<PAGE>
As filed with the Securities and Exchange Commission on September 28, 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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): SEPTEMBER 23, 1998
ERP OPERATING LIMITED PARTNERSHIP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
ILLINOIS 0-24920 36-3894853
(STATE OR OTHER JURISDICTION (COMMISSION FILE (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) 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>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
1.1 Form of Terms Agreement dated September 23, 1998 between
ERP Operating Limited Partnership and J.P. Morgan
Securities Inc., 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 filed herewith as Exhibit 1.3.
1.2 Form of Terms Agreement dated September 25, 1998 between
ERP Operating Limited Partnership and J.P. Morgan
Securities Inc., 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 filed herewith as Exhibit 1.3.
1.3 Purchase Agreement dated September 23, 1998 between ERP
Operating Limited Partnership and J.P. Morgan Securities
Inc., 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.
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>
2
<PAGE>
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: September 28, 1998 By: /s/ Bruce C. Strohm
-----------------------------------------
Bruce C. Strohm
Executive Vice President, General Counsel
and Secretary
3
<PAGE>
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
$100,000,000 6.15% Notes due September 15, 2000
TERMS AGREEMENT
Dated: September 23, 1998
To: ERP Operating Limited Partnership
c/o Equity Residential Properties Trust
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 $100,000,000 aggregate principal
amount of 6.15% Notes due September 15, 2000 (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, J.P. Morgan
Securities Inc. (the "Underwriter") agrees to purchase the Underwritten
Securities at 99.594% of the principal amount thereof.
The Underwritten Securities shall have the following terms (capitalized
terms used but not defined herein shall have the meanings given to them in the
attached Purchase Agreement):
TITLE: 6.15% Notes due September 15, 2000
PRINCIPAL AMOUNT TO BE
ISSUED: $100,000,000
CURRENT RATINGS: A3 by Moody's Investors Services, Inc.
BBB+ by Standard & Poor's Ratings Services
FORM: Registered book-entry form
INITIAL PRICE TO PUBLIC: At varying prices related to the prevailing
market prices at the time of the sale
PURCHASE PRICE: 99.594% of the principal amount of the
Underwritten Securities
<PAGE>
SETTLEMENT DATE, TIME AND September 28, 1998, at 9:00 a.m. New York City
PLACE: time at the offices of Rosenberg & Liebentritt,
P.C., Two North Riverside Plaza, Suite 1600,
Chicago, Illinois 60606 for the delivery of
documents; delivery of funds on September 28,
1998 in accordance with DTC procedures for the
Underwritten Securities
STATED MATURITY DATE: September 15, 2000
INTEREST RATE: 6.15%
INTEREST PAYMENT DATES: Interest on the Notes will be payable semi-
annually in arrears, on March 15 and September 15
of each year, beginning March 15, 1999.
REDEMPTION: The Notes may not be redeemed by ERP prior to
their stated maturity date of September 15, 2000.
OTHER: The Notes are not repayable at the option of any
holder prior to their stated maturity date of
September 15, 2000.
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 September 23, 1998 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. Defined terms used herein have the same meaning as
defined in the Purchase Agreement and the prospectus supplement, dated September
23, 1998 (the "Prospectus Supplement"), to the prospectus dated April 6, 1998
(together with the Prospectus Supplement, the "Prospectus").
- 2 -
<PAGE>
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 September 23, 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
J.P. MORGAN SECURITIES INC.
By: ____________________________
Name:
Title:
Accepted:
ERP OPERATING LIMITED PARTNERSHIP
By: EQUITY RESIDENTIAL PROPERTIES TRUST,
not individually but as General Partner
By: __________________________________
Name:
Title:
<PAGE>
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
$45,000,000 6.15% Notes due September 15, 2000
TERMS AGREEMENT
Dated: September 25, 1998
To: ERP Operating Limited Partnership
c/o Equity Residential Properties Trust
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 $45,000,000 aggregate principal
amount of 6.15% Notes due September 15, 2000 (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, J.P. Morgan
Securities Inc. (the "Underwriter") agrees to purchase the Underwritten
Securities at 99.685% of the principal amount thereof.
The Underwritten Securities shall have the following terms (capitalized
terms used but not defined herein shall have the meanings given to them in the
attached Purchase Agreement):
TITLE: 6.15% Notes due September 15, 2000
PRINCIPAL AMOUNT TO BE
ISSUED: $45,000,000
CURRENT RATINGS: A3 by Moody's Investors Services, Inc.
BBB+ by Standard & Poor's Ratings Services
FORM: Registered book-entry form
INITIAL PRICE TO PUBLIC: At varying prices related to the prevailing
market prices at the time of the sale
PURCHASE PRICE: 99.685% of the principal amount of the
Underwritten Securities
<PAGE>
SETTLEMENT DATE, TIME AND September 28, 1998, at 9:00 a.m. New York City
PLACE: time at the offices of Rosenberg & Liebentritt,
P.C., Two North Riverside Plaza, Suite 1600,
Chicago, Illinois 60606 for the delivery of
documents; delivery of funds on September 28,
1998 in accordance with DTC procedures for the
Underwritten Securities
STATED MATURITY DATE: September 15, 2000
INTEREST RATE: 6.15%
INTEREST PAYMENT DATES: Interest on the Notes will be payable semi-
annually in arrears, on March 15 and September 15
of each year, beginning March 15, 1999.
REDEMPTION: The Notes may not be redeemed by ERP prior to
their stated maturity date of September 15, 2000.
OTHER: The Notes are not repayable at the option of any
holder prior to their stated maturity date of
September 15, 2000.
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 September 23, 1998 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. Defined terms used herein have the same meaning as
defined in the Purchase Agreement and the prospectus supplement, dated September
25, 1998 (the "Prospectus Supplement"), to the prospectus dated April 6, 1998
(together with the Prospectus Supplement, the "Prospectus").
- 2 -
<PAGE>
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 September 25, 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
J.P. MORGAN SECURITIES INC.
By: ____________________________
Name:
Title:
Accepted:
ERP OPERATING LIMITED PARTNERSHIP
By: EQUITY RESIDENTIAL PROPERTIES TRUST,
not individually but as General Partner
By: __________________________________
Name:
Title:
<PAGE>
$1,275,000,000
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
Debt Securities
PURCHASE AGREEMENT
September 23, 1998
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
ERP Operating Limited Partnership, a limited partnership organized
under the laws of the State of Illinois ("ERP"), proposes to issue and sell
up to $1,275,000,000 aggregate principal amount of its senior debt securities
(the "Securities"), from time to time, in one or more offerings on terms to
be determined at the time of sale. The Securities will be issued under an
indenture dated as of October 1, 1994 (the "Indenture") between ERP and The
First National Bank of Chicago, as trustee (the "Trustee"). Each series of
Securities may vary, as applicable, as to aggregate principal amount,
maturity date, interest rate or formula and timing of payments thereof,
redemption or repayment provisions, and any other variable terms which the
Indenture contemplates may be set forth in the Securities as issued from time
to time. As used herein, "you" and "your," unless the context otherwise
require, shall mean the parties to whom this Agreement is addressed together
with the other parties, if any, identified in the applicable Terms Agreement
(as hereinafter defined) as additional co-managers with respect to
Underwritten Securities (as hereinafter defined) purchased pursuant thereto.
