EXHIBIT 10.21
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Credit Enhancement Agreement
between
ERP OPERATING LIMITED PARTNERSHIP
and
WELLSFORD REAL PROPERTIES, INC.
Dated as of ________________________, 1997
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CREDIT ENHANCEMENT AGREEMENT
THIS CREDIT ENHANCEMENT AGREEMENT (this "Agreement") is made and
entered into as of _____________, 1997 by and between ERP OPERATING LIMITED
PARTNERSHIP, an Illinois limited partnership ("ERP Operating Partnership"),
and WELLSFORD REAL PROPERTIES, INC., a Maryland corporation ("Newco").
A. Pursuant to a certain Trust Indenture dated as of December 1,
1995 (the "Indenture"), between Palomino Park Public Improvements
Corporation, a Colorado nonprofit corporation ("PPPIC"), and United States
Trust Company of New York, as trustee (the "Trustee"), PPPIC has issued,
sold and delivered its Assessment Lien Revenue Bonds, Series 1995 (the
"Bonds"), in the aggregate principal amount of Fourteen Million Seven
Hundred Fifty-Five Thousand and 00/100 Dollars ($14,755,000.00). The Bonds
are payable as to principal and interest in the manner provided in the
Indenture. Proceeds of the Bonds are intended to be applied for the
purpose of financing certain public facilities located within Highlands
Ranch Metropolitan District No. 2, Xxxxxxx County, Colorado, a quasi-
municipal corporation organized under the laws of the State of Colorado.
The Indenture, and the other documents and instruments to which PPPIC is a
party, evidencing or securing PPPIC's obligations in connection with the
Bonds (with the exception of the "Letter of Credit Documents" described
below) are referred to herein collectively as the "Bond Documents." All
capitalized terms not otherwise defined herein shall have the meanings set
forth in the Indenture.
B. Pursuant to the Indenture, PPPIC is required to furnish a Letter
of Credit or Alternate Credit Facility satisfying the conditions set forth
in the Indenture, to secure the payment of Bonds that are in the Weekly
Mode or the Term Mode, but not Bonds that are in the Fixed Mode. Pursuant
to the terms of a Letter of Credit Reimbursement Agreement dated as of
December 1, 1995 (said agreement, as the same may be modified pursuant to
Section 3.1(h) hereof, the "Bank Reimbursement Agreement") by and among
PPPIC, Wellsford Residential Property Trust, a Maryland real estate
investment trust ("Wellsford Parent"), and Dresdner Bank, AG, New York
Branch (the "Bank"), the Bank has issued to the Trustee, acting on behalf
of the holders of the Bonds, a certain letter of credit (the "Xxxxxxxx
X.X.") in the face principal amount of $15,773,702, for the purpose of
securing the payment of the Bonds. All documents entered into by PPPIC or
Wellsford Parent pursuant to the Bank Reimbursement Agreement are referred
to herein collectively as the "Letter of Credit Documents."
C. PPPIC and Wellsford Parent have entered into a Reimbursement
Agreement dated as of December 1, 1995 (the "Wellsford Parent Reimbursement
Agreement") pursuant to which PPPIC has undertaken certain obligations and
provided certain security for the benefit of Wellsford Parent in
consideration of Wellsford Parent's obligations under the Bank
Reimbursement Agreement. Among other things, pursuant to the Wellsford
Parent Reimbursement Agreement, PPPIC agreed that PPPIC would not convert
the Rate Mode of the Bonds without the express written consent of Wellsford
Parent and would, at the request of Wellsford Parent, convert the Rate Mode
of the Bonds. PPPIC has executed and delivered to Wellsford Parent a
certain Palomino Park Promissory Note dated December 20, 1995 (the "PPPIC
Note to Wellsford Parent"), evidencing PPPIC's payment obligations to
Wellsford Parent pursuant to the Wellsford Parent Reimbursement Agreement.
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D. Newco has been formed as a wholly-owned subsidiary of Wellsford
Parent pursuant to the Contribution Agreement ("Contribution Agreement")
referred to in that certain Agreement and Plan of Merger dated as of
January ___, 1997 (the "Merger Agreement") by and between Equity
Residential Properties Trust, a Maryland real estate investment trust that
is the general partner of ERP Operating Partnership ("EQR"), and Wellsford
Parent. Pursuant to the Contribution Agreement, Wellsford Parent has
assigned to Newco and Newco has assumed, or is assuming concurrently
herewith, Wellsford Parent's rights and obligations under the Bank
Reimbursement Agreement, the Letter of Credit Documents, the Wellsford
Parent Reimbursement Agreement and the PPPIC Note to Wellsford Parent.
E. ERP Operating Partnership and Newco are entering into this
Agreement pursuant to the Merger Agreement.
