<PAGE>
As filed with the Securities and Exchange Commission on August 21, 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): August 18, 1998
ERP OPERATING LIMITED PARTNERSHIP
(Exact Name of Registrant as Specified in Charter)
Illinois 0-24920 36-3894853
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation or organization) Identification No.)
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (312) 474-1300
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 7. Financial Statements, Pro forma Financial Information and Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------ -------
<S> <C>
1 Form of Terms Agreement dated August 18, 1998
which is being filed pursuant to Regulation S-K,
Item 601(b)(1) as an exhibit to the Registrant's
registration statement on Form S-3, file no.
333-45557, under the Securities Act of 1933, as
amended, and which, as this Form 8-K filing is
incorporated by reference in such registration
statement, is set forth in full in such
registration statement; the Form of Terms
Agreement incorporates the terms and provisions of
the Purchase Agreement dated December 13, 1994, as
amended, among Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and ERP
Operating Limited Partnership, the form of which
was previously filed as Exhibit 1 to the
Registrant's registration statement on Form S-3,
file no. 333- 84892 under the Securities Act of
1933, as amended, and is incorporated herein by
reference thereto and, as this Form 8-K filing is
incorporated by reference in registration
statement no. 333-45557, such Purchase Agreement
terms are set forth in full
in such registration statement.
1.2 Remarketing Agreement dated August 21, 1998,
between Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and ERP
Operating Limited Partnership, together with the
Form of Remarketing Underwriting Agreement
attached as Exhibit A thereto.
5 Opinion of Rosenberg & Liebentritt, P.C., which is
being filed pursuant to Regulation 601(b)(5) as an
exhibit to the Registrant's registration statement
on Form S-3, file no. 333-45557, under the
Securities Act of 1933, as amended, and which, as
this Form 8-K filing is incorporated by reference
in such registration statement, is set forth in
full in such registration statement.
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ERP OPERATING LIMITED PARTNERSHIP
By: EQUITY RESIDENTIAL PROPERTIES
TRUST, its general partner
Date: August 21, 1998 By: /s/ David J. Neithercut
-----------------------------
David J. Neithercut
Executive Vice President and
Chief Financial Officer
2
<PAGE>
EXHIBIT 1
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
$100,000,000 Remarketed Reset Notes
TERMS AGREEMENT
Dated: August 18, 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 Remarketed Reset Notes due August 21, 2003 (the
"Notes") (such Notes being hereinafter also referred to as the "Underwritten
Securities"). Subject to the terms and conditions set forth or incorporated
by reference herein, the Underwriters named below (the "Underwriters")
severally, and not jointly, agree to purchase the respective amounts of the
Underwritten Securities set forth below opposite their respective names, to
the extent any are purchased, at 99.65% of the principal amount thereof.
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Underwritten Securities
----------- -----------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated .............................. $ 75,000,000
Goldman, Sachs & Co. ..................................... 25,000,000
------------
Total ........................................... $100,000,000
------------
------------
</TABLE>
The Underwritten Securities shall have the following terms
(capitalized terms used but not defined herein or in the attached
Purchase Agreement shall have the meanings given them
in the form of Note attached hereto as Annex B):
<TABLE>
<CAPTION>
Title: Remarked Reset Notes due August 21, 2003
<S> <C>
Principal Amount to be Issued: $100,000,000
Current Ratings: A3 by Moody's Investors Services, Inc.
BBB+ by Standard & Poor's Ratings Services
</TABLE>
<PAGE>
<TABLE>
<S> <C>
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: 99.65% of the principal amount of the Underwritten Securities
Remarketing Underwriter: Merrill Lynch & Co., Merrill, Lynch, Pierce, Fenner & Smith
Incorporated
Settlement Date, Time and August 21, 1998, at 9:00 a.m. New York City time at the offices of
Place: Rosenberg & Liebentritt, P.C., Two North Riverside Plaza, Suite
1600, Chicago, Illinois 60606 for the delivery of documents; delivery
of funds on August 21, 1998 in accordance with DTC procedures for
the Underwritten Securities
Stated Maturity Date: August 21, 2003
Initial Index / Spread: 3 Month LIBOR + 45 basis points
Initial Spread Period: The one-year period from and including August 21, 1998 to but
excluding August 23, 1999 during which the interest rate will be
reset quarterly
Initial Interest Payment Dates: During the Initial Spread Period, interest on the Notes will be
payable quarterly in arrears, on November 23, 1998, February 23,
1999, May 24, 1999, and August 23, 1999. During the Initial
Spread Period, the interest rate on the Notes will be reset
quarterly. After the Initial Spread Period, interest on the Notes
will be payable, unless otherwise specified on the applicable
Duration/Determination Date, in arrears (i) quarterly on each
February 23, May 23, August 23, and November 23 during the
applicable Subsequent Spread Period in the case of Notes in the
Floating Rate Mode or (ii) semi-annually on each February 23
and August 23 during the applicable Subsequent Spread Period
in the case of Notes in the Fixed Rate Mode.
Subsequent Spread Index: Determined by Issuer as floating rate (LIBOR) or fixed rate
(Treasury)
Subsequent Spread Periods: Determined by agreement between the Remarketing Underwriter
and ERP on the applicable Duration/Mode Determination Date.
Subsequent Spreads Period will be one or more periods of at
least six months and not more than four years (or any
integral-multiple of six months therein).
Subsequent Spread: Determined by agreement between Remarketing Underwriter
and ERP to result in a rate which will enable tendered Notes to
be remarketed at par.
</TABLE>
- 2 -
<PAGE>
<TABLE>
<S> <C>
Duration/Mode Determination Unless notice of redemption of the Notes as a whole has been
Date: given, the duration, redemption dates, redemption type (i.e., par,
premium or make-whole), redemption prices (if applicable),
Commencement Date, Interest Payment Dates, Interest Rate Mode
and any other relevant terms for each Subsequent Spread Period
will be established by 3:00 p.m., New York City time, on the
tenth Business Day prior to the Commencement Date of each
Subsequent Spread Period.
Spread Determination The Spread for each Subsequent Spread Period will be
Date: established by 1:00 p.m., New York City time, on the fifth
Business Day prior to the Commencement Date of such
Subsequent Spread Period.
Alternate Spread/Duration: If the Remarketing Underwriter and ERP do not agree on the
Spread for any Subsequent Spread Period, (i) the Subsequent
Spread Period will be one year, (ii) the Notes will be reset to the
Floating Rate Mode and (iii) the Spread for such Subsequent
Spread Period will be the Alternate Spread. The Alternate
Spread will be the percentage equal to LIBOR for the Quarterly
Period beginning on the Commencement Date for such
Subsequent Spread Period.
