-----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, WO+xRtE3ZnRO4HikUjjbM2gOHRkrcdBMmDuPUhBzi933rt/ZzyP8XLIomcIhGoFv Y5+ihIWE5ZAeTHcKDgGXmA== 0001047469-99-024429.txt : 19990617 0001047469-99-024429.hdr.sgml : 19990617 ACCESSION NUMBER: 0001047469-99-024429 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990616 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: 333-80835 FILM NUMBER: 99647628 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 FORM S-3 As filed with the Securities and Exchange Commission on June 16, 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...... 3,089,547 $46.1875 $142,698,452 $39,671 - ----------------------------------------------------------------------------------------------------------------------------
(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 June 14, 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 JUNE 16, 1999 PROSPECTUS 3,089,547 SHARES EQUITY RESIDENTIAL PROPERTIES TRUST COMMON SHARES OF BENEFICIAL INTEREST The persons listed below, who may become shareholders of Equity Residential Properties Trust, may offer and sell from time to time up to 3,089,547 of our common shares of beneficial interest under this prospectus. In this prospectus we refer to these persons as the selling shareholders. We may issue up to 3,089,547 common shares to the selling shareholders, upon their request, in exchange for their 3,089,547 units of limited partnership interest in ERP Operating Limited Partnership, our operating partnership. Our registration of these common shares is not meant to imply that the selling shareholders will offer or sell any of these common shares. We will receive no proceeds from any sale of common shares by a selling shareholder. The selling shareholders may offer their common shares through public or private transactions, on or off the New York Stock Exchange, at prevailing market prices, or at privately negotiated prices. The selling shareholders may sell their common shares directly or through agents or broker-dealers acting as principal or agent, or in a distribution by underwriters. The common shares are listed on the New York Stock Exchange under the symbol "EQR". ---------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ---------- The date of this prospectus is June __, 1999. 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 Additional Federal Income Tax Considerations........................ 7 Plan of Distribution................................................ 8 Experts............................................................. 8 Legal Matters....................................................... 9
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS Information contained in or incorporated by reference into this prospectus and any accompanying prospectus supplement contains "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"). We intend the forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in that section. These forward-looking statements relate to, without limitation, our anticipated future economic performance, our plans and objectives for future operations and projections of revenue and other financial items, which can be identified by the use of forward-looking words such as "may," "will," "should," "expect," "anticipate," "estimate" or "continue" or the negative thereof or other variations thereon or comparable terms. The cautionary statements under the caption "Risk Factors" contained in our Annual Report on Form 10-K for the year ended December 31, 1998, which is incorporated herein by reference, and other similar statements contained in this prospectus or any accompanying prospectus supplement identify important factors with respect to forward-looking statements, including certain risks and uncertainties, that could cause actual results to differ materially from those in such forward-looking statements. AVAILABLE INFORMATION We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, we are required to file reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). You may inspect and copy these reports, proxy statements and other information at the Public Reference Section of the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York 10048. You may also obtain copies of the reports, proxy statements and other information from the Public Reference Section of the Commission, Washington, D.C. 20549, upon payment of prescribed rates, or in certain cases by accessing the Commission's World Wide Web site at http://www.sec.gov. You may obtain information on the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. Our common shares are listed on the New York Stock Exchange under the symbol "EQR". Our reports, proxy statements and other information are also available for inspection at the offices of the New York Stock Exchange located at 20 Broad Street, New York, New York 10005. We have filed with the Commission a registration statement on Form S-3 (the "Registration Statement"), of which this prospectus is a part, under the Securities Act, with respect to the securities covered by this prospectus. This prospectus does not contain all of the information set forth in the Registration Statement, certain portions of which have been omitted as permitted by the rules and regulations of the Commission. Statements contained in this prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance, we refer the reader to the copy of such contract or document filed as an exhibit to the Registration Statement. Each such statement is qualified in all respects by this reference and the exhibits and schedules thereto. For further information about us and the common shares covered by this prospectus, we refer the reader to the Registration Statement and these exhibits and schedules which may be obtained from the Commission. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE We have filed the documents listed below with the Commission under the Exchange Act and these documents are incorporated into this prospectus by reference: a. Annual Report on Form 10-K for the year ended December 31, 1998. b. Quarterly Report on Form 10-Q for the period ended March 31, 1999. c. Second Amended and Restated Declaration of Trust (the "Declaration of Trust") filed as Exhibit 3.1 to our Current Report on Form 8-K dated May 30, 1997, as amended or supplemented from time to time. d. Second Amended and Restated Bylaws (the "Bylaws"), filed as Exhibit 3.2 to our Current Report on Form 8-K, dated May 30, 1997. e. Definitive Proxy Statement relating to our Annual Meeting of Shareholders dated March 31, 1999. 3 f. Joint Proxy Statement/Prospectus/Information Statement dated September 14, 1998. g. Description of our common shares contained in our registration statement on Form 8-A/A dated August 10, 1993. h. Current Reports on Form 8-K dated June 25, 1998, July 8, 1998, July 23, 1998, August 11, 1998, October 19, 1998, and February 24, 1999 and our Current Report on Form 8-K/A dated July 23, 1998. All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of the offering of all common shares under this prospectus will also be deemed to be incorporated by reference in this prospectus and to be a part hereof from the date of filing those documents. Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference herein will be modified or superseded by inconsistent statements in any document we file in the future that will be deemed incorporated by reference herein, including any prospectus supplement that supplements this prospectus. