EXHIBIT 8
[PIPER RUDNICK LETTERHEAD]
June 19, 2003
Board of Trustees
Equity Residential
Two North Riverside Plaza
Suite 400
Chicago, IL 60606
Re: Tax Opinion for Tax Discussion in Prospectus Supplement
Ladies and Gentlemen:
We have acted as special tax counsel to Equity Residential, a Maryland
real estate investment trust ("EQR" or the "Company"), in connection with
certain aspects related to its registration statement on Form S-3 (the
"Registration Statement") (No. 333-45533) previously filed with, and declared
effective by, the Securities and Exchange Commission relating to the proposed
public offering of its common shares of beneficial interest, $.0l par value per
share, and one or more series of its (i) preferred shares of beneficial
interest, $.0l par value per share, and (ii) depositary shares representing
fractional interests in preferred shares, which includes the final Prospectus,
dated March 25, 1998, as filed pursuant to Rule 424(b) under the Securities Act
of 1933 as amended (the "Securities Act") (the "Prospectus"), as supplemented by
(ii) the Prospectus Supplement, dated May 20, 2003, relating to the Depositary
Shares (as defined herein) as filed pursuant to Rule 424(b) under the Securities
Act (the "Prospectus Supplement"). This opinion letter is rendered in connection
with the issuance and sale of 6,000,000 depositary shares (the "Depositary
Shares"), each representing a 1/10 fractional interest in a 6.48% Series N
Convertible Cumulative Preferred Share of Beneficial Interest of EQR, par value
$0.01 per share, liquidation preference $250.00 per share (the "Preferred
Shares"), pursuant to the terms of the Terms Agreement, dated May 20, 2003 among
EQR, ERP Operating Limited Partnership, an Illinois limited partnership (the
"ERP Operating Limited Partnership"), and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Citigroup Global Markets, Inc., Morgan
Stanley & Co. Incorporated and Wachovia Securities, Inc. (collectively, the
"Underwriters") (the "Terms Agreement") which incorporates by reference the
Company's Standard Underwriting Provisions dated May 16, 1997 (together with the
Terms Agreement, the "Underwriting Agreement"). This opinion letter is furnished
to enable the Company to fulfill the requirements of Item 601(b)(8) of
Regulation S-K, 17 C.F.R. (S) 929.601(b)(8), in connection with the Registration
Statement.
Board of Trustees
Equity Residential
June 19, 2003
Page 2
In connection with rendering the opinions expressed below, we have
examined originals (or copies identified to our satisfaction as true copies of
the originals) of the following documents (collectively, the "Reviewed
Documents"):
(1) the Registration Statement;
(2) the Prospectus;
(3) the Prospectus Supplement;
(4) the Second Amended and Restated Declaration of Trust of EQR, dated
May 30, 1997, as amended (the "EQR Declaration of Trust");
(5) the Articles Supplementary to the Declaration of Trust relating to
the Preferred Shares as filed with the Department of Assessments and Taxation of
the State of Maryland (the "MSDAT") on or about June 19, 2003;
(6) the Fifth Amended and Restated Limited Partnership Agreement of ERP
Operating Limited Partnership, dated August 1, 1998 (the "ERP Operating Limited
Partnership Agreement");
(7) the Fourth Amended and Restated Bylaws of the EQR, adopted March 22,
2001 (the "EQR Bylaws"); and
(8) such other documents as may have been presented to us by EQR from
time to time.
For purposes of our opinion, we have not made an independent
investigation of the facts set forth in the documents we reviewed. We
consequently have assumed that the information presented in such documents or
otherwise furnished to us accurately and completely describes all material facts
relevant to our opinion. 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 representation or statement in any document
upon which we rely that is made "to the best of our knowledge" or otherwise
similarly qualified is assumed to be correct. Any alteration of such facts may
adversely affect our opinions. In the course of our representation of EQR, no
information has come to our attention that would cause us to question the
accuracy or completeness of the representations contained in the Reviewed
Documents in a material way.
In our review, we have assumed, with your consent, that all of the
representations and statements of a factual nature set forth in the documents we
reviewed are true and correct, 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. We have also assumed the genuineness of
Board of Trustees
Equity Residential
June 19, 2003
Page 3
all signatures, the proper execution of all documents, the authenticity of all
documents submitted to us as originals, the conformity to originals of documents
submitted to us as copies, and the authenticity of the originals from which any
copies were made.
