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This excerpt taken from the EQR 10-Q filed Aug 7, 2006. NOW THEREFORE, in
consideration of the promises and mutual undertakings set forth herein, and for
other good and valuable consideration, the parties agree as follows:
Section 1. INDEMNIFICATION. 1.1 Sellers’ Indemnity. 1.1.1 Sellers shall defend, indemnify and hold harmless Buyer and its respective officers, directors, principals, shareholders, employees, affiliates, successors and assigns (each a “Buyer Indemnified Party” and, collectively, the “Buyer Indemnified Parties”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements of whatever kind or nature, including but not limited to, reasonable attorney’s fees and expenses (collectively “Damages”) incurred or required to be paid by any of them as a result of, or arising out of any of the following (specifically excluding, however, any such amounts for which the Buyer Parties received a credit at Closing): (a) a breach of Sections 5.1.9 and 5.1.14 of each Purchase Agreement; (b) Sellers’ failure to timely pay the Seller Retained Employee Liabilities and at or before Closing, pay all secured and unsecured third party indebtedness for borrowed money or otherwise of a liquidated amount encumbering or relating to any of the Properties; (c) Sellers’ failure to pay when due (or to reimburse Buyer promptly for the payment of) all federal, state and local income, sales, use, property, intangible and franchise taxes and any interest and penalties relating thereto (collectively “Taxes”) of the Owner LLCs, any of the Property Owners or any other entity through which any Owner M-1 LLC holds its interest in a Property Owner applicable to any period or portion thereof ending on or prior to the Closing Date; (d) the litigation disclosed on the Master Disclosure Schedule; any claim by a third party that is not an Affiliate of Buyer for Damages suffered by said third party prior to Closing, if said claim is similar in nature to any litigation disclosed on the Master Disclosure Schedule and is based on a set of facts of a substantially similar nature made by the other plaintiffs; and any litigation arising out of a securities or related claim brought by any limited partner of ERP or any trust unit owner of Equity Residential (EQR); (e) a breach of any representation or warranty of any of the Seller Parties or non-fulfillment of any covenant to be performed or complied with by any of the Seller Parties prior to the Closing Date under the Purchase Agreements (but only to the extent the liabilities and damages attributable thereto in the aggregate exceed $1,000,000); (f) a non-fulfillment of any covenant to be performed or complied with by any of the Seller Parties from and after the Closing Date under the Purchase Agreements; or (g) except for matters included in (d) above, liability to third parties in connection with any Seller’s or Property Owner’s original acquisition of any of the Properties or any Seller’s original acquisition of the Interest, as applicable, or the operation and management of any of the Properties or Lexford Management Company prior to the Closing Date (specifically excluding any Damages relating in any way to Hazardous Materials or the physical condition of the Properties, other than Damages of said nature suffered prior to Closing by a third party that is not an Affiliate of Buyer), but only to the extent such liabilities and Damages in this subsection 1.1.1(g) (except to the extent related to the Reynoldsburg Lease, the Service Contracts or any obligations of Seller that are subject to proration or reproration under Section 2.3) in the aggregate exceed $250,000. Notwithstanding the foregoing, in no event shall Sellers’ liability under subsection 1.1.1(e) in the aggregate, exceed $20,000,000. If the Sellers fail to make any payment otherwise required within fifteen (15) days after proper demand therefore, the amount of such payment will accrue interest payable by the Sellers at the rate of ten percent (10%) per annum, beginning with the 16th day after the date of demand through and including the date actually paid to the Buyer Indemnified Party entitled to payment. 1.1.2 Notwithstanding anything to the contrary herein, promptly following the presentation or commencement of prosecution of a claim, action or proceeding against a Buyer Indemnified Party in respect of which indemnity may be sought hereunder, such Buyer Indemnified Party will promptly notify the Sellers with respect thereto. In addition, a Buyer Indemnified Party will promptly notify the Sellers after any action is commenced (by way of service of summons or other legal process giving information as to the nature and basis of the claim) against such Buyer Indemnified Party in respect of which indemnity may be sought hereunder. In any event, failure or delay to notify the Sellers will not relieve the Sellers from their indemnification obligations hereunder, except to the extent the Sellers are prejudiced or harmed by such failure or delay. The Sellers may choose to or will, if requested by a Buyer Indemnified Party, assume the defense of any litigation or proceeding in respect of which indemnity may be sought hereunder, including the employment of counsel reasonably satisfactory to such Buyer Indemnified Party and the payment of the fees and expenses of such counsel, in which event, except as provided below, Sellers will not be liable for M-2 the fees and expenses of any other counsel retained by any Buyer Indemnified Party in connection with such litigation or proceeding. Should Sellers assume the defense of any litigation or proceeding, Buyer will make the employees of it or any of its affiliates available to Sellers to provide testimony and otherwise provide reasonable assistance to Sellers, and Buyer will also preserve and make all documents and other items specified by Sellers as evidentiary material available to Sellers for inspection, copying and production in connection with any such litigation or proceeding. Sellers will not be liable for any settlement of any litigation or proceeding effected without their prior written consent, which shall not be unreasonably withheld, conditioned or delayed. 