<PAGE>
As filed with the Securities and Exchange Commission on June 16, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EQUITY RESIDENTIAL PROPERTIES TRUST
(Exact name of registrant as specified in its governing instrument)
Maryland 13-3675988
(State of Organization) (I.R.S. Employer Identification Number)
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
(Address of principal executive offices)
Douglas Crocker II
President and Chief Executive Officer
Equity Residential Properties Trust
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
(Name and address of agent for service)
COPIES TO:
William C. Hermann, Esq.
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza, Suite 1600
Chicago, Illinois 60606
(312) 466-3612
Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AGGREGATE AGGREGATE AMOUNT OF
TITLE OF CLASS AMOUNT TO BE PRICE PER OFFERING REGISTRATION
OF SECURITIES BEING REGISTERED REGISTERED SHARE(1) PRICE (1) FEE(1)
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<S> <C> <C> <C> <C>
Common Shares of Beneficial Interest, $.01 par value per share...... 3,089,547 $46.1875 $142,698,452 $39,671
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</TABLE>
(footnote on next page)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
(footnote from previous page)
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(c) based on the average of the high and low
reported sales prices on the New York Stock Exchange on June 14, 1999.
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement relating to these
securities has been declared effective by the Securities and Exchange
Commission. This prospectus is neither an offer to sell nor a solicitation of an
offer to buy these securities in any jurisdiction where such offer or sale is
unlawful.
SUBJECT TO COMPLETION
DATED JUNE 16, 1999
PROSPECTUS
3,089,547 SHARES
EQUITY RESIDENTIAL PROPERTIES TRUST
COMMON SHARES OF BENEFICIAL INTEREST
The persons listed below, who may become shareholders of Equity
Residential Properties Trust, may offer and sell from time to time up to
3,089,547 of our common shares of beneficial interest under this prospectus. In
this prospectus we refer to these persons as the selling shareholders. We may
issue up to 3,089,547 common shares to the selling shareholders, upon their
request, in exchange for their 3,089,547 units of limited partnership interest
in ERP Operating Limited Partnership, our operating partnership. Our
registration of these common shares is not meant to imply that the selling
shareholders will offer or sell any of these common shares. We will receive no
proceeds from any sale of common shares by a selling shareholder.
The selling shareholders may offer their common shares through public
or private transactions, on or off the New York Stock Exchange, at prevailing
market prices, or at privately negotiated prices. The selling shareholders may
sell their common shares directly or through agents or broker-dealers acting as
principal or agent, or in a distribution by underwriters.
The common shares are listed on the New York Stock Exchange under the
symbol "EQR".
----------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------
The date of this prospectus is June __, 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Special Note Regarding Forward-Looking Statements................... 3
Available Information............................................... 3
Incorporation of Certain Documents By Reference..................... 3
The Company......................................................... 5
No Proceeds to the Company.......................................... 5
Selling Shareholders................................................ 5
Additional Federal Income Tax Considerations........................ 7
Plan of Distribution................................................ 8
Experts............................................................. 8
Legal Matters....................................................... 9
</TABLE>
<PAGE>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Information contained in or incorporated by reference into this
prospectus and any accompanying prospectus supplement contains "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended (the "Securities Act"). We intend the forward-looking statements to be
covered by the safe harbor provisions for forward-looking statements contained
in that section. These forward-looking statements relate to, without limitation,
our anticipated future economic performance, our plans and objectives for future
operations and projections of revenue and other financial items, which can be
identified by the use of forward-looking words such as "may," "will," "should,"
"expect," "anticipate," "estimate" or "continue" or the negative thereof or
other variations thereon or comparable terms. The cautionary statements under
the caption "Risk Factors" contained in our Annual Report on Form 10-K for the
year ended December 31, 1998, which is incorporated herein by reference, and
other similar statements contained in this prospectus or any accompanying
prospectus supplement identify important factors with respect to forward-looking
statements, including certain risks and uncertainties, that could cause actual
results to differ materially from those in such forward-looking statements.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, we are required to file reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). You
may inspect and copy these reports, proxy statements and other information at
the Public Reference Section of the Commission at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's regional offices at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade
Center, Suite 1300, New York, New York 10048. You may also obtain copies of the
reports, proxy statements and other information from the Public Reference
Section of the Commission, Washington, D.C. 20549, upon payment of prescribed
rates, or in certain cases by accessing the Commission's World Wide Web site at
http://www.sec.gov. You may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330. Our common shares
are listed on the New York Stock Exchange under the symbol "EQR". Our reports,
proxy statements and other information are also available for inspection at the
offices of the New York Stock Exchange located at 20 Broad Street, New York, New
York 10005.
We have filed with the Commission a registration statement on Form S-3
(the "Registration Statement"), of which this prospectus is a part, under the
Securities Act, with respect to the securities covered by this prospectus. This
prospectus does not contain all of the information set forth in the Registration
Statement, certain portions of which have been omitted as permitted by the rules
and regulations of the Commission. Statements contained in this prospectus as to
the contents of any contract or other document are not necessarily complete, and
in each instance, we refer the reader to the copy of such contract or document
filed as an exhibit to the Registration Statement. Each such statement is
qualified in all respects by this reference and the exhibits and schedules
thereto. For further information about us and the common shares covered by this
prospectus, we refer the reader to the Registration Statement and these exhibits
and schedules which may be obtained from the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We have filed the documents listed below with the Commission under the
Exchange Act and these documents are incorporated into this prospectus by
reference:
a. Annual Report on Form 10-K for the year ended December 31, 1998.
b. Quarterly Report on Form 10-Q for the period ended March 31, 1999.
c. Second Amended and Restated Declaration of Trust (the "Declaration
of Trust") filed as Exhibit 3.1 to our Current Report on Form 8-K
dated May 30, 1997, as amended or supplemented from time to time.
d. Second Amended and Restated Bylaws (the "Bylaws"), filed as
Exhibit 3.2 to our Current Report on Form 8-K, dated May 30, 1997.
e. Definitive Proxy Statement relating to our Annual Meeting of
Shareholders dated March 31, 1999.
3
<PAGE>
f. Joint Proxy Statement/Prospectus/Information Statement dated
September 14, 1998.
g. Description of our common shares contained in our registration
statement on Form 8-A/A dated August 10, 1993.
h. Current Reports on Form 8-K dated June 25, 1998, July 8, 1998,
July 23, 1998, August 11, 1998, October 19, 1998, and February 24,
1999 and our Current Report on Form 8-K/A dated July 23, 1998.
