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ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
Debt Securities
STANDARD UNDERWRITING PROVISIONS
August 25, 2000
ERP Operating Limited Partnership, a limited partnership
organized under the laws of the State of Illinois ("ERP"), may from time to
time issue and sell various aggregate principal amounts of its senior debt
securities (the "Securities"), from time to time, in one or more offerings on
terms to be determined at the time of sale. The Securities will be issued
under an indenture dated as of October 1, 1994 (the "Indenture") between ERP
and Bank One Trust Company, NA, as successor to The First National Bank of
Chicago, as trustee (the "Trustee"). Each series of Securities may vary, as
applicable, as to aggregate principal amount, maturity date, interest rate or
formula and timing of payments thereof, redemption or repayment provisions,
and any other variable terms which the Indenture contemplates may be set
forth in the Securities as issued from time to time. As used herein, "you"
and "your," unless the context otherwise requires, shall mean the parties to
whom the applicable Terms Agreement (as hereinafter defined) is addressed,
together with the other parties, if any, identified as co-managers, with
respect to Underwritten Securities (as hereinafter defined) purchased
pursuant thereto.
Whenever ERP determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, ERP will
enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
as having authorized you to enter into such Terms Agreement on their behalf
(the "Underwriters," which term shall include you whether acting alone in the
sale of the Underwritten Securities or as a member or members of an
underwriting syndicate and any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Underwritten
Securities shall specify the initial principal amount of Underwritten
Securities to be initially issued (the "Initial Underwritten Securities"),
the names of the Underwriters participating in such offering (subject to
substitution as provided in Section 10 hereof), the principal amount of
Initial Underwritten Securities which each such Underwriter severally agrees
to purchase, the names of Underwriters acting as co-managers, if any, in
connection with such offering, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters from ERP, the initial
public offering price, if any, of the Initial Underwritten Securities,
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the time and place of delivery and payment, any delayed delivery arrangements
and any other variable terms of the Initial Underwritten Securities
(including, but not limited to, current ratings, designations, denominations,
interest rates or formulas, interest payment dates, maturity dates and
redemption or repayment provisions applicable to the Initial Underwritten
Securities). In addition, each Terms Agreement shall specify whether ERP has
agreed to grant to the Underwriters an option to purchase additional
Underwritten Securities to cover over-allotments, if any, and the aggregate
principal amount of Underwritten Securities subject to such option (the
"Option Securities"). As used herein, the term "Underwritten Securities"
shall include the Initial Underwritten Securities and all or any portion of
the Option Securities agreed to be purchased by the Underwriters as provided
herein, if any. The Terms Agreement, which shall be substantially in the form
of Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and ERP. Each offering of Underwritten
Securities through you or through an underwriting syndicate managed by you
will be governed by these Standard Underwriting Provisions as incorporated by
reference into, and as supplemented by, the applicable Terms Agreement and
such Terms Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of such Underwritten Securities.
ERP has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-[_ _ _ _ _])
for the registration of the Securities under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 430A or Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and ERP has filed
such amendments thereto as may have been required prior to the execution of
the applicable Terms Agreement. Such registration statement and any successor
registration statements (as amended, if applicable) have been declared
effective by the Commission and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statements and the prospectuses constituting parts thereof (including in each
case the information, if any, deemed to be part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations), and each prospectus supplement relating
to the offering of Underwritten Securities pursuant to Rule 415 of the 1933
Act Regulations (the "Prospectus Supplement"), including all documents
incorporated therein by reference, as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act") or otherwise, are collectively referred to herein
as the "Registration Statement" and the "Prospectus," respectively; provided,
that if any revised prospectus shall be provided to you by ERP for use in
connection with the offering of Underwritten Securities which differs from
the Prospectus on file at the Commission at the time the Registration
Statement became effective (whether or not such revised prospectus is
required to be filed by ERP pursuant to Rule 424(b) of the 1933 Act
Regulations), the term "Prospectus" shall refer to each such revised
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prospectus from and after the time it is first provided to you for such use;
provided, further, that a Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of Underwritten
Securities to which it relates. If ERP files a registration statement with
the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule
462 Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement. If ERP elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall also be deemed to
include the preliminary or final prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form
first furnished to you by ERP in reliance upon Rule 434 of the 1933 Act
Regulations, and all references to the date of the Prospectus shall mean the
date of the Term Sheet. All references in this Agreement to financial
statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
For purposes hereof, all references to the Registration
Statement, Prospectus, Term Sheet or preliminary prospectus or to any
amendment or supplement to any of the foregoing shall be deemed to include
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
ERP owns all of the issued and outstanding shares of
preferred stock of Equity Residential Properties Management Corp., a Delaware
corporation, Equity Residential Properties Management Corp. II, a Delaware
corporation, Equity Residential Properties Management Corp. III, a Delaware
corporation, Wellsford Holly Management, Inc., a Washington corporation,
Evans Withycombe Management, Inc., an Arizona corporation, Equity Residential
Properties Management Limited Partnership, an Illinois limited partnership,
Equity Residential Properties Management Limited Partnership II, an Illinois
limited partnership and Lexford Properties Management, LLC, a Delaware
limited liability company (collectively, the "Management Corporations"). The
term "subsidiary" or "subsidiaries," when used with respect to ERP, shall
include (i) the Management Corporations, (ii) each consolidated subsidiary of
ERP, (iii) any entity the operations of which are included in the
consolidated financial statements for ERP for the most recent fiscal period
included in the Prospectus and (iv) any subsidiary (other than ERP) of Equity
Residential Properties Trust, a Maryland real estate investment trust and
ERP's
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sole general partner ("EQR"), which owns an interest in any entity described
in clause (ii) above.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) ERP represents and warrants to you and each other
Underwriter named in the applicable Terms Agreement, as of the date thereof
(in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement and any post-effective
amendment thereto (including the filing of ERP's most recent
Annual Report on Form 10-K with the Commission (the "Form
10-K")) became effective, complied, and as of each
Representation Date will comply, in all material respects with
the requirements of the 1933 Act, 1933 Act Regulations and the
1939 Act and the rules and regulations thereunder (the "1939
Act Regulations"); the Registration Statement, at the time the
Registration Statement became effective, did not, and as of
each Representation Date, will not, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, as of each
Representation Date and Closing Time (as hereinafter defined),
will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
the representations and warranties in this subsection shall
not apply to statements in, or omissions from, the
Registration Statement or the Prospectus made in reliance
upon, and in conformity with, information furnished to ERP in
writing by any Underwriter through you expressly for use in
the Registration Statement or Prospectus or to that part of
the Registration Statement which shall constitute the
Statement of Eligibility and Qualification on Form T-1 under
the 1939 Act (the "Statement of Eligibility") of the Trustee
under the Indenture. If EQR elects to rely upon Rule 434 of
the 1933 Act Regulations, EQR will comply with the
requirements of Rule 434.