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or any accompanying prospectus supplement. Subject to the foregoing, all information appearing in this prospectus and each accompanying prospectus supplement is qualified in its entirety by the information appearing in the documents incorporated by reference. We will provide, without charge, copies of all documents that are incorporated herein by reference (not including the exhibits to such information, unless such exhibits are specifically incorporated by reference in such information) to each person, including any beneficial owner, to whom this prospectus is delivered upon written or oral request. Requests should be directed to Equity Residential Properties Trust, Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606, Attention: Cynthia McHugh (telephone number: (312) 474-1300). 4 UNLESS OTHERWISE INDICATED, WHEN USED HEREIN, THE TERMS "WE" AND "US" REFER TO EQUITY RESIDENTIAL PROPERTIES TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST, AND ITS SUBSIDIARIES, INCLUDING ERP OPERATING LIMITED PARTNERSHIP, ITS OPERATING PARTNERSHIP. THE COMPANY We are an equity real estate investment trust, or REIT, formed to continue the multifamily property business objectives and acquisition strategies of certain affiliated entities controlled by Mr. Samuel Zell, Chairman of our Board of Trustees. We are the managing general partner of ERP Operating Limited Partnership, our operating partnership. We own, administer and manage all of our assets and conduct substantially all of our business through the operating partnership and its subsidiaries. Our executive offices are located at Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606, and its telephone number is (312) 474-1300. NO PROCEEDS TO THE COMPANY We will not receive any of the proceeds from sales of common shares offered by the selling shareholders. We will pay all of the costs and expenses incurred in connection with the registration under the Securities Act of the offering made hereby, other than any brokerage fees and commissions, fees and disbursements of legal counsel for the selling shareholders and share transfer and other taxes attributable to the sale of the offered common shares, which will be paid by the selling shareholders. SELLING SHAREHOLDERS We may issue up to 3,089,547 common shares to the selling shareholders who currently hold 3,089,547 units of limited partnership interest in our operating partnership, if and to the extent that the selling shareholders exchange their units of limited partnership interest and we issue common shares to them in exchange therefor. Following our issuance of these shares, the selling shareholders may resell the common shares covered by this prospectus as provided under the Plan of Distribution section of this prospectus or as described in an applicable prospectus supplement. The following table provides the name of each selling shareholder, the number of common shares to be owned upon exchange of such units of limited partnership interest by each selling shareholder before any offering to which this prospectus relates, and the number of common shares that may be offered by each selling shareholder. Assuming the redemption of all units of limited partnership held by each selling shareholder, the number of common shares set forth in the following table is also the number of common shares owned by each selling shareholder prior to the offering. Because the selling shareholders may sell all or some of their offered common shares, no estimate can be made of the number of offered common shares that will be sold by the selling shareholders or that will be owned by the selling shareholders upon completion of the offering. There is no assurance that the selling shareholders will sell any of the offered common shares. The common shares covered by this prospectus represent approximately 2.3% of the total common shares (assuming exchange of all outstanding units of limited partnership interest for common shares) outstanding as of March 31, 1999. 5
NUMBER OF COMMON SHARES OWNED AND NAME OF SELLING SHAREHOLDER OFFERED HEREBY -------------------------- -------------- EQR/Legacy Partners Guaranty Holding Limited Liability Company........ 444,456 C. Preston Butcher III................................................ 340,095 Mack Pogue, Inc....................................................... 256,676 W. Dean Henry......................................................... 213,343 Denny McLarry 1998 Trust.............................................. 206,591 Otilia C. McLarry 1998 Trust.......................................... 206,591 Woodson Family Trust.................................................. 144,073 Legacy Partners 2236 L.P. ............................................ 136,659 SP Lakeshore Partners, Ltd............................................ 103,036 David Brent Pogue..................................................... 73,512 Blair Matthew Pogue................................................... 68,379 Park River Limited Partners, Ltd...................................... 62,300 Jeff Byrd............................................................. 61,969 Gary J. Rossi......................................................... 57,746 B-Way Limited Partners, Ltd........................................... 56,951 Wimbledon Partners, Ltd............................................... 52,869 Lakewood Greens Partners, Ltd. ....................................... 48,926 Legacy Partners 2232 L.P. ............................................ 43,284 Edward D. O'Brien..................................................... 41,485 Paul M. Thomas Jr. Family Trust....................................... 37,498 Villas at Josey Ranch, Inc............................................ 37,252 Blake Pogue........................................................... 33,665 Stuart L. Leeder...................................................... 32,115 Guy Hays.............................................................. 30,578 Kimberlee Spicer Romanov.............................................. 27,996 Gould Investors, LP................................................... 26,470 Eduard de Guardiola................................................... 24,820 Fielders 1990 Partners, L.P........................................... 22,285 CR Townhomes Limited Partnership...................................... 22,111 Michael A. Zoellner................................................... 16,847 Cann Investments, Ltd................................................. 16,611 Jane A. Hiber......................................................... 15,457 Michael Blonder....................................................... 15,420 Pleasant Ridge Partners, L.P.......................................... 14,149 Esther A. Dunton...................................................... 13,435 Paul H. Ravich........................................................ 9,365 Howard G. Stacker..................................................... 9,365 Arledge Family Trust.................................................. 8,660 Edward B. Romanov, Jr................................................. 8,424 Delivertech, Inc...................................................... 8,163 Dallas Sandstone of Bear Creek L.P.................................... 8,142 Richard L. Fore....................................................... 6,903 Gerald Blonder........................................................ 5,776 Pogue Children's 1998 Lincoln Trust................................... 4,877 Lincoln Property Company No. 292 Limited Partnership.................. 4,506 Lincoln Property Company No. 234 Ltd. Partnership..................... 4,477 John Igoe c/o LPAC Agent.............................................. 2,233 Delores Jean Pogue Trust.............................................. 1,881 Edward T. Hewitt...................................................... 406 Richard H. Semple..................................................... 406 Roy L. Titchworth, M.D. and Carolyn Titchworth ....................... 270 Paul M. Thomas, Jr.................................................... 43 ----------- 3,089,547 ----------- -----------
