{"id":43469,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/merger-agreement-equity-office-properties-trust-zml-investors.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"merger-agreement-equity-office-properties-trust-zml-investors","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/merger-agreement-equity-office-properties-trust-zml-investors.html","title":{"rendered":"Merger Agreement &#8211; Equity Office Properties Trust, ZML Investors Inc. (I-II) and Zell\/Merrill Lynch Real Estate Opportunity Partners (III-IV) Trust"},"content":{"rendered":"<pre>\n                                MERGER AGREEMENT\n\n                          Dated as of April 30, 1997,\n\n                                     Among\n\n                        EQUITY OFFICE PROPERTIES TRUST,\n\n                              ZML INVESTORS, INC.,\n\n                            ZML INVESTORS II, INC.,\n\n                         ZELL\/MERRILL LYNCH REAL ESTATE\n                         OPPORTUNITY PARTNERS III TRUST\n\n                                      And\n\n                         ZELL\/MERRILL LYNCH REAL ESTATE\n                         OPPORTUNITY PARTNERS IV TRUST\n\n\n\n\n\n\n\n\n\n     THIS MERGER AGREEMENT (this 'Agreement') dated as of April 30, 1997 is made\nand entered into among Equity Office Properties Trust, a Maryland real estate\ninvestment trust (the 'Company'), ZML Investors, Inc., a Delaware corporation\n('ZML REIT I'), ZML Investors II, Inc., a Delaware corporation ('ZML REIT II'),\nZell\/Merrill Lynch Real Estate Opportunity Partners III Trust, a Maryland real\nestate investment trust ('ZML REIT III'), and Zell\/Merrill Lynch Real Estate\nOpportunity Partners IV Trust, a Maryland real estate investment trust ('ZML\nREIT IV' and, together with ZML REIT I, ZML REIT II and ZML REIT III, the 'ZML\nREITs').\n\n                                    RECITALS\n\n     (a) Certain capitalized terms used herein shall have the meanings assigned\nto them in Section 8.1.\n\n     (b) The Boards of Directors or Boards of Trustees, as applicable, of the\nCompany and each of the ZML REITs and the shareholders of each of the ZML REITs\nhave approved the merger of each of the ZML REITs with and into the Company as\nset forth below (the 'Mergers'), upon the terms and subject to the conditions\nset forth in this Agreement, whereby (i) each issued and outstanding share of\ncommon stock, par value $.01 per share, of ZML REIT I (the 'ZML I Common\nStock') will be converted into the right to receive the ZML I Merger\nConsideration (as defined below); (ii) each issued and outstanding share of\nClass A common stock, par value $.01 per share, of ZML REIT II (the 'ZML II\nClass A Common Stock') will be converted into the right to receive the ZML II\nClass A Merger Consideration (as defined below); (iii) each issued and\noutstanding share of Class B common stock, par value $.01 per share, of ZML\nREIT II (the 'ZML II Class B Common Stock,' and together with the ZML II Class\nA Common Stock the 'ZML II Common Stock') will be converted into the right to\nreceive the ZML II Class B Contingent Merger Consideration (as defined below);\n(iv) each issued and outstanding Class A common share of beneficial interest,\npar value $.01 per share, of ZML REIT III (the 'ZML III Class A Common Shares')\nwill be converted into the right to receive the ZML III Merger Consideration\n(as defined below); (v) each issued and outstanding Class B share of beneficial\ninterest, par value $.01 per share, of ZML REIT III (the 'ZML III Class B\nCommon Shares,' and together with the ZML III Class A Common Shares the 'ZML\nIII Common Shares') will be converted into the right to receive the ZML III\nClass B Contingent Merger Consideration (as defined below); and (vi) each\nissued and outstanding common share of beneficial interest, par value $.01 per\nshare, of ZML REIT IV (the 'ZML IV Common Shares' and, together with the ZML I\nCommon Stock, the ZML II Common Stock and the ZML III Common Shares, the 'ZML\nREIT Shares') will be converted into the right to receive the ZML IV Merger\nConsideration (as defined below).\n\n     (c) The Company and each of the ZML REITs desire to make certain\nrepresentations, warranties, covenants and agreements in connection with the\nMerger and also to prescribe various conditions to the Merger.\n\n     (d) For federal income tax purposes it is intended that the Merger qualify\nas a reorganization within the meaning of Section 368(a) of the Internal\nRevenue Code of 1986, as amended (the 'Code').\n\n\n\n\n\n\n\n     NOW, THEREFORE, in consideration of the representations, warranties,\ncovenants and agreements contained in this Agreement, the parties hereto agree\nas follows:\n\nARTICLE I\n\n\nTHE MERGER\n\n      SECTION 1.1  THE MERGER.\n\n     Upon the terms and subject to the conditions set forth in this Agreement,\nand in accordance with the corporation law of Delaware (the 'Corporation Law')\nand the Maryland General Corporation Law, as applicable to real estate\ninvestment trusts ('MGCL'), each of the ZML REITs shall be merged with and into\nthe Company at the Effective Time.  Following the Merger, the separate\ncorporate existence of each of the ZML REITs shall cease and the Company shall\ncontinue as the surviving corporation (the 'Surviving Corporation') and shall\nsucceed to and assume all the rights and obligations of each ZML REIT in\naccordance with the MGCL.\n\n      SECTION 1.2  CLOSING.\n\n     The closing of the Merger will take place at 10:00 a.m. on a date to be\nspecified by the parties, which (subject to satisfaction or waiver of the\nconditions set forth in Sections 5.2 and 5.3) shall be no later than the second\nbusiness day after satisfaction or waiver of the conditions set forth in\nSection 5.1 (the 'Closing Date'), at the offices of Rosenberg &amp; Liebentritt,\nP.C., Two North Riverside Plaza, Suite 1515, Chicago, Illinois, unless another\ndate or place is agreed to by the parties hereto.\n\n\n      SECTION 1.3  EFFECTIVE TIME.\n\n     As soon as practicable following the satisfaction or waiver of the\nconditions set forth in Article V, the parties shall file certificates of\nmerger or other appropriate documents (the 'Certificates of Merger') executed\nin accordance with the Corporation Law and articles of merger or other\nappropriate documents (the 'Articles of Merger') executed in accordance with\nthe MGCL and shall make all other filings or recordings required under the\nCorporation Law or the MGCL.  The Merger shall become effective upon the later\nof:  (i) the issuance of all certificates of merger by the State Department of\nAssessments and Taxation of Maryland ('SDAT') in accordance with the MGCL and\n(ii) the filing of the Certificates of Merger with the Secretary of State of\nthe State of Delaware, or at such later time which the Company and the ZML\nREITs have agreed upon and designated in such filings in accordance with\napplicable law (the time the Merger becomes effective being the 'Effective\nTime'), it being understood that the parties shall cause the Effective Time to\noccur on the Closing Date.\n\n      SECTION 1.4  EFFECTS OF THE MERGER.\n\n     The Merger shall have the effects set forth in the Corporation Law and the\nMGCL.\n\n\n\n\n                                       2\n\n\n\n\n\n\n      SECTION 1.5  DECLARATION OF TRUST.\n\n     The Declaration of Trust of the Company, as in effect immediately prior to\nthe Effective Time, shall be the Declaration of Trust of the Surviving\nCorporation, until duly amended in accordance with applicable law.  The Bylaws\nof the Company, as in effect immediately prior to the Effective Time, shall be\nthe Bylaws of the Surviving Corporation.\n\nARTICLE II\n\n\nEFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE\n\nCONSTITUENT CORPORATIONS AND REAL ESTATE INVESTMENT TRUSTS; EXCHANGE OF\nCERTIFICATES\n\n      SECTION 2.1  EFFECT ON CAPITAL STOCK.\n\n     By virtue of the Merger and without any action on the part of the holder\nof any ZML REIT Shares or the holder of any shares of beneficial interest of\nthe Company:\n\n            (A) CANCELLATION OF TREASURY STOCK.