(ii) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part
of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied or will comply when so filed in all
material respects with the 1933 Act and the 1933 Act
Regulations.
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(iii) No stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued
and no proceeding for that purpose has been instituted or, to
the knowledge of ERP, threatened by the Commission or by the
state securities authority of any jurisdiction. No order
preventing or suspending the use of the Prospectus has been
issued and no proceeding for that purpose has been instituted
or, to the knowledge of ERP, threatened by the Commission or
by the state securities authority of any jurisdiction. Any
request on the part of the Commission for additional
information has been complied with.
(iv) The accountants who certified the financial
statements and supporting schedules included or incorporated
by reference in the Registration Statement and the Prospectus
are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(v) The consolidated financial statements and related
notes included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
financial position of ERP and its consolidated subsidiaries as
at the dates indicated and the results of their operations
specified, and except as may otherwise be stated in the
Registration Statement and Prospectus, have been prepared in
accordance with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout such
periods. The supporting schedules included or incorporated by
reference in the Registration Statement present fairly in
accordance with GAAP the information required to be stated
therein. The financial information and statistical data
included in the Registration Statement and the Prospectus
present fairly the information included therein and have been
prepared on a basis consistent with that of the financial
statements included in the Registration Statement and the
Prospectus. The pro forma financial statements included in the
Registration Statement and Prospectus comply in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X of the Commission and the pro forma adjustments
have been properly applied to the historical amounts in the
compilation of such statements, and the assumptions used in
the preparation thereof are, in the opinion of ERP,
reasonable.
(vi) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated or contemplated
therein, (A) there has been no material adverse change in the
financial condition or in the earnings, assets, business
affairs or business prospects of ERP and its subsidiaries,
considered as a single enterprise, whether or not arising
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in the ordinary course of business, (B) there have been no
material transactions entered into by ERP or any of its
subsidiaries, other than transactions in the ordinary
course of business, which are material with respect to ERP
and its subsidiaries considered as a single enterprise, (C)
neither ERP nor any of its subsidiaries has incurred any
material obligation or liability, direct, contingent or
otherwise and (D) there has been no material change in the
short-term debt or long-term debt of ERP.
(vii) ERP and each of its subsidiaries has been duly
formed and is validly existing and is in good standing as a
partnership, corporation or limited liability company ("LLC")
under the laws of its jurisdiction of organization, with
partnership, corporate or LLC power and authority to own,
lease and operate its properties and conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the applicable Terms Agreement.
(viii) ERP and each of its subsidiaries is duly
qualified or registered as a foreign partnership, corporation
or LLC and is in good standing to transact 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 financial condition or
the earnings, assets or business affairs of ERP and its
subsidiaries considered as a single enterprise (a "Material
Adverse Effect").
(ix) All of the issued and outstanding shares of
beneficial interest or capital stock, partnership and LLC
interests, as the case may be, of each subsidiary have been
validly issued and fully paid and, with respect to the shares
of capital stock, partnership and LLC interests owned by ERP,
EQR, another subsidiary and/or certain affiliated entities,
are owned by ERP, EQR, another subsidiary, and/or certain
affiliated entities, respectively, as described in the
Registration Statement, in each case free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity. ERP owns no direct or indirect equity interest in
any entity other than its subsidiaries, except for such
interests as, in the aggregate, are not material to the
condition, financial or otherwise, or the earnings, assets or
business affairs of ERP and its subsidiaries considered as a
single enterprise.
(x) Except for transactions described in the
Prospectus, there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or
exchangeable for, or agreements or
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understandings with respect to the sale or issuance of, any
shares of capital stock of or partnership or other equity
interest in ERP, EQR or any subsidiary of ERP except for OP
Units which may be issued pursuant to multifamily property
acquisition agreements which are not material in amount.
(xi) The capitalization of ERP is as set forth in
the Prospectus and all of the outstanding partnership
interests in ERP have been duly authorized and validly
issued and the capital contributions with respect thereto
have been made in full; the partnership interests owned by
EQR are owned in the percentage amount set forth in the
Prospectus free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(xii) ERP has full partnership power and authority to
enter into and to perform its obligations under the Indenture,
the applicable Terms Agreement and the Delayed Delivery
Contracts (as defined in Section 2 hereof), if any, and as of
each Representation Date, the applicable Terms Agreement and
the Delayed Delivery Contracts, if any, will have been duly
authorized, executed and delivered by ERP, and each is or will
be a valid and binding obligation of ERP, enforceable against
ERP in accordance with its terms, except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability and
(C) rights to indemnity and contribution hereunder may be
limited by state or federal securities laws or the public
policy underlying such laws.
(xiii) The Indenture (A) has been duly and validly
authorized, executed and delivered by ERP, and assuming it has
been duly authorized, executed and delivered by the Trustee,
the Indenture constitutes a valid and binding obligation of
ERP, enforceable against ERP in accordance with its terms,
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; and
(B) conforms in all material respects to the description
thereof in the Prospectus.
(xiv) The Underwritten Securities (A) have been duly
authorized by ERP and, when executed, authenticated, issued
and
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delivered in the manner provided for herein and in the
Indenture, against payment of the consideration therefor
specified in the applicable Terms Agreement or any Delayed
Delivery Contract (as defined in Section 2 hereof), the
Underwritten Securities will constitute valid and legally
binding obligations of ERP, entitled to the benefits of the
Indenture and enforceable against ERP in accordance with their
terms, except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability; and (B) conform in all material respects to the
descriptions related thereto contained in the Prospectus.
