-----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, LDoh06W+wl5vTDvt/XyivTp3mgl9diGXWR4a2y+zl1vwMEExvN+AxRRx+r/pEIBO FZ1cL6NmYCAcALeDeOrpdg== 0001047469-99-007406.txt : 19990226 0001047469-99-007406.hdr.sgml : 19990226 ACCESSION NUMBER: 0001047469-99-007406 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19990225 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: S-3 SEC ACT: SEC FILE NUMBER: 333-72961 FILM NUMBER: 99550440 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 S-3 1 S-3 As filed with the Securities and Exchange Commission on February 25, 1999 Registration No. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EQUITY RESIDENTIAL PROPERTIES TRUST (Exact name of registrant as specified in its governing instrument) Maryland 13-3675988 (State of Organization) (I.R.S. Employer Identification Number) Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 (Address of principal executive offices) Douglas Crocker II President and Chief Executive Officer Equity Residential Properties Trust Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 (Name and address of agent for service) COPIES TO: William C. Hermann, Esq. Rosenberg & Liebentritt, P.C. Two North Riverside Plaza, Suite 1600 Chicago, Illinois 60606 (312) 466-3612 Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /x/ If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / /
CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------------------------- PROPOSED PROPOSED MAXIMUM MAXIMUM AGGREGATE AGGREGATE AMOUNT OF TITLE OF CLASS AMOUNT TO BE PRICE PER OFFERING REGISTRATION OF SECURITIES BEING REGISTERED REGISTERED SHARE(1) PRICE (1) FEE(1) - ----------------------------------------------------------------------------------------------------------------------------- Common Shares of Beneficial Interest, $.01 par value per share........ 1,262,264 $40.3125 $50,885,018 $14,146 - ----------------------------------------------------------------------------------------------------------------------------- (footnote on next page)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. =============================================================================== (footnote from previous page) (1) Estimated solely for the purpose of computing the registration fee in accordance with Rule 457(c) based on the average of the high and low reported sales prices on the New York Stock Exchange on February 19, 1999. The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement relating to these securities has been declared effective by the Securities and Exchange Commission. This prospectus is neither an offer to sell nor a solicitation of an offer to buy these securities in any jurisdiction where such offer or sale is unlawful. SUBJECT TO COMPLETION DATED FEBRUARY 25, 1999 PROSPECTUS 1,262,264 SHARES EQUITY RESIDENTIAL PROPERTIES TRUST COMMON SHARES OF BENEFICIAL INTEREST The persons listed below, who may become shareholders of Equity Residential Properties Trust, may offer and sell from time to time up to 1,262,264 of our common shares of beneficial interest under this prospectus. In this prospectus we refer to these persons as the selling shareholders. We may issue up to 1,262,264 common shares to the selling shareholders, upon their request, in exchange for their 1,262,264 units of limited partnership interest in ERP Operating Limited Partnership, our operating partnership. Our registration of these common shares is not meant to imply that the selling shareholders will offer or sell any of these common shares. We will receive no proceeds from any sale of common shares by a selling shareholder. The selling shareholders may offer their common shares through public or private transactions, on or off the New York Stock Exchange, at prevailing market prices, or at privately negotiated prices. The selling shareholders may sell their common shares directly or through agents or broker-dealers acting as principal or agent, or in a distribution by underwriters. The common shares are listed on the New York Stock Exchange under the symbol "EQR". -------------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. -------------------- The date of this prospectus is February __, 1999. TABLE OF CONTENTS
Page ---- Special Note Regarding Forward-Looking Statements . . . . . . . . . . 3 Available Information . . . . . . . . . . . . . . . . . . . . . . . . 3 Incorporation of Certain Documents By Reference . . . . . . . . . . . 3 The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 No Proceeds to the Company . . . . . . . . . . . . . . . . . . . . . 5 Selling Shareholders . . . . . . . . . . . . . . . . . . . . . . . . 5 Federal Income Tax Considerations . . . . . . . . . . . . . . . . . . 8 Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . 14 Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2 SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS Information contained in or incorporated by reference into this prospectus and any accompanying prospectus supplement contains "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"). We intend the forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in that section. These forward-looking statements relate to, without limitation, our anticipated future economic performance, our plans and objectives for future operations and projections of revenue and other financial items, which can be identified by the use of forward-looking words such as "may," "will," "should," "expect," "anticipate," "estimate" or "continue" or the negative thereof or other variations thereon or comparable terms. The cautionary statements under the caption "Risk Factors" contained in our Current Report on Form 8-K dated February 24, 1999, which is incorporated herein by reference, and other similar statements contained in this prospectus or any accompanying prospectus supplement identify important factors with respect to forward-looking statements, including certain risks and uncertainties, that could cause actual results to differ materially from those in such forward-looking statements. AVAILABLE INFORMATION We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, we are required to file reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). You may inspect and copy these reports, proxy statements and other information at the Public Reference Section of the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York 10048. You may also obtain copies of the reports, proxy statements and other information from the Public Reference Section of the Commission, Washington, D.C. 20549, upon payment of prescribed rates, or in certain cases by accessing the Commission's World Wide Web site at http://www.sec.gov. You may obtain information on the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. Our common shares are listed on the New York Stock Exchange under the symbol "EQR". Our reports, proxy statements and other information are also available for inspection at the offices of the New York Stock Exchange located at 20 Broad Street, New York, New York 10005. We have filed with the Commission a registration statement on Form S-3 (the "Registration Statement"), of which this prospectus is a part, under the Securities Act, with respect to the securities covered by this prospectus. This prospectus does not contain all of the information set forth in the Registration Statement, certain portions of which have been omitted as permitted by the rules and regulations of the Commission. Statements contained in this prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance, we refer the reader to the copy of such contract or document filed as an exhibit to the Registration Statement. Each such statement is qualified in all respects by this reference and the exhibits and schedules thereto. For further information about us and the common shares covered by this prospectus, we refer the reader to the Registration Statement and these exhibits and schedules which may be obtained from the Commission. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE We have filed the documents listed below with the Commission under the Exchange Act and these documents are incorporated into this prospectus by reference: a. Annual Report on Form 10-K for the year ended December 31, 1997, as amended. b. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June 30, 1998 and September 30, 1998. c. Second Amended and Restated Declaration of Trust (the "Declaration of Trust") filed as Exhibit 3.1 to our Current Report on Form 8-K dated May 30, 1997, as amended or supplemented from time to time. d. Second Amended and Restated Bylaws (the "Bylaws"), filed as Exhibit 3.2 to our Current Report on Form 8-K, dated May 30, 1997. e. Definitive Proxy Statement relating to our Annual Meeting of Shareholders dated March 30, 1998. 3 f. Joint Proxy Statement/Prospectus dated April 25, 1997. g. Joint Proxy Statement/Prospectus/Information Statement dated September 14, 1998. h. Description of our common shares contained in our registration statement on Form 8-A/A dated August 10, 1993. i. Description of certain risk factors relating to an investment in our securities contained in our Current Report on Form 8-K dated February 24, 1999. j. Current Reports on Form 8-K dated March 12, 1997, March 17, 1997, May 20, 1997, August 15, 1997, September 10, 1997, September 17, 1997, October 9, 1997, December 23, 1997, June 25, 1998, July 8, 1998, July 23, 1998, August 11, 1998 and October 19, 1998, and our Current Reports on Form 8-K/A dated October 9, 1997 and July 23, 1998. All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of the offering of all common shares under this prospectus will also be deemed to be incorporated by reference in this prospectus and to be a part hereof from the date of filing those documents. Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference herein will be modified or superseded by inconsistent statements in any document we file in the future that will be deemed incorporated by reference herein, including any prospectus supplement that supplements this prospectus. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or any accompanying prospectus supplement. Subject to the foregoing, all information appearing in this prospectus and each accompanying prospectus supplement is qualified in its entirety by the information appearing in the documents incorporated by reference. We will provide, without charge, copies of all documents that are incorporated herein by reference (not including the exhibits to such information, unless such exhibits are specifically incorporated by reference in such information) to each person, including any beneficial owner, to whom this prospectus is delivered upon written or oral request. Requests should be directed to Equity Residential Properties Trust, Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606, Attention: Cynthia McHugh (telephone number: (312) 474-1300). 4 UNLESS OTHERWISE INDICATED, WHEN USED HEREIN, THE TERMS "WE" AND "US" REFER TO EQUITY RESIDENTIAL PROPERTIES TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST, AND ITS SUBSIDIARIES, INCLUDING ERP OPERATING LIMITED PARTNERSHIP, ITS OPERATING PARTNERSHIP. THE COMPANY We are an equity real estate investment trust, or REIT, formed to continue the multifamily property business objectives and acquisition strategies of certain affiliated entities controlled by Mr. Samuel Zell, Chairman of our Board of Trustees. We are the managing general partner of ERP Operating Limited Partnership, our operating partnership. We own, administer and manage all of our assets and conduct substantially all of our business through the operating partnership and its subsidiaries. Our executive offices are located at Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606, and its telephone number is (312) 474-1300. NO PROCEEDS TO THE COMPANY We will not receive any of the proceeds from sales of common shares offered by the selling shareholders. We will pay all of the costs and expenses incurred in connection with the registration under the Securities Act of the offering made hereby, other than any brokerage fees and commissions, fees and disbursements of legal counsel for the selling shareholders and share transfer and other taxes attributable to the sale of the offered common shares, which will be paid by the selling shareholders. SELLING SHAREHOLDERS We may issue up to 1,262,264 of common shares to the selling shareholders who currently hold 1,262,264 units of limited partnership interest in our operating partnership, if and to the extent that the selling shareholders exchange their units of limited partnership interest and we issue common shares to them in exchange therefor. Following our issuance of these shares, the selling shareholders may resell the common shares covered by this prospectus as provided under the Plan of Distribution section of this prospectus or as described in an applicable prospectus supplement. The following table provides the name of each selling shareholder, the number of common shares to be owned upon exchange of such units of limited partnership interest by each selling shareholder before any offering to which this prospectus relates, and the number of common shares that may be offered by each selling shareholder. Assuming the redemption of all units of limited partnership held by each selling shareholder, the number of common shares set forth in the following table is also the number of common shares owned by each selling shareholder prior to the offering. Because the selling shareholders may sell all or some of their offered common shares, no estimate can be made of the number of offered common shares that will be sold by the selling shareholders or that will be owned by the selling shareholders upon completion of the offering. There is no assurance that the selling shareholders will sell any of the offered common shares. The common shares covered by this prospectus represent approximately 0.96% of the total common shares (assuming exchange of all outstanding units of limited partnership interest for common shares) outstanding as of January 31, 1999. 5
