-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MGgfDSohgSGgCmiIXOkG71S70iFjO06fDB53Xn63tf3ZZWqnZvuLZK/EkLRXlazV 7Lhs6rZcjbfnM/zg85VZHA== 0000950131-97-005756.txt : 19970924 0000950131-97-005756.hdr.sgml : 19970924 ACCESSION NUMBER: 0000950131-97-005756 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19970918 ITEM INFORMATION: FILED AS OF DATE: 19970923 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: EQUITY RESIDENTIAL PROPERTIES TRUST CENTRAL INDEX KEY: 0000906107 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 363877868 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-12252 FILM NUMBER: 97684314 BUSINESS ADDRESS: STREET 1: TWO N RIVERSIDE PLZ STREET 2: STE 400 CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3124661300 MAIL ADDRESS: STREET 1: TWO N RIVERSIDE PLAZA STREET 2: SUITE 450 CITY: CHICAGO STATE: IL ZIP: 60606 8-K 1 FORM 8-K As filed with the Securities and Exchange Commission on September 23, 1997 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): September 18, 1997 EQUITY RESIDENTIAL PROPERTIES TRUST (Exact Name of Registrant as Specified in Charter) Maryland 1-12252 13-3675988 (State or other jurisdiction (Commission (I.R.S. Employer of incorporation or organization) File Number) Identification No.) Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (312) 474-1300 Not applicable (Former Name or Former Address, if Changed Since Last Report) ================================================================================ ITEM 7. Financial Statements, Pro forma Financial Information and Exhibits Exhibit Number Exhibit - ------ ------- 1 Terms Agreement dated September 18, 1997, which is being filed pursuant to Regulation S-K, Item 601(b)(1) as an exhibit to the Registrant's registration statement on Form S-3, file no. 333- 32183, under the Securities Act of 1933, as amended, and which, as this Form 8-K filing is incorporated by reference in such registration statement, is set forth in full in such registration statement, and which incorporates by reference the terms of the Registrant's Standard Underwriting Provisions, dated May 16, 1997, which has been previously filed as Exhibit 1 to the Registrant's registration statement on Form S-3, file no. 333-27153 under the Securities Act of 1933, as amended, and is incorporated herein by reference thereto and which, as this Form 8-K filing is incorporated by reference into the Registrant's registration statement on Form S-3, file no. 333-32183, is set forth in full in such registration statement. 5 Opinion of Rosenberg & Liebentritt, P.C., with an opinion of Hogan & Hartson L.L.P. attached thereto Exhibit A, which is being filed pursuant to Regulation 601(b)(5) as an exhibit to the Registrant's registration statement on Form S-3, file no. 333-32183, under the Securities Act of 1933, as amended, and which, as this Form 8-K filing is incorporated by reference in such registration statement, is set forth in full in such registration statement. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. EQUITY RESIDENTIAL PROPERTIES TRUST Date: September 23, 1997 By: /s/ Bruce C. Strohm ----------------------------- Bruce C. Strohm, Secretary, Executive Vice President and General Counsel 3 EX-1 2 TERMS AGREEMENT EQUITY RESIDENTIAL PROPERTIES TRUST (a Maryland real estate investment trust) Depositary Shares Each Representing 1/10 of a 7 1/4% Series G Convertible Cumulative Preferred Share of Beneficial Interest (Liquidation Preference Equivalent to $25.00 Per Depositary Share) TERMS AGREEMENT Dated: September 18, 1997 To: Equity Residential Properties Trust ERP Operating Limited Partnership Two North Riverside Plaza Chicago, Illinois 60606 Ladies and Gentlemen: We (the "Representatives") understand that Equity Residential Properties Trust ("EQR" or the "Company") proposes to issue and sell interests in 7 1/4% Series G Convertible Cumulative Preferred Shares of Beneficial Interest ("Series G Preferred Shares") in the form of depositary shares (the "Depositary Shares") represented by depositary receipts (the "Depositary Receipts") (the Depositary Shares and Depositary Receipts collectively hereinafter referred to as the "Underwritten Securities"). Subject to the terms and conditions set forth or incorporated by reference herein, the underwriters named below (the "Underwriters") offer to purchase, severally and not jointly, the respective numbers of Initial Underwritten Securities (as defined in the Underwriting Agreement referred to below) set forth below opposite their respective names, and a proportionate share of Option Securities (as defined in the Underwriting Agreement referred to below) to the extent any are purchased, at the purchase price per Depositary Share set forth below.