Whenever ERP determines to make an offering of Securities through
you or through an underwriting syndicate managed by you, ERP will enter into
an agreement (the "Terms Agreement") providing for the sale of such
Securities (the "Underwritten Securities") to, and the purchase and offering
thereof by, you and such other underwriters, if any, selected by you as have
authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters," which term shall include you whether acting alone in the sale
of the Underwritten Securities or as a member of an underwriting syndicate
and any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Underwritten Securities shall specify
the initial principal amount of Underwritten Securities to be initially
issued the ("Initial Underwritten Securities"), the names of the
<PAGE>
Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof), the principal amount of Initial Underwritten
Securities which each such Underwriter severally agrees to purchase, the
names of such of you or such other Underwriters acting as co-managers, if
any, in connection with such offering, the price at which the Initial
Underwritten Securities are to be purchased by the Underwriters from ERP, the
initial public offering price, if any, of the Initial Underwritten
Securities, the time and place of delivery and payment, any delayed delivery
arrangements and any other variable terms of the Initial Underwritten
Securities (including, but not limited to, current ratings, designations,
denominations, interest rates or formulas, interest payment dates, maturity
dates and redemption or repayment provisions applicable to the Initial
Underwritten Securities). In addition, each Terms Agreement shall specify
whether ERP has agreed to grant to the Underwriters an option to purchase
additional Underwritten Securities to cover over-allotments, if any, and the
aggregate principal amount of Underwritten Securities subject to such option
(the "Option Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of the Option Securities agreed to be purchased by the Underwriters
as provided herein, if any. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunications between you and
ERP. Each offering of Underwritten Securities through you or through an
underwriting syndicate managed by you will be governed by this Agreement, as
supplemented by the applicable Terms Agreement.
ERP has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-45557) for the
registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance
with Rule 430A or Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), and ERP has filed such
amendments thereto as may have been required prior to the execution of the
applicable Terms Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission and the Indenture
has been qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"). Such registration statement and the prospectus constituting a
part thereof (including in each case the information, if any, deemed to be
part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations), and each
prospectus supplement relating to the offering of Underwritten Securities
pursuant to Rule 415 of the 1933 Act Regulations (the "Prospectus
Supplement"), including all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act") or otherwise,
are collectively referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, that if any revised prospectus shall be
provided to you by ERP for use in connection with the offering of
Underwritten Securities which differs from the Prospectus on file at the
Commission at the time the Registration
-2-
<PAGE>
Statement becomes effective (whether or not such revised prospectus is
required to be filed by ERP pursuant to Rule 424(b) of the 1933 Act
Regulations), the term "Prospectus" shall refer to each such revised
prospectus from and after the time it is first provided to you for such use;
provided, further, that a Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of Underwritten
Securities to which it relates. All references in this Agreement to
financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document
under the 1934 Act which is or is deemed to be incorporated by reference in
the Registration Statement or the Prospectus, as the case may be.
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"). The term
"subsidiaries," even used with respect to ERP, shall include (i) the
Management Corporations, (ii) each consolidated subsidiary of ERP, (iii) any
entity the operations of which are included in the consolidated financial
statements for ERP for the most recent fiscal period included in the
Prospectus and (iv) any subsidiary (other than ERP) of Equity Residential
Properties Trust, a Maryland real estate investment trust and ERP's general
partner ("EQR"), which owns an interest in any entity described in clause
(ii) above.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) ERP represents and warrants to you, as of the date hereof,
and to you and each other Underwriter named in the applicable Terms
Agreement, as of the date thereof (in each case, a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at the
time the Registration Statement became effective, complied, and as of
each Representation Date will comply, in all material respects with
the requirements of the 1933 Act, 1933 Act Regulations and the
1939 Act and the rules and regulations thereunder (the "1939 Act
Regulations"); the Registration Statement, at the time the
Registration Statement became effective, did not, and as of each
Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
the Prospectus, as of the date
-3-
<PAGE>
hereof does not, and as of each Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to you
by ERP for use in connection with an offering of Underwritten
Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes effective,
in which case at the time it is first provided to you for such use)
and Closing Time (as hereinafter defined) will not, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to ERP in writing by any
Underwriter through you expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
on Form T-1 under the 1939 Act (the "Statement of Eligibility") of
the Trustee under the Indenture.
(ii) Each preliminary prospectus, preliminary prospectus
supplement and Prospectus Supplement filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied or will comply when so filed in all material respects with
the 1933 Act and the 1933 Act Regulations thereunder.
(iii) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of ERP, threatened by the Commission or by the state securities
authority of any jurisdiction. No order preventing or suspending the
use of the Prospectus has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of ERP, threatened by
the Commission or by the state securities authority of any
jurisdiction.
(iv) ERP's independent public accountants who certified the
financial statements and supporting schedules included or incorporated
by reference in the Registration Statement and the Prospectus, are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(v) The consolidated financial statements and related notes
included in the Registration Statement and the Prospectus present
fairly the financial position of ERP and its consolidated subsidiaries
as at the dates indicated and the results of their operations
specified, and
-4-
<PAGE>
except as may otherwise be stated in the Registration Statement and
Prospectus, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout
such periods. The supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein. The financial information and statistical data included
in the Registration Statement and the Prospectus present fairly
the information included therein and have been prepared on a
basis consistent with that of the financial statements included in the
Registration Statement and the Prospectus. The pro forma financial
statements included in the Registration Statement and Prospectus
comply in all material respects with the applicable requirements of
Rule 11-02 of Regulation S-X of the Commission and the pro forma
adjustments have been properly applied to the historical amounts in
the compilation of such statements and the assumptions used in the
preparation thereof are, in the opinion of ERP, reasonable.
(vi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated or contemplated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or
in the earnings, assets, business affairs or business prospects of ERP
and its subsidiaries, considered as a single enterprise, whether or
not arising in the ordinary course of business, (B) there have been no
material transactions entered into by ERP or any of its subsidiaries,
other than transactions in the ordinary course of business, which are
material with respect to ERP and its subsidiaries considered as a
single enterprise, (C) neither ERP nor any of its subsidiaries has
incurred any material obligation or liability, direct, contingent or
otherwise and (D) there has been no material change in the short-term
debt or long-term debt of ERP.
(vii) ERP and each of its subsidiaries has been duly formed,
and is validly existing and in good standing as a partnership, limited
liability company or corporation under the laws of its jurisdiction of
organization, with partnership, limited liability company or
corporation power and authority to carry on its business and to own or
lease its properties as described in the Prospectus.
(viii) ERP and each of its subsidiaries is duly qualified or
registered as a foreign partnership, limited liability company or
corporation in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by the
nature of its business or its ownership or leasing of property, except
where the failure to so qualified would not have a material adverse
-5-
<PAGE>
effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of ERP and its
subsidiaries considered as a single enterprise.
(ix) All of the issued and outstanding shares of capital
stock, limited liability company interests and partnership interests,
as the case may be, of each subsidiary have been validly issued and
fully paid and are owned by ERP, EQR, another subsidiary, and/or
certain affiliated entities as described in the Registration
Statement, in each case free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. ERP owns no
direct or indirect equity interest in any entity other than its
subsidiaries, except for such interests as, in the aggregate, are
not material to the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of ERP
and its subsidiaries considered as a single enterprise.
(x) Except for transactions described in the Prospectus,
there are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or partnership or other equity interest in ERP or any
subsidiary of ERP except for multifamily property acquisition
agreements with respect to the sale or issuance of OP Units which are
not material in amount.
