-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DEgyYtdJnBXCTRQiZZQV84/fQVDNTPJNDXHjw8XjgOXX6AAz5CQR0jJYFSW5TSin WlrKXRBTIxOZNQUcDhswMw== 0000950131-96-006264.txt : 19961212 0000950131-96-006264.hdr.sgml : 19961212 ACCESSION NUMBER: 0000950131-96-006264 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19961205 ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19961211 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: EQUITY RESIDENTIAL PROPERTIES TRUST CENTRAL INDEX KEY: 0000906107 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 363877868 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12252 FILM NUMBER: 96678938 BUSINESS ADDRESS: STREET 1: TWO N RIVERSIDE PLZ STREET 2: STE 400 CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3124741300 MAIL ADDRESS: STREET 1: TWO N RIVERSIDE PLAZA STREET 2: SUITE 450 CITY: CHICAGO STATE: IL ZIP: 60606 8-K 1 FORM 8-K As filed with the Securities and Exchange Commission on December 11, 1996 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): DECEMBER 5, 1996 EQUITY RESIDENTIAL PROPERTIES TRUST (EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER) MARYLAND 1-12252 36-3877868 (STATE OR OTHER JURISDICTION (COMMISSION (I.R.S. EMPLOYER OF INCORPORATION OR ORGANIZATION) FILE NUMBER) IDENTIFICATION NO.) TWO NORTH RIVERSIDE PLAZA, SUITE 450 60606 CHICAGO, ILLINOIS (ZIP CODE) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) Registrant's telephone number, including area code: (312) 474-1300 NOT APPLICABLE (FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT) ================================================================================ ITEM 7. Financial Statements, Pro forma Financial Information and Exhibits Exhibit Number Exhibit ------- ------- 1 Terms Agreement dated December 5, 1996, which incorporates the terms and provisions of Equity Residential Properties Trust (a Maryland real estate investment trust) -- Common Shares of Beneficial Interest, Preferred Shares of Beneficial Interest and Depositary Shares -- Standard Underwriting Provisions, dated December 2, 1996, each of which is being filed pursuant to Regulation S-K, Item 601(b)(1) as an exhibit to the Registrant's registration statement on Form S-3, file no. 333-12211, under the Securities Act of 1933, as amended, and which, as this Form 8-K filing is incorporated by reference in such registration statement, is set forth in full in such registration statement. 5 Opinion of Rosenberg & Liebentritt, P.C., which is being filed pursuant to Regulation 601(b)(5) as an exhibit to the Registrant's registration statement on Form S-3, file no. 333-12211, under the Securities Act of 1933, as amended, and which, as this Form 8-K filing is incorporated by reference in such registration statement, is set forth in full in such registration statement. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. EQUITY RESIDENTIAL PROPERTIES TRUST Date: December 11, 1996 By: /s/ Bruce C. Strohm ----------------------------------- Bruce C. Strohm, Secretary, Executive Vice President and General Counsel 2 EX-1 2 TERMS AGREEMENT/STANDARD UNDERWRITING PROVISIONS EQUITY RESIDENTIAL PROPERTIES TRUST (a Maryland real estate investment trust) COMMON SHARES OF BENEFICIAL INTEREST, PAR VALUE $.01 PER SHARE TERMS AGREEMENT --------------- Dated: December 5, 1996 To: Equity Residential Properties Trust Two North Riverside Plaza Chicago, Illinois 60606 Attention: Douglas Crocker Ladies and Gentlemen: We, Smith Barney Inc. (the "Underwriters"), understand that Equity Residential Properties Trust ("EQR") proposes to issue and sell 3,600,000 of its Common Shares of Beneficial Interest, $.01 par value per share, being collectively hereinafter referred to as the "Initial Underwritten Securities." In addition, we understand that EQR proposes to grant to the Underwriters an option to purchase up to an additional 540,000 of its Common Shares of Beneficial Interest, $.01 par value per share, for the sole purpose of covering over-allotments in connection with the sale of the Initial Underwritten Securities (the "Option Securities"). Subject to the terms and conditions set forth or incorporated by reference herein, the Underwriters offer to purchase the Initial Underwritten Securities and, to the extent any are purchased, the Option Securities, at the purchase price set forth below. The Underwritten Securities shall have the following terms: Common Shares Title of Securities: Common Shares of Beneficial Interest Number of Shares: 3,600,000 Par Value: $.01 per share Price to Public: $41.25 per share Purchase price per share: Compensation to the Underwriters equal to $2.17 per Common Share; provided, that compensation for sales of 10,000 or more Common Shares to a single purchaser will be $.83 per Common Share. Number of Option Securities, if any, that may be purchased by the Underwriters: 540,000 Delayed Delivery Contracts: Not authorized Additional co-managers, if any: None Other terms: Payment to be made to EQR by wire transfer of immediately available funds to the designated accounts of EQR to be delivered on the closing date set forth below. EQR will not, between the date hereof and the date which is 30 days from the date hereof, with respect to the Common Shares covered hereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any Common Shares (except for Common Shares issued pursuant to transactions exempt from registration under the 1933 Act, and reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee and trustee share options plans); provided, however, that in the event that the Underwriters exercise the over- allotment option for the Option Securities, the foregoing agreement by EQR not to offer or sell, grant any option for the sale of, or enter into any agreement to sell, any Common Shares shall be null and void and, provided further, that EQR may offer to sell, grant any option for the sale of, or enter into any agreement to sell Common Shares in privately negotiated, non- underwritten transactions including, without limitation, offers to sell or agreements to sell Common Shares in exchange for multifamily properties or securities of another issuer, or any combination thereof. Closing date and location: December 11, 1996, Rosenberg & Liebentritt, P.C., Two North Riverside Plaza, Suite 1515, Chicago, Illinois 60606 All the provisions contained in the document attached as Annex A hereto entitled "Equity Residential Properties Trust (a Maryland real estate investment trust) -- Common Shares of Beneficial Interest, Preferred Shares of Beneficial Interest and Depositary Shares -- Standard Underwriting Provisions" are hereby incorporated by reference in their entirety herein and shall be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in fun herein. Terms defined in such document are used herein as therein defined. 2 Please accept this offer no later than 5:00 (five o'clock) P.M. (New York City time) on December 5, 1996 by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us. Very truly yours, SMITH BARNEY INC. By: /s/ Mark R. Patterson --------------------------- Name: Mark R. Patterson Title: Managing Director Acting on behalf of itself Accepted: By: EQUITY RESIDENTIAL PROPERTIES TRUST, for itself and as the general partner of ERP Operating Limited Partnership By: /s/ David J. Neithercut -------------------------------------- Name: David J. Neithercut Title: Executive Vice President and Chief Financial Officer 3 EQUITY RESIDENTIAL PROPERTIES TRUST (a Maryland real estate investment trust) Common Shares of Beneficial Interest, Preferred Shares of Beneficial Interest and Depositary Shares STANDARD UNDERWRITING PROVISIONS -------------------------------- December 2, 1996 Equity Residential Properties Trust, a Maryland real estate investment trust ("EQR") may from time to time issue and sell Common Shares of Beneficial Interest, $.01 par value (the "Common Shares"), and/or one or more series of its Preferred Shares of Beneficial Interest, $.01 par value (the "Preferred Shares"), or Preferred Shares represented by depositary shares (the "Depositary Shares") represented by depositary receipts (the "Depositary Receipts"), in one or more offerings on terms to be determined at the time of sale (the Common Shares, the Preferred Shares, the Depositary Shares and the Depositary Receipts are collectively referred to herein as the "Securities"). Each series of Preferred Shares may vary, as to the specific number of shares, title, stated value, liquidation preference, issuance price, ranking, dividend rate or rates (or method of calculation), dividend payment dates, any redemption or sinking fund requirements, any conversion provisions and any other variable terms as set forth in the applicable articles supplementary to EQR's Declaration of Trust (the "Articles Supplementary") relating to such Preferred Shares and filed with the State Department of Assessments and Taxation of Maryland ("SDAT") pursuant to Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland (the "Maryland REIT Statute"). As used herein, "you" and "your," unless the context otherwise requires, shall mean the parties to whom the applicable Terms Agreement (as hereinafter defined) is addressed as co-managers with respect to Underwritten Securities (as hereinafter defined) purchased pursuant thereto. Whenever EQR determines to make an offering of Securities through you or through an underwriting syndicate managed by you, EQR will enter into an agreement (the "Terms Agreement") providing for the sale of such Securities (the "Underwritten Securities") to, and the purchase and offering thereof by, you and such other underwriters, if any, selected by you as have authorized you to enter into such Terms Agreement on their behalf (the "Underwriters," which term shall include you whether acting alone in the sale of the Underwritten Securities or as a member or members of an underwriting syndicate and any Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement relating to the offering of Underwritten Securities shall specify the number of Underwritten Securities of each class or series to be initially issued (the "Initial Underwritten Securities"), whether the Initial Underwritten Securities shall be in the form of Depositary Shares and if so the fractional amount of Preferred Shares represented by each such Depositary Share, the names of the Underwriters participating in such offering (subject to substitution as provided in Section 10 hereof), the number of Initial Underwritten Securities which each such Underwriter severally agrees to purchase, the names of Underwriters acting as co-managers, if any, in connection with such offering, the price at which the Initial Underwritten Securities are to be purchased by the Underwriters from EQR, the initial public offering price, if any, of the Initial Underwritten Securities, the time and place of delivery and payment, any delayed delivery arrangements and any other variable terms of the Initial Underwritten Securities (including, but not limited to, current ratings (in the case of Preferred Shares and Depositary Shares only), designations, liquidation preferences, conversion provisions, redemption provisions, and sinking fund requirements applicable to the Initial Underwritten Securities). In addition, each Terms Agreement shall specify whether EQR has