All documents filed by us pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date of this prospectus and prior to the
termination of the offering of all common shares under this prospectus will also
be deemed to be incorporated by reference in this prospectus and to be a part
hereof from the date of filing those documents.
Any statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference herein will be modified
or superseded by inconsistent statements in any document we file in the future
that will be deemed incorporated by reference herein, including any prospectus
supplement that supplements this prospectus. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus or any accompanying prospectus supplement.
Subject to the foregoing, all information appearing in this prospectus and each
accompanying prospectus supplement is qualified in its entirety by the
information appearing in the documents incorporated by reference.
We will provide, without charge, copies of all documents that are
incorporated herein by reference (not including the exhibits to such
information, unless such exhibits are specifically incorporated by reference in
such information) to each person, including any beneficial owner, to whom this
prospectus is delivered upon written or oral request. Requests should be
directed to Equity Residential Properties Trust, Two North Riverside Plaza,
Suite 400, Chicago, Illinois 60606, Attention: Cynthia McHugh (telephone number:
(312) 474-1300).
4
<PAGE>
UNLESS OTHERWISE INDICATED, WHEN USED HEREIN, THE TERMS "WE" AND "US"
REFER TO EQUITY RESIDENTIAL PROPERTIES TRUST, A MARYLAND REAL ESTATE INVESTMENT
TRUST, AND ITS SUBSIDIARIES, INCLUDING ERP OPERATING LIMITED PARTNERSHIP, ITS
OPERATING PARTNERSHIP.
THE COMPANY
We are an equity real estate investment trust, or REIT, formed to
continue the multifamily property business objectives and acquisition strategies
of certain affiliated entities controlled by Mr. Samuel Zell, Chairman of our
Board of Trustees. We are the managing general partner of ERP Operating Limited
Partnership, our operating partnership. We own, administer and manage all of our
assets and conduct substantially all of our business through the operating
partnership and its subsidiaries.
Our executive offices are located at Two North Riverside Plaza, Suite
400, Chicago, Illinois 60606, and its telephone number is (312) 474-1300.
NO PROCEEDS TO THE COMPANY
We will not receive any of the proceeds from sales of common shares
offered by the selling shareholders. We will pay all of the costs and expenses
incurred in connection with the registration under the Securities Act of the
offering made hereby, other than any brokerage fees and commissions, fees and
disbursements of legal counsel for the selling shareholders and share transfer
and other taxes attributable to the sale of the offered common shares, which
will be paid by the selling shareholders.
SELLING SHAREHOLDERS
We may issue up to 3,089,547 common shares to the selling shareholders
who currently hold 3,089,547 units of limited partnership interest in our
operating partnership, if and to the extent that the selling shareholders
exchange their units of limited partnership interest and we issue common shares
to them in exchange therefor. Following our issuance of these shares, the
selling shareholders may resell the common shares covered by this prospectus as
provided under the Plan of Distribution section of this prospectus or as
described in an applicable prospectus supplement. The following table provides
the name of each selling shareholder, the number of common shares to be owned
upon exchange of such units of limited partnership interest by each selling
shareholder before any offering to which this prospectus relates, and the number
of common shares that may be offered by each selling shareholder. Assuming the
redemption of all units of limited partnership held by each selling shareholder,
the number of common shares set forth in the following table is also the number
of common shares owned by each selling shareholder prior to the offering.
Because the selling shareholders may sell all or some of their offered common
shares, no estimate can be made of the number of offered common shares that will
be sold by the selling shareholders or that will be owned by the selling
shareholders upon completion of the offering. There is no assurance that the
selling shareholders will sell any of the offered common shares. The common
shares covered by this prospectus represent approximately 2.3% of the total
common shares (assuming exchange of all outstanding units of limited partnership
interest for common shares) outstanding as of March 31, 1999.
5
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF COMMON
SHARES OWNED AND
NAME OF SELLING SHAREHOLDER OFFERED HEREBY
-------------------------- --------------
<S> <C>
EQR/Legacy Partners Guaranty Holding Limited Liability Company........ 444,456
C. Preston Butcher III................................................ 340,095
Mack Pogue, Inc....................................................... 256,676
W. Dean Henry......................................................... 213,343
Denny McLarry 1998 Trust.............................................. 206,591
Otilia C. McLarry 1998 Trust.......................................... 206,591
Woodson Family Trust.................................................. 144,073
Legacy Partners 2236 L.P. ............................................ 136,659
SP Lakeshore Partners, Ltd............................................ 103,036
David Brent Pogue..................................................... 73,512
Blair Matthew Pogue................................................... 68,379
Park River Limited Partners, Ltd...................................... 62,300
Jeff Byrd............................................................. 61,969
Gary J. Rossi......................................................... 57,746
B-Way Limited Partners, Ltd........................................... 56,951
Wimbledon Partners, Ltd............................................... 52,869
Lakewood Greens Partners, Ltd. ....................................... 48,926
Legacy Partners 2232 L.P. ............................................ 43,284
Edward D. O'Brien..................................................... 41,485
Paul M. Thomas Jr. Family Trust....................................... 37,498
Villas at Josey Ranch, Inc............................................ 37,252
Blake Pogue........................................................... 33,665
Stuart L. Leeder...................................................... 32,115
Guy Hays.............................................................. 30,578
Kimberlee Spicer Romanov.............................................. 27,996
Gould Investors, LP................................................... 26,470
Eduard de Guardiola................................................... 24,820
Fielders 1990 Partners, L.P........................................... 22,285
CR Townhomes Limited Partnership...................................... 22,111
Michael A. Zoellner................................................... 16,847
Cann Investments, Ltd................................................. 16,611
Jane A. Hiber......................................................... 15,457
Michael Blonder....................................................... 15,420
Pleasant Ridge Partners, L.P.......................................... 14,149
Esther A. Dunton...................................................... 13,435
Paul H. Ravich........................................................ 9,365
Howard G. Stacker..................................................... 9,365
Arledge Family Trust.................................................. 8,660
Edward B. Romanov, Jr................................................. 8,424
Delivertech, Inc...................................................... 8,163
Dallas Sandstone of Bear Creek L.P.................................... 8,142
Richard L. Fore....................................................... 6,903
Gerald Blonder........................................................ 5,776
Pogue Children's 1998 Lincoln Trust................................... 4,877
Lincoln Property Company No. 292 Limited Partnership.................. 4,506
Lincoln Property Company No. 234 Ltd. Partnership..................... 4,477
John Igoe c/o LPAC Agent.............................................. 2,233
Delores Jean Pogue Trust.............................................. 1,881
Edward T. Hewitt...................................................... 406
Richard H. Semple..................................................... 406
Roy L. Titchworth, M.D. and Carolyn Titchworth ....................... 270
Paul M. Thomas, Jr.................................................... 43
-----------
3,089,547
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-----------
</TABLE>
6
<PAGE>
ADDITIONAL FEDERAL INCOME TAX CONSIDERATIONS
The following discussion supplements the discussion under the heading
"Federal Income Tax Considerations--Other Tax Considerations" in our 1998
annual report, which has been incorporated into this prospectus by reference.