NUMBER OF COMMON SHARES NAME OF SELLING SHAREHOLDER OWNED AND OFFERED HEREBY J. Ronald Terwilliger .............................................................. 170,502 (1) TCF Residential Partnership, Ltd.................................................... 132,079 (2) Lansing-Sierra Associates, L.P...................................................... 90,445 Douglas Hoeksema.................................................................... 88,940 Leonard W. Wood Family Limited Partnership.......................................... 87,705 (3) Susan A. Hoeksema................................................................... 81,962 CFP Residential, L.P. .............................................................. 74,396 (2) CPM Investment Company, LLC......................................................... 111,226 TCR-Brookfield Limited Partnership ................................................. 68,456 Warren J. Durkin, Jr................................................................ 51,404 Taxman Family Limited Partnership................................................... 44,305 J. Ronald Terwilliger Grantor Trust................................................. 23,378 (4) Randy J. Pace....................................................................... 20,173 TCR-Bloomingdale Limited Partnership ............................................... 21,410 Edward O. Wood, Jr.................................................................. 18,044 Plum Tree Limited Partnership ...................................................... 20,365 (2) Mandel Properties Services, Inc..................................................... 16,786 Speicher Family Trust............................................................... 15,607 JRT Holdings, Inc................................................................... 14,245 (5) TCR-Plum Tree Phase III Limited Partnership ........................................ 14,792 Clifford Breining................................................................... 9,457 LWW Holdings, Inc................................................................... 8,796 (6) Guy Weill........................................................................... 6,014 Bruce R. Fairty..................................................................... 5,752 Terrence C. Golden.................................................................. 5,742 Edward A. Storey.................................................................... 4,999 David J. Elwell..................................................................... 4,333 Arthur Hill......................................................................... 4,134 TCR-Glenlake Club Limited Partnership............................................... 3,902 Ronald J. Gafford................................................................... 3,093 Dwight C. Baum and Hildegard E. Baum Trust.......................................... 3,007 John S. Carter...................................................................... 3,007 Edwin K. Hoffman.................................................................... 3,007 Kenneth McCormick................................................................... 3,007 Joel M. Goldfrank................................................................... 3,007 David Benjamin...................................................................... 2,894 Dennis Fitzharris................................................................... 2,757 Estate of Robert E. Springer........................................................ 2,068 John T. Dealy....................................................................... 1,503 Steven A. Karpf..................................................................... 1,503 (7) A. Eugene Kohn...................................................................... 1,503 Peter E. Bronstein.................................................................. 1,503 Arthur Hauspurg..................................................................... 1,378 Peter Hauspurg...................................................................... 1,378 Russell Pellicano................................................................... 1,378 William and Marta Ray............................................................... 1,000 Balcones Club Associates............................................................ 989 Donald E. Conover................................................................... 751 Thomas M. Yamin..................................................................... 751 Royal Taxman........................................................................ 662 GT of Wisconsin, Inc................................................................ 662 Gary Taxman......................................................................... 662 Marcus E. Bromley................................................................... 437 TCR-Ravinia Limited Partnership .................................................... 259
6
NUMBER OF COMMON SHARES NAME OF SELLING SHAREHOLDER OWNED AND OFFERED HEREBY TCR-Carlson Lakes Limited Partnership .............................................. 197 Lewis Topper........................................................................ 138 Hy Manton........................................................................... 138 Philip Levy......................................................................... 138 Jeffrey Gilbert..................................................................... 138 --------- 1,262,264 --------- ---------
______________________ (1) Does not include 23,378 shares that may be owned upon an exchange of units by the J. Ronald Terwilliger Grantor Trust, of which Mr. Terwilliger is the trustee, or 14,245 shares that may be owned upon an exchange of units by JRT Holdings, Inc., of which Mr. Terwilliger is the President. Also does not include an aggregate of 129,381 shares that may be owned upon an exchange of units by any of Plum Tree Limited Partnership, TCR-Plum Tree Phase III Limited Partnership, TCR-Brookfield Limited Partnership, TCR- Ravinia Limited Partnership, TCR-Bloomingdale Limited Partnership, TCR- Carlson Lakes Limited Partnership or TCR-Glenlake Club Limited Partnership, of which Mr. Terwilliger is the President of the general partner. (2) The general partner of both TCF Residential Partnership, Ltd. and Plum Tree Limited Partnership is Mill Spring Holdings, Inc. The general partner of CFP Residential, L.P. is Crow Family, Inc. Harlan R. Crow is the Chief Executive Officer of each of Mill Spring Holdings, Inc. and Crow Family, Inc. (3) Does not include 8,796 shares that may be owned upon an exchange of units by LWW Holdings, Inc. Leonard W. Wood is the President of each of the general partner of the Leonard W. Wood Family Limited Partnership and LWW Holdings, Inc. (4) Does not include 142,139 shares that may be owned upon an exchange of units by J. Ronald Terwilliger, who is the trustee of the J. Ronald Terwilliger Grantor Trust. (5) Does not include 142,139 shares that may be owned upon an exchange of units by J. Ronald Terwilliger, who is the President of JRT Holdings, Inc. (6) Does not include 87,705 shares that may be owned upon an exchange of units by the Leonard W. Wood Family Limited Partnership. Leonard W. Wood is the President of each of the general partner of the Leonard W. Wood Family Partnership and LWW Holdings, Inc. (7) Mr. Karpf has informed us that he also owns an additional 762 of our common shares. 7 FEDERAL INCOME TAX CONSIDERATIONS GENERAL The following discussion summarizes all of the federal income tax considerations material to a holder of common shares. It is not exhaustive of all possible tax considerations. For example, it does not give a detailed discussion of any state, local or foreign tax considerations. The following discussion also does not address all tax matters that may be relevant to prospective shareholders in light of their particular circumstances. Moreover, it does not address all tax matters that may be relevant to shareholders who are subject to special treatment under the tax laws, such as insurance companies, tax-exempt entities, financial institutions or broker-dealers, foreign corporations and persons who are not citizens or residents of the United States. The specific tax attributes of a particular shareholder could have a material impact on the tax considerations associated with the purchase, ownership and disposition of common shares. Therefore, it is essential that each prospective shareholder consult with his or her own tax advisors with regard to the application of the federal income tax laws to the shareholder's personal tax situation, as well as any tax consequences arising under the laws of any state, local or foreign taxing jurisdiction. OUR TAXATION We elected REIT status beginning with the year that ended December 31, 1992. In any year in which we qualify as a REIT, we generally will not be subject to federal income tax on the portion of our REIT taxable income or capital gain that we distribute to our shareholders. This treatment substantially eliminates the double taxation that applies to most corporations, which pay a tax on their income and then distribute dividends to shareholders who are in turn taxed on the amount they receive. However, we will be subject to federal income tax at regular corporate rates upon our REIT taxable income or capital gain that we do not distribute to our shareholders. We also may be subject to the corporate "alternate minimum tax" on items of preference under this alternative tax regime. In addition, we will be subject to a 4% excise tax if we do not satisfy specific REIT distribution requirements. Moreover, we may be subject to taxes in certain situations and on certain transactions that we do not presently contemplate. If we fail to qualify for taxation as a REIT in any taxable year, we will be subject to tax on our taxable income at regular corporate rates. We also may be subject to the corporate "alternate minimum tax." As a result, our failure to qualify as a REIT would significantly reduce the cash we have available to distribute to our shareholders. Unless entitled to statutory relief, we would be disqualified from qualification as a REIT for the four taxable years following the year during which qualification was lost. It is not possible to state whether we would be entitled to statutory relief. Our qualification and taxation as a REIT depend on our ability to satisfy various requirements under the Internal Revenue Code. We are required to satisfy these requirements on a continuing basis through actual annual operating and other results. These requirements relate to the sources of our gross income, the composition of our assets, the amount of dividends we pay to shareholders, the diversity of our share ownership, and other aspects of our operations. The purpose of these requirements is to allow the tax benefit of REIT status only to companies that: (i) primarily own, and primarily derive income from, real estate-related assets and certain other assets which are passive in nature, and (ii) distribute 95% of their taxable income, computed without regard to net capital gain, to shareholders. We believe that we have qualified as a REIT for all of our taxable years beginning with 1992. We also believe that our current structure and method of operation is such that we will continue to qualify as a REIT. However, we cannot guarantee that the actual results of our operations have satisfied or will satisfy the requirements under the Internal Revenue Code. Hogan & Hartson L.L.P., our special tax counsel, has provided an opinion to the effect that we were organized and have operated in conformity with the requirements for qualification and taxation as a REIT under the Internal Revenue Code for each of our taxable years beginning in 1992. The opinion also provides that our current organization and method of operation should enable us to continue to meet the requirements for qualification and taxation as a REIT. It must be emphasized that the opinion is based on various assumptions and factual representations relating to our organization and our prior and expected operations. In each case, these representations include representations about our predecessors. Hogan & Hartson L.L.P. will not review our compliance with these requirements on a continuing basis. 