agreed to grant to the Underwriters an option to purchase additional Underwritten Securities to cover over-allotments, if any, and the number of Underwritten Securities subject to such option (the "Option Securities"). As used herein, the term "Underwritten Securities" shall include the Initial Underwritten Securities and all or any portion of the Option Securities agreed to be purchased by the Underwriters as provided herein, if any. The Terms Agreement, which shall be substantially in the form of Exhibit A hereto, may take the form of an exchange of any standard form of written telecommunication between you and EQR. Each offering of Underwritten Securities through you or through an underwriting syndicate managed by you will be governed by these Standard Underwriting Provisions as incorporated by reference into, and supplemented by, the applicable Terms Agreement, and such Terms Agreement shall inure to the benefit of and be binding upon each Underwriter participating in the offering of such Underwritten Securities. If the applicable Terms Agreement so provides, the Preferred Shares will be deposited by EQR against delivery of Depositary Receipts to be issued by the depositary (the "Depositary") named in a deposit agreement (the "Deposit Agreement"), to be entered into by and among EQR, the Depositary and the holders from time to time of the Depositary Receipts issued thereunder and evidencing Depositary Shares. If the Preferred Shares are not represented by Depositary Receipts, then all references herein to Depositary Receipts and Depositary Shares of any kind, to the Deposit Agreement or the Depositary, and to any agreements, instruments or persons related thereto shall be disregarded and all representations, conditions, opinions and other documents relating to the foregoing shall not apply to this Agreement for purposes of the applicable Terms Agreement. EQR has filed with the Securities and Exchange Commission (the "Commission") registration statements on Form S-3 (No. 33-96792 and No. 333- -2- ___________) for the registration of the Securities under the Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations"), and EQR has filed such amendments thereto as may have been required prior to the execution of the applicable Terms Agreement. Such registration statements (as amended, if applicable) have been declared effective by the Commission. Such registration statements and the prospectuses constituting parts thereof (including each prospectus supplement relating to the offering of Underwritten Securities pursuant to Rule 415 of the 1933 Act Regulations (the "Prospectus Supplement")), including all documents incorporated therein by reference, as from time to time amended or supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are referred to herein as the "Registration Statement" and the "Prospectus," respectively; provided, that if any revised prospectus shall be provided to you by EQR for use in connection with the offering of Underwritten Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement became effective (whether or not such revised prospectus is required to be filed by EQR pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus" shall refer to each such revised prospectus from and after the time it is first provided to you for such use; provided, further, that a Prospectus Supplement shall be deemed to have supplemented the Prospectus only with respect to the offering of Underwritten Securities to which it relates. All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus shall be deemed to mean and include the filing of any document under the 1934 Act which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be. EQR is the sole general partner of ERP Operating Limited Partnership, a limited partnership organized under the laws of the State of Illinois ("ERP"), and owns the percentage of ERP's partnership interests specified in the most recent Prospectus Supplement. ERP owns all of the issued and outstanding shares of preferred stock of Equity Residential Properties Management Corp., a Delaware corporation, Equity Residential Properties Management Corp. II, a Delaware corporation, and Equity Residential Properties Management Corp. III, a Delaware corporation (collectively, the "Management Corporations"). The term "subsidiary" or "subsidiaries," when used with respect to EQR, shall include (i) ERP, (ii) the Management Corporations, and (iii) any entity the operations of which are included in the consolidated financial statements for EQR for the most recent fiscal period included in the Prospectus. -3- SECTION 1. REPRESENTATIONS AND WARRANTIES. ------------------------------ (a) EQR and ERP, jointly and severally, represent and warrant to you and each other Underwriter named in the applicable Terms Agreement, as of the date thereof ("Representation Date"), as follows: (i) The Registration Statement and the Prospectus, at the time the Registration Statement became effective, complied, and as of each Representation Date will comply, in all material respects with the requirements of the 1933 Act and 1933 Act Regulations; the Registration Statement, at the time the Registration Statement became effective, did not, and as of each Representation Date, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus, as of the Representation Date and Closing Time (as hereinafter defined) will not, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to EQR in writing by any Underwriter concerning such Underwriter through you expressly for use in the Registration Statement or Prospectus. (ii) Each preliminary prospectus, preliminary prospectus supplement and Prospectus Supplement filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when so filed in all material respects with the 1933 Act and the 1933 Act Regulations. (iii) No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceeding for that purpose has been instituted or, to the knowledge of EQR, threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of EQR or ERP, threatened by the Commission or by the state securities authority of any jurisdiction. -4- (iv) The accountants who certified the financial statements and supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. (v) The consolidated financial statements and related notes included in the Registration Statement and the Prospectus present fairly the financial position of EQR and its consolidated subsidiaries as at the dates indicated and the results of their operations specified, and except as may otherwise be stated in the Registration Statement and Prospectus, have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout such periods. The supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The financial information and statistical data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included in the Registration Statement and the Prospectus. The pro forma financial statements included in the Registration Statement and Prospectus comply in all material respects with the applicable requirements of Rule 11-02 of Regulation S-X of the Commission and the pro forma adjustments have been properly applied to the historical amounts in the compilation of such statements and the assumptions used in the preparation thereof are, in the opinion of EQR, reasonable. (vi) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated or contemplated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, assets, business affairs or business prospects of EQR and its subsidiaries, considered as a single enterprise, whether or not arising in the ordinary course of business, (B) there have been no material transactions entered into by EQR or any of its subsidiaries, other than transactions in the ordinary course of business, which are material with respect to EQR and its subsidiaries considered as a single enterprise, (C) neither EQR nor any of its subsidiaries has incurred any material obligation or liability, direct, contingent or otherwise and (D) except for (i) regular quarterly distributions on EQR's common shares of beneficial interest, $.01 par value, and preferred shares of beneficial interest, $.01 par value and (ii) as disclosed in the Prospectus, there has been no dividend or distribution of any kind declared, paid or made by EQR on any class of its shares of beneficial interest. -5- (vii) EQR has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the State of Maryland with power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement. (viii) EQR is duly qualified or registered as a foreign organization to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by the nature of its business or its ownership or leasing of property, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of EQR and its subsidiaries considered as a single enterprise. (ix) Each subsidiary of EQR has been duly formed and is validly existing and in good standing as a partnership, corporation or limited liability company ("LLC") under the laws of its jurisdiction of organization, with partnership, corporation or LLC power and authority to carry on its business and to own or lease its properties as described in the Prospectus and is duly qualified or registered as a foreign partnership, corporation or LLC in good standing and authorized to do business in each jurisdiction in which such qualification is required whether by the nature of its business or its ownership or leasing of property, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of EQR and its subsidiaries considered as a single enterprise. (x) The Common Shares have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered as provided herein and in the applicable Terms Agreement, the Common Shares will be validly issued, fully paid and non-assessable; the Preferred Shares have been duly authorized and classified and when Articles Supplementary setting the terms of the Preferred Shares are duly executed and filed for record with the SDAT and the Preferred Shares are duly paid for, sold and issued, and certificates therefor are duly executed, countersigned and delivered as provided herein and in the applicable Terms Agreement or any Delayed Delivery Contract, the Preferred Shares will be validly issued, fully paid and non-assessable; when Depositary Receipts evidencing any Depositary Shares are issued and delivered against deposit of Preferred Shares and against payment for the Depositary Shares pursuant to this Agreement, the Terms -6- Agreement relating to the Depositary Shares and the Deposit Agreement, the Preferred Shares will be validly issued, fully paid and non- assessable, and the Depositary Receipts will be legally issued and will entitle the holders thereof to the rights specified in the Depositary Receipts and the Deposit Agreement; the Preferred Shares, if applicable, conform to the Articles Supplementary; the Underwritten Securities being sold pursuant to the applicable Terms Agreement conform, in all material respects, to the descriptions thereof contained in the Prospectus; and the issuance of the Underwritten Securities is not subject to preemptive or similar rights. (xi) Before the Closing Time for any Depositary Shares, the Deposit Agreement will be duly authorized and executed by EQR, and assuming due authorization, execution and delivery by the Depositary, the Deposit Agreement will