On April 28, 1999, the Real Estate Investment Trust Modernization Act of
1999 was introduced in Congress. This bill would change some of the rules
that apply to REITs. The bill is similar to the Clinton administration's
proposal, which is discussed in our 1998 annual report, in several respects.
Under current law, a REIT is precluded from owning more than 10% of the
outstanding voting securities of any one issuer, other than a wholly owned
subsidiary or another REIT. Like the Clinton proposal, the bill would continue
the current restriction and also would preclude a REIT from owning more than
10% of the value of all classes of stock of any covered issuer. However, the
securities of some corporations in which a REIT owned an interest on April
28, 1999 would be excepted from this new requirement. Also like the Clinton
proposal, the bill would permit a REIT to create taxable subsidiaries that
would not be subject to some of the REIT asset tests.
It is uncertain whether any legislative proposal regarding the REIT
rules will be enacted. It also is uncertain what the terms of any new
legislation affecting REITs would be.
7
<PAGE>
PLAN OF DISTRIBUTION
Any of the selling shareholders may from time to time, in one or more
transactions, sell all or a portion of the offered common shares on the New York
Stock Exchange, in the over-the-counter market, on any other national securities
exchange on which the common shares are listed or traded, in negotiated
transactions, in underwritten transactions or otherwise, at prices then
prevailing or related to the then current market price or at negotiated prices.
The offering price of the offered common shares from time to time will be
determined by the selling shareholders and, at the time of such determination,
may be higher or lower than the market price of the common shares on the New
York Stock Exchange. In connection with an underwritten offering, underwriters
or agents may receive compensation in the form of discounts, concessions or
commissions from a selling shareholder or from purchasers of offered common
shares for whom they may act as agents, and underwriters may sell offered common
shares to or through dealers, and such dealers may receive compensation in the
form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents. Under
agreements that may be entered into by us, underwriters, dealers and agents who
participate in the distribution of offered common shares may be entitled to
indemnification by us against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which such
underwriters, dealers or agents may be required to make in respect thereof. The
offered common shares may be sold directly or through broker-dealers acting as
principal or agent, or pursuant to a distribution by one or more underwriters on
a firm commitment or best-efforts basis. The methods by which the offered common
shares may be sold include: (a) a block trade in which the broker-dealer so
engaged will attempt to sell the offered common shares as agent but may position
and resell a portion of the block as principal to facilitate the transaction;
(b) purchases by a broker-dealer as principal and resale by such broker-dealer
for its account pursuant to this prospectus; (c) ordinary brokerage transactions
and transactions in which the broker solicits purchasers; (d) an exchange
distribution in accordance with the rules of the New York Stock Exchange; (e)
privately negotiated transactions; and (f) underwritten transactions. The
selling shareholders and any underwriters, dealers or agents participating in
the distribution of the offered common shares may be deemed to be "underwriters"
within the meaning of the Securities Act, and any profit on the sale of the
offered common shares by the selling shareholders and any commissions received
by any such broker-dealers may be deemed to be underwriting commissions under
the Securities Act.
When a selling shareholder elects to make a particular offer of offered
common shares, a prospectus supplement, if required, will be distributed which
will identify any underwriters, dealers or agents and any discounts, commissions
and other terms constituting compensation from such selling shareholder and any
other required information.
In order to comply with the securities laws of certain states, if
applicable, the offered common shares may be sold only through registered or
licensed brokers or dealers. In addition, in certain states, the offered common
shares may not be sold unless they have been registered or qualified for sale in
such state or an exemption from such registration or qualification requirement
is available and is complied with.
We have agreed to pay all costs and expenses incurred in connection
with the registration under the Securities Act of the offered common shares,
including, without limitation, all registration and filing fees, printing
expenses and fees and disbursements of our counsel and accountants. The selling
shareholders will pay any brokerage fees and commissions, fees and disbursements
of their legal counsel and share transfer and other taxes attributable to the
sale of the offered common shares. We have also agreed to indemnify each of the
selling shareholders and their respective officers, directors and trustees and
each person who controls (within the meaning of the Securities Act) such selling
shareholder against certain losses, claims, damages, liabilities and expenses
arising under the securities laws in connection with this offering. Each of the
selling shareholders has agreed to indemnify us and our officers and trustees
and each person who controls (within the meaning of the Securities Act) our
company against any losses, claims, damages, liabilities and expenses arising
under the securities laws in connection with this offering with respect to
written information furnished to us by such selling shareholder; PROVIDED,
HOWEVER, that the indemnification obligation is several, not joint, as to each
selling shareholder.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our
consolidated financial statements and schedule included in our Annual Report
on Form 10-K for the year ended December 31, 1998, and the Statements of
Revenue and Certain Expenses of certain properties that were
8
<PAGE>
acquired or were expected to be acquired in 1998, included in our Current
Report on Form 8-K dated June 25, 1998, as set forth in their reports, which
are incorporated by reference in this prospectus and elsewhere in the
registration statement. Our consolidated financial statements and schedule
and the statements of revenue and certain expenses are incorporated by
reference in reliance on Ernst & Young LLP's reports, given on their
authority as experts in accounting and auditing.
The consolidated financial statements of Merry Land & Investment
Company, Inc. appearing in our Current Report on Form 8-K, dated July 23, 1998
were audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated in this
Registration Statement in reliance upon the authority of said firm as experts in
accounting and auditing.
LEGAL MATTERS
The legality of the offered common shares has been passed upon for us
by Rosenberg & Liebentritt, P.C., Chicago, Illinois. Certain tax matters have
been passed upon by Hogan & Hartson L.L.P., our special tax counsel. Rosenberg &
Liebentritt, P.C. will rely on Hogan & Hartson L.L.P. as to certain matters of
Maryland law.
9
<PAGE>
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- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING COVERED BY THIS
PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY US. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE COMMON
SHARE, IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM
TO WHOM, IT IS UNLAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN
THE FACTS SET FORTH IN THIS PROSPECTUS OR IN OUR AFFAIRS SINCE THE DATE HEREOF.