Rate Agent: Pursuant to the Remarketing Agreement, Merrill Lynch, Pierce,
Fenner & Smith Incorporated has agreed to act as Remarketing
Underwriter and as Rate Agent. The Rate Agent will determine
(i) LIBOR and the interest rate on the Notes for any Quarterly
Period and/or (ii) the yield to maturity on the applicable United
States Treasury security that is used in connection with the
determination of the applicable Fixed Rate, and the ensuing
applicable Fixed Rate. ERP, in its sole discretion, may change
the Remarketing Underwriter and the Rate Agent for any
Subsequent Spread Period at any time on or prior to 3:00 p.m.,
New York City time, on the Duration/Mode Determination Date
relating thereto.
Redemption: The Notes may not be redeemed by ERP prior to August 23, 1999
(the final payment date of the Initial Spread Period). On that
date, on each Commencement Date and on those Interest
Payment Dates specified as redemption dates agreed to by ERP
and the Remarketing Underwriter, as the Remarketing
Underwriter, the Notes may be redeemed at the option of ERP, in
whole or in part, upon notice given at any time during the 30
calendar day period ending on the tenth Business Day prior to
the redemption date. The Notes may also be redeemed at the
option of ERP, in whole or in part, at the end of each Subsequent
Spread Period or immediately after the Spread Determination
Date, whenever the Alternate Spread is invoked. The redemption
price is equal to 100% of the principal amount together with
accrued interest to the redemption date.
</TABLE>
- 3 -
<PAGE>
<TABLE>
<S> <C>
Tender at Option of Beneficial Once the Remarketing Underwriter and ERP agree on the Spread
Owners: with respect to any Subsequent Spread Period, the Remarketing
Underwriter and ERP will enter into a Remarketing Agreement on
such Spread Determination Date. On the first day of such
Subsequent Spread Period (the "Tender Date"), each beneficial
owner of a Note may, at such owner's option, upon giving notice
as provided below (the "Tender Notice"), tender such Note for
remarketing by the Remarketing Underwriter on the Tender Date at
100% of the principal amount thereof (the "Purchase Price"). The
Tender Notice must be received by the Remarketing Underwriter
during the period commencing at 3:00 p.m., New York City time,
on the Spread Determination Date and ending at 12:00 noon, New
York City time, on the second Business Day following the Spread
Determination Date. If a Tender Notice is not received, then the
beneficial owner shall be deemed to have elected to continue
ownership of the Notes.
If the Remarketing Underwriter does not purchase all tendered
Notes on the relevant Tender Date, (i) all Tender Notices
relating thereto will be null and void, (ii) none of the
tendered Notes will be purchased by the Remarketing Underwriter,
(iii) the Notes will be reset to the Alternate Spread/Duration
which shall be deemed to have commenced upon the applicable
Commencement Date and (iv) the Notes will be redeemable at the
option of ERP, in whole or in part, upon at least ten Business
Days' notice given by no later than the fifth Business Day
following the relevant Tender Date.
Other: The Remarketing Underwriter will attempt, on a reasonable
basis, to remarket the tendered Notes at a price equal to
100% of the aggregate principal amount so tendered. There is
no assurance that the Remarketing Underwriter will be able
to remarket the entire principal amount of the Notes
tendered in a remarketing.
</TABLE>
All the provisions contained in the document attached as Annex A
hereto entitled "ERP Operating Limited Partnership--Debt Securities--Purchase
Agreement" (the "Purchase Agreement"), dated December 13, 1994 are hereby
incorporated by reference in their entirety herein and shall be deemed to be
a part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein. In addition, the amendments to the Purchase
Agreement set forth in the Terms Agreement dated August 8, 1996, between ERP
and the underwriters named therein are incorporated herein by reference to
the same extent as if such provisions had been set forth in full herein. In
addition, the Purchase Agreement is hereby further amended to refer to the
Registration Statement on Form S-3 as number 333-45557 rather than number
33-84892. Defined terms used herein have the same meaning as defined in the
Purchase Agreement and the prospectus supplement, dated August 18, 1998 (the
"Prospectus Supplement"), to the prospectus dated April 6, 1998 (together
with the Prospectus Supplement, the "Prospectus").
ERP is required to maintain Total Unencumbered Assets of not less
than 150% of the aggregate outstanding principal amount of the Unsecured Debt
of ERP.
In addition to the closing documents required pursuant to the Purchase
Agreement, ERP's counsel shall also deliver the following legal opinion:
"The Remarketing Agreement has been duly authorized, executed and
delivered by ERP and, assuming due authorization, execution and
delivery thereof by the Remarketing Underwriter,
- 4 -
<PAGE>
constitutes a legal, valid and binding agreement 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."
- 5 -
<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 August 18, 1998 by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Eric Wilson
-------------------------------
Name: Eric Wilson
Title: Managing Director
Acting on behalf of itself and the other named
Underwriters.
Accepted:
ERP OPERATING LIMITED PARTNERSHIP
By: EQUITY RESIDENTIAL PROPERTIES TRUST,
not individually but as General Partner
By: /s/ David J. Neithercut
------------------------------------------
Name: David J. Neithercut
Title: Executive Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT 1.2
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of August 21, 1998 (this "Remarketing
Agreement" or this "Agreement"), by and between ERP Operating Limited
Partnership (the "Operating Partnership") and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch" or the "Remarketing
Underwriter" or the "Rate Agent").
WHEREAS, the Operating Partnership proposes to issue $100,000,000
aggregate principal amount of Remarketed Reset Notes Due August 21, 2003 (the
"Notes"), such Notes to be issued under an indenture dated as of October 1, 1994
(the "Indenture"), by and between the Operating Partnership and The First
National Bank of Chicago, as trustee (the "Trustee"); and
WHEREAS, the Notes are to be initially offered to the public through
Merrill Lynch and Goldman, Sachs & Co.; and
WHEREAS, the Operating Partnership has requested that Merrill Lynch
act as Rate Agent (as defined in Section 2(a) hereof) and as Remarketing
Underwriter (as defined in Section 2(a) hereof) in connection with the Notes and
as such to perform the services described herein; and
WHEREAS, Merrill Lynch is willing to act as Rate Agent and as
Remarketing Underwriter in connection with the Notes and as such to perform such
duties on the terms and conditions expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. DEFINITIONS. Capitalized terms used and not defined in
this Agreement shall have the respective meanings assigned to them in the Notes
or, if not defined therein, in the Indenture relating to the Notes or, if not
defined therein, in the Purchase Agreement, dated December 13, 1994, between the
Operating Partnership and Merrill Lynch, as amended (the "Purchase Agreement"),
which incorporates by reference the Terms Agreement, dated August 18, 1998.