6 ADDITIONAL FEDERAL INCOME TAX CONSIDERATIONS The following discussion supplements the discussion under the heading "Federal Income Tax Considerations--Other Tax Considerations" in our 1998 annual report, which has been incorporated into this prospectus by reference. On April 28, 1999, the Real Estate Investment Trust Modernization Act of 1999 was introduced in Congress. This bill would change some of the rules that apply to REITs. The bill is similar to the Clinton administration's proposal, which is discussed in our 1998 annual report, in several respects. Under current law, a REIT is precluded from owning more than 10% of the outstanding voting securities of any one issuer, other than a wholly owned subsidiary or another REIT. Like the Clinton proposal, the bill would continue the current restriction and also would preclude a REIT from owning more than 10% of the value of all classes of stock of any covered issuer. However, the securities of some corporations in which a REIT owned an interest on April 28, 1999 would be excepted from this new requirement. Also like the Clinton proposal, the bill would permit a REIT to create taxable subsidiaries that would not be subject to some of the REIT asset tests. It is uncertain whether any legislative proposal regarding the REIT rules will be enacted. It also is uncertain what the terms of any new legislation affecting REITs would be. 7 PLAN OF DISTRIBUTION Any of the selling shareholders may from time to time, in one or more transactions, sell all or a portion of the offered common shares on the New York Stock Exchange, in the over-the-counter market, on any other national securities exchange on which the common shares are listed or traded, in negotiated transactions, in underwritten transactions or otherwise, at prices then prevailing or related to the then current market price or at negotiated prices. The offering price of the offered common shares from time to time will be determined by the selling shareholders and, at the time of such determination, may be higher or lower than the market price of the common shares on the New York Stock Exchange. In connection with an underwritten offering, underwriters or agents may receive compensation in the form of discounts, concessions or commissions from a selling shareholder or from purchasers of offered common shares for whom they may act as agents, and underwriters may sell offered common shares to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Under agreements that may be entered into by us, underwriters, dealers and agents who participate in the distribution of offered common shares may be entitled to indemnification by us against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. The offered common shares may be sold directly or through broker-dealers acting as principal or agent, or pursuant to a distribution by one or more underwriters on a firm commitment or best-efforts basis. The methods by which the offered common shares may be sold include: (a) a block trade in which the broker-dealer so engaged will attempt to sell the offered common shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker-dealer as principal and resale by such broker-dealer for its account pursuant to this prospectus; (c) ordinary brokerage transactions and transactions in which the broker solicits purchasers; (d) an exchange distribution in accordance with the rules of the New York Stock Exchange; (e) privately negotiated transactions; and (f) underwritten transactions. The selling shareholders and any underwriters, dealers or agents participating in the distribution of the offered common shares may be deemed to be "underwriters" within the meaning of the Securities Act, and any profit on the sale of the offered common shares by the selling shareholders and any commissions received by any such broker-dealers may be deemed to be underwriting commissions under the Securities Act. When a selling shareholder elects to make a particular offer of offered common shares, a prospectus supplement, if required, will be distributed which will identify any underwriters, dealers or agents and any discounts, commissions and other terms constituting compensation from such selling shareholder and any other required information. In order to comply with the securities laws of certain states, if applicable, the offered common shares may be sold only through registered or licensed brokers or dealers. In addition, in certain states, the offered common shares may not be sold unless they have been registered or qualified for sale in such state or an exemption from such registration or qualification requirement is available and is complied with. We have agreed to pay all costs and expenses incurred in connection with the registration under the Securities Act of the offered common shares, including, without limitation, all registration and filing fees, printing expenses and fees and disbursements of our counsel and accountants. The selling shareholders will pay any brokerage fees and commissions, fees and disbursements of their legal counsel and share transfer and other taxes attributable to the sale of the offered common shares. We have also agreed to indemnify each of the selling shareholders and their respective officers, directors and trustees and each person who controls (within the meaning of the Securities Act) such selling shareholder against certain losses, claims, damages, liabilities and expenses arising under the securities laws in connection with this offering. Each of the selling shareholders has agreed to indemnify us and our officers and trustees and each person who controls (within the meaning of the Securities Act) our company against any losses, claims, damages, liabilities and expenses arising under the securities laws in connection with this offering with respect to written information furnished to us by such selling shareholder; PROVIDED, HOWEVER, that the indemnification obligation is several, not joint, as to each selling shareholder. EXPERTS Ernst & Young LLP, independent auditors, have audited our consolidated financial statements and schedule included in our Annual Report on Form 10-K for the year ended December 31, 1998, and the Statements of Revenue and Certain Expenses of certain properties that were 8 acquired or were expected to be acquired in 1998, included in our Current Report on Form 8-K dated June 25, 1998, as set forth in their reports, which are incorporated by reference in this prospectus and elsewhere in the registration statement. Our consolidated financial statements and schedule and the statements of revenue and certain expenses are incorporated by reference in reliance on Ernst & Young LLP's reports, given on their authority as experts in accounting and auditing. The consolidated financial statements of Merry Land & Investment Company, Inc. appearing in our Current Report on Form 8-K, dated July 23, 1998 were audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are incorporated in this Registration Statement in reliance upon the authority of said firm as experts in accounting and auditing. LEGAL MATTERS The legality of the offered common shares has been passed upon for us by Rosenberg & Liebentritt, P.C., Chicago, Illinois. Certain tax matters have been passed upon by Hogan & Hartson L.L.P., our special tax counsel. Rosenberg & Liebentritt, P.C. will rely on Hogan & Hartson L.L.P. as to certain matters of Maryland law. 9 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY US. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE COMMON SHARE, IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM TO WHOM, IT IS UNLAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN OUR AFFAIRS SINCE THE DATE HEREOF. ---------- 3,089,547 SHARES EQUITY RESIDENTIAL PROPERTIES TRUST COMMON SHARES OF BENEFICIAL INTEREST ---------- PROSPECTUS ---------- JUNE ___, 1999 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 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....................................................... 39,671 Printing and Duplicating Expenses*..................................... 5,000 Legal Fees and Expenses*............................................... 25,000 Accounting Fees and Expenses*.......................................... 6,000 Blue Sky Fees and Expenses*............................................ 5,000 Miscellaneous*......................................................... 3,329 ------- Total*................................................................. $84,000
- ----------- * Estimated ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS Under Maryland law, a real estate investment trust formed in Maryland is permitted to eliminate, by provision in its Declaration of Trust, the liability of trustees and officers to the trust and its shareholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) acts or omissions established by a final judgment as involving active and deliberate dishonesty and being material to the matter giving rise to the proceeding. The Registrant's Declaration of Trust includes such a provision eliminating such liability to the maximum extent permitted by Maryland law. The Maryland REIT law, effective October 1, 1994, permits a Maryland real estate investment trust to indemnify and advance expenses to its trustees, officers, employees and agents to the same extent as permitted by the Maryland General Corporation Law ("MGCL") for directors and officers of Maryland corporations. As permitted by the MGCL, the Registrant's bylaws require it to indemnify (a) any present or former trustee, officer or shareholder or any individual who, while a trustee, officer or shareholder, served or is serving as a trustee, officer, director, shareholder or partner of another entity at the Registrant's express request who has been successful, on the merits or otherwise, in the defense of a proceeding to which he was made a party by reason of service in such capacity, against reasonable expenses incurred by him in connection with the proceeding, (b) any present or former trustee or officer or any individual who, while a trustee or officer served or is serving as a trustee, officer, director, shareholder or partner of another entity at the Registrant's express request against any claim or liability to which he may become subject by reason of service in such capacity unless it is established that (i) his act or omission was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty, (ii) he actually received an improper personal benefit in money, property or services or (iii) in the case of a criminal proceeding, he had reasonable cause to believe that his act or omission was unlawful and (c) any present or former shareholder against any claim or liability to which he may become subject by reason of such status. In addition, the Registrant's bylaws require it to pay or reimburse, in advance of final disposition of a proceeding, reasonable expenses incurred by a present or former trustee, officer or shareholder or any individual who, while a trustee, officer or shareholder, served or is serving as a trustee, officer, director, shareholder or partner of another entity at the Registrant's express request made a party to a proceeding by reason of such status, provided that, in the case of a trustee or officer, the Registrant shall have received (1) a written affirmation by such person of his good faith belief that he has met the standard of conduct necessary for indemnification by the Registrant as authorized or required by the bylaws and (2) a written undertaking by or on his behalf to repay the amount paid or reimbursed by the Registrant if it shall ultimately be determined that the applicable standard of conduct was not met. The Registrant's bylaws also (x) permit the Registrant to provide indemnification and payment or reimbursement of expenses to a present or former trustee, officer or shareholder who served a predecessor of the Registrant or to any employee or agent of the Registrant or a predecessor of the Registrant, (y) provide that any indemnification and payment or reimbursement of the expenses permitted by the bylaws shall be furnished in accordance with the procedures provided for indemnification and payment or reimbursement of expenses under Section 2-418 of the MGCL for directors of Maryland corporations and (z) permit the Registrant to provide to the trustees and officers such other and further indemnification or payment or reimbursement of expenses to the fullest extent permitted by Section 2-418 of the MGCL for directors of Maryland corporations. The Registrant has entered into indemnification agreements with each of its trustees and executive officers. The indemnification agreements require, among other things, that the Registrant indemnify its trustees and executive officers to the fullest extent permitted by law and advance to the trustees and executive officers all related expenses, subject to reimbursement if it is subsequently determined that indemnification is not permitted. Under these agreements, the Registrant must also indemnify and advance all expenses incurred 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 Ernst & Young LLP 23.2 - Consent of Arthur Andersen LLP 23.3 - Consent of Rosenberg & Liebentritt, P.C. (included in Exhibit 5) 23.4 - Consent of Hogan & Hartson L.L.P. (included in Exhibit 8) 24 - Power of Attorney (filed as part of the signature page to the Registration Statement)
- -------------------- * 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 June 16, 1999. EQUITY RESIDENTIAL PROPERTIES TRUST By: /s/ Douglas Crocker II ----------------------------------------- Douglas Crocker II, President, Chief Executive Officer and Trustee POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Douglas Crocker II and Sheli Z. Rosenberg, or either of them, his attorneys-in-fact and agents, with full power of substitution and resubstitution for him in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith or in connection with the registration of the Securities under the Exchange Act, with the Securities and Exchange Commission, granting unto each of such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of such attorneys-in-fact and agents or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on June 16, 1999:
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 Treasurer Michael J. McHugh /s/ Gerald A. Spector Executive Vice President, Chief Operating Officer and - ------------------------------------ Trustee Gerald A. Spector /s/ Stephen O. Evans Executive Vice President and Trustee - ------------------------------------ Stephen O. Evans /s/ Sheli Z. Rosenberg Trustee - ------------------------------------ Sheli Z. Rosenberg /s/ James D. Harper, Jr. Trustee - ------------------------------------ James D. Harper, Jr. /s/ Errol R. Halperin Trustee - ------------------------------------ Errol R. Halperin /s/ John Alexander Trustee - ------------------------------------ John Alexander /s/ B. Joseph White Trustee - ------------------------------------ B. Joseph White /s/ Henry H. Goldberg Trustee - ------------------------------------ Henry H. Goldberg /s/ Jeffrey H. Lynford Trustee - ------------------------------------ Jeffrey H. Lynford Trustee - ------------------------------------ Edward Lowenthal /s/ Boone A. Knox Trustee - ------------------------------------ Boone A. Knox /s/ Michael N. Thompson Trustee - ------------------------------------ Michael N. Thompson
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 Ernst & Young LLP 23.2 Consent of Arthur Andersen LLP 23.3 Consent of Rosenberg & Liebentritt, P.C. (included in Exhibit 5) 23.4 Consent of Hogan & Hartson L.L.P. (included in Exhibit 8) 24 Power of Attorney (filed as part of the signature page to the Registration Statement)
- -------------------- * 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 EXHIBIT 5 Exhibit 5 [Letterhead of Rosenberg & Liebentritt, P.C.] June 16, 1999 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: We are counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Company"), in connection with its registration statement on Form S-3 (the "Registration Statement") filed with the Securities and Exchange Commission relating to proposed resales of up to 3,089,547 shares (the "Shares") of the Company's common shares of beneficial interest, $.01 par value per share, that may be offered and sold from time to time by certain holders (the "Selling Shareholders") if and to the extent that the Selling Shareholders tender for redemption their 3,089,547 units (the "Units") of limited partnership interest in ERP Operating Limited Partnership (the "Operating Partnership"), as more fully described in the prospectus that forms a part of the Registration Statement and as may be set forth in one or more supplements to the Prospectus. This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the Registration Statement. We assume that the amount, issuance and sale of the Shares to be offered by the Selling Shareholders from time to time will be consistent with the procedures and terms described in the Registration Statement and in accordance with the Company's Second Amended and Restated Declaration of Trust, as amended (the "Declaration of Trust"), and applicable Maryland law. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Second Amended and Restated Declaration of Trust of the Company, as certified by the Maryland State Department of Assessments and Taxation on June 16, 1999, and by the Secretary of the Company on the date hereof as being complete, accurate and in effect. 3. The Second Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 2 4. Resolutions of the Board of Trustees of the Company adopted on May 14, 1999, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect, approving the issuance and registration of the Shares and related matters. 5. The following agreements (the "Contribution Agreements"): (a) The Omnibus Contribution Agreement dated July 1, 1998, by and among the Contributors named on Exhibit A to the Agreement and the Partnership; (b) the Agreement for Contribution of Real Estate and Related Property dated April 22, 1998, by and among the Contributors listed on the signature pages of the Agreement and the Partnership; (c) the Agreement for Contribution of Real Estate and Related Property dated August 21, 1998, by and between Esprit Del Sol LLC, a California limited liability company, and the Partnership; (d) the Agreement for Contribution of Real Estate and Related Property dated April 17, 1998, by and between Summer Creek Apartments Limited Partnership, a Minnesota limited partnership, and the Partnership; (e) the Agreement for Contribution of Real Estate and Related Property dated May 19, 1998, by and between Lexington Farm, L.P., a Georgia limited partnership, and the Partnership; (f) the Agreement for Contribution of Real Estate and Related Property dated May 19, 1998, by and between Defoor Village Apartments, L.P., a Georgia limited partnership, and the Partnership; (g) the Agreement for Contribution of Real Estate and Related Property dated May 19, 1998, by and between Focus/Ridge, L.P., a Georgia limited partnership, and the Partnership; and (h) the Agreement for Contribution of Real Estate and Related Property dated May 19, 1998, by and between Norcoss Woods, Ltd., a Georgia general partnership, and the Partnership. 6. The Partnership's Fifth Amended and Restated Agreement of Limited Partnership dated as of August 1, 1998 (the "Partnership Agreement"), as Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 3 certified as of the date hereof by the Secretary of the Company, in its capacity as managing general partner of the Partnership, as then being complete, accurate and in effect. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as certified, telecopied, photostatic, or reproduced copies. We have also assumed the accuracy, completeness and authenticity of the foregoing certifications of trust officers and statements of fact, on which we are relying, and we have made no independent investigations thereof. We also have assumed that the Shares will not be issued in violation of the ownership limit contained in the Company's Declaration of Trust. This opinion letter is given, and all statements herein are made, in the context of the foregoing. We call your attention to the fact that our firm only requires lawyers to be qualified to practice law in the State of Illinois and, in rendering the foregoing opinion, we express no opinion with respect to any laws relevant to this opinion other than the laws and regulations identified herein. With respect to the opinion below that relates to the laws of the State of Maryland, we rely solely on the opinion of Hogan & Hartson L.L.P., a copy of which is attached hereto as EXHIBIT A. Based upon, subject to and limited by the foregoing, we are of the opinion that the Shares, if and when issued and delivered in accordance with the terms of the Partnership Agreement and applicable resolutions of the Board of Trustees of the Company authorizing the issuance of the Shares upon redemption of the Units as contemplated thereby, will be validly issued, fully paid and non-assessable under the laws of the State of Maryland. In rendering the foregoing opinion, we have assumed the receipt by the Company of the Units being redeemed as specified in the Partnership Agreement and the resolutions of the Board of Trustees authorizing the issuance and sale of the Shares. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely for your use in connection with the filing of the Registration Statement on the date of this opinion letter and will be incorporated by reference into the Registration Statement. This opinion letter should not be quoted in whole or in part or otherwise be referred to, nor filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 4 We hereby consent (i) to be named in the Registration Statement, and in the Prospectus, as attorneys who will pass upon the legality of the Securities to be sold thereunder and (ii) to the filing of this opinion as an Exhibit to the Registration Statement. In giving this opinion, we do not thereby admit that we are an "expert" within the meaning of the Securities Act. Very truly yours, ROSENBERG & LIEBENTRITT, P.C. /s/ Rosenberg & Liebentritt, P.C. Exhibit A June 16, 1999 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: We are acting as special Maryland counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Trust"), in connection with its registration statement on Form S-3 (the "Registration Statement") filed with the Securities and Exchange Commission relating to proposed resales of up to 3,089,547 common shares of beneficial interest, $.01 par value per share (the "Common Shares"), which may be issued if and to the extent that holders of 3,089,547 units of limited partnership interest, ("Units") in ERP Operating Limited Partnership, an Illinois limited partnership (the "Partnership") tender such Units for redemption. This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the Registration Statement. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. The Second Amended and Restated Declaration of Trust of the Trust, as certified by the Maryland State Department of Assessments and Taxation (the "SDAT") on June 16, 1999, and by the Secretary of the Trust on the date hereof as being complete, accurate and in effect. 3. The Seconded Amended and Restated Bylaws of the Trust, as certified by the Secretary of the Trust on the date hereof as being complete, accurate and in effect. Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 2 4. Resolutions of the Board of Trustees of the Trust adopted on May 14, 1998, as certified by the Secretary of the Trust on the date hereof as being complete, accurate and in effect, relating to the issuance of Units. 5. (a) The Agreement for Omnibus Contribution Agreement (the "Lincoln Agreement") dated July 1, 1998, by and among the Contributors named on Exhibit A to the Lincoln Agreement and the Partnership; (b) the Agreement for Contribution of Real Estate and Related Property (the "Magnum Agreement") dated April 22, 1998, by and among the Contributors listed on the signature pages of the Magnum Agreement and the Partnership; (c) the Agreement for Contribution of Real Estate and Related Property (the "Esprit Del Sol Agreement") dated August 21, 1998, by and between Esprit Del Sol LLC, a California limited liability company, and the Partnership; (d) the Agreement for Contribution of Real Estate and Related Property (the "Summer Creek Agreement") dated April 17, 1998, by and between Summer Creek Apartments Limited Partnership, a Minnesota limited partnership, and the Partnership; (e) the Agreement for Contribution of Real Estate and Related Property (the "Lexington Village Agreement") dated May 19, 1998, by and between Lexington Farm, L.P., a Georgia limited partnership, and the Partnership; (f) the Agreement for Contribution of Real Estate and Related Property (the "Defoor Agreement") dated May 19, 1998, by and between Defoor Village Apartments, L.P., a Georgia limited partnership, and the Partnership; (g) the Agreement for Contribution of Real Estate and Related Property (the "Plantation Ridge Agreement") dated May 19, 1998, by and between Focus/Ridge, L.P., a Georgia limited partnership, and the Partnership; and Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 3 (h) the Agreement for Contribution of Real Estate and Related Property dated May 19, 1998, by and between Norcoss Woods, Ltd., a Georgia general partnership, and the Partnership (the "Wynbrook Agreement" and together with the Lincoln Agreement, the Magnum Agreement, the Esprit Del Sol Agreement, the Summer Creek Agreement, the Lexington Village Agreement, the Defoor Agreement and the Plantation Ridge Agreement, the "Contribution Agreements"). 6. The Fifth Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of August 1, 1998 (the "Partnership Agreement"), as certified as of the date hereof by the Secretary of the Trust, in its capacity as managing general partner of the Partnership, as being complete, accurate and in effect. In our examination of the aforesaid certificates and documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). We also have assumed that the Common Shares will not be issued in violation of the ownership limit contained in the Trust's Declaration of Trust. This opinion letter is given, and all statements herein are made, in the context of the foregoing. This opinion letter is based as to matters of law solely on applicable provisions of Maryland law. We express no opinion herein as to any other laws, statutes, ordinances, rules or regulations or as to compliance with the securities (or "blue sky") laws, rules or regulations. Based upon, subject to and limited by the foregoing, we are of the opinion that the Common Shares, if and when issued and delivered in accordance with the terms of the Partnership Agreement and applicable resolutions of the Board of Trustees of the Trust authorizing the issuance of the Common Shares upon redemption of the Units as contemplated thereby, will be validly issued, fully paid and nonassessable under the laws of the State of Maryland. In rendering the foregoing opinion, we have assumed the receipt by the Trust of the Units being redeemed as specified in the Partnership Agreement and the resolutions of the Board of Trustees authorizing the issuance and sale of the Common Shares. This opinion letter has been prepared for your use in connection with the Registration Statement and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 4 We hereby consent to the filing of this opinion letter as EXHIBIT A to the opinion of Rosenberg & Liebentritt, P.C., filed as Exhibit 5.1 to the Registration Statement, and to the reference to this firm under the caption "Legal Matters" in the Prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, HOGAN & HARTSON L.L.P. EX-8 3 EXHIBIT 8 [Letterhead of Hogan & Hartson L.L.P.] June 16, 1999 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: We have acted as counsel to Equity Residential Properties Trust, Inc., a Maryland real estate investment trust (the "Company"), in connection with the registration statement on Form S-3 (the "Registration Statement") and the prospectus included therein, which includes certain documents incorporated by reference including the Company's Annual Report on Form 10-K for the year ended December 31, 1998 (the "Prospectus"), filed by the Company with the Securities and Exchange Commission relating to the possible issuance by the Company of up to 3,089,547 shares (the "Common Shares") of common stock, par value $.01 per share, if and to the extent that, the Company elects to issue the Common Shares to the holders of 3,089,547 units of Limited Partnership interest ("Units") in ERP Operating Limited Partnership. (the "Operating Partnership") upon the tender of such Units for redemption. In connection with the Registration Statement, we have been asked to provide you with our opinions on certain federal income tax matters. Capitalized terms used in this letter and not otherwise defined herein have the meanings set forth in the Registration Statement. The opinions set forth in this letter are based on relevant provisions of the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations thereunder (including proposed and temporary Treasury Regulations), and interpretations of the foregoing as expressed in court decisions, the legislative history, and existing administrative rulings and practices of the Internal Revenue Service (including its practices and policies in issuing private letter rulings, which are not binding on the Internal Revenue Service except with respect to a taxpayer that receives such a ruling), all as of the date hereof. These provisions and interpretations are subject to change, which may or may not be retroactive in effect, that might result in modifications of our opinions. Our opinions do not foreclose the possibility of a contrary determination by the Internal Revenue Service or a court of competent jurisdiction, or of a contrary position by the Internal Revenue Service or the Treasury Department in regulations or rulings issued in the future. In rendering our opinions, we have examined such statutes, regulations, records, certificates and other documents as we have considered necessary or appropriate as a basis for such opinions, including the following: (1) the Registration Statement; (2) the Prospectus; Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 2 (3) the Second Amended and Restated Declaration of Trust of the Company as certified by the State Department of Assessments and Taxation of the State of Maryland on June 16, 1999 and as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect; (4) the Fifth Amended and Restated ERP Operating Limited Partnership Agreement of Limited Partnership, dated August 1, 1998; (5) the articles of incorporation, by-laws and stock ownership information of Equity Residential Properties Management Corp., Equity Residential Properties Management Corp. II, Evans Withycombe Management, Inc. and ML Services, Inc. (the "Management Corps."), and Wellsford Real Properties, Inc. ("WRP Newco"), a company in which the Operating Partnership owns non-voting preferred stock and a minority of the common stock; (6) the partnership agreements or limited liability company agreements of Equity Residential Properties Management Limited Partnership and Equity Residential Properties Management Limited Partnership II (collectively, the "Management Partnerships"), and all other partnerships or limited liability companies in which the Operating Partnership has an interest, including Evans Withycombe Residential, L.P. (collectively, the partnerships in which either the Operating Partnership or Evans Withycombe Residential, L.P. has an interest, other than the Management Partnerships, may be referred to as the "Subsidiary Partnerships") other than Subsidiary Partnerships formed after January 1, 1997 and those acquired in connection with the acquisition of Merry Land & Investment Company, Inc. ("Merry Land"); (7) the articles of incorporation, by-laws and stock ownership information of the various "qualified REIT subsidiaries" wholly-owned by the Company (collectively, the "QRS Corporations"); (8) the Joint Proxy Statement/Prospectus/Information Statement furnished to the shareholders of the Company on September 14, 1998 in connection with the acquisition of Merry Land by the Company (the "Proxy Statement"); and (9) other necessary documents. The opinions set forth in this letter also are premised on certain written representations of the Company and the Operating Partnership made to us, which relate, INTER Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 3 ALIA, to the Company and to EQR and Wellsford as predecessors by merger to the Company (the "Representation Letter"). In our review, we have assumed, with your consent, that: (i) All of the representations and statements set forth in the documents we reviewed (the "Reviewed Documents") are true and correct, any such representation or statement made as a belief or made "to the knowledge of" or similarly qualified is correct and accurate without such qualification, and all of the obligations imposed by any such documents on the parties thereto have been and will be performed or satisfied in accordance with their terms. (ii) The Company, the Operating Partnership, the Management Partnerships, the Management Corps., the QRS Corporations and the Subsidiary Partnerships each have been and will continue to be operated in the manner described in the relevant partnership agreement, limited liability company agreement, articles of incorporation or other organizational documents and in the Prospectus; (iii) There are no agreements or understandings between the Company or the Operating Partnership, on the one hand, and the owners (or related parties) of the voting stock of the Management Corps. and WRP Newco, on the other, that are inconsistent with the Operating Partnership being considered to be the record or beneficial owner of less than 10% of the outstanding voting stock of any of the Management Corps. or WRP Newco. (iv) All signatures to the Reviewed Documents are genuine, all documents were properly executed, all documents submitted to us as originals are authentic, all documents submitted to us as copies conform to the originals, and all original documents from which any copies were made are authentic. (v) The Company is a validly organized and duly incorporated real estate investment trust under the laws of the State of Maryland. The Management Corps., WRP Newco and the QRS Corporations are validly organized and duly incorporated corporations under the laws of the states in which they are incorporated. The Operating Partnership, the Management Partnerships, and the Subsidiary Partnerships are duly organized and validly existing partnerships or limited liability companies under the laws of the states in which they are organized. For the purpose of our opinions, we have not made an independent investigation of the facts set forth in the Reviewed Documents. We consequently have assumed that the Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 4 information presented in such documents (including the Representation Letter and the Proxy Statement) or otherwise furnished to us accurately and completely describes all material facts relevant to our opinions. No facts have come to our attention, however, that would cause us to question the accuracy and completeness of such facts or documents in a material way. Any variation or difference in the facts from those set forth in the Reviewed Documents may affect the conclusions stated herein. In addition, if any one of the statements, representations, warranties or assumptions upon which we have relied to issue this opinion letter is incorrect, our opinions might be adversely affected and may not be relied upon. Based upon, and subject to, the foregoing and the next paragraph below, we are of the opinion that: 1. The Company was organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code for its taxable years ended December 31, 1992, December 31, 1993, December 31, 1994, December 31, 1995, December 31, 1996, December 