<PAGE>
As filed with the Securities and Exchange Commission on October 9, 1997
================================================================================
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): October 3, 1997
ERP OPERATING LIMITED PARTNERSHIP
(Exact Name of Registrant as Specified in Charter)
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 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)
===============================================================================
<PAGE>
ITEM 7. Financial Statements, Pro forma Financial Information and Exhibits
<TABLE>
<C> <S>
Exhibit
Number Exhibit
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1 Terms Agreement dated October 3, 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 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. 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 statements, is set forth in full in such
registration statements.
</TABLE>
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: October 8, 1997 By:
---------------------------------------
Bruce C. Strohm, Secretary,
Executive Vice President and
General Counsel
2
<PAGE>
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
7 1/8% Notes due October 15, 2017
TERMS AGREEMENT
---------------
Dated: October 3, 1997
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 71/8% Notes due October 15, 2017 (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 Merrill
Lynch, Pierce, Fenner & Smith Incorporated offers to purchase $150,000,000
aggregate principal amount of the Underwritten Securities, to the extent any are
purchased.
The Underwritten Securities shall have the following terms:
7 1/8% Notes due October 15, 2017
Title of Securities: 7 1/8% Notes due October 15, 2017 ("Notes").
Currency: U.S. Dollars.
Principal amount to be issued: $150,000,000.
Current ratings: Moody's Investors Service, Inc. A3; Standard & Poor's
Corporation BBB+; Duff & Phelps BBB+
Interest rate or formula: 7.125%.
Interest Payment Dates: October 15 and April 15 of each year, beginning on
April 15, 1998.
Stated Maturity Date: October 15, 2017.
Redemption or repayment provisions: ERP may redeem the Underwritten Securities
at any time as set forth below.
Delayed Delivery Contracts: Not authorized.
Initial public offering price: 99.135% plus accrued interest, if any, from
October 8, 1997.
Purchase price: 98.260% payable in same day funds.
Additional co-managers, if any: None
<PAGE>
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: October 8, 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.
Optional Redemption.
- -------------------
ERP may redeem the Underwritten Securities, at any time, 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
- 2 -
<PAGE>
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 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.
- 3 -
<PAGE>
Please accept this offer no later than 11:00 a.m.. (New York City time) on
October 3, 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
By: /s/ Michael Berman
---------------------------
Name: Michael Berman
Title: Director
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
and Chief Financial Officer
<PAGE>
[LETTERHEAD OF ROSENBERG & LIEBENTRITT, P.C.]
October 8, 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 ("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. 333-12213), 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 1/8% Notes due October 15, 2017 (the "Notes") as described in a
Prospectus Supplement dated October 3, 1997. 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 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.
<PAGE>
LAW OFFICES
ROSENBERG & LIEBENTRITT, P.C.
- -----------------------------
ERP Operating Limited Partnership
Board of Trustees
Equity Residential Properties Trust
October 8, 1997
Page 2
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
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 13, 1996 relating to the filing
of the Registration Statement and related matters, and on August 4,
1997 and September 12, 1997, and by the Pricing Committee of the Board
of Trustees on October 3, 1997, 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 October 3, 1997, among ERP and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (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>
LAW OFFICES
ROSENBERG & LIEBENTRITT, P.C.
- -----------------------------
ERP Operating Limited Partnership
Board of Trustees
Equity Residential Properties Trust
October 8, 1997
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:
-----------------------------------
Vice President