\n\n     As of the Effective Time, (i) any shares of capital stock of ZML REIT I\nthat are owned by ZML REIT I or any ZML I Subsidiary (as defined below), (ii)\nany shares of capital stock of ZML REIT II that are owned by ZML REIT II or any\nZML II Subsidiary, (iii) any shares of beneficial interest of ZML REIT III that\nare owned by ZML REIT III or any ZML III Subsidiary and (iv) any shares of\nbeneficial interest of ZML REIT IV that are owned by ZML REIT IV or any ZML IV\nSubsidiary shall automatically be canceled and retired and all rights with\nrespect thereto shall cease to exist, and no consideration shall be delivered\nin exchange therefor.\n\n            (B) CONVERSION OF ZML I COMMON STOCK.\n\n     Upon the Effective Time, each issued and outstanding share of ZML I Common\nStock (other than any shares to be canceled in accordance with Section 2.1(a))\nshall be converted into the right to receive from the Company 51.56\nfully paid and nonassessable common shares of beneficial interest, par value\n$.01 per share, of the Company (each a 'Company Common Share').  As of the\nEffective Time, all shares of ZML I Common Stock shall no longer be outstanding\nand shall automatically be canceled and retired and all rights with respect\nthereto shall cease to exist, and each holder of a certificate representing any\nsuch shares of ZML I Common Stock shall cease to have any rights with respect\nthereto, except the right to receive, upon surrender of such certificate,\ncertificates representing the Company Common Shares required to be delivered\nunder this Section 2.1(b) and any cash in lieu of fractional shares of Company\nCommon Shares to be issued or paid in consideration therefor upon surrender of\nsuch certificate (the 'ZML I Merger Consideration') as set forth in Section\n2.2(e), and any dividends or other distributions to which such holder is\nentitled pursuant to Section 2.2(b), in each case without interest and less any\nrequired withholding taxes.\n\n\n\n                                       3\n\n\n\n\n            (C) CONVERSION OF ZML II COMMON STOCK.\n\n     Upon the Effective Time, (i) each issued and outstanding share of ZML II\nClass A Common Stock (other than any shares to be canceled in accordance with\nSection 2.1(a)) shall be converted into the right to receive from the Company\n71.76 fully paid and nonassessable Company Common Shares, and (ii) each\nissued and outstanding share of ZML II Class B Common Stock (other than any\nshares to be canceled in accordance with Section 2.1(a)) shall be converted\ninto the right to receive one-one million two hundred seven thousand six\nhundred thirty eighth (1\/1,207,638) of any ZML II Class B Contingent Shares (as\ndefined in, and determined as set forth in, Section 2.4) (the 'ZML II Class B\nContingent Merger Consideration').  As of the Effective Time, all shares of ZML\nII Common Stock shall no longer be outstanding and shall automatically be\ncanceled and retired and all rights with respect thereto shall cease to exist,\nand each holder of a certificate representing any such shares of ZML II Common\nStock shall cease to have any rights with respect thereto, except the right to\nreceive, upon surrender of such certificate, (x) in the case of the ZML II\nClass A Common Stock, certificates representing the Company Common Shares\nrequired to be delivered under this Section 2.1(c) and any cash in lieu of\nfractional shares of Company Common Shares to be issued or paid in\nconsideration therefor upon surrender of such certificate (the 'ZML II Class A\nMerger Consideration') as set forth in Section 2.2(e), and any dividends or\nother distributions to which such holder is entitled pursuant to Section\n2.2(b), and (y) in the case of the ZML II Class B Common Stock, the ZML II\nClass B Contingent Merger Consideration, if any, when and if payable, as\ndetermined pursuant to Section 2.4, in each case without interest and less any\nrequired withholding taxes.\n\n            (D) CONVERSION OF ZML III COMMON SHARES.\n\n     Upon the Effective Time, (i) each issued and outstanding ZML III Class A\nCommon Share (other than any shares to be canceled in accordance with Section\n2.1(a)) shall be converted into the right to receive from the Company (i)\n72.17 fully paid and nonassessable Company Common Shares, and (ii) each\nissued and outstanding ZML III Class B Common Share (other than any shares to\nbe canceled in accordance with Section 2.1(a)) shall be converted into the\nright to receive 1\/692,290 of any ZML III Class B Contingent Shares (as\ndefined in, and determined as set forth in, Section 2.4) (the 'ZML III Class B\nContingent Merger Consideration').  As of the Effective Time, all ZML III\nCommon Shares shall no longer be outstanding and shall automatically be\ncanceled and retired and all rights with respect thereto shall cease to exist,\nand each holder of a certificate representing any such ZML III Common Shares\nshall cease to have any rights with respect thereto, except the right to\nreceive, upon surrender of such certificate, (x) in the case of the ZML III\nClass A Common Shares, certificates representing the Company Common Shares\nrequired to be delivered under this Section 2.1(d) and any cash in lieu of\nfractional shares of Company Common Shares to be issued or paid in\nconsideration therefor upon surrender of such certificate (the 'ZML III Class A\nMerger Consideration') as set forth in Section 2.2(e), and any dividends or\nother distributions to which such holder is entitled pursuant to Section\n2.2(b), and (y) in the case of the ZML III Class B Common Shares, the ZML III\nClass B Contingent Merger Consideration, if any, when and if payable, as\ndetermined pursuant to Section 2.4 in each case without interest and less any\nrequired withholding taxes.\n\n\n\n                                       4\n\n\n\n\n            (E) CONVERSION OF ZML IV COMMON SHARES.\n\n     Upon the Effective Time, each issued and outstanding ZML IV Common Share\n(other than any shares to be canceled in accordance with Section 2.1(a)) shall\nbe converted into the right to receive from the Company 52.59 fully paid\nand nonassessable Company Common Shares.  As of the Effective Time, all ZML IV\nCommon Shares shall no longer be outstanding and shall automatically be\ncanceled and retired and all rights with respect thereto shall cease to exist,\nand each holder of a certificate representing any such ZML IV Common Shares\nshall cease to have any rights with respect thereto, except the right to\nreceive, upon surrender of such certificate, certificates representing the\nCompany Common Shares required to be delivered under this Section 2.1(e) and\nany cash in lieu of fractional shares of Company Common Shares to be issued or\npaid in consideration therefor upon surrender of such certificate (the 'ZML IV\nMerger Consideration' and, together with the ZML I Merger Consideration, the\nZML II Class A Merger Consideration, the ZML II Class B Merger Consolidation,\nZML III Class A Merger Consideration, the ZML III Class B Contingent Merger\nConsolidation, the 'Merger Consideration') as set forth in Section 2.2(e), and\nany dividends or other distributions to which such holder is entitled pursuant\nto Section 2.2(b), in each case without interest and less any required\nwithholding taxes.\n\n            (F) COMPANY COMMON SHARES.\n\n     Upon the Effective Time, each Company Common Share outstanding immediately\nprior to the Effective Time shall remain outstanding and shall represent one\nvalidly issued, fully paid and nonassessable Company Common Share.\n\n      SECTION 2.2  EXCHANGE OF CERTIFICATES.\n\n            (A) EXCHANGE AGENT.\n\n     Prior to the Effective Time, the Company shall appoint Boston Equiserv\nL.P. or another bank or trust company reasonably acceptable to each of the ZML\nREITs to act as exchange agent (the 'Exchange Agent') for the exchange of the\nMerger Consideration upon surrender of certificates representing issued and\noutstanding ZML REIT Shares ('Certificates').  Each ZML REIT shall deposit with\nthe Exchange Agent, immediately prior to the Effective Time, from its own\nassets (including, without limitation, distributions received by such ZML REIT\nfrom the 'opportunity partnership' in which such ZML REIT is a limited partner)\nan amount of cash sufficient for the payment of the Final ZML REIT Dividend (as\ndefined in Section 2.2(b)) to be paid by such ZML REIT.  