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As filed with the Securities and Exchange Commission on April 13, 1998
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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): APRIL 6, 1998
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
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
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<S> <C>
1 Form of Terms Agreement dated April 6, 1998 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.
333-45557, 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; the Form of Terms Agreement incorporates
the terms and provisions of the Purchase Agreement dated December
13, 1994, among Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and ERP Operating Limited
Partnership, the form of which was previously filed as Exhibit 1
to the Registrant's registration statement on Form S-3, file no.
333-84892 under the Securities Act of 1933, as amended, and is
incorporated herein by reference thereto and, as this Form 8-K
filing is incorporated by reference in registration statement no.
333-45557, such Purchase Agreement terms are 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.
333-45557, 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.
</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: April 13, 1998 By: /s/ Bruce C. Strohm
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Bruce C. Strohm, Secretary,
Executive Vice President and
General Counsel
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EXHIBIT 1
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
$300,000,000 6.63% Notes due April 13, 2015, Putable/Callable April 13, 2005
TERMS AGREEMENT
Dated: April 6, 1998
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 $300,000,000 aggregate
principal amount of its 6.63% Notes due April 13, 2015, Putable/Callable April
13, 2005 (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") severally, and not jointly, agree to purchase the respective
amounts of Underwritten Securities set forth below opposite their respective
names, to the extent any are purchased.
<TABLE>
<CAPTION>
Principal Amount of
Underwritten
Underwriter Securities
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<S> <C>
Merrill Lynch, Pierce Fenner & Smith Incorporated............................... $210,000,000
NationsBanc Montgomery Securities LLC........................................... 45,000,000
Salomon Brothers Inc............................................................ 45,000,000
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Total $300,000,000
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</TABLE>
The Underwritten Securities shall have the following terms (capitalized terms
used but not defined herein or in the attached Purchase Agreement shall have
the meanings given them in the form of Note attached hereto as Annex B):
TITLE OF SECURITIES: 6.63% Notes due April 13, 2015,
Putable/Callable April 13, 2005
PRINCIPAL AMOUNT TO BE ISSUED: $300,000,000
FORM: Registered book-entry form
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INTEREST RATE TO REMARKETING DATE: 6.63%
CURRENT RATINGS: Moody's Investors Service, Inc. A3
Standard & Poor's Corporation BBB+
Duff & Phelps A-
INTEREST PAYMENT DATES: April 13 and October 13 of each year
(each, an "Interest Payment Date"),
commencing on October 13, 1998
STATED MATURITY DATE: April 13, 2015
REMARKETING DATE: April 13, 2005
BASE RATE: 5.507%
PURCHASE PRICE: 102.085% ($306,255,000), plus
accrued interest, if any, from April
13, 1998
INITIAL PRICE TO PUBLIC: At varying prices related to the
prevailing market prices at the time
of the sale
SETTLEMENT DATE, TIME AND PLACE: April 13, 1998, at 9:00 a.m. Chicago
time at the offices of Rosenberg &
Liebentritt, P.C. Two North
Riverside Plaza, Chicago, Illinois
60606
REDEMPTION/REPURCHASE PROVISIONS: Subject to repurchase or redemption
only upon the terms set forth in the
Notes (the form of which is attached
hereto as Annex B)
TENDER OF NOTES/REMARKETING Subject to tender or remarketing
PROVISIONS: only upon the terms set forth in the
Notes (the form of which is attached
hereto as Annex B)
SPECIFIED CURRENCY: U.S. dollars
AUTHORIZED DENOMINATIONS: $1,000 and integral multiples thereof
ADDITIONAL/OTHER TERMS: As set forth below
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. In addition,
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the Purchase Agreement is hereby further amended to refer to the Registration
Statement on Form S-3 as number 333-45557 rather than number 33-84892. Defined
terms used herein have the same meaning as defined in the Purchase Agreement
and the prospectus dated April 6, 1998 (the "Prospectus").
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.
In addition to the closing documents required pursuant to the Purchase
Agreement, ERP's counsel shall also deliver the following legal opinion:
"The Remarketing Agreement has been duly authorized, executed and
delivered by the ERP and, assuming due authorization, execution and
delivery thereof by the Remarketing Dealer, constitutes a legal, valid
and binding agreement of the ERP, enforceable in accordance with its
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."
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Please accept this offer by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us no later than 6:00 p.m.
(New York City time) on April 6, 1998 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/ Peter Ahearne
--------------------------------
Name: Peter Ahearne
Title:
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/ David Neithercut
--------------------------------
Name: David Neithercut
Title: Executive Vice-President
and Chief Financial Officer
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EXHIBIT 5
[Letterhead of Rosenberg & Liebentritt, P.C.]
April 13, 1998
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 $1,000,000,000
(the "Securities") (SEC File No. 333-45557), 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) $300,000,000 principal amount of its 6.63% Notes due April 13, 2015,
Putable/Callable April 13, 2005 (the "Notes") as described in a Prospectus
Supplement dated April 6, 1998. 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. Section
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.
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 amended, 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.
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5. Resolutions of the Board of Trustees of the Company, as the
general partner of the Operating Partnership, adopted on September
13, 1996, November 14, 1997 and January 14, 1998 relating to the
filing of the Registration Statement and related matters, and by the
Pricing Committee of the Board of Trustees on April 6, 1998,
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 April 6, 1998, between the Operating Partnership
and each of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, NationsBanc Montgomery Securities LLC and
Salomon Brothers 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.
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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 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.
By: /s/ William C. Hermann
-----------------------
Vice President
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