Common use of Certain Properties Clause in Contracts

Certain Properties. EQR hereby acknowledges that five (5) specified assets, as set forth in the Asset Exchange Agreement and Purchase and Sale Agreement attached hereto as Exhibits "B" and "F", respectively (collectively, the "Spinco Assets"), are to be either transferred by Merry Land to Spinco prior to the consummation of the Merger pursuant to the Asset Exchange Agreement or sold to Spinco by ERP Operating Partnership or an Affiliate of ERP Operating Partnership pursuant to the Purchase and Sale Agreement subsequent to the Effective Time. EQR agrees that Merry Land shall have the right to determine which of the one or more five (5) Spinco Assets that will be transferred to Spinco pursuant to the Asset Exchange Agreement and which of the five (5) Spinco Assets that will be sold to Spinco pursuant to the Purchase and Sale Agreement subject to the approval of EQR, which will not be unreasonably withheld; provided, however, that in no event shall the excess of (i) the Agreed Value (as defined in the Purchase and Sale Agreement) of the Spinco Assets sold to Spinco pursuant to the Purchase and Sale Agreement over (ii) the adjusted tax basis of such assets as of the date such assets are sold to Spinco exceed the Gain A-35 198 Limitation (as defined below). Schedule 5.23A of the EQR and Merry Land Disclosure Letters sets forth the current allocation of the Spinco Assets as between those Spinco Assets which will be transferred to Spinco pursuant to the Asset Exchange Agreement and those Spinco Assets which will be sold to Spinco pursuant to the Purchase and Sale Agreement; provided, however, that if the parties hereinafter agree to a different allocation of Spinco Assets pursuant to this Section 5.23, Schedule 5.23A shall be amended to reflect such different allocation.

Certain Properties. (a) EQR hereby acknowledges that five (5) specified assets, as set forth in the Asset Exchange Agreement and Purchase and Sale Agreement attached hereto as Exhibits "B" and "F", respectively (collectively, the "Spinco Assets"), are to be either transferred by Merry Land to Spinco prior to the consummation of the Merger pursuant to the Asset Exchange Agreement or sold to Spinco by ERP Operating Partnership or an Affiliate of ERP Operating Partnership pursuant to the Purchase and Sale Agreement subsequent to the Effective Time. EQR agrees that Merry Land shall have the right to determine which of the one or more five (5) Spinco Assets that will be transferred to Spinco pursuant to the Asset Exchange Agreement and which of the five (5) Spinco Assets that will be sold to Spinco pursuant to the Purchase and Sale Agreement subject to the approval of EQR, which will not be unreasonably withheld; provided, however, that in no event shall the excess of (i) the Agreed Value (as defined in the Purchase and Sale Agreement) of the Spinco Assets sold to Spinco pursuant to the Purchase and Sale Agreement over (ii) the adjusted tax basis of such assets as of the date such assets are sold to Spinco exceed the Gain A-35 198 Limitation (as defined below). Schedule 5.23A of the EQR and Merry Land Disclosure Letters sets forth the current allocation of the Spinco Assets as between those Spinco Assets which will be transferred to Spinco pursuant to the Asset Exchange Agreement and those Spinco Assets which will be sold to Spinco pursuant to the Purchase and Sale Agreement; provided, however, that if the parties hereinafter agree to a different allocation of Spinco Assets pursuant to this Section 5.23, Schedule 5.23A shall be amended to reflect such different allocation. (b) For purposes of this Section 5.23, the "Gain Limitation" shall mean the amount by which (i) the distributions that EQR is expected to pay to the former holders of Merry Land Shares on the first dividend payment date of EQR following the Closing (determined using the estimated dividend rates set forth on Schedule 5.23B to the EQR and Merry Land Disclosure Letters), exceeds (ii) the "Short Period Merry Land E&P" (as defined below). The parties further acknowledge and agree that in the event the Effective Time occurs on the same date that Merry Land has paid a dividend on the Merry Land Shares, then the Gain Limitation shall be zero. For purposes of this Section 5.23, the "Short Period Merry Land E&P" shall mean (i) the "earnings and profits" of Merry Land (as determined under the Code and agreed upon by EQR and Merry Land) for the period beginning on January 1 of the year of Closing through the Closing Date (excluding any gain on the sale of the Spinco Assets recognized by Rudo▇▇▇ ▇▇▇ any deductions for any Payments and Gross-Up Payments made by Rudo▇▇▇) ▇▇ltiplied by (ii) a fraction, the numerator of which is the number of days in the calendar year from the Closing Date through the end of the calender quarter in which the Closing Date occurs and the denominator of which is 360 less the number of days in