The opinions set forth in this letter are based on relevant provisions
of the Internal Revenue Code of 1986, as amended (the "Code"), the regulations
promulgated thereunder by the United States Department of the Treasury
("Regulations") (including proposed and temporary 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
("IRS") except with respect to a taxpayer that receives such a ruling), all as
of the date hereof.
In rendering these opinions, we have assumed that the transactions
contemplated by the Reviewed Documents will be consummated in accordance with
the terms and provisions of such documents, and that such documents accurately
reflect the material facts of such transactions. In addition, the opinions are
based on the correctness of the following specific assumptions:
(i) EQR, ERP Operating Limited Partnership and their
respective subsidiaries will each be operated in the manner
described in the EQR Declaration of Trust, the EQR Bylaws, the
ERP Operating Limited Partnership Agreement, the other
organizational documents of each such entity and their
subsidiaries, as the case may be, and all terms and provisions
of such agreements and documents will be complied with by all
parties thereto;
(ii) EQR is a duly formed real estate investment trust under
the laws of the State of Maryland;
(iii) ERP Operating Limited Partnership is a duly organized
and validly existing limited partnership under the laws of the
state of Illinois; and
(iv) There has been no change in the applicable laws of the
State of Maryland, the State of Illinois, or in the Code, the
Regulations, and the interpretations of the Code and
Regulations by the courts and the IRS, all as they are in
effect and exist at the date of this letter.
With respect to the last assumption, it should be noted that statutes,
regulations, judicial decisions, and administrative interpretations are subject
to change at any time and, in some circumstances, with retroactive effect. A
material change that is made after the date hereof in any of the foregoing bases
for our opinions could affect our conclusions. Furthermore, if the facts vary
from those relied upon (including any representations, warranties, covenants or
Board of Trustees
Equity Residential
June 19, 2003
Page 4
assumptions upon which we have relied are inaccurate, incomplete, breached or
ineffective), our opinion contained herein could be inapplicable. Moreover, the
qualification and taxation of EQR as a real estate investment trust (a "REIT")
depends upon its ability to meet, through actual annual operating results,
distribution levels and diversity of share ownership and the various
qualification tests imposed under the Code, the results of which will not be
reviewed by the undersigned. Accordingly, no assurance can be given that the
actual results of the operations of EQR for any one taxable year will satisfy
such requirements.
Based upon and subject to the foregoing, it is our opinion that the
discussion in the Prospectus Supplement under the heading "Additional Federal
Income Tax Considerations," to the extent that it constitutes matters of federal
income tax law or legal conclusions relating thereto, is correct in all
materials respects.
The foregoing opinion is limited to the matters specifically discussed
herein, which are the only matters to which you have requested our opinion.
Other than as expressly stated above, we express no opinion on any issue
relating to EQR or ERP Operating Limited Partnership, or to any investment
therein.
For a discussion relating the law to the facts and the legal analysis
underlying the opinion set forth in this letter, we incorporate by reference the
discussions of federal income tax issues, which we assisted in preparing, in the
discussion in the Prospectus Supplement under the heading "Additional Federal
Income Tax Considerations." We assume no obligation to advise you of any changes
in the foregoing subsequent to the date of this opinion letter, and we are not
undertaking to update the opinion letter from time to time. You should be aware
that an opinion of counsel represents only counsel's best legal judgment, and
has no binding effect or official status of any kind, and that no assurance can
be given that contrary positions may not be taken by the IRS or that a court
considering the issues would not hold otherwise.
Board of Trustees
Equity Residential
June 19, 2003
Page 5
This opinion is rendered only to you and may not be quoted in whole or
in part or otherwise referred to, nor be filed with, or furnished to, any other
person or entity in connection with the Registration Statement. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement under the Securities Act of 1933, as amended, pursuant to Item
601(b)(8) of Regulation S-K, 17 C.F.R ss. 229.601(b)(8), and the reference to
Piper Rudnick contained under the heading "Legal Matters" in the Prospectus
included as part of the Registration Statement. In giving this consent, we do
not admit that we are included in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
PIPER RUDNICK
/s/ PIPER RUDNICK