Common use of Certain Fees and Expenses Clause in Contracts

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h) or 7.1(i), then Wellsford will pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) a fee equal to the Break-Up Fee (as defined below), (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford will pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will pay Wellsford (provided EQR was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(g) or 7.1(j) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(c)) and at the time of the termination of this Agreement an Acquisition Proposal has been received by Wellsford, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford or any Wellsford Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford shall pay the Break-Up Fee to EQR. The payment of the Break Up Fee shall be compensation and liquidated damages for the loss suffered by EQR as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the Break-Up Fee. The Break- Up Fee shall be paid by Wellsford to EQR, or the Break-Up Expenses shall be paid by Wellsford to EQR or EQR to Wellsford (as applicable), in immediately available funds within fifteen (15) days after the date the event giving rise to the obligation to make such payment occurred. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus Break-Up Expenses (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h), 7.1(i)(1) or 7.1(i7.1(i)(3), then Wellsford will Cornerstone and Cornerstone Partnership thereupon shall pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) EOP Partnership a fee equal to the Break-Up Fee (as defined belowherein), and (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford will Cornerstone and Cornerstone Partnership shall pay EQR to EOP Partnership (provided Wellsford that Cornerstone was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined belowherein). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will EOP and EOP Partnership shall pay Wellsford to Cornerstone Partnership (provided EQR that EOP was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), ) an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement shall be terminated pursuant to Section 7.1(a7.1(b), 7.1(g7.1(d) (if primarily resulting from any action or 7.1(j) inaction of Cornerstone, Cornerstone Partnership or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(cany Cornerstone Subsidiary or the Cornerstone Non-controlled Subsidiary), 7.1(e), 7.1(f), 7.1(i)(2) and at prior to the time of the such termination of this Agreement an Acquisition Proposal has been received by WellsfordCornerstone or Cornerstone Partnership, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford thereafter, Cornerstone or any Wellsford Subsidiary Cornerstone Partnership enters into any written agreement to consummate a transaction or series of transactions which, had such agreement been proposed or negotiated during the term of this Agreement, would have constituted an Acquisition Proposal pursuant to Section 4.3 (each, a "Cornerstone Acquisition Agreement"), which is subsequently consummated (whether or not such any Cornerstone Acquisition Proposal is Agreement relates to the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Cornerstone and Cornerstone Partnership shall pay the Break-Up Fee to EQREOP Partnership. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR EOP and EOP Partnership as a result of the failure of the Merger Mergers to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the circumstances. The Break-Up Fee. The Break- Up Fee shall be paid by Wellsford Cornerstone and Cornerstone Partnership to EQREOP Partnership, or the Break-Up Expenses shall be paid by Wellsford Cornerstone and Cornerstone Partnership to EQR EOP Partnership or EQR EOP Partnership to Wellsford Cornerstone Partnership (as applicable), in immediately available funds within fifteen two (152) business days after the date the event giving rise to the obligation to make such payment occurredoccurred (except as otherwise provided in Section 7.1(h) or 7.1(i)). Cornerstone acknowledges that the agreements contained in this Section 7.2 are integral parts of this Agreement; accordingly, if Cornerstone and Cornerstone Partnership fail to promptly pay the Break-Up Fee or Break-Up Expenses due pursuant to this Section 7.2 and, in order to obtain payment, EOP commences a suit which results in a judgment against Cornerstone or Cornerstone Partnership for any amounts owed pursuant to this Section 7.2, Cornerstone and Cornerstone Partnership shall pay to EOP its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amount owed at the rate on six-month U.S. Treasury obligations in effect on the date such payment was required to be made plus 300 basis points. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus 100,000,000 less Break-Up Expenses paid or payable under this Section 7.2 (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR EOP Partnership without causing it EOP to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by independent accountants to EOP, and (B) in the event EOP receives a letter from outside counsel (the "Break-Up Fee Tax Opinion") indicating that EOP has received a ruling from the IRS holding that EOP Partnership's receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income of EOP within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") or that the receipt by EOP Partnership of the remaining balance of the Base Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount payable under clause (A) above. Cornerstone's and Cornerstone Partnership's obligation to pay any unpaid portion of the Break-Up Fee shall terminate three years from the date of this Agreement. In the event that EOP Partnership is not able to receive the full Base Amount, Cornerstone and Cornerstone Partnership shall place the unpaid amount in escrow and shall not release any portion thereof to EOP Partnership unless and until Cornerstone receives either one of the following: (i) a letter from EOP's independent accountants indicating the maximum amount that can be paid at that time to EOP Partnership without causing EOP to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in either of which events Cornerstone and Cornerstone Partnership shall pay to EOP Partnership the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in (i) above. The "Break-Up Expenses" payable to EOP Partnership or Cornerstone Partnership, as the case may be (the "Recipient"), shall be an amount equal to the lesser of (i) $7,500,000 or (ii) the Recipient's out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, all attorneys', accountants' and investment bankers' fees and expenses). If the Break-Up Expenses payable to the Recipient exceed the maximum amount that can be paid to the Recipient without causing the Recipient to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to the Recipient (the "Maximum Amount"), the amount initially payable to the Recipient shall be limited to the Maximum Amount. If, however, within the three-year period commencing on the date of this Agreement, the Recipient receives a Break-Up Fee Tax Opinion indicating that it has received a ruling from the IRS holding that the Recipient's receipt of the Break-Up Expenses would either constitute Qualifying Income or would be excluded from gross income of the Recipient within the meaning of the REIT Requirements or that receipt by the Recipient of the balance of the Break-Up Expenses above the Maximum Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Recipient shall be entitled to have payable to it the full amount of the Break-Up Expenses. The obligation of EOP and EOP Partnership or Cornerstone and Cornerstone Partnership, as applicable ("Payor"), to pay any unpaid portion of the Break-Up Expenses shall terminate three years from the date of this Agreement. In the event that the Recipient is not able to receive the full Break-Up Expenses, the Payor shall place the unpaid amount in escrow and shall not release any portion thereof to the Recipient unless and until the Payor receives either one of the following: (i) a letter from the independent accountants of EOP or Cornerstone, as the case may be, indicating the maximum amount that can be paid at that time to the Recipient without causing it to fail to meet the REIT Requirements or (ii) a Break-Up Expense Tax Opinion, in either of which events the Payor shall pay to the Recipient the lesser of the unpaid Break-Up Expenses or the maximum amount stated in the letter referred to in (i) above.

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h) or 7.1(i), then Wellsford EWR will pay EQR (provided Wellsford EWR was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) a fee equal to the Break-Up Fee (as defined below), (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford EWR will pay EQR (provided Wellsford EWR was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will pay Wellsford EWR (provided EQR was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), ) an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(g) or 7.1(j7.1(g) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford EWR to terminate this Agreement pursuant to Section 7.1(c)) and at the time of the termination of this Agreement an Acquisition Proposal has been received by WellsfordEWR, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford EWR or any Wellsford EWR Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford EWR shall pay the Break-Up Fee to EQR. The payment of the Break Up Fee shall be compensation and liquidated damages for the loss suffered by EQR as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the Break-Up Fee. The Break- Up Fee shall be paid by Wellsford to EQR, or the Break-Up Expenses shall be paid by Wellsford to EQR or EQR to Wellsford (as applicable), in immediately available funds within fifteen (15) days after the date the event giving rise to the obligation to make such payment occurred. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus Break-Up Expenses (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describedother

