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As filed with the Securities and Exchange Commission on November 25, 1997
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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): November 20, 1997
ERP OPERATING LIMITED PARTNERSHIP
(Exact Name of Registrant as Specified in Charter)
Illinois 0-24920 36-3894853
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation or organization) Identification No.)
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
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
Exhibit
Number Exhibit
------- -------
1 Terms Agreement dated November 20, 1997 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.
333-12213, under the Securities Act of 1933, as
amended, and which, as this Form 8-K filing is
incorporated by reference in such registration
statement, is set forth in full in such registration
statement.
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. 333-12213, under the Securities
Act of 1933, as amended, and which, as this Form 8-K
filing is incorporated by reference in such
registration statement, is set forth in full in such
registration statement.
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: November 25, 1997 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)
$150,000,000 6.55% Notes due November 15, 2001
$50,000,000 6.65% Notes due November 15, 2003
TERMS AGREEMENT
---------------
Dated: November 20, 1997
To: ERP Operating Limited Partnership
Two North Riverside Plaza
Chicago, Illinois 60606
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 6.55% Notes due November 15, 2001 (the "2001 Notes") and
$50,000,000 aggregate principal amount of its 6.65% Notes due November 15, 2003
(the "2003 Notes" and together with the 2001 Notes, 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 principal amount of the Underwritten Securities opposite our
names below at the purchase price set forth below, to the extent any are
purchased.
<TABLE>
<CAPTION>
Principal Amount of Principal Amount of
Underwriter 2001 Notes 2003 Notes
----------- ---------- ----------
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith $ 50,000,000 $16,670,000
Incorporated
BancAmerica Robertson Stephens 50,000,000 16,665,000
J.P. Morgan Securities Inc. 50,000,000 16,665,000
============ ===========
Total $150,000,000 $50,000,000
</TABLE>
The Underwritten Securities shall have the following terms:
Title of Securities: 6.55% Notes due November 15, 2001 (the "2001 Notes") and
6.65% Notes due November 15, 2003 (the "2003 Notes")
Currency: U.S. Dollars.
Principal amount to be issued: $150,000,000 of 2001 Notes and $50,000,000 of
2003 Notes
Current ratings: Moody's Investors Service, Inc. A3; Standard & Poor's
Corporation BBB+; Duff & Phelps BBB+
Interest rate or formula: 6.55% for the 2001 Notes and 6.65% for the 2003 Notes.
Interest Payment Dates: May 15 and November 15 of each year, beginning on May
15, 1998.
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Stated Maturity Date: November 15, 2001 for the 2001 Notes and November 15, 2003
for the 2003 Notes.
Redemption or repayment provisions: None.
Delayed Delivery Contracts: Not authorized.
Initial public offering price: 99.789% for the 2001 Notes and 99.833% for the
2003 Notes, plus accrued interest, if any, from November 25, 1997.
Purchase price: 99.239% for the 2001 Notes and 99.2205% for the 2003 Notes,
payable in same day funds.
Additional co-managers, if any: BancAmerica Robertson Stephens and J.P. Morgan
Securities Inc.
Other terms: 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: November 25, 1997, Rosenberg & Liebentritt, P.C.,
Two North Riverside Plaza, Suite 1600, 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"), dated December 13, 1994 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. In addition, the amendments to the Purchase Agreement
set forth in the Terms Agreement dated August 8, 1996, between ERP, Equity
Residential Properties Trust and the underwriters named therein, are
incorporated herein by reference 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.
Definitions
- -----------
As used herein, "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 6:00 p.m. (New York City time) on
November 20, 1997 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
BANCAMERICA ROBERTSON STEPHENS
J.P. MORGAN SECURITIES INC.
By: Merrill Lynch, Pierce, Fenner
& Smith Incorporated
By: /s/ Michael Berman
-----------------------------
Name: Michael Berman
Title: Director
Acting on behalf of itself and the other named
Underwriters
Accepted:
ERP OPERATING LIMITED PARTNERSHIP
By: EQUITY RESIDENTIAL PROPERTIES TRUST,
not individually but as General Partner
By: /s/ Bruce C. Strohm
--------------------------------
Name: Bruce C. Strohm
Title: Executive Vice President
and General Counsel
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EXHIBIT 5
ROSENBERG & LIEBENTRITT, P.C.
Two North Riverside Plaza
Suite 1515
Chicago, Illinois 60606
Telephone 312.466.3456
Fax 312.454.0335
November 25, 1997
ERP Operating Limited Partnership
c/o Board of Trustees
Equity Residential Properties Trust
Two North Riverside Plaza
Suite 400
Chicago, Illinois 60606
Ladies and Gentlemen:
We are acting as counsel to ERP Operating Limited Partnership, an Illinois
limited partnership (the "Operating Partnership"), the general partner of which
is Equity Residential Properties Trust, a Maryland real estate investment trust
(the "Company") in connection with the Operating Partnership'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. 333-12213), all of which Securities may be offered
and sold by the Operating Partnership 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 the Operating Partnership of (i) $150,000,000
principal amount of its 6.55% Notes due November 15, 2001 and (ii) $50,000,000
principal amount of its 6.65% Notes due November 15, 2003 (collectively, the
"Notes") as described in a Prospectus Supplement dated November 20, 1997. This
opinion letter is furnished to you at your request to enable the Operating
Partnership 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 Second Amended and Restated Declaration of Trust 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.
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3. The Second 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 the
Operating Partnership as certified by the Secretary of the Company, as
the general partner of the Operating Partnership, 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 the Operating Partnership, adopted on September 13, 1996 and
November 14, 1997 relating to the filing of the Registration Statement
and related matters, and by the Pricing Committee of the Board of
Trustees on November 20, 1997, relating to the offering of the Notes,
each 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 the Operating Partnership, Merrill Lynch & Co. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, and the Terms Agreement,
dated November 20, 1997, between the Operating Partnership and each of
Merrill Lynch, Pierce, Fenner & Smith Incorporated, BancAmerica
Robertson Stephens 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 the Operating Partnership 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 be
validly issued and legally binding obligations of the Operating Partnership
enforceable against the Operating Partnership 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
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connection with the filing by the Operating Partnership 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.
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