenture, then such
other reasonably comparable index which shall be designated by ERP.
"Subsidiary" means a corporation, a limited liability company or a partnership a
majority of the outstanding voting stock, limited liability company interests or
partnership interests, as the case may be, of which is owned, directly or
indirectly, by ERP or by one or more other Subsidiaries of ERP. For the purposes
of this definition, "voting stock" means stock having voting power for the
election of directors, managing members or trustees, whether at all times or
only so long as no senior class of stock has such voting power by reason of any
contingency.
"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real Estate
Assets not subject to an encumbrance and (ii) all other assets of the Operating
Partnership and its Subsidiaries not subject to an encumbrance determined in
accordance with GAAP (but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost (original cost
plus capital improvements) of real estate assets of ERP and its Subsidiaries on
such date, before depreciation and amortization determined on a consolidated
basis in accordance with GAAP.
"Unsecured Debt" means Debt of ERP or any Subsidiary which is not secured by any
mortgage, lien, charge, pledge or security interest of any kind upon any of the
Properties.
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Please accept this offer no later than five o'clock p.m. (New York City time) on
August 8, 1996 by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
ALEX. BROWN & SONS
INCORPORATED
J.P. MORGAN SECURITIES INC.
By: MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
(acting on behalf of itself and the other
Underwriters named above)
By: /s/ Andrew Jonas
-------------------------------
Andrew Jonas, Vice President
Accepted:
ERP OPERATING LIMITED PARTNERSHIP
By: EQUITY RESIDENTIAL PROPERTIES TRUST,
not individually but as General Partner
By: /s/ David J. Neithercut
------------------------
Name: David J. Neithercut
Title: Executive Vice-President
<PAGE>
EXHIBIT 5
312.466.3456 312.454.0335
August 13, 1996
ERP Operating Limited Partnership
c/o Board of Trustees
Equity Residential Properties Trust
Two North Riverside Plaza
Suite 450
Chicago, Illinois 60606
Ladies and Gentlemen:
We are acting as counsel to ERP Operating Limited Partnership, an Illinois
limited partnership ("ERP"), the general partner of which is Equity Residential
Properties Trust, a Maryland real estate investment trust (the "Company") in
connection with ERP's registration statement on Form S-3 (the "Registration
Statement") previously declared effective by the Securities and Exchange
Commission relating to unsecured senior debt securities in a maximum aggregate
offering price of $500,000,000 (the "Securities") (SEC File No. 33-84892), all
of which Securities may be offered and sold by ERP from time to time as set
forth in the prospectus which forms a part of the Registration Statement (the
"Prospectus"), and as to be set forth in one or more supplements to the
Prospectus (each, a "Prospectus Supplement"). This opinion letter is rendered in
connection with the proposed public offering by ERP of $150,000,000 principal
amount of its 7.57% Notes due August 15, 2026 (the "Notes") as described in a
Prospectus Supplement dated August 8, 1996. This opinion letter is furnished to
you at your request to enable ERP to continue to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S)229.601(b)(5), in connection with
the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Amended and Restated Declaration of Trust, as amended, of the
Company (the "Declaration of Trust"), as certified by the Secretary of
the Company on the date hereof as then being complete, accurate and in
effect.
<PAGE>
ERP Operating Limiting Partnership
Board of Trustees
Equity Residential Properties Trust
August 13, 1996
Page 2
3. The Amended and Restated Bylaws of the Company, as certified by the
Secretary of the Company on the date hereof as then being complete,
accurate and in effect.
4. The Fourth Amended and Restated Agreement of Limited Partnership of
ERP as certified by the Secretary of the Company, as the general
partner of ERP, on the date hereof as then being complete, accurate
and in effect.
5. Resolutions of the Board of Trustees of the Company, as the general
partner of ERP, adopted on September 7, 1994 and October 28, 1994
relating to the filing of the Registration Statement and related
matters, and on July 31, 1996, and by the Pricing Committee of the
Board of Trustees on August 8, 1996, relating to the offering of the
Notes, as certified by the Secretary of the Company on the date hereof
as then being complete, accurate and in effect.
6. Executed copies of the Purchase Agreement, dated December 13, 1994,
between ERP and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
and the Terms Agreement, dated August 8, 1996, among ERP, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Alex. Brown & Sons
Incorporated and J. P. Morgan Securities Inc. (collectively, the
"Underwriting Agreement").
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all documents submitted to us as certified, telecopied, photostatic, or
reproduced copies. This opinion letter is given, and all statements herein are
made, in the context of the foregoing.
We call your attention to the fact that our firm only requires lawyers to
be qualified to practice law in the State of Illinois and, in rendering the
foregoing opinions, we express no opinion with respect to any laws relevant to
this opinion other than the laws and regulations identified herein.
Based upon, subject to and limited by the foregoing, we are of the opinion
that, as of the date hereof, following issuance of the Notes pursuant to the
terms of the Underwriting Agreement and receipt by ERP of the consideration for
the Notes specified in the resolutions of the Company's Board of Trustees and
the Pricing Committee referred to above, the Notes will
<PAGE>
ERP Operating Limited Partnership
Board of Trustees
Equity Residential Properties Trust
August 13, 1996
Page 3
be validly issued and legally binding obligations of ERP enforceable against ERP
in accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, or similar laws affecting
creditors' rights generally from time to time in effect and general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and except that a waiver of rights under any
usury law may be unenforceable.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing by ERP of a Current
Report on Form 8-K on the date of this opinion letter, which Form 8-K will be
incorporated by reference into the Registration Statement. This opinion letter
should not be quoted in whole or in part or otherwise be referred to, nor filed
with or furnished to any governmental agency or other person or entity, without
the prior written consent of this firm.
We hereby consent (i) to be named in the Registration Statement, and in the
Prospectus, as attorneys who will pass upon the legality of the Securities to be
sold thereunder and (ii) to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
ROSENBERG & LIEBENTRITT, P.C.
By: /s/ Ruth Pinkham Haring
-----------------------------------
Vice President