(xi) The capitalization of ERP is as set forth in the
Prospectus and all of the outstanding partnership interests in ERP
have been duly authorized and validly issued and the capital
contributions with respect thereto have been made in full; the
partnership interests owned by EQR are owned in the percentage amount
set forth in the Prospectus free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(xii) ERP has full partnership power and authority to enter into
and to perform its obligations under the Indenture, this Agreement,
the applicable Terms Agreement and the Delayed Delivery Contracts (as
defined in Section 2 hereof), if any, and this Agreement has been, and
as of each Representation Date, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, will have been, duly authorized,
executed and delivered by ERP, and each is or will be a valid and
binding obligation of ERP, enforceable against ERP in accordance with
its terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) rights of
-6-
<PAGE>
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability and (C)
rights to indemnity and contribution hereunder may be limited by
state or federal securities laws or the public policy underlying
such laws.
(xiii) The Indenture (A) has been duly and validly
authorized, executed and delivered by ERP, and when executed and
delivered by the Trustee, will constitute a valid and binding
obligation of ERP, enforceable against ERP in accordance with its
terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability; and (B) conforms in all material
respects to the description thereof in the Prospectus.
(xiv) The Underwritten Securities (A) have been duly
authorized by ERP and, when executed, authenticated, issued and
delivered in the manner provided for in the Indenture, against payment
of the consideration therefor specified in the applicable Terms
Agreement or any Delayed Delivery Contract (as defined in Section 2
hereof), the Underwritten Securities will constitute valid and legally
binding obligations of ERP entitled to the benefits of the Indenture
and enforceable against ERP in accordance with their terms, except as
(i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability; and (13) conform in all material
respects to the descriptions thereof in the Prospectus.
(xv) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of ERP, threatened, against or affecting
ERP or any of its subsidiaries which is required to be disclosed in
the Prospectus (other than as disclosed therein) or which might result
in any material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or business
prospects of ERP and its subsidiaries considered as a single
enterprise, or which might materially and adversely affect the
properties or assets thereof or which might materially and adversely
affect the consummation of this Agreement, the applicable Terms
Agreement or the Indenture or the transactions contemplated herein and
therein; all pending legal or governmental proceedings to which ERP or
any of its subsidiaries is a party or of which any of their properties
or assets is the subject which
-7-
<PAGE>
are not described in the Prospectus, including ordinary routine
litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents
of ERP or any of its subsidiaries which would be required to be
filed as exhibits to the Registration Statement by the 1933 Act
or the 1933 Act Regulations which have not been filed as exhibits to
the Registration Statement.
(xvi) None of ERP or any of its subsidiaries is required to
own or possess any trademarks, service marks, trade names or
copyrights to conduct the business now operated by it, other than
those the failure to possess or own would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of ERP and its
subsidiaries considered as a single enterprise.
(xvii) No authorization, approval or consent of any court or
governmental authority or agency is required that has not been
obtained in connection with the consummation by ERP of the
transactions contemplated by this Agreement, the applicable Terms
Agreement or the Indenture, except such as may be required under the
1933 Act, the 1939 Act or the 1933 Act Regulations or state securities
law.
(xviii) Each of ERP and its subsidiaries has all consents,
authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals required for it to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Registration Statement and
the Prospectus, except to the extent that the failure to obtain or
file would not nave a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs or
business prospects of ERP and its subsidiaries, considered as a single
enterprise, and none of ERP or any of its subsidiaries has received
any written notice of proceedings relating to the revocation or
modification of any such consent, authorization, approval, order,
certificate or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, assets, business affairs or business prospects of ERP
and its subsidiaries, considered as a single enterprise.
(xix) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were or hereafter are
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filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective and as of each Representation Date or during the period
specified in Section 3(f), did not and will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(xx) Each of ERP and its subsidiaries is insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and ERP has no reason to
believe that it or any of its subsidiaries will not be able to renew
its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary
to continue its businesses at a cost that would not materially and
adversely affect the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of ERP and
its subsidiaries, considered as a single enterprise, except as
described in or contemplated by the Registration Statement and the
Prospectus.
(xxi) None of ERP or any of its subsidiaries is in violation
of its partnership agreement, limited liability company agreement,
charter documents or bylaws or in default in the performance of any
material obligation, agreement or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which it or any of them is a party or by which it or any of them
may be bound, or to which any of their properties or assets is
subject, which default in performance would materially and adversely
affect the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of ERP and its subsidiaries,
considered as a single enterprise; and the execution, delivery and
performance of this Agreement, the applicable Terms Agreement or the
Indenture and the consummation of the transactions contemplated herein
and therein, including the issuance, sale and delivery of the
Underwritten Securities, will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of ERP or any
of its subsidiaries, pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which ERP or any of
its subsidiaries is a party or by which it or any of them may be bound
or
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affected, or to which any of their properties or assets is subject,
nor will such action result in any violation of the provisions of the
partnership agreement or charter of bylaws of ERP or any of its
subsidiaries, or any applicable law, regulation, ruling, order,
judgment, administrative regulation or administrative or court decree.
(xxii) ERP has not taken and will not take, directly or
indirectly, any action prohibited by Rule 10b-6 under the 1934 Act.
(xxiii) The assets of ERP do not constitute "plan assets"
under the Employee Retirement Income Security Act of 1974, as amended.
(xxiv) Except as otherwise described in the Prospectus, each of
ERP and its subsidiaries has good and marketable title in fee simple
to all real property and good and marketable title to all personal
property owned by it which is material to the business of ERP and its
subsidiaries, considered as a single enterprise, in each case free and
clear of all liens, claims, encumbrances and defects except such as
are described in general in the Prospectus or such as do not
materially serially affect the value of such property and do not
interfere with the use made and proposed to be made of such property
by ERP or any of its subsidiaries; and any real property and buildings
held under lease by ERP and any of its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed
to be made of such property and buildings by ERP or such subsidiaries,
in each case except as described in or contemplated by the
Registration Statement and the Prospectus.
(xxv) Each of ERP and its subsidiaries has obtained title
insurance on all of the properties owned by each of them in an amount
at least equal to (A) the cost of acquisition of such property or (B)
the cost of construction of such property, and in each case such title
insurance is in full force and effect.
(xxvi) The mortgages and deeds of trust encumbering the
properties and assets described in general in the Prospectus are not
convertible and none of ERP or any of its subsidiaries holds
participating interests therein and such mortgages and deeds of trust
are not cross-defaulted or cross-collateralized to any property not
owned by ERP or any of its subsidiaries.
(xxvii) Each of the partnership agreements and limited liability
company agreements to which any of ERP or its subsidiaries is a party
has been duly authorized, executed and delivered by such party and
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constitutes the valid agreement thereof, enforceable in accordance
with its terms, except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and (B) the
availability of equitable remedies may be limited by equitable
principles of general applicability; and the execution, delivery
and performance of any of such agreements did not, at the time of
execution and delivery, and does not constitute a breach of, or
default under, the partnership agreement, charter, bylaws or other
governing documents of such party or any material contract, lease
or other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or
administrative or court decree.
(xxviii) (a) Except as disclosed in the Prospectus, each of
ERP and its subsidiaries has complied and is in compliance in all
material respects with all Environmental Statutes (as hereinafter
defined).
(b) None of ERP or any of its subsidiaries intends to
use the properties or assets described in the Prospectus or any
other real property for the purpose of handling, burying, storing,
retaining, refining, transporting, processing, manufacturing,
generating, producing, spilling, seeping, leaking, escaping,
leaching, pumping, pouring, emitting, emptying, discharging,
injecting, dumping, transferring or otherwise disposing of or
dealing with Hazardous Materials, except for materials utilized in
the ordinary course of business of the properties, provided such
use would not, in the ordinary course of business, give rise to
liability under any Environmental Statute.