----------
3,089,547 SHARES
EQUITY RESIDENTIAL PROPERTIES TRUST
COMMON SHARES OF BENEFICIAL INTEREST
----------
PROSPECTUS
----------
JUNE ___, 1999
- -------------------------------------------------------------------------------
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth those expenses for distribution to be
incurred in connection with the issuance and distribution of the securities
being registered.
<TABLE>
<S> <C>
Registration Fee....................................................... 39,671
Printing and Duplicating Expenses*..................................... 5,000
Legal Fees and Expenses*............................................... 25,000
Accounting Fees and Expenses*.......................................... 6,000
Blue Sky Fees and Expenses*............................................ 5,000
Miscellaneous*......................................................... 3,329
-------
Total*................................................................. $84,000
</TABLE>
- -----------
* Estimated
ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS
Under Maryland law, a real estate investment trust formed in Maryland
is permitted to eliminate, by provision in its Declaration of Trust, the
liability of trustees and officers to the trust and its shareholders for money
damages except for liability resulting from (a) actual receipt of an improper
benefit or profit in money, property or services or (b) acts or omissions
established by a final judgment as involving active and deliberate dishonesty
and being material to the matter giving rise to the proceeding. The Registrant's
Declaration of Trust includes such a provision eliminating such liability to the
maximum extent permitted by Maryland law.
The Maryland REIT law, effective October 1, 1994, permits a Maryland
real estate investment trust to indemnify and advance expenses to its trustees,
officers, employees and agents to the same extent as permitted by the Maryland
General Corporation Law ("MGCL") for directors and officers of Maryland
corporations. As permitted by the MGCL, the Registrant's bylaws require it to
indemnify (a) any present or former trustee, officer or shareholder or any
individual who, while a trustee, officer or shareholder, served or is serving as
a trustee, officer, director, shareholder or partner of another entity at the
Registrant's express request who has been successful, on the merits or
otherwise, in the defense of a proceeding to which he was made a party by reason
of service in such capacity, against reasonable expenses incurred by him in
connection with the proceeding, (b) any present or former trustee or officer or
any individual who, while a trustee or officer served or is serving as a
trustee, officer, director, shareholder or partner of another entity at the
Registrant's express request against any claim or liability to which he may
become subject by reason of service in such capacity unless it is established
that (i) his act or omission was material to the matter giving rise to the
proceeding and was committed in bad faith or was the result of active and
deliberate dishonesty, (ii) he actually received an improper personal benefit in
money, property or services or (iii) in the case of a criminal proceeding, he
had reasonable cause to believe that his act or omission was unlawful and (c)
any present or former shareholder against any claim or liability to which he may
become subject by reason of such status. In addition, the Registrant's bylaws
require it to pay or reimburse, in advance of final disposition of a proceeding,
reasonable expenses incurred by a present or former trustee, officer or
shareholder or any individual who, while a trustee, officer or shareholder,
served or is serving as a trustee, officer, director, shareholder or partner of
another entity at the Registrant's express request made a party to a proceeding
by reason of such status, provided that, in the case of a trustee or officer,
the Registrant shall have received (1) a written affirmation by such person of
his good faith belief that he has met the standard of conduct necessary for
indemnification by the Registrant as authorized or required by the bylaws and
(2) a written undertaking by or on his behalf to repay the amount paid or
reimbursed by the Registrant if it shall ultimately be determined that the
applicable standard of conduct was not met. The Registrant's bylaws also (x)
permit the Registrant to provide indemnification and payment or reimbursement of
expenses to a present or former trustee, officer or shareholder who served a
predecessor of the Registrant or to any employee or agent of the Registrant or a
predecessor of the Registrant, (y) provide that any indemnification and payment
or reimbursement of the expenses permitted by the bylaws shall be furnished in
accordance with the procedures provided for indemnification and payment or
reimbursement of expenses under Section 2-418 of the MGCL for directors of
Maryland corporations and (z) permit the Registrant to provide to the trustees
and officers such other and further indemnification or payment or reimbursement
of expenses to the fullest extent permitted by Section 2-418 of the MGCL for
directors of Maryland corporations.
The Registrant has entered into indemnification agreements with each of
its trustees and executive officers. The indemnification agreements require,
among other things, that the Registrant indemnify its trustees and executive
officers to the fullest extent permitted by law and advance to the trustees and
executive officers all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. Under these
agreements, the Registrant must also indemnify and advance all expenses incurred
<PAGE>
by trustees and executive officers seeking to enforce their rights under the
indemnification agreements and may cover trustees and executive officers under
the Registrant's trustees and officers' liability insurance. Although the form
of indemnification agreement offers substantially the same scope of coverage
afforded by law, as a traditional form of contract it may provide greater
assurance to trustees and executive officers that indemnification will be
available.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to trustees and officers of the Registrant pursuant to the
foregoing provisions or otherwise, the Registrant has been advised that,
although the validity and scope of the governing statute have not been tested in
court, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In addition, indemnification may be limited by
state securities laws.
The partnership agreements of ERP Operating Limited Partnership and its
management subsidiaries also provide for indemnification of the Registrant and
its officers and trustees to the same extent that indemnification is provided to
officers and trustees of the Registrant in its Declaration of Trust, and limit
the liability of the Registrant and its officers and trustees to the Operating
Partnership and the Management Partnerships and their respective partners to the
same extent that the liability of the officers and trustees of the Registrant to
the Registrant and its shareholders is limited under the Registrant's
Declaration of Trust.
ITEM 16. EXHIBITS
<TABLE>
<C> <C> <S>
4.1 * - Second Amended and Restated Declaration of Trust
4.2 ** - Second Amended and Restated Bylaws
5 - Opinion of Rosenberg & Liebentritt, P.C.
8 - Opinion of Hogan & Hartson L.L.P.
23.1 - Consent of Ernst & Young LLP
23.2 - Consent of Arthur Andersen LLP
23.3 - Consent of Rosenberg & Liebentritt, P.C. (included in
Exhibit 5)
23.4 - Consent of Hogan & Hartson L.L.P. (included in
Exhibit 8)
24 - Power of Attorney (filed as part of the signature
page to the Registration Statement)
</TABLE>
- --------------------
* Included as Exhibit 3.1 to the Company's Current Report on Form 8-K
dated May 30, 1997 and incorporated herein by reference.
** Included as Exhibit 3.2 to the Company's Current Report on Form 8-K
dated May 30, 1997 and incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of Securities (if the total dollar value of
Securities would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in this registration statement;
PROVIDED, HOWEVER, that subparagraphs (i) and (ii) above do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in the periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration
statement.