constitute a valid and legally binding instrument of EQR enforceable against EQR in accordance with its terms, except as (A) the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, (B) the availability of equitable remedies may be limited by equitable principles of general applicability, and (C) rights to indemnity and contribution thereunder may be limited by state or federal securities laws or the public policy underlying such laws. (xii) If applicable, the Common Shares issuable upon conversion of any of the Preferred Shares or the Depositary Shares have been duly and validly authorized and reserved for issuance upon such conversion by all necessary action and such shares, when issued upon such conversion, will be duly and validly issued and will be fully paid and non-assessable, and the issuance of such shares upon such conversion will not be subject to preemptive or other similar rights; the Common Shares issuable upon conversion of any of the Preferred Shares or the Depositary Shares will conform in all material respects to the descriptions thereof in the Prospectus. (xiii) The authorized, issued and outstanding shares of beneficial interest of EQR are as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, employee and trustee share option plans or the exercise of convertible securities referred to in the Registration Statement); the issued and outstanding Common Shares and the Preferred Shares have been duly authorized and validly issued and are fully paid and non-assessable. -7- (xiv) Except for transactions described in the Prospectus, there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, or agreements or understandings with respect to the sale or issuance of, any shares of beneficial interest or capital stock of, or partnership or other equity interest in, EQR or any subsidiary of EQR except for multifamily property acquisition agreements with respect to the sale or issuance of Common Shares or OP Units which are not material in amount. (xv) All of the issued and outstanding shares of beneficial interest or capital stock and partnership interests, as the case may be, of each subsidiary have been validly issued and fully paid and are owned by EQR, and/or a subsidiary as described in the Registration Statement, and/or certain affiliated entities, in each case free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. EQR owns no direct or indirect equity interest in any entity other than its subsidiaries, except for such interests as, in the aggregate, are not material to the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of EQR and its subsidiaries considered as a single enterprise. (xvi) Each of EQR and ERP has full power and authority to enter into and to perform its obligations under the applicable Terms Agreement, the Deposit Agreement, if applicable, and the Delayed Delivery Contracts (as defined in Section 2 hereof), if any, and as of each Representation Date, the applicable Terms Agreement, Deposit Agreement, if applicable, and the Delayed Delivery Contracts, if any, will have been, duly authorized, executed and delivered by each of EQR and ERP, and each is or will be a valid and binding obligation of EQR and ERP, enforceable against EQR and ERP in accordance with its terms, except as (A) the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, (B) the availability of equitable remedies may be limited by equitable principles of general applicability and (C) rights to indemnity and contribution hereunder may be limited by state or federal securities laws or the public policy underlying such laws. (xvii) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, as of any Representation Date pending, or, to the knowledge of EQR or ERP, threatened, against or affecting EQR or any of its subsidiaries which is required to be disclosed in the Prospectus (other than as disclosed therein) or which might result in any material adverse change in the condition, financial or otherwise, or in the earnings, assets, business -8- affairs or business prospects of EQR and its subsidiaries considered as a single enterprise, or which might materially and adversely affect the properties or assets thereof or which might materially and adversely affect the consummation of the applicable Terms Agreement or any Deposit Agreement or the Delayed Delivery Contracts or the transactions contemplated therein; all pending legal or governmental proceedings to which EQR or any of its subsidiaries is a party or of which any of their properties or assets is the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material; and there are no contracts or documents of EQR or any of its subsidiaries which would be required to be filed as exhibits to the Registration Statement by the 1933 Act or the 1933 Act Regulations which have not been filed as exhibits to the Registration Statement, except for Articles Supplementary, as applicable, which will be filed on Form 8-K as soon as practicable after the applicable Representation Date. (xviii) None of EQR or any of its subsidiaries is required to own or possess any trademarks, service marks, trade names or copyrights to conduct the business operated by it as of any Representation Date, other than those the failure to possess or own would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of EQR and its subsidiaries considered as a single enterprise. (xix) No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the consummation by EQR of the transactions contemplated by the applicable Terms Agreement or any Deposit Agreement, except such as may be required under the 1933 Act, the 1933 Act Regulations or state securities law. (xx) Each of EQR and its subsidiaries has all consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals required for it to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of EQR and its subsidiaries, considered as a single enterprise, and none of EQR or any of its subsidiaries has received any written notice of proceedings -9- relating to the revocation or modification of any such consent, authorization, approval, order, certificate or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of EQR and its subsidiaries, considered as a single enterprise. (xxi) The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective and as of each Representation Date or during the period specified in Section 3(f), did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (xxii) Each of EQR and its subsidiaries is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; and neither EQR nor ERP has any reason to believe that EQR or any of its subsidiaries will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its businesses at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of EQR and its subsidiaries, considered as a single enterprise, except as described in or contemplated by the Registration Statement and the Prospectus. (xxiii) None of EQR or any of its subsidiaries is in violation of its charter documents, bylaws, LLC agreements or partnership agreements, or in default in the performance of any material obligation, agreement or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it or any of them is a party or by which it or any of them may be bound, or to which any of their properties or assets is subject, which default in performance would materially and adversely affect the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of EQR and its subsidiaries, considered as -10- a single enterprise; and the execution, delivery and performance of the applicable Terms Agreement or any Deposit Agreement and the consummation of the transactions contemplated therein, including the issuance, sale and delivery of the Underwritten Securities, will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of EQR or any of its subsidiaries, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which EQR or any of its subsidiaries is a party or by which it or any of them may be bound or affected, or to which any of their properties or assets is subject, nor will such action result in any violation of the provisions of the partnership agreement, LLC agreement or charter or bylaws of EQR or any of its subsidiaries, or any applicable law, regulation, ruling, order, judgment, administrative regulation or administrative or court decree. (xxiv) Neither EQR nor ERP has taken or will take, directly or indirectly, any action prohibited by Rule 10b-6 under the 1934 Act. (xxv) The assets of EQR do not constitute "plan assets" under the Employee Retirement Income Security Act of 1974, as amended. (xxvi) Except as otherwise described in the Prospectus, each of EQR and its subsidiaries has good and marketable title in fee simple to all real property and good and marketable title to all personal property (including mortgage investments) owned by it which is material to the business of EQR and its subsidiaries, considered as a single enterprise, in each case free and clear of all liens, claims, encumbrances and defects except such as are described in general in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by EQR or any of its subsidiaries; and any real property and buildings held under lease by EQR or any of its subsidiaries are held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by EQR or such subsidiaries, in each case except as described in or contemplated by the Registration Statement and the Prospectus. (xxvii) Each of EQR and its subsidiaries has obtained title insurance on all of the properties owned by each of them in an amount at least equal to (A) the cost of acquisition of such property or (B) the cost of construction of such property, and in each case such title insurance is in full force and effect. -11- (xxviii) The mortgages and deeds of trust encumbering the properties and assets described in general in the Prospectus are not convertible and are not cross-defaulted or cross-collateralized to any property not owned by EQR or any of its subsidiaries; except as disclosed in the Prospectus, none of EQR or any of its subsidiaries holds participating interests in such mortgages and deeds of trust. (xxix) Each of the partnership agreements and LLC agreements to which EQR or any of its subsidiaries is a party has been duly authorized, executed and delivered by such party and constitutes the valid agreement thereof, enforceable in accordance with its terms, except as (A) the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and (B) the availability of equitable remedies may be limited by equitable principles of general applicability; and the execution, delivery and performance of any of such agreements did not, at the time of execution and delivery, and does not constitute a breach of, or default under, the partnership agreement, charter, bylaws or other governing documents of such party or any material contract, lease or other instrument to which such party is a party or by which its properties may be bound or any law, administrative regulation or administrative or court decree. (xxx) (a) Except as disclosed in the Prospectus, each of EQR and its subsidiaries has complied and is in compliance in all material respects with all Environmental Statutes (as hereinafter defined). (b) None of EQR or any of its subsidiaries intends to use the properties or assets described in the Prospectus or any other real property for the purpose