None of the cash to\npay the Final ZML REIT Dividends shall be provided, directly or indirectly, by\nor from the assets of the Company.\n\n            (B) RECORD DATES FOR FINAL DIVIDENDS; DISTRIBUTIONS WITH RESPECT TO\n            UNEXCHANGED SHARES.\n\n     (i) For the taxable year of each of the ZML REITs ending at the Effective\nTime, each ZML REIT shall declare a dividend (each, a 'Final ZML REIT\nDividend') to holders of such ZML REIT's ZML REIT Shares, the record date for\nwhich shall be close of business on the last business day prior to the\nEffective Time, in an amount equal to the minimum dividend sufficient to permit\nsuch ZML REIT both to satisfy such requirements and to avoid any United States\nfederal income tax for such year (and any preceding taxable year) or\n\n\n                                       5\n\n\n\n\nany excise tax pursuant to Section 4982 of the Code.  The dividends payable\nhereunder to holders of ZML REIT Shares shall be paid upon presentation of the\nCertificates for exchange in accordance with this Article II.\n\n     (ii) No dividends or other distributions with respect to Company Common\nShares with a record date after the Effective Time shall be paid to the holder\nof any unsurrendered Certificate with respect to the Company Common Shares\nrepresented thereby, and no cash payment in lieu of fractional shares shall be\npaid to any such holder pursuant to Section 2.2(e), in each case until the\nsurrender of such Certificate in accordance with this Article II.  Subject to\nthe effect of applicable escheat laws, following surrender of any such\nCertificate there shall be paid to the holder of such Certificate, without\ninterest, (i) at the time of such surrender, the amount of any cash payable in\nlieu of any fractional Company Common Share to which such holder is entitled\npursuant to Section 2.2(e) and (ii) if such Certificate is exchangeable for one\nor more whole Company Common Shares, (x) at the time of such surrender the\namount of dividends or other distributions with a record date after the\nEffective Time theretofore paid with respect to such whole Company Common\nShares and (y) at the appropriate payment date, the amount of dividends or\nother distributions with a record date after the Effective Time but prior to\nsuch surrender and with a payment date subsequent to such surrender payable\nwith respect to such whole Company Common Shares.\n\n            (C) NO FURTHER OWNERSHIP RIGHTS IN ZML REIT SHARES.\n\n     All Merger Consideration payable upon the surrender of Certificates in\naccordance with the terms of this Article II (and any cash paid pursuant to\nSection 2.2(e)) (which shall including amounts payable as ZML II Class B\nContingent Merger Consideration and ZML III Class B Contingent Merger\nConsolidation) shall be deemed to have been paid in full satisfaction of all\nrights pertaining to the ZML REIT Shares theretofore represented by such\nCertificates; provided, however, that each ZML REIT shall transfer to the\nExchange Agent cash sufficient to pay any dividends or make any other\ndistributions with a record date prior to the Effective Time which may have\nbeen declared or made by such ZML REIT on such ZML REIT's respective ZML REIT\nShares in accordance with the terms of this Agreement or prior to the date of\nthis Agreement and which remain unpaid at the Effective Time and have not been\npaid prior to such surrender, and there shall be no further registration of\ntransfers on the stock transfer books of any ZML REIT of the ZML REIT Shares\nwhich were outstanding immediately prior to the Effective Time.  If, after the\nEffective Time, Certificates are presented to the Surviving Corporation for any\nreason, they shall be canceled and exchanged as provided in this Article II.\n\n            (D) NO LIABILITY.\n\n     None of the Company, the ZML REITs or the Exchange Agent shall be liable\nto any person in respect of any Merger Consideration or dividends delivered to\na public official pursuant to any applicable abandoned property, escheat or\nsimilar law.\n\n            (E) NO FRACTIONAL SHARES.\n\n     (i) No certificates or scrip representing fractional Company Common Shares\nshall be issued upon the surrender for exchange of Certificates, and such\nfractional\n\n\n                                       6\n\n\n\n\nshare interests will not entitle the owner thereof to vote, to receive\ndividends or to any other rights of a stockholder of the Company.\n\n     (ii) Notwithstanding any other provision of this Agreement, each holder of\nZML REIT Shares exchanged pursuant to the Merger who would otherwise have been\nentitled to receive a fraction of a Company Common Share (after taking into\naccount all Certificates delivered by such holder) shall receive, from the\nExchange Agent in accordance with the provisions of this Section 2.2(e), a cash\npayment in lieu of such fractional Company Common Share, as applicable based on\nthe initial public offering price of the Company Common Shares.\n\n      SECTION 2.3  ESCROW OF COMPANY COMMON SHARES.\n\n     (i) Five percent (5%) of the Company Common Shares to be received by\neach shareholder of ZML REIT I as part of the Merger Consideration and (ii) ten\npercent (10%) of the Company Common Shares to be received by each shareholder\nof ZML REIT II, ZML REIT III and ZML REIT IV as part of the Merger\nConsideration (other than any Common Shares to be received as ZML II Class B\nContingent Consideration or ZML III Class B Contingent Consideration), shall be\ndeposited by the recipient shareholder into escrow on the Closing Date pursuant\nto those certain Escrow Agreements dated as of July 11, 1997 between the\nCompany and State Street Bank and Trust Company, as escrow agent, relating to\neach of the ZML REITs.  The Escrow Agreements are attached hereto as Exhibits\nA.1, A.2, A.3 and A.4.  The Exchange Agent, as agent for such shareholders,\nshall receive such Company Common Shares on behalf of the shareholders of the\nZML REITs and shall deliver them to State Street Bank and Trust Company, as\nescrow agent, on behalf of such shareholders to hold and apply in accordance\nwith the terms of the applicable Escrow Agreement.\n\n      SECTION 2.4  CONTINGENT ISSUANCE OF COMPANY COMMON SHARES.\n\n            (A) ZML II CLASS B CONTINGENT CONSIDERATION.\n\n     If the Company, as the successor to ZML REIT II, shall receive from\nZell\/Merrill Lynch Real Estate Opportunity Partners Limited Partnership II\n('Opportunity Partnership II') units of limited partnership interest in EOP\nOperating Limited Partnership ('Units') that constitute a Class B Distribution\n(as defined below), the Company shall issue one Company Common Share for each\nsuch Unit received (each such Company Common Share is referred to as a ZML II\nClass B Contingent Share).  The ZML II Class B Contingent Shares shall be\nissued to the former holders of the ZML II Class B Common Stock at the\nEffective Time of the Merger, with the holder of each share of ZML II Class B\nCommon Stock entitled to receive one-one million three hundred thirty-seven\nthousand six hundred thirty eighth (1\/1,337,638) of any ZML II Class B\nContingent Shares issued by the Company.  In lieu of any fractional ZML II\nClass B Contingent Shares, each former holder of ZML II Class B Common Stock\nwho would be entitled to receive a fraction of a ZML II Class B Contingent\nShare shall in lieu thereof receive a cash payment representing the fair value,\nas determined by the Company, of such fraction of a ZML II Class B Contingent\nShare.\n\n\n\n                                       7\n\n\n\n\n     Class B Distribution' shall mean with respect to Opportunity Partnership\nII, any distribution to the Company pursuant to Section 5.04(C) or Section\n5.05(C)(4) of the Agreement of Limited Partnership of Opportunity Partnership\nII (the 'Opportunity Partnership II Agreement') to the extent such distribution\nis determined in accordance with ZML REIT II's Table 2.13(ii) Amount as set\nforth in Section 2.13 of the Opportunity Partnership II Agreement .\n\n            (B) ZML III CLASS B CONTINGENT CONSIDERATION.