EX-5
Published on
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.