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UNITED STATES
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
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Date of Report (Date of earliest event reported): April 13, 2023 |
ERP OPERATING LIMITED PARTNERSHIP
(Exact name of Registrant as Specified in Its Charter)
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Illinois |
0-24920 |
36-3894853 |
(State or Other Jurisdiction
of Incorporation) |
(Commission File Number) |
(IRS Employer
Identification No.) |
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Two North Riverside Plaza |
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Chicago, Illinois |
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60606 |
(Address of Principal Executive Offices) |
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(Zip Code) |
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Registrant’s Telephone Number, Including Area Code: 312 474-1300 |
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s) |
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Name of each exchange on which registered
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7.57% Notes due August 15, 2026 |
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N/A |
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New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 3.02 Unregistered Sales of Equity Securities.
On April 13, 2023, ERP Operating Limited Partnership (the “Company”), certain subsidiaries thereof and certain third parties entered into an agreement pursuant to which the Company, directly or indirectly, acquired 100% ownership of a 200-unit residential rental development project named Aero Apartments in the San Francisco Bay Area (the “Property”, and collectively, the “Transaction”). Prior to the Transaction, certain subsidiaries of the Company owned ninety percent (90%) of the ownership interests in the Property.
The Company paid approximately $3.7 million in cash and issued 933,454 3.00% Series Q Cumulative Redeemable Preference Units (the “Preference Units”) in exchange for ten percent (10%) of the ownership interests of the entity owning the Property. The Preference Units have a $1.00 per unit liquidation preference, were issued pursuant to the Seventh Amended and Restated Agreement of Limited Partnership of the Company (the “Partnership Agreement”), are entitled to receive cumulative, non-compounding distributions at an annual rate of $0.03 per Preference Unit, and are subject to repurchase by Equity Residential, the Company’s general partner, at the election of the holder or Equity Residential during certain time periods. The Preference Units may be repurchased, at the option of Equity Residential and/or the Company, for cash at their liquidation preference of $1.00 per unit plus accrued and unpaid distributions, common shares of beneficial interest of Equity Residential (“Common Shares”) or operating partnership units of the Company (“OP Units”), which are exchangeable into Common Shares following a hold period. The number of OP Units or Common Shares issued at repurchase, if any, will be calculated by dividing the number of Preference Units plus accrued and unpaid distributions by the closing sales price of Common Shares on the fifth business day following receipt of a unit transfer agreement by Equity Residential. The issuance of the Preference Units was made in reliance upon the exemption from securities registration afforded by Section 4(2) of the Securities Act of 1933, as amended.
The terms of the Preference Units are set forth in a Preference Unit Term Sheet which was executed at the closing of the Transaction and is part of the Company’s Partnership Agreement. The above description of the Preference Units is qualified in its entirety by reference to the form of Preference Unit Term Sheet attached hereto as Exhibit 3.1.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information set forth above in “Item 3.02—Unregistered Sales of Equity Securities” is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
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.
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ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential, its general partner |
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Date: |
April 19, 2023 |
By: |
/s/ Scott J. Fenster |
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Name: Scott J. Fenster
Its: Executive Vice President and General Counsel |
Exhibit 3.1
PREFERENCE UNIT TERM SHEET
AND
JOINDER
TO
PARTNERSHIP AGREEMENT
FOR
3.00% SERIES Q CUMULATIVE REDEEMABLE PREFERENCE UNITS
This "Preference Unit Term Sheet," as such term is defined in the Seventh Amended and Restated Agreement of Limited Partnership executed and delivered as of March 18, 2021 and effective as of January 1, 2020 (the "Partnership Agreement") of ERP Operating Limited Partnership (the "Partnership"), shall be attached to and is hereby made a part of the Partnership Agreement. Each capitalized term used but not defined herein shall have the meaning ascribed to it in the Partnership Agreement.
