<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 27, 1997
EVANS WITHYCOMBE RESIDENTIAL, L.P.
(Exact Name of Registrant as Specified in its Charter)
Delaware 0-22109 86-0766007
(State or Other Jurisdiction of (Commission File Number) (IRS Employer
Incorporation) Identification No.)
6991 East Camelback Road, Suite A-200 85251
Scottsdale, Arizona (Zip Code)
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (602) 840-1040
None
(Former Name or Former Address, if Changed Since Last Report)
================================================================================
<PAGE>
ITEM 5. OTHER EVENTS.
On August 27, 1997, Evans Withycombe Residential, L.P., a Delaware limited
partnership ("EWRLP"), and ERP Operating Limited Partnership, an Illinois
limited partnership ("ERP"), entered into an Asset Contribution Agreement (the
"Asset Contribution Agreement"), dated as of August 27, 1997, pursuant to which
EWRLP agreed, subject to certain conditions, to contribute all of its assets to
ERP (the "Contribution") in exchange for units of limited partnership interest
in ERP ("ERP Units") following the Merger (as defined below). The Asset
Contribution Agreement was entered into in connection with the contemplated
merger ("Merger") of Evans Withycombe Residential, Inc. ("EWR"), a Maryland
corporation and sole general partner of EWRLP, with and into Equity Residential
Properties Trust ("EQR"), a Maryland real estate investment trust and sole
general partner of ERP, pursuant to an Agreement and Plan of Merger (the "Merger
Agreement"), dated as of August 27, 1997, between EQR and EWR. The number of
ERP Units to be received by EWRLP in consideration for the Contribution shall
equal the number of units of limited partnership interest in EWRLP ("EWRLP
Units") outstanding immediately prior to the Contribution multiplied by 0.50
(the "Exchange Ratio"). The Contribution shall occur upon ERP giving notice to
EWRLP at any time following the first to occur of (i) the date twelve months
after the consummation of the Merger, (ii) the date on which EQR receives an
opinion of a nationally recognized tax counsel satisfactory to it or a ruling
from the Internal Revenue Service that the Contribution may be effected without
adversely affecting the qualification of the Merger as a tax-free reorganization
within the meaning of Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code"), or (iii) the date on which regulations are promulgated by
the Department of the Treasury which, in the opinion of a nationally recognized
tax counsel satisfactory to EQR, would permit the Contribution to occur without
adversely affecting the qualification of the Merger as a tax-free reorganization
within the meaning of Section 368 of the Code. If ERP fails to give such notice
by December 31, 1999, the Asset Contribution Agreement shall terminate and EWRLP
shall have no further obligations thereunder. The Contribution is also subject
to the approval of the limited partners of EWRLP.
Four holders of EWRLP Units (the "Unit Holders") have agreed to contribute
their EWRLP Units to ERP in exchange for ERP Units pursuant to a Unit
Contribution Agreement (the "Unit Contribution Agreement"), dated as of August
27, 1997, between ERP and the Unit Holders. The number of ERP Units to be
received by the Unit Holders immediately following the effectiveness of the
Merger pursuant to the Unit Contribution Agreement shall equal the number of
EWRLP Units contributed to ERP by the Unit Holders multiplied by the Exchange
Ratio. Following the effectiveness of the Merger and contribution of EWRLP
Units pursuant to the Unit Contribution Agreement, but prior to the
effectiveness of the Asset Contribution Agreement or contribution of EWRLP Units
by other EWRLP Unit holders which are anticipated to be made pursuant to an
exchange offer, (i) ERP will own approximately 13.28% of the total number of
EWRLP Units currently outstanding, 1% of which will represent a general
partnership interest in EWRLP and (ii) EQR will own approximately 81.74% of the
total number of EWRLP Units currently outstanding, 1% of which will represent a
general partnership interest in EWRLP.
2
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed with this report on Form 8-K:
Exhibit No. Description
- ----------- -----------
10(a) Asset Contribution Agreement, dated as of August 27,
1997, between ERP Operating Limited Partnership and
Evans Withycombe Residential, L.P.
10(b) Unit Contribution Agreement, dated as of August 27,
1997, by and among ERP Operating Limited Partnership and
the Contributors named therein
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EVANS WITHYCOMBE RESIDENTIAL, L.P.
