AGREEMENT AND ACKNOWLEDGEMENT
REGARDING TRI-PARTY AGREEMENT
This Agreement (this "Agreement") is made and entered into as of this
30th day of May, 1997, by and between Nationsbank of Texas, N.A., a national
banking association ("Nationsbank"), Park at Highlands LLC, a Colorado limited
liability company ("Borrower"), Wellsford Park Highlands Corp., a Colorado
corporation ("WPHC"), and ERP Operating Limited Partnership, an Illinois
limited partnership ("ERP Operating Partnership").
RECITALS
15 Reference is hereby made to that certain Tri-Party Agreement dated
December 29, 1995, by and among Xxxxxxxxxxx, Xxxxxxxx, Xxxxxxxxx Xxxx
Xxxxxxxxx Corp., a Colorado corporation, Wellsford Residential Property Trust,
a Maryland real estate investment trust ("WRPT"), Xx Xxxx, an individual and
the Xxxx Company, a Colorado corporation (the "Phase I Tri-Party Agreement"),
executed in connection with that certain construction loan in the original
principal amount of $36,757,533.00 from Nationsbank to Borrower for the
development of a 456-unit apartment complex and related facilities in
Highlands Ranch, Xxxxxxx County, Colorado (the "Project").
16 Subsequent to the execution of the Phase I Tri-Party Agreement, WRPT
entered into that certain Agreement and Plan of Merger dated as of January 16,
1997, by and between Equity Residential Properties Trust, a Maryland real
estate investment trust ("ERPT"), and WRPT in connection with the merger of
ERPT with and into WRPT.
17 ERPT is the general partner of ERP Operating Partnership.
18 The obligations of WRPT pursuant to the Phase I Tri-Party Agreement
have been or will be assigned to and assumed by ERP Operating Partnership
pursuant to that certain Assignment and Assumption of Tri-Party Agreement (the
"Tri-Party Assignment").
19 The parties hereto now desire to enter into this Agreement in order
to confirm the status of certain items contained in the Phase I Tri-Party
Agreement.
NOW, THEREFORE, for and in consideration of the above recitals and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to and confirm the following:
19.1 The Phase I Tri-Party Agreement (including all Exhibits thereto) is
in full force and effect and has not been assigned, modified, supplemented or
amended in any way, except as described in Paragraph 4 below.
19.2 Nationsbank has not delivered to WRPT any Default Notice (as defined
in the Phase I Tri-Party Agreement) pursuant to Paragraph 9(a) of the Phase I
Tri-Party Agreement with respect to WRPT that has not been cured.
19.3 Subject to Nationsbank's rights under Paragraph 3(b) of the Phase I
Tri-Party Agreement, the total amount of the Final Project Budget (as defined
in the Phase I Tri-Party Agreement) as it relates to the Project has not been
modified, supplemented or amended in any way.
19.4 Nationsbank acknowledges that obligations of WRPT pursuant to the
Phase I Tri-Party Agreement have been assigned to and assumed by ERP Operating
Partnership pursuant to the Tri-Party Assignment.
19.5 The parties hereto shall look solely to ERP Operating Partnership
for the performance of all obligations of WRPT pursuant to the Phase I Tri-
Party Agreement.
19.6 All obligations of ERP Operating Partnership, as assignee of WRPT,
to Nationsbank with respect to the Project are as set forth in the Phase I
Tri-Party Agreement and have not been amended or modified in any way.
19.7 From and after the date hereof, a copy of any notice or
communication required or permitted to be given to WRPT pursuant to the Phase
I Tri-Party Agreement, shall now be sent to ERP Operating Limited Partnership,
0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, attention:
President, with a copy to (i) Equity Residential Properties Trust, Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: President and
Xxxxx X. Xxxxxx, Esq. and (ii) Xxxxxxx & Xxxxx, 000 X. XxXxxxx Xx., Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Esq.
19.8 This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado.
19.9 Except as set forth herein and in the Tri-Party Assignment, the
Phase I Tri-Party Agreement is hereby ratified and confirmed and shall not be
otherwise amended or modified by this or any other instrument.
19.10 This Agreement may be executed in one or more counterparts, all
of which when taken together shall constitute the entire Agreement of the
parties.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement
as of the day and year first above written.
NATIONSBANK OF TEXAS, N.A., a
national banking association
By:/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
PARK AT HIGHLANDS LLC,
a Colorado limited liability company
By:/s/ xx Xxxx
----------------------------------
Xx Xxxx, Manager
WELLSFORD PARK HIGHLANDS CORP.,
a Colorado corporation
By:/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
Vice President
ERP OPERATING LIMITED PARTNERSHIP, an Illinois
limited partnership
By: EQUITY RESIDENTIAL PROPERTIES TRUST, its
general partner
By:/s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