<PAGE>
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the Securities offered herein, and the
offering of such Securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the Securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the Securities offered herein, and the offering of such
Securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to existing provisions or arrangements whereby the
registrant may indemnify a trustee, officer or controlling person of the
registrant against liabilities arising under the Securities Act of 1933, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a trustee, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on June 16, 1999.
EQUITY RESIDENTIAL PROPERTIES TRUST
By: /s/ Douglas Crocker II
-----------------------------------------
Douglas Crocker II, President, Chief
Executive Officer and Trustee
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints Douglas Crocker II and Sheli
Z. Rosenberg, or either of them, his attorneys-in-fact and agents, with full
power of substitution and resubstitution for him in any and all capacities,
to sign any or all amendments or post-effective amendments to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith or in connection with the
registration of the Securities under the Exchange Act, with the Securities
and Exchange Commission, granting unto each of such attorneys-in-fact and
agents full power and authority to do and perform each and every act and
thing requisite and necessary in connection with such matters as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of such attorneys-in-fact and agents or his
substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on June 16, 1999:
<TABLE>
<CAPTION>
NAME
- ----
<S> <C>
/s/ Samuel Zell Chairman of the Board of Trustees
- ------------------------------------
Samuel Zell
/s/ Douglas Crocker II President, Chief Executive Officer and Trustee
- ------------------------------------
Douglas Crocker II
/s/ David J. Neithercut Executive Vice President and Chief Financial Officer
- ------------------------------------
David J. Neithercut
/s/ Michael J. McHugh Executive Vice President, Chief Accounting Officer
- ------------------------------------ and Treasurer
Michael J. McHugh
/s/ Gerald A. Spector Executive Vice President, Chief Operating Officer and
- ------------------------------------ Trustee
Gerald A. Spector
/s/ Stephen O. Evans Executive Vice President and Trustee
- ------------------------------------
Stephen O. Evans
/s/ Sheli Z. Rosenberg Trustee
- ------------------------------------
Sheli Z. Rosenberg
/s/ James D. Harper, Jr. Trustee
- ------------------------------------
James D. Harper, Jr.
/s/ Errol R. Halperin Trustee
- ------------------------------------
Errol R. Halperin
/s/ John Alexander Trustee
- ------------------------------------
John Alexander
/s/ B. Joseph White Trustee
- ------------------------------------
B. Joseph White
/s/ Henry H. Goldberg Trustee
- ------------------------------------
Henry H. Goldberg
/s/ Jeffrey H. Lynford Trustee
- ------------------------------------
Jeffrey H. Lynford
Trustee
- ------------------------------------
Edward Lowenthal
/s/ Boone A. Knox Trustee
- ------------------------------------
Boone A. Knox
/s/ Michael N. Thompson Trustee
- ------------------------------------
Michael N. Thompson
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Exhibit
Number Description
- -------- -----------
<C> <S>
4.1 * Second Amended and Restated Declaration of Trust
4.2 ** Second Amended and Restated Bylaws
5 Opinion of Rosenberg & Liebentritt, P.C.
8 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Rosenberg & Liebentritt, P.C. (included
in Exhibit 5)
23.4 Consent of Hogan & Hartson L.L.P. (included in
Exhibit 8)
24 Power of Attorney (filed as part of the signature
page to the Registration Statement)
</TABLE>
- --------------------
* Included as Exhibit 3.1 to the Company's Current Report on Form 8-K
dated May 30, 1997 and incorporated herein by reference.
** Included as Exhibit 3.2 to the Company's Current Report on Form 8-K
dated May 30, 1997 and incorporated herein by reference.
<PAGE>
Exhibit 5
[Letterhead of Rosenberg & Liebentritt, P.C.]
June 16, 1999
Board of Trustees
Equity Residential Properties Trust
Two North Riverside Plaza
Suite 400
Chicago, Illinois 60606
Ladies and Gentlemen:
We are counsel to Equity Residential Properties Trust, a Maryland
real estate investment trust (the "Company"), in connection with its
registration statement on Form S-3 (the "Registration Statement") filed with
the Securities and Exchange Commission relating to proposed resales of up to
3,089,547 shares (the "Shares") of the Company's common shares of beneficial
interest, $.01 par value per share, that may be offered and sold from time to
time by certain holders (the "Selling Shareholders") if and to the extent
that the Selling Shareholders tender for redemption their 3,089,547 units
(the "Units") of limited partnership interest in ERP Operating Limited
Partnership (the "Operating Partnership"), as more fully described in the
prospectus that forms a part of the Registration Statement and as may be set
forth in one or more supplements to the Prospectus. This opinion letter is
furnished to you at your request to enable you 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.
We assume that the amount, issuance and sale of the Shares to be
offered by the Selling Shareholders from time to time will be consistent with
the procedures and terms described in the Registration Statement and in
accordance with the Company's Second Amended and Restated Declaration of
Trust, as amended (the "Declaration of Trust"), and applicable Maryland law.
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 of the Company,
as certified by the Maryland State Department of Assessments and
Taxation on June 16, 1999, and by the Secretary of the Company on
the date hereof as 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.
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 2
4. Resolutions of the Board of Trustees of the Company adopted on
May 14, 1999, as certified by the Secretary of the Company on the
date hereof as then being complete, accurate and in effect,
approving the issuance and registration of the Shares and related
matters.
5. The following agreements (the "Contribution Agreements"):
(a) The Omnibus Contribution Agreement dated July 1, 1998, by and
among the Contributors named on Exhibit A to the Agreement and
the Partnership;
(b) the Agreement for Contribution of Real Estate and Related
Property dated April 22, 1998, by and among the Contributors
listed on the signature pages of the Agreement and the
Partnership;
(c) the Agreement for Contribution of Real Estate and Related
Property dated August 21, 1998, by and between Esprit Del Sol
LLC, a California limited liability company, and the
Partnership;
(d) the Agreement for Contribution of Real Estate and Related
Property dated April 17, 1998, by and between Summer Creek
Apartments Limited Partnership, a Minnesota limited
partnership, and the Partnership;
(e) the Agreement for Contribution of Real Estate and Related
Property dated May 19, 1998, by and between Lexington Farm,
L.P., a Georgia limited partnership, and the Partnership;
(f) the Agreement for Contribution of Real Estate and Related
Property dated May 19, 1998, by and between Defoor Village
Apartments, L.P., a Georgia limited partnership, and the
Partnership;
(g) the Agreement for Contribution of Real Estate and Related
Property dated May 19, 1998, by and between Focus/Ridge, L.P.,
a Georgia limited partnership, and the Partnership; and
(h) the Agreement for Contribution of Real Estate and Related
Property dated May 19, 1998, by and between Norcoss Woods,
Ltd., a Georgia general partnership, and the Partnership.