NOW, THEREFORE, in consideration of the premises, and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
CREDIT ENHANCEMENT
1.1 (a) Upon and subject to the satisfaction of the conditions
precedent set forth in Article 3 hereof, ERP Operating Partnership shall
execute and deliver to the Bank a guaranty (the "Initial ERP Operating
Partnership Guaranty") pursuant to which ERP Operating Partnership shall
guarantee to the Bank the payment by Newco of any and all "Overdue
Reimbursement Amounts" (as such term is hereinafter defined). As employed
herein, the term "Overdue Reimbursement Amounts" shall mean any and all
sums due and owing from time to time by Newco to the Bank pursuant to the
Bank Reimbursement Agreement that are not paid to the Bank by Newco when
due (after the expiration of any cure periods under the Bank Reimbursement
Agreement) pursuant to the Bank Reimbursement Agreement. The Initial ERP
Operating Partnership Guaranty:
(i) shall not require security for ERP Operating
Partnership's obligations pursuant to the Initial ERP
Operating Partnership Guaranty;
(ii) shall obligate ERP Operating Partnership to pay all
Overdue Reimbursement Amounts to the Bank upon demand
or, if the Bank shall agree, in its sole and absolute
discretion, then within a period of up to three (3)
business days following the making of a written demand
upon ERP Operating Partnership by the Bank and shall
provide that the payment by ERP Operating Partnership
to the Bank within said period of time shall, at ERP
Operating Partnership's election, constitute a cure
with respect to Newco's obligations to the Bank under
the Bank Reimbursement Agreement;
(iii) shall not impose upon ERP Operating Partnership any
financial covenants (collectively, "financial
covenants") consisting of net worth requirements,
financial tests, financial reporting requirements
(other than customary quarterly and annual statements)
or covenants generally recognized as financial
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covenants with respect to ERP Operating Partnership, or
any other covenants regarding the nature or manner of
operation of ERP Operating Partnership's businesses;
provided, however, that the Initial ERP Operating
Partnership Guaranty may be cross-defaulted to such
corporate-level financial covenants, if any, as ERP
Operating Partnership may be subject to from time to
time under any of ERP Operating Partnership's
corporate-level unsecured debt instruments, to the
extent that the enforcement of said covenants is not
waived or released by the financial institutions in
whose favor said covenants primarily run (upon request
from the Bank, ERP Operating Partnership shall furnish
the Bank with evidence satisfactory to the Bank of such
financial covenants to which ERP Operating Partnership
may from time to time be subject);
(iv) shall not contain a waiver of any rights of subrogation
that ERP Operating Partnership may otherwise have by
reason of making payment to the Bank under the Initial
ERP Operating Partnership Guaranty, shall grant ERP
Operating Partnership full rights of subrogation with
respect thereto upon the payment in full to the Bank by
ERP Operating Partnership of Newco's obligations under
the Letter of Credit Documents, and shall contain the
Bank's agreement to assign to ERP Operating Partnership
(without warranty, representation or recourse, and
without releasing Newco from any obligations or
defaults thereunder) the Bank's rights and remedies
under the Letter of Credit Documents following the
payment in full by ERP Operating Partnership of Newco's
obligations under the Letter of Credit Documents;
(v) shall provide for an absolute and unconditional
guaranty of payment by ERP Operating Partnership
containing such terms and conditions as are usual and
customary for the Bank to impose in transactions of the
type herein contemplated with third party guarantors of
comparable net worth which are unaffiliated with the
party whose obligations they are guaranteeing, which
guaranty may include an express statement to the effect
of any one or more of the following: ERP Operating
Partnership shall not be released by any bankruptcy
(voluntary or involuntary) of any obligor with respect
to the Letter of Credit Documents, any fact, matter or
circumstance, whether or not denominated in the Letter
of Credit Documents; and that ERP Operating Partnership
shall expressly waive or be deemed to have waived any
suretyship defenses; and may permit the Bank to seek
sole and immediate enforcement of the Initial ERP
Operating Partnership Guaranty without first proceeding
against Newco, PPPIC or any obligor or collateral;
provided, however, that the Initial ERP Operating
Partnership Guaranty shall provide that ERP Operating
Partnership shall be released fully and absolutely from
liability under the Initial ERP Operating Partnership
Guaranty in the event that the Bank Reimbursement
Agreement or the other Letter of Credit Documents or
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any of Newco's obligations in connection therewith
shall be modified without the prior written consent of
ERP Operating Partnership, which shall not be
unreasonably withheld, provided that such modification
shall not increase the amount of the Letter of Credit
or otherwise increase ERP Operating Partnership's
obligations under the Initial ERP Operating Partnership
Guaranty, increase the likelihood that ERP Operating
Partnership will be required to make a payment pursuant
to the Initial ERP Operating Partnership Guaranty, or
diminish the remedies or collateral to which ERP
Operating Partnership will become subrogated upon
payment as contemplated under Section 1.1(a)(iv)
hereinabove; and
(vi) shall provide that the term of the Initial ERP
Operating Partnership Guaranty or any Alternate Credit
Facility shall not extend beyond the eighth (8th)
anniversary of the date of this Agreement (the
"Expiration Date") or, if the term of the Initial ERP
Operating Partnership Guaranty or any Alternate Credit
Facility shall extend beyond the Expiration Date, then
such guaranty document shall make it clear that the
guaranty afforded under this Agreement shall expire on
the Expiration Date.
(b) The form of the Initial ERP Operating Partnership Guaranty
shall be subject to ERP Operating Partnership's review and approval,
which shall not be unreasonably withheld or delayed if the terms and
conditions thereof conform to the parameters set forth in
Section 1.1(a) hereof.
1.2 For so long as a Letter of Credit or Alternate Credit Facility is
required to be furnished to the Trustee pursuant to the terms of the
Indenture, Newco shall cause PPPIC to do so and, in particular, shall cause
PPPIC to furnish to the Trustee a Letter of Credit or Alternate Credit
Facility in accordance with Section 5.15(b) of the Indenture prior to the
expiration of any then-existing Letter of Credit so as to cause the Trustee
to surrender for cancellation the previously held Letter of Credit to the
issuer thereof, not less than thirty (30) days prior to the expiry of said
existing Letter of Credit.