In accordance with clause (e) of Section 3.2(B) of the Partnership Agreement, this Preference Unit Term Sheet sets forth the terms and conditions of the 3.00% Series Q Cumulative Redeemable Preference Units hereby issued by the Partnership in consideration for the contribution to the Partnership of certain property by certain Contributing Partners, as further described in a Contribution and Preference Units Agreement dated as of April 13, 2023 by and among such Contributing Partners, the Partnership, the General Partner and certain other parties thereto (the “Contribution Agreement”).
A.Series Q Preference Units
(1)Designation and Number. A series of Preference Units designated as 3.00% Series Q Cumulative Redeemable Preference Units (the “3.00% Series Q Preference Units"), is hereby established. The number of 3.00% Series Q Preference Units to be issued by the Partnership shall equal 933,454 which shall be allocated as 466,727 3.00% Series Q Preference Units to each Contributing Partner.
(2)Priority. Distributions of Cash Flow in respect of the 3.00% Series Q Preference Units shall be made prior to any distributions of Operating Cash Flow or Capital Cash Flow to holders of OP Units and other Preference Units; provided, however, that: (a) the Series K Redeemable Preference Units (the “Outstanding Preference Units”) shall share in the distribution of Operating Cash Flow and/or Capital Cash Flow pari passu with the 3.00% Series Q Preference Units, and (b) the Company (in its capacity as the General Partner of the Partnership) may, pursuant to Section 3.2 of the Partnership Agreement, issue other Preference Units that are to share, on a pari passu basis, with the Outstanding Preference Units and the 3.00% Series Q Preference Units in the distribution of Operating Cash Flow and/or Capital Cash Flow. Distributions on the 3.00% Series Q Preference Units that are "pari passu" with distributions on other Preference Units shall, if such
distributions are not paid in full (or a sum sufficient for such payment is not set apart), be declared and paid pro rata so that the distributions on each series of Preference Units that are required to be pari passu bear to each other the same ratio that accrued distributions with respect to each such series bear to each other.
(3)Cash Flow Distributions. Holders of the 3.00% Series Q Preference Units shall be entitled to receive, only out of Operating Cash Flow and Capital Cash Flow, cumulative non-compounding distributions of Cash Flow in respect of the 3.00% Series Q Preference Units at the rate of $0.03 per unit per year, payable in equal amounts of $0.0075 per unit quarterly in cash on the dates quarterly distributions are paid on the common shares of beneficial interest, par value $0.01 per share, of the General Partner (each such day being hereinafter called a "Quarterly Distribution Date" and each period ending on a Quarterly Distribution Date being hereinafter called a "Distribution Period"). The amount of any distribution payable for the initial Distribution Period and for any other Distribution Period shorter than a full calendar quarter Distribution Period shall be prorated and computed on the basis of a 360-day year of twelve 30-day months. Distributions in respect of the 3.00% Series Q Preference Units shall accrue and be cumulative from and including the date of original issue thereof, whether or not on any Quarterly Distribution Date there shall be Operating Cash Flow and/or Capital Cash Flow available for distribution. The amount of distributions accrued on the 3.00% Series Q Preference Units at any Quarterly Distribution Date shall be the amount of any unpaid distributions accumulated thereon, to and including such Quarterly Distribution Date, whether or not there is sufficient Operating and/or Capital Cash Flow available for such distributions, and the amount of distributions accrued on the 3.00% Series Q Preference Units at any date other than a Quarterly Distribution Date shall be equal to the sum of the amount of any unpaid distributions accumulated thereon, to and including the last preceding Quarterly Distribution Date, whether or not earned or declared, plus an amount calculated on the basis of the annual distribution rate of $0.03 per unit for the period after such last preceding Quarterly Distribution Date to and including the date as of which the calculation is made based on a 360-day year of twelve 30-day months.