6. The Partnership's Fifth Amended and Restated Agreement of Limited
Partnership dated as of August 1, 1998 (the "Partnership
Agreement"), as
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 3
certified as of the date hereof by the Secretary of the Company, in
its capacity as managing general partner of the Partnership, 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 certified, telecopied, photostatic, or
reproduced copies. We have also assumed the accuracy, completeness and
authenticity of the foregoing certifications of trust officers and statements
of fact, on which we are relying, and we have made no independent
investigations thereof. We also have assumed that the Shares will not be
issued in violation of the ownership limit contained in the Company's
Declaration of Trust. 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 opinion, 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 opinion below that relates to the laws of the
State of Maryland, 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 the Shares, if and when issued and delivered in accordance with
the terms of the Partnership Agreement and applicable resolutions of the
Board of Trustees of the Company authorizing the issuance of the Shares upon
redemption of the Units as contemplated thereby, will be validly issued,
fully paid and non-assessable under the laws of the State of Maryland. In
rendering the foregoing opinion, we have assumed the receipt by the Company
of the Units being redeemed as specified in the Partnership Agreement and the
resolutions of the Board of Trustees authorizing the issuance and sale of the
Shares.
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 of the
Registration Statement on the date of this opinion letter and 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.
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 4
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 opinion, we do not
thereby admit that we are an "expert" within the meaning of the Securities
Act.
Very truly yours,
ROSENBERG & LIEBENTRITT, P.C.
/s/ Rosenberg & Liebentritt, P.C.
<PAGE>
Exhibit A
June 16, 1999
Board of Trustees
Equity Residential Properties Trust
Two North Riverside Plaza
Suite 400
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 "Trust"), in
connection with its registration statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission relating to
proposed resales of up to 3,089,547 common shares of beneficial interest,
$.01 par value per share (the "Common Shares"), which may be issued if and to
the extent that holders of 3,089,547 units of limited partnership interest,
("Units") in ERP Operating Limited Partnership, an Illinois limited
partnership (the "Partnership") tender such Units for redemption. This
opinion letter is furnished to you at your request to enable you 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 of the
Trust, as certified by the Maryland State Department of
Assessments and Taxation (the "SDAT") on June 16, 1999, and by
the Secretary of the Trust on the date hereof as being complete,
accurate and in effect.
3. The Seconded Amended and Restated Bylaws of the Trust, as
certified by the Secretary of the Trust on the date hereof as
being complete, accurate and in effect.
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 2
4. Resolutions of the Board of Trustees of the Trust adopted on May
14, 1998, as certified by the Secretary of the Trust on the date
hereof as being complete, accurate and in effect, relating to the
issuance of Units.
5. (a) The Agreement for Omnibus Contribution Agreement (the
"Lincoln Agreement") dated July 1, 1998, by and among
the Contributors named on Exhibit A to the Lincoln
Agreement and the Partnership;
(b) the Agreement for Contribution of Real Estate and
Related Property (the "Magnum Agreement") dated April
22, 1998, by and among the Contributors listed on the
signature pages of the Magnum Agreement and the
Partnership;
(c) the Agreement for Contribution of Real Estate and
Related Property (the "Esprit Del Sol Agreement") dated
August 21, 1998, by and between Esprit Del Sol LLC, a
California limited liability company, and the
Partnership;
(d) the Agreement for Contribution of Real Estate and
Related Property (the "Summer Creek Agreement") dated
April 17, 1998, by and between Summer Creek Apartments
Limited Partnership, a Minnesota limited partnership,
and the Partnership;
(e) the Agreement for Contribution of Real Estate and
Related Property (the "Lexington Village Agreement")
dated May 19, 1998, by and between Lexington Farm,
L.P., a Georgia limited partnership, and the
Partnership;
(f) the Agreement for Contribution of Real Estate and
Related Property (the "Defoor Agreement") dated May 19,
1998, by and between Defoor Village Apartments, L.P., a
Georgia limited partnership, and the Partnership;
(g) the Agreement for Contribution of Real Estate and
Related Property (the "Plantation Ridge Agreement")
dated May 19, 1998, by and between Focus/Ridge, L.P., a
Georgia limited partnership, and the Partnership; and
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 3
(h) the Agreement for Contribution of Real Estate and
Related Property dated May 19, 1998, by and between
Norcoss Woods, Ltd., a Georgia general partnership, and
the Partnership (the "Wynbrook Agreement" and together
with the Lincoln Agreement, the Magnum Agreement, the
Esprit Del Sol Agreement, the Summer Creek Agreement,
the Lexington Village Agreement, the Defoor Agreement
and the Plantation Ridge Agreement, the "Contribution
Agreements").
6. The Fifth Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of August 1, 1998
(the "Partnership Agreement"), as certified as of the date
hereof by the Secretary of the Trust, in its capacity as
managing general partner of the Partnership, as being
complete, accurate and in effect.
In our examination of the aforesaid certificates and documents, we
have assumed the genuineness of all signatures, the legal capacity of all
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 that the Common Shares will not be issued in
violation of the ownership limit contained in the Trust's Declaration of Trust.
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
applicable provisions of Maryland law. We express no opinion herein as to any
other laws, statutes, ordinances, rules or regulations or as to compliance with
the securities (or "blue sky") laws, rules or regulations.
Based upon, subject to and limited by the foregoing, we are of the
opinion that the Common Shares, if and when issued and delivered in accordance
with the terms of the Partnership Agreement and applicable resolutions of the
Board of Trustees of the Trust authorizing the issuance of the Common Shares
upon redemption of the Units as contemplated thereby, will be validly issued,
fully paid and nonassessable under the laws of the State of Maryland. In
rendering the foregoing opinion, we have assumed the receipt by the Trust of the
Units being redeemed as specified in the Partnership Agreement and the
resolutions of the Board of Trustees authorizing the issuance and sale of the
Common Shares.
This opinion letter has been prepared for your use in connection
with the Registration Statement and speaks as of the date hereof. We assume no
obligation to advise you of any changes in the foregoing subsequent to the
delivery of this opinion letter.
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 4
We hereby consent to the filing of this opinion letter as EXHIBIT A
to the opinion of Rosenberg & Liebentritt, P.C., filed as Exhibit 5.1 to the
Registration Statement, and 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.
<PAGE>
[Letterhead of Hogan & Hartson L.L.P.]