1.3 In connection with any Alternate Letter of Credit or Alternate
Credit Facility that may be furnished to the Trustee from time to time
pursuant to the Indenture, ERP Operating Partnership acknowledges that
PPPIC or Newco may desire or be required to undertake certain obligations
or provide certain financial accommodations (collectively the "Alternate
Reimbursement Obligations") to the issuer of said Alternate Letter of
Credit or Alternate Credit Facility. The documents evidencing or securing
Newco's Alternate Reimbursement Obligations are referred to herein
collectively as the "Alternate Reimbursement Documents". The parties
acknowledge that the issuer of the Alternate Letter of Credit or the
Alternate Credit Facility may be one or more institutions, selected by
Newco, meeting the requirements of the Indenture. If Newco undertakes any
Alternate Reimbursement Obligations, then ERP Operating Partnership shall
enter into a guaranty of the payment of Newco's Alternate Reimbursement
Obligations by executing and delivering to the issuer of said Alternate
Letter of Credit or Alternate Credit Facility a guaranty in favor of said
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issuer (the "Alternate ERP Operating Partnership Guaranty"), upon and
subject to the satisfaction of the conditions precedent set forth in
Sections 3.1(d), 3.1(f), 3.1(i), 3.1(k) and 3.2 hereof, and subject also to
the satisfaction of the following additional conditions precedent:
(a) The terms and conditions of said Alternate Letter of Credit
or Alternate Credit Facility shall be subject to ERP Operating
Partnership's review and approval in ERP Operating Partnership's sole
and absolute discretion; provided, however, that ERP Operating
Partnership shall not unreasonably withhold or delay its approval with
respect thereto if the terms and conditions thereof shall not be
materially less favorable to Newco than the terms and conditions of
the Letter of Credit Documents, as the same have been modified
pursuant to this Agreement, and are otherwise commercially reasonable
in the circumstances;
(b) The terms and conditions of the Alternate ERP Operating
Partnership Guaranty shall be subject to ERP Operating Partnership's
review and approval in ERP Operating Partnership's sole and absolute
discretion; provided, however, that ERP Operating Partnership shall
not unreasonably withhold or delay its approval with respect thereto
if the scope and nature thereof is limited in substantially the same
manner as the Initial ERP Operating Partnership Guaranty and if the
Alternate ERP Operating Partnership Guaranty is not otherwise on terms
materially less favorable than the Initial ERP Operating Partnership
Guaranty;
(c) The Initial ERP Operating Partnership Guaranty (or, as the
case may be, any pre-existing Alternate ERP Operating Partnership
Guaranty) shall be returned to ERP Operating Partnership, and ERP
Operating Partnership shall be released fully and absolutely from all
liability thereunder, prior to or concurrently with the execution and
delivery of the Alternate ERP Operating Partnership Guaranty;
(d) The Alternate Letter of Credit or Alternate Credit Facility
shall satisfy the requirements of the Indenture; and
(e) Newco and PPPIC shall have executed and delivered documents
relating to the Alternate Credit Facility or Alternate Letter of
Credit, as the case may be, which are in substantially the same form
as the Wellsford Parent Reimbursement Agreement and the PPPIC Note to
Wellsford Parent, respectively, and PPPIC and Newco shall have
executed and delivered to ERP Operating Partnership an instrument or
agreement with respect thereto in substantially the same form as the
Collateral Assignment and Consent described in Section 4.6 hereof.
1.4 Newco shall furnish drafts of all Alternate Reimbursement
Documents to ERP Operating Partnership not less than sixty (60) days prior
to the date on which any Alternate Letter of Credit or Alternate Credit
Facility is required or proposed to be furnished to the Trustee. If ERP
Operating Partnership is not satisfied with the terms of the proposed
Alternate Reimbursement Documents for any reason whatsoever, or if ERP
Operating Partnership, in its sole discretion, shall otherwise prefer to do
so, ERP Operating Partnership may itself arrange for an Alternate Letter of
Credit or Alternate Credit Facility in lieu of the one proposed by Newco or
PPPIC; provided, however, that if the terms of the proposed documents are
such that ERP Operating Partnership would otherwise be obligated to execute
and deliver an Alternate ERP Operating Partnership Guaranty pursuant to
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Section 1.3 of this Agreement in connection with an Alternate Letter of
Credit or Alternate Credit Facility proposed by Newco or PPPIC, and ERP
Operating Partnership nevertheless desires not to do so, then (i) ERP
Operating Partnership shall be obligated to arrange for an Alternate Letter
of Credit or Alternate Credit Facility in lieu of the one proposed by Newco
or PPPIC, and (ii) under such circumstances, ERP Operating Partnership
shall bear all costs and expenses arising in connection with such Alternate
Letter of Credit or Alternate Credit Facility including, without
limitation, any fees, costs, attorneys' fees or charges imposed or incurred
by the Bank, the Trustee, or the Rating Service (as defined in
_______________). If ERP Operating Partnership arranges for such an
Alternate Letter of Credit or Alternate Credit Facility, then Newco
covenants and agrees that PPPIC and Newco shall be the parties primarily
liable on a joint and several basis with respect to the Alternate
Reimbursement Documents arranged by ERP Operating Partnership, and ERP
Operating Partnership agrees, subject to the satisfaction of the conditions
set forth in this Agreement, to execute and deliver an Alternate ERP
Operating Partnership Guaranty with respect to Newco's payment obligations
under said Alternate Reimbursement Documents. Any Alternate Reimbursement
Documents proposed by ERP Operating Partnership shall be on terms that are
not materially less favorable to Newco or PPPIC than the Alternate
Reimbursement Documents proposed by Newco or PPPIC.
1.5 ERP Operating Partnership shall have no liability to Newco or any
other party to maintain any given rating with respect to the Bonds, it
being acknowledged and agreed that (i) ERP Operating Partnership has no
obligation whatsoever to PPPIC, the Trustee, the holders of the Bonds or
any party paying assessments to PPPIC, and (ii) ERP Operating Partnership's
sole obligation in connection with the Bonds is to provide certain
financial accommodations to the issuer of a Letter of Credit or Alternate
Credit Facility, as the case may be, solely in accordance with the terms of
this Agreement.