1.2 Buyer’s Indemnity. 1.2.1 Buyer shall defend, indemnify and hold harmless Sellers and their respective officers, directors, partners, principals, shareholders, employees, affiliates, successors and assigns (each a “Seller Indemnified Party” and, collectively the “Seller Indemnified Parties”) from and against any and all Damages incurred or required to be paid by any of them as a result of, or arising out of any of the following (specifically excluding, however, any such amounts for any of the Seller Parties received a credit at Closing): (a) Buyer’s failure to timely pay the Buyer Assumed Employee Liabilities; (b) Buyer’s failure to timely pay all Taxes of any Owner LLC, any of the Property Owners or any other entity through which any Owner LLC holds its interest in a Property Owner applicable to any period or portion thereof after the Closing Date; (c) a breach of representation or warranty of any of the Buyer Parties in any material respect under the Purchase Agreement (but only to the extent that the damages and liabilities attributable thereto in the aggregate exceed $1,000,000, but in no event shall such liabilities exceed $20,000,000); (d) non-fulfillment of any material covenant in any material request to be performed or complied with by any of the Buyer Parties under the Purchase Agreements; (e) the operation and management of the Lexford Assets prior to the Closing Date, not to exceed $250,000; provided that Buyer shall not be responsible for any liabilities or obligations accruing prior to Closing under the Reynoldsburg Lease, the Service Contracts, or any obligations of Seller that are subject to proration or reproration under Section 2.3, (f) Hazardous Materials or the physical condition of the Properties first present post-Closing, or (g) the operation and management of the Properties on or after the Closing Date. If the Buyer fails to make any payment otherwise required within fifteen (15) days after proper demand therefore, the amount of such payment will accrue interest payable by the Buyer at the rate of ten percent (10%) per annum, beginning with the 16th day after the date of demand through and including the date actually paid to the Seller Indemnified Party entitled to payment. 1.2.2 Notwithstanding anything to the contrary herein, promptly following the presentation or commencement of prosecution of a claim, action or proceeding against a Seller Indemnified Party in respect of which indemnity may be sought hereunder, such Seller Indemnified Party will promptly notify the Buyer with respect thereto. In addition, a Seller Indemnified Party will promptly notify the Buyer after any action is commenced (by way of service of summons or M-3 other legal process giving information as to the nature and basis of the claim) against such Seller Indemnified Party in respect of which indemnity may be sought hereunder. In any event, failure or delay to notify the Buyer will not relieve the Buyer from its indemnification obligations hereunder, except to the extent the Buyer is prejudiced or harmed by such failure of delay. The Buyer will, if requested by a Seller Indemnified Party, assume the defense of any litigation or proceeding in respect of which indemnity may be sought hereunder, including the employment of counsel reasonably satisfactory to such Seller Indemnified Party and the payment of the fees and expenses of such counsel, in which event, Buyer will not be liable for the fees and expenses of any other counsel retained by any Seller Indemnified Party in connection with such litigation or proceeding. Buyer will not be liable for any settlement of any litigation or proceeding effected without its prior written consent. Section 2. MISCELLANEOUS. 2.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS. 2.2 Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be effective for purposes of binding the parties hereto, but all of which shall together constitute one and the same instrument. 2.3 Headings Descriptive. The headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement. 2.4 Severability. In case any provision in, or obligation under, this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. 2.5 Amendment, Waiver. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified except by an instrument in writing signed by all parties hereto. This excerpt taken from the EQR 10-Q filed Aug 8, 2005. NOW
THEREFORE, in consideration of the mutual covenants
contained herein, and intending to be legally bound, Company and the Executive
hereby agree as follows:
1. Other than with respect to the third sentence of Section 4(b) and the first sentence of Section 4(c) of the A&R Agreement, which are amended as set forth below, the A&R Agreement is hereby amended by replacing each and every reference to “January 2, 2006” with “December 31, 2005.”2. The third sentence of Section 4(a) of the A&R Agreement is hereby deleted and replaced in its entirety with the following:“Notwithstanding any other provision of this Agreement to the contrary, on January 2, 2006, provided that Executive’s employment has not been terminated for Cause prior to December 31, 2005 or Executive has not voluntarily terminated his employment prior to December 31, 2005 for other than Good Reason, Executive shall be entitled to the following compensation in addition to all other compensation and benefits described in this Agreement: (i) $30,000 in cash and (ii) a fully vested award of 17,239 shares under the Company’s 2002 Share Incentive Plan (the “Plan”) made on January 2, 2006 and (iii) a grant under the Plan on January 2, 2006 of a fully vested option expiring on the tenth (10th) anniversary of the date of grant to purchase 42,614 shares at Fair Market Value on January 2, 2006 , as defined in the Plan.”