Number of Shares of Initial Underwriter Underwritten Securities ----------- --------------------------- Merrill Lynch, Pierce, Fenner & Smith Incorporated 6,600,000 BT Alex. Brown Incorporated 2,750,000 Smith Barney Inc. 1,650,000 ---------- Total 11,000,000 ==========
The Underwritten Securities shall have the following terms: Depositary Shares Title of Securities: Depositary Shares Number of Shares: 11,000,000 Fractional amount of Preferred Shares represented by each Depositary Share: 1/10 of a Series G Preferred Share deposited with BankBoston N.A., as Depositary, entitling the holder to all proportional rights and preferences of the Series G Preferred Shares (including distribution, voting, redemption and liquidation rights and preferences). Current Ratings: Moody's "Baa1," S&P "BBB," and Duff & Phelps "BBB." Distribution Rate: $1.8125 per annum, (representing 7 1/4% of the public offering price per Depositary Share) payable quarterly on or about the 15th day of January, April, July and October of each year, commencing on October 15, 1997. Par Value: $.01 per Series G Preferred Share. Liquidation Preference: $250 per Series G Preferred Share (equivalent to $25 per Depositary Share), plus accrued and unpaid distributions. Ranking: With respect to the payment of distributions and amounts upon liquidation, the Series G Preferred Shares will rank pari passu with any other preferred shares and will rank senior to the Common Shares and any other shares of beneficial interest of the Company ranking junior to the Series G Preferred Shares. Public offering price per Depositary Share: $25, plus accumulated distributions, if any, from September 24, 1997. Purchase price per Depositary Share: $24.00, plus accumulated distributions, if any, from September 24, 1997. Conversion provisions: Depositary Shares representing Series G Preferred Shares are convertible at any time at the option of the holders thereof into common shares of beneficial interest of the Company, par value $.01 per share (the "Common Shares"), at a conversion price of $58.58 per Common Share (equivalent to a conversion rate of 0.4268 Common Shares for each Depositary Share), subject to adjustment in certain circumstances as described in the Prospectus Supplement under "Description of Series G Preferred Shares and Depositary Shares -- Conversion Price Adjustments." Redemption provisions: The Depositary Shares representing the Series G Preferred Shares are not redeemable prior to September 15, 2002. On and after September 15, 2002, the Series G Preferred Shares represented by Depositary Shares may be redeemed at the option of the Company, in whole or in part, initially at $25.90625 per Depositary Shares and thereafter at prices declining to $25.00 per Depositary Share on and after September 15, 2007, plus in each case accrued and unpaid distributions, if any, to the redemption date. The Series G Preferred Shares represented by Depositary Shares have no stated maturity date and will not be entitled to the benefit of any sinking fund. However, the Company may redeem Series G Preferred Shares in certain circumstances relating to the maintenance of its ability to qualify as a REIT for Federal income tax purposes. Number of Option Securities, if any, that may be purchased by the Underwriters: 1,650,000. Delayed Delivery Contracts: not authorized Additional co-managers, if any: BT Alex. Brown Incorporated and Smith Barney Inc. Other terms: Voting Rights: If distributions on the Series G Preferred Shares are in arrears for six or more quarterly periods, holders of the Depositary Shares, voting -2- separately as a class with all other series of preferred shares upon which like voting rights have been conferred and are exercisable, will be entitled to vote for the election of two additional Trustees to serve on the Board of Trustees of the Company until all distribution arrearages are eliminated. Closing date and location: September 24, 1997, Rosenberg & Liebentritt, P.C., Two North Riverside Plaza, Suite 1515, Chicago, Illinois 60606. All the provisions contained in the document attached as Annex A hereto entitled "Equity Residential Properties Trust (a Maryland real estate investment trust) -- Common Shares of Beneficial Interest, Preferred Shares of Beneficial Interest and Depositary Shares -- Standard Underwriting Provisions" (the "Underwriting Agreement") are hereby incorporated by reference in their entirety herein and shall be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Terms defined in such document are used herein as therein defined. -3- Please accept this offer no later than 4:30 P.M. (New York City time) on September 18, 1997 by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us. Very truly yours, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED BT ALEX. BROWN INCORPORATED SMITH BARNEY INC. For themselves and as Representatives