\n\n     If the Company, as the successor to ZML REIT III, shall receive from\nZell Merrill Lynch Real Estate Opportunity Partners Limited Partnership III\n('Opportunity Partnership III') Units  that constitute a Class B Distribution\n(as defined below), the Company shall issue one Company Common Share for each\nsuch Unit received (each such Company Common Share is referred to as a ZML III  \nClass B Contingent Share).  The ZML III Class B Contingent Shares shall be\nissued to the former holders of the ZML III Class B Common Shares at the\nEffective Time of the Merger, with the holder of each ZML III Class B Common\nShare entitled to receive one-one million six hundred thirty-three thousand\nthree hundred twenty fifth (1\/1,633,325) of any ZML III Class B Contingent\nShares issued by the Company.  In lieu of any fractional ZML III Class B\nContingent Shares, each former holder of ZML III Class B Common Shares who\nwould be entitled to receive a fraction of a ZML III Class B Contingent Share\nshall in lieu thereof receive a cash payment representing the fair value, as\ndetermined by the Company, of such fraction of a ZML III Class B Contingent\nShare.\n\n     'Class B Distribution' shall mean with respect to Opportunity Partnership\nIII, any distribution to the Company pursuant to Section 5.04(D) or Section\n5.05(C)(4) of the Agreement of Limited Partnership of Opportunity Partnership\nIII (the 'Opportunity Partnership III Agreement') to the extent such\ndistribution is determined in accordance with ZML REIT III's Table 2.14 Amount\nas set forth in Section 2.14 of the Opportunity Partnership III Agreement.\n\nARTICLE III\n\n\nREPRESENTATIONS AND WARRANTIES\n\n      SECTION 3.1  REPRESENTATIONS AND WARRANTIES OF THE ZML REITS.\n\n     Each ZML REIT represents and warrants as to itself to the Company as\nfollows:\n\n            (A) ORGANIZATION, STANDING AND CORPORATE OR TRUST POWER OF ZML\n            REIT.\n\n     The ZML REIT is a corporation duly organized and validly existing under\nthe laws of Delaware or a real estate investment trust organized and validly\nexisting under the laws of Maryland, as applicable, and has the requisite\ncorporate or trust power and authority to carry on its business as now being\nconducted.  The ZML REIT is duly qualified or licensed to do business and is in\ngood standing in each jurisdiction in which the nature of its business or the\nownership or leasing of its properties makes such qualification or licensing\nnecessary, other than in such jurisdictions where the failure to be so\nqualified or licensed, individually or in the aggregate, would not have a\nmaterial adverse effect on the business, properties, assets, financial\ncondition or results of operations of the ZML REIT taken as a whole (a 'ZML\nREIT\n\n\n                                       8\n\n\n\n\nMaterial Adverse Effect').  The ZML REIT has delivered to the Company complete\nand correct copies of its Certificate of Incorporation or Declaration of Trust,\nas applicable, and Bylaws, each as amended to the date of this Agreement.\n\n            (B) CAPITAL STRUCTURE.\n\n     The authorized and, as of the date hereof, issued and outstanding capital\nstock or shares of beneficial interest of the ZML REIT is as set forth on\nSchedule 3.1(b) attached hereto.  On the date of this Agreement, except as set\nforth on Schedule 3.1(b), no shares of capital stock or shares of beneficial\ninterest or other voting securities of the ZML REIT were issued, reserved for\nissuance or outstanding.  There are no outstanding stock appreciation rights\nrelating to the capital stock or shares of beneficial interest of the ZML REIT.\nAll outstanding shares of capital stock or shares of beneficial interest of\nthe ZML REIT are duly authorized, validly issued, fully paid and nonassessable\nand not subject to preemptive rights.  There are no bonds, debentures, notes or\nother indebtedness of the ZML REIT having the right to vote (or convertible\ninto, or exchangeable for, securities having the right to vote) on any matters\non which shareholders of the ZML REIT may vote.  Except as set forth in\nSchedule 3.1(b), as of the date of this Agreement there are no outstanding\nsecurities, options, warrants, calls, rights, commitments, agreements,\narrangements or undertakings of any kind to which the ZML REIT is a party or by\nwhich such entity is bound, obligating the ZML REIT to issue, deliver or sell,\nor cause to be issued, delivered or sold, additional shares of capital stock or\nshares of beneficial interest, voting securities or other ownership interests\nof the ZML REIT or obligating the ZML REIT to issue, grant, extend or enter\ninto any such security, option, warrant, call, right, commitment, agreement,\narrangement or undertaking (other than to the ZML REIT).  Except as set forth\non Schedule 3.1(b), there are no outstanding contractual obligations of the ZML\nREIT to repurchase, redeem or otherwise acquire any shares of capital stock or\nshares of beneficial interest of the ZML REIT or make any material investment\n(in the form of a loan, capital contribution or otherwise) in any person.\n\n            (C) AUTHORITY; NONCONTRAVENTION; CONSENTS.\n\n     The ZML REIT has the requisite corporate or trust power and authority to\nenter into this Agreement and, including approval of this Agreement by the vote\nof the holders of such ZML REIT's ZML REIT Shares required to approve this\nAgreement and the transactions contemplated hereby (the 'ZML REIT Shareholder\nApprovals'), to consummate the transactions contemplated by this Agreement to\nwhich the ZML REIT is a party.  The execution and delivery of this Agreement by\nthe ZML REIT and the consummation by the ZML REIT of the transactions\ncontemplated by this Agreement to which the ZML REIT is a party have been duly\nauthorized by all necessary corporate or trust action on the part of the ZML\nREIT.  This Agreement has been duly executed and delivered by the ZML REIT and\nconstitutes a valid and binding obligation of the ZML REIT, enforceable against\nthe ZML REIT in accordance with its terms.  Except as set forth in Schedule\n3.1(c) attached hereto, the execution and delivery of this Agreement by the ZML\nREIT do not, and the consummation of the transactions contemplated by this\nAgreement to which the ZML REIT is a party and compliance by the ZML REIT with\nthe provisions of this Agreement will not, conflict with, or result in any\nviolation of, or default (with or without notice or lapse of time, or both)\nunder, or give rise to a right of termination, cancellation or acceleration of\nany obligation or to loss of a material benefit under, or result in the\ncreation of any lien upon any of the properties or assets of the ZML REIT\nunder, (i) the Certificate of Incorporation or Declaration of Trust, as\napplicable, or the Bylaws of the ZML REIT, (ii) any loan\n\n\n                                       9\n\n\n\n\nor credit agreement, note, bond, mortgage, indenture, reciprocal easement\nagreement, lease or other agreement, instrument, permit, concession, contract,\nfranchise or license applicable to the ZML REIT or its properties or assets or\n(iii) subject to the governmental filings and other matters referred to in the\nfollowing sentence, any judgment, order, decree, statute, law, ordinance, rule\nor regulation (collectively, 'Laws') applicable to the ZML REIT or its\nproperties or assets, other than, in the case of clause (ii) or (iii), any such\nconflicts, violations, defaults, rights or liens that individually or in the\naggregate would not (x) have a ZML REIT Material Adverse Effect or (y) prevent\nthe consummation of the transactions contemplated by this Agreement.  