By: EVANS WITHYCOMBE RESIDENTIAL, INC.,
its general partner
Date: August 29, 1997 By: /s/ Paul R. Fannin
----------------------------------------
Paul R. Fannin
Senior Vice President and Chief
Financial Officer, Treasurer and Secretary
4
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EXHIBIT INDEX
-------------
Exhibit No. Description
- ----------- -----------
10(a) Asset Contribution Agreement dated as of August 27,
1997 between ERP Operating Limited Partnership and
Evans Withycombe Residential, L.P.
10(b) Unit Contribution Agreement dated as of August 27,
1997 by and among ERP Operating Limited Partnership
and the Contributors named therein
5
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Exhibit 10.(a)
ASSET CONTRIBUTION AGREEMENT
----------------------------
THIS AGREEMENT is made as of August 27, 1997 by and between EVANS
WITHYCOMBE RESIDENTIAL, L.P., a Delaware limited partnership ("EWOP"), and ERP
OPERATING LIMITED PARTNERSHIP, an Illinois limited partnership ("ERP").
R E C I T A L S:
---------------
A. To induce the general partner of ERP to enter into an agreement of
merger with the general partner of EWOP pursuant to the Agreement and Plan of
Merger dated August 27, 1997 between the general partners of ERP and EWOP (the
"Merger Agreement"), EWOP desires to contribute to ERP, at the option of ERP,
all of its assets pursuant to the terms and conditions of this Agreement.
Section 5.18 of the Merger Agreement provides certain assurances given to induce
EWOP to enter into this Agreement.
B. EWOP intends to dissolve after the contribution of its assets to ERP.
A G R E E M E N T S:
-------------------
In consideration of the foregoing premises and the respective agreements,
covenants and obligations herein contained and other good and valuable
consideration, the parties agree as follows:
1. Contribution. Subject to Section 6 of this Agreement, EWOP hereby
agrees to contribute all of its assets (the "Contributed Assets"), subject to
its liabilities (including liabilities which are non-recourse in nature), to ERP
in exchange for units of partnership interest in ERP of the type and in the
amount set forth in Sections 3 hereof.
The aforesaid contribution is made without any representation or warranty,
express or implied, all of which are expressly disclaimed.
2. Assumption of Liabilities. Subject to Section 6 of this Agreement, ERP
shall assume the liabilities of EWOP (other than liabilities which are non-
recourse in nature) and agrees to pay and perform such liabilities when due and
when required to be performed. Such liabilities include, without limitation, all
obligations under the Indenture dated as of April 2, 1997 between EWOP and Bank
One, Columbus, N.A., as trustee. The liabilities assumed pursuant to this
Section are referred to collectively as the "Assumed Liabilities".
3. Consideration for Contribution to ERP. Solely in exchange for the
contribution of the Contributed Assets, EWOP shall receive such number of common
units of ERP as shall
<PAGE>
equal the number of EWOP units of partnership interest issued and outstanding
immediately prior to the effective time of the Contribution 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,
at the time of the effectiveness of the Contribution, EWOP shall be paid an
amount in cash equal to the Closing Price (as hereinafter defined) multiplied by
the fraction of a ERP Unit to which EWOP would otherwise be entitled. For
purposes of this Paragraph 2, "Closing Price" shall mean the unweighted average
closing price of a share of Equity Residential Properties Trust ("EQR") common
stock as reported on the New York Stock Exchange (Composite Tape) for the five
(5) trading days preceding the Effective Time (as defined in the Merger
Agreement), and "Trading Days" shall mean any day on which the EQR common shares
of beneficial interest is traded on the New York Stock Exchange and reported on
its Composite Tape.
4. Transfer Documents. At the Closing (as defined herein), EWOP shall
execute a Warranty Deed for each of the EWR Properties (as defined in the Merger
Agreement) owned by it and a general assignment and assumption agreement, in
form and substance satisfactory to ERP, as assignor, for EWR Properties owned by
it and ERP shall sign such general assignment and assumption agreement as
assignee.
5. Additional Agreements. EWOP and ERP shall execute, deliver (or cause
to be executed or delivered) and record, all agreements, documents and
instruments necessary or appropriate to effect the contribution and assumption
contemplated hereby, including any assignments, assumptions, supplemental
indentures, deeds, agreements or instruments.
6. Limitation on Contribution. To the extent any assignment, transfer,
conveyance or delivery of a Contributed Asset or the assumption of an Assumed
Liability shall violate or cause an event of default under any agreement between
EWOP or ERP on one hand, and any other person on the other hand, such asset
shall not be contributed or such liability shall not be assumed pursuant to the
terms of this Agreement and the parties shall cooperate to effect the
contributions promptly following the Effective Time hereof as practicable.