(xv) There is no action, suit or proceeding before or
by any court or governmental agency or body, now pending, or,
to the knowledge of ERP or EQR, threatened, against or
affecting ERP or any of its subsidiaries which is required to
be disclosed in the Prospectus (other than as disclosed
therein) or which might result in any material adverse change
in the financial condition, or in the earnings, assets or
business affairs of ERP and its subsidiaries considered as a
single enterprise (a "Material Adverse Change") or which might
materially and adversely affect the properties or assets
thereof or which might materially and adversely affect the
consummation of the applicable Terms Agreement, Delayed
Delivery Contracts or the Indenture or the transactions
contemplated therein; all pending legal or governmental
proceedings to which ERP or any of its subsidiaries is a party
or of which any of their properties or assets is the subject
which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, could not,
considered in the aggregate, reasonably be expected to result
in a Material Adverse Effect; and there are no contracts or
documents of ERP or any of its subsidiaries which would be
required to be filed as exhibits to the Registration Statement
by the 1933 Act or the 1933 Act Regulations which have not
been filed as exhibits to the Registration Statement.
(xvi) None of ERP or any of its subsidiaries is
required to own or possess any trademarks, service marks,
trade names or copyrights to conduct the business operated by
it as of any Representation Date, other than those whereby the
failure to possess or own would not have a Material Adverse
Effect; and none of ERP or any of its subsidiaries has
received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to
any trademarks, service marks, trade names or copyrights or of
any facts or
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circumstances which would render any trademarks, service
marks, trade names or copyrights invalid or inadequate to
protect the interest of ERP or any of its subsidiaries
therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would
result in a Material Adverse Effect.
(xvii) No authorization, approval or consent of any
court or governmental authority or agency is required that has
not been obtained in connection with the consummation by ERP
of the transactions contemplated by the applicable Terms
Agreement or the Indenture, except such as may be required
under the 1933 Act, the 1939 Act, the 1933 Act Regulations or
state securities law.
(xviii) Each of ERP and its subsidiaries has all
consents, authorizations, approvals, orders, certificates and
permits (collectively, the "Governmental Licenses") 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; and all of the
Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force
and effect would not result in a Material Adverse Effect; and
none of ERP or any of its subsidiaries has received any
written notice of proceedings relating to the revocation or
modification of any such consent, authorization, approval,
order, certificate or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in a Material Adverse Effect.
(xix) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, when they became
effective or 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 1934 Act and the rules
and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations"), and, when read together with the
other information in the Prospectus, at the time the
Registration Statement became effective, at the date of the
Prospectus, as of each Representation Date, and at the Closing
Time or during the period specified in Section 3(f), did not
and will not include an untrue statement of a material fact or
omit to state a material fact required to
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be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(xx) Each of ERP and its subsidiaries is insured by
insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; and ERP
has no reason to believe that it or any of its subsidiaries
will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its
businesses at a cost that would not have a Material Adverse
Effect, except as described in or contemplated by the
Registration Statement and the Prospectus.
(xxi) None of ERP nor any of its subsidiaries is in
violation of its partnership agreement, charter document,
bylaws or LLC agreement, 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 result in a Material Adverse Effect; and the
execution, delivery and performance of the applicable Terms
Agreement or the Indenture and the consummation of the
transactions contemplated thereby, including the issuance,
sale and delivery of the Underwritten Securities and the use
of proceeds described in the Prospectus, have been duly
authorized by all necessary actions and do not and will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of ERP or any of its
subsidiaries, pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which ERP
or any of its subsidiaries is a party or by which it or any of
them may be bound or 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, charter, bylaws or LLC agreement of ERP or any of
its subsidiaries, or any applicable law, regulation, ruling,
order, judgment, administrative regulation or administrative
or court decree.
(xxii) ERP has not taken and will not take, directly
or indirectly, any action prohibited by Regulation M.
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(xxiii) The assets of ERP do not constitute "plan
assets" under the Employee Retirement Income Security Act of
1974, as amended.
(xxiv) Except as otherwise described in the
Prospectus, each of ERP and its subsidiaries has good and
marketable title in fee simple to all real property, and good
title to all personal property (including mortgage
investments), owned by it which is material to the business of
ERP and its subsidiaries, considered as a single enterprise,
in each case, free and clear of all liens, claims,
encumbrances and defects except such as are described in
general in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use
made and proposed to be made of such property by ERP or any of
its subsidiaries; and any real property and buildings held
under lease by ERP or any of its subsidiaries are held by it
under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and
buildings by ERP or such subsidiaries, in each case except as
described in or contemplated by the Registration Statement and
the Prospectus.
(xxv) Each of ERP and its subsidiaries has obtained
title insurance on all of the properties owned by each of them
covering risks and in amounts that are commercially reasonable
for the assets owned by them and that are consistent with the
types and amounts of insurance typically maintained by current
owners of similar properties, and in each case such title
insurance is in full force and effect.
(xxvi) The mortgages and deeds of trust encumbering
the properties and assets described in general in the
Prospectus are not convertible and are not cross-defaulted or
cross-collateralized to any property not owned by ERP or any
of its subsidiaries; except as disclosed in the Prospectus,
none of ERP or any of its subsidiaries holds participating
interests in such mortgages and deeds of trust.
(xxvii) Each of the partnership agreements and LLC
agreements to which any of ERP 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 (A) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable principles of
general applicability; and the execution, delivery and
performance of any of
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such agreements did not, at the time of execution and
delivery, and does not constitute a breach of, or default
under, the partnership agreement, charter, bylaws or other
governing documents of such party or any material contract,
lease or other instrument to which such party is a party or
by which its properties may be bound or any law,
administrative regulation or administrative or court decree.
(xxviii) Except as otherwise stated in the
Registration Statement and the Prospectus or as would not,
singly or in the aggregate, result in a Material Adverse
Effect, (A) neither ERP nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation
thereof including any judicial or administrative order,
consent, decree or judgment, relating to pollution or
protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B)
ERP and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and
are each in compliance with their requirements, (C) there are
no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against ERP or
any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body
or agency, against or affecting ERP or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(xxix) EQR has operated and intends to continue to
operate in such a manner as to qualify to be taxed as a "real
estate investment trust" under the Internal Revenue Code of
1986, as amended (the "Code").
(xxx) Each of ERP and its subsidiaries has filed all
federal, state, local and foreign income tax returns which
have been required to
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be filed and has paid all taxes required to be paid and any
other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except in
all cases for any such tax, assessment, fine or penalty for
which an extension has been granted or that is being contested
in good faith and except in any case in which the failure to
file or pay such taxes would not have a Material Adverse
Effect.
(xxxi) Neither ERP nor any subsidiary is, or as a
result of the transactions contemplated by the Prospectus
would be, required to make any filing or to register under the
Investment Company Act of 1940, as amended, or is or will
become a "holding company" or a "subsidiary company" of a
"registered holding company," as defined in the Public Utility
Holding Company Act of 1935, as amended.