(c) Except as disclosed in the Prospectus, none of
ERP or any of its subsidiaries knows (after due inquiry) of any
release, seepage, leak, escape, leach, discharge, injection,
release, emission, spill, pumping, pouring, emptying or dumping
("Release") of Hazardous Materials (i) into waters on, under or
adjacent to the properties described in the Prospectus or (ii) on
any other real property owned or occupied by any such party, or
(iii) onto lands from which Hazardous Materials are likely to seep,
flow or drain into such waters, except for such Releases as would
not, individually or in the aggregate, have a material adverse
effect on the condition, financial or otherwise, earnings, business
affairs or business prospects of any of such properties.
(d) Except as disclosed in the Prospectus, none of
ERP or any of its subsidiaries has received any notice of, or has
any knowledge (after due inquiry) of any occurrence or circumstance
which,
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with notice or passage of time or both, would give rise to a claim
under or pursuant to any Environmental Statute or under common law,
pertaining to Hazardous Materials on or originating from any
properties or assets described in the Prospectus or any other real
property owned or occupied by any such party or arising out of the
conduct of any such party, except such occurrence or circumstance
as would not, individually or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, earnings,
assets, business affairs or business prospects of any of such
properties.
(e) Neither the properties described in the Prospectus
nor any other land owned by ERP or any of its subsidiaries is included
or, to ERP's knowledge (after due inquiry), proposed for inclusion on
the National Priorities List issued pursuant to CERCLA (as hereinafter
defined) by the United States Environmental Protection Agency (the
"EPA") or on the inventory of other potential "Problem" sites issued
by the EPA and has not otherwise been publicly identified by the EPA
as a potential CERCLA site or included or, to ERP's knowledge,
proposed for inclusion on any list or inventory issued or maintained
pursuant to any other Environmental Statute or issued or maintained by
any other Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include
without limitation any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, toxic substances, asbestos,
medical waste or any hazardous material as defined by any
Environmental Statute. As used herein, "Environmental Statute"
shall include any federal, state or local environmental law,
ordinance, rule or regulation including without limitation the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, 42 U.S.C. Sections 9601 ET SEQ.
("CERCLA"), the Hazardous Materials Transportation Act, as amended,
49 U.S.C. Sections 1801 ET SEQ., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Sections 9601 ET SEQ., the
Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Sections 11001 ET SEQ., the Toxic Substances Control Act, 15
U.S.C. Sections 2601 ET SEQ., the Federal Insecticide, Fungicide
and Rodenticide Act, 7 U.S.C. Sections 136 ET SEQ., the Clean Air
Act, 42 U.S.C. Sections 7401 ET SEQ., the Clean Water Act (Federal
Water Pollution Control Act), 33 U.S.C. Sections 1251 ET SEQ., the
Safe Drinking Water Act, 42 U.S.C. Sections 300f - 300j-11, and the
Occupational Safety and Health Act, 29 U.S.C. Sections 651 ET SEQ.,
as any of the above statutes may be amended from time to time, and
the state analogues to those statutes, and in the regulations
adopted and publications promulgated pursuant to any of the
foregoing or by any federal, state or local
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governmental authority having jurisdiction over the properties and
assets described in the Prospectus (a "Governmental Authority").
(xxix) Neither ERP nor any subsidiary is, or as a result of
the transactions contemplated by the Prospectus would be, required
to make any filing or to register under the Investment Company Act
of 1940, as amended, or is or will become a "holding company" or a
"subsidiary company" of a "registered holding company," as defined
in the Public Utility Holding Company Act of 1930, as amended.
(xxx) No labor dispute with the employees of ERP, or any of
ERP's subsidiaries exists, or to the knowledge of ERP, is imminent.
(b) Any certificate signed by any officer of ERP (or any officer
of EQR) or of any subsidiary and delivered to you or to counsel for the
Underwriters shall be deemed a representation and warranty by ERP or such
subsidiary to each Underwriter participating in such offering as to the
matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
Section 2. PURCHASE AND SALE.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein
set forth, ERP may grant, if so provided in the applicable Terms Agreement
relating to the Initial Underwritten Securities, an option to the
Underwriters named in such Terms Agreement, severally and not jointly, to
purchase up to the aggregate principal amount of Option Securities set forth
therein at the same price per Option Security as is applicable to the Initial
Underwritten Securities. Such option, if granted, will expire 30 days or
such lesser number of days as may be specified in the applicable Terms
Agreement after the Representation Date relating to the Initial Underwritten
Securities, and may be exercised in whole or in part from time to time only
for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Underwritten Securities
upon notice by you to ERP setting forth the aggregate principal amount of
Option Securities as to which the several Underwriters are then exercising
the option and the time and date of payment and delivery for such Option
Securities. Any such time and date of payment and delivery (a "Date of
Delivery") shall be determined by you, but shall not be later than seven full
business days and not be earlier than two full business
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days after the exercise of said option, unless otherwise agreed upon by you
and ERP. If the option is exercised as to all or nay portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total aggregate principal amount of Option
Securities then being purchased which the aggregate principal amount of
Initial Underwritten Securities each such Underwriter has agreed to purchase
as set forth in the applicable Terms Agreement bears to the total aggregate
principal amount of Initial Underwritten Securities, subject to such
adjustments as you in your discretion shall make to eliminate any sales or
purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at
the office of J.P. Morgan Securities Inc. ("J.P. Morgan"), at J.P. Morgan
Securities Inc., 60 Wall Street, New York, New York 10260, or at such other
place as shall be agreed upon by you and ERP, at 10:00 A M., New York City
time, on the fifth business day (unless postponed in accordance with the
provisions of Section 10) following the date of the applicable Terms
Agreement or at such other time as shall be agreed upon by you and ERP (each
such time and date being referred to as a "Closing Time"). In addition, if
any or all of the Option Securities are purchased by the Underwriters,
payment of the purchase price for, and delivery of certificates representing,
such Option Securities, shall be made at the above-mentioned offices of J.P.
Morgan, or at such other place as shall be agreed upon by you and ERP on each
Date of Delivery as specified in the notice from you to ERP. Unless
otherwise specified in the applicable Terms Agreement, payment shall be made
to ERP by certified or official bank check or checks in Federal or similar
same-day funds payable to the order of ERP against delivery to you for the
respective accounts of the Underwriters of the Underwritten Securities to be
purchased by them. The Underwritten Securities shall be in such authorized
denominations and registered in such names as you may request in writing at
least two business days prior to the applicable Closing Time or Date of
Delivery, as the case may be. The Underwritten Securities, which may be in
temporary form, will be made available for examination and packaging by you
on or before the first business day prior to the applicable Closing Time or
Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from ERP
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as
ERP may approve. As compensation for arranging Delayed Delivery Contracts,
ERP will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee equal to that percentage of the principal amount of
Underwritten Securities for which Delayed Delivery contracts are made at the
applicable Closing Time as is specified in the applicable Terms Agreement.
Any Delayed Delivery Contracts are to be with institutional investors of the
types described in the Prospectus. At the applicable Closing Time, ERP will
enter into Delayed Delivery Contracts (for not less than the
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minimum principal amount of Underwritten Securities per Delayed Delivery
Contract specified in the applicable Terms Agreement) with all purchasers
proposed by the Underwriters and previously approved by ERP as provided
below, but not for an aggregate principal amount of Underwritten Securities
in excess of that specified in the applicable Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance
of Delayed Delivery Contracts.