8 TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS GENERAL. If we qualify as a REIT, distributions made to our taxable domestic shareholders with respect to their common shares, other than capital gain distributions, will be treated as ordinary income to the extent that the distributions come out of earnings and profits. These distributions will not be eligible for the dividends received deduction for shareholders that are corporations. In determining whether distributions are out of earnings and profits, we will allocate our earnings and profits first to preferred shares and second to the common shares. We cannot guarantee that we will have sufficient earnings and profits to cover distributions on the preferred shares. Distributions made by us that we properly designate as capital gain dividends will be taxable to taxable domestic shareholders as gain from the sale or exchange of a capital asset held for more than one year. This treatment applies only to the extent that the designated distributions do not exceed our actual net capital gain for the taxable year. It applies regardless of the period for which a domestic shareholder has held his or her common shares. Despite this general rule, corporate shareholders may be required to treat up to 20% of certain capital gain dividends as ordinary income. On November 10, 1997, the IRS issued IRS Notice 97-64, which provides generally that we may classify portions of our designated capital gains dividend as a 20% rate gain distribution, an unrecaptured Section 1250 gain distribution, or a 28% rate gain distribution. If no designation is made, the notice provides that the entire designated capital gain dividend will be treated as a 28% rate gain distribution. As the names suggest, a 20% rate gain distribution would be taxable to taxable domestic shareholders who are individuals, estates or trusts at a maximum rate of 20% and a 28% rate gain distribution would be taxable to taxable domestic shareholders who are individuals, estates or trusts at a maximum rate of 28%. An unrecaptured Section 1250 gain distribution would be taxable to taxable domestic shareholders who are individuals, estates or trusts at a maximum rate of 25%. On July 22, 1998, as part of the IRS Restructuring Act, the holding period requirement for the application of the 20% and 25% capital gain tax rates was reduced to 12 months from 18 months for sales of capital gain assets on or after January 1, 1998. This change effectively eliminated the 28% capital gain tax bracket. It is expected that the IRS will issue clarifying guidance, most likely applying the same principles set forth in Notice 97-64, regarding a REIT's designation of capital gain dividends in light of the new holding period requirements. If, for any taxable year, we elect to designate as capital gain dividends any portion of the dividends paid or made available for the year to holders of all classes of shares of beneficial interest, then the portion of the capital gains dividends that will be allocable to the holders of common shares will be the total capital gain dividends multiplied by a fraction. The numerator of the fraction will be the total dividends paid or made available to the holders of the common shares for the year. The denominator of the fraction will be the total dividends paid or made available to holders of all classes of shares of beneficial interest. To the extent we make distributions in excess of earnings and profits, these distributions will be treated first as a tax-free return of capital to the shareholder, reducing the tax basis of a shareholder's common shares by the amount of the distribution. Distributions in excess of the shareholder's tax basis taxable will be treated as capital gains if the common shares are held as a capital asset. In addition, any dividend we declare in October, November or December of any year and payable to a shareholder of record on a specific date in one of these months will be treated as both paid by us and received by the shareholder on December 31 of that year, provided that we actually pay the dividend during January of the following year. Shareholders may not include in their individual income tax returns any of our net operating losses or capital losses. In general, a shareholder will recognize gain or loss for federal income tax purposes on the sale or other disposition of common shares in an amount equal to the difference between: (i) the amount of cash and the fair market value of any property received in the sale or other disposition, and (ii) the shareholder's adjusted tax basis in the common shares. The gain or loss will be capital gain or loss if the common shares were held as a capital asset. Generally, the capital gain or loss will be long-term capital gain or loss if the common shares were held for more than one year. The Taxpayer Relief Act of 1997 allows the IRS to issue regulations relating to the manner in which capital gain rates will apply to sales of capital assets by REITs and to sales of interests in REITs. The IRS has not issued these regulations. However, if the IRS does issue these regulations, they could affect the taxation of gain and loss realized on the disposition of common shares. Shareholders are urged to consult with their own tax advisors with respect to the rules contained in the Taxpayer Relief Act. 9 In general, a loss recognized by a shareholder upon the sale of common shares that were held for six months or less, determined after applying certain holding period rules, will be treated as long-term capital loss to the extent that the shareholder received distributions that were treated as long-term capital gains. For shareholders who are individuals, trusts and estates, the long-term capital loss will be apportioned among the applicable long-term capital gain rates to the extent that distributions received by the shareholder were previously so treated. We may elect to require shareholders to include our undistributed net capital gains in their income. If we make this election, shareholders will include in their income as long-term capital gains their proportionate share of these gains. Shareholders will be treated as having paid their proportionate share of the tax paid by us on these gains. Accordingly, they will receive a credit or refund for the amount. Shareholders will increase the basis in their common shares by the difference between the amount of capital gain included in their income and the amount of the tax they are treated as having paid. Our earnings and profits will be adjusted appropriately. TAXATION OF TAX-EXEMPT SHAREHOLDERS Most tax-exempt organizations are not subject to federal income tax except to the extent of their unrelated business taxable income, which is often referred to as UBIT. Unless a tax-exempt shareholder holds its common shares as debt financed property or uses the common shares in an unrelated trade or business, distributions to the shareholder should not constitute UBIT. Similarly, if a tax-exempt shareholder sells common shares, the income from the sale should not constitute UBIT unless the shareholder held the shares as debt financed property or used the shares in a trade or business. However, for tax-exempt shareholders that are social clubs, voluntary employee benefit associations, supplemental unemployment benefit trusts, and qualified group legal services plans, income from owning or selling common shares will constitute UBIT unless the organization is able to properly deduct amounts set aside or placed in reserve so as to offset the income generated by its investment in common shares. These shareholders should consult their own tax advisors concerning these set aside and reserve requirements which are set forth in the Internal Revenue Code. In addition, certain pension trusts that own more than 10% of a pension-held REIT must report a portion of the distributions that they receive from the REIT as UBIT. We have not been and do not expect to be treated as a pension-held REIT for purposes of this rule. TAXATION OF FOREIGN SHAREHOLDERS The following is a discussion of certain anticipated United States federal income tax consequences of the ownership and disposition of common shares applicable to a foreign shareholder. It is based on current law and is for general information only. A "foreign shareholder" is any person other than: (i) a citizen or resident of the United States, (ii) a corporation or partnership created or organized in the United States or under the laws of the United States or of any state thereof, or (iii) an estate or trust whose income is includable in gross income for United States federal income tax purposes regardless of its source. DISTRIBUTIONS BY US. Distributions by us to a foreign shareholder that are neither attributable to gain from sales or exchanges by us of United States real property interests nor designated by us as capital gains dividends will be treated as dividends of ordinary income to the extent that they are made out of our earnings and profits. These distributions ordinarily will be subject to withholding of United States federal income tax on a gross basis at a 30% rate, or a lower treaty rate, unless the dividends are treated as effectively connected with the conduct by the foreign shareholder of a United States trade or business. Please note that under certain treaties lower withholding rates generally applicable to dividends do not apply to dividends from REITs. Dividends that are effectively connected with a United States trade or business will be subject to tax on a net basis at graduated rates, and are generally not subject to withholding. Certification and disclosure requirements must be satisfied before 10 a dividend is exempt from withholding under this exemption. A foreign shareholder that is a corporation also may be subject to an additional branch profits tax at a 30% rate or a lower treaty rate. We expect to withhold United States income tax at the rate of 30% on any distributions made to a foreign shareholder unless: (i) a lower treaty rate applies and any required form or certification evidencing eligibility for that reduced rate is filed with us, or (ii) the foreign shareholder files an IRS Form 4224 with us claiming that the distribution is effectively connected income. A distribution in excess of our current or accumulated earnings and profits will not be taxable to a foreign shareholder to the extent that the distribution does not exceed the adjusted basis of the shareholder's common shares. Instead, the distribution will reduce the adjusted basis of the common shares. To the extent that the distribution exceeds the adjusted basis of the common shares, it will give rise to gain from the sale or exchange of the shareholder's common shares. The tax treatment of this gain is described below. As a result of a legislative change made by the Small Business Job Protection Act of 1996, it appears that we will be required to withhold 10% of any distribution in excess of our earnings and profits. Consequently, although we intend to withhold at a rate of 30%, or a lower applicable treaty rate, on the entire amount of any distribution, to the extent that we do not do so, distributions will be subject to withholding at a rate of 10%. However, a foreign shareholder may seek a refund of the withheld amount from the IRS if it subsequently determined that the distribution was, in fact, in excess of our earnings and profits, and the amount withheld exceeded the foreign shareholder's United States tax liability with respect to the distribution. Distributions to a foreign shareholder that we designate at the time of the distributions as capital gain dividends, other than those arising from the disposition of a United States real property interest, generally will not be subject to United States federal income taxation unless: (i) the investment in the common shares is effectively connected with the foreign shareholder's United States trade or business, in which case the foreign shareholder will be subject to the same treatment as domestic shareholders, except that a shareholder that is a foreign corporation may also be subject to the branch profits tax, as discussed above, or (ii) the foreign shareholder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and has a "tax home" in the United States, in which case the nonresident alien individual will be subject to a 30% tax on the individual's capital gains. Under the Foreign Investment in Real Property Tax Act, which is known as FIRPTA, distributions to a foreign shareholder that are attributable to gain from sales or exchanges of United States real property interests will cause the foreign shareholder to be treated as recognizing the gain as income effectively connected with a United States trade or business. This rule applies whether or not a distribution is designated as a capital gain dividend. Accordingly, foreign shareholders generally would be taxed on these distributions at the same rates applicable to U.S. shareholders, subject to a special alternative minimum tax in the case of nonresident alien individuals. In addition, a foreign corporate shareholder might be subject to the branch profits tax discussed above. We are required to withhold 35% of any these distributions. The withheld amount can be credited against the foreign shareholder's United States federal income tax liability. Although the law is not entirely clear on the matter, it appears that amounts we designate as undistributed capital gains in respect of the common shares held by U.S. shareholders would be treated with respect to foreign shareholders in the same manner as actual distributions of capital gain dividends. Under that approach, foreign shareholders would be able to offset as a credit against the United States federal income tax liability their proportionate share of the tax paid by us on these undistributed capital gains. In addition, foreign shareholders would be able to receive from the IRS a refund to the extent their proportionate share of the tax paid by us were to exceed their actual United States federal income tax liability. 