(xxxii) No labor dispute with the employees of ERP,
or any of ERP's subsidiaries exists, or to the knowledge of
ERP, is imminent.
(b) Any certificate signed by any officer of ERP (or any
officer of EQR) or of any subsidiary and delivered to you or to counsel for the
Underwriters shall be deemed a representation and warranty by ERP or such
subsidiary to each Underwriter participating in such offering as to the matters
covered thereby on the date of such certificate.
SECTION 2. PURCHASE AND SALE.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, ERP may grant, if so provided in the applicable Terms Agreement relating
to the Initial Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up to the aggregate
principal amount of Option Securities set forth therein at the same price per
Option Security as is applicable to the Initial Underwritten Securities. Such
option, if granted, will expire 30 days or such lesser number of days as may be
specified in the applicable Terms Agreement after the Representation Date
relating to the Initial Underwritten Securities, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice by you to ERP setting forth the
aggregate principal amount of Option Securities as
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to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time
and date of delivery (a "Date of Delivery") shall be determined by you, but
shall not be later than seven full business days and may not be earlier than
two full business days after the exercise of said option, unless otherwise
agreed upon by you and ERP. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally
and not jointly, will purchase that proportion of the total aggregate
principal amount of Option Securities then being purchased which the
aggregate principal amount of Initial Underwritten Securities each such
Underwriter has agreed to purchase as set forth in the applicable Terms
Agreement bears to the total aggregate principal amount of Initial
Underwritten Securities, subject to such adjustments as you in your
discretion shall make to eliminate any sales or purchases of fractional
Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at
such place as shall be agreed upon by you and ERP, at 10:00 A.M., New York City
time, no later than the third (fourth, if the pricing occurs after 4:30 p.m.
(New York City time) on any given business day) business day (unless postponed
in accordance with the provisions of Section 10 hereof) following the date of
the applicable Terms Agreement or at such other time as shall be agreed upon by
you and ERP (each such time and date being referred to as a "Closing Time"). In
addition, if any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates
representing, such Option Securities, shall be made at such place as shall be
agreed upon by you and ERP on each Date of Delivery as specified in the notice
from you to ERP. Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to ERP by wire transfer to accounts designated by ERP of
immediately available funds payable to the order of ERP against delivery to you
for the respective accounts of the Underwriters of the Underwritten Securities
to be purchased by them. The Underwritten Securities shall be in such authorized
denominations and registered in such names as you may request in writing at
least two business days prior to the applicable Closing Time or Date of
Delivery, as the case may be. The Underwritten Securities, which may be in
temporary form, will be made available for examination and packaging by you on
or before the first business day prior to the applicable Closing Time or Date of
Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Underwritten
Securities from ERP pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto with such changes
therein as ERP may approve. As compensation for arranging Delayed Delivery
Contracts, ERP will pay to you at Closing Time, for the respective accounts of
the Underwriters, a fee specified in the applicable Terms Agreement for each of
the Underwritten Securities for which
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Delayed Delivery Contracts are made at the applicable Closing Time as is
specified in the applicable Terms Agreement. Any Delayed Delivery Contracts
are to be with institutional investors of the types described in the
Prospectus. At the applicable Closing Time, ERP will enter into Delayed
Delivery Contracts (for not less than the minimum principal amount of
Underwritten Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters
and previously approved by ERP as provided below, but not for an aggregate
principal amount of Underwritten Securities in excess of that specified in
the applicable Terms Agreement. The Underwriters will not have any
responsibility for the validity or performance of Delayed Delivery Contracts.
You shall submit to ERP, at least three business days prior to
the applicable Closing Time, the names of any institutional investors with which
it is proposed that ERP will enter into Delayed Delivery Contracts and the
principal amount of Underwritten Securities to be purchased by each of them, and
ERP will advise you, at least two business days prior to the applicable Closing
Time, of the names of the institutions with which the making of Delayed Delivery
Contracts is approved by ERP and the principal amount of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The principal amount of Underwritten Securities agreed to be
purchased by the several Underwriters pursuant to the applicable Terms Agreement
shall be reduced by the principal amount of Underwritten Securities covered by
Delayed Delivery Contracts, as to each Underwriter as set forth in a written
notice delivered by you to ERP; provided, however, that the total principal
amount of Underwritten Securities to be purchased by all Underwriters shall be
the total amount of Underwritten Securities covered by the applicable Terms
Agreement, less the principal amount of Underwritten Securities covered by
Delayed Delivery Contracts.
SECTION 3. COVENANTS.
ERP covenants with you, and with each Underwriter
participating in the offering of Underwritten Securities, as follows.
(a) Immediately following the execution of the applicable
Terms Agreement, ERP will prepare a Prospectus Supplement setting forth the
principal amount of Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus or the Indenture pursuant to which the
Underwritten Securities are being issued, the names of the Underwriters
participating in the offering and the principal amount of Underwritten
Securities which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the price at
which the Underwritten Securities are to be purchased by the Underwriters from
ERP, the initial public offering price, if any, the selling concession and
reallowance, if any, any delayed delivery arrangements,
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and such other information as you and ERP deem appropriate in connection with
the offering of the Underwritten Securities; and ERP will promptly transmit
copies of the Prospectus Supplement to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations within the time period required by
such Rule and will furnish to the Underwriters named therein as many copies
of the Prospectus and such Prospectus Supplement as you shall reasonably
request and the Prospectus and any Prospectus Supplement shall contain the
same text as any electronically transmitted copies filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(b) ERP will notify you immediately, and confirm such notice
in writing, of (i) the effectiveness any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document to
be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of the Prospectus or the initiation of any
proceedings for any of such purposes; and ERP will make every reasonable effort
to prevent the issuance of any such stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, ERP will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b) of the 1933 Act Regulations), any Term Sheet or any amendment or
supplement to the Prospectus (including any revised prospectus which ERP
proposes for use by you in connection with the offering of Underwritten
Securities which differs from the prospectus on file at the Commission at the
time the Registration Statement became effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), whether pursuant to the 1933 Act, 1934 Act or otherwise, and will
furnish you with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or preparation, as the case may be, and
will not file or prepare any such amendment or supplement or other documents in
a form to which you or counsel for the Underwriters shall reasonably object.
(d) ERP will deliver to you as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
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documents incorporated or deemed to be incorporated by reference therein) as you
reasonably request.
