-----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, LsHqhO6hDrAu8H60gHMn26za/WCdL4HVzay+MAIa/Wk2GPK5dqls5MiSFcmYednd 61HmiKysQKzPxpHdZ93JEg== 0000920522-98-000005.txt : 19980424 0000920522-98-000005.hdr.sgml : 19980424 ACCESSION NUMBER: 0000920522-98-000005 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 1 CONFORMED PERIOD OF REPORT: 19980423 ITEM INFORMATION: FILED AS OF DATE: 19980423 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ESSEX PROPERTY TRUST INC CENTRAL INDEX KEY: 0000920522 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 770369576 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-13106 FILM NUMBER: 98599191 BUSINESS ADDRESS: STREET 1: 925 EAST MEADOW DRIVE CITY: PALO ALTO STATE: CA ZIP: 94303 BUSINESS PHONE: 6504943700 MAIL ADDRESS: STREET 1: 925 EAST MEADOW DRIVE CITY: PALO ALTO STATE: CA ZIP: 94303 8-K 1 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 (April 20,1998) ESSEX PROPERTY TRUST, INC. (Exact name of Registrant as Specified in its Charter) Maryland (State or Other Jurisdiction of Incorporation) 1-13106 (Commission File Number) 77-0369576 (IRS Employer Identification No.) 925 E. Meadow Drive Palo Alto, CA 94303 (650) 494-3700 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) Item 5. OTHER EVENTS. On April 20, 1998, Essex Portfolio, L.P., a California limited partnership (the "Operating Partnership"), as to which Essex Property Trust, Inc., a Maryland corporation (the "Company") is the general partner, completed the private placement of 400,000 units of 7.875% Series B Cumulative Redeemable Preferred Units (the "Series B Preferred Units"), representing a limited partnership interest in the Operating Partnership, to an institutional investor in return for a contribution to the Operating Partnership of $20 million. The sale of 400,000 Series B Preferred Units was on substantially the same terms as the sale by the Operating Partnership of 1.2 million Series B Preferred Units in February 1998 to the same institutional investor. The Series B Preferred Units will become exchangeable, on a one for one basis, in whole or in part at any time on or after February 6, 2008 (or earlier under certain circumstances) for shares of the Company's 7.875% Series B Cumulative Redeemable Preferred Stock, par value $.0001 per share (the "Series B Preferred Stock"). Pursuant to the terms of a registration rights agreement, the holders of Series B Preferred Stock will have certain rights to cause the Company to register such shares of Series B Preferred Stock. On February 10, 1998, the Company filed Articles Supplementary reclassifying 2,000,000 shares of its Common Stock, par value $.0001 per share, as 2,000,000 shares of Series B Preferred Stock and setting forth the rights, preferences and privileges of the Series B Preferred Stock. The Operating Partnership plans to use the proceeds from this private placement to repay indebtedness, to fund acquisition and development activities and for general partnership purposes. 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. ESSEX PROPERTY TRUST, INC. April 23, 1998 By: /s/ Mark J. Mikl -------------------------- Mark J. Mikl Controller EXHIBIT INDEX Exhibit Description - ---------------- --------------------------------------------------------- 3.1 Articles Supplementary reclassifying 2,000,000 shares of Common Stock as 2,000,000 shares of 7.875% Series B Cumulative Redeemable Stock (incorporated by reference to Exhibit 3.1 to the Company's Current Report on Form 8-K, filed March 3, 1998). 10.1 Second Amendment to First Amended and Restated Agreement of Limited Partnership of Essex Portfolio, L.P., dated April 20, 1998. 99.1 Press Release. Exhibit 10.1 SECOND AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ESSEX PORTFOLIO, L.P. Dated as of April 20, 1998 This Second Amendment to the First Amended and Restated Agreement of Limited Partnership of Essex Portolio, L.P. dated as of the date shown above (the "Amendment"), is executed by Essex Property Trust, Inc. a Maryland Corporation (the "Company"), as the General Partner and on behalf of the existing Limited Partners of Essex Portfolio, L.P. (the "Partnership") and Belair Capital Fund LLC, a Massachusetts limited liability company (the Contributor"). RECITALS WHEREAS, the Partnership was formed pursuant to the First Amended and Restated Agreement of Limited Partnership of Essex Portfolio, L.P. dated September 30, 1997, which has been amended by the First Amendment to First Amended and Restated Agreement