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h) or 7.1(i), then Wellsford will Horizon and Horizon Partnership thereupon shall pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) Prime Partnership a fee equal to the Break-Up Fee (as defined below) and Break-Up Expenses (as defined below), and (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford will Horizon and Horizon Partnership shall pay EQR to Prime Partnership (provided Wellsford that Horizon was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will Prime and Prime Partnership shall pay Wellsford Horizon Partnership (provided EQR that Prime was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), ) an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement shall be terminated pursuant to Section 7.1(a7.1(b), 7.1(g7.1(d) (if primarily resulting from any action or inaction of Horizon or any Horizon Subsidiary), 7.1(e) or 7.1(j) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(c)7.1(f) and at prior to the time of the such termination of this Agreement an Acquisition Proposal has been received by WellsfordHorizon or any Horizon Subsidiary, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford thereafter, Horizon or any Wellsford Horizon Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not any such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Horizon and Horizon Partnership shall pay the Break-Up Fee and Break-Up Expenses to Prime Partnership. If prior to the Horizon Shareholders Meeting the Board of Directors of Horizon shall have withdrawn or modified in any manner adverse to Prime its approval or recommendation of the Mergers or this Agreement and, within twelve (12) months after termination of this Agreement, Horizon or Horizon Partnership enters into any written Acquisition Proposal which is subsequently consummated (whether or not any Acquisition Proposal had been received prior to the time of the termination of this Agreement), then Horizon and Horizon Partnership shall pay the Break-Up Fee to EQRPrime Partnership. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR Prime and Prime Partnership as a result of the failure of the Merger Mergers to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the circumstances. The Break-Up Fee. The Break- Up Fee shall be paid by Wellsford Horizon and Horizon Partnership to EQRPrime Partnership, or the Break-Up Expenses shall be paid by Wellsford Horizon and Horizon Partnership to EQR Prime Partnership or EQR Prime Partnership to Wellsford Horizon Partnership (as applicable), in immediately available funds within fifteen (15) calendar days after the date the event giving rise to the obligation to make such payment occurredoccurred (except as otherwise provided in Section 7.1(h)). As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus Break-Up Expenses 20,000,000 (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR Prime Partnership without causing it Prime to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by independent accountants to Prime, and (B) in the event Prime receives a letter from outside counsel (the "Break-Up Fee Tax Opinion") indicating that Prime has received a ruling from the IRS holding that Prime Partnership's receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income of Prime within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") or that the receipt by Prime Partnership of the remaining balance of the Base Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount payable under clause (A) above. Horizon's and Horizon Partnership's obligation to pay any unpaid portion of the Break-Up Fee shall terminate three years from the date of this Agreement. In the event that Prime Partnership is not able to receive the full Base Amount, Horizon and Horizon Partnership shall place the unpaid amount in escrow and shall not release any portion thereof to Prime Partnership unless and until Horizon receives either one of the following: (i) a letter from Prime's independent accountants indicating the maximum amount that can be paid at that time to Prime Partnership without causing Prime to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in either of which events Horizon and Horizon Partnership shall pay to Prime Partnership the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in (i) above. The "Break-Up Expenses" payable to Prime Partnership or Horizon Partnership, as the case may be (the "Recipient"), shall be an amount equal to the lesser of (i) $4,500,000, (ii) the Recipient's out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, all attorneys', accountants' and investment bankers' fees and expenses) or (iii) the sum of (A) the maximum amount that can be paid to the Recipient without causing Prime or Horizon, as the case may be, to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to the Prime or Horizon, as the case may be, and (B) in the event Prime or Horizon, as the case may be, receives a Break-Up Fee Tax Opinion indicating that it has received a ruling from the IRS holding that the Recipient's receipt of the Break-Up Expenses would either constitute Qualifying Income or would be excluded from gross income of Prime or Horizon, as the case may be, within the meaning of the REIT Requirements or that receipt by the Recipient of the remaining balance of the Break-Up Expenses following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Break-Up Expenses less the amount payable under clause (A) above. The obligation of Prime and Prime Partnership or Horizon and Horizon Partnership, as applicable ("Payor"), to pay any unpaid portion of the Break-Up Expenses shall terminate three years from the date of this Agreement. In the event that the Recipient is not able to receive the full Break-Up Expenses, the Payor shall place the unpaid amount in escrow and shall not release any portion thereof to the Recipient unless and until the Payor receives either one of the following: (i) a letter from the independent accountants of Prime or Horizon, as the case may be, indicating the maximum amount that can be paid at that time to the Recipient without causing it to fail to meet the REIT Requirements or (ii) a Break-Up Expense Tax Opinion, in either of which events the Payor shall pay to the Recipient the lesser of the unpaid Break-Up Expenses or the maximum amount stated in the letter referred to in (i) above.

Certain Fees and Expenses. If this Agreement shall be terminated (i) ------------------------- pursuant to Section 7.1(b), 7.1(h) or 7.1(i), then Wellsford will Prentiss and Prentiss Partnership thereupon shall pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) Mack-Cali Partnership a fee equal to the Break-Up Fee (as defined below), and (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford will Prentiss and Prentiss Partnership shall pay EQR to Mack-Cali Partnership (provided Wellsford that Prentiss was not then entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will Mack-Cali and Mack-Cali Partnership shall pay Wellsford Prentiss Partnership (provided EQR that Mack-Cali was not then entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), ) an amount equal to the Break-Up ExpensesFee. If the Merger is not consummated (other than due to the termination of this Agreement shall be terminated pursuant to Section 7.1(a7.1(d) (if primarily resulting from any action or inaction of Prentiss, Prentiss Partnership or any Prentiss Subsidiary or the Prentiss Non-controlled Subsidiary), 7.1(g7.1(e) or 7.1(j) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(c)7.1(f) and at prior to the time of the such termination of this Agreement an a Prentiss Acquisition Proposal has been received by WellsfordPrentiss or any Prentiss Subsidiary, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford thereafter, Prentiss or any Wellsford Prentiss Subsidiary enters into any written Prentiss Acquisition Proposal which is subsequently consummated (whether or not any such Prentiss Acquisition Proposal is the same Prentiss Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Prentiss and Prentiss Partnership shall pay the Break-Up Fee to EQRMack-Cali Partnership. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR Mack-Cali and Mack-Cali Partnership or Prentiss or Prentiss Partnership (as applicable) as a result of the failure of the Merger Mergers to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the circumstances. The Break-Up Fee. The Break- Up Fee shall be paid by Wellsford Prentiss and Prentiss Partnership to EQRMack-Cali Partnership or Mack-Cali and Mack-Cali Partnership to Prentiss Partnership (as applicable), or the Break-Up Expenses shall be paid by Wellsford Prentiss and Prentiss Partnership to EQR Mack-Cali Partnership or EQR Mack-Cali and Mack-Cali Partnership to Wellsford Prentiss Partnership (as applicable), in immediately available funds within fifteen two (152) business days after the date the event giving rise to the obligation to make such payment occurredoccurred (except as otherwise provided in Section 7.1(h) or 7.1(i)). Prentiss acknowledges that the agreements contained in this Section 7.2 are integral parts of this Agreement; accordingly, if Prentiss and Prentiss Partnership fail to promptly pay the Break-Up Fee or Break-Up Expenses due pursuant to this Section 7.2 and, in order to obtain payment, Mack-Cali commences a suit which results in a judgment against Prentiss or Prentiss Partnership for any amounts owed pursuant to this Section 7.2, Prentiss and Prentiss Partnership shall pay to Mack-Cali its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amount owed at the rate on six-month U.S. Treasury obligations in effect on the date such payment was required to be made plus 300 basis points. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus 30,000,000 less Break-Up Expenses paid or payable under this Section 7.2 (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR Mack-Cali Partnership or Prentiss Partnership (as applicable) without causing it Mack-Cali or Prentiss (as applicable) to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c) (3)(A)-(I) of the Code ("Qualifying Income"), as determined by independent accountants to Mack-Cali, and (B) in the event Mack- Cali or Prentiss (as applicable) receives a letter from outside counsel (the "Break-Up Fee Tax Opinion") indicating that Mack-Cali or Prentiss (as applicable) has received a ruling from the IRS holding that Mack-Cali Partnership's or Prentiss Partnership's (as applicable) receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income of Mack-Cali or Prentiss (as applicable) within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") or that the receipt by Mack-Cali Partnership or Prentiss Partnership (as applicable) of the remaining balance of the Base Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount paid under clause (A) above. Prentiss' and Prentiss Partnership's or Mack-Cali or Mack-Cali Partnership's (as applicable) obligation to pay any unpaid portion of the Break-Up Fee shall terminate three years from the date of this Agreement. In the event that Mack-Cali Partnership or Prentiss Partnership (as applicable) is not able to receive the full Base Amount, Prentiss and Prentiss Partnership or Mack-Cali and Mack-Cali Partnership (as applicable) shall place the unpaid amount in escrow and shall not release any portion thereof to Mack-Cali Partnership or Prentiss Partnership (as applicable) unless and until Mack-Cali or Prentiss (as applicable) receives either one of the following: (i) a letter from Mack-Cali's or Prentiss'(as applicable) independent accountants indicating the maximum amount that can be paid at that time to Mack- Cali Partnership or Prentiss Partnership (as applicable) without causing Mack- Cali or Prentiss (as applicable) to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in either of which events Prentiss and Prentiss Partnership shall pay to Mack-Cali Partnership or Mack-Cali and Mack-Cali Partnership shall pay to Prentiss Partnership the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in (i) above. The "Break-Up Expenses" payable to Mack-Cali Partnership or Prentiss Partnership, as the case may be (the "Recipient"), shall be an amount equal to the lesser of (i) $5,000,000, (ii) the Recipient's out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, all attorneys', accountants' and investment bankers' fees and expenses) or (iii) the sum of (A) the maximum amount that can be paid to the Recipient without causing Mack-Cali or Prentiss, as the case may be, to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to Mack-Cali or Prentiss, as the case may be, and (B) in the event Mack-Cali or Prentiss, as the case may be, receives a letter from outside counsel (a "Break-Up Expense Tax Opinion") indicating that it has received a ruling from the IRS holding that the Recipient's receipt of the Break-Up Expenses would either constitute Qualifying Income or would be excluded from gross income of Mack-Cali or Prentiss, as the case may be, within the meaning of the REIT Requirements or that receipt by the Recipient of the remaining balance of the Break-Up Expenses following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Break-Up Expenses less the amount paid under clause (A) above. The obligation of Mack-Cali and Mack-Cali Partnership or Prentiss and Prentiss Partnership, as applicable ("Payor"), to pay any unpaid portion of the Break-Up Expenses shall terminate three years from the date of this Agreement. In the event that the Recipient is not able to receive the full Break-Up Expenses, the Payor shall place the unpaid amount in escrow and shall not release any portion thereof to the Recipient unless and until the Payor receives either one of the following: (i) a letter from the independent accountants of Mack-Cali or Prentiss, as the case may be, indicating the maximum amount that can be paid at that time to the Recipient without causing it to fail to meet the REIT Requirements or (ii) a Break-Up Expense Tax Opinion, in either of which events the Payor shall pay to the Recipient the lesser of the unpaid Break-Up Expenses or the maximum amount stated in the letter referred to in (i) above.