1.6 For informational purposes, from time to time upon reasonable
prior notice, ERP Operating Partnership shall cooperate reasonably in
furnishing information concerning itself to the Bank or the issuer of any
Alternate Letter of Credit or Alternate Credit Facility whether prior or
subsequent to entering into the Initial ERP Operating Partnership Guaranty
or any Alternate ERP Operating Partnership Guaranty, as the case may be.
1.7 Newco shall have the right at any time prior to the Expiration
Date to obtain a full release of the Initial ERP Operating Partnership
Guaranty or the Alternate ERP Operating Partnership Guaranty, as the case
may be, and terminate this Agreement.
ARTICLE 2
FEES AND EXPENSES
2.1 With respect to each period (each, an "Annual Period") commencing
on the date hereof or on any anniversary of the date hereof and ending on
the immediately preceding day of the same month in the next calendar year,
Newco shall pay to ERP Operating Partnership a fee (the "Credit Enhancement
Fee"), in an amount equal to one-half of one percent (0.5%) of the face
amount of any Letter of Credit (or the maximum principal amount of any
Alternate Credit Facility) in existence on the first day of said Annual
Period. The Credit Enhancement Fee for any given Annual Period shall be
payable quarterly in advance (in equal fourths of the Credit Enhancement
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Fee for the entire Annual Period in which said quarter falls) on the first
day of each quarter of said Annual Period, shall be earned in full for said
quarter as of the first day of said quarter and shall not be refundable for
any reason whatsoever, including, without limitation, the occurrence of any
of the following prior to the end of the said quarter: (i) the repayment in
full of the Bonds; (ii) the termination or expiration of this Agreement;
(iii) the release of the Initial ERP Operating Partnership Guaranty or any
Alternate ERP Operating Partnership Guaranty; or (iv) the conversion of the
Bonds to the Fixed Mode. With respect to each Annual Period, a "quarter"
shall be any of the four periods commencing on the first day of said Annual
Period or on the dates that are three, six or nine months thereafter,
respectively, and ending on the day prior to the commencement of the next
quarter.
2.2 Newco shall be solely responsible for paying (i) all costs, fees,
charges, penalties and other expenses charged by the Bank or the issuer of
any Alternate Letter of Credit or Alternate Credit Facility, and (ii) to
the extent the same are reasonable in the circumstances, all costs, fees
and expenses, including without limitation attorneys' fees and expenses,
incurred by ERP Operating Partnership in connection with the Letter of
Credit, any Alternate Letter of Credit or Alternate Credit Facility, the
Initial ERP Operating Partnership Guaranty or any Alternate ERP Operating
Partnership Guaranty.
ARTICLE 3
CONDITIONS PRECEDENT
3.1 As conditions precedent to ERP Operating Partnership's
obligations pursuant to Article 1 of this Agreement, Newco shall furnish to
ERP Operating Partnership:
(a) evidence, satisfactory to ERP Operating Partnership in the
exercise of ERP Operating Partnership's commercially reasonable
judgment, of the consent of PPPIC, the Bank, the Trustee and all other
parties having a right of consent in connection with the Bonds or the
Letter of Credit with respect to the assumption by Newco of Wellsford
Parent's obligations pursuant to the Bank Reimbursement Agreement and
the Letter of Credit Documents, and the release of Wellsford Parent
therefrom.
(b) an instrument in form and substance satisfactory to ERP
Operating Partnership in the exercise of ERP Operating Partnership's
commercially reasonable judgment, executed by the Bank, releasing ERP
Operating Partnership and Wellsford Parent from any and all
obligations in connection with the Bank Reimbursement Agreement and
the Letter of Credit Documents, other than those obligations expressly
undertaken by ERP Operating Partnership pursuant to the Initial ERP
Operating Partnership Guaranty.
(c) an instrument, in form and substance satisfactory to ERP
Operating Partnership in the exercise of ERP Operating Partnership's
commercially reasonable judgment, releasing ERP Operating Partnership
and Wellsford Parent from any and all obligations under (i) that
certain Second Amended and Restated Revolving Credit Agreement date as
of June 30, 1995, as amended, with the First National Bank of Boston
and the other parties listed therein, and (ii) that certain
Intercreditor Agreement dated as of June 30, 1995, as amended, by and
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among said parties (collectively, the documents described in this
Section 3.1(c) are referred to herein as the "Bank of Boston
Documents");
(d) a current certificate from the Trustee that, to the
knowledge of Trustee, there has not occurred and shall not be
continuing any default or event of default beyond any applicable grace
period under the Indenture or the Bond Documents;
(e) a current certificate, in form and substance satisfactory to
ERP Operating Partnership in the exercise of ERP Operating
Partnership's commercially reasonable judgment, executed by an officer
of the Bank, to the effect that, to the knowledge of the Bank, there
is no continuing default or event of default beyond any applicable
grace period under the Bank Reimbursement Agreement or the Letter of
Credit Documents;
(f) a certificate, in form and substance satisfactory to ERP
Operating Partnership, executed by an officer or director of PPPIC, to
the effect that the Bond Documents shall not have been modified in any
respect, from the forms submitted to ERP Operating Partnership prior
to the execution of the Merger Agreement, without ERP Operating
Partnership's written consent, which shall not be unreasonably
withheld;
(g) a certificate, in form and substance satisfactory to ERP
Operating Partnership, executed by an officer or director of PPPIC, to
the effect that the Letter of Credit Documents have not been modified
in any respect from the forms submitted to ERP Operating Partnership
prior to the execution of the Merger Agreement, without ERP Operating
Partnership's written consent (which shall not be unreasonably
withheld), except as provided in Section 3.1(h) hereinbelow;
(h) the Bank Reimbursement Agreement and the Letter of Credit