of handling, burying, storing, retaining, refining, transporting, processing, manufacturing, generating, producing, spilling, seeping, leaking, escaping, leaching, pumping, pouring, emitting, emptying, discharging, injecting, dumping, transferring or otherwise disposing of or dealing with Hazardous Materials, except for materials utilized in the ordinary course of business of the properties, provided such use would not, in the ordinary course of business, give rise to liability under any Environmental Statute. (c) Except as disclosed in the Prospectus, none of EQR or any of its subsidiaries knows (after due inquiry) of any release, seepage, leak, escape, leach, discharge, injection, release, emission, spill, pumping, pouring, emptying or dumping ("Release") of Hazardous Materials (i) into waters on, under or adjacent to the properties described in the Prospectus or (ii) on any other real property -12- owned or occupied by any such party, or (iii) onto lands from which Hazardous Materials are likely to seep, flow or drain into such waters, except for such Releases as would not, individually or in the aggregate, have a material adverse effect on the condition, financial or otherwise, earnings, business affairs or business prospects of any of such properties. (d) Except as disclosed in the Prospectus, none of EQR or any of its subsidiaries has received any notice of, or has any knowledge (after due inquiry) of any occurrence or circumstance which, with notice or passage of time or both, would give rise to a claim under or pursuant to any Environmental Statue or under common law, pertaining to Hazardous Materials on or originating from any properties or assets described in the Prospectus or any other real property owned or occupied by any such party or arising out of the conduct of any such party, except such occurrence or circumstance as would not, individually or in the aggregate, have a material adverse effect on the condition, financial or otherwise, earnings, assets, business affairs or business prospects of any of such properties. (e) Neither the properties described in the Prospectus nor any other land owned by EQR or any of its subsidiaries is included or, to EQR's or ERP's knowledge (after due inquiry), proposed for inclusion on the National Priorities List issued pursuant to CERCLA (as hereinafter defined) by the United States Environmental Protection Agency (the "EPA") or on the inventory of other potential "Problem" sites issued by the EPA and has not otherwise been publicly identified by the EPA as a potential CERCLA site or included or, to EQR's or ERP's knowledge, proposed for inclusion on any list or inventory issued or maintained pursuant to any other Environmental Statute or issued or maintained by any other Governmental Authority (as hereinafter defined). As used herein, "Hazardous Material" shall include without limitation any flammable explosives, radioactive materials, hazardous materials, hazardous wastes, toxic substances, asbestos, medical waste or any hazardous material as defined by any Environmental Statute. As used herein, "Environmental Statute" shall include any federal, state or local environmental law, ordinance, rule or regulation including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. (S)(S) 9601 et seq. ("CERCLA"), the Hazardous Materials Transportation Act, as amended 49 U.S.C. (S)(S) 1801 et seq., the Resource Conservation and Recovery Act, as amended 42 U.S.C. (S)(S) 9601 et seq., the Emergency Planning and Community Right-to- -13- Know Act of 1986, 42 U.S.C. (S)(S) 11001 et seq., the Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. (S)(S) 136 et seq., the Clean Air Act, 42 U.S.C. (S)(S) 7401 et seq., the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. (S)(S) 1251 et seq., the Safe Drinking Water Act, 42 U.S.C. (S)(S) 300f - 300j-11, and the Occupational Safety and Health Act, 29 U.S.C. (S)(S) 651 et seq., as any of the above statutes may be amended from time to time, and the state analogues to these statutes, and in the regulations adopted and publications promulgated pursuant to any of the foregoing or by any federal, state or local governmental authority having jurisdiction over the properties and assets described in the Prospectus (a "Governmental Authority"). (xxxi) EQR has operated and intends to continue to operate in such a manner as to qualify to be taxed as a "real estate investment trust" under the Internal Revenue Code of 1986, as amended (the "Code"). (xxxii) Each of EQR and its subsidiaries has filed all federal, state, local and foreign income tax returns which have been required to be filed (except in any case in which the failure to file would not have a material adverse effect on the condition financial or otherwise, or the earnings, assets, business affairs or business prospects of such entities considered as one enterprise) and has paid all taxes required to be paid and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except in all cases for any such tax, assessment, fine or penalty that is being contested in good faith. (xxxiii) Neither EQR nor any subsidiary is, or as a result of the transactions contemplated by the Prospectus would be, required to make any filing or to register under the Investment Company Act of 1940, as amended, or is or will become a "holding company" or a "subsidiary company" of a "registered holding company," as defined in the Public Utility Holding Company Act of 1935, as amended. (xxxiv) No labor dispute with the employees of EQR, or any of EQR's subsidiaries exists, or to the knowledge of EQR or ERP, is imminent. (b) Any certificate signed by any officer of EQR or of any subsidiary and delivered to you or to counsel for the Underwriters shall be deemed a representation and warranty by EQR or such subsidiary to each Underwriter participating in such offering as to the matters covered thereby on the date of such -14- certificate and, unless subsequently amended or supplemented, at each Representation Date subsequent thereto. SECTION 2. PURCHASE AND SALE. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement. (b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, EQR may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities. Such option, if granted, will expire 30 days or such lesser number of days as may be specified in the applicable Terms Agreement after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by you to EQR setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a "Date of Delivery") shall be determined by you, but shall not be later than seven full business days and not be earlier than two full business days after the exercise of said option, unless otherwise agreed upon by you and EQR. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities, subject to such adjustments as you in your discretion shall make to eliminate any sales or purchases of fractional Initial Underwritten Securities. (c) Payment of the purchase price for, and delivery of, the Underwritten Securities to be purchased by the Underwriters shall be made at such place as shall be agreed upon by you and EQR, at 10:00 A.M., New York City time, no later than the fourth business day (unless postponed in accordance with the provisions of Section 10 hereof) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by you and EQR (each such time and date being referred to as a "Closing Time"). In addition, if any or all of the Option Securities are purchased by the Underwriters, payment of the -15- purchase price for, and delivery of certificates representing, such Option Securities, shall be made at such place as shall be agreed upon by you and EQR on each Date of Delivery as specified in the notice from you to EQR. Unless otherwise specified in the applicable Terms Agreement, payment shall be made to EQR by wire transfer or by certified or official bank check or checks in Federal or similar same-day funds payable to the order of EQR against delivery to you for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. The Underwritten Securities or, if applicable, Depositary Receipts evidencing the Depositary Shares, shall be in such authorized denominations and registered in such names as you may request in writing at least two business days prior to the applicable Closing Time or Date of Delivery, as the case may be. The Underwritten Securities, which may be in temporary form, will be made available for examination and packaging by you on or before the first business day prior to the applicable Closing Time or Date of Delivery, as the case may be. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from EQR pursuant to delayed delivery contracts ("Delayed Delivery Contracts") substantially in the form of Exhibit B hereto with such changes therein as EQR may approve. As compensation for arranging Delayed Delivery Contracts, EQR will pay to you at Closing Time, for the respective accounts of the Underwriters, a fee specified in the applicable Terms Agreement for each of the Underwritten Securities for which Delayed Delivery Contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, EQR will enter into Delayed Delivery Contracts (for not less than the minimum number of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by EQR as provided below, but not for an aggregate number of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. You shall submit to EQR, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that EQR will enter into Delayed Delivery Contracts and the number of Underwritten Securities to be purchased by each of them, and EQR will advise you, at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by EQR and the number of Underwritten Securities to be covered by each such Delayed Delivery Contract. The number of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the number of Underwritten Securities covered by Delayed Delivery Contracts, -16- as to each Underwriter as set forth in a written notice delivered by you to EQR; provided, however, that the total number of Underwritten Securities to be purchased by all Underwriters shall be the total number of Underwritten Securities covered by the applicable Terms Agreement, less the number of Underwritten Securities covered by Delayed Delivery Contracts. SECTION 3. COVENANTS. Each of EQR and ERP covenants with you, and with each Underwriter participating in the offering of Underwritten Securities, as follows. (a) Immediately following the execution of the applicable Terms Agreement, EQR will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from EQR, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and EQR deem appropriate in connection with the offering of the Underwritten Securities; and EQR will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the time period required by such Rule and will furnish to the Underwriters named therein as many copies of the Prospectus and such Prospectus Supplement as you shall reasonably request. (b) EQR will notify you immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and EQR will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. (c) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, EQR will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the -17- Prospectus (including any revised prospectus which EQR proposes for use by you in connection with the