June 16, 1999
Board of Trustees
Equity Residential Properties Trust
Two North Riverside Plaza
Suite 400
Chicago, Illinois 60606
Ladies and Gentlemen:
We have acted as counsel to Equity Residential Properties Trust, Inc., a
Maryland real estate investment trust (the "Company"), in connection with the
registration statement on Form S-3 (the "Registration Statement") and the
prospectus included therein, which includes certain documents incorporated by
reference including the Company's Annual Report on Form 10-K for the year
ended December 31, 1998 (the "Prospectus"), filed by the Company with the
Securities and Exchange Commission relating to the possible issuance by the
Company of up to 3,089,547 shares (the "Common Shares") of common stock, par
value $.01 per share, if and to the extent that, the Company elects to issue the
Common Shares to the holders of 3,089,547 units of Limited Partnership interest
("Units") in ERP Operating Limited Partnership. (the "Operating Partnership")
upon the tender of such Units for redemption. In connection with the
Registration Statement, we have been asked to provide you with our opinions on
certain federal income tax matters. Capitalized terms used in this letter and
not otherwise defined herein have the meanings set forth in the Registration
Statement.
The opinions set forth in this letter are based on relevant provisions of
the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
thereunder (including proposed and temporary Treasury Regulations), and
interpretations of the foregoing as expressed in court decisions, the
legislative history, and existing administrative rulings and practices of the
Internal Revenue Service (including its practices and policies in issuing
private letter rulings, which are not binding on the Internal Revenue Service
except with respect to a taxpayer that receives such a ruling), all as of the
date hereof. These provisions and interpretations are subject to change, which
may or may not be retroactive in effect, that might result in modifications of
our opinions. Our opinions do not foreclose the possibility of a contrary
determination by the Internal Revenue Service or a court of competent
jurisdiction, or of a contrary position by the Internal Revenue Service or the
Treasury Department in regulations or rulings issued in the future.
In rendering our opinions, we have examined such statutes, regulations,
records, certificates and other documents as we have considered necessary or
appropriate as a basis for such opinions, including the following:
(1) the Registration Statement;
(2) the Prospectus;
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 2
(3) the Second Amended and Restated Declaration of Trust of the Company as
certified by the State Department of Assessments and Taxation of the State of
Maryland on June 16, 1999 and as certified by the Secretary of the Company on
the date hereof as being complete, accurate and in effect;
(4) the Fifth Amended and Restated ERP Operating Limited Partnership
Agreement of Limited Partnership, dated August 1, 1998;
(5) the articles of incorporation, by-laws and stock ownership
information of Equity Residential Properties Management Corp., Equity
Residential Properties Management Corp. II, Evans Withycombe Management, Inc.
and ML Services, Inc. (the "Management Corps."), and Wellsford Real
Properties, Inc. ("WRP Newco"), a company in which the Operating Partnership
owns non-voting preferred stock and a minority of the common stock;
(6) the partnership agreements or limited liability company agreements of
Equity Residential Properties Management Limited Partnership and Equity
Residential Properties Management Limited Partnership II (collectively, the
"Management Partnerships"), and all other partnerships or limited liability
companies in which the Operating Partnership has an interest, including Evans
Withycombe Residential, L.P. (collectively, the partnerships in which either the
Operating Partnership or Evans Withycombe Residential, L.P. has an interest,
other than the Management Partnerships, may be referred to as the "Subsidiary
Partnerships") other than Subsidiary Partnerships formed after January 1, 1997
and those acquired in connection with the acquisition of Merry Land & Investment
Company, Inc. ("Merry Land");
(7) the articles of incorporation, by-laws and stock ownership information
of the various "qualified REIT subsidiaries" wholly-owned by the Company
(collectively, the "QRS Corporations");
(8) the Joint Proxy Statement/Prospectus/Information Statement furnished to
the shareholders of the Company on September 14, 1998 in connection with the
acquisition of Merry Land by the Company (the "Proxy Statement"); and
(9) other necessary documents.
The opinions set forth in this letter also are premised on certain written
representations of the Company and the Operating Partnership made to us, which
relate, INTER
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 3
ALIA, to the Company and to EQR and Wellsford as predecessors by
merger to the Company (the "Representation Letter").
In our review, we have assumed, with your consent, that:
(i) All of the representations and statements set forth in the documents
we reviewed (the "Reviewed Documents") are true and correct, any such
representation or statement made as a belief or made "to the knowledge of" or
similarly qualified is correct and accurate without such qualification, and all
of the obligations imposed by any such documents on the parties thereto have
been and will be performed or satisfied in accordance with their terms.
(ii) The Company, the Operating Partnership, the Management Partnerships,
the Management Corps., the QRS Corporations and the Subsidiary Partnerships each
have been and will continue to be operated in the manner described in the
relevant partnership agreement, limited liability company agreement, articles of
incorporation or other organizational documents and in the Prospectus;
(iii) There are no agreements or understandings between the Company or the
Operating Partnership, on the one hand, and the owners (or related parties) of
the voting stock of the Management Corps. and WRP Newco, on the other, that are
inconsistent with the Operating Partnership being considered to be the record or
beneficial owner of less than 10% of the outstanding voting stock of any of the
Management Corps. or WRP Newco.
(iv) All signatures to the Reviewed Documents are genuine, all documents
were properly executed, all documents submitted to us as originals are
authentic, all documents submitted to us as copies conform to the originals, and
all original documents from which any copies were made are authentic.
(v) The Company is a validly organized and duly incorporated real estate
investment trust under the laws of the State of Maryland. The Management
Corps., WRP Newco and the QRS Corporations are validly organized and duly
incorporated corporations under the laws of the states in which they are
incorporated. The Operating Partnership, the Management Partnerships, and the
Subsidiary Partnerships are duly organized and validly existing partnerships or
limited liability companies under the laws of the states in which they are
organized.
For the purpose of our opinions, we have not made an independent
investigation of the facts set forth in the Reviewed Documents. We consequently
have assumed that the
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 4
information presented in such documents (including the Representation Letter
and the Proxy Statement) or otherwise furnished to us accurately and
completely describes all material facts relevant to our opinions. No facts
have come to our attention, however, that would cause us to question the
accuracy and completeness of such facts or documents in a material way. Any
variation or difference in the facts from those set forth in the Reviewed
Documents may affect the conclusions stated herein. In addition, if any one
of the statements, representations, warranties or assumptions upon which we
have relied to issue this opinion letter is incorrect, our opinions might be
adversely affected and may not be relied upon.