No\nconsent, approval, order or authorization of, or registration, declaration or\nfiling with, any federal, state or local government or any court,\nadministrative or regulatory agency or commission or other governmental\nauthority or agency, domestic or foreign (a 'Governmental Entity'), is required\nby or with respect to the ZML REIT in connection with the execution and\ndelivery of this Agreement by the ZML REIT or the consummation by the ZML REIT\nof the transactions contemplated by this Agreement, except for (i) the filing\nof the Articles of Merger with the SDAT and the Certificates of Merger with the\nSecretary of State of the State of Delaware and (ii) such other consents,\napprovals, orders, authorizations, registrations, declarations and filings (A)\nas are set forth in Schedule 3.1(c), (B) as may be required under (x) federal,\nstate or local environmental laws or (y) the 'blue sky' laws of various states\nor (C) which, if not obtained or made, would not prevent or delay in any\nmaterial respect the consummation of any of the transactions contemplated by\nthis Agreement or otherwise prevent the ZML REIT from performing its\nobligations under this Agreement in any material respect or have, individually\nor in the aggregate, a ZML REIT Material Adverse Effect.\n\n            (D) TAXES.\n\n     (i) The ZML REIT has (A) filed all Tax returns and reports required to be\nfiled by it (after giving effect to any filing extension properly granted by a\nGovernmental Entity having authority to do so) and all such returns and reports\nare accurate and complete in all material respects; and (B) paid all Taxes\nshown on such returns and reports as required to be paid by it, and the most\nrecent financial statements of the ZML REIT reflect an adequate reserve for all\nmaterial Taxes payable by the ZML REIT for all taxable periods and portions\nthereof through the date of such financial statements.  True, correct and\ncomplete copies of all federal, state and local Tax returns and reports for the\nZML REIT, and all written communications relating thereto, have been delivered\nor made available to representatives of the Company.  Since the date of the\nlast ZML REIT financial statements made available to the Company, the ZML REIT\nhas incurred no liability for taxes under Sections 857(b), 860(c) or 4981 of\nthe Code, and the ZML REIT has not incurred any material liability for Taxes\nother than in the ordinary course of business.  To the knowledge of the ZML\nREIT, no event has occurred, and no condition or circumstance exists, which\npresents a material risk that any material Tax described in the preceding\nsentence will be imposed upon the ZML REIT.  Except as set forth on Schedule\n3.1(d) attached hereto, to the knowledge of the ZML REIT, no deficiencies for\nany Taxes have been proposed, asserted or assessed against the ZML REIT, and no\nrequests for waivers of the time to assess any such Taxes are pending.  As used\nin this Agreement, 'Taxes' shall include all federal, state, local and foreign\nincome, property, sales, excise and other taxes, tariffs or governmental\ncharges of any nature whatsoever, together with penalties, interest or\nadditions to Tax with respect thereto.\n\n     (ii) The ZML REIT (A) for all taxable years commencing with 1989, 1992,\n1994 and 1996 for ZML REIT I, ZML REIT II, ZML REIT III and ZML REIT IV,\n\n\n                                       10\n\n\n\n\nrespectively, through December 31, 1996 has qualified for taxation as a real\nestate investment trust (a 'REIT') within the meaning of the Code, (B) has\noperated, and intends to continue to operate, in such a manner as to qualify as\na REIT for the tax year ending December 31, 1997, and (C) has not taken or\nomitted to take any action which would reasonably be expected to result in a\nchallenge to its status as a REIT, and to the ZML REIT's knowledge, no such\nchallenge is pending or threatened.  The ZML REIT does not hold any asset (x)\nthe disposition of which would be subject to rules similar to Section 1374 of\nthe Code as a result of an election under IRS Notice 88-19 or (y) that is\nsubject to a consent filed pursuant to Section 341(f) of the Code and the\nregulations thereunder.\n\n            (E) INVESTMENT COMPANY ACT OF 1940.\n\n     The ZML REIT is not, and at the Effective Time will not be, required to be\nregistered under the Investment Company Act of 1940, as amended (the '1940\nAct').\n\n      SECTION 3.2  REPRESENTATIONS AND WARRANTIES OF THE COMPANY.\n\n     The Company represents and warrants to each of the ZML REITs as follows:\n\n            (A) ORGANIZATION, STANDING AND TRUST POWER OF THE COMPANY.\n\n     The Company is a real estate investment trust duly organized and validly\nexisting under the laws of Maryland and has the requisite trust power and\nauthority to carry on its business as now being conducted.  The Company is duly\nqualified or licensed to do business and is in good standing in each\njurisdiction in which the nature of its business or the ownership or leasing of\nits properties makes such qualification or licensing necessary, other than in\nsuch jurisdictions where the failure to be so qualified or licensed,\nindividually or in the aggregate, would not have a material adverse effect on\nthe business, properties, assets, financial condition or results of operations\nof the Company taken as a whole (a 'Company Material Adverse Effect').  The\nCompany has delivered to each of the ZML REITs complete and correct copies of\nits Declaration of Trust and Bylaws, each as amended to the date of this\nAgreement.\n\n            (B) CAPITAL STRUCTURE.\n\n     The authorized and, as of the date hereof, issued and outstanding capital\nstock of the Company is as set forth on Schedule 3.2(b) attached hereto.  On\nthe date of this Agreement, except as set forth on Schedule 3.2(b), no shares\nof capital stock or other voting securities of the Company were issued,\nreserved for issuance or outstanding.  There are no outstanding stock\nappreciation rights relating to the capital stock of the Company.  All\noutstanding shares of capital stock of the Company are duly authorized, validly\nissued, fully paid and nonassessable and not subject to preemptive rights.\nThere are no bonds, debentures, notes or other indebtedness of the Company\nhaving the right to vote (or convertible into, or exchangeable for, securities\nhaving the right to vote) on any matters on which shareholders of Company may\nvote.  Except as set forth in Schedule 3.2(b), as of the date of this Agreement\nthere are no outstanding securities, options, warrants, calls, rights,\ncommitments, agreements, arrangements or undertakings of any kind to which the\nCompany is a party or by which such entity is bound, obligating the Company to\nissue, deliver or sell, or cause to be issued, delivered or sold, additional\nshares of capital stock, voting securities or other ownership interests of the\n\n\n                                       11\n\n\n\n\nCompany or obligating the Company to issue, grant, extend or enter into any\nsuch security, option, warrant, call, right, commitment, agreement, arrangement\nor undertaking (other than to the Company).  Except as set forth on Schedule\n3.2(b), there are no outstanding contractual obligations of the Company to\nrepurchase, redeem or otherwise acquire any shares of capital stock of the\nCompany or make any material investment (in the form of a loan, capital\ncontribution or otherwise) in any person.\n\n            (C) AUTHORITY; NONCONTRAVENTION; CONSENTS.\n\n     The Company has the requisite trust power and authority to enter into this\nAgreement and to consummate the transactions contemplated by this Agreement to\nwhich the Company is a party.  The execution and delivery of this Agreement by\nthe Company and the consummation by the Company of the transactions\ncontemplated by this Agreement to which the Company is a party have been duly\nauthorized by all necessary trust action on the part of the Company.  This\nAgreement has been duly executed and delivered by the Company and constitutes a\nvalid and binding obligation of the Company, enforceable against the Company in\naccordance with its terms.  