EXHIBIT 5
Published on
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.