(e) ERP will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act in connection with sales of the Underwritten Securities,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) ERP will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Underwritten Securities as contemplated in
the applicable Terms Agreement and in the Registration Statement and the
Prospectus. If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for ERP, to
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of either such counsel, at any such time to
amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, then
ERP will promptly prepare and file with the Commission such amendment or
supplement in form and substance reasonably satisfactory to counsel for the
Underwriters, whether by filing documents pursuant to the 1933 Act, the 1934 Act
or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with such
requirements.
(g) ERP will endeavor, in cooperation with the Underwriters,
to qualify the Underwritten Securities for offering and sale under the
applicable securities laws and real estate syndication laws of such states and
other jurisdictions of the United States as you may designate; provided,
however, that ERP shall not be obligated to (i) qualify as a foreign limited
partnership in any jurisdiction where it is not so qualified, (ii) file any
general consent to service of process or (iii) take any action that would
subject it to income taxation in any such jurisdiction. In each jurisdiction in
which the Underwritten Securities have been so qualified, ERP will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities.
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(h) With respect to each sale of Underwritten Securities, ERP
will make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earning statement (in form complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a 12-month period beginning not later than the first
day of ERP's fiscal quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement.
(i) ERP, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(j) ERP will not, between the date of the applicable Terms
Agreement and the termination of any trading restrictions or the applicable
Closing Time, whichever is later, with respect to the Underwritten Securities
covered thereby, without your prior written consent, offer or sell, grant any
option for the sale of, or enter into any agreement to sell, any debt securities
of ERP with a maturity of more than one year (other than the Underwritten
Securities which are to be sold pursuant to such Terms Agreement), except as may
otherwise be provided in the applicable Terms Agreement.
(k) ERP will take all reasonable action necessary to enable
Standard & Poor's Corporation ("S&P") and Moody's Investors Service, Inc.
("Moody's") to provide their respective credit ratings of any Underwritten
Securities, if applicable.
SECTION 4. PAYMENT OF EXPENSES.
ERP will pay all expenses incident to the performance of its
obligations under the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto, (ii) the printing and filing of these Standard Underwriting Provisions
and the applicable Terms Agreement,, (iii) the preparation, issuance and
delivery of the Underwritten Securities to the Underwriters, (iv) to the extent
applicable, the fees and disbursements of ERP's counsel and accountants, (v) the
qualification of the Underwritten Securities under securities laws and real
estate syndication laws in accordance with the provisions of Section 3(g),
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, and of the Prospectus and any amendments or supplements thereto, (vii)
the printing and delivery to the Underwriters of copies of the Indenture, (viii)
any fees charged by nationally recognized statistical rating
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organizations for the rating of the Underwritten Securities, (ix) the fees
and expenses, if any, incurred with respect to the listing of the
Underwritten Securities on any national securities exchange or quotation
system, (x) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. (including
fees and disbursements of counsel for the Underwriters in connection
therewith), (xi) the fees and expenses of the Trustee, and (xii) the
preparation, issuance and delivery to the Depository Trust Company for credit
to your account of any global note registered in the name of Cede & Co., as
nominee for the Depository Trust Company.
If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(a)(i) or 9(a)(v), ERP
shall reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The several obligations of the Underwriters to purchase
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of ERP herein contained,
to the accuracy of the statements of officers of ERP and EQR made in any
certificate pursuant to the provisions hereof, to the performance by ERP of all
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) At the applicable Closing Time, (i) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, (ii) any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters, (iii) the rating assigned by any nationally
recognized statistical rating organization to any long-term debt securities of
ERP as of the date of the applicable Terms Agreement shall not have been lowered
since such date nor shall any such rating organization have publicly announced
that it has placed any long-term debt securities of ERP on what is commonly
termed a "watch list" for possible downgrading, and (iv) there shall not have
come to your attention any facts that would cause you to believe that the
Prospectus, together with the applicable Prospectus Supplement, at the time it
was required to be delivered to purchasers of the Underwritten Securities,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading. A prospectus containing
information relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424 (or any required post-effective
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amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A), or, if ERP has
elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet shall
have been filed with the Commission in accordance with Rule 424(b)(7).
(b) At the applicable Closing Time, you shall have received:
(1) The favorable opinion, dated as of the applicable
Closing Time, of counsel for ERP, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) ERP is authorized and exists as an
Illinois limited partnership under the Illinois Revised
Uniform Limited Partnership Act, and has the power and
authority to own, lease and operate its properties and conduct
its business as described in the Prospectus; and, to counsel's
knowledge, is duly qualified and in good standing and
authorized to transact business in any jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except where the failure
to be so qualified or in good standing would not have a
Material Adverse Effect.
(ii) Each of ERP's subsidiaries has been
duly formed and is validly existing and in good standing under
the laws of the jurisdiction of its formation, has the power
and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, and, to
counsel's knowledge, is duly qualified and in good standing
and authorized to transact business in any jurisdiction in
which the conduct of its business or its ownership or leasing
of property requires such qualification, except where the
failure to be validly existing, so qualified or in good
standing would not have a Material Adverse Effect; all of the
issued and outstanding shares of capital stock, LLC interests
and partnership interests of each subsidiary have been duly
authorized and validly issued, are fully paid and with respect
to the shares of capital stock, LLC interests and partnership
interests owned by ERP, EQR or another subsidiary, are owned
by ERP or another subsidiary, to such counsel's knowledge,
directly, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except where
any such failure would not have a Material Adverse Effect.
None of the outstanding shares of capital stock, LLC
interests or partnership interests of any subsidiary were
issued in violation of statutory preemptive rights or to
counsel's knowledge, contractual rights of any security holder
of such subsidiary to subscribe for more shares, LLC interests
or partnership interests, except where such violation would
not have a Material Adverse Effect.
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(iii) The Indenture has been duly qualified
under the 1939 Act and has been duly authorized, executed and
delivered by ERP and (assuming due authorization, execution
and delivery by the Trustee) constitutes a valid and binding
obligation of ERP enforceable against ERP in accordance with
its terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws affecting creditors'
rights generally, and (B) the availability of equitable
remedies may be limited by equitable principles of general
applicability, and except that a waiver of rights under any
usury law may be unenforceable.