3. The third sentence of Section 4(b) of the A&R Agreement is hereby deleted and replaced in its entirety with the following:
“Provided Executive’s employment has not been terminated for Cause prior to December 31, 2005 or Executive has not voluntarily terminated his employment prior to December 31, 2005 for other than Good Reason, Executive’s annual cash bonus for 2005 shall be 100% of the Target Bonus, except as provided herein in the event of Executive’s death or Disability prior to December 31, 2005, payable on January 2, 2006.”
4. The first sentence of Section 4(c) of the A&R Agreement is hereby deleted and replaced in its entirety with the following:“In addition to other compensation to be paid under this Section 4, provided Executive’s employment has not been terminated for Cause prior to December 31, 2005 or Executive has not voluntarily terminated his employment prior to December 31, 2005 for other than Good Reason, the Executive will be eligible to receive an annual long term incentive award of stock options, restricted stock and/or performance units under the Company’s long term incentive plans for 2005, to be received on January 2, 2006.”
5. The A&R Agreement, as amended by this Amendment, is hereby ratified, approved and confirmed in all respects.This excerpt taken from the EQR 10-Q filed May 9, 2005. NOW, THEREFORE, in consideration of the
mutual covenants and promises contained herein, and for other good and valuable
consideration, the payment and adequacy of which is hereby acknowledged, the
parties agree to amend the 2003 Agreement as follows:
1. 2002 Share Plan.
a. Simultaneously with the execution of this Agreement, the Company has executed a Third Amendment to the 2002 Share Plan, which among other changes increases the age at which the Chairman may retire from the Board, and receive immediate vesting of all restricted shares and unvested share options, from age 62 to age 70. Chairman has reviewed and consents to this Third Amendment and acknowledges that its terms and provisions apply to all heretofore or hereafter restricted shares and share options granted under the 2003 Agreement.
b. Chairman and the Company further agree that notwithstanding any other provisions in the 2003 Agreement or the 2002 Share Plan, vested ownership of his restricted shares and share options either heretofore or hereafter issued to him pursuant to the 2003 Agreement shall not accelerate in advance of the vesting dates specified therefor, and any unvested interests shall instead be forfeited, in the following events:
(i) his voluntary retirement from the Company’s Board, or his voluntary decision not to stand for re-election to the Board, in each case for any reason other than disability prior to reaching the age of 70; or
(ii) his involuntary termination as Chairman for Cause (as defined in the 2003 Agreement).
c. Chairman and the Company further agree that notwithstanding any other provisions in the 2003 Agreement or the 2002 Share Plan, the vesting of any restricted shares and share options heretofore or hereafter issued to Chairman pursuant to the 2003 Agreement shall fully accelerate in advance of the vesting dates specified therefor in the following events:
(i) his death;
(ii) his voluntary retirement from the Board, or his decision not to stand for re-election to the Board, in each case at or after age 70;
(iii) his voluntary retirement from the Board, or his decision not to stand for re-election to the Board, in each case prior to age 70 due to Disability (as defined in the 2002 Share Plan);
(iv) his failure to be renominated to the Board or named as Chairman of the Board;
(v) his failure to be re-elected to the Board if he is renominated to the Board; or
(vi) a Change in Control (as defined in the 2002 Share Plan).
2. Other Changes.
a. The following language contained in Paragraph A of Section I of the 2003 Agreement is deleted in its entirety:
“for services rendered during the calendar year preceding the date of grant,”
b. Paragraph D(ii) of Section I of the 2003 Agreement is deleted in its entirety.
c. The following language in Paragraph B of Section II of the 2003 Agreement is deleted in its entirety:
“(i.e., said Grants would be fully vested upon their grant unless Chairman resigned without good reason prior to age 62 or was removed for Cause).”
3. Reaffirmation. Except as expressly set forth above, the terms and provisions of the 2003 Agreement are hereby reconfirmed and agreed to continue in full force and effect.
This excerpt taken from the EQR 10-K filed Mar 14, 2005. NOW, THEREFORE, in
consideration of the mutual covenants and promises contained herein, and for
other good and valuable consideration, the payment and adequacy of which is
hereby acknowledged, the parties agree to amend the 2003 Agreement as follows:
1. Chairman’s Compensation. There is hereby added to Paragraph A of Section I of the 2003 Agreement, the following:
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