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(hclause (viii) or 7.1(i)(ix) of Section 7.1, then Wellsford Merry Land will pay EQR Cornerstone (provided Wellsford Merry Land was not entitled to terminate this Agreement pursuant to clause (iii) of Section 7.1(c) 7.1 at the time of such termination) a fee equal to the Break-Up Fee (as defined below), or (ii) pursuant to Section 7.1(bclause (ii) or 7.1(f)(vi) of Section 7.1, then Wellsford Merry Land will pay EQR Cornerstone (provided Wellsford Merry Land was not entitled to terminate this Agreement pursuant to clause (iii) of Section 7.1(c) 7.1 at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to clause (iii) of Section 7.1(c) or 7.1(g)7.1, then EQR Cornerstone will pay Wellsford Merry Land (provided EQR Cornerstone was not entitled to terminate this Agreement pursuant to clause (ii) of Section 7.1(b) 7.1 at the time of such termination), an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(gclauses (i) or 7.1(j(iv) of Section 7.1, by Merry Land pursuant to clause (iii) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement (vii) of Section 7.1, or by Cornerstone pursuant to clause (v) of Section 7.1(c)) 7.1, and at the time of the termination of this Agreement an Acquisition Proposal has been received by WellsfordMerry Land (whether or not such Acquisition Proposal shall have been rejected or shall have been withdrawn), and either prior to the termination of this Agreement or within twelve (12) 12 months thereafter Wellsford Merry Land or any Wellsford Merry Land Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Merry Land shall pay the Break-Up Fee to EQRCornerstone. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR Cornerstone as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the Break-Up Fee. The Break- Up Fee shall be paid by Wellsford to EQR, or the Break-Up Expenses shall be paid by Wellsford to EQR or EQR to Wellsford (as applicable), in immediately available funds within fifteen (15) days after the date the event giving rise to the obligation to make such payment occurred. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus Break-Up Expenses (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describedthe

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(b), 7.1(h) or 7.1(i), then Wellsford will Prentiss and Prentiss Partnership thereupon shall pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) Mack-Cali Partnership a fee equal to the Break-Up Fee (as defined below), and (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford will Prentiss and Prentiss Partnership shall pay EQR to Mack-Cali Partnership (provided Wellsford that Prentiss was not then entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will Mack-Cali and Mack-Cali Partnership shall pay Wellsford Prentiss Partnership (provided EQR that Mack-Cali was not then entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), ) an amount equal to the Break-Up ExpensesFee. If the Merger is not consummated (other than due to the termination of this Agreement shall be terminated pursuant to Section 7.1(a7.1(d) (if primarily resulting from any action or inaction of Prentiss, Prentiss Partnership or any Prentiss Subsidiary or the Prentiss Non-controlled Subsidiary), 7.1(g7.1(e) or 7.1(j) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(c)7.1(f) and at prior to the time of the such termination of this Agreement an a Prentiss Acquisition Proposal has been received by WellsfordPrentiss or any Prentiss Subsidiary, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford thereafter, Prentiss or any Wellsford Prentiss Subsidiary enters into any written Prentiss Acquisition Proposal which is subsequently consummated (whether or not any such Prentiss Acquisition Proposal is the same Prentiss Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Prentiss and Prentiss Partnership shall pay the Break-Up Fee to EQRMack-Cali Partnership. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR Mack-Cali and Mack-Cali Partnership or Prentiss or Prentiss Partnership (as applicable) as a result of the failure of the Merger Mergers to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the circumstances. The Break-Up Fee. The Break- Up Fee shall be paid by Wellsford Prentiss and Prentiss Partnership to EQRMack-Cali Partnership or Mack-Cali and Mack-Cali Partnership to Prentiss Partnership (as applicable), or the Break-Up Expenses shall be paid by Wellsford Prentiss and Prentiss Partnership to EQR Mack-Cali Partnership or EQR Mack-Cali and Mack-Cali Partnership to Wellsford Prentiss Partnership (as applicable), in immediately available funds within fifteen two (152) business days after the date the event giving rise to the obligation to make such payment occurredoccurred (except as otherwise provided in Section 7.1(h) or 7.1(i)). Prentiss acknowledges that the agreements contained in this Section 7.2 are integral parts of this Agreement; accordingly, if Prentiss and Prentiss Partnership fail to promptly pay the Break-Up Fee or Break-Up Expenses due pursuant to this Section 7.2 and, in order to obtain payment, Mack-Cali commences a suit which results in a judgment against Prentiss or Prentiss Partnership for any amounts owed pursuant to this Section 7.2, Prentiss and Prentiss Partnership shall pay to Mack-Cali its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amount owed at the rate on six-month U.S. Treasury obligations in effect on the date such payment was required to be made plus 300 basis points. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus 30,000,000 less Break-Up Expenses paid or payable under this Section 7.2 (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR Mack-Cali Partnership or Prentiss Partnership (as applicable) without causing it Mack-Cali or Prentiss (as applicable) to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c) (3)(A)-(I) of the Code ("Qualifying Income"), as determined by independent accountants to Mack-Cali, and (B) in the event Mack-Cali or Prentiss (as applicable) receives a letter from outside counsel (the "Break-Up Fee Tax Opinion") indicating that Mack-Cali or Prentiss (as applicable) has received a ruling from the IRS holding that Mack-Cali Partnership's or Prentiss Partnership's (as applicable) receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income of Mack-Cali or Prentiss (as applicable) within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") or that the receipt by Mack-Cali Partnership or Prentiss Partnership (as applicable) of the remaining balance of the Base Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount paid under clause (A) above. Prentiss' and Prentiss Partnership's or Mack-Cali or Mack-Cali Partnership's (as applicable) obligation to pay any unpaid portion of the Break-Up Fee shall terminate three years from the date of this Agreement. In the event that Mack-Cali Partnership or Prentiss Partnership (as applicable) is not able to receive the full Base Amount, Prentiss and Prentiss Partnership or Mack-Cali and Mack-Cali Partnership (as applicable) shall place the unpaid amount in escrow and shall not release any portion thereof to Mack-Cali Partnership or Prentiss Partnership (as applicable) unless and until Mack-Cali or Prentiss (as applicable) receives either one of the following: (i) a letter from Mack-Cali's or Prentiss'(as applicable) independent accountants indicating the maximum amount that can be paid at that time to Mack-Cali Partnership or Prentiss Partnership (as applicable) without causing Mack-Cali or Prentiss (as applicable) to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in either of which events Prentiss and Prentiss Partnership shall pay to Mack-Cali Partnership or Mack-Cali and Mack-Cali Partnership shall pay to Prentiss Partnership the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in (i) above. The "Break-Up Expenses" payable to Mack-Cali Partnership or Prentiss Partnership, as the case may be (the "Recipient"), shall be an amount equal to the lesser of (i) $5,000,000, (ii) the Recipient's out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, all attorneys', accountants' and investment bankers' fees and expenses) or (iii) the sum of (A) the maximum amount that can be paid to the Recipient without causing Mack-Cali or Prentiss, as the case may be, to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to Mack-Cali or Prentiss, as the case may be, and (B) in the event Mack-Cali or Prentiss, as the case may be, receives a letter from outside counsel (a "Break-Up Expense Tax Opinion") indicating that it has received a ruling from the IRS holding that the Recipient's receipt of the Break-Up Expenses would either constitute Qualifying Income or would be excluded from gross income of Mack-Cali or Prentiss, as the case may be, within the meaning of the REIT Requirements or that receipt by the Recipient of the remaining balance of the Break-Up Expenses following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Break-Up Expenses less the amount paid under clause (A) above. The obligation of Mack-Cali and Mack-Cali Partnership or Prentiss and Prentiss Partnership, as applicable ("Payor"), to pay any unpaid portion of the Break-Up Expenses shall terminate three years from the date of this Agreement. In the event that the Recipient is not able to receive the full Break-Up Expenses, the Payor shall place the unpaid amount in escrow and shall not release any portion thereof to the Recipient unless and until the Payor receives either one of the following: (i) a letter from the independent accountants of Mack-Cali or Prentiss, as the case may be, indicating the maximum amount that can be paid at that time to the Recipient without causing it to fail to meet the REIT Requirements or (ii) a Break-Up Expense Tax Opinion, in either of which events the Payor shall pay to the Recipient the lesser of the unpaid Break-Up Expenses or the maximum amount stated in the letter referred to in (i) above.

