PERFORMANCE OF OBLIGATIONS OF WELLSFORD. Wellsford shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Effective Time, and EQR shall have received a certificate signed on behalf of Wellsford by the chief executive officer or the chief financial officer of Wellsford, in such capacity, to such effect. For purposes of this Agreement, the inability of Newco to (i) repay all of the loans and advances made to it by Wellsford or any of the other Wellsford Subsidiaries, after giving effect to all cash to be received by Newco on the Closing Date (including any amounts to be received under the Newco Stock Purchase Agreement), shall be deemed to be a material default, and (ii) the inability of Newco to obtain the unconditional and irrevocable release from any obligations of Newco and its Subsidiaries issued after the date of this Agreement (whether directly through a release or indirectly through the payment of the indebtedness so guaranteed) shall be deemed to be a material default. Notwithstanding the foregoing, if Newco is unable to repay such indebtedness to Wellsford on the Closing Date, after giving effect to all cash to be received by Newco on the Closing Date (including any amounts to be received under the Newco Stock Purchase Agreement), EQR may, at its option, and in lieu of terminating this Agreement, require Newco to execute and deliver to the Surviving Trust a promissory note in the amount of such indebtedness which Newco is unable to pay, payable in twelve (12) equal consecutive monthly installments on the last day of each month, commencing with the month next following the month in which the Merger occurs, together with interest thereon at a rate equal to the Revolver Rate plus 2%, payable with each installment of principal.