(iv) The Underwritten Securities have been
duly and validly authorized by all necessary action and, when
executed, authenticated and delivered in accordance with the
Indenture and against payment therefor specified in the
applicable Terms Agreement or the Delayed Delivery Contracts,
if any, will be entitled to the benefits of the Indenture and
will be valid and legally binding obligations of ERP
enforceable against ERP in accordance with their terms, except
as (A) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, or similar laws affecting creditors' rights
generally, and (B) the availability of equitable remedies may
be limited by equitable principles of general applicability,
and except that a waiver of rights under any usury law may be
unenforceable.
(v) Each of the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, has been duly and
validly authorized, executed and delivered by ERP, and ERP has
the power and authority to perform its obligations hereunder
and thereunder.
(vi) The execution and delivery of the
applicable Terms Agreement, the Indenture and the Underwritten
Securities by ERP, and the performance by ERP of its
obligations thereunder, and the consummation of the
transactions contemplated thereby, do not result in a
violation of any provision of the partnership agreement of ERP
or, to counsel's knowledge, any other applicable law,
administrative regulation or administrative or court decree,
and will not, to such counsel's knowledge, conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of ERP or any of its subsidiaries
pursuant to any agreement or other instrument that is binding
upon ERP or any subsidiary, or to which any of their
properties or assets is subject.
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(vii) The Registration Statement is
effective under the 1933 Act and, to counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or threatened
by the Commission.
(viii) The Underwritten Securities and the
Indenture conform in all material respects to the descriptions
thereof contained in the Prospectus.
(ix) No consent, approval, authorization, or
order of, or qualification with, any governmental body or
agency and no consent, approval, or authorization of any
person other than ERP is required for the performance by ERP
of its obligations under the applicable Terms Agreement, the
Indenture or the Underwritten Securities, except such as may
be required under the federal securities laws and the
securities or Blue Sky laws of various states in connection
with the offer and sale of the Underwritten Securities.
(x) To the knowledge of counsel, there are
no (A) legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein,
and all pending legal or governmental proceedings to which ERP
or any of its subsidiaries is a party or to which any of their
property is subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, are, considered in the aggregate,
not material or (B) statutes, regulations, contracts,
indentures, mortgages, loan agreements, notes, leases,
instruments or other documents that are required to be
described in the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as
required.
(xi) None of ERP, EQR or any of their
subsidiaries is required to be registered under the 1940 Act.
(xii) The information (A) in the Prospectus
and applicable Prospectus Supplement under the headings
"Description of Debt Securities," "Underwriting" and, if
applicable, "Federal Income Tax Consequences" and (B) in ERP's
most recent Annual Report on Form 10-K, and ERP's most recent
Quarterly Report on Form 10-Q if applicable, under the heading
"Legal Proceedings," to the extent that it constitutes matters
of law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by such counsel and,
to such counsel's knowledge with respect to paragraph (B)
above, is correct in all material respects.
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(xiii) The Registration Statement and
Prospectus (except for financial statements and schedules
and other financial and statistical data included therein,
or the Statement of Eligibility, as to which such counsel
need not express any opinion), excluding the documents
incorporated by reference therein, as of their respective
effective or issue dates comply as to form in all material
respects with the requirements for registration statements
on Form S-3 under the 1933 Act, the 1939 Act, the 1933 Act
Regulations and the 1939 Act Regulations.
(xiv) To such counsel's knowledge, ERP and
each of its subsidiaries has consents, authorizations,
approvals, orders, certificates and permits of and from, and
has made all declarations and filings with, all federal,
state, local, and other governmental authorities, all
self-regulatory organizations, and all courts and other
tribunals, necessary to own, 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.
(xv) To such counsel's knowledge, except as
described in the Prospectus, there are no outstanding rights,
warrants or options to acquire, or instruments convertible
into or exchangeable for, or agreements or understandings with
respect to the sale or issuance of any shares of capital stock
or partnership interests of or other equity interest in ERP or
any subsidiary of ERP except for multifamily property
acquisition agreements with respect to the sale or issuance of
OP Units which are not material in amount.
(xvi) Each document filed pursuant to the
1934 Act (other than the financial statements, schedules and
other financial and statistical data, as to which no opinion
need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations.
(xvii) ERP has qualified and, based upon its
organization and its proposed method of operation, ERP will
continue to qualify to be treated as a partnership for federal
income tax purposes and not as an association taxable as a
corporation.
(2) The favorable opinion, dated as of the applicable Closing
Time, of counsel for the Underwriters, substantially to the effect specified in
subparagraphs (i) first clause only, (iii) excluding the first clause, (iv), (v)
first clause only, (vii), (xii)(A) and (xiii) of Section 5(b)(1).
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(3) In rendering their opinions required by subsections
(b)(1) and (b)(2) of this Section 5, counsel shall each additionally state
(which shall not constitute an opinion) that no facts have come to the
attention of such counsel which cause them to believe that the Registration
Statement or any post-effective amendment thereto (except for financial
statements and supporting schedules and other financial and statistical
information and data included therein or omitted therefrom, or the Statement
of Eligibility, as to which such counsel need not express any view), at the
time the Registration Statement or any post-effective amendment thereto
(including the filing of ERP's Annual Report on Form 10-K with the
Commission) became effective, or at the date of the applicable Terms
Agreement, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any amendment or
supplement thereto (except as aforesaid) as of the date of the applicable
Terms Agreement or at the applicable Closing Time, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
In giving their opinions required by this Section 5(b), such
counsel, (A) may rely as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for ERP and (B) may rely
as to the qualification and good standing of each of ERP or any of its
subsidiaries to do business in any state or jurisdiction, upon certificates of
appropriate government officials or opinions of counsel in such jurisdictions,
which opinions shall be in form and substance satisfactory to counsel for the
Underwriters. In giving their belief required in Section 5(b)(3), such counsel
may state that their belief is based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments and supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification except as specified.
(c) At the applicable Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the financial condition or in the earnings, assets, business affairs or
business prospects of ERP and its subsidiaries considered as a single
enterprise, whether or not arising in the ordinary course of business; and you
shall have received a certificate of the Chief Executive Officer, the President
or the chief financial or chief accounting officer of EQR, as the general
partner of ERP, dated as of such Closing Time, on behalf of ERP, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 are true and correct with the same
force and effect as though such Closing Time were a Representation Date (iii)
ERP has complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to Closing Time and (iv) no stop order
suspending
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the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission. As used in this SECTION 5(c), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Underwritten
Securities.