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h) or 7.1(i), then Wellsford will Horizon and Horizon Partnership thereupon shall pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) Prime Partnership a fee equal to the Break-Up Fee (as defined below) and Break-Up Expenses (as defined below), and (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford will Horizon and Horizon Partnership shall pay EQR to Prime Partnership (provided Wellsford that Horizon was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will Prime and Prime Partnership shall pay Wellsford Horizon Partnership (provided EQR that Prime was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), ) an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement shall be terminated pursuant to Section 7.1(a7.1(b), 7.1(g7.1(d) (if primarily resulting from any action or inaction of Horizon or any Horizon Subsidiary), 7.1(e) or 7.1(j) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(c)7.1(f) and at prior to the time of the such termination of this Agreement an Acquisition Proposal has been received by WellsfordHorizon or any Horizon Subsidiary, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford thereafter, Horizon or any Wellsford Horizon Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not any such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Horizon and Horizon Partnership shall pay the Break-Up Fee and Break-Up Expenses to Prime Partnership. If prior to the Horizon Shareholders Meeting the Board of Directors of Horizon shall have withdrawn or modified in any manner adverse to Prime its approval or recommendation of the Mergers or this Agreement and, within twelve (12) months after termination of this Agreement, Horizon or Horizon Partnership enters into any written Acquisition Proposal which is subsequently consummated (whether or not any Acquisition Proposal had been received prior to the time of the termination of this Agreement), then Horizon and Horizon Partnership shall pay the Break-Up Fee to EQRPrime Partnership. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR Prime and Prime Partnership as a result of the failure of the Merger Mergers to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the circumstances. The Break-Up Fee. The Break- Up Fee shall be paid by Wellsford Horizon and Horizon Partnership to EQRPrime Partnership, or the Break-Up Expenses shall be paid by Wellsford Horizon and Horizon Partnership to EQR Prime Partnership or EQR Prime Partnership to Wellsford Horizon Partnership (as applicable), in immediately available funds within fifteen (15) calendar days after the date the event giving rise to the obligation to make such payment occurredoccurred (except as otherwise provided in Section 7.1(h)). As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus Break-Up Expenses 20,000,000 (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR Prime Partnership without causing it Prime to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by independent accountants to Prime, and (B) in the event Prime receives a letter from outside counsel (the "Break-Up Fee Tax Opinion") indicating that Prime has received a ruling from the IRS holding that Prime Partnership's receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income of Prime within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") or that the receipt by Prime Partnership of the remaining balance of the Base Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount payable under clause (A) above. Horizon's and Horizon Partnership's obligation to pay any unpaid portion of the Break-Up Fee shall terminate three years from the date of this Agreement. In the event that Prime Partnership is not able to receive the full Base Amount, Horizon and Horizon Partnership shall place the unpaid amount in escrow and shall not release any portion thereof to Prime Partnership unless and until Horizon receives either one of the following: (i) a letter from Prime's independent accountants indicating the maximum amount that can be paid at that time to Prime Partnership without causing Prime to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in either of which events Horizon and Horizon Partnership shall pay to Prime Partnership the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in (i) above. The "Break-Up Expenses" payable to Prime Partnership or Horizon Partnership, as the case may be (the "Recipient"), shall be an amount equal to the lesser of (i) $3,000,000, (ii) the Recipient's out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, all attorneys', accountants' and investment bankers' fees and expenses) or (iii) the sum of (A) the maximum amount that can be paid to the Recipient without causing Prime or Horizon, as the case may be, to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to the Prime or Horizon, as the case may be, and (B) in the event Prime or Horizon, as the case may be, receives a Break-Up Fee Tax Opinion indicating that it has received a ruling from the IRS holding that the Recipient's receipt of the Break-Up Expenses would either constitute Qualifying Income or would be excluded from gross income of Prime or Horizon, as the case may be, within the meaning of the REIT Requirements or that receipt by the Recipient of the remaining balance of the Break-Up Expenses following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Break-Up Expenses less the amount payable under clause (A) above. The obligation of Prime and Prime Partnership or Horizon and Horizon Partnership, as applicable ("Payor"), to pay any unpaid portion of the Break-Up Expenses shall terminate three years from the date of this Agreement. In the event that the Recipient is not able to receive the full Break-Up Expenses, the Payor shall place the unpaid amount in escrow and shall not release any portion thereof to the Recipient unless and until the Payor receives either one of the following: (i) a letter from the independent accountants of Prime or Horizon, as the case may be, indicating the maximum amount that can be paid at that time to the Recipient without causing it to fail to meet the REIT Requirements or (ii) a Break-Up Expense Tax Opinion, in either of which events the Payor shall pay to the Recipient the lesser of the unpaid Break-Up Expenses or the maximum amount stated in the letter referred to in (i) above.

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h7.1(g) or 7.1(i7.1(h), then Wellsford the Company will pay EQR Acquiror (provided Wellsford the Company was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) a fee equal to the Break-Up Fee (as defined below), or (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford the Company will pay EQR Acquiror (provided Wellsford the Company was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR Acquiror will pay Wellsford the Company (provided EQR Acquiror was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), an amount equal to the Break-Up Expenses. If this Agreement shall be terminated pursuant to Section 7.1(f), then the Company shall pay Acquiror (provided the Company was not entitled to terminate this Agreement pursuant to Section 7.1(c)) an amount equal to the Break-Up Expenses, provided the Closing Price of the Acquiror Common Shares was equal to or greater than $26.50. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(g7.1(c), 7.1(d), 7.1(e) or 7.1(j) 7.1(f), or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement by Acquiror pursuant to Section 7.1(c7.1(e)) ), and at the time of the termination of this Agreement an Acquisition Proposal has been received by Wellsfordthe Company, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford the Company or any Wellsford Company Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford the Company shall pay the Break-Up Fee to EQR. The payment of the Break Up Fee shall be compensation and liquidated damages for the loss suffered by EQR as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances and neither party shall have Acquiror less any other liability to the other after the payment of the Break-Up Fee. The Break- Up Fee shall be paid by Wellsford to EQR, or the Break-Up Expenses shall be previously paid to Acquiror by Wellsford to EQR or EQR to Wellsford (as applicable), in immediately available funds within fifteen (15) days after the date the event giving rise to the obligation to make such payment occurred. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser reason of (i) $14,000,000 plus Break-Up Expenses (the "Base Amount") and clause (ii) the sum of (A) the maximum amount that can be paid to EQR without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment first sentence of such amount did not constitute income describedSection 7.2. The

Certain Fees and Expenses. aa If this Agreement shall be terminated (i) pursuant to Section 7.1(hclause (viii) or 7.1(i)(ix) of Section 7.1, then Wellsford Merry Land will pay EQR Cornerstone (provided Wellsford Merry Land was not entitled to terminate this Agreement pursuant to clause (iii) of Section 7.1(c) 7.1 at the time of such termination) a fee equal to the Break-Up Fee (as defined below), or (ii) pursuant to Section 7.1(bclause (ii) or 7.1(f)(vi) of Section 7.1, then Wellsford Merry Land will pay EQR Cornerstone (provided Wellsford Merry Land was not entitled to terminate this Agreement pursuant to clause (iii) of Section 7.1(c) 7.1 at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to clause (iii) of Section 7.1(c) or 7.1(g)7.1, then EQR Cornerstone will pay Wellsford Merry Land (provided EQR Cornerstone was not entitled to terminate this Agreement pursuant to clause (ii) of Section 7.1(b) 7.1 at the time of such termination), an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(gclauses (i) or 7.1(j(iv) of Section 7.1, by Merry Land pursuant to clause (iii) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement (vii) of Section 7.1, or by Cornerstone pursuant to clause (v) of Section 7.1(c)) 7.1, and at the time of the termination of this Agreement an Acquisition Proposal has been received by WellsfordMerry Land (whether or not such Acquisition Proposal shall have been rejected or shall have been withdrawn), and either prior to the termination of this Agreement or within twelve (12) 12 months thereafter Wellsford Merry Land or any Wellsford Merry Land Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Merry Land shall pay the Break-Up Fee to EQRCornerstone. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR Cornerstone as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the Break-Up Fee. The Break- Break-Up Fee shall be paid by Wellsford Merry Land to EQRCornerstone, or the Break-Up Expenses shall be paid by Wellsford Merry Land to EQR Cornerstone or EQR Cornerstone to Wellsford Merry Land (as applicable), in immediately available funds within fifteen (15) 15 days after the date of the event giving rise to the obligation to make such payment occurred. As used in this Agreement, "“Break-Up Fee" ” shall be an amount equal to the lesser of (i) $14,000,000 1,250,000 plus Break-Up Expenses (the "“Base Amount"”) and (ii) the sum of (A) the maximum amount that can be paid to EQR Cornerstone without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code (“Qualifying Income”), as determined by independent accountants to Cornerstone, and (B) in the event Cornerstone receives a letter from outside counsel (the “Break-Up Fee Tax Opinion”) indicating that Cornerstone has received a ruling from the IRS holding that Cornerstone’s receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (the “REIT Requirements”) or that the receipt by Cornerstone of the excess of the Base Amount over the amount payable in clause (A) following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount payable under clause (A) above. In the event that Cornerstone is not able to receive the full Base Amount, Merry Land shall place the unpaid amount in escrow and shall not release any portion thereof to Cornerstone unless and until Merry Land receives any one or combination of the following: (i) a letter from Cornerstone’s independent accountants indicating the maximum amount that can be paid at that time to Cornerstone without causing Cornerstone to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in which event Merry Land shall pay to Cornerstone the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in (i) above. Merry Land’s obligation to pay any unpaid portion of the Break-Up Fee shall terminate three years from the date of this Agreement, provided that Merry Land’s obligation to pay any amounts under this Section 7.2 shall have accrued within the applicable time period set forth in this Section 7.2. The “Break-Up Expenses” payable to Cornerstone or Merry Land, as the case may be (the “Recipient”), shall be an amount equal to the lesser of (i) $750,000, (ii) the Recipient’s out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, all attorneys’, accountants’ and investment bankers’ fees and expenses) (the lessor of (i) or (ii) being referred to as the “Expense Fee”) and (iii) in the case of an amount payable to Cornerstone, the sum of (A) the maximum amount that can be paid to Cornerstone without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to Cornerstone, and (B) in the event Cornerstone receives a Break-Up Fee Tax Opinion indicating that Cornerstone has received a ruling from the IRS holding that Cornerstone’s receipt of the Expense Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of the REIT Requirements or that receipt by Cornerstone of the excess of the Expense Fee over the amount payable under clause (A) following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Expense Fee less the amount payable under clause (A) above. In the event that Cornerstone is not able to receive the full Expense Fee, Merry Land shall place the unpaid amount in escrow and shall not release any portion thereof to Cornerstone unless and until Merry Land receives any one or combination of the following: (i) a letter from Cornerstone’s independent accountants indicating the maximum amount that can be paid at that time to Cornerstone without causing Cornerstone to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in which event Merry Land shall pay to Cornerstone the lesser of the unpaid Expense Fee or the maximum amount stated in the letter referred to in (i) above. The obligation of Cornerstone or Merry Land, as applicable (“Payor”), to pay any unpaid portion of the Break Up Expenses shall terminate three years from the date of this Agreement.