11 SALES OF COMMON SHARES. Gain recognized by a foreign shareholder upon the sale or exchange of common shares generally will not be subject to United States taxation unless the shares constitute a "United States real property interest" within the meaning of FIRPTA. The common shares will not constitute a United States real property interest so long as we are a domestically controlled REIT. A domestically controlled REIT is a REIT in which at all times during a specified testing period less than 50% in value of its stock is held directly or indirectly by foreign shareholders. We believes that we are a domestically controlled REIT. Therefore, we believe that the sale of common shares will not be subject to taxation under FIRPTA. However, because common shares and preferred shares are publicly traded, we cannot guarantee that we will continue to be a domestically controlled REIT. In any event, gain from the sale or exchange of common shares not otherwise subject to FIRPTA will be taxable to a foreign shareholder if either: (i) the investment in the common shares is effectively connected with the foreign shareholder's United States trade or business, in which case the foreign shareholder will be subject to the same treatment as domestic shareholders with respect to the gain, or (ii) the foreign shareholder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and has a tax home in the United States, in which case the nonresident alien individual will be subject to a 30% tax on the individual's capital gains. Even if we do not qualify as or cease to be a domestically controlled REIT, gain arising from the sale or exchange by a foreign shareholder of common shares still would not be subject to United States taxation under FIRPTA as a sale of a United States real property interest if: (i) the class or series of shares being sold is "regularly traded," as defined by applicable IRS regulations, on an established securities market such as the New York Stock Exchange, and (ii) the selling foreign shareholder owned 5% or less of the value of the outstanding class or series of shares being sold throughout the five- year period ending on the date of the sale or exchange. If gain on the sale or exchange of common shares were subject to taxation under FIRPTA, the foreign shareholder would be subject to regular United States income tax with respect to the gain in the same manner as a taxable U.S. shareholder, subject to any applicable alternative minimum tax, a special alternative minimum tax in the case of nonresident alien individuals and the possible application of the branch profits tax in the case of foreign corporations. The purchaser of the common shares would be required to withhold and remit to the IRS 10% of the purchase price. OTHER TAX CONSIDERATIONS CLINTON ADMINISTRATION PROPOSAL. The Clinton Administration's fiscal year 2000 budget proposal was announced on February 1, 1999. One part of the proposed budget would amend the tax rules relating to the composition of a REIT's assets. Under current law, a REIT is precluded from owning more than 10% of the outstanding voting securities of any one issuer, other than a wholly-owned subsidiary or another REIT. Under to the Clinton administration proposal, a REIT would remain subject to the current restriction and would be precluded from owning more than 10% of the VALUE of all classes of stock of any covered issuer. The Clinton proposal also contains an exception to both the 10% asset test described above and a second REIT asset test which precludes any one issuer's securities owned by a REIT to exceed 5% of the REIT's total assets. This exception would allow a REIT to have "qualified independent contractor subsidiaries," which could perform services for tenants and other customers that a REIT currently cannot perform, and "qualified business subsidiaries," which could undertake third-party management and development activities as well as other non-real estate related activities. Collectively, these two types of entities are called "taxable REIT subsidiaries." Under the proposal, no more than 15% of a REIT's total assets could consist of taxable REIT subsidiaries and no more than 5% of a REIT's total assets could consist of qualified independent contractor subsidiaries. In addition, a taxable REIT subsidiary would not be entitled to deduct any interest on debt funded directly or indirectly by the REIT. If the proposal is enacted, a REIT could combine and convert existing corporate subsidiaries into taxable REIT subsidiaries tax-free for a limited period of time. After the effective date of the proposal and any applicable transition period, the 10% vote or value test would apply to our corporate subsidiaries, other than wholly owned corporate subsidiaries, that do not 12 convert into "taxable REIT subsidiaries." It is presently uncertain whether this proposal, or any other proposal regarding REIT subsidiaries, will be enacted. OUR MANAGEMENT COMPANY SUBSIDIARIES. A portion of the cash to be used by our operating partnership to fund distributions to us is expected to come from payments of dividends on non-voting stock of management companies held by the operating partnership. The management companies pay federal and state income tax at the full applicable corporate rates. They will attempt to minimize the amount of these taxes, but we cannot guarantee whether or the extent to which measures taken to minimize these taxes will be successful. To the extent that the management companies are required to pay taxes, the cash available for distribution by us to shareholders will be reduced accordingly. STATE AND LOCAL TAXES. We and our shareholders may be subject to state or local taxation in various jurisdictions, including those in which it or they transact business or reside. The state and local tax treatment of us and our shareholders may not conform to the federal income tax consequences discussed above. Consequently, prospective shareholders should consult their own tax advisors regarding the effect of state and local tax laws on an investment in common shares. 13 PLAN OF DISTRIBUTION Any of the selling shareholders may from time to time, in one or more transactions, sell all or a portion of the offered common shares on the New York Stock Exchange, in the over-the-counter market, on any other national securities exchange on which the common shares are listed or traded, in negotiated transactions, in underwritten transactions or otherwise, at prices then prevailing or related to the then current market price or at negotiated prices. The offering price of the offered common shares from time to time will be determined by the selling shareholders and, at the time of such determination, may be higher or lower than the market price of the common shares on the New York Stock Exchange. In connection with an underwritten offering, underwriters or agents may receive compensation in the form of discounts, concessions or commissions from a selling shareholder or from purchasers of offered common shares for whom they may act as agents, and underwriters may sell offered common shares to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Under agreements that may be entered into by us, underwriters, dealers and agents who participate in the distribution of offered common shares may be entitled to indemnification by us against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. The offered common shares may be sold directly or through broker-dealers acting as principal or agent, or pursuant to a distribution by one or more underwriters on a firm commitment or best-efforts basis. The methods by which the offered common shares may be sold include: (a) a block trade in which the broker-dealer so engaged will attempt to sell the offered common shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker-dealer as principal and resale by such broker-dealer for its account pursuant to this prospectus; (c) ordinary brokerage transactions and transactions in which the broker solicits purchasers; (d) an exchange distribution in accordance with the rules of the New York Stock Exchange; (e) privately negotiated transactions; and (f) underwritten transactions. The selling shareholders and any underwriters, dealers or agents participating in the distribution of the offered common shares may be deemed to be "underwriters" within the meaning of the Securities Act, and any profit on the sale of the offered common shares by the selling shareholders and any commissions received by any such broker-dealers may be deemed to be underwriting commissions under the Securities Act. When a selling shareholder elects to make a particular offer of offered common shares, a prospectus supplement, if required, will be distributed which will identify any underwriters, dealers or agents and any discounts, commissions and other terms constituting compensation from such selling shareholder and any other required information. In order to comply with the securities laws of certain states, if applicable, the offered common shares may be sold only through registered or licensed brokers or dealers. In addition, in certain states, the offered common shares may not be sold unless they have been registered or qualified for sale in such state or an exemption from such registration or qualification requirement is available and is complied with. We have agreed to pay all costs and expenses incurred in connection with the registration under the Securities Act of the offered common shares, including, without limitation, all registration and filing fees, printing expenses and fees and disbursements of our counsel and accountants. The selling shareholders will pay any brokerage fees and commissions, fees and disbursements of their legal counsel and share transfer and other taxes attributable to the sale of the offered common shares. We have also agreed to indemnify each of the selling shareholders and their respective officers, directors and trustees and each person who controls (within the meaning of the Securities Act) such selling shareholder against certain losses, claims, damages, liabilities and expenses arising under the securities laws in connection with this offering. Each of the selling shareholders has agreed to indemnify us and our officers and trustees and each person who controls (within the meaning of the Securities Act) our company against any losses, claims, damages, liabilities and expenses arising under the securities laws in connection with this offering with respect to written information furnished to us by such selling shareholder; PROVIDED, HOWEVER, that the indemnification obligation is several, not joint, as to each selling shareholder. EXPERTS Ernst & Young LLP, independent auditors, have audited our consolidated financial statements and schedule appearing in our Annual Report on Form 10-K for the year ended December 31, 1997, as amended by Form 10-K/A, at December 31, 1997 and 1996 and for each of the two years in the period ended