Documents shall have been amended so that (x) all covenants relating
to the financial status and operations and personnel of Wellsford
Parent have either been deleted or have been modified so as to reflect
the status and business operations of Newco, as Wellsford Parent's
assignee thereunder, (y) all references to the Bank of Boston
Documents (including cross-defaults thereto and all references to any
line or lines of credit available to Wellsford Parent pursuant
thereto) shall have been deleted, and (z) such other provisions as
Newco and the Bank may agree upon shall have been modified without the
prior written consent of ERP Operating Partnership, which shall not be
unreasonably withheld; provided that no such modification shall alter
the basic business terms and procedures set forth in Articles 1, 2,
6.15, 6.19, 6.20, 6.21, 7.2, 8 and 9 of the Bank Reimbursement
Agreement, relieve Newco and PPPIC of their obligations as the sole
"Account Parties" (as such term is defined in the Bank Reimbursement
Agreement) or increase the amount of the Letter of Credit or otherwise
increase ERP Operating Partnership's obligations under the Initial ERP
Operating Partnership Guaranty, increase the likelihood that ERP
Operating Partnership will be required to make a payment pursuant to
the Initial ERP Operating Partnership Guaranty, or diminish the
remedies or collateral to which ERP Operating Partnership will become
subrogated upon payment as contemplated under Section 1.1(a)(iv)
hereinabove;
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(i) a Reimbursement and Indemnification Agreement, executed by
Newco, described in Section 4.3 hereof;
(j) the acknowledgement and agreement of PPPIC described in
Section 5.1(b) hereof, the irrevocable power of attorney from PPPIC
described in Section 5.1(c) hereof, and the Trustee's consent and
acknowledgement described in Section 5.1(c) hereof;
(k) the covenant and agreement of PPPIC described in Section 4.5
hereof;
(l) evidence, satisfactory to ERP Operating Partnership in the
exercise of ERP Operating Partnership's commercially reasonable
judgment, of the consent of PPPIC with respect to the assumption by
Newco of Wellsford Parent's rights and obligations under the Wellsford
Parent Reimbursement Agreement and the release of Wellsford Parent
therefrom and the assignment to Newco of the PPPIC Note to Wellsford
Parent;
(m) the Collateral Assignment and Consent described in
Section 4.6 hereof; and
(n) evidence, satisfactory to ERP Operating Partnership in the
exercise of ERP Operating Partnership's commercially reasonable
judgment, that Newco was formed, established and capitalized in
accordance with the terms of the Contribution Agreement.
3.2 It shall be a condition precedent to ERP Operating Partnership's
obligations pursuant to Article 1 of this Agreement that no Event of
Default beyond all applicable cure periods shall have occurred under this
Agreement.
3.3 The consummation of the transactions contemplated under the
Merger Agreement shall be a condition precedent to ERP Operating
Partnership's obligations pursuant to Article 1 of this Agreement.
3.4 Newco shall use its best efforts to ensure that all conditions
precedent to ERP Operating Partnership's obligations pursuant to Article 1
of this Agreement shall be satisfied as of the date of the consummation of
the transactions contemplated by the Merger Agreement. In the event that
Newco is unable to satisfy any condition precedent to ERP Operating
Partnership's obligations pursuant to Article 1 of this Agreement by the
date of the consummation of the transactions contemplated by the Merger
Agreement, after the exercise of its best efforts to satisfy such
condition, ERP Operating Partnership shall have the right, in its sole and
absolute discretion, (i) to satisfy such condition precedent, at its cost
and expense, or (ii) to waive compliance with any such condition precedent.
ARTICLE 4
OTHER OBLIGATIONS OF NEWCO
4.1 On the same day, if any, as ERP Operating Partnership is required
to make any payment from time to time under the Initial ERP Operating
Partnership Guaranty or any Alternate ERP Operating Partnership Guaranty,
Newco shall repay said amounts to ERP Operating Partnership in full. All
amounts required to be reimbursed to ERP Operating Partnership pursuant to
the foregoing sentence shall be interest at the rate of the "Prime Rate"
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(as such term is hereinafter defined) plus three percent (3%) per annum
until paid in full, which interest shall be due and payable to ERP
Operating Partnership on demand. Said interest shall be in the nature of
default rate interest and the payment of said interest shall not excuse
Newco from the obligation of repaying the amounts due and payable to ERP
Operating Partnership pursuant to the first sentence of this Section 4.1
when said amounts are due pursuant to said sentence. As employed herein,
the term "Prime Rate" shall mean, from time to time, the rate of interest
per annum then most recently announced by The First National Bank of
Chicago in Chicago, Illinois as its corporate base rate. If The First
National Bank of Chicago shall not announce such a rate, then the term
"Prime Rate" shall mean the prime rate or base rate from time to time
announced by an American money center bank designated by ERP Operating
Partnership.
4.2 (a) Newco shall indemnify and hold harmless ERP Operating
Partnership, its general and limited partners, and the officers,
directors, trustees, agents and employees of any of the foregoing
(each, a "ERP Operating Partnership Indemnified Party") from and
against any and all claims, demands, damages, losses, liabilities, and
costs or expenses whatsoever (including reasonable attorneys' fees)
which the ERP Operating Partnership Indemnified Party may incur (or
which may be claimed against the ERP Operating Partnership Indemnified
Party by any person or entity whatsoever) by reason of or in
connection with the execution, delivery and performance of this
Agreement, the Initial ERP Operating Partnership Guaranty or any
Alternate ERP Operating Partnership Guaranty, except to the extent of
claims, demands, damages, losses, liabilities and costs and expenses
arising by reason of ERP Operating Partnership's breach of its
obligations under this Agreement or by reason of the gross negligence
or willful misconduct of the Indemnified Party.