offering of Underwritten Securities which differs from the prospectus on file at the Commission at the time the Registration Statement became effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), whether pursuant to the 1933 Act, 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file or prepare any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object. (d) EQR will deliver to you as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as you reasonably request. (e) EQR will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (f) If at any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for EQR, to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, then EQR will promptly prepare and file with the Commission such amendment or supplement in form and substance reasonably satisfactory to counsel for the Underwriters, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements. (g) EQR will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities and the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, for offering and sale under the applicable securities laws and real estate syndication laws of such -18- states and other jurisdictions of the United States as you may designate; provided, however, that EQR shall not be obligated to (i) qualify as a foreign corporation in any jurisdiction where it is not so qualified, (ii) file any general consent to service of process or (iii) take any action that would subject it to income taxation in any such jurisdiction. In each jurisdiction in which the Underwritten Securities or the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, have been so qualified, EQR will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities. (h) With respect to each sale of Underwritten Securities, EQR will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earning statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not later than the first day of EQR's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement. (i) EQR, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations. (j) EQR will not, between the date of the applicable Terms Agreement and the termination of any trading restrictions or the applicable Closing Time, whichever is later, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any securities of the same class or series or ranking on a parity with such Underwritten Securities (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement) or, if such Terms Agreement relates to Underwritten Securities that are convertible into Common Shares, any Common Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee and trustee share options plans), except as may otherwise be provided in the applicable Terms Agreement. (k) EQR will reserve and keep available at all times, free of preemptive rights, Common Shares for the purpose of enabling EQR to satisfy any obligations to issue such shares upon conversion of the Preferred Shares or the Depositary Shares, as the case may be. -19- (l) If requested by you, EQR will use its best efforts to list the Underwritten Securities and the Common Shares issuable upon conversion of the Underwritten Securities, if any, on the New York Stock Exchange or such other national exchange on which the Underwritten Securities or Common Shares, as the case may be, are then listed. (m) On or prior to the Closing Time, EQR will cause Articles Supplementary relating to the Preferred Shares or Preferred Shares represented by Depositary Shares, if any, to be filed for record with the SDAT in accordance with the Maryland REIT Statute. (n) EQR will use its best efforts to meet the requirements to qualify as a "real estate investment trust" under the Code. (o) If requested by you, EQR will cause, or have caused, the officers and trustees of EQR to enter into lock-up agreements in form and substance satisfactory to the Underwriters. (p) Except for the authorization of actions permitted to be taken by the Underwriters as contemplated herein or in the Prospectus, EQR will not (i) take, directly or indirectly, any action designed to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of EQR to facilitate the sale or resale of the Underwritten Securities, (ii) sell, bid for or purchase the Underwritten Securities or pay any person any compensation for soliciting purchases of the Underwritten Securities or (iii) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of EQR. SECTION 4. PAYMENT OF EXPENSES. EQR will pay all expenses incident to the performance of its obligations under the applicable Terms Agreement or any Deposit Agreement, including (i) the printing and filing of the Registration Statement as originally filed and of each amendment thereto, (ii) the printing and filing of these Standard Underwriting Provisions and the applicable Terms Agreement, (iii) the preparation, issuance and delivery of the Underwritten Securities to the Underwriters, (iv) the fees and disbursements of EQR's counsel and accountants, (v) the qualification of the Underwritten Securities and the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, under securities laws and real estate syndication laws in accordance with the provisions of Section 3(g), including filing fees and the fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey, (vi) the printing and delivery to the Underwriters of copies of the Registration Statement as originally filed and of each amendment thereto, and of the Prospectus and any amendments or supplements thereto, (vii) the printing and -20- delivery to the Underwriters of copies of the applicable Deposit Agreement, if any, (viii) any fees charged by nationally recognized statistical rating organizations for the rating of the Underwritten Securities, (ix) the fees and expenses, if any, incurred with respect to the listing of the Underwritten Securities and the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares, if any, on any national securities exchange or quotation system, (x) the fees and expenses, if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc. ( including fees and disbursements of counsel for the Underwriters in connection therewith), (xi) the costs and expenses of the deposit of Preferred Shares under any Deposit Agreement in exchange for Depositary Receipts, including the charges of the Depositary in connection therewith; (xii) the fees and expenses of the Depositary, including the fees and disbursements of counsel for the Depositary, and (xiii) the costs and charges of any transfer agent or registrar. If the applicable Terms Agreement is terminated by you in accordance with the provisions of Section 5 or Section 9(b)(i) or 9(b)(iv), EQR shall reimburse the Underwriters named in such Terms Agreement for all of their out- of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters. SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the Underwriters to purchase Underwritten Securities pursuant to the applicable Terms Agreement are subject to the accuracy of the representations and warranties of EQR and ERP herein contained, to the accuracy of the statements of officers of EQR and ERP made in any certificate pursuant to the provisions hereof, to the performance by EQR and ERP of all of its covenants and other obligations hereunder, and to the following further conditions: (a) At the applicable Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, (ii) the rating assigned by any nationally recognized statistical rating organization to any Preferred Shares of EQR or debt securities of ERP as of the date of the applicable Terms Agreement shall not have been lowered since such date nor shall any such rating organization have publicly announced that it has placed any Preferred Shares of EQR or debt securities of ERP on what is commonly termed a "watch list" for possible downgrading, and (iii) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered to purchasers of the Underwritten Securities, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. -21- (b) At the applicable Closing Time, you shall have received: (1) The favorable opinion, dated as of the applicable Closing Time, of Rosenberg & Liebentritt, P.C., counsel for EQR and its subsidiaries, in form and substance satisfactory to counsel for the Underwriters, to the effect that: (i) EQR is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT; EQR has the power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus; and, to counsel's knowledge, is duly qualified and in good standing and authorized to transact business in any jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified or in good standing will not have a material adverse effect on EQR's condition, financial or otherwise, earnings, assets, business affairs or business prospects. (ii) Each of EQR's subsidiaries has been duly formed and is validly existing and in good standing under the laws of the jurisdiction of its formation, has the power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and, to counsel's knowledge, is duly qualified and in good standing and authorized to transact business in any jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified or in good standing will not have a material adverse effect on such subsidiary's condition, financial or otherwise, earnings, assets, business affairs or business prospects; all of the issued and outstanding shares of beneficial interest, capital stock, LLC interests and partnership interests of each subsidiary have been duly authorized and validly issued, are fully paid and with respect to the shares of capital stock, LLC interests and partnership interests owned by EQR, are owned by EQR or another subsidiary, to such counsel's knowledge, directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (iii) The authorized, issued and outstanding shares of beneficial interest of EQR are as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, employee and trustee share option plans or the exercise of convertible securities referred to in the Registration Statement) and such shares of beneficial -22- interest are duly authorized validly issued, fully paid and non- assessable. (iv) The Underwritten Securities and, if applicable, the deposit of the Preferred Shares in accordance with the provisions of a Deposit Agreement, have been duly authorized for issuance and sale pursuant to this Agreement and such Underwritten Securities, when issued and delivered by EQR pursuant to this Agreement against payment of the consideration set forth in the applicable Terms Agreement or the Delayed Delivery Contracts, if any, will be validly issued, fully paid and non-assessable; the terms of the Underwritten Securities being sold pursuant to the applicable Terms Agreement conform in all material respects to the description of the Underwritten Securities set forth under "Description of Shares of Beneficial Interest" in the Prospectus and under "Description of Common Shares of Beneficial Interest," "Description of Preferred Shares of Beneficial Interest" or "Description of Depositary Shares," or other similar caption, as the case may be, in the Prospectus Supplement; and the issuance of the Underwritten Securities is not subject to any statutory preemptive rights or, to counsel's knowledge, any contractual rights to subscribe for more shares. If applicable, the form of certificate used to evidence the Underwritten