December 31, 1997; the consolidated financial statements of Evans Withycombe Residential, Inc. and its subsidiaries appearing in our Current Report on Form 8-K, dated September 10, 1997; the consolidated financial statements of Wellsford Residential Property Trust and its subsidiaries incorporated by reference in our Joint Proxy Statement/Prospectus dated April 25, 1997; and the Statements of Revenue and Certain Expenses of certain properties that were 14 acquired or were expected to be acquired in 1997 or 1998, appearing in our Current Reports on Form 8-K or 8-K/A dated May 20, 1997, August 15, 1997, September 17, 1997, October 9, 1997 and June 25, 1998; as set forth in their reports which are incorporated in this prospectus by reference. Our consolidated financial statements, the consolidated financial statements of Evans Withycombe Residential, Inc. and Wellsford Residential Property Trust and the statements of revenue and certain expenses are incorporated by reference in reliance on their reports, given on their authority as experts in accounting and auditing. The consolidated financial statements of Merry Land & Investment Company, Inc. appearing in our Current Report on Form 8-K, dated July 23, 1998 were audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are incorporated in this Registration Statement in reliance upon the authority of said firm as experts in accounting and auditing. Our consolidated financial statements appearing in our Annual Report (on Form 10-K for the year ended December 31, 1997) for the year ended December 31, 1995 incorporated herein by reference have been audited by Grant Thornton LLP, independent public accountants, as indicated in their report with respect thereto, and are incorporated in this Registration Statement in reliance upon the authority of said firm as experts in accounting and auditing. LEGAL MATTERS The legality of the offered common shares has been passed upon for us by Rosenberg & Liebentritt, P.C., Chicago, Illinois. Certain tax matters have been passed upon by Hogan & Hartson L.L.P., our special tax counsel. Rosenberg & Liebentritt, P.C. will rely on Hogan & Hartson L.L.P. as to certain matters of Maryland law. 15 =============================================================================== NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY US. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE COMMON SHARE, IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM TO WHOM, IT IS UNLAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN OUR AFFAIRS SINCE THE DATE HEREOF. ----------------- 1,262,264 SHARES EQUITY RESIDENTIAL PROPERTIES TRUST COMMON SHARES OF BENEFICIAL INTEREST ----------------- PROSPECTUS ----------------- FEBRUARY ___, 1999 =============================================================================== PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following table sets forth those expenses for distribution to be incurred in connection with the issuance and distribution of the securities being registered.
Registration Fee............................................ $14,146 Printing and Duplicating Expenses*......................... 5,000 Legal Fees and Expenses*................................... 25,000 Accounting Fees and Expenses*.............................. 6,000 Blue Sky Fees and Expenses*................................ 5,000 Miscellaneous*............................................. 3,000 ------- Total*..................................................... $58,146
___________ * Estimated ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS Under Maryland law, a real estate investment trust formed in Maryland is permitted to eliminate, by provision in its Declaration of Trust, the liability of trustees and officers to the trust and its shareholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) acts or omissions established by a final judgment as involving active and deliberate dishonesty and being material to the matter giving rise to the proceeding. The Registrant's Declaration of Trust includes such a provision eliminating such liability to the maximum extent permitted by Maryland law. The Maryland REIT law, effective October 1, 1994, permits a Maryland real estate investment trust to indemnify and advance expenses to its trustees, officers, employees and agents to the same extent as permitted by the Maryland General Corporation Law ("MGCL") for directors and officers of Maryland corporations. As permitted by the MGCL, the Registrant's bylaws require it to indemnify (a) any present or former trustee, officer or shareholder or any individual who, while a trustee, officer or shareholder, served or is serving as a trustee, officer, director, shareholder or partner of another entity at the Registrant's express request who has been successful, on the merits or otherwise, in the defense of a proceeding to which he was made a party by reason of service in such capacity, against reasonable expenses incurred by him in connection with the proceeding, (b) any present or former trustee or officer or any individual who, while a trustee or officer served or is serving as a trustee, officer, director, shareholder or partner of another entity at the Registrant's express request against any claim or liability to which he may become subject by reason of service in such capacity unless it is established that (i) his act or omission was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty, (ii) he actually received an improper personal benefit in money, property or services or (iii) in the case of a criminal proceeding, he had reasonable cause to believe that his act or omission was unlawful and (c) any present or former shareholder against any claim or liability to which he may become subject by reason of such status. In addition, the Registrant's bylaws require it to pay or reimburse, in advance of final disposition of a proceeding, reasonable expenses incurred by a present or former trustee, officer or shareholder or any individual who, while a trustee, officer or shareholder, served or is serving as a trustee, officer, director, shareholder or partner of another entity at the Registrant's express request made a party to a proceeding by reason of such status, provided that, in the case of a trustee or officer, the Registrant shall have received (1) a written affirmation by such peson of his good faith belief that he has met the standard of conduct necessary for indemnification by the Registrant as authorized or required by the bylaws and (2) a written undertaking by or on his behalf to repay the amount paid or reimbursed by the Registrant if it shall ultimately be determined that the applicable standard of conduct was not met. The Registrant's bylaws also (x) permit the Registrant to provide indemnification and payment or reimbursement of expenses to a present or former trustee, officer or shareholder who served a predecessor of the Registrant or to any employee or agent of the Registrant or a predecessor of the Registrant, (y) provide that any indemnification and payment or reimbursement of the expenses permitted by the bylaws shall be furnished in accordance with the procedures provided for indemnification and payment or reimbursement of expenses under Section 2-418 of the MGCL for directors of Maryland corporations and (z) permit the Registrant to provide to the trustees and officers such other and further indemnification or payment or reimbursement of expenses to the fullest extent permitted by Section 2-418 of the MGCL for directors of Maryland corporations. The Registrant has entered into indemnification agreements with each of its trustees and executive officers. The indemnification agreements require, among other things, that the Registrant indemnify its trustees and executive officers to the fullest extent permitted by law and advance to the trustees and executive officers all related expenses, subject to reimbursement if it is subsequently determined that indemnification is not permitted. Under these agreements, the Registrant must also indemnify and advance all expenses incurred by trustees and executive officers seeking to enforce their rights under the indemnification agreements and may cover trustees and executive officers under the Registrant's trustees and officers' liability insurance. Although the form of indemnification agreement offers substantially the same scope of coverage afforded by law, as a traditional form of contract it may provide greater assurance to trustees and executive officers that indemnification will be available. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to trustees and officers of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that, although the validity and scope of the governing statute have not been tested in court, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In addition, indemnification may be limited by state securities laws. The partnership agreements of ERP Operating Limited Partnership and its management subsidiaries also provide for indemnification of the Registrant and its officers and trustees to the same extent that indemnification is provided to officers and trustees of the Registrant in its Declaration of Trust, and limit the liability of the Registrant and its officers and trustees to the Operating Partnership and the Management Partnerships and their respective partners to the same extent that the liability of the officers and trustees of the Registrant to the Registrant and its shareholders is limited under the Registrant's Declaration of Trust. ITEM 16. EXHIBITS
4.1 * - Second Amended and Restated Declaration of Trust 4.2 ** - Second Amended and Restated Bylaws 5 - Opinion of Rosenberg & Liebentritt, P.C. 8 - Opinion of Hogan & Hartson L.L.P. 23.1 - Consent of Grant Thornton LLP 23.2 - Consent of Ernst & Young LLP 23.3 - Consent of Arthur Andersen LLP 23.4 - Consent of Rosenberg & Liebentritt, P.C. (included in Exhibit 5) 23.5 - Consent of Hogan & Hartson L.L.P. (included in Exhibit 8) 24 - Power of Attorney (filed as part of the signature page to the Registration Statement)
____________________ * Included as Exhibit 3.1 to the Company's Current Report on Form 8-K dated May 30, 1997 and incorporated herein by reference. ** Included as Exhibit 3.2 to the Company's Current Report on Form 8-K dated May 30, 1997 and incorporated herein by reference. ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post- effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of Securities (if the total dollar value of Securities would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in this registration statement; PROVIDED, HOWEVER, that subparagraphs (i) and (ii) above do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in the periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the Securities offered herein, and the offering of such Securities at that time shall be deemed to be the initial BONA FIDE offering thereof. (3) To remove from registration by means of a post-effective amendment any of the Securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the Securities offered herein, and the offering of such Securities at that time shall be deemed to be the initial BONA FIDE offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to existing provisions or arrangements whereby the registrant may indemnify a trustee, officer or controlling person of the registrant against liabilities arising under the Securities Act of 1933, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a trustee, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, State of Illinois, on February 25, 1999. EQUITY RESIDENTIAL PROPERTIES TRUST By: /s/ Douglas Crocker II --------------------------------------------------- Douglas Crocker II, President, Chief Executive Officer and Trustee POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Douglas Crocker II and Sheli Z. Rosenberg, or either of them, his attorneys-in-fact and agents, with full power of substitution and resubstitution for him in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith or in connection with the registration of the Securities under the Exchange Act, with the Securities and Exchange Commission, granting unto each of such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of such attorneys-in-fact and agents or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on February 25, 1999:
Name - ---- /s/ Samuel Zell Chairman of the Board of Trustees - ------------------------------------------- Samuel Zell /s/ Douglas Crocker II President, Chief Executive Officer and Trustee - ------------------------------------------- Douglas Crocker II /s/ David J. Neithercut Executive Vice President and Chief Financial Officer - ------------------------------------------- David J. Neithercut /s/ Michael J. McHugh Executive Vice President, Chief Accounting Officer and - ------------------------------------------- Michael J. McHugh Treasurer /s/ Gerald A. Spector Executive Vice President, Chief Operating Officer and Trustee - ------------------------------------------- Gerald A. Spector /s/ Stephen O. Evans Executive Vice President and Trustee - ------------------------------------------- Stephen O. Evans /s/ Sheli Z. Rosenberg Trustee - ------------------------------------------- Sheli Z. Rosenberg /s/ James D. Harper, Jr. Trustee - ------------------------------------------- James D. Harper, Jr. /s/ Errol R. Halperin Trustee - ------------------------------------------- Errol R. Halperin /s/ John Alexander Trustee - ------------------------------------------- John Alexander /s/ B. Joseph White Trustee - ------------------------------------------- B. Joseph White /s/ Henry H. Goldberg Trustee - ------------------------------------------- Henry H. Goldberg /s/ Jeffrey H. Lynford Trustee - ------------------------------------------- Jeffrey H. Lynford Trustee - ------------------------------------------- Edward Lowenthal /s/ Boone A. Knox Trustee - ------------------------------------------- Boone A. Knox /s/ Michael N. Thompson Trustee - ------------------------------------------- Michael N. Thompson