Section 2. APPOINTMENT AND OBLIGATIONS OF MERRILL LYNCH.
(a) The Operating Partnership hereby appoints Merrill Lynch, and
Merrill Lynch hereby accepts such appointment, (i) as the rate agent (the "Rate
Agent") of the Operating Partnership for the Notes to determine (1) LIBOR and
the interest rate on the Notes for any Quarterly Period, and/or (2) the yield to
maturity on the applicable United States Treasury security that is used in
connection with the determination of the applicable Fixed Rate, and the ensuing
applicable Fixed Rate, and (ii) as the exclusive remarketing underwriter (the
"Remarketing Underwriter") for the purpose of (x) recommending to the Operating
Partnership the Spread for each Subsequent Spread Period that, in the opinion of
the Remarketing Underwriter, will enable the Remarketing Underwriter to
remarket, for delivery on the Tender Date, the tendered Notes at 100% of the
principal amount thereof, (y) if the Operating Partnership and the Remarketing
Underwriter agree on the Spread referred to in (x) above, entering into a
remarketing underwriting agreement (each, a "Remarketing Underwriting
Agreement") with the Operating Partnership, substantially in the form attached
hereto as Exhibit A, pursuant to which
<PAGE>
the Remarketing Underwriter will agree to purchase the Notes tendered by the
beneficial owners thereof (the "Beneficial Owners") and use its reasonable best
efforts to remarket such Notes (each such purchase and remarketing being
hereinafter referred to as a "Remarketing"), and (z) performing such other
duties as are assigned to the Remarketing Underwriter in the Notes and/or the
Indenture and/or the applicable Remarketing Underwriting Agreement. The
Operating Partnership hereby agrees that the Remarketing Underwriter will
attempt, on a reasonable best efforts basis, to remarket the tendered Notes at a
price equal to 100% of the aggregate principal amount so tendered and that there
is no assurance that the Remarketing Underwriter will be able to remarket the
entire principal amount of the Notes tendered in a Remarketing.
(b) The Rate Agent hereby agrees to determine LIBOR on each
LIBOR Determination Date in accordance with the following provisions and the
other relevant provisions of the Notes:
(i) LIBOR will be determined on the basis of the offered
rates for three-month deposits in U.S. dollars, commencing on the
second London Business Day immediately following the applicable
LIBOR Determination Date, which appears on Telerate Page 3750 as
of approximately 11:00 a.m., London time, on such LIBOR
Determination Date. "Telerate Page 3750" means the display
designated on page "3750" on Dow Jones Markets Limited (or such
other page as may replace the 3750 page on that service, any
successor service or such other service as may be nominated by
the British Bankers' Association for the purpose of displaying
London interbank offered rates for U.S. dollar deposits). If no
rate appears on Telerate Page 3750, LIBOR for the applicable
LIBOR Determination Date will be determined in accordance with
the provisions of paragraph (ii) below.
(ii) With respect to a LIBOR Determination Date on which
no rate appears on Telerate Page 3750 as of approximately 11:00
a.m., London time, on such LIBOR Determination Date, the Rate
Agent shall request the principal London offices of each of four
major reference banks in the London interbank market selected by
the Rate Agent to provide the Rate Agent with a quotation of the
rate at which three-month deposits in U.S. dollars, commencing on
the second London Business Day immediately following such LIBOR
Determination Date, are offered by it to prime banks in the
London interbank market as of approximately 11:00 a.m., London
time, on such LIBOR Determination Date in a principal amount
equal to an amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such market at such
time. If at least two such quotations are provided, LIBOR for
the applicable LIBOR Determination Date will be the arithmetic
mean of such quotations as calculated by the Rate Agent. If
fewer than two quotations are provided, LIBOR for such LIBOR
Determination Date will be the arithmetic mean of the rates
quoted as of approximately 11:00 a.m., New York City time, on
such LIBOR Determination Date by three major banks in the City of
New York selected by the Rate Agent (after consultation with the
Operating Partnership) for loans in U.S. dollars to leading
European banks, having a three-month maturity, commencing on the
second London Business Day immediately following such LIBOR
Determination Date and in a principal amount equal to an amount
of not less than U.S. $1,000,000 that is representative for a
single
-2-
<PAGE>
transaction in such market at such time; provided, however, that
if the banks selected as aforesaid by the Rate Agent are not
quoting as mentioned in this sentence, LIBOR for such LIBOR
Determination Date will be LIBOR determined with respect to the
immediately preceding LIBOR Determination Date, or in the case of
the first LIBOR Determination Date, LIBOR for the Initial
Quarterly Period.
(c) The Rate Agent hereby agrees to determine the yield to
maturity on the applicable United States Treasury security that is used in
connection with the determination of the applicable Fixed Rate, and the ensuing
applicable Fixed Rate, in accordance with the terms of this Section 2(c). If
the Notes are to be reset to the Fixed Rate Mode, as agreed to by the Operating
Partnership and the Remarketing Underwriter on a Duration/Mode Determination
Date, then the applicable Fixed Rate for the corresponding Subsequent Spread
Period will be determined by 1:00 p.m., New York City time, on the third
Business Day prior to the Commencement Date for the Subsequent Spread Period
(the "Fixed Rate Determination Date"), in accordance with the following
provisions: the Fixed Rate will be determined by adding (i) the applicable
Spread (as agreed to by the Operating Partnership and the Remarketing
Underwriter on the preceding Spread Determination Date) to (ii) the yield to
maturity determined by 1:00 p.m., New York City time, on the Fixed Rate
Determination Date (expressed as a bond equivalent, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the applicable
United States Treasury security, selected by the Rate Agent after consultation
with the Remarketing Underwriter, as having a maturity comparable to the
duration selected for the following Subsequent Spread Period, which would be
used in accordance with customary financial practice in pricing new issues of
corporate debt securities of comparable maturity to the duration selected for
the following Subsequent Spread Period.