You shall submit to ERP, at least three business days prior to the
applicable Closing Time, the names of any institutional investors with which
it is proposed that ERP will enter into Delayed Delivery Contracts and the
principal amount of Underwritten Securities to be purchased by each of them,
and ERP will advise you, at least two business days prior to the applicable
Closing Time, of the names of the institutions with which the making of
Delayed Delivery Contracts is approved by ERP and the principal amount of
Underwritten Securities to be covered by each such Delayed Delivery Contract.
The principal amount of Underwritten Securities agreed to be
purchased by the several Underwriters pursuant to the applicable Terms
Agreement shall be reduced by the principal amount of Underwritten Securities
covered by Delayed Delivery Contracts, as to each Underwriter as set forth in
a written notice delivered by you to ERP; provided, however, that the total
principal amount of Underwritten Securities to be purchased by all
Underwriters shall be the total amount of Underwritten Securities covered by
the applicable Terms Agreement, less the principal amount of Underwritten
Securities covered by Delayed Delivery contracts.
Section 3. COVENANTS.
ERP covenants with you, and with each Underwriter participating in
the offering of Underwritten Securities, as follows.
(a) Immediately following the execution of the applicable Terms
Agreement, ERP will prepare a Prospectus Supplement setting forth the
principal amount of Underwritten Securities covered thereby and their terms
not otherwise specified in the Prospectus or the Indenture pursuant to which
the Underwritten Securities are being issued, the names of the Underwriters
participating in the offering and the principal amount of Underwritten
Securities which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the price
at which the Underwritten Securities are to be purchased by the Underwriters
from ERP, the initial public offering price, if any, the selling concession
and reallowance, if any, any delayed delivery arrangements, and such other
information as you and ERP deem appropriate in connection with the offering
of the Underwritten Securities; and ERP will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of
the 1933 Act Regulations within the time period required by such Rule and
will
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furnish to the Underwriters named therein as many copies of the Prospectus
and such Prospectus Supplement as you shall reasonably request. If, at the
time that the Registration Statement becomes effective, any information shall
have been omitted therefrom in reliance upon Rule 430A of the 1933 Act
Regulations, then immediately following execution of the applicable Terms
Agreement, ERP will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act
Regulations, copies of an amended Prospectus or, if required by such Rule
430A, a post-effective amendment to the Registration Statement (including an
amended Prospectus), including all information so omitted.
(b) ERP will notify you immediately, and confirm such notice in
writing, of (i) the effectiveness of the Registration Statement and any
amendment thereto, (ii) the transmittal to the Commission for filing of any
Prospectus Supplement or other supplement or amendment to the Prospectus or
any document to be filed pursuant to the 1934 Act, (iii) the receipt of any
comments from the Commission, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; and ERP will
make every reasonable effort to prevent the issuance of any such stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, ERP will give you notice of its intention to file or
prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (including any revised prospectus which ERP
proposes for use by you in connection with the offering of Underwritten
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) of the
1933 Act Regulations), whether pursuant to the 1933 Act, 1934 Act or
otherwise, and will furnish you with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or
preparation, as the case may be, and will not file or prepare any such
amendment or supplement or other documents in a form to which you or counsel
for the Underwriters shall reasonably object.
(d) ERP will deliver to you as many signed and conformed copies of
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) as
you reasonably request.
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(e) ERP will furnish to each Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act in connection with sales of the Underwritten Securities, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or
counsel for ERP, to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, then ERP will promptly prepare and file
with the Commission such amendment or supplement in form and substance
reasonably satisfactory to counsel for the Underwriters, whether by filing
documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(g) ERP will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities for offering and sale under the
applicable securities laws and real estate syndication laws of such states
and other jurisdictions of the United States as you may designate; provided,
however, that ERP shall not be obligated to (i) qualify as a foreign limited
partnership in any jurisdiction where it is not so qualified, (ii) file any
general consent to service of process or (iii) take any action that would
subject it to income taxation in any such jurisdiction. In each jurisdiction
in which the Underwritten Securities have been so qualified, ERP will file
such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as may be
required for the distribution of the Underwritten Securities.
(h) With respect to each sale of Underwritten Securities, ERP will
make generally available to its security holders as soon as practicable, but
not later than 90 days after the close of the period covered thereby, an
earning statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a 12-month period beginning not later than the
first day of ERP's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement.
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(i) ERP, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(j) ERP will not, between the date of the applicable Terms
Agreement and the termination of any trading restrictions or the applicable
Closing Time, whichever is later, with respect to the Underwritten Securities
covered thereby, without your prior written consent, offer or sell, grant any
option for the sale of, or enter into any agreement to sell, any debt
securities of ERP with a maturity of more than one year (other than the
Underwritten Securities which are to be sold pursuant to such Terms
Agreement), except as may otherwise be provided in the applicable Terms
Agreement.
(k) ERP will take all reasonable action necessary to enable
Standard & Poor's Corporation ("S&P") and Moody's Investors Service, Inc.
("Moody's") to provide their respective credit ratings of any Underwritten
Securities, if applicable.
Section 4. PAYMENT OF EXPENSES.
ERP will pay all expenses incident to the performance of its
obligations under this Agreement or the applicable Terms Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the printing and filing of this Agreement
and the applicable Terms Agreement, (iii) the preparation, issuance and
delivery of the Underwritten Securities to the Underwriters, (iv) the fees
and disbursements of ERP's counsel and accountants, (v) the qualification of
the Underwritten Securities under securities laws and real estate syndication
laws in accordance with the provisions of Section 3(g), including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, and of the
Prospectus and any amendments or supplements thereto, (vii) the printing and
delivery to the Underwriters of copies of the Indenture, (viii) any fees
charged by nationally recognized statistical rating organizations for the
rating of the Underwritten Securities, (ix) the fees and expenses, if any,
incurred with respect to the listing of the Underwritten Securities on any
national securities exchange or quotation system, (x) the fees and expenses,
if any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc., (xi) the fees and expenses of the Trustee, and (xi)
the preparation, issuance and delivery to the Depository Trust Company for
credit to your account of any global note registered in the name of Cede &
Co., as nominee for the Depository Trust Company.
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If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i) or 9(b)(iv),
ERP shall reimburse the Underwriters named in such Terms Agreement for all of
their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The several obligations of the Underwriters to purchase
Underwritten Securities pursuant to the applicable Terms Agreement are
subject to the accuracy of the representations and warranties of ERP herein
contained, to the accuracy of the statements of officers of ERP and EQR made
in any certificate pursuant to the provisions hereof, to the performance by
ERP of all of its covenants and other obligations hereunder, and to the
following further conditions:
(a) At the applicable Closing Time, (i) no stop order suspending
the effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, (ii) if ERP has elected to rely upon Rule 430A of the 1933 Act
Regulations, the public offering price of the Underwritten Securities and any
price-related information previously omitted from the effective Registration
Statement pursuant to such Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations
within the prescribed time period, and prior to the applicable Closing Time,
ERP shall have provided evidence satisfactory to you of such timely filing,
or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements of
Rule 430A of the 1933 Act Regulations, (iii) the rating assigned by any
nationally recognized statistical rating organization to any long-term debt
securities of ERP as of the date of the applicable Terms Agreement shall not
have been lowered since such date nor shall any such rating organization have
publicly announced that it has placed any long-term debt securities of ERP on
what is commonly termed a "watch list" for possible downgrading, and (iv)
there shall not have come to your attention any facts that would cause you to
believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers of the
Underwritten Securities, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading.