II-4 EXHIBIT INDEX
Exhibit Exhibit Number Description - -------- ----------- 4.1 * Second Amended and Restated Declaration of Trust 4.2 ** Second Amended and Restated Bylaws 5 Opinion of Rosenberg & Liebentritt, P.C. 8 Opinion of Hogan & Hartson L.L.P. 23.1 Consent of Grant Thornton LLP 23.2 Consent of Ernst & Young LLP 23.3 Consent of Arthur Andersen LLP 23.4 Consent of Rosenberg & Liebentritt, P.C. (included in Exhibit 5) 23.5 Consent of Hogan & Hartson L.L.P. (included in Exhibit 8) 24 Power of Attorney (filed as part of the signature page to the Registration Statement)
____________________ * Included as Exhibit 3.1 to the Company's Current Report on Form 8-K dated May 30, 1997 and incorporated herein by reference. ** Included as Exhibit 3.2 to the Company's Current Report on Form 8-K dated May 30, 1997 and incorporated herein by reference. EX-5 2 EX-5 Exhibit 5 [Letterhead of Rosenberg & Liebentritt, P.C.] February 25, 1999 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: We are counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Company"), in connection with its registration statement on Form S-3 (the "Registration Statement") filed with the Securities and Exchange Commission relating to proposed resales of up to 1,262,264 shares (the "Shares") of the Company's common shares of beneficial interest, $.01 par value per share (the "Common Shares"), that may be offered and sold from time to time by certain holders (the "Selling Shareholders") if and to the extent that the Selling Shareholders tender for redemption their 1,262,264 units (the "Units") of limited partnership interest in ERP Operating Limited Partnership (the "Operating Partnership"), as more fully described in the prospectus that forms a part of the Registration Statement and as to be set forth in one or more supplements to the Prospectus. This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the Registration Statement. We assume that the amount, issuance and sale of the Shares to be offered by the Selling Shareholders from time to time will be consistent with the procedures and terms described in the Registration Statement and in accordance with the Company's Second Amended and Restated Declaration of Trust, as amended (the "Declaration of Trust"), and applicable Maryland law. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Second Amended and Restated Declaration of Trust, 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 February 25, 1999 Page 2 3. The Second Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 4. Resolutions of the Board of Trustees of the Company adopted on February 8, 1996, June 26, 1997, October 7, 1997, November 14, 1997, January 14, 1998, March 19, 1998 and December 8, 1998, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect, approving the issuance and registration of the Units and related matters. 5. The Operating Partnership's Fifth Amended and Restated Agreement of Limited Partnership dated as of August 1, 1998 (the "Partnership Agreement"), as certified as of the date hereof by the Secretary of the Company, in its capacity as managing general partner of the Operating Partnership, as then being complete, accurate and in effect. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as certified, telecopied, photostatic, or reproduced copies. We have also assumed the accuracy, completeness and authenticity of the foregoing certifications of trust officers and statements of fact, on which we are relying, and we have made no independent investigations thereof. This opinion letter is given, and all statements herein are made, in the context of the foregoing. We call your attention to the fact that our firm only requires lawyers to be qualified to practice law in the State of Illinois and, in rendering the foregoing opinion, we express no opinion with respect to any laws relevant to this opinion other than the laws and regulations identified herein. With respect to the opinion below that relates to the laws of the State of Maryland, we rely solely on the opinion of Hogan & Hartson L.L.P., a copy of which is attached hereto as EXHIBIT A. Based upon, subject to and limited by the foregoing, we are of the opinion that the Shares, if and when issued and delivered in accordance with the terms of the Partnership Agreement and applicable resolutions of the Board of Trustees of the Company authorizing the issuance of the Shares upon redemption of the Units as contemplated thereby, will be validly issued, fully paid and non-assessable under the laws of the State of Maryland. In rendering the foregoing opinion, Board of Trustees Equity Residential Properties Trust February 25, 1999 Page 3 we have assumed the receipt by the Company of the Units being redeemed as specified in the Partnershuip Agreement and the resolutions of the Board of Trustees authorizing the issuance and sale of the Units. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely for your use in connection with the filing of the Registration Statement on the date of this opinion letter and will be incorporated by reference into the Registration Statement. This opinion letter should not be quoted in whole or in part or otherwise be referred to, nor filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. We hereby consent (i) to be named in the Registration Statement, and in the Prospectus, as attorneys who will pass upon the legality of the Securities to be sold thereunder and (ii) to the filing of this opinion as an Exhibit to the Registration Statement. In giving this opinion, we do not thereby admit that we are an "expert" within the meaning of the Securities Act. Very truly yours, ROSENBERG & LIEBENTRITT, P.C. /s/ Rosenberg & Liebentritt, P.C. Exhibit A [LETTERHEAD OF HOGAN & HARTSON L.L.P.] February 25, 1999 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: We are acting as special Maryland counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Trust"), in connection with its registration statement on Form S-3 (the "Registration Statement") filed with the Securities and Exchange Commission relating to proposed resales of up to 1,262,264 common shares of beneficial interest, $.01 par value per share (the "Common Shares") which may be issued in private placements if and to the extent that holders of 1,262,264 units of limited partnership interest ("Units") in ERP Operating Limited Partnership, a Delaware limited partnership (the "Partnership") tender such Units for redemption. This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the Registration Statement. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Second Amended and Restated Declaration of Trust of the Trust, as certified by the Maryland State Department of Assessments and Taxation (the "SDAT") on January 22. 1999, and by the Secretary of the Trust on the date hereof as then being complete, accurate and in effect. 3. The Seconded Amended and Restated Bylaws of the Trust, as certified by the Secretary of the Trust on the date hereof as then being complete, accurate and in effect. Board of Trustees Equity Residential Properties Trust February 25, 1999 Page 2 4. The following resolutions of the Board of Trustees of the Trust, each as certified by the Secretary of the Trust on the date hereof as being complete, accurate and in effect, adopted on (i) June 26, 1997, relating to the issuance of Units pursuant to the Agreement for Contribution of Real Estate and Related Property (the "Chardonnay Agreement") dated July 3, 1997, by and between CPM Willows, L.P. and the Partnership; (ii) June 26, 1997, relating to the issuance of Units pursuant to the Agreement for Contribution of LLC Interests (the "Redmond Agreement") dated July 3, 1997, by and among CPM Investment Company L.L.C., Mark C. Odell, Phyllis K. Odell and the Partnership; (iii) October 7, 1997, relating to the issuance of Units pursuant to the Contribution Agreement (the "Glenlake Agreement") dated December 30, 1997, by and among TCR-Glenlake Club Limited Partnership, TC Residential Chicago, Inc., ERP-QRS Glenlake Club, Inc. and the Partnership; (iv) November 14, 1997, relating to the issuance of Units pursuant to the Agreement for Contribution of Real Estate and Related Property (the "Harbor Pointe Agreement") dated November 5, 1997, by and among Royal Taxman, GT of Wisconsin, Gary Taxman, NRL Associates Limited Partnership, Lake Partners, Taxman Family Limited Partnership and the Partnership; (v) January 14, 1998, relating to the issuance of Units pursuant to the Agreement for Contribution of Real Estate and Related Property (the "Balcones Agreement") dated December 19, 1997, by and between Balcones Club Associates and the Partnership; (vi) January 14, 1998, relating to the issuance of Units pursuant to the Agreement for Contribution of Real Estate and Related Property (the "TCRS Agreement") dated February 3, 1998, by and among the TCRS Affiliates described on Schedule I attached to the TCRS Agreement, Mandel Property Services, Inc. and the Partnership; Board of Trustees Equity Residential Properties Trust February 25, 1999 Page 3 (vii) March 19, 1998, relating to the issuance of Units pursuant to the Contribution Agreement and Joint Escrow Instructions (the "Sierra Agreement") dated May 1, 1998, by and among Lansing- Sierra Associates L.P. and the Partnership; and (viii) December 8, 1998, relating to the issuance of Units pursuant to the Partnership's Contribution and Subscription Documents executed by and between the Partnership and each Merry Land contributor (the "Merry Land Agreements" and together with the Chardonnay Agreement, the Redmond Agreement, the Harbor Pointe Agreement, the Balcones Agreement, the Glenlake Agreement, the TCRS Agreement and the Sierra Agreement, the "Contribution Agreements"). 5. The Contribution Agreements. 6. The Fifth Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of August 1, 1998 (the "Partnership Agreement"), as certified as of the date hereof by the Secretary of the Trust, in its capacity as managing general partner of the Partnership, as then being complete, accurate and in effect. In our examination of the aforesaid certificates and documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing. This opinion letter is based as to matters of law solely on applicable provisions of Maryland law. We express no opinion herein as to any other laws, statutes, ordinances, rules or regulations or as to compliance with the securities (or "blue sky") laws. Based upon, subject to and limited by the foregoing, we are of the opinion that the Common Shares, if and when issued and delivered in accordance with the terms of the Partnership Agreement and applicable resolutions of the Board of Trustees of the Trust authorizing the issuance of the Common Shares upon redemption of the Units as contemplated thereby, will be validly issued, fully paid and nonassessable under the laws of the State of Maryland. In rendering the foregoing opinion, we have assumed the receipt by the trust of the Units being redeemed as specified in the Partnership Agreement and the resolutions of the Board of Trustees authorizing the issuance and sale of the Units. Board of Trustees Equity Residential Properties Trust February 25, 1999 Page 4 This opinion letter has been prepared for your use in connection with the filing of the Registration Statement on the date of this opinion letter and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. We hereby consent to the filing of this opinion letter as EXHIBIT A to the opinion of Rosenberg & Liebentritt, P.C., filed as Exhibit 5.1 to the Registration Statement, and to the reference to this firm under the caption "Legal Matters" in the Prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, /s/ Hogan & Hartson