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h), 7.1(i)(1) or 7.1(i7.1(i)(3), then Wellsford will Spieker and Spieker Partnership theretofore or thereupon shall pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) EOP Partnership a fee equal to the Break-Up Fee (as defined belowherein), and (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford will Spieker and Spieker Partnership shall pay EQR to EOP Partnership (provided Wellsford that Spieker was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined belowherein). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will Equity Office and EOP Partnership shall pay Wellsford to Spieker Partnership (provided EQR that Equity Office was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), ) an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement shall be terminated pursuant to Section 7.1(a7.1(b), 7.1(g7.1(d) (if primarily resulting from any action or 7.1(j) inaction of Spieker, Spieker Partnership or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(cany Spieker Subsidiary or Spieker TRS), 7.1(e), 7.1(f), 7.1(i)(2) and at prior to the time of the such termination of this Agreement an Acquisition Proposal has been received by WellsfordSpieker or Spieker Partnership, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford thereafter, Spieker or any Wellsford Subsidiary Spieker Partnership enters into any written agreement to consummate a transaction or series of transactions which, had such agreement been proposed or negotiated during the term of this Agreement, would have constituted an Acquisition Proposal pursuant to Section 4.3 (each, a “Spieker Acquisition Agreement”), which is subsequently consummated (whether or not such any Spieker Acquisition Proposal is Agreement relates to the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Spieker and Spieker Partnership shall pay the Break-Up Fee to EQREOP Partnership. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR Equity Office and EOP Partnership as a result of the failure of the Merger Mergers to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the circumstances. The Break-Up Fee. The Break- Up Fee shall be paid by Wellsford Spieker and Spieker Partnership to EQREOP Partnership, or the Break-Up Expenses shall be paid by Wellsford Spieker and Spieker Partnership to EQR EOP Partnership or EQR EOP Partnership to Wellsford Spieker Partnership (as applicable), in immediately available funds within fifteen two (152) business days after the date the event giving rise to the obligation to make such payment occurredoccurred (except as otherwise provided in Section 7.1(h) or 7.1(i)). Spieker acknowledges that the agreements contained in this Section 7.2 are integral parts of this Agreement; accordingly, if Spieker and Spieker Partnership fail to promptly pay the Break-Up Fee or Break-Up Expenses due pursuant to this Section 7.2 and, in order to obtain payment, Equity Office commences a suit which results in a judgment against Spieker or Spieker Partnership for any amounts owed pursuant to this Section 7.2, Spieker and Spieker Partnership shall pay to Equity Office its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on the amount owed at the rate on six-month U.S. Treasury obligations in effect on the date such payment was required to be made plus 300 basis points. As used in this Agreement, "“Break-Up Fee" ” shall be an amount equal to the lesser of (i) $14,000,000 plus 160,000,000 less Break-Up Expenses paid or payable under this Section 7.2 (the "“Base Amount"”) and (ii) the sum of (A) the maximum amount that can be paid to EQR EOP Partnership without causing it Equity Office to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code (“Qualifying Income”), as determined by independent accountants to Equity Office, and (B) in the event Equity Office receives a letter from outside counsel (the “Break-Up Fee Tax Opinion”) indicating that Equity Office has received a ruling from the IRS holding that EOP Partnership’s receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income of Equity Office within the meaning of Sections 856(c)(2) and (3) of the Code (the “REIT Requirements”) or that the receipt by EOP Partnership of the remaining balance of the Base Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount payable under clause (A) above. Spieker’s and Spieker Partnership’s obligation to pay any unpaid portion of the Break-Up Fee shall terminate three years from the date of this Agreement. In the event that EOP Partnership is not able to receive the full Base Amount, Spieker and Spieker Partnership shall place the unpaid amount in escrow and shall not release any portion thereof to EOP Partnership unless and until Spieker receives one or both of the following: (i) a letter from Equity Office’s independent accountants indicating the maximum amount that can be paid at that time to EOP Partnership without causing Equity Office to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in either of which events Spieker and Spieker Partnership shall pay to EOP Partnership the unpaid Base Amount or, if less and either there is no Break-up Fee Tax Opinion or the ruling described in the Break-Up Fee Tax Opinion does not hold that the Base Amount either would constitute Qualifying Income or would be excluded from gross income for purposes of the REIT Requirements, the maximum amount stated in the letter referred to in (i) above. Subject to satisfaction of the conditions set forth in the immediately preceding sentence, there is no limitation on the number of distributions that can be made from the escrow prior to the third anniversary of the date of this Agreement. The “Break-Up Expenses” payable to EOP Partnership or Spieker Partnership, as the case may be (the “Recipient”), shall be an amount equal to the lesser of (i) $7,500,000 or (ii) the Recipient’s out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, all attorneys’, accountants’ and investment bankers’ fees and expenses). If the Break-Up Expenses payable to the Recipient exceed the maximum amount that can be paid to the Recipient without causing the Recipient to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to the Recipient (the “Maximum Amount”), the amount initially payable to the Recipient shall be limited to the Maximum Amount. If, however, within the three-year period commencing on the date of this Agreement, the Recipient receives a Break-Up Fee Tax Opinion indicating that it has received a ruling from the IRS holding that the Recipient’s receipt of the Break-Up Expenses would either constitute Qualifying Income or would be excluded from gross income of the Recipient within the meaning of the REIT Requirements or that receipt by the Recipient of the balance of the Break-Up Expenses above the Maximum Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Recipient shall be entitled to have payable to it the full amount of the Break-Up Expenses. The obligation of Equity Office and EOP Partnership or Spieker and Spieker Partnership, as applicable (“Payor”), to pay any unpaid portion of the Break-Up Expenses shall terminate three years from the date of this Agreement. In the event that the Recipient is not able to receive the full Break-Up Expenses, the Payor shall place the unpaid amount in escrow and shall not release any portion thereof to the Recipient unless and until the Payor receives either one or both of the following: (i) a letter from the independent accountants of Equity Office or Spieker, as the case may be, indicating the maximum amount that can be paid at that time to the Recipient without causing it to fail to meet the REIT Requirements or (ii) a Break-Up Expense Tax Opinion, in either of which events the Payor shall pay to the Recipient the unpaid Break-Up Expenses or, if less and either there is no Break-Up Expense Tax Opinion or the ruling described in the Break-Up Expense Tax Opinion does not hold that the Base Amount either would constitute Qualifying Income or would be excluded from gross income for purposes of the REIT Requirements, the maximum amount stated in the letter referred to in (i) above. Subject to satisfaction of the conditions set forth in the immediately preceding sentence, there is no limitation on the number of distributions that can be made from the escrow prior to the third anniversary of the date of this Agreement.

