Exhibit 10.(b)
UNIT CONTRIBUTION AGREEMENT
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This Agreement ("Agreement") is made and entered into as of August 27, 1997
by and among the persons and entities listed on Exhibit A hereto
("Contributors") and ERP Operating Limited Partnership an Illinois limited
partnership ("ERP").
R E C I T A L S:
- - - - - - - -
A. Contributors are the legal and beneficial owners of an aggregate of
3,310,198 units of limited partnership interest (the "EW Units") in Evans
Withycombe Residential, L.P., a Delaware limited partnership ("EW OP").
B. The Contributors own the EW Units in the amounts set forth on Exhibit
A.
C. As an inducement to Equity Residential Properties Trust, a Maryland
real estate investment trust ("EQR"), to enter into an Agreement and Plan of
Merger (the "Merger Agreement") with Evans Withycombe Residential, Inc., a
Maryland corporation ("EW"), whereby EW will merge with and into EQR (the
"Merger") and thus benefit the Contributors, the Contributors have agreed to
contribute their respective EW Units to ERP, and ERP desires to acquire the
Units by contribution from Contributors, as provided herein.
D. Section 5.18 of the Merger Agreement provides certain assurances given
to induce the Contributors to enter in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto do hereby agree as follows:
1. Contribution of the Units. Pursuant to the terms hereof, Contributor
hereby agrees to contribute the EW Units owned by it to ERP free and clear of
all liens and encumbrances and ERP hereby agrees to accept such EW Units from
Contributors, in exchange for common units of limited partnership interest in
ERP ("ERP Unit") in an amount as calculated pursuant to Paragraph 2 hereof. Upon
the issuance of ERP Units to each Contributor, such Contributor shall be
admitted as a limited partner of ERP.
2. Exchange Ratio. In exchange for each EW Unit contributed to ERP, the
Contributor shall receive a number of ERP Units equal to one (1) multiplied by
the Exchange Ratio (as defined in the Merger Agreement). No fractional ERP Units
shall be issued in connection with the contribution by any Contributor. Instead,
each Contributor of EW Units
having a fractional interest arising upon the Contribution shall, at the time of
the effectiveness of the Contribution, be paid an amount in cash equal to the
Closing Price (as hereinafter defined) multiplied by the fraction of a ERP Unit
to which the Contributor would otherwise be entitled. For purposes of this
Paragraph 2, "Closing Price" shall mean the unweighted average closing price of
a common share of beneficial interest of EQR common stock as reported on the New
York Stock Exchange Composite Tape for the five (5) trading days preceding the
Effective Date, and "Trading Days" shall mean any day on which the common shares
of beneficial interest of EQR is traded on the New York Stock Exchange and
reported on its Composite Tape.
3. Contributors' Representations and Warranties. Each Contributor hereby
represents and warrants to ERP, as of the date hereof and as of the date of the
Closing, with respect to the EW Units owned by such Contributor, as follows:
(a) Such Contributor is the sole legal and beneficial owner of the EW
Units and has the full power and authority to sell the EW Units to ERP
hereunder;
(b) The EW Units are owned by such Contributor free and clear of any
and all liens claims, equities, security interests or encumbrances
whatsoever;
(c) Upon the contribution of the EW Units to ERP, such EW Units will
be owned by ERP free and clear of any and all liens, claims, equities,
security interests or encumbrances whatsoever;
(d) There are no judgments of record or inchoate tax liens against or
relating to such Contributor or the EW Units, nor any litigation or other
proceedings pending or, to such Contributor's knowledge, threatened against
or relating to Contributors or the EW Units; and
(e) Such Contributor is not subject to any restriction, agreement,
law, judgment or decree which would prohibit or be violated by the
execution and delivery hereof or by the consummation of the transaction
contemplated hereby.
4. ERP's Representations and Warranties. ERP hereby represents and
warrants to Contributors, as of the date hereof and as of the date of the
Closing, that ERP has the right and the power to execute and deliver this
Agreement and to perform its obligations hereunder, and all necessary corporate
action with respect thereto has been duly and validly taken. The ERP Units
issued hereunder shall be immediately exchangeable for common shares of
beneficial interest of EQR as provided in, and subject to, the terms of the
agreement of limited partnership of ERP.
5. Subscription Agreement. Concurrently with the execution and delivery
of this Agreement, each Contributor is executing and delivering to ERP a
Subscription Agreement, Investor Information Sheet, Account Information Sheet,
an Accredited Investor Questionnaire, a
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Registration Rights Agreement (as defined in the Subscription Agreement), in the
form attached to the Subscription Agreement.