(b) At the applicable Closing Time, you shall have received:
(1) The favorable opinion, dated as of the applicable
Closing Time, of Rosenberg & Liebentritt, P.C., counsel for ERP, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
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(i) ERP has been duly formed and is validly existing and in good
standing under the Illinois Revised Uniform Limited Partnership Act, and
has the power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus, and, to counsel's
knowledge, is duly qualified and in good standing and authorized to
transact business in any jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified or in good
standing will not have a material adverse effect on ERP's condition,
financial or otherwise, earnings, assets, business affairs or business
prospects.
(ii) Each of ERP's subsidiaries has been duly formed and is
validly existing and in good standing under the laws of the jurisdiction
of its formation, has the power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus, and, to counsel's knowledge, is duly qualified and in good
standing and authorized to transact business in any jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified or in good standing will not have a material adverse effect on
such subsidiary's condition, financial or otherwise, earnings, assets,
business affairs or business prospects; all of the issued and
outstanding shares of capital stock, limited liability company interests
and partnership interests of each subsidiary have been duly authorized
and validly issued, are fully paid and, with respect to the shares of
capital stock, limited liability company interests and partnership
interests owned by ERP, to such counsel's knowledge, are owned,
directly, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(iii) The Indenture has been duly qualified under the 1939 Act and
has been duly authorized, executed and delivered by ERP and (assuming
due authorization, execution and delivery by the Trustee) constitutes
the valid and binding obligation of ERP enforceable against ERP 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.
(iv) The Underwritten Securities have been duly and validly
authorized by all necessary action and, when executed, authenticated and
delivered in accordance with the Indenture and against payment
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therefor specified in the applicable Terms Agreement or the Delayed
Delivery Contracts, if any, will be entitled to the benefits of the
Indenture and will be valid 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.
(v) Each of this Agreement, the applicable Terms Agreement and
the Delayed Delivery Contracts, if any, has been duly and validly
authorized, executed and delivered by ERP, and ERP has the power and
authority to perform its obligations hereunder and thereunder.
(vi) The execution and delivery by ERP of, and the performance by
ERP of its obligations under, this Agreement, the applicable Terms
Agreement, the Indenture and the Underwritten Securities and the
consummation of the transactions contemplated hereunder and thereunder
will not contravene any provision of applicable law, administrative
regulation or administrative or court decree, or the partnership
agreement, limited liability company agreement or charter or bylaws of
ERP or any subsidiary and will not, to such counsel's knowledge,
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of ERP or any of its subsidiaries pursuant to any
agreement or other instrument that is binding upon ERP or any
subsidiary, or to which any of their properties or assets is subject.
(vii) The Registration Statement is effective under the 1933 Act
and, to such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(viii) The Underwritten Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(ix) No consent, approval, authorization, or order of, or
qualification with, any governmental body or agency and no consent,
approval, or authorization of any person other than ERP is required for
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the performance by ERP of its obligations under this Agreement, the
applicable Terms Agreement, the Indenture or the Underwritten
Securities, except such as may be required under the 1933 Act, the 1939
Act, and the securities or Blue Sky laws of various states in connection
with the offer and sale of the Underwritten Securities.
(x) There are no (A) legal or governmental proceedings pending
or, to the knowledge of such counsel, threatened which are required to
be disclosed in the Registration Statement, other than those disclosed
therein, and all pending legal or governmental proceedings to which ERP
or any of its subsidiaries is a party or to which any of their property
is subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material or (B) to counsel's knowledge,
statutes, regulations, contracts, indentures, mortgages, loan
agreements, notes, leases, instruments or other documents that are
required to be described in the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as required.
(xi) None of ERP, EQR or any of their subsidiaries is required to
be registered under the 1940 Act.
(xii) The information (A) in the Prospectus and applicable
Prospectus Supplement under the headings "Description of Debt
Securities," and "Underwriting" and (B) in ERP's most recent report on
Form 10-K or Form 10-Q, as the case may be, under the caption "Legal
Proceedings" to the extent that it constitutes matters of law, summaries
of legal matters, documents or proceedings, or legal conclusions, has
been reviewed by such counsel and is correct in all material respects.
(xiii) The Registration Statement and Prospectus (except for
financial statements and schedules included therein, or the Statement of
Eligibility, as to which such counsel need not express any opinion),
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates comply as to form in all material
respects with the requirements for registration statements on Form S-3
under the 1933 Act, the 1939 Act and the 1933 Act Regulations.
(xiv) To their knowledge, ERP and each of its subsidiaries has
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local, and other governmental authorities, all self-regulatory
organizations, and all courts and other tribunals, necessary to own,
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lease, license and use its properties and assets and to conduct its
business in the manner described in the Registration Statement and the
Prospectus, except to the extent that the failure to obtain or file
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business
prospects of ERP and its subsidiaries considered as a single enterprise.
(xv) To their knowledge, except as described in the Prospectus,
there are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of any shares of
capital stock of or other equity interest in ERP or any subsidiary of
ERP except for multifamily property acquisition agreements with respect
to the sale or issuance of OP Units which are not material in amount.
(xvi) Each document filed pursuant to the 1934 Act (other than the
financial statements, schedules and other financial and statistical
data, as to which no opinion need be rendered) and incorporated or
deemed to be incorporated by reference in the Prospectus complied when
so filed as to form in all material respects with the 1934 Act and the
1934 Act Regulations.
(2) The favorable opinion, dated as of the applicable
Closing Time of Hogan & Hartson L.L.P., counsel for the Underwriters,
substantially to the effect specified in subparagraphs (i) first clause only,
(iii) excluding the first clause, (iv), (v) first clause only, (vii),
(xii)(A) and (xiii) of Section 5(b)(1), and to the effect that ERP will be
treated as a partnership for federal income tax purposes and not as an
association taxable as a corporation whether or not treated as a publicly
traded partnership within the meaning of Section 7704 of the Internal Revenue
Code of 1986, as amended.
(3) In rendering their opinions required by subsections
(b)(1) and (b)(2), respectively, of this Section 5, Rosenberg & Liebentritt,
P.C. and Hogan & Hartson, L.L.P. shall each additionally state (which shall
not constitute an opinion) that no facts have come to the attention of such
counsel which cause them to believe that the Registration Statement or any
amendment thereto (except for financial statements and supporting schedules
and other financial and statistical information and data included therein or
omitted therefrom, or the Statement of Eligibility, as to which such counsel
need not express any view), as of the time it became effective under the 1933
Act or at the time an Annual Report on Form 10-K was filed by ERP with the
Commission (whichever is later), or at the date of the applicable Terms
Agreement, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any amendment or
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supplement thereto (except as aforesaid) as of the date of the applicable
Terms Agreement or at the applicable Closing Time, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. In
giving their opinions required by this Section 5(b), such counsel, (A) may
rely as to all matters of fact, upon certificates and written statements of
officers and employees of and accountants for ERP, (B) may rely as to the
qualification and good standing of each of ERP or any of its subsidiaries to
do business in any state or jurisdiction, upon certificates of appropriate
government officials or opinions of counsel in such jurisdictions, which
opinions shall be in form and substance satisfactory to counsel for the
Underwriters, and (C) may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments and supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification except as specified.