Securities complies with all applicable statutory requirements. (v) If applicable, the Common Shares issuable upon conversion of any of the Preferred Shares or Depositary Shares have been duly authorized and reserved for issuance upon such conversion by all necessary action and such shares, when issued upon such conversion will be validly issued and will be fully paid and non-assessable, and the issuance of such shares upon such conversion will not be subject to any statutory preemptive rights or, to counsel's knowledge, any contractual rights to subscribe for more shares; and the Common Shares issuable upon conversion of the Preferred Shares or the Depositary Shares conform in all material respects to the descriptions thereof in the Prospectus. (vi) The applicable Deposit Agreement, if any, has been duly authorized, executed and delivered by EQR and (assuming due authorization, execution and delivery of the Deposit Agreement by the Depositary) constitutes a valid and binding obligation of EQR enforceable in accordance with its terms except as (A) the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, (B) the availability of equitable remedies may be limited by equitable principles of general applicability, and (C) rights to -23- indemnity and contribution thereunder may be limited by state or federal securities laws or the public policy underlying such laws; and the Deposit Agreement, if any, conforms in all material respects to all statements relating thereto contained in the Prospectus. (vii) Each of the applicable Terms Agreement and the Delayed Delivery Contracts, if any, has been duly authorized, executed and delivered by EQR and ERP, and each of EQR and ERP has the power and authority to perform its obligations hereunder and thereunder. (viii) The execution and delivery of the applicable Terms Agreement by each of EQR and ERP, and the performance by each of EQR and ERP of its obligations thereunder and the consummation of the transactions contemplated hereby and thereby, do not result in a violation of any provision of the Declaration of Trust, bylaws or partnership agreement of EQR or ERP or of the Maryland REIT statute or, to counsel's knowledge, any other applicable law, administrative regulation or administrative or court decree, and will not, to counsel's knowledge, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of EQR or any of its subsidiaries pursuant to any agreement or other instrument that is binding upon EQR or any subsidiary, or to which any of their properties or assets is subject. (ix) The Registration Statement is effective under the 1933 Act and, to counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been initiated or threatened by the Commission. (x) No consent, approval, authorization or order of, or qualification with, any governmental body or agency and no consent, approval, or authorization of any person other than EQR and ERP is required for the performance by each of EQR and ERP of its obligations under this Agreement and the applicable Terms Agreement, except such as may be required under the federal securities laws and the securities or Blue Sky laws of various states in connection with the offer and sale of the Underwritten Securities. (xi) There are no (A) legal or governmental proceedings pending or, to the knowledge of such counsel, threatened which are required to be disclosed in the Registration Statement, other than those disclosed therein, and all pending legal or governmental -24- proceedings to which EQR or any of its subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material or (B) to counsel's knowledge, statutes, regulations, contracts, indentures, mortgages, loan agreements, notes, leases, instruments or other documents that are required to be described in the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required, except for the Articles Supplementary which will be filed on Form 8-K as soon as practicable after the applicable Representation Date. (xii) None of EQR or any of its subsidiaries is required to be registered under the 1940 Act. (xiii) The information (A) in the Prospectus under the heading "Description of Shares of Beneficial Interest" and (B) in EQR's Annual Report on Form 10-K for the most recent fiscal year then ended under the caption "Legal Proceedings," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiv) The Registration Statement and Prospectus (except for financial statements and schedules included therein, as to which such counsel need not express any opinion), excluding the documents incorporated by reference therein, as of their respective effective or issue dates comply as to form in all material respects with the requirements for registration statements on Form S-3 under the 1933 Act and the 1933 Act Regulations. (xv) To their knowledge, EQR and each of its subsidiaries has consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local, and other governmental authorities, all self-regulatory organizations, and all courts and other tribunals, necessary to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of EQR and its subsidiaries considered as a single enterprise. -25- (xvi) To their knowledge, except as described in the Prospectus, there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, or agreements or understandings with respect to the sale or issuance of any shares of beneficial interest or capital stock of or other equity interest in EQR or any subsidiary of EQR except for multifamily property acquisition agreements with respect to the sale or issuance of Common Shares or OP Units which are not material in amount. (xvii) Each document filed pursuant to the 1934 Act (other than the financial statements, schedules and other financial and statistical data, as to which no opinion need be rendered) and incorporated or deemed to be incorporated by reference in the Prospectus complied when so filed as to form in all material respects with the 1934 Act and the 1934 Act Regulations. (xviii) The Articles Supplementary relating to the Preferred Shares and the Depositary Shares, if any, have been filed for record with the SDAT pursuant to the Maryland REIT Statute and the number of Preferred Shares and the title, par value, liquidation preference, ranking, dividend rate or rates (or method of calculation), dividend payment dates, redemption or sinking fund requirements, conversion provisions and other terms of the Preferred Shares have been set forth therein. (2) The favorable opinion, dated as of the applicable Closing Time, of Hogan & Hartson L.L.P., counsel for the Underwriters and Maryland and special tax counsel to EQR, substantially to the effect specified in subparagraphs (i) first two clauses only, as to applicable Maryland law, (iv), (v), (vi), (vii), (viii), as to applicable Maryland law and administrative regulations (other than Maryland securities laws and regulations), (ix), (x) as to any Maryland governmental body or agency, (xiv), and (xviii) of Section 5(b)(1), and to the effect that (A) EQR was organized and has operated in conformity with the requirements for qualification and taxation as a real estate investment trust under the Internal Revenue Code of 1986, as amended, for each of its taxable years ended since December 31, 1993, and EQR's current organization and method of operations should enable it to continue to meet the requirements for qualification and taxation as a real estate investment trust and (B) the discussion in the Prospectus under the heading "Federal Income Tax Considerations" and in the Prospectus Supplement under the heading "Taxation of Holders of Common Shares of Beneficial Interest," or "Taxation of Holders of Preferred Shares of Beneficial Interest," or "Taxation of Holders of Depositary Shares," or other similar caption, as the case may be, to the extent that it constitutes matters of federal income tax law or legal conclusions related thereto, is correct in all material respects. -26- (3) In rendering their opinions required by subsections (b)(1) and (b)(2), respectively, of this Section 5, Rosenberg & Liebentritt, P.C. and Hogan & Hartson L.L.P. shall each additionally state (which shall not constitute an opinion) that no facts have come to the attention of such counsel which cause them to believe that the Registration Statement or any amendment thereto (except for financial statements and supporting schedules and other financial and statistical information and data included therein or omitted therefrom, as to which such counsel need not express any view), as of the time it became effective under the 1933 Act or at the time an Annual Report on Form 10-K was filed by EQR with the Commission (whichever is later), or at the date of the applicable Terms Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement thereto (except as aforesaid) as of the date of the applicable Terms Agreement or at the applicable Closing Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. In giving their opinions required by this Section 5(b), such counsel (A) may rely as to all matters of fact, upon certificates and written statements of officers and employees of and accountants for EQR and (B) may rely as to the qualification and good standing of each of EQR or any of its subsidiaries to do business in any state or jurisdiction, upon certificates of appropriate government officials or opinions of counsel in such jurisdictions, which opinions shall be in form and substance satisfactory to counsel for the Underwriters. In giving their belief required in Section 5(b)(3), such counsel may state that their belief is based upon their participation in the preparation of the Registration Statement and Prospectus and any amendments and supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified. (c) At the applicable Closing Time, there shall not have been, since the date of the applicable Terms Agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, assets, business affairs or business prospects of EQR and its subsidiaries considered as a single enterprise, whether or not arising in the ordinary course of business; and you shall have received a certificate of the Chief Executive Officer, the President or the Chief Financial Officer of EQR, dated as of such Closing Time, on behalf of EQR and ERP, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1 are true and correct with the same force and effect as though such Closing Time were a Representation Date and (iii) EQR has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time. As used in this Section 5(c), -27- the term "Prospectus" means the Prospectus in the form first used to confirm sales of the Underwritten Securities. (d) At the time of execution of the applicable Terms Agreement, you shall have received from EQR's independent public accountants, a letter dated such date, in form and substance satisfactory to you, to the effect that (i) they are independent accountants with respect to EQR and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the consolidated financial statements and supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus and covered by their opinions therein comply in form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations; (iii) based upon limited procedures set forth in detail in such letter, and except as otherwise set forth in such