(b) ERP Operating Partnership shall indemnify and hold harmless
Newco and its officers, directors, agents and employees (each, a
"Newco Indemnified Party") from and against any and all claims,
demands, damages, losses, liabilities, and costs or expenses
whatsoever (including reasonable attorneys' fees) to the extent they
arise from ERP Operating Partnership's breach of its obligations under
this Agreement or by reason of the gross negligence or willful
misconduct of ERP Operating Partnership.
4.3 The rights and obligations of ERP Operating Partnership and Newco
with respect to the matters set forth in Sections 4.1 and 4.2 shall be set
forth in a Reimbursement and Indemnification Agreement to be prepared by
ERP Operating Partnership and to be entered into concurrently with the
execution and delivery of the Initial ERP Operating Partnership Guaranty
and any Alternate ERP Operating Partnership Guaranty, which shall be in
form and substance satisfactory to ERP Operating Partnership in the
exercise of its commercially reasonable judgment.
4.4 Newco covenants and agrees to comply in all material respects,
and to cause PPPIC to comply in all material respects, with all terms and
conditions of (i) the Indenture and the other Bond Documents, (ii) the Bank
Reimbursement Agreement and the other Letter of Credit Documents, and
(iii) any Alternate Reimbursement Documents.
4.5 Newco shall cause PPPIC to covenant and agree (i) to furnish ERP
Operating Partnership concurrently with copies of all documentation
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furnished to the Trustee or its agents by PPPIC in connection with the
draw-down of any Bond proceeds to fund the construction of the Public
Improvements or other expenses and (ii) except as may be required by or in
order to comply with existing law, that the Public Improvements that are
constructed from time to time shall be only those Public Improvements
reasonably required from time to time to service the improvements existing
or under development on the Property.
4.6 As security for Newco's obligations under this Agreement, Newco
shall collaterally assign to ERP Operating Partnership all of Newco's
rights, title and interest under the Wellsford Parent Reimbursement
Agreement, and shall pledge to ERP Operating Partnership the PPPIC Note to
Wellsford Parent. Said collateral assignment and pledge shall be evidenced
by an instrument (the "Collateral Assignment") in form and substance
satisfactory to ERP Operating Partnership in the exercise of its
commercially reasonable judgment. The Collateral Assignment shall include
a provision pursuant to which Newco agrees: (i) not to consent to any
modification of the Bank Reimbursement Agreement, the Indenture, or any
documents executed by PPPIC in connection therewith which would have the
effect of increasing the amount of the Letter of Credit or otherwise
increasing ERP Operating Partnership's obligations under the Initial ERP
Operating Partnership Guaranty, increasing the likelihood that ERP
Operating Partnership will be required to make a payment pursuant to the
Initial ERP Operating Partnership Guaranty, or diminishing the remedies or
collateral to which ERP Operating Partnership will become subrogated upon
payment as contemplated under Section 1.1(a)(iv) hereinabove; (ii) not to
consent to the exercise by PPPIC of any rights of optional redemption under
the Indenture without the prior written consent of ERP Operating
Partnership, which consent shall not be unreasonably withheld; (iii) not to
direct or consent to any conversion of the Rate Mode of the Bonds that is
inconsistent with ERP Operating Partnership's rights under Section 5.1 of
this Agreement; and (iv) that all rights of consent, and all rights to
direct the actions of PPPIC which Newco has pursuant to the Wellsford
Parent Reimbursement Agreement, shall be exercisable solely by ERP
Operating Partnership solely upon the occurrence of an Event of Default
described in Sections __ and __. Newco shall cause PPPIC to execute a
consent and acknowledgment (the "Consent"), pursuant to which PPPIC
consents to the Collateral Assignment and agrees that all rights of
consent, and all rights to direct the actions of PPPIC, which Newco has
pursuant to the Wellsford Parent Reimbursement Agreement, shall be
exercisable solely by ERP Operating Partnership solely upon the occurrence
of an Event of Default described in Sections __ and __ unless and until
written notice of the release of said right is received from ERP Operating
Partnership.
ARTICLE 5
RATE MODE OF BONDS;
EXPIRATION OF ERP Operating Partnership'S OBLIGATIONS
5.1 Newco acknowledges that, pursuant to the Collateral Assignment
and the Consent, ERP Operating Partnership shall have the exclusive right,
subject to the rights of the Bank under the Bank Reimbursement Agreement,
upon and following the occurrence of an Event of Default beyond all
applicable cure periods or at any time after the Expiration Date (provided
that ERP Operating Partnership shall not have previously been released from
all of its obligations under the Initial ERP Operating Partnership Guaranty
by the Alternate ERP Operating Partnership Guaranty, as the case may be),
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to direct PPPIC with respect to establishing the Rate Modes from time to
time of the Bonds. ERP Operating Partnership hereby agrees to permit the
Bonds to remain in the Weekly Mode; provided that, at any time on or after
the Expiration Date (provided that ERP Operating Partnership shall not
have previously been released from all of its obligations under the Initial
ERP Operating Partnership Guaranty or the Alternate ERP Operating
Partnership Guaranty, as the case may be) or at any time after the
occurrence of an Event of Default under this Agreement beyond all
applicable cure periods, ERP Operating Partnership shall have the right to
direct PPPIC to exercise its option (the "Rate Conversion Option"), at the
earliest possible time thereafter pursuant to the Indenture, to convert all
the Bonds to the Fixed Mode. ERP Operating Partnership shall not cause the
Bonds to be converted to the Term Mode without the approval of Newco and
ERP Operating Partnership shall have no obligation at any time to cause or
permit a conversion of the Bonds to a Term Mode with a duration of longer
than two hundred and ten (210) days or which ends after the Expiration Date
or the expiration date or maturity date of the Letter of Credit, any
Alternate Letter of Credit or any Alternate Credit Facility.