Except as set forth in Schedule 3.2(c) attached\nhereto, the execution and delivery of this Agreement by the Company do not, and\nthe consummation of the transactions contemplated by this Agreement to which\nthe Company is a party and compliance by the Company with the provisions of\nthis Agreement will not, conflict with, or result in any violation of, or\ndefault (with or without notice or lapse of time, or both) under, or give rise\nto a right of termination, cancellation or acceleration of any obligation or to\nloss of a material benefit under, or result in the creation of any lien upon\nany of the properties or assets of the Company under, (i) the Declaration of\nTrust or the Bylaws of the Company, (ii) any loan or credit agreement, note,\nbond, mortgage, indenture, reciprocal easement agreement, lease or other\nagreement, instrument, permit, concession, contract, franchise or license\napplicable to the Company or its properties or assets or (iii) subject to the\ngovernmental filings and other matters referred to in the following sentence,\nany Laws applicable to the Company or its properties or assets, other than, in\nthe case of clause (ii) or (iii), any such conflicts, violations, defaults,\nrights or liens that individually or in the aggregate would not (x) have a\nCompany Material Adverse Effect or (y) prevent the consummation of the\ntransactions contemplated by this Agreement.  No consent, approval, order or\nauthorization of, or registration, declaration or filing with, any Governmental\nEntity is required by or with respect to the Company in connection with the\nexecution and delivery of this Agreement by the Company or the consummation by\nthe Company of the transactions contemplated by this Agreement, except for (i)\nthe filing of the Articles of Merger with the SDAT and the Certificates of\nMerger with the Secretary of State of the State of Delaware and (ii) such other\nconsents, approvals, orders, authorizations, registrations, declarations and\nfilings (A) as are set forth in Schedule 3.2(c), (B) as may be required under\n(x) federal, state or local environmental laws or (y) the 'blue sky' laws of\nvarious states or (C) which, if not obtained or made, would not prevent or\ndelay in any material respect the consummation of any of the transactions\ncontemplated by this Agreement or otherwise prevent the Company from performing\nits obligations under this Agreement in any material respect or have,\nindividually or in the aggregate, a Company Material Adverse Effect.\n\n            (D) TAXES.\n\n     The Company is organized in conformity with the requirements for\nqualification as a REIT under the Code, and the method of operation of the\nCompany will permit the\n\n\n                                       12\n\n\n\n\nCompany to meet the requirements for taxation as a REIT under the Code\nbeginning with its taxable year ending December 31, 1997 and continuing for its\nsubsequent taxable years.\n\n            (E) INVESTMENT COMPANY ACT OF 1940.\n\n     The Company is not, and at the Effective Time will not be, required to be\nregistered under the 1940 Act.\n\nARTICLE IV\n\n\nCOVENANTS\n\n      SECTION 4.1  CONDUCT OF BUSINESS BY THE ZML REITS.\n\n     During the period from the date of this Agreement to the Effective Time,\neach of the ZML REITs shall carry on its businesses in the usual, regular and\nordinary course in substantially the same manner as heretofore conducted and,\nto the extent consistent therewith, use commercially reasonable efforts to\npreserve intact its current business organization, goodwill and ongoing\nbusinesses.\n\n      SECTION 4.2   TAX TREATMENT.\n\n     Each of the ZML REITs and the Company shall use its reasonable best\nefforts to cause the Merger to qualify as a reorganization under the provisions\nof Section 368(a) of the Code.\n\nARTICLE V\n\n\nCONDITIONS PRECEDENT\n\n      SECTION 5.1  CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.\n\n     The respective obligation of each party to effect the Merger and to\nconsummate the other transactions contemplated to occur on the Closing Date is\nsubject to the satisfaction or waiver on or prior to the Effective Time of the\nfollowing conditions:\n\n            (A) LISTING OF SHARES.\n\n     The New York Stock Exchange shall have approved for listing the Company\nCommon Shares to be issued in the Merger.\n\n            (B) NO INJUNCTIONS OR RESTRAINTS.\n\n     No temporary restraining order, preliminary or permanent injunction or\nother order issued by any court of competent jurisdiction or other legal\nrestraint or prohibition\n\n\n                                       13\n\n\n\n\npreventing the consummation of the Merger or any of the other transactions\ncontemplate hereby shall be in effect.\n\n            (C) BLUE SKY LAWS.\n\n     The Company shall have received all state securities or 'blue sky' permits\nand other authorizations necessary to issue the Company Common Shares\ncomprising the Merger Consideration.\n\n            (D) CERTAIN ACTIONS AND CONSENTS.\n\n     All material actions by or in respect of or filings with any Governmental\nEntity required for the consummation of the transactions contemplated hereby\nshall have been obtained or made.\n\n            (E) ISSUANCE OF FAIRNESS OPINION.\n\n     J.P. Morgan Securities, Inc. shall have delivered to the Board of Director\nor Board of Trustees, as applicable, of each of the ZML REITs a fairness\nopinion substantially in the form attached as Exhibit B hereto.\n\n      SECTION 5.2  CONDITIONS TO OBLIGATION OF THE COMPANY.\n\n     The obligation of the Company to effect the Merger and to consummate the\nother transactions contemplated to occur on the Closing Date are further\nsubject to the following conditions, any one or more of which may be waived by\nthe Company:\n\n            (A) REPRESENTATIONS AND WARRANTIES.\n\n     The representations and warranties of each of the ZML REITs set forth in\nthis Agreement shall be true and correct as of the Closing Date, as though made\non and as of the Closing Date, except to the extent the representation or\nwarranty is expressly limited by its terms to another date, and the Company\nshall have received certificates (which certificates may be qualified by\nknowledge to the same extent as such representations and warranties are so\nqualified) signed on behalf of each of the ZML REITs by the chief executive\nofficer or the chief financial officer of such ZML REIT to such effect.  This\ncondition shall be deemed satisfied unless any or all breaches of each ZML\nREIT's representations and warranties in this Agreement (without giving effect\nto any materiality qualification or limitation) is reasonably expected to have\na ZML REIT Material Adverse Effect.\n\n            (B) MATERIAL ADVERSE CHANGE.\n\n     Since the date of this Agreement, there shall have been no Material\nAdverse Change as to any ZML REIT.\n\n            (C) CONSENTS.\n\n     All consents and waivers  from third parties described in Section 3.1(c)\nshall have been obtained, other than such consents and waivers from third\nparties, which, if not\n\n\n                                       14\n\n\n\n\nobtained, would not result, individually or in the aggregate, in a ZML REIT\nMaterial Adverse Effect or a Company Material Adverse Effect.\n\n     Notwithstanding the foregoing, the Company shall not be obligated to\neffect the Merger if the failure of one or more of the conditions set forth in\nSections 5.2(a), 5.2(b) and 5.2(c) to be satisfied, in the aggregate, causes a\nCompany Material Adverse Effect.\n\n      SECTION 5.3  CONDITIONS TO OBLIGATIONS OF THE ZML REITS.\n\n     The obligations of each of the ZML REITs to effect the Merger and to\nconsummate the other transactions contemplated to occur on the Closing Date is\nfurther subject to the following conditions, any one or more of which may be\nwaived by each ZML REIT:\n\n            (A) REPRESENTATIONS AND WARRANTIES.\n\n     The representations and warranties of the Company set forth in this\nAgreement shall be true and correct as of the date of this Agreement and as of\nthe Closing Date, as though made on and as of the Closing Date, except to the\nextent the representation or warranty is expressly limited by its terms to\nanother date, and each ZML REIT shall have received a certificate (which\ncertificate may be qualified by knowledge to the same extent as the\nrepresentations and warranties of the Company contained herein are so\nqualified) signed on behalf of the Company by the Company's chief executive\nofficer and chief financial officer to such effect.  This condition shall be\ndeemed satisfied unless any or all breaches of the Company's representations\nand warranties in this Agreement (without giving effect to any materiality\nqualification or limitation) is reasonably expected to have a Company Material\nAdverse Effect.