-----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, B8wyh7WdX6cLwC5LhUyS+4yOElml/KLLFO+GLXO1Cff03Krd751TNwsY0VVW+pJO xvZExT8vi7DYKUUcuNSXQA== 0000950137-98-001779.txt : 19980430 0000950137-98-001779.hdr.sgml : 19980430 ACCESSION NUMBER: 0000950137-98-001779 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19980423 ITEM INFORMATION: FILED AS OF DATE: 19980429 SROS: NONE 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: 98604226 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 1 As filed with the Securities and Exchange Commission on April 29, 1998 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): APRIL 23, 1998 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) 2 ITEM 7. Financial Statements, Pro forma Financial Information and Exhibits
Exhibit Number Exhibit - ------- ------- 1 Form of Terms Agreement, dated April 23, 1998, which is being filed pursuant to Regulation S-K, Item 601(b)(1) as an exhibit to the Registrant's registration statement on Form S-3, file no. 333-45533, 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, which Terms Agreement incorporates the terms and provisions of 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, dated May 16, 1997, which was 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 in registration statement no. 333-45533, 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 as Exhibit A, which are being filed pursuant to Regulation 601(b)(5) as an exhibit to the Registrant's registration statement on Form S-3, file no. 333-45533, under the Securities Act of 1933, as amended, and which, as this Form 8-K filing is incorporated by reference in such registration statement, are set forth in full in such registration statement.
SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. EQUITY RESIDENTIAL PROPERTIES TRUST Date: April 29, 1998 By: /s/ Bruce C. Strohm ------------------------------------------ Bruce C. Strohm, Secretary, Executive Vice President and General Counsel
EX-1 2 FORM OF TERMS AGREEMENT 1 Exhibit 1 EQUITY RESIDENTIAL PROPERTIES TRUST (a Maryland real estate investment trust) Common Shares of Beneficial Interest (Par Value $.01 Per Share) TERMS AGREEMENT Dated: April 23, 1998 To: Equity Residential Properties Trust ERP Operating Limited Partnership Two North Riverside Plaza Chicago, Illinois 60606 Ladies and Gentlemen: We understand that Equity Residential Properties Trust ("EQR" or the "Company") proposes to issue and sell Common Shares of Beneficial Interest (the "Common Shares" or "Underwritten Securities"). Subject to the terms and conditions set forth or incorporated by reference herein, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter") offers to purchase the number of Underwritten Securities (as defined in the Standard Underwriting Provisions referred to below) set forth below at the purchase price per Common Share set forth below. The Company has been advised that the Underwriter intends to deposit the Underwritten Securities with the trustee of the Equity Investor Fund Cohen & Steers Realty Majors Portfolio (A Unit Investment Trust) (the "Trust"), a registered unit investment trust under the Investment Company Act of 1940, as amended, to which the Underwriter acts as sponsor and depositor, in exchange for units of the Trust as soon after the execution and delivery of this Terms Agreement as in the judgment of the Underwriter is advisable. The Underwritten Securities shall have the following terms: TITLE OF SECURITIES: Common Shares NUMBER OF UNDERWRITTEN SECURITIES: 946,565 Common Shares PAR VALUE: $.01 per Common Share CLOSING PRICE PER COMMON SHARE: $49.125 PURCHASE PRICE PER COMMON SHARE: $46.5459 NUMBER OF OPTION SECURITIES, IF ANY, THAT MAY BE PURCHASED BY THE UNDERWRITER: None DELAYED DELIVERY CONTRACTS: Not authorized ADDITIONAL CO-MANAGERS, IF ANY: None OTHER TERMS: Solely for the purpose of this offering, the Standard Underwriting Provisions are modified as follows: -2- 2 Section 1(a)(vi)(A) is restated to state as follows: "there has been no material adverse change in the condition, financial or otherwise, or in the earnings, assets, business prospects or business affairs of EQR and its subsidiaries, considered as a single enterprise, whether or not arising in the ordinary course of business (a "Material Adverse Change")," Section 1(a)(viii) is restated in its entirety as follows: "EQR is duly qualified or registered as a foreign organization to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by the nature of its business or its ownership or leasing of property, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business prospects or business affairs of EQR and its subsidiaries considered as a single enterprise (a "Material Adverse Effect")." Section 1(a)(xv) is restated as follows: "All of the issued and outstanding shares of beneficial interest or capital stock and partnership interests, as the case may be, of each subsidiary have been validly issued and fully paid and are owned by EQR, and/or a subsidiary as described in the Registration Statement, and/or certain affiliated entities, in each case free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. EQR 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 earnings, assets, business prospects or business affairs of EQR and its subsidiaries considered as a single enterprise." The words "impracticable to market the Underwritten Securities or enforce contracts for the sale of the Underwritten Securities" contained in Section 9(a) therein are replaced by the words "impracticable or inadvisable to (x) proceed with the public offering or the delivery of the Underwritten Securities on the terms and in the manner contemplated in the Prospectus, or (y) commence or continue the offering of the units of the Trust to the public or enforce contracts for the sale of the units of the Trust." Terms defined in such document are used herein as therein defined. The Company shall not be bound by the covenant contained in Section 3(j) of the Standard Underwriting Provisions. CLOSING DATE AND LOCATION: April 29, 1998 Rosenberg & Liebentritt, P.C., Two North Riverside Plaza, Suite 1600, 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," dated May 16, 1997 (the "Standard Underwriting Provisions"), 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. -3- 3 Please accept this offer no later than 4:30 p.m. (New York City time) on April 23, 1998 by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us. Very truly yours, MERRILL LYNCH & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /s/ John C. Brady --------------------------------------- Name: John C. Brady Title: Managing Director Accepted: By: EQUITY RESIDENTIAL PROPERTIES TRUST, for itself and as the general partner of ERP Operating Limited Partnership By: /s/ Bruce C. Strohm ------------------------------------ Name: Bruce C. Strohm Title: Executive Vice President, Secretary and General Counsel EX-5 3 OPINION OF ROSENBERG & LIEBENTRITT 1 Exhibit 5 [Letterhead of Rosenberg & Liebentritt, P.C.] April 29, 1998 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: We are acting as counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Company"), in connection with its registration statement on Form S-3 (SEC File No. 333-45533) (the "Registration Statement") previously declared effective by the Securities and Exchange Commission relating to the proposed public offering of up to $1,000,000,000 in aggregate amount of its (i) common shares of beneficial interest, $.01 par value per share ("Common Shares") and one or more series of its (ii) preferred shares of beneficial interest, $.01 par value per share (the "Preferred Shares") and (iii) 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 946,565 Common Shares (the "Shares") as described in a Prospectus Supplement of the Company, dated April 23, 1998 (the "Prospectus Supplement"). This opinion letter is furnished to you at your request to enable the Company to continue to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the Registration Statement. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Second Amended and Restated Declaration of Trust, as amended, of the Company (the "Declaration of Trust"), as certified by the Maryland State Department of Assessments and Taxation on March 27, 1998 and by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 2 3. The Second Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 4. Resolutions of the Board of Trustees of the Company adopted on June 26, 1997 and January 14, 1998, relating to the filing of the Registration Statement and related matters, and on November 14, 1997, and of the Pricing Committee of the Board of Trustees on April 23, 1998, relating to the offerings of the Shares, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 5. An executed copy of the Terms Agreement, dated April 23, 1998, among the Company, ERP Operating Limited Partnership (the "Operating Partnership") and Merrill Lynch, Pierce, Fenner & Smith Incorporated, which incorporates therein the terms and provisions of the Company's Standard Underwriting Provisions, dated May 16, 1997 (collectively, the "Purchase Agreement"). In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as certified, telecopied, photostatic, or reproduced copies. This opinion letter is given, and all statements herein are made, in the context of the foregoing. We call your attention to the fact that our firm only requires lawyers to be qualified to practice law in the State of Illinois and, in rendering the foregoing opinions, we express no opinion with respect to any laws relevant to this opinion other than the laws and regulations identified herein. 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, as of the date hereof, following issuance of the Shares pursuant to the terms of the Purchase Agreement and receipt by the Company of the consideration for the Shares specified in the resolutions of the Board of Trustees and the Pricing Committee thereof referred to above, the Shares will be validly issued, fully paid and nonassessable under Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland. 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 on the date of this opinion letter, which Form 8-K will be incorporated by reference into the Registration Statement. This opinion letter should not be quoted in whole or in part or otherwise be referred to, nor filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. 3 We hereby consent (i) to be named in the Registration Statement, and in the Prospectus, as attorneys who will pass upon the legality of the Securities to be sold thereunder and (ii) to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, ROSENBERG & LIEBENTRITT, P.C. By: /s/ William C. Hermann ---------------------- Vice President 4 Exhibit A [Letterhead of Hogan & Hartson L.L.P.] April 29, 1998 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 (No. 333-45533) (the "Registration Statement") previously declared effective by the Securities and Exchange Commission relating to the proposed public offering of securities of the Company that 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 issuance and sale of 946,565 common shares of beneficial interest, $.01 par value as described in a Prospectus Supplement dated April 23, 1998 (the "Merrill Lynch Shares"). This opinion letter is furnished to you at your request to enable the Company to continue to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the Registration Statement. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Second Amended and Restated Declaration of Trust, as amended, of the Company (the "Declaration of Trust"), as certified by the Maryland State Department of Assessments and Taxation on March 27, 1998 and the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 3. The Second Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 5 4. Resolutions of the Board of Trustees of the Company adopted on June 26,1997, November 14, 1997 and January 14, 1998, relating to the filing of the Registration Statement and related matters, and by the Pricing Committee of the Board of Trustees on April 23, 1998, relating to the offering of the Merrill Lynch Shares, as certified by the Secretary of theCompany on the date hereof as then being complete, accurate and in effect. 5. An executed copy of the Terms Agreement (the "Terms Agreement") (which incorporates by reference the Company's Standard Underwriting Provisions dated May 16, 1997), dated April 23, 1998, between the Company, ERP Operating Limited Partnership ("ERP"), an Illinois limited partnership, and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated. 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). 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 Corporations 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 following issuance of the Merrill Lynch Shares pursuant to the terms of the Terms Agreement and receipt by the Company of the consideration for the Merrill Lynch Shares specified in the resolutions of the Board of Trustees and the Pricing Committee referred to above, the Merrill Lynch Shares will be 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 on the date of this opinion letter, which Form 8-K will be incorporated by reference into the Registration Statement. This opinion letter should not be quoted in whole or in part or otherwise be referred to, nor filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. 6 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, /s/ Hogan & Hartson L.L.P. HOGAN & HARTSON L.L.P.
-----END PRIVACY-ENHANCED MESSAGE-----