5.2 On and as of the Expiration Date, Newco shall cause ERP Operating
Partnership to be released from the Initial ERP Operating Partnership
Guaranty and any Alternate ERP Operating Partnership Guaranty then in
effect as of the Expiration Date, and ERP Operating Partnership shall have
no further obligations pursuant to this Agreement from and after the
Expiration Date.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of Newco. Newco hereby represents
and warrants to ERP Operating Partnership as follows:
(a) Newco (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite corporate power and authority to
own its property and assets and to carry on its business as now
conducted and as proposed to be conducted by Newco, (iii) is qualified
to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result in a
"Material Adverse Effect on Newco" (as such term is hereinafter
defined), and (iv) has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement. As employed
herein, the term "Material Adverse Effect on Newco" shall mean (i) a
materially adverse effect on the financial condition of Newco, or
(ii) material impairment of the ability of Newco to pay any amount
due, or to perform any other material obligation, under any Letter of
Credit Document or Alternate Reimbursement Document.
(b) The execution, delivery and performance by Newco of this
Agreement and the transactions contemplated hereby (i) have been duly
authorized by all requisite corporate and, if required, stockholder
action and (ii) will not (A) violate (x) any provision of law,
statute, rule or regulation to which Newco or any of its "Affiliates"
(as such term is defined in Section 7.2) shall be subject, or of the
certificate or articles of incorporation or other constitutive
documents or by-laws of Newco, (y) any order of any governmental
authority or quasi-governmental authority, or (z) any provision of any
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indenture or other material agreement or instrument to which Newco is
a party or by which it or any of its property is or may be bound,
(B) be in conflict with, result in a breach of or constitute (alone or
with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or (C) result in the
creation or imposition of any lien upon or with respect to any
property or assets now owned or hereafter acquired by Newco, except
for the lien, if any, created pursuant to the terms of this Agreement.
(c) This Agreement has been duly executed and delivered by Newco
and constitutes a legal, valid and binding obligation of Newco
enforceable against Newco in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally, or by
general equity principles, including but not limited to principles
governing the availability of the remedies of specific performance and
injunctive relief.
(d) All of the Bonds are in the Weekly Mode.
6.2 Representations and Warranties of ERP Operating Partnership. ERP
Operating Partnership hereby represents and warrants to Newco as follows:
(a) ERP Operating Partnership (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite corporate
power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted by ERP
Operating Partnership, (iii) is qualified to do business in every
jurisdiction where such qualification is required, except where the
failure so to qualify would not result in a "Material Adverse Effect
on ERP Operating Partnership" (as such term is hereinafter defined),
and (iv) has the corporate power and authority to execute, deliver and
perform its obligations under this Agreement. As employed herein, the
term "Material Adverse Effect on ERP Operating Partnership" shall mean
a materially adverse effect on the financial condition of ERP
Operating Partnership.
(b) The execution, delivery and performance by ERP Operating
Partnership of this Agreement and the transactions contemplated hereby
(i) have been duly authorized by all requisite corporate and, if
required, stockholder action, and (ii) will not (A) violate (x) any
provision of law, statute, rule or regulation to which ERP Operating
Partnership or any of its "Affiliates" (as such term is defined in
Section 7.2) shall be subject, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of ERP
Operating Partnership, (y) any order of any governmental authority or
quasi-governmental authority, or (z) any provision of any indenture or
other material agreement or instrument to which ERP Operating
Partnership is a party or by which it or any of its property is or may
be bound, (B) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any
such indenture, agreement or other instrument, or (C) result in the
creation or imposition of any lien upon or with respect to any
property or assets now owned or hereafter acquired by ERP Operating
Partnership.
(c) This Agreement has been duly executed and delivered by ERP
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Operating Partnership and constitutes a legal, valid and binding
obligation of ERP Operating Partnership enforceable against ERP
Operating Partnership in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally, or by
general equity principles, including but not limited to principles
governing the availability of the remedies of specific performance and
injunctive relief.
ARTICLE 7
EVENTS OF DEFAULT
7.1 Events of Default. The happening of any of the following events
shall be an "Event of Default" hereunder:
(a) any representation or warranty made or deemed made in this
Agreement by Newco shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any amounts due
under this Agreement and such default is not cured within five (5)
business days of written notice from ERP Operating Partnership of such
default;
(c) material default shall be made in the due observance or
performance by Newco or PPPIC of any covenant, condition or agreement
contained in this Agreement, the Bond Documents, the Letter of Credit
Documents, any Alternate Reimbursement Documents and any Reimbursement
and Indemnification Agreement entered into pursuant to Section 4.3
hereof, other than a default in the payment of any amount due under
this Agreement, and such material default shall not be cured within
fifteen (15) business days of written notice from ERP Operating
Partnership of such default;
(d) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of Newco or PPPIC, or of a
substantial part of the property or assets of Newco or PPPIC under
Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
Newco or PPPIC or for a substantial part of the property or assets of
Newco or PPPIC, or (iii) the winding-up or liquidation of Newco or
PPPIC; and such proceeding or petition shall continue undismissed for
90 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(e) Newco or PPPIC shall (i) voluntarily commence any proceeding
or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition
described in (d) above, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Newco or PPPIC or for a substantial part of the
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property or assets of Newco or PPPIC, (iv) file an answer admitting
the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) become unable, admit in writing its inability or
fail generally to pay its debts as they become due;
(f) one or more judgments for the payment of money in an
aggregate amount in excess of $250,000 shall be rendered against Newco
or PPPIC and the same shall remain unbonded or undischarged for a
period of 30 consecutive days during which execution shall not be
effectively stayed, or any judgment creditor shall levy upon assets or
properties of Newco or PPPIC to enforce any such judgment; or
(g) there shall have occurred a Change in Control with respect
to Newco or PPPIC.