(d) At the time of execution of the applicable Terms
Agreement, you shall have received from ERP's independent public accountants, a
letter dated such date, in form and substance satisfactory to you, to the effect
that (i) they are independent accountants with respect to ERP and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations;
(ii) it is their opinion that the consolidated financial statements and
supporting schedules included or incorporated by reference in the Registration
Statement and the Prospectus and covered by their opinions therein comply in
form in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations; (iii) based upon limited procedures set
forth in detail in such letter, and except as otherwise set forth in such
letter, nothing has come to their attention which causes them to believe that at
a specified date not more than five days prior to the date of the applicable
Terms Agreement, there has been any change in the partners' capital of ERP or in
the consolidated long term debt of ERP or any decrease in the net assets of ERP,
as compared with the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus or, during the period from the date of the most recent consolidated
statement of operations included or incorporated by reference in the
Registration Statement and the Prospectus to a specified date not more than five
days prior to the date of the applicable Terms Agreement, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated revenues, or decrease in net income or net income per weighted
average OP Units outstanding of ERP, except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the audit referred
to in their opinions and the limited procedures referred to in clause (iii)
above, they have carried out certain specified procedures with respect to
certain amounts, percentages and financial information which are included in the
Registration Statement and the Prospectus and which are specified by you, and
have found such amounts, percentages and financial information to be in
agreement with relevant accounting, financial and other records of ERP and its
subsidiaries identified in such letter.
(e) At the applicable Closing Time, you shall have received
from ERP's independent public accountants a letter dated as of the applicable
Closing Time to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the "specified
date" referred to shall be a date not more than five days prior to the
applicable Closing Time.
-25-
<PAGE>
(f) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by ERP in connection with the
issuance and sale of the Underwritten Securities as herein contemplated shall
be reasonably satisfactory in form and substance to you and counsel for the
Underwriters.
(g) At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and ERP shall have delivered to you a letter,
dated as of such date, from each such rating organization, or other evidence
satisfactory to you, confirming that the Underwritten Securities have such
ratings. Since the time of execution of such Terms Agreement, there shall not
have occurred a downgrading in the rating assigned to the Underwritten
Securities or any of ERP's other securities by any such rating organization, and
no such rating organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any of ERP's
other securities.
(h) If the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of ERP
contained herein and the statements in any certificates furnished by ERP
hereunder shall be true and correct as of each Date of Delivery, and you shall
have received:
(1) A certificate, dated such Date of Delivery,
of the Chief Executive Officer, the President or the chief financial or chief
accounting officer of EQR, as the general partner of ERP, in their capacities as
such, on behalf of ERP confirming that the certificate delivered at Closing Time
pursuant to Section 5(c) hereof remains true and correct as of such Date of
Delivery.
(2) The favorable opinion of counsel for ERP, in
form and substance satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities and otherwise substantially to
the same effect as the opinions required of them by Section 5(b)(1) and the
belief required by Section 5(b)(3) hereof.
(3) The favorable opinion of counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities and
otherwise to the same effect as the opinion required by Section 5(b)(2) and the
belief required by Section 5(b)(3) hereof.
-26-
<PAGE>
(4) A letter from ERP's independent public accounts,
in form and substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished to you
pursuant to Section 5(d) hereof, except that the "specified date" in the letter
furnished pursuant to this Section 5(h)(4) shall be a date not more than five
days prior to such Date of Delivery.
If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement may be terminated by you by notice to ERP at any time
at or prior to the applicable Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) ERP hereby agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or 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 any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or
supplement thereto), or the omission, or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation or
of any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject
to Section 6(d) below), any such settlement is effected with
the written consent of ERP; and
(iii) against any and all expense whatsoever as
incurred (including, without limitation, the fees and other
charges of counsel
-27-
<PAGE>
chosen by you) 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
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent such loss, liability, claim,
damage or expense arises out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to ERP by any Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) and the
Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless ERP, and each person, if any, who controls ERP within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any trustee,
director, officer, employee or affiliate thereof, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section 6, as incurred; but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon, and in conformity with,
written information furnished to ERP by any Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) and the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability 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 6(a) above, counsel to the indemnified
parties shall be selected by you, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by ERP. An indemnifying party may participate at its own expense in the
defense of any 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 local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
- 28 -
<PAGE>
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 6 or Section 7 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.
(d) 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 6(a)(ii) 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.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 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 benefits received by ERP, on the one hand, and the Underwriters, on the
other hand, from the offering of the Underwritten Securities pursuant to the
applicable Terms 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 ERP, on the one hand, and of the Underwriters, on the other
hand, in connection with the 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 ERP, on the one hand, and
the Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
- 29 -
<PAGE>
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by ERP and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of ERP, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, 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 ERP or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
ERP and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 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 such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of any such 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 7, each person, if any, who
controls an 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 such
Underwriter, and each trustee, each officer of ERP who signed the Registration
Statement, and each person, if any, who controls ERP 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 EQR.
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<PAGE>
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial Underwritten
Securities set forth opposite their respective names in the applicable Terms
Agreement, and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY.
All representations, warranties and agreements included the
applicable Terms Agreement, or included in certificates of officers of ERP or
EQR submitted pursuant thereto, shall remain operative and in full force and
effect, regardless of any termination of the applicable Terms Agreement or
investigation made by or on behalf of any Underwriter or any controlling person,
or by or on behalf of ERP, and shall survive delivery of and payment for the
Underwritten Securities until the obligations relating to all Underwritten
Securities have been fully satisfied in accordance with their terms.
SECTION 9. TERMINATION OF TERMS AGREEMENT.
(a) You may terminate the applicable Terms Agreement, by
notice to ERP, at any time at or prior to the applicable Closing Time if (i)
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any Material Adverse
Change, or (ii) there has occurred any material adverse change in the financial
markets in the United States or any outbreak of hostilities or other calamity or
crisis or escalation of any existing hostilities or any change or development
involving a prospective change in national political, financial or economic
conditions, in each case, the effect of which is such as to make it, in your
judgment, impracticable to market the Underwritten Securities or enforce
contracts for the sale of the Underwritten Securities, or (iii) trading in any
of the securities of ERP or EQR has been suspended by the Commission or any
exchange or any over-the-counter market, or if trading generally on either the
New York Stock Exchange, the American Stock Exchange or in the Nasdaq National
Market has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by such system or by order of the Commission,
NASD, or any other governmental authority, or (iv) a banking moratorium has been
declared by Federal, Illinois or New York authorities, or (v) the rating
assigned by any nationally recognized statistical rating organization to any
long-term debt securities of ERP as of the date of the applicable Terms
Agreement shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any long-term debt
securities of ERP on what is commonly termed a "watch list" for possible
downgrading. As used in this Section 9(a), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Underwritten
Securities.