(4)OP Unit Value; Allocations of Profit and Loss. For purposes of determining the Percentage Interest attributable to each 3.00% Series Q Preference Unit for the purposes of making allocations of Profits and Losses under the Partnership Agreement, each 3.00% Series Q Preference Unit shall be considered to have an OP Unit Value of zero (0), and therefore there shall be no Percentage Interest attributable to the 3.00% Series Q Preference Units. It is acknowledged and agreed that each 3.00% Series Q Preference Unit shall be allocated an amount of gross income as provided in Section 7.3(E) of the Partnership Agreement in respect of the distributions payable with respect to such 3.00% Series Q Preference Units as provided in Section A(3) hereof.
(A)Upon the voluntary or involuntary dissolution, liquidation or winding up of the Partnership, the holders of the 3.00% Series Q Preference Units shall be entitled to receive in respect of 3.00% Series Q Preference Units then outstanding, to be paid only out of the assets of the Partnership available for distribution to its Partners pursuant to Section 14.2(C) of the Partnership Agreement, before any payment or distribution shall be made on any OP Units or other Preference Units (except distributions of Capital Cash Flow to the extent that such distributions are
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required to be made on a pari passu basis to the holders of other Preference Units), the amount of $1.00 per 3.00% Series Q Preference Unit, plus accrued and unpaid distributions thereon.
(B)After the payment of the full preferential amounts in respect of the 3.00% Series Q Preference Units provided for in this paragraph (5), the holders of the 3.00% Series Q Preference Units as such shall have no right or claim to any of the remaining assets of the Partnership.
(C)If, upon any voluntary or involuntary dissolution, liquidation, or winding up of the Partnership, the amounts payable with respect to the preference value of the 3.00% Series Q Preference Units and any Units of the Partnership ranking as to any such distribution on a parity with the 3.00% Series Q Preference Units are not paid in full, the holders of the 3.00% Series Q Preference Units and the holders of such other Units will share ratably in any such distribution of assets of the Partnership in proportion to the full respective preference amounts to which they are entitled.
(D)Neither the sale of all or substantially all the property or business of the Partnership, nor the merger or consolidation of the Partnership into or with any other entity or the merger or consolidation of any other entity into or with the Partnership, shall be deemed to be a dissolution, liquidation or winding up, voluntary or involuntary, for the purposes of this Section 5.
(A)All, but not less than all, of the 3.00% Series Q Preference Units held by a holder thereof shall be purchased by the General Partner, at the election of either the General Partner or the holder of such 3.00% Series Q Preference Units, as set forth below:
(i)From April 13, 2023 until and including April 12, 2028 (the “Hold Period”), no transfers of 3.00% Series Q Preference Units are permitted except as set forth in clause (iii) below;
(ii)Following the Hold Period, each holder of 3.00% Series Q Preference Units shall have the right to elect to transfer all (but not less than all) 3.00% Series Q Preference Units held by such holder to the General Partner (the “Put Right”) in exchange for, at the General Partner’s election, cash and/or registered common shares of beneficial interest that are listed on a national securities exchange or freely convertible to registered stock that is listed on a national securities exchange (“Common Shares”) of the General Partner together with any accrued and unpaid distributions thereon by submitting written notice to the General Partner (the “Put Notice”). In the event of a conversion to Common Shares, the number of Common Shares issued at redemption shall be calculated by dividing the number of 3.00% Series Q Preference Units plus accrued and unpaid distributions by the closing sales price of Common Shares on the fifth (5th) Business Day (as defined below) following receipt of the Unit Transfer Agreement (as described below) by the General Partner pursuant to Section 6(C)(ii) below. (Example – if the number of 3.00% Series Q Preference Units is 900,000, which have accrued $6,750 in unpaid distributions, and the Common Share closing price is $65.00 on the fifth (5th) Business Day following receipt of the Unit Transfer Agreement pursuant to Section 6(C)(ii) below, the General Partner shall deliver 13,950 Common Shares.). Notwithstanding the foregoing, no holder of 3.00% Series Q Preference Units may at any