L.L.P. HOGAN & HARTSON L.L.P. EX-8 3 EX-8 February 25, 1999 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: We have acted as counsel to Equity Residential Properties Trust, Inc., a Maryland real estate investment trust (the "Company"), in connection with the registration statement on Form S-3 (the "Registration Statement") and the prospectus included therein (the "Prospectus") filed by the Company with the Securities and Exchange Commission relating to the possible issuance by the Company of up to 1,257,837 shares (the "Common Shares") of common stock, par value $.01 per share, if and to the extent that, the Company elects to issue the Common Shares to the holders of 1,257,837 units of Limited Partnership interest ("Units") in ERP Operating Limited Partnership. (the "Operating Partnership") upon the tender of such Units for redemption. In connection with the Registration Statement, we have been asked to provide you with our opinions on certain federal income tax matters. Capitalized terms used in this letter and not otherwise defined herein have the meanings set forth in the Registration Statement. The opinions set forth in this letter are based on relevant provisions of the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations thereunder (including proposed and temporary Treasury Regulations), and interpretations of the foregoing as expressed in court decisions, the legislative history, and existing administrative rulings and practices of the Internal Revenue Service (including its practices and policies in issuing private letter rulings, which are not binding on the Internal Revenue Service except with respect to a taxpayer that receives such a ruling), all as of the date hereof. These provisions and interpretations are subject to change, which may or may not be retroactive in effect, that might result in modifications of our opinions. Our opinions do not foreclose the possibility of a contrary determination by the Internal Revenue Service or a court of competent jurisdiction, or of a contrary position by the Internal Revenue Service or the Treasury Department in regulations or rulings issued in the future. In rendering our opinions, we have examined such statutes, regulations, records, certificates and other documents as we have considered necessary or appropriate as a basis for such opinions, including the following: (1) the Registration Statement; (2) the Prospectus; Board of Trustees Equity Residential Properties Trust February 25, 1999 Page 2 (3) the Second Amended and Restated Declaration of Trust of the Company as certified by the State Department of Assessments and Taxation of the State of Maryland on January 22, 1999 and as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect; (5) the Fourth Amended and Restated ERP Operating Limited Partnership Agreement of Limited Partnership, dated September 30, 1995; (6) the articles of incorporation, by-laws and stock ownership information of Equity Residential Properties Management Corp., Equity Residential Properties Management Corp. II, Equity Residential Properties Management Corp. III, Wellsford Holly Management, Inc., Evans Withycombe Management, Inc. and ML Services, Inc. (the "Management Corps."), and Wellsford Real Properties, Inc. ("WRP Newco"), a company in which the Operating Partnership owns non-voting preferred stock and a minority of the common stock; (7) the partnership agreements or limited liability company agreements of Equity Residential Properties Management Limited Partnership and Equity Residential Properties Management Limited Partnership II (collectively, the "Management Partnerships"), and all other partnerships or limited liability companies in which the Operating Partnership has an interest, including Evans Withycombe Residential, L.P. (collectively, the partnerships in which either the Operating Partnership or Evans Withycombe Residential, L.P. has an interest, other than the Management Partnerships, may be referred to as the "Subsidiary Partnerships") other than Subsidiary Partnerships formed after January 1, 1997 and those acquired in connection with the acquisition of Merry Land & Investment Company, Inc. ("Merry Land"); (8) the articles of incorporation, by-laws and stock ownership information of the various "qualified REIT subsidiaries" wholly-owned by the Company (collectively, the "QRS Corporations"); (9) the Joint Proxy Statement/Prospectus/Information Statement furnished to the shareholders of the Company on September 14, 1998 in connection with the acquisition of Merry Land by the Company (the "Proxy Statement"); and (10) other necessary documents. The opinions set forth in this letter also are premised on certain written representations of the Company and the Operating Partnership made to us, which relate, INTER Board of Trustees Equity Residential Properties Trust February 25, 1999 Page 3 ALIA, to the Company and to EQR and Wellsford as predecessors by merger to the Company (the "Representation Letter"). In our review, we have assumed, with your consent, that: (i) All of the representations and statements set forth in the documents we reviewed (the "Reviewed Documents") are true and correct, any such representation or statement made as a belief or made "to the knowledge of" or similarly qualified is correct and accurate without such qualification, and all of the obligations imposed by any such documents on the parties thereto have been and will be performed or satisfied in accordance with their terms. (ii) The Company, the Operating Partnership, the Management Partnerships, the Management Corps., the QRS Corporations and the Subsidiary Partnerships each have been and will continue to be operated in the manner described in the relevant partnership agreement, limited liability company agreement, articles of incorporation or other organizational documents and in the Prospectus; (iii) There are no agreements or understandings between the Company or the Operating Partnership, on the one hand, and the owners (or related parties) of the voting stock of the Management Corps. and WRP Newco, on the other, that are inconsistent with the Operating Partnership being considered to be the record or beneficial owner of less than 10% of the outstanding voting stock of any of the Management Corps. or WRP Newco. (iv) All signatures to the Reviewed Documents are genuine, all documents were properly executed, all documents submitted to us as originals are authentic, all documents submitted to us as copies conform to the originals, and all original documents from which any copies were made are authentic. (v) The Company is a validly organized and duly incorporated real estate investment trust under the laws of the State of Maryland. The Management Corps., WRP Newco and the QRS Corporations are validly organized and duly incorporated corporations under the laws of the states in which they are incorporated. The Operating Partnership, the Management Partnerships, and the Subsidiary Partnerships are duly organized and validly existing partnerships or limited liability companies under the laws of the states in which they are organized. For the purpose of our opinions, we have not made an independent investigation of the facts set forth in the Reviewed Documents. We consequently have assumed that the Board of Trustees Equity Residential Properties Trust February 25, 1999 Page 4 information presented in such documents (including the Representation Letter and the Proxy Statement) or otherwise furnished to us accurately and completely describes all material facts relevant to our opinions. No facts have come to our attention, however, that would cause us to question the accuracy and completeness of such facts or documents in a material way. Any variation or difference in the facts from those set forth in the Reviewed Documents may affect the conclusions stated herein. In addition, if any one of the statements, representations, warranties or assumptions upon which we have relied to issue this opinion letter is incorrect, our opinions might be adversely affected and may not be relied upon. Based upon, and subject to, the foregoing and the next paragraph below, we are of the opinion that: 1. The Company was organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code for its taxable years ended December 31, 1992, December 31, 1993, December 31, 1994, December 31, 1995, December 31, 1996, December 31, 1997, and December 31, 1998, and the Company's current organization and method of operation should enable it to continue to meet the requirements for qualification and taxation as a REIT; and 2. The discussion in the Prospectus under the heading "Federal Income Tax Considerations" to the extent that it describes provisions of federal income tax law or legal conclusions, is correct in all material respects. This opinion letter is limited to the two opinions stated above. Our opinions do not, and are not intended to, address the tax consequences to any holder of Units with respect to the acquisition, ownership, redemption or disposition of its Units. For purposes of the second opinion stated above, the term "Prospectus" does not include the documents incorporated by reference in the Prospectus. The Company's qualification and taxation as a REIT depends upon the Company's ability to meet on a continuing basis, through actual annual operating and other results, the various requirements under the Code and described in the Prospectus with regard to, among other things, the sources of its gross income, the composition of its assets, the level of its distributions to stockholders, and the diversity of its share ownership. Hogan & Hartson L.L.P. will not review the Company's compliance with these requirements on a continuing basis. No assurance can be given that the actual results of the operations of the Company, the Operating Partnership, the Management Partnerships, the Management Corps., the QRS Corporations and the Board of Trustees Equity Residential Properties Trust February 25, 1999 Page 5 Subsidiary Partnerships, the sources of their income, the nature of their assets, the level of the Company's distributions to shareholders and the diversity of its share ownership for any given taxable year will satisfy the requirements under the Code for qualification and taxation as a REIT. For a discussion relating the law to the facts and the legal analysis underlying the opinions set forth in this letter, we incorporate by reference the discussion of federal income tax issues, which we assisted in preparing, in the section of the Prospectus under the heading "Federal Income Tax Considerations." An opinion of counsel merely represents counsel's best judgment with respect to the probable outcome on the merits and is not binding on the Internal Revenue Service or the courts. There can be no assurance that positions contrary to our opinions will not be taken by the Internal Revenue Service, or that a court considering the issue would not hold contrary to our opinions. Furthermore, no assurance can be given that future legislative, judicial or administrative changes, on either a prospective or retroactive basis, would not adversely affect the accuracy of the opinions expressed herein. Nevertheless, we undertake no responsibility to advise you of any such changes. This opinion letter has been prepared for your benefit in connection with the filing of the Registration Statement. This opinion letter may not be used or relied upon by any other person or for any other purpose and may not be disclosed, quoted, filed with any governmental agency or otherwise referred to without our prior written consent of this firm. We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Registration Statement and to the reference to Hogan & Hartson L.L.P. under the caption "Federal Income Tax Considerations" in the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, Hogan & Hartson L.L.P. EX-23.1 4 EX-23.1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We have issued our report dated February 14, 1996 accompanying the consolidated financial statements of Equity Residential Properties Trust for the year ended December 31, 1995. We consent to the incorporation by reference of the above report in the Registration Statement of Equity Residential Properties Trust on Form S-3, and to the use of our name as it appears under the caption "Experts." GRANT THORNTON LLP Chicago, Illinois February 25, 1999 EX-23.2 5 EX-23.2 Exhibit 23.2 Consent of Independent Auditors We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of Equity Residential Properties Trust for the registration of 1,262,264 common shares and to the incorporation by reference therein of our reports indicated below with respect to the financial statements indicated below included or incorporated by reference in Equity Residential Properties Trust's filings as indicated below, filed with the Securities and Exchange Commission.