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h) or 7.1(i), then Wellsford Lexford will pay EQR (provided Wellsford Lexford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) a fee equal to the Break-Up Expense Fee (as defined below), or (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford Lexford will pay EQR (provided Wellsford Lexford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses Expense Fee (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will pay Wellsford Lexford (provided EQR was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), an amount equal to the Break-Up ExpensesExpense Fee. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(g7.1(c) or 7.1(j7.1(g), by EQR pursuant to 7.1(e) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement by Lexford after March 31, 2000 pursuant to Section 7.1(c7.1(e)) ), and at the time of the termination of this Agreement an Acquisition Proposal has been received by WellsfordLexford, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford Lexford or any Wellsford Lexford Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Lexford shall pay the Break-Up Fee to EQR. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the Break-Up Fee. The Break- Break-Up Fee shall be paid by Wellsford Lexford to EQR, or the Break-Up Expenses Expense Fee shall be paid by Wellsford Lexford to EQR or EQR to Wellsford Lexford (as applicable), in immediately available funds within fifteen (15) days after the date of the event giving rise to the obligation to make such payment occurred. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus Break-Up Expenses (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describedof

Certain Fees and Expenses. (a) If this Agreement shall be terminated (i) pursuant to Section 7.1(h) or 7.1(i), then Wellsford Grove will pay EQR ERP (provided Wellsford Grove was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) a fee equal to the Break-Up Fee (as defined below), or (ii) pursuant to Section 7.1(b), 7.1(f) or 7.1(f7.1(g), then Wellsford Grove will pay EQR ERP (provided Wellsford Grove was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses Expense Fee (as defined below). If this Agreement shall be terminated by ERP or Grove pursuant to Section 7.1(e) and Grove has not, at the time of such termination, (i) obtained and delivered to ERP the Closing Agreement in satisfaction of both Section 6.2(j) and Section 6.3(g) or (ii) caused to be delivered to ERP the legal opinion referenced in Section 6.2(e), then Grove will pay ERP an amount equal to the Expense Fee. If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR ERP will pay Wellsford Grove (provided EQR ERP was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), an amount equal to the Break-Up ExpensesExpense Fee. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(g7.1(c) or 7.1(j7.1(e) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement (excluding any termination pursuant to Section 7.1(c7.1(e) with respect to which Grove is obligated to pay ERP the Expense Fee)) ), and at the time of the termination of this Agreement an Acquisition Proposal has been received by WellsfordGrove, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford Grove or any Wellsford Grove Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Grove shall pay the Break-Up Fee to EQR. The payment ERP, PROVIDED, HOWEVER, that for purposes of the Break Up Fee this sentence only, (x) "Acquisition Proposal" shall be compensation and liquidated damages not include a sale of Grove Properties to a single purchaser or related group of purchasers for the loss suffered by EQR as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the Break-Up Fee. The Break- Up Fee shall be paid by Wellsford to EQR, or the Break-Up Expenses shall be paid by Wellsford to EQR or EQR to Wellsford Purchase Price (as applicable), in immediately available funds within fifteen (15defined below) days after the date the event giving rise to the obligation to make such payment occurred. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser or in excess of $158.6 million (i) $14,000,000 plus Break-Up Expenses (the an "Base AmountExempt Sale") and (y) ERP shall have a right of first offer for a period of thirty days (but no right of first refusal) with respect to the Grove Properties subject to the Exempt Sale. EQR shall communicate its offer with respect to a proposed Exempt Sale within thirty days of its receipt of notice that (i) Grove desires to sell certain Grove Properties which sale, if consummated, would constitute an Exempt Sale (an "Offer to Sell") or (ii) the sum Grove has received a bona fide offer to purchase certain Grove Properties which sale, if consummated, would constitute an Exempt Sale (an "Offer to Purchase"). Grove shall provide notice to ERP of an Offer to Sell or Offer to Purchase as soon as practicable (A) the maximum amount that can be paid to EQR without causing it to fail to meet the requirements of Sections 856(c)(2) and but in all cases within three (3) days) following its decision to undertake an Offer to Sell or its receipt of an Offer to Purchase, as the Code determined as case may be. In the case of an Offer to Sell, (i) if the payment of Grove does not accept ERP's offer with respect to such amount did not constitute income describedproposed

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h7.1(b), 7.1(g) or 7.1(i7.1(h), then Wellsford Seller will pay EQR Buyer (provided Wellsford if Seller was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) a fee equal to the Seller Break-Up Fee (as defined below), (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford will pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR Buyer will pay Wellsford Seller (provided EQR was Parent and Buyer were not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), an amount ) a fee equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(g) or 7.1(j) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(c)) and at the time of the termination of this Agreement an Acquisition Proposal has been received by Wellsford, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford or any Wellsford Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford shall pay the Buyer Break-Up Fee to EQR(as defined below). The Any payment of the Break Seller Break-Up Fee or the Buyer Break-Up Fee in accordance with this Section 7.2 shall be compensation and liquidated damages for the loss suffered by EQR the recipient as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances circumstances, and neither party shall have any other liability to the other after the payment of the Seller Break-Up Fee or the Buyer Break-Up Fee, as applicable. The Break- Seller Break-Up Fee or the Buyer Break-Up Fee, as applicable, shall be paid by Wellsford to EQR, or the Break-Up Expenses shall be paid by Wellsford to EQR or EQR to Wellsford (as applicable), in immediately available funds within fifteen (15) days after the date the event giving rise to the obligation to make such payment occurred. As used in this Agreement, "Seller Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus Break-Up Expenses 4,500,000 (the "Seller Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR the recipient without causing it Parent or Buyer to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by independent accountants to Parent, and (B) if Parent receives an opinion from outside counsel (the "Seller Break-Up Fee Tax Opinion") indicating that Parent's or Buyer's receipt of the Seller Base Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") or that the receipt by Parent or Buyer of the remaining balance of the Seller Base Amount following the receipt of and in accordance with such opinion would not be deemed constructively received prior thereto, the Seller Base Amount less the amount payable under clause (A) above. As used in this Agreement, "Buyer Break-Up Fee" shall be an amount equal to the lesser of (i) the sum of (x) $4,500,000 plus (y) if the Lend Lease Agreement is terminated because of a breach by Parent or Buyer hereunder and, as a result thereof, Seller is obligated to pay Lend Lease Real Estate Investors, Inc. the fee under Section 7.5 of the Lend Lease Agreement an amount equal to that fee (the "Buyer Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to Seller without causing Seller to fail to meet the requirements of Section 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to Seller, and (B) if Seller receives an opinion from outside counsel (the "Buyer Break-Up Fee Tax Opinion") indicating that Seller's receipt of the Buyer Base Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of the REIT Requirements or that the receipt by Seller of the remaining balance of the Buyer Base Amount following the receipt of and pursuant to such opinion would not be deemed constructively received prior thereto, the Buyer Base Amount less the amount payable under clause (A) above. If the recipient is not able to receive the full Seller Base Amount or the Buyer Base Amount, as applicable, the payor shall place the unpaid amount in escrow and shall not release any portion thereof to the recipient unless and until the payor receives either one of the following: (i) a letter from the recipient's independent accountants indicating the maximum amount that can be paid at that time to the recipient without causing the recipient (or Parent, as applicable) to fail to meet the REIT Requirements or (ii) a Seller Break-Up Fee Tax Opinion or Buyer Break-Up Fee Tax Opinion, as applicable, in either of which events the payor shall pay to the recipient the lesser of the unpaid Seller Base Amount or the Buyer Base Amount, as applicable, or the maximum amount stated therein.

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(hSections 8.1(e) or 7.1(i8.1(f), then Wellsford will the Company thereupon shall pay EQR to the Buyer the Break-Up Fee (as defined below) and (ii) pursuant to Section 8.1(d) or 8.1(g), then the Company shall pay to the Buyer (provided Wellsford that the Company was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) a fee equal to the Break-Up Fee (as defined below), (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford will pay EQR (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c8.1(h) at the time of such termination) an amount equal to the Break-Up Expenses (as defined belowherein). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g8.1(h), then EQR will the Buyer shall pay Wellsford to the Company (provided EQR that the Buyer was not entitled to terminate this Agreement pursuant to Section 7.1(b8.1(g) at the time of such termination), ) an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement shall be terminated pursuant to Section 7.1(aSections 8.1(b) (if primarily resulting from any action or inaction of the Company), 7.1(g8.1(d) or 7.1(j) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(c)8.1(g) and at prior to the time of the such termination of this Agreement an Acquisition Proposal has been received by Wellsfordthe Company, and either prior to the termination of this Agreement or within twelve nine (129) months thereafter Wellsford or any Wellsford Subsidiary thereafter, the Company enters into any written agreement to consummate a transaction or series of transactions which, had such agreement been proposed or negotiated during the term of this Agreement, would have constituted an Acquisition Proposal (each, a "Company Acquisition Agreement"), which is subsequently consummated (whether or not such any Company Acquisition Proposal is Agreement relates to the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford the Company shall pay the Break-Up Fee to EQRthe Buyer upon the consummation thereof. The payment of the Break Break-Up Fee shall be full compensation and liquidated damages for the loss suffered by EQR the Buyer as a result of the failure of the Merger to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the circumstances. The Break-Up Fee. The Break- Up Fee shall be paid by Wellsford the Company to EQRthe Buyer, or the Break-Up Expenses shall be paid by Wellsford the Company to EQR the Buyer or EQR the Buyer to Wellsford the Company (as applicable), in immediately available funds within fifteen two (152) business days - 52 - 60 after the date the event giving rise to the obligation to make such payment occurred. The Company and Buyer each acknowledge that the agreements contained in this Section 8.4 are integral parts of this Agreement; accordingly, if the Company fails to promptly pay the Break-Up Fee or Break-Up Expenses or the Buyer fails promptly to pay Break-up Expenses due pursuant to this Section 8.4 and, in order to obtain payment, the Buyer or the Company commence a suit which results in a judgment against the other for any amounts owed pursuant to this Section 8.4, the losing party shall pay to the prevailing party its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount owed at the applicable judgment rate. Payment of the fees described in Section 8.4 shall not be in lieu of damages incurred in the event of breach of this Agreement. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus 5,000,000 less Break-Up Expenses paid or payable under this Section 8.4 (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR the Buyer without causing it the Buyer to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by independent accountants to the Buyer, and (B) in the event the Buyer receives a letter from outside counsel (the "Break-Up Fee Tax Opinion") indicating that the Buyer has received a ruling from the IRS holding that the Buyer's receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income of the Company within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") or that the receipt by the Buyer of the remaining balance of the Base Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount payable under clause (A) above. The Company's obligation to pay any unpaid portion of the Break-Up Fee shall terminate two years from the date of this Agreement. In the event that the Buyer is not able to receive the full Base Amount, the Company shall place the unpaid amount in escrow and shall not release any portion thereof to the Buyer unless and until the Company receives either one of the following: (i) a letter from the Buyer's independent accountants indicating the maximum amount that can be paid at that time to the Buyer without causing the Buyer to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in either of which events the Company shall pay to the Buyer the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in (i) above.

