<PAGE>
As filed with the Securities and Exchange Commission on June 23, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): JUNE 17, 1999
ERP OPERATING LIMITED PARTNERSHIP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
ILLINOIS 0-24920 36-3894853
(STATE OR OTHER JURISDICTION (COMMISSION FILE NUMBER) (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
TWO NORTH RIVERSIDE PLAZA, SUITE 400
CHICAGO, ILLINOIS 60606
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code: (312) 474-1300
NOT APPLICABLE
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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<PAGE>
ITEM 7. Financial Statements, PRO FORMA Financial Information and Exhibits
Exhibit
Number Exhibit
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1 Form of Terms Agreement dated June 17, 1999 among ERP Operating
Limited Partnership, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Banc of America
Securities LLC, Chase Securities Inc. and J.P. Morgan Securities
Inc., which is being filed pursuant to Regulation S-K, Item 601(b)(1)
as an exhibit to the Registrant's registration statement on Form S-3,
file no. 333-45557, under the Securities Act of 1933, as amended,
and which, as this Form 8-K filing is incorporated by reference in
such registration statement, is set forth in full in such
registration statement; the Form of Terms Agreement incorporates
(1) the terms and provisions of the Purchase Agreement dated
December 13, 1994, as amended, among Merrill Lynch 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. 33-84892 under the Securities Act of 1933, as amended and
(2) certain terms and provisions of the Terms Agreement dated
August 8, 1996 among Merrill Lynch, Alex. Brown & Sons Incorporated
and J.P. Morgan Securities Inc., the form of which was previously
filed as Exhibit 1 to the Registrant's Current Report on Form 8-K
dated August 8, 1996, each as incorporated herein by reference
thereto and, as this Form 8-K is incorporated by reference in
registration statement no. 333-45557, such terms are set forth in
full in such registration statement.
5 Opinion of Rosenberg & Liebentritt, P.C., which is being filed
pursuant to Regulation 601(b)(5) as an exhibit to the Registrant's
registration statement on Form S-3, file no. 333-45557, under the
Securities Act of 1933, as amended, and which, as this Form 8-K
filing is incorporated by reference in such registration statement,
is set forth in full in such registration statement.
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: June 23, 1999 By: /s/ Bruce C. Strohm
----------------------------------
Bruce C. Strohm
Executive Vice President, General Counsel
and Secretary
2
<PAGE>
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
$300,000,000 7.10% Notes due June 23, 2004
TERMS AGREEMENT
Dated: June 17, 1999
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 $300,000,000 aggregate
principal amount of 7.10% Notes due June 23, 2004 (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
99.338% of the principal amount thereof.
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Underwritten Securities
----------- -------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated............................................... $ 75,000,000
Banc of America Securities LLC......................................... 75,000,000
Chase Securities Inc................................................... 75,000,000
J.P. Morgan Securities Inc............................................. 75,000,000
-------------
Total......................................................... $ 300,000,000
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-------------
</TABLE>
The Underwritten Securities shall have the following terms (capitalized
terms used but not defined herein or in the attached Purchase Agreement shall
have the meanings given them in the form of Note attached hereto as ANNEX B):
<TABLE>
<S> <C>
TITLE: 7.10% Notes due June 23, 2004
PRINCIPAL AMOUNT TO BE ISSUED: $300,000,000
CURRENCY: U.S. Dollars
CURRENT RATINGS: A3 by Moody's Investors Services, Inc.
<PAGE>
BBB+ by Standard & Poor's Ratings Services
FORM: Registered book-entry form
INITIAL PRICE TO PUBLIC: 99.938% plus accrued interest, if any, from June 23, 1999
PURCHASE PRICE: 99.338% of the principal amount of the Underwritten Securities
SETTLEMENT DATE, TIME AND PLACE: June 23, 1999, at 9:00 a.m. New York City time at the offices
of Rosenberg & Liebentritt, P.C., Two North Riverside Plaza,
Suite 1600, Chicago, Illinois 60606 for the delivery of documents;
delivery of funds on June 23, 1999 in accordance with DTC procedures
for the Underwritten Securities
STATED MATURITY DATE: June 23, 2004
INTEREST RATE: 7.10%
INTEREST PAYMENT DATES: Interest on the Notes will be payable semi-annually in arrears, on June
23 and December 23 of each year, beginning December 23, 1999
ADDITIONAL CO-MANAGERS, IF ANY: Banc of America Securities LLC, Chase Securities Inc., and J.P. Morgan
Securities Inc.
REDEMPTION: ERP may redeem the Underwritten Securities, at any time, in whole or from
time to time in part, at the election of ERP, at a redemption price equal
to the sum of (i) the principal amount of the Underwritten Securities
being redeemed plus accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined in the Prospectus), if any, with
respect to such Underwritten Securities (collectively, the "Redemption
Price"). Notice of any optional redemption of any Underwritten
Securities will be given to holders at their addresses, as shown in the
Security Register, not more than 60 nor less than 30 days prior to the
date fixed for redemption. The notice of redemption will specify, among
other items, the Redemption Price and the principal amount of the
Underwritten Securities held by such persons to be redeemed.
DELAYED CONTRACTS: Not authorized
OTHER: ERP is required to maintain Total Unencumbered Assets (as defined in the
Prospectus) of not less than 150% of the aggregate outstanding principal
amount of the Unsecured Debt (as defined in the Prospectus) of ERP.