31, 1997, and December 31, 1998, and the Company's current organization and method of operation should enable it to continue to meet the requirements for qualification and taxation as a REIT; and Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 5 2. The discussion under the heading "Federal Income Tax Considerations" in the Company's Annual Report on Form 10-K for the year ended December 31, 1998, which is incorporated by reference in the Prospectus, and the discussion in the Prospectus under the heading "Additional Federal Income Tax Considerations," to the extent that they describe provisions of federal income tax law or legal conclusions, are correct in all material respects. This opinion letter is limited to the two opinions stated above. Our opinions do not, and are not intended to, address the tax consequences to any holder of Units with respect to the acquisition, ownership, redemption or disposition of its Units. For purposes of the second opinion stated above, the term "Prospectus" does not include the documents incorporated by reference in the Prospectus other than the Company's Annual Report on Form 10-K for the year ended December 31, 1998. The Company's qualification and taxation as a REIT depends upon the Company's ability to meet on a continuing basis, through actual annual operating and other results, the various requirements under the Code and described in the Prospectus with regard to, among other things, the sources of its gross income, the composition of its assets, the level of its distributions to stockholders, and the diversity of its share ownership. Hogan & Hartson L.L.P. will not review the Company's compliance with these requirements on a continuing basis. No assurance can be given that the actual results of the operations of the Company, the Operating Partnership, the Management Partnerships, the Management Corps., the QRS Corporations and the Subsidiary Partnerships, the sources of their income, the nature of their assets, the level of the Company's distributions to shareholders and the diversity of its share ownership for any given taxable year will satisfy the requirements under the Code for qualification and taxation as a REIT. An opinion of counsel merely represents counsel's best judgment with respect to the probable outcome on the merits and is not binding on the Internal Revenue Service or the courts. There can be no assurance that positions contrary to our opinions will not be taken by the Internal Revenue Service, or that a court considering the issue would not hold contrary to our opinions. Furthermore, no assurance can be given that future legislative, judicial or administrative changes, on either a prospective or retroactive basis, would not adversely affect the accuracy of the opinions expressed herein. Nevertheless, we undertake no responsibility to advise you of any such changes. Board of Trustees Equity Residential Properties Trust June 16, 1999 Page 6 This opinion letter has been prepared for your benefit in connection with the filing of the Registration Statement. This opinion letter may not be used or relied upon by any other person or for any other purpose and may not be disclosed, quoted, filed with any governmental agency or otherwise referred to without our prior written consent of this firm. We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Registration Statement and to the reference to Hogan & Hartson L.L.P. under the caption "Federal Income Tax Considerations" in the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, Hogan & Hartson L.L.P. EX-23.1 4 EXHIBIT 23.1 Exhibit 23.1 Consent of Independent Auditors We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of Equity Residential Properties Trust for the registration of 3,089,547 common shares and to the incorporation by reference therein of our reports indicated below with respect to the financial statements indicated below included in Equity Residential Properties Trust's filings as indicated below, filed with the Securities and Exchange Commission.
- ------------------------------------------------------------------------------- Date of Auditors' Financial Statements Report Filing - ------------------------------------------------------------------------------- Consolidated financial February 17, 1999 1998 Annual Report on statements and schedule of except for Note Form 10-K Equity Residential Properties 24, as to which Trust at December 31, 1998 and the date is March 1997 and for each of the three 5, 1999 years in the period ended December 31, 1998 Statement of Revenue and Certain April 30, 1998 Current Report on Form Expenses of Sonterra at Foothill 8-K dated June 25, 1998 Ranch for the year ended December 31, 1997 Combined Statement of Revenue April 30, 1998 Current Report on Form and Certain Expenses of the 8-K dated June 25, 1998 Lincoln Property Company Probable Properties for the year ended December 31, 1997 Statement of Revenue and Certain May 1, 1998 Current Report on Form Expenses of The Emerson Place 8-K dated June 25, 1998 Apartments for the year ended December 31, 1997 Combined Statement of Revenue May 1, 1998 Current Report on Form and Certain Expenses of The 8-K dated June 25, 1998 Magnum Probable Properties for the year ended December 31, 1997 Combined Statement of Revenue May 29, 1998 Current Report on Form and Certain Expenses of the 8-K dated June 25, 1998 Frederick Probable Properties for the year ended December 31, 1997 - ------------------------------------------------------------------------------- Date of Auditors' Financial Statements Report Filing - ------------------------------------------------------------------------------- Statement of Revenue and Certain June 2, 1998 Current Report on Form Expenses of Harbor Pointe for 8-K dated June 25, 1998 the year ended December 31, 1997 Statement of Revenue and Certain June 4, 1998 Current Report on Form Expenses of The Fairfield for 8-K dated June 25, 1998 the year ended December 31, 1997 Combined Statement of Revenue June 4, 1998 Current Report on Form and Certain Expenses of the 8-K dated June 25, 1998 Lakes at Vinings Apartments and Martins Landing Apartments Probable Properties for the year ended December 31, 1997 Statement of Revenue and Certain June 9, 1998 Current Report on Form Expenses of The Northridge 8-K dated June 25, 1998 Apartments for the year ended December 31, 1997 Combined Statement of Revenue June 10, 1998 Current Report on Form and Certain Expenses of TCRS 8-K dated June 25, 1998 Properties for the year ended December 31, 1997 Statement of Revenue and Certain June 11, 1998 Current Report on Form Expenses of the Portside Towers 8-K dated June 25, 1998 Apartments for the year ended December 31, 1997 Statement of Revenue and Certain June 11, 1998 Current Report on Form Expenses of The Coconut Palm 8-K dated June 25, 1998 Club Apartments for the year ended December 31, 1997 Combined Statement of Revenue June 18, 1998 Current Report on Form and Certain Expenses of The 8-K dated June 25, 1998 Focus Group Properties for the year ended December 31, 1997
/S/ ERNST & YOUNG LLP Chicago, Illinois June 16, 1999 EX-23.2 5 EXHIBIT 23.2 Exhibit 23.2 Consent of the Independent Public Accountants As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated January 16, 1998 included in Equity Residential Properties Trust's Form 8-K (No. 001-12252) dated July 23, 1998. Atlanta, Georgia June 16, 1999 -----END PRIVACY-ENHANCED MESSAGE-----