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time take any action (or fail to take any action) if the consequences of such action (or inaction) would be (A) to cause the General Partner to fail to qualify as a real estate investment trust (“REIT”) for federal or applicable state income tax purposes or (B) to cause the Partnership to fail to qualify as a partnership for federal or applicable state income tax purposes, or (C) to cause the Partnership or the General Partner to be considered an “investment company” as defined in, or otherwise be subject to regulation under, the Investment Company Act of 1940, as amended;
(iii)If, at any time, a fee interest in the property located at 2000 Ardent Way in the City and County of Alameda, State of California and commonly known as Aero Apartments (the “Property”) is sold in a taxable transaction (a “Taxable Transaction”), then, at any time after such sale, the General Partner shall have the right to elect to acquire from each holder of 3.00% Series Q Preference Units all (but not less than all) 3.00% Series Q Preference Units held by such holder (a “Call Right”) in exchange for, at the General Partner’s election, cash and/or Common Shares together with any accrued and unpaid distributions thereon. In the event of a conversion to Common Shares, the number of Common Shares issued shall be calculated by dividing the number of 3.00% Series Q Preference Units plus accrued and unpaid distributions by the closing sales price of Common Shares on the fifth (5th) Business Day following receipt of the Unit Transfer Agreement by the General Partner pursuant to Section 6(C)(iii) below;
(iv) Following the Hold Period, but prior to the Open Period (as defined below), if the Property is not sold in a Taxable Transaction, the General Partner shall have the right to exercise a Call Right in exchange for OP Units pursuant to Section 3.2(B) of the Partnership Agreement, together with any accrued and unpaid distributions. The number of OP Units issued at redemption shall be calculated by dividing the number of 3.00% Series Q Preference Units plus accrued and unpaid distributions by the closing sales price of Common Shares on the fifth (5th) Business Day following receipt of the Unit Transfer Agreement by the General Partner pursuant to Section 6(C)(iii) below. (Example – if the number of 3.00% Series Q Preference Units is 900,000, which have accrued $6,750 in unpaid distributions, and the Common Share closing price is $65.00 on the fifth (5th) Business Day following receipt of the Unit Transfer Agreement by the General Partner pursuant to Section 6(C)(iii) below, the Partnership shall deliver 13,950 OP Units.) Following any issuance of OP Units pursuant to this Term Sheet, no transfers or exchanges of such OP Units are permitted within six (6) months of such issuance;
(v)On or after April 12, 2043 (the “Open Period”), the General Partner shall have the right to exercise a Call Right in exchange for, at the General Partner’s election, cash and/or Common Shares together with any accrued and unpaid distributions thereon. In the event of a conversion to Common Shares, the number of Common Shares issued shall be calculated by dividing the number of 3.00% Series Q Preference Units plus accrued and unpaid distributions by the closing sales price of Common Shares on the fifth (5th) Business Day following receipt of the Unit Transfer Agreement by the General Partner pursuant to Section 6(C)(iii) below;
(vi)If the General Partner shall elect to exchange the 3.00% Series Q Preference Units for cash as set forth above, the 3.00% Series Q Preference Units shall be purchased by the General Partner for $1.00 per 3.00% Series Q Preference Unit plus accrued and unpaid distributions thereon.
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(vii)No fractional Common Shares or OP Units will be issued in connection with any Put Right or Call Right hereunder. All calculations under Section 6(A) shall be made to the nearest whole Common Share or OP Unit, as applicable, rounded down.
(B)For the avoidance of doubt, in addition to the Put Rights and Call Rights, nothing herein shall prevent the General Partner (or a subsidiary thereof) from agreeing to repurchase 3.00% Series Q Preference Units from a holder thereof on such terms as agreed to between the General Partner and such holder, and no holder of 3.00% Series Q Preference Units shall have any rights to participate in any such transaction between the General Partner (or a subsidiary thereof) and any other holder of 3.00% Series Q Preference Units.