Section 3. FEES AND EXPENSES. The obligations of the Operating
Partnership to pay to the Remarketing Underwriter on each Tender Date the fees
set forth in the applicable Remarketing Underwriting Agreement shall survive the
termination of this Agreement and remain in full force and effect until all such
payments shall have been made in full. The Operating Partnership will pay all
reasonable out-of-pocket expenses of the Remarketing Underwriter in connection
with the Remarketing Underwriting Agreement, including: (a) the preparation,
filing, printing and delivery of the prospectus, if any, and any amendments or
supplements thereto and any Remarketing Memorandum (as defined in the
Remarketing Underwriting Agreement) in connection with the Remarketing of the
Notes; (b) the preparation and delivery of this Agreement, the Remarketing
Underwriting Agreement, the Indenture and such other documents as may be
required in connection with the Remarketing of the Notes; (c) the fees and
disbursements of the Operating Partnership's accountants, counsel and other
advisors or agents (including any calculation agent or exchange rate agent) and
of the fees and disbursements of the Trustee; (d) the fees charged by nationally
recognized statistical rating organizations for the rating of the Notes and
(e) the preparation, issuance and delivery to the Depository Trust Company for
credit to the account of the Remarketing Underwriter of any global note
registered in the name of Cede & Co., as nominee for the Depository Trust
Company.
Section 4. REMOVAL OF THE RATE AGENT AND REMARKETING UNDERWRITER.
With respect to any Subsequent Spread Period, the Operating Partnership may, in
its absolute discretion, remove the Rate Agent and Remarketing Underwriter by
giving notice to the Rate Agent and Remarketing Underwriter prior to 3:00 p.m.,
New York City time, on the Duration/Mode Determination Date applicable thereto,
such removal to be effective upon the Operating Partnership's appointment of a
successor Rate Agent and Remarketing Underwriter. In such case, the Operating
Partnership will use its reasonable best
-3-
<PAGE>
efforts to appoint a successor Rate Agent and Remarketing Underwriter and enter
into a remarketing agreement with such persons as soon as reasonably
practicable.
Section 5. DEALING IN THE NOTES. Subject to its compliance with
applicable laws and regulations, Merrill Lynch, when acting as a Rate Agent and
Remarketing Underwriter or in its individual or any other capacity, may buy,
sell, hold and deal in any of the Notes. Merrill Lynch may exercise any vote or
join in any action which any Beneficial Owner of Notes may be entitled to
exercise or take pursuant to the Indenture with like effect as if it did not act
in any capacity hereunder. Merrill Lynch, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Operating Partnership as freely as if it did not act
in any capacity hereunder.
Section 6. CURRENT PROSPECTUS. If Merrill Lynch determines, based
upon advice of counsel, that changes in applicable law, regulations or
interpretations of the Securities and Exchange Commission (the "Commission")
make it necessary or advisable to file a new registration statement with the
Commission and/or deliver a current prospectus in connection with a Remarketing,
the Operating Partnership shall file a new registration statement with the
Commission, in a form reasonably acceptable to Merrill Lynch and its counsel,
and furnish a current prospectus to be used by the Remarketing Underwriter in
such Remarketing, as applicable.
Section 7. REPRESENTATIONS AND WARRANTIES OF THE OPERATING
PARTNERSHIP. The Operating Partnership represents and warrants to Merrill Lynch
as of the date hereof, and as of each Tender Date, as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and as of each
Tender Date will comply, in all material respects with the
requirements of the Securities Act of 1933, as amended (the "1933
Act"), rules and regulations thereunder (the "1933 Act Regulations"),
the Trust Indenture Act of 1939, as amended (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 of the date hereof and as of each
Tender 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 hereof does not, and as of the date hereof
and as of each Tender Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Remarketing Underwriter by
the Operating Partnership for use in connection with an offering of
the Notes 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 the Remarketing Underwriter
for such use) 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 the
Operating Partnership in writing by any underwriter through the
Remarketing Underwriter 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
-4-
<PAGE>
Qualification on Form T-1 under the 1939 Act (the "Statement of
Eligibility") of the Trustee under the Indenture.
(b) 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.
(c) 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 the Operating Partnership, 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 the Operating Partnership, threatened by the Commission or by the
state securities authority of any jurisdiction.
(d) The independent 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.
(e) The consolidated financial statements and related notes
included in the Registration Statement and the Prospectus present
fairly the financial position of the Operating Partnership and its
consolidated subsidiaries as at the dates indicated and the results of
their operations specified, and 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 the
Operating Partnership, reasonable.
(f) 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 the Operating
Partnership 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 the Operating
Partnership or any of its subsidiaries, other than transactions in the
ordinary course of business, which are material with respect to the
Operating Partnership and its subsidiaries considered as a single
enterprise, (C) neither the Operating Partnership nor any of its
subsidiaries has incurred any material
-5-
<PAGE>
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 the Operating Partnership.
(g) The Operating Partnership 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.
(h) The Operating Partnership 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 qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the
Operating Partnership and its subsidiaries considered as a single
enterprise.
(i) 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 the Operating Partnership, Equity Residential
Properties Trust ("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. the Operating Partnership 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 the Operating
Partnership and its subsidiaries considered as a single enterprise.
(j) 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 the
Operating Partnership or any subsidiary of the Operating Partnership
except for multi-family property acquisition agreements with respect
to the sale or issuance of OP Units, which are not material in amount.
(k) The capitalization of the Operating Partnership is as set
forth in the Prospectus and all of the outstanding partnership
interests in the Operating Partnership 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.
(l) The Operating Partnership has full partnership power and
authority to enter into and to perform its obligations under this
Agreement, and this Agreement has been, and as of each Tender Date,
the applicable Remarketing Underwriting Agreement, if any, will have
been, duly authorized, executed and delivered by the Operating
-6-
<PAGE>
Partnership, and each is or will be a valid and binding obligation of
the Operating Partnership, enforceable against the Operating
Partnership 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 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.
(m) The Indenture (i) has been duly and validly authorized,
executed and delivered by the Operating Partnership, and when executed
and delivered by the Trustee, will constitute a valid and binding
obligation of the Operating Partnership, enforceable against the
Operating Partnership 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) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and (ii) conforms in all material respects to the
description thereof in the Prospectus.
(n) The Notes (i) constitute valid and legally binding
obligations of the Operating Partnership entitled to the benefits of
the Indenture and enforceable against the Operating Partnership in
accordance with their terms, except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally and (B) rights
of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; and (ii)
conform in all material respects to the descriptions thereof in the
Prospectus.
(o) 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 the Operating Partnership,
threatened, against or affecting the Operating Partnership 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 the
Operating Partnership 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 the
Operating Partnership or any of its subsidiaries is a party or of
which any of their properties or assets is the subject which 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 the Operating
Partnership 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.
(p) None of the Operating Partnership 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
-7-
<PAGE>
have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business
prospects of the Operating Partnership and its subsidiaries considered
as a single enterprise.
(q) 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 the Operating
Partnership of the transactions contemplated by this Agreement, except
as such has been obtained , if necessary, as may be required under the
1933 Act, the 1939 Act or the 1933 Act Regulations or state securities
laws.