6. Closing. The closing of the transaction contemplated hereby (the
"Closing") shall occur as soon as practicable after the Effective Time (as
defined in the Merger Agreement) on the date of the consummation of the Merger.
At the Closing, each Contributor shall deliver to ERP a duly-executed
assignment, in form and substance satisfactory to ERP, to convey the EW Units
owned by it to ERP. ERP shall deliver an executed copy of the Registration
Rights Agreement to each Contributor.
7. ERP's Conditions to Closing. Notwithstanding any other provision
hereof, the obligation of ERP to consummate the transactions contemplated hereby
shall be subject to the condition, unless waived in writing, as of the Closing,
that each of the representations and warranties of Contributors contained herein
shall remain true and correct in all material respects and that the Effective
Time shall have occurred.
8. Contributors' Conditions to Closing. Notwithstanding any other
provision hereof, the obligation of the Contributors to proceed to consummate
the transaction contemplated hereby shall be subject to the condition, unless
waived in writing, as of the Closing, that each of the representations and
warranties of ERP contained herein shall remain true and correct in all material
respects and that the Effective Time shall have occurred.
9. Indemnification. The warranties and representations set forth in
Paragraphs 3 and 4 hereof shall survive the Closing. ERP and Contributors hereby
agree to indemnify, defend and hold each other harmless from and against any and
all loss, cost, damage, liability or expense (including, without limitation,
reasonable attorneys fees, court costs and reasonable litigation expenses) which
the other party may suffer, sustain or incur as a result of, arising under or in
connection with any breach of warranty or agreement contained herein or any
failure of performance hereunder. Contributors shall be severally and not
jointly liable for any amounts owed ERP pursuant to this Section 9.
10. Termination. This Agreement shall terminate and neither party shall
have any further liability hereunder at such time if the Merger Agreement shall
be terminated pursuant to Section 7.1 thereof.
11. Notices. Any notices necessary or desirable to be served hereunder
shall be in writing and shall either be personally delivered or sent by
certified mail, return receipt requested, postage prepaid, addressed as follows:
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(a) If to ERP: Two North Riverside Plaza
Suite 400
Chicago, IL 60606
Attention: General Counsel
Fax: (312) 454-0039
With a copy to: Rudnick & Wolfe
203 North LaSalle Street
Chicago, Illinois 60601
Attention: Errol R. Halperin
Fax: (312) 236-7516
(b) If to Contributors: c/o Evans Withycombe Residential, L.P.
6991 East Camelback Road
Suite A-200
Scottsdale, Arizona 85251
Attention: General Partner
Fax: (602) 423-8843
With a copy to: Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
Attention: Kenneth M. Doran
Fax: (213)229-6537
or to such other address or addresses as either party hereto may designate for
herself or itself from time to time in a written notice served upon the other
party hereto in accordance herewith. Any notice sent by mail as provided above
shall be deemed delivered on the second (2nd) business day next following the
postmark date which it bears.
12. Benefit. The rights and obligations of the parties hereto shall be
binding upon and shall inure to the benefit of such parties and their respective
heirs, executors, administrators, legal representatives, successors and assigns.
13. Entire Agreement. This Agreement contains the entire agreement between
the parties hereto with respect to the subject matter hereof, and all prior
negotiations, understandings and agreements are merged herein. This Agreement
may not be modified or rescinded except pursuant to a written instrument signed
by the party against whom enforcement is sought.
14. Governing Law. This Agreement and the rights and obligations of the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Illinois, without regard to its conflicts of laws provisions.
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IN WITNESS WHEREOF, the parties hereto have executed this Unit Contribution
Agreement as of the day and year first above written.
ERP:
ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential Properties Trust, its
General Partner
By: /s/Bruce C. Strohm
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Its: Executive Vice President
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CONTRIBUTORS:
/s/Stephen O. Evans
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Stephen O. Evans
/s/F. Keith Withycombe
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F. Keith Withycombe
The Evans Family Limited Liability Company
By: /s/Stephen O. Evans
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Its: Manager
EW Investments Limited Partnership
By: /s/Stephen O. Evans
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Its: General Partner
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EXHIBIT A
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Name Number of Units
---- --------------
Stephen O. Evans 769,899
F. Keith Withycombe 772,199
The Evans Family Limited Liability 135,550
Company
EW Investments Limited Partnership 1,632,114
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Total 3,310,198
A-1