(C)With respect to the exercise of a Put Right or Call Right:
(i)A party may exercise a Put Right or Call Right by sending written notice thereof to the relevant counterparty during the permitted time periods set forth in Section 6(A). Any such notice shall be irrevocable.
(ii)Within five (5) Business Days following receipt of a Put Notice, the General Partner shall notify such holder of 3.00% Series Q Preference Units of the form of payment (cash and/or Common Shares) by which the General Partner has elected to pay the Purchase Price (defined below) (the “Election Notice”). Within five (5) Business Days following its receipt of the Election Notice, the holder shall execute and deliver a Unit Transfer Agreement in the form of Exhibit A attached hereto which certifies, among other things, that the holder is the sole owner of the 3.00% Series Q Preference Units and that the 3.00% Series Q Preference Units are being transferred to the General Partner free of all liens, claims and encumbrances created by, through or on behalf of, the holder.
(iii)If the General Partner is exercising a Call Right, the holder of 3.00% Series Q Preference Units subject to such Call Right shall execute and deliver a Unit Transfer Agreement to the General Partner within five (5) Business Days following its receipt of notice (the “Call Notice”) of the General Partner’s Call Right election. The Call Notice shall also notify such holder of the form of payment (cash, OP Units and/or Common Shares, as applicable) by which the General Partner has elected to pay the Purchase Price. If the General Partner exercises its Call Right pursuant to Section 6(A)(iv) relating to the acquisition of 3.00% Series Q Preference Units in exchange for OP Units, the holder of 3.00% Series Q Preference Units subject to such Call Right shall also execute and deliver to the Partnership, within five (5) Business Days following its receipt of the Call Notice, the Partnership’s current form of Further Addendum to Partnership Agreement pursuant to which such holder will agree to be bound by the Partnership’s current Partnership Agreement.
(iv)Within fifteen (15) Business Days after the General Partner’s receipt of a Unit Transfer Agreement delivered in accordance with Section 6(A) and 6(C), the General Partner shall make payment in cash and/or Common Shares or OP Units, as applicable, in the applicable amount as set forth above in Section 6(A) (the “Purchase Price”) to the applicable holder of 3.00% Series Q Preference Units. Upon the payment of the Purchase Price, the 3.00% Series Q Preference Units shall be legally transferred to the General Partner, may be held or disposed of by the General Partner in its sole discretion, and the prior holder of the 3.00% Series Q Preference
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Units shall have no on-going interest in such units. A “Business Day” is any day other than a Saturday, Sunday, federal holiday, or any other day on which banks are generally closed for business in Chicago, Illinois.
(v)Each holder of 3.00% Series Q Preference Units agrees and acknowledges that the General Partner may obtain cash, if applicable, to pay the Purchase Price from any source in the sole and absolute discretion of the General Partner, including, without limitation, from distributions or loans made by the Partnership to the General Partner.
(7)Voting Rights. Except as required by law, the holders of the 3.00% Series Q Preference Units shall have no voting rights or rights to consent to any matter requiring the consent or approval of the Partners.
(8)Transfer Restrictions. Subject to the restrictions set forth in Article 12 of the Partnership Agreement, and except as set forth in Section 6 above or as may be expressly set forth in the Contribution Agreement, no holder of the 3.00% Series Q Preference Units may Transfer any of the 3.00% Series Q Preference Units without the written consent of the General Partner, which consent may be withheld in the General Partner's sole and absolute discretion.
(9)Share Certificate Legend. The certificates representing the Common Shares issued upon conversion of the 3.00% Series Q Preference Units shall contain any legends required by the REIT Charter, as such may be amended and/or restated and or supplemented from time to time.
(10)Amendments. This Preference Unit Term Sheet may be amended only by a written instrument executed and delivered by the General Partner and the holders of at least two-thirds of the then outstanding 3.00% Series Q Preference Units.
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