(r) Each of the Operating Partnership 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 have a material adverse effect
on the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Operating Partnership
and its subsidiaries, considered as a single enterprise, and none of
the Operating Partnership 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 the
Operating Partnership and its subsidiaries, considered as a single
enterprise.
(s) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the rules and regulations of the
thereunder (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 the date hereof and each Tender
Date or during the period specified in Section 3(f) of the Purchase
Agreement, 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.
(t) Each of the Operating Partnership 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 the Operating
Partnership 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 the Operating Partnership and its subsidiaries,
considered as a single enterprise, except as described in or
contemplated by the Registration Statement and the Prospectus.
-8-
<PAGE>
(u) None of the Operating Partnership 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 the
Operating Partnership 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 Notes, 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 the Operating Partnership or any of its
subsidiaries, pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Operating
Partnership or any of its subsidiaries is a party or by which it or
any of them may be bound or 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, limited
liability agreements or charter of bylaws of the Operating Partnership
or any of its subsidiaries, or any applicable law, regulation, ruling,
order, judgment, administrative regulation or administrative or court
decree.
(v) The Operating Partnership has not taken and will not take,
directly or indirectly, any action prohibited by Regulation M under
the Securities Exchange Act of 1934, as amended (the "1934 Act").
(w) The assets of the Operating Partnership do not constitute
"plan assets" under the Employee Retirement Income Security Act of
1974, as amended.
(x) Except as otherwise described in the Prospectus, each of the
Operating Partnership 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 the Operating Partnership 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 affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Operating Partnership or any of its
subsidiaries; and any real property and buildings held under lease by
the Operating Partnership 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 the Operating Partnership
or such subsidiaries, in each case except as described in or
contemplated by the Registration Statement and the Prospectus.
(y) Each of the Operating Partnership and its subsidiaries has
obtained title insurance on all of the properties owned by each of
them in an amount at least equal to (i) the cost of acquisition of
such property or (ii) the cost of construction of such property, and
in each case such title insurance is in full force and effect.
-9-
<PAGE>
(z) The mortgages and deeds of trust encumbering the properties
and assets described in general in the Prospectus are not convertible
and none of the Operating Partnership 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 the Operating Partnership or any of its subsidiaries.
(aa) Each of the partnership agreements and limited liability
company agreements to which any of the Operating Partnership or its
subsidiaries is a party has been duly authorized, executed and
delivered by such party and constitutes the valid agreement thereof,
enforceable 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) 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.
(bb) Neither the Operating Partnership 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 1935, as
amended.
(cc) No labor dispute with the employees of the Operating
Partnership, or any of the Operating Partnership's subsidiaries
exists, or to the knowledge of the Operating Partnership, is imminent.
(dd) The Notes are rated A3 by Moody's Investors Service, Inc.
("Moody's") and BBB+ by Standard & Poor's Ratings Service ("S&P") as
of the date hereof, or such other ratings as may be determined by
either Moody's or S&P and as shall have been reasonably notified prior
to the applicable Tender Date in writing by the Operating Partnership
to the Remarketing Underwriter.
(ee) (i) Except as disclosed in the Prospectus, each of the
Operating Partnership and its subsidiaries has complied and is in
compliance in all material respects with all Environmental Statutes
(as hereinafter defined).
(ii) None of the Operating Partnership 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.
-10-
<PAGE>
(iii) Except as disclosed in the Prospectus, none of the
Operating Partnership or any of its subsidiaries knows (after due
inquiry) of any release, seepage, leak, escape, leach, discharge,
injection, 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.
(iv) Except as disclosed in the Prospectus, none of the
Operating Partnership or any of its subsidiaries has received any
notice of, or has any knowledge (after due inquiry) of any occurrence
or circumstance which, with notice or passage of time or both, would
give rise to a claim under or pursuant to any Environmental Statue 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.
(v) Neither the properties described in the Prospectus
nor any other land owned by the Operating Partnership or any of its
subsidiaries is included or, to the Operating Partnership'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 the Operating Partnership'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 these statutes, and
-11-
<PAGE>
in the regulations adopted and publications promulgated pursuant to
any of the foregoing or by any federal, state or local governmental
authority having jurisdiction over the properties and assets described
in the Prospectus (a "Governmental Authority").
Any certificate signed by any officer of the Operating
Partnership (or any officer of the general partner of the Operating
Partnership) or any of its subsidiaries and delivered to the Remarketing
Underwriter or to counsel for the Remarketing Underwriter in connection
with the offering of Notes shall be deemed a representation and warranty by
the Operating Partnership to the Remarketing Underwriter as to the matters
covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Tender Date subsequent thereto.
References in the foregoing representations and warranties to the 1934
Act Documents shall be deemed to refer to the registration statement, prospectus
and Remarketing Memorandum, if any, in each case including the documents
incorporated by reference therein, if any of such documents are required
pursuant to Section 6 hereof.
Section 8. CONDITIONS TO THE REMARKETING UNDERWRITER'S OBLIGATIONS.
The obligations of the Remarketing Underwriter to purchase and remarket the
Notes shall be subject to the terms and conditions of the applicable Remarketing
Underwriting Agreement.
Section 9. INDEMNIFICATION.
(a) INDEMNIFICATION. The Operating Partnership agrees to
indemnify and hold harmless the Remarketing Underwriter and each person, if
any, who controls the Remarketing Underwriter within the meaning of Section
20 of the 1934 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 (A) the failure to have
an effective registration statement under the 1933 Act, relating to the
Notes, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Operating Partnership failed to
provide the Remarketing Underwriter with a prospectus for delivery, or (B)
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement or Remarketing Memorandum, if any,
or any amendment thereto (including any documents incorporated by reference
therein), or (C) the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, or (D) any violation by the Operating Partnership of, or any
failure by the Operating Partnership to perform any of its obligations
under, this Agreement or (E) the acts or omissions of the Rate Agent in
connection with its duties and obligations hereunder except those that are
finally judicially determined to be due to its gross negligence or willful
misconduct;
(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 any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever arising out of, or based upon, any of items (A) through (E) of
clause (i) above; provided that (subject to Section 9(d) hereof) any such
settlement is effected with the written consent of the Operating
Partnership, which consent shall not be unreasonably withheld; and
-12-
<PAGE>
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Remarketing
Underwriter), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever arising out of, or based upon, any of items (A) through (E) of
clause (i) above to the extent that any such expense is not paid under (i)
or (ii) above;
PROVIDED, HOWEVER, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising 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 the Operating Partnership by
the Remarketing Underwriter expressly for use in the Remarketing Memorandum or
registration statement (or any amendment thereto), if applicable.