(c) At the applicable Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the earnings,
assets, business affairs or business prospects of ERP and its subsidiaries
considered as a single enterprise, whether or not arising in the ordinary
course of business; and you shall have received a certificate of the Chief
Executive Officer, the President or the chief financial or chief accounting
officer of the general partner of ERP, dated as of such Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct with the
same force and effect as though such Closing Time were a Representation Date
and (iii) ERP has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time. As
used in this SECTION 5(c), the term "Prospectus" means the Prospectus in the
form first used to confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms Agreement,
you shall have received from ERP's independent public accountants a letter
dated such date, in form and substance satisfactory to you, to the effect
that (i) they are independent accountants with respect to ERP and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations;
(ii) it is their opinion that the consolidated financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their opinions
therein comply in form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations; (iii)
based upon limited procedures set forth in detail in such letter, and except
as otherwise set forth in such letter, nothing has come to their attention
which causes them to believe that at a specified date not more than five days
prior to the date of
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the applicable Terms Agreement, there has been any change in the partners'
capital of ERP or in the consolidated long-term debt of ERP or any decrease
in the net assets of ERP, as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by reference in
the Registration Statement and the Prospectus or, during the period from the
date of the most recent consolidated statement of operations included or
incorporated by reference in the Registration Statement and the Prospectus to
a specified date not more than five days prior to the date of the applicable
Terms Agreement, there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenues, or decrease in net
income or net income per weighted average OP Units outstanding of ERP, except
in all instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv) in
addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified amounts, percentages and financial information which are included
in the Registration Statement and the Prospectus and which are specified by
you, and have found such amounts, percentages and financial information to be
in agreement with relevant accounting, financial and other records of ERP and
its subsidiaries identified in such letter.
(e) At the applicable Closing Time, you shall have received from
ERP's independent public accountants a letter dated as of the applicable
Closing Time to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (d) of this Section, except that the
"specified date" referred to shall be a date not more than five days prior to
the applicable Closing Time and, if ERP has elected to rely on Rule 430A of
the 1933 Act Regulations, to the further effect that they have carried out
procedures as specified in clause (iv) of subsection (d) of this Section with
respect to certain amounts, percentages and financial information specified
by you and deemed to be part of the Registration Statement pursuant to Rule
430A(b) and have found such amounts, percentages and financial information to
be in agreement with the records specified in such clause (iv).
(f) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Underwritten Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by ERP in connection with the
issuance and sale of the Underwritten Securities as herein contemplated shall
be reasonably satisfactory in form and substance to you and counsel for the
Underwriters.
(g) If the Underwriters exercise their option provided in a Terms
Agreement as set forth in Section 2(b) hereof to purchase all or any portion
of the Option Securities, the representations and warranties of ERP contained
herein and
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the statements in any certificates furnished by ERP hereunder shall be true
and correct as of each Date of Delivery, and you shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chief Executive Officer, the President or the chief financial or chief
accounting officer of the general partner of ERP, in their capacities as
such, confirming that the certificate delivered at Closing Time pursuant to
Section 5(c) hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Rosenberg & Liebentritt, P.C.,
counsel for ERP, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities
and otherwise substantially to the same effect as the opinions required by
Section 5(b)(1) the belief required by Section 5(b)(3) hereof.
(3) The favorable opinion of Hogan & Hartson, L.L.P.,
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the opinion required by
Section 5(b)(2) and the belief required by Section 5(b)(3) hereof.
(4) A letter from the ERP's independent public accountants,
in form and substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished to you
pursuant to Section 5(d) hereof, except that the "specified date" in the
letter furnished pursuant to this Section 5(g)(4) shall be a date not more
than five days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms
Agreement may be terminated by you by notice to ERP at any time at or prior
to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof.
Section 6. INDEMNIFICATION.
(a) ERP hereby agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act, and any director, officer, employee or
affiliate thereof, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including
the information deemed to be part of the Registration Statement
pursuant to Rule 430A(b) of the 1933 Act Regulations, if
applicable, or the
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omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto), or the omission, or alleged
omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they never made, not misleading; provided, however, that ERP
shall not be required under this subsection (i) to indemnify the
Underwriter with respect to any loss, liability, claim, damage or
expense to the extent such loss, liability, claim, damage or
expense arises out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in
conformity with written information furnished to ERP by any
Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) and the Prospectus (or any
amendment or supplement thereto).
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation or of any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever for which indemnification is
provided under subsection (i) above, if such settlement is effected
with the written consent of ERP; and
(iii) against any and all expense whatsoever (including,
without limitation, the fees and other charges of counsel chosen by
you) reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceedings by any
governmental agency or body, commenced or threatened, or any claim
whatsoever for which indemnification is provided under subsection
(i) above, to the extent that any such expense is not paid under
(i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and hold
harmless ERP, and each person, if any, who controls ERP within the meaning of
Section 15 of the 1933 Act, and any director, officer, employee or affiliate
thereof, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 6, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to ERP
by any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) and the Prospectus (or any amendment or
supplement thereto).
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(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement to the extent such indemnifying party was not materially
prejudiced by such failure or otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object
to such assumption on the ground that the named parties to any such action
(including any impleaded parties) include both such indemnified parties and
an indemnifying party, and such indemnified parties reasonably believe that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying
party assumes the defense of such action, the indemnifying parties shall not
be liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
Section 7. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6
hereof is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, ERP and the Underwriters
with respect to the offering of the Underwritten Securities shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by said indemnity agreement incurred by ERP and one or
more of the Underwriters in respect of such offering, as incurred, in such
proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the applicable Prospectus Supplement in respect of such
offering bears to the initial public offering price appearing thereon and ERP
is responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Underwritten
Securities purchased by it pursuant to the applicable Terms Agreement and
distributed to the public exceeds
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the amount of any damages such Underwriter has otherwise been required to pay
in respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights
to contribution as such Underwriter, and each director and each officer of
ERP or EQR who signed the Registration Statement, and each person, if any,
who controls ERP within the meaning of Section 15 of the 1933 Act and each
director, officer, employee or affiliate thereof shall have the same rights
to contribution as ERP.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements included in this
Agreement or the applicable Terms Agreement, or included in certificates of
officers of ERP or EQR submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this Agreement or
the applicable Terms Agreement or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of ERP, and shall
survive delivery of and payment for the Underwritten Securities until the
obligations relating to all Underwritten Securities have been fully satisfied
in accordance with their terms.
Section 9. TERMINATION OF AGREEMENT.
(a) This Agreement (excluding the applicable Terms Agreement) may
be terminated for any reason at any time by ERP or by you upon the giving of
30 days' written notice of such termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by
notice to ERP, at any time at or prior to the applicable Closing Time (i) if
there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of ERP and its
subsidiaries considered as a single enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or any outbreak
of hostilities or other calamity or crisis or escalation of any existing
hostilities, the effect of which is such as to make it, in your judgment,
impracticable to market the Underwritten Securities or enforce contracts for
the sale of the Underwritten Securities, or (iii) if trading in any of the
securities of ERP or EQR has been suspended by the Commission on any exchange
or any over-the-counter market, or if trading generally on either the New
York Stock Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal,
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Illinois or New York authorities, or (iv) if the rating assigned by any
nationally recognized statistical rating organization to any long-term debt
securities of ERP as of the date of the applicable Terms Agreement shall have
been lowered since such date or if any such rating organization shall have
publicly announced that it has placed any long-term debt securities of ERP on
what is commonly termed a "watch list" for possible downgrading. As used in
this Section 9(b), the term "Prospectus" means the Prospectus in the form
first used to confirm sales of the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set
forth in Section 3 with respect to any offering of Underwritten Securities
shall remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from ERP pursuant to the applicable Terms Agreement and
(y) the covenant set forth in Section 3(h) hereof, the provisions of Section
4 hereof, the indemnity and contribution agreements set forth in Section G
and 7 hereof, and the provisions of Sections 8 and 13 hereof shall remain in
effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the applicable
Closing Time to purchase the Underwritten Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then you shall have the right, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, you shall not have completed such arrangements within
such 24-hour period, then:
(a) If the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of Underwritten Securities
to be purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) If the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Underwritten Securities to
be purchased pursuant to such Terms Agreement, the applicable Terms Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or ERP shall have
the right to
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postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
Section 11. NOTICES.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
directed c/o J.P. Morgan Securities Inc., 60 Wall Street, New York, New York
10260, attention: John Perkins; notices to ERP shall be directed to it at Two
North Riverside Plaza, Chicago, Illinois 60606, attention of Douglas Crocker
II, with a copy to Ruth Pinkham Haring, Esq., Rosenberg & Liebentritt, P.C.,
Two North Riverside Plaza, Suite 1600, Chicago, Illinois 60606.