- 31 -
<PAGE>
(b) In the event of any such termination, (x) the covenants
set forth in Section 3 with respect to any offering of Underwritten Securities
shall remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from ERP pursuant to the applicable Terms Agreement and (y)
the covenant set forth in Section 3(h) hereof, the provisions of Section 4
hereof, the indemnity and contribution agreements set forth in Section 6 and 7
hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the
applicable Closing Time or the relevant Date of Delivery, as the case may be, to
purchase the Underwritten Securities which it or they are obligated to purchase
under the applicable Terms Agreement (the "Defaulted Securities"), then you
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, you
shall not have completed such arrangements within such 24-hour period, then:
(a) If the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of Underwritten Securities
to be purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) If the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the applicable Terms Agreement (or,
with respect to the Underwriters' exercise of any applicable over-allotment
option for the purchase of Option Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase, and ERP to sell,
such Option Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or ERP shall have the
right to postpone the applicable Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
- 32 -
<PAGE>
SECTION 11. NOTICES.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed as set forth in the applicable Terms Agreement; notices to ERP shall be
directed to it at Two North Riverside Plaza, Chicago, Illinois 60606, attention
of Douglas Crocker II.
SECTION 12. PARTIES.
The applicable Terms Agreement shall inure to the benefit of
and be binding upon you and ERP and any Underwriter who becomes a party to such
Terms Agreement, and their respective successors. Nothing expressed or mentioned
in the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of such Terms Agreement or any provision therein
contained. The applicable Terms Agreement and all conditions and provisions
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
The applicable Terms Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified times of day refer
to New York City time.
SECTION 14. COUNTERPARTS.
The applicable Terms Agreement may be executed in one or more
counterparts, and if executed in more than one counterpart the executed
counterparts shall constitute a single instrument.
* * * * *
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<PAGE>
Exhibit A
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
[Title of Securities]
FORM OF TERMS AGREEMENT
Dated: __________ ___, 20__
To: ERP Operating Limited Partnership
Two North Riverside Plaza
Chicago, Illinois 60606
Attention:
Ladies and Gentlemen:
We (the "Representative") understand that ERP Operating
Limited Partnership, an Illinois limited partnership ("ERP"), proposes to issue
and sell $___________ aggregate principal amount of its [Title of Debt
Securities'] (the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters named
below (the "Underwriters") offer to purchase, severally and not jointly, the
respective amounts of Underwritten Securities set forth below opposite their
respective names, and a proportionate share of Option Securities (as defined in
the Standard Underwriting Provisions referred to below) to the extent any are
purchased, at the purchase price set forth below.
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Underwritten Securities
----------- -----------------------
<S> <C>
Total
----------
$
==========
</TABLE>
<PAGE>
The Underwritten Securities shall have the following terms:
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc. ________; Standard & Poor's
Corporation __________.
Interest rate or formula:
Interest payments dates:
Stated maturity date:
Redemption or repayment provisions:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized][not authorized]
[Date of Delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: ____%]
[Initial public offering price: ____%, plus accrued interest, if any, or
amortized original issue discount, if any, from 20__.] Purchase price: ____%,
plus accrued interest, if any, or amortized original issue discount, if any,
from __________, 20__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex
A hereto entitled "ERP Operating Limited Partnership--Debt Securities--Standard
Underwriting Provisions" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreements to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
<PAGE>
Please accept this offer no later than ________ o'clock P.M.
(New York City time) on ___________ ___, 20__ by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours
[NAME OF REPRESENTATIVE]
By:
-----------------------
Acting on behalf of itself
and the other named
Underwriters.
Accepted:
ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential Properties Trust,
General Partner
By:
----------------------------
Name:
Title:
<PAGE>
Exhibit B
ERP OPERATING LIMITED PARTNERSHIP
(an Illinois limited partnership)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_______________ ___, 20__
ERP Operating Limited Partnership
Two North Riverside Plaza
Chicago, Illinois 60606
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from ERP Operating
Limited Partnership ("ERP"), and ERP agrees to sell to the undersigned on
_______________, 20__ (the "Delivery Date"), ___________________ principal
amount of ERP's [insert title of security] (the "Securities"), offered by ERP's
Prospectus dated ______________, 20__, as supplemented by its Prospectus
Supplement dated ________________, 20__, receipt of which is hereby
acknowledged, at a purchase price [____% of the principal amount thereof, plus
accrued interest from ______________, 20__,] to the Delivery Date, and on the
further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to ERP or its order by [certified or
official bank check in New York Clearing House] [same day] funds at the office
of _______________________________, on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to ERP not less
than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) ERP, on or before __________, 20__, shall have
sold to the Underwriters of the Securities (the "Underwriters") such principal
amount of the Securities as is to
<PAGE>
be sold to them pursuant to the Terms Agreement dated _____________, 20__
between ERP and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments for Securities
pursuant to other contracts similar to this contract. The undersigned
represents and warrants to you that its investment in the Securities is not,
as of the date hereof, prohibited under the laws of any jurisdiction to which
the undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, ERP
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinions of counsel for ERP delivered
to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to ERP that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Securities has
been taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by ERP and mailing or delivery of a
copy as provided below, this contract will constitute a valid and binding
agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that ERP will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of $______
and that the acceptance of any Delayed Delivery Contract is in ERP's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this contract is acceptable to ERP, it is requested that
ERP sign the form of acceptance on a copy hereof and mail or deliver a signed
copy hereof to the undersigned at its address set forth below. This will become
a binding contract between ERP and the undersigned when such copy is so mailed
or delivered.
<PAGE>
This Agreement shall be governed by the laws of the State of
New York.
Yours very truly,
----------------------------
(Name of Purchaser)
By:
-------------------------
(Title)
-------------------------
-------------------------
(Address)
Accepted as of the date first above written.
ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential Properties Trust,
General Partner
By:
----------------------------------
Name:
Title:
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the
Purchase with whom details of delivery on the Delivery Date may be discussed are
as follows: (Please print.)
<TABLE>
<CAPTION>
Telephone No.
Name (including Area Code)
---- ---------------------
<S> <C>
</TABLE>