(b) INDEMNIFICATION OF THE OPERATING PARTNERSHIP, DIRECTORS AND
OFFICERS. The Remarketing Underwriter agrees to indemnify and hold
harmless the Operating Partnership, its directors, officers, employees and
affiliates, and each person, if any, who controls the Operating Partnership
within the meaning of Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in Section 9(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Remarketing Memorandum or registration statement (or any amendment
thereto), if applicable, in reliance upon and in conformity with written
information furnished to the Operating Partnership by the Remarketing
Underwriter expressly for use in such Remarketing Memorandum or
registration statement (or any amendment thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. 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
hereunder to the extent it is not materially prejudiced as a result thereof
and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 9(a) above, counsel to the
indemnified parties shall be selected by the Remarketing Underwriter. In
the case of parties indemnified pursuant to Section 9(b) above, counsel to
the indemnified parties shall be selected by the Operating Partnership. An
indemnifying party may participate at its own expense in the defense of
such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in
addition to any one 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. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 9 or 10
hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
-13-
<PAGE>
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 9(a)(ii) or settlement of liability arising
out of 9(b) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
(e) CONTINUATION OF INDEMNIFICATION. The indemnity agreements
contained in this Section 9 shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the
Remarketing Underwriter, and shall survive the termination or cancellation
of this Agreement and the remarketing of any Notes hereunder.
Section 10. CONTRIBUTION. If the indemnification provided for in
Section 9 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Operating Partnership, on the one hand, and the Remarketing Underwriter, on the
other hand, from the remarketing of the Notes pursuant to this Agreement or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Operating
Partnership, on the one hand, and the Remarketing Underwriter, on the other
hand, in connection with the acts, failures to act, statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership, on the
one hand, and the Remarketing Underwriter, on the other hand, in connection with
the remarketing of the Notes pursuant to this Agreement shall be deemed to be in
the same respective proportions as (i) the aggregate principal amount of the
Notes and (ii) the aggregate positive difference, if any, between the price at
which the Notes are sold by the Remarketing Underwriter in the remarketing and
the price paid by the Remarketing Underwriter for the Notes tendered on a Tender
Date.
The relative fault of the Operating Partnership, on the one hand, and
the Remarketing Underwriter, on the other hand, shall be determined by reference
to, among other things, the responsibility hereunder of the applicable party for
any act or failure to act relating to the losses, liabilities, claims, damages
or expenses incurred or, in the case of any losses, liabilities, claims, damages
or expenses arising out of any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact contained in any
Remarketing Memorandum or registration statement (as amended), if applicable, or
the omission or alleged omission to state a material fact therefrom, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Operating Partnership or by the Remarketing Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Operating Partnership and the Remarketing Underwriter agree that
it would not be just and equitable if contribution pursuant to this Section 10
were determined by pro rata allocation or by any
-14-
<PAGE>
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 10. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 10 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 10, the Remarketing
Underwriter gent shall not be required to contribute any amount in excess of the
amount by which the total price at which the Notes remarketed by it and resold
to the public were sold to the public exceeds the amount of any damages which
the Remarketing Underwriter has otherwise been required to pay by reason of any
act or failure to act for which it is responsible hereunder or any untrue or
alleged untrue statement or omission or alleged omission.
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.
For purposes of this Section 10, each person, if any, who controls the
Remarketing Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Remarketing Underwriter, and each person, if any, who controls the Operating
Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Operating
Partnership.
Section 11. TERMINATION OF THIS REMARKETING AGREEMENT. Subject to
Section 3 hereof relating to the payment of fees and expenses, this Agreement
(i) shall terminate as to the Rate Agent on the effective date of the removal of
such Rate Agent pursuant to Section 4 hereof, and (ii) shall terminate as to the
Remarketing Underwriter on the effective date of the removal of such Remarketing
Underwriter pursuant to Section 4 hereof.
Section 12. RATE AGENT'S AND REMARKETING UNDERWRITER'S PERFORMANCE;
DUTY OF CARE. The duties and obligations of the Rate Agent and Remarketing
Underwriter hereunder shall be determined solely by the express provisions of
this Remarketing Agreement and the Notes and the Indenture and, in the case of
the Remarketing Underwriter, the applicable Remarketing Underwriting Agreement.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 14. TERM OF AGREEMENT. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full force
and effect from the date hereof until the first day thereafter on which no Notes
are outstanding.
Section 15. SUCCESSORS AND ASSIGNS. The rights and obligations of
the Operating Partnership hereunder may not be assigned or delegated to any
other person without the prior written consent of Merrill Lynch. The rights and
obligations of Merrill Lynch hereunder may not be assigned or delegated to any
other person without the prior written consent of the Operating Partnership.
This
-15-
<PAGE>
Agreement shall inure to the benefit of and be binding upon the Operating
Partnership and Merrill Lynch and their respective successors and assigns. The
terms "successors" and "assigns" shall not include any purchaser of any Notes
merely because of such purchase.
Section 16. HEADINGS. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and will not be used in
the interpretation of any provisions of this Agreement.
Section 17. SEVERABILITY. If any provision of this Agreement shall
be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provision of any constitution, statute, rule or
public policy or for any other reason, such circumstances shall not have the
effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstances or jurisdiction, or of rendering
any other provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatsoever.
Section 18. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 19. AMENDMENTS. This Agreement may be amended by any
instrument in writing signed by each of the parties hereto.
Section 20. NOTICES. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication or by telephone and confirmed in writing. All written notices
shall be deemed to be validly given or made, if delivered by hand, when so
delivered, or if mailed, when mailed registered or certified mail, return
receipt requested and postage prepaid. All notices by telecommunication
(including telephone) shall be deemed to be validly given or made when received.
All such notices, requests, consents or other communications shall be addressed
as follows: if to the Operating Partnership, to ERP Operating Limited
Partnership c/o Equity Residential Properties Trust, Two North Riverside Plaza,
Suite 400, Chicago, Illinois 60606, Attention: Bruce C. Strohm, Executive Vice
President, Secretary and General Counsel; and if to Merrill Lynch, to Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Merrill Lynch World Headquarters,
World Financial Center, North Tower, New York, New York 10281-1209, Attention:
Debt Syndicate, or to such other address as either of the above shall specify to
the other in writing.
Section 21. BENEFIT. Nothing in this Agreement, express or implied,
is intended or shall be construed to confer upon or given any person other than
the parties hereto any remedy or claim under or by reason of this Agreement or
any term, covenant or condition hereof, all of which shall be for the sole and
exclusive benefit of the parties.
-16-
<PAGE>
IN WITNESS WHEREOF, each of the Operating Partnership and Merrill
Lynch has caused this Agreement to be executed in its name and on its behalf by
one of its duly authorized officers as of the date first above written.
ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential Properties Trust, its general partner
By: /s/ Michael J. McHugh
---------------------------------
Name: Michael J. McHugh
Title: Executive Vice President and
Chief Accounting Officer
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Eric Wilson
--------------------------------------
Name: Eric Wilson
Title: Managing Director
<PAGE>
EXHIBIT A
REMARKETING UNDERWRITING AGREEMENT
REMARKETING UNDERWRITING AGREEMENT, dated as of _____________, ____
(this "Agreement"), by and between ERP Operating Limited Partnership (the
"Operating Partnership") and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated (the "Remarketing Underwriter").
The Remarketing Underwriter hereby agrees, on a reasonable best
efforts basis, to purchase the Notes described below (the "Notes") that have
been tendered by the holders thereof for sale on _________________ (the "Tender
Date").
[IF NO NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED, INCLUDE
THE FOLLOWING: It is acknowledged and agreed that the Notes need not be further
registered under the Securities Act of 1933, as amended (the "1933 Act"), and
that, in connection with the remarketing of the Notes by the Remarketing
Underwriter in accordance with the terms of the Remarketing Agreement dated
August 21, 1998, no prospectus meeting the requirements of Section 10 of the
1933 Act need be delivered or filed pursuant to Rule 424 under the 1933 Act.]
It is understood that the Remarketing Underwriter will attempt, on a
reasonable best efforts basis, to remarket the tendered Notes at a price equal
to 100% of the aggregate principal amount so tendered and that there is no
assurance that the Remarketing Underwriter will be able to remarket the entire
principal amount of the Notes tendered in a remarketing.
[It is understood that the Remarketing Underwriter will deliver to
purchasers and prospective purchasers, in connection with the remarketing, one
or more forms of written communication describing the terms of the Notes (each,
a "Remarketing Memorandum"), the form of each of which shall be delivered to the
Operating Partnership not less than two Business Days prior to its use. Such
Remarketing Memorandum shall be subject to the approval of the Operating
Partnership prior to its use by the Remarketing Underwriter, which approval
shall not be unreasonably withheld or delayed.] [INSERT ONLY IF MERRILL LYNCH
DETERMINES THAT, FOR MARKETING PURPOSES, THE REMARKETING MEMORANDUM IS NECESSARY
FOR REMARKETING OF THE NOTES]
The Remarketing Underwriter shall offer to purchase Notes and shall
purchase validly tendered Notes on the Tender Date in accordance with all
applicable laws and regulations and interpretations of the Securities and
Exchange Commission.
The provisions of Sections 3(j), 5(a) and (c), 8 and 9 of the Purchase
Agreement, dated December 13, 1994, as amended, between the Operating
Partnership and the Remarketing Underwriter (the "Purchase Agreement"), which
incorporates by reference the Terms Agreement, dated August 18, 1998, are
incorporated into this Agreement in their entirety and made applicable to the
obligations of the Remarketing Underwriter to the extent applicable to any
remarketing of the Notes, except as explicitly amended hereby. Section 9 of the
Purchase Agreement is amended to allow for the termination of this Agreement by
the Remarketing Underwriter if (i) the Operating Partnership's representations
and warranties therein are not accurate or correct in all material respects or
(ii) the Remarketing Underwriter does not purchase all tendered Notes on the
relevant Tender Date).
In addition, the provisions of Section 7 of the Remarketing Agreement
(other than paragraphs 7(m) and 7(n)) are incorporated into this Agreement in
their entirety and made applicable to
<PAGE>
the obligations of the Remarketing Underwriter to the extent applicable to any
remarketing of the Notes, except as explicitly amended hereby.
Such representations and warranties are made by the Operating
Partnership on the date hereof and the Tender Date.
All references contained in the Purchase Agreement to "you" or to the
"Underwriter" shall be deemed to refer to the Remarketing Underwriter. All
references to the "Underwritten Securities" shall be deemed to refer to the
Notes. All references to "Closing Time" shall be deemed to refer to the Tender
Date applicable to this Remarketing Underwriting Agreement, all references to
ERP and EQR shall be deemed to refer to the Operating Partnership and Equity
Residential Properties Trust, respectively. All references to "Terms Agreement"
shall be deemed to refer to this Remarketing Underwriting Agreement. The terms
"Registration Statement" and "Prospectus" shall be deemed to refer to each such
document as amended or supplemented to the date hereof and the Tender Date,
including the documents included in or incorporated by reference into such
document.
[IF A NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED, INCLUDE
THE FOLLOWING: It is understood that a new registration statement or new
prospectus is being filed by the Operating Partnership in connection with the
remarketing of the Notes (the "New Registration Statement" and/or the "New
Prospectus"). In connection therewith and with the remarketing of the Notes,
the attached Purchase Agreement hereby is incorporated into this Agreement in
its entirety (except as modified below) and the Remarketing Underwriter shall be
deemed to be acting as "principal" thereunder. All references in such Purchase
Agreement to (i) the "Underwriter" shall be deemed to refer to the Remarketing
Underwriter, (ii) the Purchase Agreement shall be deemed to refer to the
Remarketing Underwriting Agreement and (iii) the "Settlement Date" or the
"Representation Date" shall be deemed to refer to the Tender Date. To the
extent the provisions of such Purchase Agreement refer to the "Prospectus" or
the "Registration Statement," such references shall be deemed to refer to the
New Registration Statement or the New Prospectus, as applicable, including all
documents incorporated by reference therein. For the purposes of Section 7 of
the attached Purchase Agreement, the relative benefit received by the Operating
Partnership, on the one hand, and the Remarketing Underwriter, on the other
hand, in connection with the remarketing of the Notes pursuant to this Agreement
shall be deemed to be in the same respective proportions as the aggregate public
offering price of the Notes sold in connection with the remarketing bears to the
remarketing fee received by the Remarketing Underwriter pursuant to this
Agreement. Section 9 of the attached Purchase Agreement shall be amended to
allow for the termination of this Agreement by the Remarketing Underwriter if
(i) the Operating Partnership's representations and warranties therein are not
accurate and correct in all material respects or (ii) the Remarketing
Underwriter does not purchase all tendered Notes on the relevant Tender Date.]
All capitalized terms not otherwise defined in this Agreement have the
respective meanings assigned thereto in the Notes, the form of which is attached
hereto.