</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,
beginning with the phrase "The Purchase Agreement is hereby amended as follows"
on page 2 through subparagraph (x) on page 3, as 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
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<PAGE>
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 June 17, 1999 (the "Prospectus Supplement"), to
the prospectus dated April 6, 1998 (together with the Prospectus Supplement, the
"Prospectus").
In addition to the amendments to the Purchase Agreement set forth in
the Terms Agreement dated August 8, 1996, which amendments are incorporated by
reference herein, the Purchase Agreement is further amended as follows:
(i) Section 1 and Section 5 shall be amended so that, in each
case, the words "condition, financial or otherwise, or in the earnings, assets,
business affairs or business prospects" are deleted in their entirety and, each
case, the following text is inserted in lieu thereof:
"financial condition, earnings, assets or business affairs"
(ii) The preamble paragraph under Section 5 shall be amended so
that immediately following the words "pursuant to the applicable Terms Agreement
are subject to the accuracy" appearing in the second line of such paragraph, the
following text shall be added:
"on the date hereof and at the applicable Closing Time"
(iii) Subsection 6(c) shall be amended so that the words
"otherwise than on account of this indemnity agreement" appearing in the
fifth line of such subsection are deleted in their entirety and the word
"hereunder" is inserted in lieu thereof.
(iv) Subsection 6(c) shall be amended so that the word "or"
appearing at the end of the sixth line of such subsection is deleted and the
following text is inserted in lieu thereof:
"and in any event shall not relieve such indemnifying party from any
liability which it may have"
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<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 June 17, 1999 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:
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Name:
Title:
Acting on behalf of itself and the other named Underwriters.
Accepted:
ERP OPERATING LIMITED PARTNERSHIP
By: EQUITY RESIDENTIAL PROPERTIES TRUST,
not individually but as General Partner
By:
----------------------------------------
Name:
Title:
<PAGE>
Exhibit 5
[Letterhead of Rosenberg & Liebentritt, P.C.]
June 23, 1999
ERP Operating Limited Partnership
c/o Board of Trustees
Equity Residential Properties Trust
Two North Riverside Plaza
Suite 400
Chicago, Illinois 60606
Ladies and Gentlemen:
We are acting as counsel to ERP Operating Limited Partnership, an
Illinois limited partnership (the "Operating Partnership"), the general partner
of which is Equity Residential Properties Trust, a Maryland real estate
investment trust (the "Company"), in connection with the Operating Partnership's
registration statement on Form S-3 (the "Registration Statement") previously
declared effective by the Securities and Exchange Commission relating to
unsecured senior debt securities in a maximum aggregate offering price of
$1,000,000,000 (the "Securities") (SEC File No. 333-45557), all of which
Securities may be offered and sold by the Operating Partnership from time to
time as set forth in the prospectus which forms a part of the Registration
Statement (the "Prospectus"), and as to be set forth in one or more supplements
to the Prospectus (each, a "Prospectus Supplement"). This opinion letter is
rendered in connection with the proposed public offering by the Operating
Partnership of (i) $300,000,000 principal amount of its 7.10% Notes due June 23,
2004 (the "Notes") as described in a Prospectus Supplement dated June 17, 1999.
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.
<PAGE>
ERP Operating Limited Partnership
Board of Trustees
Equity Residential Properties Trust
June 23, 1999
Page 2
4. The Fifth Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, certified by the
Secretary of the Company, as the general partner of the
Operating Partnership, on the date hereof as then being
complete, accurate and in effect.
5. Resolutions of the Board of Trustees of the Company, as the
general partner of the Operating Partnership, adopted on
September 13, 1996, November 14, 1997 and January 14, 1998
relating to the filing of the Registration Statement and
related matters, and by the Pricing Committee of the Board of
Trustees on June 17, 1999, relating to the offering of the
Notes, each as certified by the Secretary of the Company on
the date hereof as then being complete, accurate and in
effect.
6. Executed copies of the Purchase Agreement dated December 13,
1994, as amended, between the Operating Partnership and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), and the Terms Agreement dated
June 17, 1999, between the Operating Partnership and Merrill
Lynch, Banc of America Securities LLC, Chase Securities Inc.
and J.P. Morgan Securities Inc. (collectively, the
"Underwriting Agreement").
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all documents submitted to us as certified, telecopied, photostatic, or
reproduced copies. This opinion letter is given, and all statements herein are
made, in the context of the foregoing.
We call your attention to the fact that our firm only requires lawyers
to be qualified to practice law in the State of Illinois and, in rendering the
foregoing opinions, we express no opinion with respect to any laws relevant to
this opinion other than the laws and regulations identified herein.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, as of the date hereof, following issuance of the Notes pursuant to
the terms of the Underwriting Agreement and receipt by the Operating Partnership
of the consideration for the Notes specified in the resolutions of the Company's
Board of Trustees and the Pricing Committee referred to above, the Notes will be
validly issued and legally binding obligations of the Operating Partnership
enforceable against the Operating Partnership in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, or similar laws affecting creditors' rights generally from
time to time in effect and general principles
<PAGE>
ERP Operating Limited Partnership
Board of Trustees
Equity Residential Properties Trust
June 23, 1999
Page 2
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and except that a waiver of rights under any
usury law may be unenforceable.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing by 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.