Nothing herein shall be deemed to require the contribution of any asset or the
assumption of any liability which by its term or operation cannot be assigned,
transferred, conveyed or delivered, provided the parties shall use their
reasonable efforts to seek or obtain any such approvals as soon as practicable
after the date hereof. In the event any contribution of an asset has not been
consummated on the date hereof, EWOP shall continue in existence and hold such
asset in trust for the use and benefit of ERP and shall take any other action as
reasonably requested by ERP, as applicable, in order to place ERP, as
applicable, as reasonably possible, in the same position that would have existed
had such Contributed Asset been contributed immediately following the Effective
Time as contemplated by this Agreement. If any assumption of a liability has not
been consummated on the date hereof, then ERP which was to assume such liability
shall reimburse the Contributor for all amounts paid by the Contributor with
respect to such liability until such liability has been assigned to ERP, as the
case may be. As and when any such Contributed Asset or Assumed Liability is able
to be
2
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assigned, transferred, conveyed or delivered, as the case may be, such
contribution and assumption shall be effective forthwith. The parties agree
that, as of the Closing, ERP shall be deemed to have acquired complete and sole
beneficial ownership of all Contributed Assets to be contributed to it
hereunder, together with all rights, powers and privileges incident thereto and
all duties and obligations and responsibilities incident thereto including,
without limitation, the liabilities assumed by ERP hereunder. The failure to
contribute any Contributed Asset hereunder shall not reduce the consideration to
be received by EWOP.
7. Lack of Representation. Each of the parties hereto understands and
agrees that no party hereto is, in this Agreement or any other agreement or
document contemplated by this Agreement or otherwise, making any representation
or warranty whatsoever including, without limitation, as to title, value or
legal sufficiency, except that title to all real estate included in the
Contributed Assets is warranted and shall be conveyed by warranty deeds.
8. Further Assurances. Each of the parties hereto shall use its
reasonable best efforts, on and after the date hereof, to take or cause to be
taken, all actions, and to do, or cause to be done all things, necessary, proper
or desirable under applicable laws and regulations to carry out the purposes of
this Agreement and to vest ERP, with full title to all Contributed Assets as of
the Closing. Without limiting the foregoing, ERP shall use its best efforts to
obtain all consents and approvals, to enter into all amendatory agreements and
to make all filings and applications and take all other actions which may be
required for the consummation of the transactions contemplated by this
Agreement, including, without limitation, all applicable regulatory filings.
9. Closing. The Closing of the transaction shall occur at such date after
the Transfer Date (as hereinafter defined), as ERP may give notice to EWOP that
it desires to consummate the transaction contemplated by this Agreement. As used
in this Agreement, "Transfer Date" shall mean the first to occur of (i) the date
twelve months after the Effective Time, (ii) the date on which EQR receives an
opinion of Rudnick & Wolfe or other nationally recognized tax counsel
satisfactory to it or a ruling from the Internal Revenue Service that the
transaction to be undertaken pursuant to this Agreement may be effected without
adversely affecting the qualification of the Merger as a tax-free reorganization
within the meaning of Section 368 of the Code or (iii) the date on which
regulations are promulgated by the Department of the Treasury which, in the
opinion of Rudnick & Wolfe or other nationally recognized tax counsel to EQR,
would permit the transaction contemplated by this Agreement without adversely
affecting the qualification of the Merger as a tax-free reorganization within
the meaning of Section 368 of the Code. Notwithstanding the provisions of this
Paragraph 9, in no event shall ERP be required to give any notice with respect
to the Contribution and if ERP fails to give such notice by December 31, 1999,
this Agreement shall terminate and EWOP shall have no further obligations
pursuant to this Agreement.
10. Approval by Limited Partners of EWOP. The parties acknowledge and
agree that the obligations of ERP pursuant to this Agreement shall be subject to
the approval of this
3
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Agreement and the transaction contemplated hereby by the limited partners of
EWOP pursuant to the terms of the partnership agreement of EWOP. EWOP agrees to
present this Agreement, the transaction contemplated hereby and any other matter
specified in Section 1.8(e) of the Merger Agreement for approval by the partners
of EWOP pursuant to the terms of the partnership agreement of EWOP as soon as
practicable after the date hereof in the manner contemplated by the Merger
Agreement. In the event that the Merger Agreement is terminated for any reason
prior to the consummation of the Merger (as defined in the Merger Agreement),
this Agreement shall terminate.