Section 12. PARTIES.
This Agreement and the applicable Terms Agreement shall inure to
the benefit of and be binding upon you and ERP and any Underwriter who
becomes a party to such Terms Agreement, and their respective successors.
Nothing expressed or mentioned in this Agreement or the applicable Terms
Agreement is intended or shall be construed to give any person, firm or
corporation, other than those referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or such Terms Agreement or any
provision herein or therein contained. This Agreement and the applicable
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.'
Section 13. GOVERNING LAW AND TIME.
This Agreement and the applicable Terms Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Specified
times of day refer to New York City time.
Section 14. COUNTERPARTS.
This Agreement and the applicable Terms Agreement may be executed
in one or more counterparts, and if executed in more than one counterpart the
executed counterparts shall constitute a single instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts, will become a binding agreement
between you and ERP in accordance with its terms.
Very truly yours,
ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential Properties Trust,
General Partner
By: /s/ David J. Neithercut
--------------------------
Name: DAVID J. NEITHERCUT
Title: EXECUTIVE VICE-PRESIDENT
CHIEF FINANCIAL OFFICER
CONFIRMED AND ACCEPTED,
as of the date first above written:
J.P. MORGAN SECURITIES INC.
By: /s/ Geoffrey Fitzgerald
------------------------------
Name: Geoffrey Fitzgerald
Title: Vice President
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Exhibit A
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
[Title of Securities]
TERMS AGREEMENT
Dated: __________ __, 1994
To: ERP Operating Limited Partnership
Two North Riverside Plaza
Chicago, Illinois 60606
Attention:
Ladies and Gentlemen:
We (the "Representative") understand that ERP Operating Limited
Partnership, an Illinois limited partnership ("ERP"), proposes to issue and
sell $__________ aggregate principal amount of its [Title of Debt Securities]
(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
amounts of Underwritten Securities set forth below opposite their respective
names, and a proportionate share of Option Securities (as defined in the
Underwriting Agreement referred to below) to the extent any are purchased, at
the purchase price set forth below.
PRINCIPAL AMOUNT OF
UNDERWRITER UNDERWRITTEN SECURITIES
----------- -----------------------
------------
Total $
------------
------------
<PAGE>
The Underwritten Securities shall have the following terms:
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc. ________; Standard & Poor's
Corporation _____________________
Interest rate or formula:
Interest payment dates:
Stated maturity date:
Redemption or repayment provisions:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: ___%]
[Initial public offering price: ___%, plus accrued interest, if any, or
amortized original issue discount, if any, from 19__.]
Purchase price: ___%, plus accrued interest, if any, or amortized original issue
discount, if any, from _____________, 19__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A
hereto entitled "ERP Operating Limited Partnership--Senior Debt
Securities--Underwriting 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 such document are used herein as therein defined.
-2-
<PAGE>
Please accept this offer no later than _________ o'clock P.M. (New
York City time) on _____________ by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
J.P. MORGAN SECURITIES INC.
By:
------------------------------
Acting on behalf of itself and the other
named Underwriters.
Accepted:
ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential Properties Trust,
General Partner
By:
--------------------------------
Name:
Title:
-3-
<PAGE>
Exhibit B
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_____________ __, 1994
ERP Operating Limited Partnership
Two North Riverside Plaza
Chicago, Illinois 60606
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from ERP Operating
Limited Partnership ("ERP"), and ERP agrees to sell to the undersigned on
_________, 19__ (the "Delivery Date"),________ principal amount of ERP's
[insert title of security] (the "Securities"), offered by ERP's Prospectus
dated ________, 19_, as supplemented by its Prospectus Supplement dated
___________, 19__, receipt of which is hereby acknowledged, at a purchase
price of [____ % of the principal amount thereof, plus accrued interest
from ________, 19_,] to the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to ERP or its order by
[certified or official bank check in New York Clearing House] [same day]
funds at the office of ____________________________________, on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by
the undersigned in definitive form and in such denominations and registered
in such names as the undersigned may designate by written or telegraphic
communication addressed to ERP not less than five full business days prior to
the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) ERP, on or before
___________, 19__, shall have sold to the Underwriters of the Securities (the
"Underwriters") such principal amount of
<PAGE>
the Securities as is to be sold to them pursuant to the Terms Agreement dated
______________, 19__ between ERP and the Underwriters. The obligation of the
undersigned to take delivery of and make payment for Securities shall not be
affected by the failure of any purchaser to take delivery of and make
payments for Securities pursuant to other contracts similar to this contract.
The undersigned represents and warrants to you that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
Promptly after completion of the sale to the Underwriters, ERP will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinions of counsel for ERP delivered to
the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
ERP that all necessary corporate action for the due execution and delivery of
this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment
or purchase, and that, upon acceptance hereof by ERP and mailing or delivery
of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that ERP will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of
$ and that the acceptance of any Delayed Delivery Contract is in ERP's
sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this contract is acceptable to ERP, it is
requested that ERP sign the form of acceptance on a copy hereof and mail or
deliver a signed copy hereof to the undersigned at its address set forth below.
This will become a binding contract between ERP and the undersigned when such
copy is so mailed or delivered.
-2-
<PAGE>
This Agreement shall be governed by the laws of the State of New
York.
Yours very truly,
-----------------------------------
(Name of Purchaser)
By:
--------------------------------
(Title)
-----------------------------------
-----------------------------------
(Address)
Accepted as of the date first above written.
ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential Properties Trust,
General Partner
By:
-----------------------------------
Name:
Title:
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows: (Please print.)
TELEPHONE NO.
NAME (INCLUDING AREA CODE)
---- -------------------
-3-
<PAGE>
EXHIBIT 5
[Letterhead of Rosenberg & Liebentritt, P.C.]
September 28, 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) $145,000,000
principal amount of its 6.15% Notes due September 15, 2000 (the "Notes") as
described in Prospectus Supplements dated September 23, 1998 and September
25, 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.
<PAGE>
ERP Operating Limited Partnership
Board of Trustees
Equity Residential Properties Trust
September 28, 1998
Page: 2
4. The Fifth Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, 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,
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 September 23, 1998 and
September 25, 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 September 23, 1998,
between the Operating Partnership and J.P. Morgan Securities Inc.
("J.P. Morgan"), and the Terms Agreements dated September 23, 1998
and September 25, 1998, between the Operating Partnership and J.P.
Morgan (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.
<PAGE>
ERP Operating Limited Partnership
Board of Trustees
Equity Residential Properties Trust
September 28, 1998
Page: 3
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.
/s/ Rosenberg & Liebentritt, P.C.