Based upon, and subject to, the foregoing and the next paragraph
below, we are of the opinion that:
1. The Company was organized and has operated in conformity with the
requirements for qualification and taxation as a REIT under the
Code for its taxable years ended December 31, 1992, December 31,
1993, December 31, 1994, December 31, 1995, December 31, 1996,
December 31, 1997, and December 31, 1998, and the Company's
current organization and method of operation should enable it to
continue to meet the requirements for qualification and taxation
as a REIT; and
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 5
2. The discussion under the heading "Federal Income Tax
Considerations" in the Company's Annual Report on Form 10-K for
the year ended December 31, 1998, which is incorporated by
reference in the Prospectus, and the discussion in the Prospectus
under the heading "Additional Federal Income Tax Considerations,"
to the extent that they describe provisions of federal income tax
law or legal conclusions, are correct in all material respects.
This opinion letter is limited to the two opinions stated above. Our
opinions do not, and are not intended to, address the tax consequences to any
holder of Units with respect to the acquisition, ownership, redemption or
disposition of its Units. For purposes of the second opinion stated above, the
term "Prospectus" does not include the documents incorporated by reference in
the Prospectus other than the Company's Annual Report on Form 10-K for the year
ended December 31, 1998.
The Company's qualification and taxation as a REIT depends upon the
Company's ability to meet on a continuing basis, through actual annual operating
and other results, the various requirements under the Code and described in the
Prospectus with regard to, among other things, the sources of its gross income,
the composition of its assets, the level of its distributions to stockholders,
and the diversity of its share ownership. Hogan & Hartson L.L.P. will not
review the Company's compliance with these requirements on a continuing basis.
No assurance can be given that the actual results of the operations of the
Company, the Operating Partnership, the Management Partnerships, the Management
Corps., the QRS Corporations and the Subsidiary Partnerships, the sources of
their income, the nature of their assets, the level of the Company's
distributions to shareholders and the diversity of its share ownership for any
given taxable year will satisfy the requirements under the Code for
qualification and taxation as a REIT.
An opinion of counsel merely represents counsel's best judgment with
respect to the probable outcome on the merits and is not binding on the Internal
Revenue Service or the courts. There can be no assurance that positions
contrary to our opinions will not be taken by the Internal Revenue Service, or
that a court considering the issue would not hold contrary to our opinions.
Furthermore, no assurance can be given that future legislative, judicial or
administrative changes, on either a prospective or retroactive basis, would not
adversely affect the accuracy of the opinions expressed herein. Nevertheless,
we undertake no responsibility to advise you of any such changes.
<PAGE>
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 6
This opinion letter has been prepared for your benefit in connection
with the filing of the Registration Statement. This opinion letter may not
be used or relied upon by any other person or for any other purpose and may
not be disclosed, quoted, filed with any governmental agency or otherwise
referred to without our prior written consent of this firm. We hereby
consent to the filing of this opinion letter as Exhibit 8.1 to the
Registration Statement and to the reference to Hogan & Hartson L.L.P. under
the caption "Federal Income Tax Considerations" in 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.
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Equity Residential
Properties Trust for the registration of 3,089,547 common shares and to the
incorporation by reference therein of our reports indicated below with respect
to the financial statements indicated below included in Equity Residential
Properties Trust's filings as indicated below, filed with the Securities and
Exchange Commission.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Date of Auditors'
Financial Statements Report Filing
- -------------------------------------------------------------------------------
<S> <C> <C>
Consolidated financial February 17, 1999 1998 Annual Report on
statements and schedule of except for Note Form 10-K
Equity Residential Properties 24, as to which
Trust at December 31, 1998 and the date is March
1997 and for each of the three 5, 1999
years in the period ended
December 31, 1998
Statement of Revenue and Certain April 30, 1998 Current Report on Form
Expenses of Sonterra at Foothill 8-K dated June 25, 1998
Ranch for the year ended
December 31, 1997
Combined Statement of Revenue April 30, 1998 Current Report on Form
and Certain Expenses of the 8-K dated June 25, 1998
Lincoln Property Company
Probable Properties for the year
ended December 31, 1997
Statement of Revenue and Certain May 1, 1998 Current Report on Form
Expenses of The Emerson Place 8-K dated June 25, 1998
Apartments for the year ended
December 31, 1997
Combined Statement of Revenue May 1, 1998 Current Report on Form
and Certain Expenses of The 8-K dated June 25, 1998
Magnum Probable Properties for
the year ended December 31, 1997
Combined Statement of Revenue May 29, 1998 Current Report on Form
and Certain Expenses of the 8-K dated June 25, 1998
Frederick Probable Properties
for the year ended December 31,
1997
<PAGE>
<CAPTION>
- -------------------------------------------------------------------------------
Date of Auditors'
Financial Statements Report Filing
- -------------------------------------------------------------------------------
<S> <C> <C>
Statement of Revenue and Certain June 2, 1998 Current Report on Form
Expenses of Harbor Pointe for 8-K dated June 25, 1998
the year ended December 31, 1997
Statement of Revenue and Certain June 4, 1998 Current Report on Form
Expenses of The Fairfield for 8-K dated June 25, 1998
the year ended December 31, 1997
Combined Statement of Revenue June 4, 1998 Current Report on Form
and Certain Expenses of the 8-K dated June 25, 1998
Lakes at Vinings Apartments and
Martins Landing Apartments
Probable Properties for the year
ended December 31, 1997
Statement of Revenue and Certain June 9, 1998 Current Report on Form
Expenses of The Northridge 8-K dated June 25, 1998
Apartments for the year ended
December 31, 1997
Combined Statement of Revenue June 10, 1998 Current Report on Form
and Certain Expenses of TCRS 8-K dated June 25, 1998
Properties for the year ended
December 31, 1997
Statement of Revenue and Certain June 11, 1998 Current Report on Form
Expenses of the Portside Towers 8-K dated June 25, 1998
Apartments for the year ended
December 31, 1997
Statement of Revenue and Certain June 11, 1998 Current Report on Form
Expenses of The Coconut Palm 8-K dated June 25, 1998
Club Apartments for the year
ended December 31, 1997
Combined Statement of Revenue June 18, 1998 Current Report on Form
and Certain Expenses of The 8-K dated June 25, 1998
Focus Group Properties for the
year ended December 31, 1997
</TABLE>
/S/ ERNST & YOUNG LLP
Chicago, Illinois
June 16, 1999
<PAGE>
Exhibit 23.2
Consent of the Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 16, 1998
included in Equity Residential Properties Trust's Form 8-K (No. 001-12252)
dated July 23, 1998.
Atlanta, Georgia
June 16, 1999