\n\n            (B) CONSENTS.\n\n     All consents and waivers from third parties described in Section 3.5(c)\nshall have been obtained, other than such consents and waivers from third\nparties, which, if not obtained, would not have a ZML REIT Material Adverse\nEffect or a Company Material Adverse Effect.\n\n     Notwithstanding the foregoing, no ZML REIT shall be obligated to effect\nthe Merger if the failure of one or more of the conditions set forth in\nSections 5.3(a) and 5.3(b) to be satisfied, in the aggregate, causes such ZML\nREIT a ZML REIT Material Adverse Effect.\n\n\n\n                                       15\n\n\n\n\nARTICLE VI\n\n\nSURVIVAL OF REPRESENTATIONS AND\nWARRANTIES; REMEDIES; INDEMNIFICATION\n\n     SECTION 6.1  SURVIVAL OF REPRESENTATIONS AND WARRANTIES; REMEDY FOR\n                  BREACH.\n\n     All of the representations and warranties contained in this Merger\nAgreement or in any document delivered pursuant hereto shall survive the\nEffective Time for a period of one (1) year from and after the Effective Time.\nAny claim for indemnification under Section 6.3 must be asserted in writing by\nthe Indemnified Party, as the case may be, stating the nature of the Losses and\nthe basis for the indemnification therefor within one (1) year from and after\nthe Effective Time. If so asserted in writing within one (1) year from and\nafter the Effective Time, such claims for indemnification shall survive until\nresolved by mutual agreement between the parties to such claim or until final\njudicial determination.  Any claim for indemnification not so asserted in\nwriting within one (1) year from and after the Effective Time shall not\nthereafter be asserted and shall forever be waived.\n\n     SECTION 6.2  INDEMNIFICATION BY COMPANY.\n\n     The Company hereby agrees to indemnify and hold harmless each of the ZML\nREITs, each of their respective directors, officers, employees, agents,\nrepresentatives and affiliates (each an 'Indemnified Party') from and against\nany and all Losses asserted against, imposed upon or incurred by the\nIndemnified Party in connection with any breach of a representation or warranty\nof the Company contained in this Merger Agreement.\n\n     SECTION 6.3  INDEMNIFICATION BY ZML REITS.\n\n     Each ZML REIT hereby agrees to indemnify and hold harmless the Company and\nits affiliates and each of their respective directors, managers, officers,\nemployees, agents, representatives and affiliates (each of which is an\n'Indemnified Party') from and against any and all losses, claims, liabilities,\ndamages, costs and expenses ('Loss') asserted against, imposed upon or incurred\nby the Indemnified Party in connection with or as a result of any breach of a\nrepresentation or warranty of such ZML REITs contained in this Merger Agreement\nor in any document delivered by the ZML REITs pursuant to this Merger Agreement\n(with any such breach being determined solely for purposes of this Section 6.3\nwithout regard to whether such breach has a Material Adverse Effect on the\nCompany).\n\n     SECTION 6.4  NOTICE AND DEFENSE OF CLAIMS.\n\n     As soon as reasonably practicable after receipt by the Indemnified Party\nof notice of any liability or claim incurred by or asserted against the\nIndemnified Party that is subject to indemnification under this Section 6 the\nIndemnified Party shall give notice thereof to the ZML REIT, including\nliabilities or claims to be applied against the indemnification threshold\nestablished pursuant to Section 6.5 hereof.  The Indemnified Party may at its\noption demand indemnity under this Article VI as soon as a claim has been\nthreatened by a third party,\n\n\n                                       16\n\n   18\n\n\nregardless of whether any actual Losses have been suffered, so long as the\nIndemnified Party shall in good faith determine that such claim is not\nfrivolous and that the Indemnified Party may be liable for, or otherwise incur,\nLosses as a result thereof and shall give notice of such determination to the\nZML REIT.  The Indemnified Party shall permit the ZML REIT, at its option and\nexpense, to assume the defense of any such claim by counsel selected by the ZML\nREIT and reasonably satisfactory to the Indemnified Party, and to settle or\notherwise dispose of the same; provided, however, that the Indemnified Party\nmay at all times participate in such defense at its expense; and provided\nfurther, however, that the ZML REIT shall not, in defense of any such claim,\nexcept with the prior written consent of the Indemnified Party in its sole and\nabsolute discretion, consent to the entry of any judgment or enter into any\nsettlement that does not include as an unconditional term thereof the giving by\nthe claimant or plaintiff in question to the Indemnified Party and its\naffiliates a release of all liabilities in respect of such claims, or that does\nnot result only in the payment of money damages.  If the ZML REIT shall fail to\nundertake such defense within 30 days after such notice, or within such shorter\ntime as may be reasonable under the circumstances, then the Indemnified Party\nshall have the right to undertake the defense, compromise or settlement of such\nliability or claim on behalf of and for the account of the ZML REIT.\n\n      SECTION 6.5  LIMITATIONS ON AND THRESHOLD FOR INDEMNIFICATION.\n\n     (a) No ZML REIT shall be liable under Sections 3.1 or 6.3 hereof unless\nand until the aggregate amount recoverable from Indemnifying Parties under the\nindemnification provisions  set forth in Section 6.3 exceeds $250,000 provided,\nhowever, that once the total amount recoverable from Indemnifying Parties\nexceeds $250,000 in the aggregate, the ZML REIT's obligation under Section 6.3\nshall be for the full amount of such obligation.\n\n     (b) Notwithstanding anything contained herein to the contrary, no ZML REIT\nshall be liable or obligated to make payments under this Agreement on any\ndocument deliveries pursuant to its terms to the extent such payments; when\naggregated with any payments made by its subsidiary Opportunity Partnership\nunder Section 5.3 of the Contribution Agreement, would exceed the net\nrealizable value (calculated from time to time as of the date or dates on which\nclaims are paid hereunder) of one percent (1%) of the Company Common Shares\nissued or which may be issued in exchange for Units issued to such Opportunity\nPartnership pursuant to Section 1.3 of the Contribution Agreement.\n\nARTICLE VII\n\n\nTERMINATION, AMENDMENT AND WAIVER\n\n      SECTION 7.1  TERMINATION.\n\n     This Agreement may be terminated at any time prior to the filing of the\nCertificates of Merger with the Secretary of State of the State of Delaware and\nthe filing of the Articles of Merger with the SDAT:\n\n     (a) by mutual written consent duly authorized by the respective Boards of\nDirectors or Boards of Trustees of each ZML REIT and the Company;\n\n\n\n                                       17\n\n\n\n\n     (b) by the Company, upon a breach of any representation, warranty,\ncovenant or agreement on the part of any ZML REIT set forth in this Agreement,\nor if any representation or warranty of the Company shall have become untrue,\nin either case such that the condition set forth in Section 5.2(a) or 5.2(b),\nas the case may be, would be incapable of being satisfied by March 31 , 1998\n(or as otherwise extended);\n\n     (c) by any ZML REIT, upon a breach of any representation, warranty,\ncovenant or agreement on the part of the Company set forth in this Agreement,\nor if any representation or warranty of the Company shall have become untrue,\nin either case such that the conditions set forth in Section 5.3(a) would be\nincapable of being satisfied by March 31 , 1998 (or as otherwise extended);\n\n     (d) by any ZML REIT or the Company, if any judgment, injunction, order,\ndecree or action by any Governmental Entity of competent authority preventing\nthe consummation of the Merger shall have become final and nonappealable; and\n\n     (e) by any ZML REIT or the Company, if the Merger shall not have been\nconsummated before  March 31 , 1998; provided, however, that a party that has\nwillfully and materially breached a representation, warranty or covenant of\nsuch party set forth in this Agreement shall not be entitled to exercise its\nright to terminate under this Section 6.1(e).