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h) or 7.1(i), then Wellsford Merry Land will pay EQR (provided Wellsford Merry Land was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) a fee equal to the Break-Up Fee (as defined below), or (ii) pursuant to Section 7.1(b) or 7.1(f), then Wellsford Merry Land will pay EQR (provided Wellsford Merry Land was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below). If this Agreement shall be terminated pursuant to Section 7.1(c) or 7.1(g), then EQR will pay Wellsford Merry Land (provided EQR was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(g7.1(c) or 7.1(j) 7.1(g), or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement by EQR pursuant to Section 7.1(c7.1(e)) , and at the time of the termination of this Agreement an Acquisition Proposal has been received by WellsfordMerry Land, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford Merry Land or any Wellsford Merry Land Subsidiary enters into any written Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Merry Land shall pay the Break-Up Fee to EQR. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the Break-Up Fee. The Break- Break-Up Fee shall be paid by Wellsford Merry Land to EQR, or the Break-Up Expenses shall be paid by Wellsford Merry Land to EQR or EQR to Wellsford Merry Land (as applicable), in immediately available funds within fifteen (15) days after the date of the event giving rise to the obligation to make such payment occurred. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 45,000,000 plus Break-Up Expenses (the "Base Amount") and (ii) the sum of (A) the maximum amount that can be paid to EQR without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by independent accountants to EQR, and (B) in the event EQR receives a letter from outside counsel (the "Break-Up Fee Tax Opinion") indicating that EQR has received a ruling from the IRS holding that EQR's receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") or that the receipt by EQR of the excess of the Base Amount over the amount payable in clause (A) following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount A-40 203 payable under clause (A) above. In the event that EQR is not able to receive the full Base Amount, Merry Land shall place the unpaid amount in escrow and shall not release any portion thereof to EQR unless and until Merry Land receives any one or combination of the following: (i) a letter from EQR's independent accountants indicating the maximum amount that can be paid at that time to EQR without causing EQR to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in which event Merry Land shall pay to EQR the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in (i) above. Merry Land's obligation to pay any unpaid portion of the Break-Up Fee shall terminate three years from the date of this Agreement. The "Break-Up Expenses" payable to EQR or Merry Land, as the case may be (the "Recipient"), shall be an amount equal to the lesser of (i) $5,000,000, (ii) the Recipient's out-of- pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, all attorneys', accountants' and investment bankers' fees and expenses) and (iii) the sum of (A) the maximum amount that can be paid to the Recipient without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to the Recipient, and (B) in the event the Recipient receives a Break-Up Fee Tax Opinion indicating that the Recipient has received a ruling from the IRS holding that the Recipient's receipt of the Expense Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of the REIT Requirements or that receipt by the Recipient of the excess of the Expense Fee over the amount payable under clause (A) following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Expense Fee less the amount payable under clause (A) above. In the event that the Recipient is not able to receive the full Expense Fee, the Payor shall place the unpaid amount in escrow and shall not release any portion thereof to the Recipient unless and until the Payor receives any one or combination of the following: (i) a letter from the Recipient's independent accountants indicating the maximum amount that can be paid at that time to the Recipient without causing the Recipient to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in which event the Payor shall pay to the Recipient the lesser of the unpaid Expense Fee or the maximum amount stated in the letter referred to in (i) above. The obligation of EQR or Merry Land, as applicable ("Payor"), to pay any unpaid portion of the Break Up Expenses shall terminate three years from the date of this Agreement. 7.3

Certain Fees and Expenses. (a) If this Agreement shall be terminated (i) pursuant to Section 7.1(h7.1(c) or 7.1(i7.1(h), then Wellsford FelCor will pay EQR Bristol (provided Wellsford FelCor was not entitled to terminate this Agreement pursuant to Section 7.1(c7.1(b) at the time of such termination) a fee equal to the Break-Up Fee (as defined below), and (ii) pursuant to Section 7.1(b) or 7.1(f7.1(i), then Wellsford Bristol will pay EQR FelCor (provided Wellsford Bristol was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined below)Fee. If this Agreement shall be terminated (i) pursuant to Section 7.1(g), then Bristol will pay FelCor (provided Bristol was not entitled to terminate this Agreement pursuant to Section 7.1(c) or 7.1(gat the time of such termination), an amount equal to the Break-Up Expenses, and (ii) pursuant to Section 7.1(f), then EQR FelCor will pay Wellsford Bristol (provided EQR FelCor was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), an amount equal to the Break-Up Expenses. If Notwithstanding the foregoing, if the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(g7.1(d) or 7.1(j) or EQRBristol's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford FelCor to terminate this Agreement pursuant to Section 7.1(c7.1(b)) and at the time of the termination of this Agreement an Acquisition Proposal has been received by WellsfordFelCor, and either prior to the termination of this Agreement or within twelve (12) 12 months thereafter Wellsford FelCor or any Wellsford FelCor Subsidiary enters into any written agreement providing for an Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford shall FelCor will pay the Break-Up Fee and the Break-Up Expenses to EQRBristol. The If the Merger is not consummated (other than due to the termination of this Agreement pursuant to Section 7.1(a), 7.1(d) or 7.1(j) or FelCor's failure to perform its obligations under this Agreement in such a manner so as to entitle Bristol to terminate this Agreement pursuant to Section 7.1(c)) and at the time of the termination of this Agreement an Acquisition Proposal has been received by Bristol, and either prior to the termination of this Agreement or within 12 months thereafter Bristol or any Bristol Subsidiary enters into any agreement providing for an Acquisition Proposal which is subsequently consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Bristol will pay the Break-Up Fee and the Break-Up Expenses to FelCor. (b) Any payment of the Break Break-Up Fee shall and, if applicable, Break-Up Expenses, as aforesaid, will be compensation and liquidated damages for the loss suffered by EQR Bristol or FelCor, as applicable, as a result of the failure of the Merger to be consummated and to avoid the difficulty of determining damages under the circumstances circumstances, and neither party shall will have any other liability to the other after the payment of the such payment. The Break-Up Fee. The Break- Up Fee shall be paid by Wellsford to EQR, or and/or the Break-Up Expenses shall will be paid by Wellsford FelCor to EQR Bristol or EQR Bristol to Wellsford FelCor (as applicable), in immediately available funds within fifteen (15) days ten Business Days after the date the event giving rise to the obligation to make such payment occurred, provided, however, that neither party may enter into any agreement providing for an Acquisition Proposal unless, prior thereto, this Agreement is terminated in accordance with its terms and the required Break-Up Fee and Break-Up Expenses are paid or otherwise provided for. As used in this Agreement, "Break-Up Fee" shall will be an amount equal to the lesser of (i) $14,000,000 60 million plus Break-Up Expenses (the "Base Amount") and (ii) in the case of FelCor, the sum of (A) the maximum amount that can be paid to EQR FelCor without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income describeddescribed in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by 33 42 independent accountants to FelCor, and (B) in the event FelCor receives a letter from outside counsel (the "Break-Up Fee Tax Opinion") indicating that FelCor has received a ruling from the Internal Revenue Service ("IRS") holding that FelCor's receipt of the Base Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") (and therefore would not cause FelCor to fail to satisfy the REIT Requirements) or that the receipt by FelCor of the remaining balance of the Base Amount following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Base Amount less the amount payable under clause (A) above. Bristol's obligation to pay any unpaid portion of the Break-Up Fee will terminate five years from the date of this Agreement. In the event that FelCor is not able to receive the full Base Amount, Bristol will place the unpaid amount in escrow and will not release any portion thereof to FelCor unless and until Bristol receives any one or combination of the following: (i) a letter from FelCor's independent accountants indicating the maximum amount that can be paid at that time to FelCor without causing FelCor to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in which event Bristol will pay to FelCor the lesser of the unpaid Base Amount or the maximum amount stated in the letter referred to in clause (i) above. (c) The "Break-Up Expenses" payable to Bristol or FelCor, as the case may be (the "Recipient"), will be an amount equal to the lesser of (i) $5 million as payment for all of the Recipient's out-of-pocket costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including without limitation all attorneys', consultants', accountants' and investment bankers' fees and expenses and all other costs and expenses such as travel, fax, long-distance telephone and other costs) (the "Expense Fee") and (ii) in the case of FelCor, the sum of (A) the maximum amount that can be paid to the Recipient without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income, as determined by independent accountants to the Recipient, and (B) in the event the Recipient receives a Break-Up Fee Tax Opinion indicating that the Recipient has received a ruling from the IRS holding that the Recipient's receipt of the Expense Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of the REIT Requirements (and therefore would not cause FelCor to fail to satisfy the REIT Requirements) or that receipt by the Recipient of the remaining balance of the Expense Fee following the receipt of and pursuant to such ruling would not be deemed constructively received prior thereto, the Expense Fee less the amount payable under clause (A) above. The obligation of Bristol or FelCor, as applicable ("Payor"), to pay any unpaid portion of the Break-Up Expenses will terminate five years from the date of this Agreement. In the event that the Recipient is not able to receive the full Expense Fee, the Payor will place the unpaid amount in escrow and will not release any portion thereof to the Recipient unless and until the Payor receives any one or combination of the following: (i) a letter from the Recipient's independent accountants indicating the maximum amount that can be paid at that time to the Recipient without causing the Recipient to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in which event the Payor will pay to the Recipient the lesser of the unpaid Expense Fee or the maximum amount stated in the letter referred to in clause (i) above. (d) Following the Effective Time, FelCor and BHR will each reasonably consult with the other as to the computation of the contemplated distribution of cash (the "Cash Distribution") sufficient, after giving effect to the Spin-Off, to effect the complete elimination of Bristol's historical and current E&P accumulated since the formation of Bristol until the Effective Time, such Cash Distribution to be made on or before December 31, 1998. In the event that it is determined, subsequent to the making of the Cash Distribution, that the Cash Distribution did not eliminate Bristol's E&P as contemplated above, BHR will (i) to the extent of any such shortfall, indemnify FelCor for an amount equal to the costs incurred (including Tax payments and any associated interest and penalties and reasonable accounting, legal and other out-of-pocket expenses) in disputing any claim that the E&P had not been completely eliminated upon payment of the Cash Distribution, provided, however, that BHR will be solely responsible under this sentence for costs incurred up to a maximum of $5 million, and (ii) if such costs exceed $5 million, (A) BHR will be responsible for 10% of any such costs exceeding $5 million, up to a total of $5 million of additional payments by BHR, and (B) any excess costs of this nature will be borne solely by FelCor. 34 43 7.3.