11. Distribution of Units Received from ERP. The parties acknowledge and
agree that the consummation of the Contribution contemplated by this Agreement,
subject to the provisions of Section 6 hereof, EWOP shall dissolve pursuant to
the terms of its Partnership Agreement and distribute the ERP units to the
partners of EWOP pursuant to the terms of the Amended and Restated Partnership
Agreement of EWOP. Each holder of units shall become a holder under that certain
Registration Rights Agreement entered into by EQR and certain former holders of
units of EWOP upon the effectiveness of the merger of EQR and Evans Withycombe
Residential, Inc. to the extent the holders of units of EWOP will receive
Registrable Securities (as defined in the Registration Rights Agreement) upon
the distribution of ERP Units to the partners of EWOP. In the event that EWOP is
required to continue to hold any asset pursuant to Section 6 hereof after the
Closing for the benefit of ERP, EWOP shall distribute to the partners of EWOP,
other than EQR and ERP, their pro rata share of the ERP Units received by EWOP
in partial dissolution of the EWOP and the partners receiving such ERP Unit
shall have no further interest in EWOP as a partner, including any interest in
its assets, profits and losses.
12. Complete Agreement; Construction. This Agreement, including the
exhibits, constitutes the entire agreement between the parties with respect to
the subject matter hereof, and supersedes all previous negotiations, commitments
and writings with respect to such subject matter.
13. Survival of Agreements. Except as otherwise contemplated by this
Agreement, all covenants and agreements of the parties contained in this
Agreement will survive the consummation of the transactions contemplated hereby.
14. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Illinois, without regard to the
principles of conflicts of laws thereof.
15. Notices. All notices and other communications hereunder must be in
writing and must be delivered by hand, mailed by registered or certified mail
(return receipt requested) or sent by facsimile transmission to the party for
whom it is intended at the following address (or at such other address for a
party as may be specified by like notice) and will be deemed given on the date
on which such notice is received:
4
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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 EWOP: 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
16. Amendments. This Agreement may not be modified or amended except by an
agreement in writing signed by the parties.
17. Successors and Assigns. This Agreement shall not be assignable, in
whole or in part, directly or indirectly, by any party hereto without the prior
written consent of the other, and any attempt to assign any rights or
obligations arising under this Agreement without such consent shall be void;
provided, however, that the provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and permitted assigns.
18. No Third-Party Beneficiaries. The provisions of this Agreement are
solely for the benefit of the parties hereto and their respective successors and
permitted assigns and should not be deemed to confer upon third parties any
remedy, claim, liability, reimbursement, claim of action or other right in
excess of those existing without reference to this Agreement.
5
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19. Title and Headings. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
20. Legal Enforceability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without prejudice to any
rights or remedies otherwise available to any party hereto, each party hereto
acknowledges that damages would be an inadequate remedy for any breach of the
provisions of this Agreement and agrees that the obligations of the parties
hereunder are specifically enforceable.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed an original, but all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
ERP OPERATING LIMITED PARTNERSHIP
By: Equity Residential Properties Trust,
its general partner
By: /s/Bruce C. Strohm
------------------------
Executive Vice President
EVANS WITHYCOMBE RESIDENTIAL, L.P.
By: Evans Withycombe Residential, Inc.,
its general partner
By: /s/Stephen O. Evans
----------------------------------
Its: Chairman & Chief Executive Officer
----------------------------------
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Exhibit 10.(b)
UNIT CONTRIBUTION AGREEMENT
---------------------------
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
<PAGE>
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
2
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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:
3
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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.
4
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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
--------------------------------------
Its: Executive Vice President
--------------------------------------
CONTRIBUTORS:
/s/Stephen O. Evans
------------------------------------------
Stephen O. Evans
/s/F. Keith Withycombe
------------------------------------------
F. Keith Withycombe
The Evans Family Limited Liability Company
By: /s/Stephen O. Evans
--------------------------------------
Its: Manager
EW Investments Limited Partnership
By: /s/Stephen O. Evans
--------------------------------------
Its: General Partner
5
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EXHIBIT A
---------
<TABLE>
<CAPTION>
Name Number of Units
---- --------------
<S> <C>
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
---------
Total 3,310,198
</TABLE>
A-1