Operating Partnership: ERP Operating Limited Partnership.
c/o Equity Residential Properties Trust
Two North Riverside Plaza
Suite 400
Chicago, Illinois 60606
2
<PAGE>
REMARKETING UNDERWRITER AND ADDRESS: Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters World
Financial Center, North Tower 26th Floor
New York, New York 10281-1209
Title of Notes: Remarketed Reset Notes Due August 21,
2003
Principal Amount of Notes to be
Purchased:
Title of Indenture: Indenture dated as of October 1, 1994,
by and between the Operating Partnership
and the Trustee
Trustee: The First National Bank of Chicago
Current Ratings: Moody's Investors Service, Inc.: ___
Standard & Poor's Ratings Services: ____
CERTAIN TERMS OF THE NOTES
Stated Maturity: August 21, 2003
Spread Determination Date:
Duration/Mode Determination Date:
Tender Notice Date:
Interest Reset Date:
Tender Date:
New Interest Rate: As determined by application of the
provisions set forth in the attached
form of the Notes on the LIBOR
Determination Date or the Fixed Rate
Determination Date, as applicable.
Spread:
Interest Payment Dates:
Subsequent Spread Period:
Redemption Provisions: Redeemable as set forth in the attached
Prospectus Supplement dated August 18,
1998.
Beneficial Owner Tender Provisions: As set forth in the attached Prospectus
Supplement dated August 18, 1998. In
the
3
<PAGE>
event that the Remarketing Underwriter
fails to purchase all Notes validly
tendered for purchase on the Tender
Date, then the Remarketing Underwriter
shall promptly notify the Operating
Partnership and the Trustee of such
failure.
Shorter Subsequent Spread Period: In the event that (A) the Remarketing
Underwriter fails to purchase all Notes
validly tendered for purchase on the
Tender Date for any reason and (B) the
Operating Partnership has not given
notice of redemption of all of the Notes
then outstanding in accordance with the
provisions described in the attached
form of the Notes, then the Subsequent
Spread Period shall be a period of one
year, which Subsequent Spread Period
shall be deemed to have commenced upon
the Commencement Date that coincides
with the Tender Date.
Legal Opinion: If required to be delivered pursuant to
this Agreement, the opinion required to
be delivered pursuant to
Section 5(b)(1)(iv) of the attached
Purchase Agreement shall be modified to
read as follows "(iv) The Notes have
been duly authorized; a single global
Note registered in the name of CEDE &
Co., a nominee of The Depository Trust
Company ("DTC"), has been duly
authenticated in accordance with the
provisions of the Indenture, paid for
and delivered to DTC, and constitutes a
valid and binding obligation of the
Operating Partnership; and the
Underwriter will acquire the rights of a
bona fide purchaser (as such term is
defined in the Uniform Commercial Code
as in effect in the State of New York
(the "UCC")) in any portion of the Notes
transferred to the Underwriter by a
prior owner thereof as recorded on the
books of DTC, provided that (i) the
portion of the Notes transferred is an
authorized denomination of the Notes,
(ii) the transfer is recorded on the
books of DTC by a debit to the
transferor's account with DTC and a
credit to the Underwriter's account with
DTC, (iii) the Underwriter makes payment
to such transferor of value for such
transfer and (iv) the Underwriter
purchases such interest in good faith
and without notice of any adverse claim,
within the meaning of the UCC."
4
<PAGE>
If required to be delivered pursuant to
this Agreement, the opinion required to
be delivered pursuant to Section 5(b)(3)
of the attached Purchase Agreement may
be delivered by any counsel designated
by the Remarketing Underwriter and
reasonably acceptable to the Operating
Partnership.
Form of Notes: Global certificate registered in the
name of the nominee, which currently is
CEDE & Co., of the depository of the
Notes, which is DTC. The beneficial
owners of the Notes ("Beneficial
Owners") are not entitled to receive
definitive certificates representing
their Notes, except under limited
circumstances. A Beneficial Owner's
ownership of a Note currently is
recorded on or through the records of
the brokerage firm or other entity that
is a participant in DTC and that
maintains such Beneficial Owner's
account.
Purchase Price: 100% of the principal amount of the
Notes. Payable to DTC for the
Beneficial Owners of Tendered Notes.
Remarketing Fee: 0.35% of the principal amount of the
Notes for initial Remarketing Period.
0.075% of the principal amount of the
Notes for each additional Remarketing
Period outstanding on each Tender Date
multiplied by the number of years
remaining in the Stated Maturity.
Closing: Hogan & Hartson L.L.P., 555 13th
Street, N.W., Washington, D.C. 20004,
at 9:00 a.m., New York City time, on the
Tender Date.
5
<PAGE>
The foregoing terms are hereby confirmed and agreed to as of this ___
day of ____________.
ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential Properties Trust, its
general partner
By:
-----------------------------------
Name:
Title:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
----------------------------------------
Name:
Title:
6
<PAGE>
Exhibit 5
[Letterhead of Rosenberg & Liebentritt, P.C.]
August 21,1998
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) $100,000,000 principal amount of its Remarketed Reset Notes
due August 21, 2003 (the "Notes") as described in a Prospectus Supplement dated
August 18, 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. ss.229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Second Amended and Restated Declaration of Trust of the
Company (the "Declaration of Trust"), as certified by the
Secretary of the Company on the date hereof as then being
complete, accurate and in effect.
3. The Second Amended and Restated Bylaws of the Company, as
certified by the Secretary of the Company on the date hereof
as then being complete, accurate and in effect.
4. The Fifth Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, certified by the
Secretary of the Company, as the general
<PAGE>
ERP Operating Limited Partnership
Board of Trustees
Equity Residential Properties Trust
August 21, 1998
Page: 2
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 August 18, 1998, relating to the offering of the
Notes, each as certified by the Assistant Secretary of the
Company on the date hereof as then being complete, accurate
and in effect.
6. Executed copies of the Purchase Agreement, dated December 13,
1994, between the Operating Partnership and Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), and the Terms Agreement, dated August 18,
1998, between the Operating Partnership and each of Merrill
Lynch and Goldman, Sachs & Co. collectively (the "Underwriting
Agreement").
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all documents submitted to us as certified, telecopied, photostatic, or
reproduced copies. This opinion letter is given, and all statements herein are
made, in the context of the foregoing.
We call your attention to the fact that our firm only requires lawyers
to be qualified to practice law in the State of Illinois and, in rendering the
foregoing opinions, we express no opinion with respect to any laws relevant to
this opinion other than the laws and regulations identified herein.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, as of the date hereof, following issuance of the Notes pursuant
to the terms of the Underwriting Agreement and receipt by the Operating
Partnership of the consideration for the Notes specified in the resolutions of
the Company's Board of Trustees and the Pricing Committee referred to above,
the Notes will be validly issued and legally binding obligations of the
Operating Partnership enforceable against the Operating Partnership in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, or similar laws affecting
creditors' rights generally from ttime 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
August 21, 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.