of Limited Partnership, dated February 6, 1998 (collectively referred to herein as the "Partnership Agreement"); WHEREAS, on February 6, 1998, Contributor made a Capital Contribution of $60,000,000.00, in cash, to the Partnership in exchange for which Contributor received an aggregate of 1,200,000 of 7.875% Series B Cumulative Redeemable Preferred Units of limited partnership interests in the Partnership with rights, preferences, exchange and other rights, voting powers and restrictions, limitations as to distributions, qualifications and terms and condition as set forth in Exhibit N of the Partnership Agreement (the "Series B Preferred Units"); WHEREAS, on the date hereof, Contributor has made an additional Capital Contribution of $20,000,000.00, in cash, to the Partnership in exchange for an aggregate of 400,000 Series B Preferred Units; and WHEREAS, pursuant to the authority granted to the General Partner under the Partnership Agreement, the General Partner desires to amend the Partnership Agreement to reflect the additional capital contribution of Contributor. NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the General Partner hereby amends the Partnership Agreement as follows: 1. Definitions. Capitalized terms used herein, unless otherwise defined herein, shall have the same meanings as set forth in the Partnership Agreement. 2. Restatement of Exhibit A. Exhibit A to the Partnership Agreement is amended and restated by replacing such Exhibit A with Exhibit A attached to this Amendment. 3. Amendment of Exhibit N. Exhibit N to the Partnership Agreement is hereby amended as follows. (a) Section 2.A. of Exhibit N is hereby deleted in its entirety, and the following is hereby substituted in the place thereof: "A. Number. The number of authorized Series B Preferred Units shall be 1,600,000." (b) Section 2.C.(i) of Exhibit N is hereby amended by inserting the following language at the end thereof: "For purposes of determining the amounts of distributions hereunder, with regard to the Series B Preferred Units issued pursuant to the Contribution Agreement dated February 6, 1998, the Issue Date shall be February 6, 1998, and with regard to the Series B Preferred Units issued pursuant to the Contribution Agreement dated April 20, 1998, the Issue Date shall be April 20, 1998." (c) Section 2.G.(i) of Exhibit N is hereby amended by inserting the following language at the end thereof: "Furthermore, the Series B Preferred Units may be exchanged in whole or in part for Series B Preferred Stock at any time, if both (a) based on results or projected results, there exists, in the reasonable judgement of the holder an imminent and substantial risk that such holder's interest in the Partnership represents or will represent more than 19.5% of the total profits or capital interests in the Partnership for a taxable year, and (b) the holder thereof delivers to the Company an opinion of nationally recognized independent counsel to the effect that there is a substantial risk that such holder's interest in the Partnership represents or will represent more than 19.5% of the total profits or capital interests in the Partnership (determined in accordance with Treasury Regulations Section 1.731-2(e)(4)) for a taxable year; for purposes of this provision, as of the date of this Amendment and giving effect to the Contributor's receipt of 400,000 Series B Preferred Units as of such date, it is deemed that there is presently not a substantial risk that the Contributor's interest in the Partnership will represent more than such 19.5% and such a substantial risk shall be deemed to occur only if there is a material increase, from the Contributor's present level, in the percentage of total profits or capital interests in the Partnership represented by the holder's interest. For purposes of the exchange rights granted hereunder, with regard to all Series B Preferred Units issued pursuant to the Contribution Agreement dated February 6, 1998 and all Series B Preferred Units issued pursuant to the Contribution Agreement dated April 20, 1998, the Issue Date shall be deemed to be February 6, 1998." 4. Continuing Effect of Partnership Agreement. Except as modified herein, the Partnership Agreement is hereby ratified and confirmed in its entirety and shall remain and continue in full force and effect, provided, however, that to the extent there shall be a conflict between the provisions of the Partnership Agreement and this Amendment the provisions in this Amendment will prevail. All references in any document to the Partnership Agreement shall mean the Partnership Agreement, as amended hereby. 5. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same agreement. Facsimile signatures shall be deemed effective execution of this Agreement and may be relied upon as such by the other party. In the event facsimile signatures are delivered, originals of such signatures shall be delivered to the other party within three (3) business days after execution. IN WITNESS WHEREOF, the General Partner and the Contributor have executed this Amendment as of the date indicated above. GENERAL PARTNER ESSEX PROPERTY TRUST, INC., a Maryland corporation as General Partner of Essex Portfolio, L.P. and on behalf of the existing Limited Partners By: /s/ Keith R. Guericke --------------------------------- Name: Keith R. Guericke Title: Chief Executive Officer & President CONTRIBUTOR: BELAIR CAPITAL FUND LLC By: Eaton Vance Management, as its Manager By: /s/ Thomas Otis ---------------------- Name: Thomas Otis Title: Vice President EXHIBIT A PARTNERSHIP UNITS (As of April 20, 1998) PARTNERSHIP UNITS General Partner: Units Essex Property Trust, Inc. 16,629,845 Limited Partners: Units 1. Essex Portfolio Management Company 15,941 2. Essex Property Corporation 9,909 3. GMMS Partners 43,414 4. M & M Projects, Inc. 128,138 5. SummerHill Homes 163,447 6. Paula Amanda 1,785 7. Robert and Margaret Arnold 2,242 8. Randall I. Barkan 2,564 9. David Bernstein Revocable Trust 5,771 10. John D. and Robbin Eudy 7,457 11. Kenneth and Angeliki Frangadakis 2,675 12. George and Katherine Frangadakis, Trustees Frangadakis Family Revocable Trust 4,697 13. Kenneth and Angeliki Frangadakis, Trustees Frangadakis Family Revocable Trust 24,334 14. Harvey Friedman 4,042 15. Harvey and Margaret Green 16,735 16. Keith R. and Thelma Guericke 48,116 17. George P. Katsoulis 5,000 18. Gerald E. and Annette Kelly 5,643 19. Nancy Kukkola 11,637 20. George M. Marcus 1,136,227 21. Meistrich Family Trust UTA 12/6/90 4,042 22. Charles E. Martin 1,785 23. William A. and Sherrie Millichap 73,099 24. J. Peter and Cherie Otten 9,447 25. Milton Pagonis 10,267 26. Gary Pagonis Family Trust 10,267 27. G. Michael Roark 54,740 28. Michael and Ann Schall 26,388 29. J. Lawrence Schnadig 1,729 30. J.A. Shafran 2,889 31. Swanson Survivors Trust 7,687 32. Marcus & Millichap 2,564 33. The Way 1994 Living Trust Dtd. 11/2/94 2,226 34. Gay A. Yamagiwa 10,720 35. Craig K. Zimmerman 15,849 7.875% SERIES B PREFERRED UNITS Limited Partner: Belair Capital Fund LLC 1,600,000 ---------- TOTAL PARTNERSHIP UNITS: 20,103,318 Exhibit 99.1 Essex Property Trust, Inc. 925 East Meadow Drive, Palo Alto, California 94303, (650) 494-3700, (650) 494-8743 fax Contact: Keith Guericke, President or Wendy Carhart, Investor Relations FOR IMMEDIATE RELEASE Essex Sells an Additional $20 Million of Perpetual Preferred Units Palo Alto, California -- April 21, 1998 -- Essex Property Trust, Inc. (NYSE: "ESS"), today announced that Essex Portfolio, L.P., (the "Operating Partnership"), sold an additional $20 million of its 7.875% Series B Cumulative Redeemable Preferred Units to an institutional investor in a private placement. The 400,000 Preferred Units are identical in structure to the 1.2 million Preferred Units sold to the same institutional investor by the Operating Partnership in February. The Preferred Units are being sold for $50.00 per unit, and may be called by Essex at par on or after February 6, 2003. The Preferred Units have no stated maturity or mandatory redemption and pay a cumulative, quarterly dividend at an annualized rate of 7.875%. The Preferred Units are not convertible into common stock of Essex Property Trust, Inc. Essex intends to use the net proceeds to reduce the outstanding indebtedness on the Company's line of credit, and to further fund its West Coast acquisition and development activities. Essex Property Trust, Inc., located in Palo Alto and traded on the New York Stock Exchange (ESS), is a fully integrated Real Estate Investment Trust (REIT). Self-administered and self-managed, Essex focuses on multifamily properties in targeted West Coast markets, specifically the San Francisco, Seattle, Southern California and Portland metropolitan areas. Currently, Essex has ownership interests in 58 multifamily properties (12,389 units), and has 1,332 units in various stages of development. Additional information can be located on the world wide web at www.essexproperties.com. -----END PRIVACY-ENHANCED MESSAGE-----