of the several Underwriters named above By: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /S/ Michael Berman ----------------------------------- Name: Michael Berman Title: Director Accepted: By: EQUITY RESIDENTIAL PROPERTIES TRUST, for itself and as the general partner of ERP Operating Limited Partnership By: /S/ David J. Neithercut ------------------------------------ Name: David J. Neithercut Title: Executive Vice President and Chief Financial Officer -4- EX-5 3 OPINION OF ROSENBERG & LIEBENTRITT, P.C. [ROSENBERG & LIEBENTRITT, PC LETTERHEAD] September 23, 1997 Equity Residential Properties Trust Board of Trustees Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: We are acting as counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Company"), in connection with its registration statement on Form S-3, as amended (the "Registration Statement"), filed with the Securities and Exchange Commission relating to the proposed public offering of up to $750,000,000 in aggregate amount of its common shares of beneficial interest, $0.01 par value ("Common Shares"), and one or more series of its (i) preferred shares of beneficial interest, $0.01 par value (the "Preferred Shares"), and (ii) depositary shares representing fractional interests in Preferred Shares (the "Depositary Shares" and, together with the Preferred Shares and the Common Shares, the "Securities"), including the proposed public offering of up to 12,650,000 of the Company's Depositary Shares, each representing a 1/10 fractional interest in a share of the Company's 7 1/4% Series G Convertible Cumulative Preferred Shares of Beneficial Interest, par value $0.01 per share (liquidation preference $250.00 per share) (liquidation preference equivalent to $25.00 per Depositary Share) (the "Series G Preferred Shares"), all of which Depositary Shares are to be sold by the Company as set forth in the prospectus, dated September 11, 1997, which forms a part of the Registration Statement (the "Prospectus"), and as set forth in the Prospectus Supplement, dated September 18, 1997, relating to the Depositary Shares representing the Series G Preferred Shares (the "Prospectus Supplement"). This opinion letter is furnished to you at your request to enable the Company to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S) 229.601(b)(b), in connection with the Registration Statement. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Second Amended and Restated Declaration of Trust, as amended and supplemented, of the Company (the "Declaration of Trust"), as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. Equity Residential Properties Trust Board of Trustees September 23, 1997 Page 2 3. The Articles Supplementary to the Declaration of Trust relating to the Series G Preferred Shares as filed with the Maryland State Department of Assessments and Taxation ( the "SDAT") on September 22, 1997 ("Articles Supplementary"). 4. The Second Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 5. Executed copies of the Terms Agreement dated September 18, 1997 among the Company, ERP Operating Limited Partnership, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner and Smith Incorporated, BT Alex. Brown Incorporated and Smith Barney Inc., including the Standard Underwriting Provisions which are incorporated therein (collectively, the "Underwriting Agreement"). 6. The form of Deposit Agreement dated as of September 24, 1997 (the "Deposit Agreement") between the Company and The First National Bank of Boston (the "Depositary"). 7. Resolutions of the Board of Trustees of the Company adopted on June 26, 1997 and September 12, 1997 relating to the filing of the Registration Statement and the issuance of the Series G Preferred Shares and Depositary Shares and resolutions adopted by the Pricing Committee of the Board of Trustees of the Company on September 18, 1997 relating to the designation and issuance of the Series G Preferred Shares and the issuance and sale of the Depositary Shares underlying the Series G Preferred Shares and arrangements in connection therewith, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. We have not, except as specifically identified above, made any independent review or investigation of factual or other matters, including the organization, existence, good standing, assets, business or affairs of the Company. In our examination of the aforesaid documents, we have assumed the genuiness of all signatures, the legal capacity of natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). We also have assumed the accuracy, completeness and authenticity of the foregoing certifications of trust officers and statements of fact, on which we are relying, and have made no independent investigations thereof. This opinion letter is given, and all statements herein are made, in the context of the foregoing. Equity Residential Properties Trust Board of Trustees September 23, 1997 Page 3 We call your attention to the fact that our firm only requires lawyers to be qualified to practice law in the State of Illinois and, in rendering the foregoing opinions, we express no opinion with respect to any laws relevant to this opinion other than the laws and regulations identified herein. With respect to the opinions below that relate to the laws of the State of Maryland, with your consent, we rely solely on the opinion of Hogan & Hartson L.L.P., a copy of which is attached hereto as Exhibit A. Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) execution and delivery of the depositary receipts representing the Depositary Shares in the form contemplated and authorized by the Deposit Agreement, (ii) issuance of the Series G Preferred Shares pursuant to the terms of the Deposit Agreement and the Underwriting Agreement, (iii) receipt by the Company of the consideration for the Depositary Shares representing the Series G Preferred Shares specified in the resolutions of the Board of Trustees and the Pricing Committee referred to above and the Underwriting Agreement, and (iv) due execution and filing of the Articles Supplementary with the Maryland State Department of Assessments and Taxation, (a) the Series G Preferred Shares will be validly issued, fully paid and nonassessable under the Maryland REIT Statute, and the Depositary Shares will represent valid interests therein, and (b) the Common Shares issuable upon conversion of the Series G Preferred Shares have been duly and validly authorized and reserved for issuance upon such conversion by the Company, and such Common Shares, when issued upon such conversion, will be duly and validly issued, fully paid and nonassessable under the Maryland REIT Statute. To the extent that the obligations of the Company and the rights of any holder of the Depositary Shares under the Deposit Agreement may be dependent upon such matters, we assume for purposes of this opinion that the applicable Depositary is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that the Depositary is duly qualified to engage in the activities contemplated by the Deposit Agreement; that the Deposit Agreement has been duly authorized, executed and delivered by the Depositary and constitutes a valid and binding obligation of the Depositary enforceable against the Depositary in accordance with its terms; that the Depositary is in compliance, with respect to acting as a Depositary under the Deposit Agreement, with all applicable laws and regulations; and that the Depositary has the requisite organizational and legal power and authority to perform its obligations under the Deposit Agreement. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely in connection with the filing by the Company of a Current Report on Form 8-K (the "Form 8-K") on the date of this opinion letter, which Form 8-K will be incorporated by reference into the Registration Statement. We hereby consent to the filing of this opinion letter with the Form 8-K. This opinion letter should not be quoted in whole or in part or otherwise be referred to, nor filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. Equity Residential Properties Trust Board of Trustees Septembe 23, 1997 Page 4 We hereby consent to be named in the Registration Statement, and in the Prospectus, as attorneys who will pass upon the legality of the Securities to be sold thereunder. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, ROSENBERG & LIEBENTRITT, P.C. By: /s/ Ruth Pinkham Haring ----------------------- Vice President [HOGAN & HARTSON L.L.P. LETTERHEAD] September 23, 1997 Rosenberg & Liebentritt, P.C. Two North Riverside Plaza Suite 1600 Chicago, Illinois 60606 Ladies and Gentlemen: We are acting as special Maryland counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Company"), in connection with its registration statement on Form S-3, as amended (the "Registration Statement"), previously declared effective by the Securities and Exchange Commission relating to the proposed public offering of up to $1,025,832,122 in aggregate amount of its common shares of beneficial interest, $.01 par value ("Common Shares") and one or more series of its (i) preferred shares of beneficial interest, $.01 par value (the "Preferred Shares"), and (ii) depositary shares representing fractional interests in Preferred Shares (the "Depositary Shares" and, together with the Preferred Shares and Common Shares, the "Securities"), all of which Securities may be offered and sold by the Company from time to time as set forth in the prospectus which forms a part of the Registration Statement (the "Prospectus"), and as to be set forth in one or more supplements to the Prospectus (each, a "Prospectus Supplement"). This opinion letter is rendered in connection with the proposed public offering of up to 11,000,000 of the Company's Depositary Shares (the "Depositary Shares"), each representing a 1/10 fractional interest in a share of the Company's 7 1/4% Series G Convertible Cumulative Preferred Shares of Beneficial Interest, par value $.01 per share (liquidation preference $250.00 per share) (the "Series G Preferred Shares"), all of which Depositary Shares are to be sold by the Company. This opinion letter is furnished to you at the Company's request to enable the Company to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S) 229.601(b)(5), in connection with the Registration Statement. Rosenberg & Liebentritt, P.C. September 23, 1997 Page 2 For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Second Amended and Restated Declaration of Trust, as amended, of the Company (the "Declaration of Trust"), as certified by the Maryland State Department of Assessments and Taxation (the "SDAT") on September 19, 1997 and the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 3. The Articles Supplementary to the Declaration of Trust relating to the Series G Preferred Shares as filed with the SDAT on September 22, 1997 ("Articles Supplementary"). 4. The Second Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 5. Copy of the Standard Underwriting Provisions dated May 16, 1997 of the Company and executed copies of the Terms Agreement dated September 18, 1997 among the Company, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner and Smith Incorporated, BT Alex. Brown Incorporated and Smith Barney Inc. (collectively, the "Underwriting Agreement"). 6. The form of Deposit Agreement for the Series G Preferred Shares between the Company and BankBoston, N.A. (the "Deposit Agreement"). 7. Resolutions of the Board of Trustees of the Company adopted on June 26, 1997 and September 12, 1997, relating to the filing of the Registration Statement and the issuance of the Series G Preferred Shares and the Depositary Shares and resolutions adopted by the Pricing Committee of the Board of Trustees on September 18, 1997 relating to the designation and issuance of the Series G Preferred Shares and the issuance and sale of the Depositary Shares underlying the Series G Preferred Shares and arrangements in connection therewith, as certified by the Rosenberg & Liebentritt, P.C. September 23, 1997 Page 3 Secretary of the Company on the date hereof as then being complete, accurate and in effect. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). We also have assumed the accuracy, completeness and authenticity of the foregoing certifications of trust officers and statements of fact, on which we are relying, and have made no independent investigatons thereof. This opinion letter is given, and all statements herein are made, in the context of the foregoing. This opinion letter is based as to matters of law solely on Title 8 of the Corporation and Associations Article of the Annotated Code of Maryland (the "Maryland REIT Statute"). We express no opinion herein as to any other laws, statutes, regulations, or ordinances. Based upon, subject to and limited by the foregoing, we are of the opinion that: (a) Following issuance of the Series G Preferred Shares underlying the Depositary Shares pursuant to the terms of the Underwriting Agreement and receipt by the Company of the consideration for the Depositary Shares representing the Series G Preferred Shares specified in the resolutions of the Board of Trustees and the Pricing Committee referred to above, the Series G Preferred Shares will be validly issued, fully paid and nonassessable under the Maryland REIT Statute. (b) The Common Shares issuable upon conversion of the Series G Preferred Shares have been duly and validly authorized and reserved for issuance upon such conversion by the Company, and such Common Shares, when issued upon such conversion, will be duly and validly issued, fully paid and nonassessable under the Maryland REIT Statute. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely for your use in connection with the filing by the Company of a Current Report on Form 8-K (the "Form 8-K") on the date of this opinion letter, which Form 8-K will be incorporated by reference into the Registration Statement. We hereby consent to the filing of this opinion letter with the Form 8-K. This Rosenberg & Liebentritt, P.C. September 23, 1997 Page 4 opinion letter should not be quoted in whole or in part or otherwise be referred to, nor filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. We hereby consent to the reference to this firm under the caption "Legal Matters" in the prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, HOGAN & HARTSON L.L.P. -----END PRIVACY-ENHANCED MESSAGE-----