\n\n      SECTION 7.2  EFFECT OF TERMINATION.\n\n     In the event of termination of this Agreement by any ZML REIT or the\nCompany as provided in Section 7.1, this Agreement shall forthwith become void\nand have no effect, without any liability or obligation on the part of any ZML\nREIT or the Company, other than Article VI and except to the extent that such\ntermination results from a material breach by a party of any of its\nrepresentations, warranties, covenants or agreements set forth in this\nAgreement.\n\n      SECTION 7.3  AMENDMENT.\n\n     This Agreement may be amended by the parties in writing by action of their\nrespective Boards of Directors or Boards of Trustees at any time before or\nafter any Shareholder Approvals are obtained and prior to the filing of the\nCertificates of Merger with the Secretary of State of the State of Delaware and\nthe Articles of Merger with SDAT; provided, however, that, after the\nShareholder Approvals are obtained, no such amendment, modification or\nsupplement shall alter the amount or change the form of the consideration to be\ndelivered to each ZML REIT's shareholders or alter or change any of the terms\nor conditions of this Agreement if such alteration or change would adversely\naffect the Company's shareholders or any ZML REIT's shareholders.\n\n      SECTION 7.4  EXTENSION; WAIVER.\n\n     At any time prior to the Effective Time, the parties may (a) extend the\ntime for the performance of any of the obligations or other acts of the other\nparty, (b) waive any inaccuracies in the representations and warranties of the\nother party contained in this Agreement or in any document delivered pursuant\nto this Agreement or (c) subject to the\n\n\n                                       18\n\n\n\n\nproviso of Section 7.3, waive compliance with any of the agreements or\nconditions of the other party contained in this Agreement.  Any agreement on\nthe part of a party to any such extension or waiver shall be valid only if set\nforth in an instrument in writing signed on behalf of such party.  The failure\nof any party to this Agreement to assert any of its rights under this Agreement\nor otherwise shall not constitute a waiver of those rights.\n\nARTICLE VIII\n\n\nGENERAL PROVISIONS\n\n      SECTION 8.1  CERTAIN DEFINITIONS.\n\n            For purposes of this Agreement:\n\n     'Material Adverse Change' means, with respect to a party hereto, any\nchange that would have a ZML REIT Material Adverse Effect or a Company Material\nAdverse Effect, as applicable.\n\n     'Subsidiary' of any person means any corporation, partnership, limited\nliability company, joint venture or other legal entity of which such person\n(either directly or through or together with another Subsidiary of such person)\nowns 20% or more of the capital stock or other equity interests of such\ncorporation, partnership, limited liability company, joint venture or other\nlegal entity.\n\n      SECTION 8.2  COUNTERPARTS.\n\n     This Agreement may be executed in one or more counterparts, all of which\nshall be considered one and the same agreement and shall become effective when\none or more counterparts have been signed by each of the parties and delivered\nto the other parties.\n\n      SECTION 8.3  GOVERNING LAW.\n\n     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE\nLAWS OF THE STATE OF MARYLAND, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE\nGOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS THEREOF, EXCEPT TO THE\nEXTENT THAT THE MERGER OR OTHER TRANSACTIONS CONTEMPLATED HEREBY ARE REQUIRED\nTO BE GOVERNED BY THE CORPORATION LAW.\n\n      SECTION 8.4  ASSIGNMENT.\n\n     Neither this Agreement nor any of the rights, interests or obligations\nunder this Agreement shall be assigned or delegated, in whole or in part, by\noperation of law or otherwise by any of the parties without the prior written\nconsent of the other parties.  Subject to the preceding sentence, this\nAgreement will be binding upon, inure to the benefit of, and be enforceable by,\nthe parties and their respective successors and assigns.\n\n\n\n                                       19\n\n\n\n\n      SECTION 8.6  SEVERABILITY.\n\n     If any provision of this Agreement is held to be illegal, invalid or\nunenforceable under any current or future law, and if the rights or obligations\nof the parties under this Agreement would not be materially and adversely\naffected thereby, such provision shall be fully separable, and this Agreement\nshall be construed and enforced as if such illegal, invalid or unenforceable\nprovision had never comprised a part thereof, the remaining provisions of this\nAgreement shall remain in full force and effect and shall not be affected by\nthe illegal, invalid or unenforceable provision or by its severance therefrom.\nIn lieu of such illegal, invalid or unenforceable provision, there shall be\nadded automatically as a part of this Agreement, a legal, valid and enforceable\nprovision as similar in terms to such illegal, invalid or unenforceable\nprovision as may be possible, and the parties hereto request the court or any\narbitrator to whom disputes relating to this Agreement are submitted to reform\nthe otherwise illegal, invalid or unenforceable provision in accordance with\nthis Section 8.7.\n\n\n\n                                       20\n\n\n\n\n     IN WITNESS WHEREOF, each of the Company, ZML REIT I, ZML REIT II, ZML REIT\nIII and ZML REIT IV has caused this Agreement to be signed by its respective\nofficers thereunto duly authorized, all as of the date first written above.\n\n                                    Equity Office Properties Trust\n\n\n\n                                    By:  \/s\/ Stanley M. Stevens\n                                         ---------------------------\n                                         Name: Stanley M. Stevens\n                                         Title: Vice President\n\n\n                                    ZML Investors, Inc.\n\n\n                                    By:  \/s\/ Sheli Z. Rosenberg\n                                         ---------------------------\n                                         Name: Sheli Z. Rosenberg\n                                         Title: Vice President\n\n\n                                    ZML Investors II, Inc.\n\n\n                                    By:  \/s\/ Sheli Z. Rosenberg\n                                         ---------------------------\n                                         Name: Sheli Z. Rosenberg\n                                         Title: Vice President\n\n\n                                    Zell\/Merrill Lynch Real Estate Opportunity\n                                         Partners III Trust\n\n\n                                    By:  \/s\/ Donald J. Liebentritt\n                                         ---------------------------\n                                         Name: Donald J. Liebentritt\n                                         Title: Vice President\n\n\n                                    Zell\/Merrill Lynch Real Estate Opportunity\n                                         Partners IV Trust\n\n\n                                    By:  \/s\/ Donald J. Liebentritt\n                                         ---------------------------\n                                         Name: Donald J. Liebentritt\n                                         Title: Vice President\n\n\n\n                                       21\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7468],"corporate_contracts_industries":[9489],"corporate_contracts_types":[9622,9626],"class_list":["post-43469","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-equity-office-properties-trust","corporate_contracts_industries-real__reits","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43469","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43469"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43469"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43469"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43469"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}