- ------------------------------------------------------------------------------------------------------------------- Date of Auditors' Financial Statements Report Filing - ------------------------------------------------------------------------------------------------------------------- Consolidated financial statements and schedule of February 26, 1998 1997 Annual Report on Form Equity Residential Properties Trust at December 31, except for Note 24, 10-K, as amended by Form 1997 and 1996 and for the years then ended as to which the date 10-K/A is March 12, 1998 Statement of Revenue and Certain Expenses of April 30, 1998 Current Report on Form 8-K Sonterra at Foothill Ranch for the year ended dated June 25, 1998 December 31, 1997 Combined Statement of Revenue and Certain Expenses April 30, 1998 Current Report on Form 8-K of the Lincoln Property Company Probable Properties dated June 25, 1998 for the year ended December 31, 1997 Statement of Revenue and Certain Expenses of The May 1, 1998 Current Report on Form 8-K Emerson Place Apartments for the year ended dated June 25, 1998 December 31, 1997 Combined Statement of Revenue and Certain Expenses May 1, 1998 Current Report on Form 8-K of The Magnum Probable Properties for the year dated June 25, 1998 ended December 31, 1997 Combined Statement of Revenue and Certain Expenses May 29, 1998 Current Report on Form 8-K of the Frederick Probable Properties for the year dated June 25, 1998 ended December 31, 1997 Statement of Revenue and Certain Expenses of Harbor June 2, 1998 Current Report on Form 8-K Pointe for the year ended December 31, 1997 dated June 25, 1998 Statement of Revenue and Certain Expenses of The June 4, 1998 Current Report on Form 8-K Fairfield for the year ended December 31, 1997 dated June 25, 1998 Combined Statement of Revenue and Certain Expenses June 4, 1998 Current Report on Form 8-K of the Lakes at Vinings Apartments and Martins dated June 25, 1998 Landing Apartments Probable Properties for the year ended December 31, 1997
- ------------------------------------------------------------------------------------------------------------------- Date of Auditors' Financial Statements Report Filing - ------------------------------------------------------------------------------------------------------------------- Statement of Revenue and Certain Expenses of The June 9, 1998 Current Report on Form 8-K Northridge Apartments for the year ended December dated June 25, 1998 31, 1997 Combined Statement of Revenue and Certain Expenses June 10, 1998 Current Report on Form 8-K of TCRS Properties for the year ended December 31, dated June 25, 1998 1997 Statement of Revenue and Certain Expenses of the June 11, 1998 Current Report on Form 8-K Portside Towers Apartments for the year ended dated June 25, 1998 December 31, 1997 Statement of Revenue and Certain Expenses of The June 11, 1998 Current Report on Form 8-K Coconut Palm Club Apartments for the year ended dated June 25, 1998 December 31, 1997 Combined Statement of Revenue and Certain Expenses June 18, 1998 Current Report on Form 8-K of The Focus Group Properties for the year ended dated June 25, 1998 December 31, 1997 Combined Statement of Revenue and Certain Expenses November 12, 1997 Current Report on Form 8-K, of the CAPREIT Acquired and Probable Properties for as amended by Form 8-K/A the year ended December 31, 1996 dated October 9, 1997 Combined Statement of Revenue and Certain Expenses August 15, 1997 Current Report on Form 8-K, of the Ameritech Pension Trust Probable Properties dated September 17, 1997 for the year ended December 31, 1996 Combined Statement of Revenue and Certain Expenses September 5, 1997 Current Report on Form 8-K of Paces on the Green and Paces Station for the dated September 17, 1997 year ended December 31, 1996 Statement of Revenue and Certain Expenses of July 17, 1997 Current Report on Form 8-K Cascade at Landmark for the year ended December 31, dated August 15, 1997 1996 Statement of Revenue and Certain Expenses of Sabal July 2, 1997 Current Report on Form 8-K Palm Club (formerly known as Post Crossing dated August 15, 1997 (Pompano)) for the year ended December 31, 1996 Statement of Revenue and Certain Expenses of Wood July 23, 1997 Current Report on Form 8-K Creek (Pleasant Hill) for the year ended December dated August 15, 1997 31, 1996 Statement of Revenue and Certain Expenses of July 25, 1997 Current Report on Form 8-K LaMirage for the year ended December 31, 1996 dated August 15, 1997
- ------------------------------------------------------------------------------------------------------------------- Date of Auditors' Financial Statements Report Filing - ------------------------------------------------------------------------------------------------------------------- Statement of Revenue and Certain Expenses of May 16, 1997 Current Report on Form 8-K Harborview for the year ended December 31, 1996 dated May 20, 1997 Statement of Revenue and Certain Expenses of Trails May 6, 1997 Current Report on Form 8-K at Dominion for the year ended December 31, 1996 dated May 20, 1997 Statement of Revenue and Certain Expenses of Rincon May 7, 1997 Current Report on Form 8-K for the year ended December 31, 1996 dated May 20, 1997 Statement of Revenue and Certain Expenses of May 12, 1997 Current Report on Form 8-K Waterford at the Lakes for the year ended December dated May 20, 1997 31, 1996 Statement of Revenue and Certain Expenses of May 16, 1997 Current Report on Form 8-K Lincoln Harbour for the year ended December 31, dated May 20, 1997 1996 Combined Statement of Revenue and Certain Expenses May 9, 1997 Current Report on Form 8-K of Knights Castle and Club at the Green for the dated May 20, 1997 year ended December 31, 1996 Combined Statements of Revenue and Certain Expenses March 25, 1997 Current Report on Form 8-K of the Zell/Merrill Properties for each of the dated May 20, 1997 three years in the period ended December 31, 1996 Consolidated financial statements and schedule of February 10, 1997 Joint Proxy Statement/ Wellsford Residential Property Trust at December except for Note 13, Prospectus on Form S-4/A 31, 1996 and 1995 and for each of the three years as to which the date dated April 25, 1997 in the period ended December 31, 1996 is February 28, 1997 Consolidated financial statements and schedule of January 31, 1997 Current Report on Form 8-K Evans Withycombe Residential, Inc. and subsidiaries dated September 10, 1997 at December 31, 1996 and 1995 and for each of the three years in the period ended December 31, 1996 /S/ ERNST & YOUNG LLP
Chicago, Illinois February 25, 1999 EX-23.3 6 EX-23.3 Exhibit 23.3 Consent of the Independent Public Accountants As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated January 16, 1998 included in Equity Residential Properties Trust's Form 8-K (No. 001-12252) dated July 23, 1998. Arthur Andersen LLP Atlanta, Georgia February 24, 1999 -----END PRIVACY-ENHANCED MESSAGE-----