letter, nothing has come to their attention which causes them to believe that at a specified date not more than five days prior to the date of the applicable Terms Agreement, there has been any change in the shares of beneficial interest of EQR or in the consolidated long term debt of EQR or any decrease in the net assets of EQR, as compared with the amounts shown in the most recent consolidated balance sheet included or incorporated by reference in the Registration Statement and the Prospectus or, during the period from the date of the most recent consolidated statement of operations included or incorporated by reference in the Registration Statement and the Prospectus to a specified date not more than five days prior to the date of the applicable Terms Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated revenues, or decrease in net income or net income per share of beneficial interest of EQR, except in all instances for changes, increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the audit referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus and which are specified by you, and have found such amounts, percentages and financial information to be in agreement with relevant accounting, financial and other records of EQR and its subsidiaries identified in such letter. (e) At the applicable Closing Time, you shall have received from EQR's independent public accountants, a letter dated as of the applicable Closing Time to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (d) of this Section, except that the "specified date" referred to shall be a date not more than five days prior to the applicable Closing Time. (f) At the applicable Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Underwritten Securities as herein contemplated and related proceedings, -28- or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by EQR in connection with the issuance and sale of the Underwritten Securities as herein contemplated shall be reasonably satisfactory in form and substance to you and counsel for the Underwriters. (g) If the Underwriters exercise their option provided in a Terms Agreement as set forth in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of EQR and ERP contained herein and the statements in any certificates furnished by EQR or ERP hereunder shall be true and correct as of each Date of Delivery, and you shall have received: (1) A certificate, dated such Date of Delivery, of the Chief Executive Officer, the President or the Chief Financial Officer of EQR, in their capacities as such, on behalf of EQR and ERP, confirming that the certificate delivered at Closing Time pursuant to Section 5(c) hereof remains true and correct as of such Date of Delivery. (2) The favorable opinion of Rosenberg & Liebentritt, P.C., counsel for EQR, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise substantially to the same effect as the opinions required of them by Section 5(b)(1) and the belief required by Section 5(b)(3) hereof. (3) The favorable opinion of Hogan & Hartson L.L.P., counsel for the Underwriters and Maryland and special tax counsel for EQR, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 5(b)(2) and the belief required by Section 5(b)(3) hereof. (4) A letter from EQR's independent public accountants, in form and substance satisfactory to you and dated such Date of Delivery, substantially the same in scope and substance as the letter furnished to you pursuant to Section 5(d) hereof, except that the "specified date" in the letter furnished pursuant to this Section 5(g)(4) shall be a date not more than five days prior to such Date of Delivery. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, the applicable Terms Agreement may be terminated by you by notice to EQR at any time at or prior to the applicable Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. -29- SECTION 6. INDEMNIFICATION. --------------- (a) Each of EQR and ERP hereby agrees, jointly and severally, to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act, and any director, officer, employee or affiliate thereof, as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), or the omission, or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that neither EQR nor ERP shall be required under this subsection (i) to indemnify the Underwriter with respect to any loss, liability, claim, damage or expense to the extent such loss, liability, claim, damage or expense arises out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to EQR by any Underwriter concerning such Underwriter through you expressly for use in the Registration Statement (or any amendment thereto) and the Prospectus (or any amendment or supplement thereto); (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation or of any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever for which indemnification is provided under subsection (i) above, if such settlement is effected with the written consent of EQR and ERP; and (iii) against any and all expense whatsoever (including, without limitation, the fees and other charges of counsel chosen by you) reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceedings by any governmental agency or body, commenced or threatened, or any claim whatsoever for which indemnification is provided under subsection (i) -30- above, to the extent that any such expense is not paid under (i) or (ii) above. (b) Each Underwriter severally agrees to indemnify and hold harmless EQR and ERP, and each person, if any, who controls EQR or ERP within the meaning of Section 15 of the 1933 Act, and any trustee, officer, employee or affiliate thereof, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to EQR by any Underwriter concerning such Underwriter through you expressly for use in the Registration Statement (or any amendment thereto) and the Prospectus (or any amendment or supplement thereto). (c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than on account of this indemnity agreement to the extent such indemnifying party was not materially prejudiced by such failure or otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action. If it so elects within a reasonable time after receipt of such notice, an indemnifying party, jointly with any other indemnifying parties receiving such notice, may assume the defense of such action with counsel chosen by it and approved by the indemnified parties defendant in such action, unless such indemnified parties reasonably object to such assumption on the ground that the named parties to any such action (including any impleaded parties) include both such indemnified parties and an indemnifying party, and such indemnified parties reasonably believe that there may be legal defenses available to them which are different from or in addition to those available to such indemnifying party. If an indemnifying party assumes the defense of such action, the indemnifying parties shall not be liable for any fees and expenses of counsel for the indemnified parties incurred thereafter in connection with such action. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. SECTION 7. CONTRIBUTION. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 6 hereof is for any reason -31- held to be unenforceable by the indemnified parties although applicable in accordance with its terms, EQR and ERP, on the one hand, and the Underwriters, on the other, with respect to the offering of the Underwritten Securities shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by EQR and ERP and one or more of the Underwriters in respect of such offering, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the applicable Prospectus Supplement in respect of such offering bears to the initial public offering price appearing thereon and EQR and ERP are jointly and severally responsible for the balance; provided, however, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Underwritten Securities purchased by it pursuant to the applicable Terms Agreement and distributed to the public were offered to the public exceeds the amount of any damages such Underwriter has otherwise been required to pay in respect of such losses, liabilities, claims, damages and expenses. For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as such Underwriter, and each trustee and each officer of EQR who signed the Registration Statement, and each person, if any, who controls EQR or ERP within the meaning of Section 15 of the 1933 Act and each trustee, officer, employee or affiliate thereof shall have the same rights to contribution as EQR and ERP. SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All representations, warranties and agreements included in the applicable Terms Agreement, or included in certificates of officers of EQR or ERP submitted pursuant thereto, shall remain operative and in full force and effect, regardless of any termination of the applicable Terms Agreement or investigation made by or on behalf of any Underwriter or any controlling person, or by or on behalf of EQR or ERP, and shall survive delivery of and payment for the Underwritten Securities until the obligations relating to all Underwritten Securities have been fully satisfied in accordance with their terms. SECTION 9. TERMINATION OF TERMS AGREEMENT. (a) You may terminate the applicable Terms Agreement, by notice to EQR, at any time at or prior to the applicable Closing Time (i) if there has been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change in the -32- condition, financial or otherwise, or in the earnings, assets, business affairs or business prospects of EQR and its subsidiaries considered as a single enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis or escalation of any existing hostilities, the effect of which is such as to make it, in your judgment, impracticable to market the Underwritten Securities or enforce contracts for the sale of the Underwritten Securities, or (iii) if trading in any of the securities of EQR has been suspended by the Commission on any exchange or any over-the-counter market, or if trading generally on either the New York Stock Exchange, the American Stock Exchange or Nasdaq National Market has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by either of said exchanges or by order of the Commission or any other governmental authority, or if a banking moratorium has been declared by Federal or New York authorities, or (iv) if the rating assigned by any nationally recognized statistical rating organization to any Preferred Shares of EQR as of the date of the applicable Terms Agreement shall have been lowered since such date or if any such rating organization shall have publicly announced that it has placed any Preferred Shares of EQR on what is commonly termed a "watch list" for possible downgrading. As used in this Section 9(b), the term "Prospectus" means the Prospectus in the form first used to confirm sales of the Underwritten Securities. (c) In the event of any such termination, (x) the covenants set forth in Section 3 with respect to any offering of Underwritten Securities shall remain in effect so long as any Underwriter owns any such Underwritten Securities purchased from EQR pursuant to the applicable Terms Agreement and (y) the covenant set forth in Section 3(h) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreements set forth in Section 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect. SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the Underwriters shall fail at the applicable Closing Time to purchase the Underwritten Securities which it or they are obligated to purchase under the applicable Terms Agreement (the "Defaulted Securities"), then you shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, you shall not have completed such arrangements within such 24-hour period, then: (a) If the total number of Defaulted Securities does not exceed 10% of the total number of Underwritten Securities to be purchased pursuant to such Terms Agreement, the non-defaulting Underwriters named in such Terms -33- Agreement shall be obligated to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or (b) If the total number of Defaulted Securities exceeds 10% of the total number of Underwritten Securities to be purchased pursuant to such Terms Agreement, the applicable Terms Agreement shall terminate without liability on the part of any non-defaulting Underwriter. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default under this Agreement and the applicable Terms Agreement. In the event of any such default which does not result in a termination of the applicable Terms Agreement, either you or EQR shall have the right to postpone the applicable Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or the Prospectus or in any other documents or arrangements. SECTION 11. NOTICES. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed as set forth in the applicable Terms Agreement; notices to EQR and ERP shall be directed to them at Two North Riverside Plaza, Suite 600, Chicago, Illinois 60606, attention of Douglas Crocker II, with a copy to Ruth Pinkham Haring, Esq., Rosenberg & Liebentritt, P.C., Two North Riverside Plaza, Suite 1515, Chicago, Illinois 60606. SECTION 12. PARTIES. The applicable Terms Agreement shall inure to the benefit of and be binding upon you and EQR and ERP and any Underwriter who becomes a party to such Terms Agreement, and their respective successors. Nothing expressed or mentioned in the applicable Terms Agreement is intended or shall be construed to give any person, firm or corporation, other than those referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of such Terms Agreement or any provision therein contained. The applicable Terms Agreement and all conditions and provisions thereof are intended to be for the sole and exclusive benefit of the parties hereto and thereto and their respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Underwritten Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase. -34- SECTION 13. GOVERNING LAW AND TIME. The applicable Terms Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in said State. Specified times of day refer to New York City time. SECTION 14. COUNTERPARTS. The applicable Terms Agreement may be executed in one or more counterparts, and if executed in more than one counterpart the executed counterparts shall constitute a single instrument. -35- EX-5 3 OPINION OF ROSENBERG & LIEBENTRITT [ROSENBERG & LIEBENTRITT LETTERHEAD] December 11, 1996 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: We are acting as counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Company"), in connection with its registration statement on Form S-3 (SEC File No. 333-12211) (the "Registration Statement") previously declared effective by the Securities and Exchange Commission relating to (a) the proposed public offering of up to $500,000,000 in aggregate amount of its common shares of beneficial interest, $.01 par value per share ("Common Shares") and one or more series of its (i) preferred shares of beneficial interest, $.01 par value per share (the "Preferred Shares") and (ii) depositary shares representing fractional interests in Preferred Shares (the "Depositary Shares" and, together with the Preferred Shares and Common Shares, the "Securities"), all of which Securities may be offered and sold by the Company from time to time as set forth in the prospectus which forms a part of the Registration Statement (the "Prospectus"), and as to be set forth in one or more supplements to the Prospectus (each, a "Prospectus Supplement"). This opinion letter is rendered in connection with the proposed public offering of up to an aggregate of 4,140,000 Common Shares (the "Shares") as described in a Prospectus Supplement dated December 5, 1996. This opinion letter is furnished to you at your request to enable the Company to continue to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S)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 Amended and Restated Declaration of Trust, as amended, of the Company (the "Declaration of Trust"), as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. Board of Trustees Equity Residential Properties Trust December 11, 1996 Page 2 3. The Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 4. Resolutions of the Board of Trustees of the Company adopted on September 8, 1995 and September 13, 1996 relating to the filing of the Registration Statement and related matters, and on December 2, 1996, and by the Pricing Committee of the Board of Trustees on December 5, 1996, relating to the offering of the Shares, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 5. Executed copies of the Terms Agreement, dated December 5, 1996, among the Company, ERP Operating Limited Partnership and Smith Barney Inc., which incorporates therein the terms and provisions of the Company's Standard Underwriting Provisions, dated December 2, 1996 (collectively, the "Underwriting Agreement"). In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as certified, telecopied, photostatic, or reproduced copies. This opinion letter is given, and all statements herein are made, in the context of the foregoing. We call your attention to the fact that our firm only requires lawyers to be qualified to practice law in the State of Illinois and, in rendering the foregoing opinions, we express no opinion with respect to any laws relevant to this opinion other than the laws and regulations identified herein. With respect to the opinions below that relate to the laws of the State of Maryland, with your consent, we rely solely on the opinion of Hogan & Hartson L.L.P., a copy of which is attached hereto as Exhibit A. Based upon, subject to and limited by the foregoing, we are of the opinion that, as of the date hereof, following issuance of the Shares pursuant to the terms of the Underwriting Agreement and receipt by the Company of the consideration for the Shares specified in the resolutions of the Board of Trustees and the Pricing Committee referred to above, the Shares will be validly issued, fully paid and nonassessable under the Maryland REIT Statute. Board of Trustees Equity Residential Properties Trust December 11, 1996 Page 3 We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely for your use in connection with the filing by the Company of a Current Report on Form 8-K on the date of this opinion letter, which Form 8-K will be incorporated by reference into the Registration Statement. This opinion letter should not be quoted in whole or in part or otherwise be referred to, nor filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. We hereby consent (i) to be named in the Registration Statement, and in the Prospectus, as attorneys who will pass upon the legality of the Securities to be sold thereunder and (ii) to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, ROSENBERG & LIEBENTRITT, P.C. By: /s/ Ruth Pinkham Haring ----------------------------------- Vice President EXHIBIT A December 11, 1996 Rosenberg & Liebentritt, P.C. Two North Riverside Plaza Suite 1515 Chicago, Illinois 60606 Ladies and Gentlemen: We are acting as special Maryland counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Company"), in connection with its registration statement on Form S-3 (No. 333- 12211) (the "Registration Statement") previously declared effective by the Securities and Exchange Commission relating to the proposed public offering of securities of the Company that may be offered and sold by the Company from time to time as set forth in the prospectus which forms a part of the Registration Statement (the "Prospectus"), and as to be set forth in one or more supplements to the Prospectus (each, a "Prospectus Supplement"). This opinion letter is rendered in connection with the proposed public offering of up to 4,140,000 common shares of beneficial interest, $.01 par value (the "Common Shares") as described in a Prospectus Supplement dated December 5, 1996. This opinion letter is furnished to you at your request to enable the Company to continue to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S) 229.601(b)(5), in connection with the Registration Statements. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Amended and Restated Declaration of Trust, as amended, of the Company (the "Declaration of Trust"), as certified by the Maryland State Department of Assessments and Taxation on Rosenberg & Liebentritt, P.C. December 11, 1996 Page 2 December 9, 1996 and the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 3. The Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 4. Resolutions of the Board of Trustees of the Company adopted on September 8, 1995, September 13, 1996 and December 2, 1996, relating to the filing of the Registration Statement and related matters, and by the Pricing Committee of the Board of Trustees on December 5, 1996, relating to the offering of the Common Shares, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 5. Executed copy of the Terms Agreement dated December 5, 1996, among the Company, ERP Operating Limited Partnership and Smith Barney Inc., including the Company's Standard Underwriting Provisions incorporated by reference therein (the "Underwriting Agreement"). In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing. This opinion letter is based as to matters of law solely on Title 8 of the Corporation and Associations Article of the Annotated Code of Maryland (the "Maryland REIT Statute"). We express no opinion herein as to any other laws, statutes, regulations, or ordinances. Based upon, subject to and limited by the foregoing, we are of the opinion that following issuance of the Common Shares pursuant to the terms of the Underwriting Agreement and receipt by the Company of the consideration for the Common Shares specified in the resolutions of the Board of Trustees and the Pricing Committee referred to above, the Common Shares will be validly issued, fully paid and nonassessable under the Maryland REIT Statute. Rosenberg & Liebentritt, P.C. December 11, 1996 Page 3 We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely for your use in connection with the filing by the Company of a Current Report on Form 8-K on the date of this opinion letter, which Form 8-K will be incorporated by reference into the Registration Statement. This opinion letter should not be quoted in whole or in part or otherwise be referred to, nor filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. We hereby consent to the reference to this firm under the caption "Legal Matters" in the prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, HOGAN & HARTSON L.L.P. -----END PRIVACY-ENHANCED MESSAGE-----