7.2 Definitions. As employed herein, the following terms shall have
the following meanings:
"Affiliate" shall mean, when used with respect to a
specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by
or is under common Control with the Person specified.
A "Change in Control" shall be deemed to have occurred with
respect to Newco, as the case may be, if (a) any Person or group
(within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof other than ERP
Operating Partnership or ERP Operating Partnership's Affiliate)
shall own, directly or indirectly, beneficially or of record,
shares representing more than 50% of the aggregate ordinary
voting power represented by the issued and outstanding capital
stock of Newco; or (b) a change shall occur during any period in
the Board of Directors of Newco in which the individuals who
constituted the Board of Directors of Newco at the beginning of
such period (together with any other director whose election by
the Board of Directors of Newco or whose nomination for election
by the stockholders of Newco was approved by a vote of at least
two-thirds of the directors then in office who either were
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the directors of Newco then in
office. With respect to PPPIC, a "Change in Control" shall mean
that the members of the Board of Directors of PPPIC are no longer
the nominees of Newco.
"Control", when used with respect to any specified Person,
means the power to direct the management and policies of such
Person, whether through the ownership of voting securities, by
contract or otherwise. The term "controlled" has a meaning
correlative to the foregoing.
"Person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership
or government, or any agency or political subdivision thereof.
7.3 Remedies. Upon the occurrence of an Event of Default described
in Section 7.1 hereof, ERP Operating Partnership shall have any and all
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remedies available to it at law, in equity or pursuant to statute. Without
limitation of the foregoing,the occurrence of an Event of Default shall
have the consequences set forth in Sections 3.2 and 5.1 of this Agreement.
ARTICLE 8
AGREEMENT REGARDING PALOMINO PARK
Notwithstanding anything to the contrary contained herein, if at any
time Newco shall breach the terms of Article 7 of that certain Agreement
Regarding Palomino Park of even date herewith by and between ERP Operating
Partnership and Newco, then ERP Operating Partnership shall have no further
obligations under this Agreement.
ARTICLE 9
MISCELLANEOUS
9.1 Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy, as follows:
(a) if to Newco, to it at _________________________________,
Attention:________________________, Telecopy No. ______________, with
a copy concurrently sent to: Brownstein, Hyatt, Xxxxxx &
Strichland P.C., 000 Xxxxxxxxxxx Xx., Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000;
(b) if to ERP Operating Partnership, to it at
_____________________________________, Attention:
_____________________, Telecopy No. ______________.
Such notice will be deemed given when received.
9.2 Survival of Agreement. All covenants, agreements,
representations and warranties made by Newco herein and in the certificates
or other instruments prepared or delivered in connection with or pursuant
to this Agreement shall be considered to have been relied upon by ERP
Operating Partnership and shall survive the date of this Agreement,
regardless of any investigation made by ERP Operating Partnership or on its
behalf, and shall continue in full force and effect so long as ERP
Operating Partnership retains any obligations or liability under this
Agreement, the Initial ERP Operating Partnership Guaranty or any Alternate
ERP Operating Partnership Guaranty.
9.3 Binding Effect. This Agreement shall become effective when it
shall have been executed by Newco and ERP Operating Partnership, and
thereafter shall be binding upon and inure to the benefit of Newco, ERP
Operating Partnership and their respective successors and assigns, except
that neither Newco nor ERP Operating Partnership shall have the right to
assign its rights hereunder or any interest herein without the prior
consent of the other.
9.4 Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS.
9.5 Waivers; Amendment.
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(a) No failure or delay of ERP Operating Partnership or Newco in
exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of ERP
Operating Partnership and Newco hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have.
No waiver of any provision of this Agreement or consent to any
departure by either party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on
either party in any case shall entitle such party to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by Newco and ERP Operating
Partnership.
9.6 Entire Agreement. This Agreement, including any exhibits and
schedules hereto, constitutes the entire contract between the parties
relative to the subject matter hereof. Any previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
9.7 Waiver of Jury Trial. Each party hereto hereby waives, to the
fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement.
9.8 Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way
be affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
9.9 Headings. Article and Section headings used herein are for
convenience of reference only, are not part of this Agreement and are not
to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
9.10 Jurisdiction; Consent to Service of Process.
(a) NEWCO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
ILLINOIS OR NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES
OF AMERICA SITTING IN THE CITY OF CHICAGO OR THE CITY OF NEW YORK, AND
ANY APPELLATE COURT THEREFROM, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION
18
OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS OR NEW YORK
STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY
PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT IN THE COURTS OF ANY JURISDICTION.
(b) NEWCO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN
ANY ILLINOIS OR NEW YORK STATE COURT OR FEDERAL COURT SITTING IN THE
CITY OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT.
IN WITNESS WHEREOF, ERP Operating Partnership and Newco have caused
this Agreement to be signed by their respective officers hereunto duly
authorized all as of the date first written above.
ERP OPERATING LIMITED PARTNERSHIP
BY: EQUITY RESIDENTIAL PROPERTIES
TRUST, its general partner
By:___________________________
Name:_________________________
Title:________________________
WELLSFORD REAL PROPERTIES, INC.
By:________________________________
Name:______________________________
Title:_____________________________
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