Certain Fees and Expenses. If this Agreement shall be terminated (i) pursuant to Section 7.1(h), 7.1(i)(1) or 7.1(i7.1(i)(3), then Wellsford will Smith and Smith Partnership theretofore or thereupon shall pay EQR to Archstone (provided Wellsford was not entitled to terminate this Agreement pursuant to Section 7.1(c) at or following the time of such terminationArchstone Merger, New Archstone) a fee equal to the Break-Up Fee (as defined belowherein), (ii) . If this Agreement shall be terminated pursuant to Section 7.1(b) or 7.1(f), then Wellsford will Smith and Smith Partnership shall pay EQR to Archstone (or following the Archstone Merger, New Archstone) (provided Wellsford that Smith was not entitled to terminate this Agreement pursuant to Section 7.1(c) at the time of such termination) an amount equal to the Break-Up Expenses (as defined belowherein). If this Agreement shall be terminated pursuant to Section 7.1(c7.1 (c) or 7.1(g7.1 (g), then EQR will Archstone shall pay Wellsford to Smith Partnership (provided EQR that Archstone was not entitled to terminate this Agreement pursuant to Section 7.1(b) at the time of such termination), ) an amount equal to the Break-Up Expenses. If the Merger is not consummated (other than due to the termination of this Agreement shall be terminated pursuant to Section 7.1(a7.1(b), 7.1(g) 7.1(f), or 7.1(j) or EQR's failure to perform its obligations under this Agreement in such a manner so as to entitle Wellsford to terminate this Agreement pursuant to Section 7.1(c)7.1(i)(2) and at prior to the time of the such termination of this Agreement an Acquisition Proposal has been received by WellsfordSmith or Smith Partnership, and either prior to the termination of this Agreement or within twelve (12) months thereafter Wellsford thereafter, Smith or any Wellsford Subsidiary Smith Partnership enters into any written agreement to consummate a transaction or series of transactions which, had such agreement been proposed or negotiated during the term of this Agreement, would have constituted an Acquisition Proposal pursuant to Section 4.3 (each, a "Smith Acquisition Agreement"), which is subsequently consummated (whether or not such any Smith Acquisition Proposal is Agreement relates to the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Wellsford Smith and Smith Partnership shall pay the Break-Up Fee to EQRArchstone (or following the Archstone Merger, New Archstone) upon consummation. If (a) this Agreement shall be terminated by Smith pursuant to Section 7.1(e), (b) prior to the time of such termination an Acquisition Proposal has been received by Smith or Smith Partnership, (c) during the period following the receipt of an Acquisition Proposal as described in clause (b) and prior to termination of this Agreement, Archstone (or following the Archstone Merger, New Archstone) does not announce, enter into or agree to effect any merger, acquisition, exchange offer, consolidation, reorganization, or other business combination with any third party, and (d) either prior to the termination of this Agreement or within twelve (12) months thereafter, Smith or Smith Partnership enters into a Smith Acquisition Agreement which is subsequently consummated (whether or not any Smith Acquisition Agreement relates to the same Acquisition Proposal which had been received at the time of the termination of this Agreement), then Smith and Smith Partnership shall pay the Break-Up Fee to Archstone (or following the Archstone Merger, New Archstone) upon consummation. For purposes of this Section 7.2, "Acquisition Proposal" shall have the meaning assigned to the term "Acquisition Proposal", except that all references to 15% in such definition shall be deemed to be a reference to 25%. The payment of the Break Break-Up Fee shall be compensation and liquidated damages for the loss suffered by EQR Archstone as a result of the failure of the Merger Mergers to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances and neither party shall have any other liability to the other after the payment of the circumstances. The Break-Up Fee. The Break- Up Fee shall be paid by Wellsford Smith and Smith Partnership to EQRArchstone, or the Break-Up Expenses shall be paid by Wellsford the party required to EQR or EQR pay the Break-Up Expenses (the "Payor") to Wellsford the party entitled to receive the Break- Up Expenses (as applicable), the "Recipient") in immediately available funds within fifteen two (152) business days after the date the event giving rise to the obligation to make such payment occurredoccurred (except as otherwise provided in Section 7.1(h) or 7.1(i)). Each of Archstone and Smith acknowledges that the agreements contained in this Section 7.2 are integral parts of this Agreement; accordingly, if Smith or Smith Partnership fail to promptly pay the Break-Up Fee or Break-Up Expenses due pursuant to this Section 7.2 and, in order to obtain payment, Archstone (or following the Archstone Merger, to New Archstone) commences a suit which results in a judgment against Smith or Smith Partnership for any amounts owed pursuant to this Section 7.2, Smith and Smith Partnership shall pay to Archstone (or following the Archstone Merger, to New Archstone) its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amount owed at the rate on six-month U.S. Treasury obligations in effect on the date such payment was required to be made plus 300 basis points. As used in this Agreement, "Break-Up Fee" shall be an amount equal to the lesser of (i) $14,000,000 plus 95,000,000 less Break-Up Expenses paid or payable under this Section 7.2 (the "Base Amount"). Notwithstanding the prior sentence, to the extent that the right to receive a "Break-Up Fee" (the "Break-Up Fee Payment") and in a taxable year would create excessive bad income (ii"EBI") for Archstone (or following the sum Archstone Merger, to New Archstone), the right to receive the portion of the Break-Up Fee Payment that would create EBI shall be deferred, or potentially extinguished, as set forth below. The right to receive a Break-Up Fee Payment shall be treated as creating EBI for Archstone (Aor following the Archstone Merger, to New Archstone) to the maximum amount extent that can be paid the right to EQR without causing it receive the amount, when taken into account with other gross income of Archstone (or following the Archstone Merger, to fail New Archstone) for that year, would cause Archstone (or if after the Archstone Merger, to meet New Archstone) to violate for that taxable year either the requirements of 75% or 95% gross income tests described in Sections 856(c)(2) and (3or 856(c)(3) of the Code determined Code. Any amounts deferred in a particular year pursuant to the preceding paragraph shall become payable in the next succeeding year(s); but only to the extent that it would not then create EBI. To the extent that any deferred amount would continue to create EBI after it has been carried forward for seven years (applying first in, first out principles), that portion shall no longer be an obligation of Smith or Smith Partnership. Notwithstanding the foregoing, Break-Up Fee Payments that would otherwise be considered EBI under the preceding provisions shall be made if and to the extent that Archstone (or following the Archstone Merger, to New Archstone), as if a condition precedent, obtains an opinion of tax counsel or private ruling from the payment IRS that the receipt of such excess amounts would not adversely affect Archstone's (or following the Archstone Merger, New Archstone's) ability to qualify as a REIT. If a Break-Up Fee Payment is inadvertently made in an amount did not constitute income describedin excess of the limitations set forth above, such excess payments shall be treated as a loan from Smith or Smith Partnership to Archstone (or following the Archstone Merger, to New Archstone), to be repaid as soon as practicable following discovery of the overpayment. The purpose of these provisions dealing with EBI is to protect the REIT status of Archstone (or if after the Archstone Merger, to New Archstone), and these provisions shall be interpreted and applied so as to accomplish that purpose.