ASSIGNMENT AND ASSUMPTION OF
TRI-PARTY AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF TRI-PARTY AGREEMENT (this
"Assignment"), is made and entered into as of the ______ day of May, 1997, by
and between WELLSFORD RESIDENTIAL PROPERTY TRUST, a Maryland real estate
investment trust (hereinafter called "Assignor"), ERP OPERATING LIMITED
PARTNERSHIP, an Illinois limited partnership (hereinafter called "Assignee"),
PARK AT HIGHLANDS LLC, a Colorado limited liability company ("Park at
Highlands"), WELLSFORD PARK HIGHLANDS CORP., a Colorado corporation ("WPHC"),
THE XXXX COMPANY, a Colorado corporation ("Xxxx Company"), XX XXXX, an
individual and NATIONSBANK OF TEXAS, N.A., a national banking association
("Nationsbank").
RECITALS
10 Reference is hereby made to that certain Tri-Party Agreement dated
December 29, 1995, by and among Nationsbank, Assignor, Park at Highlands,
WPHC, Xx Xxxx, and Xxxx Company (the "Phase I Tri-Party Agreement"). The
Phase I Tri-Party Agreement was executed in connection with that certain
construction loan in the original principal amount of $36,757,533.00 from
Nationsbank to Park at Highlands for the development of a 456-unit apartment
complex and related facilities in Highlands Ranch, Xxxxxxx County, Colorado
(the "Project").
11 Subsequent to the execution of the Phase I Tri-Party Agreement,
Assignor entered into that certain Agreement and Plan of Merger (the "Merger
Agreement") dated as of January 16, 1997, by and between Equity Residential
Properties Trust, a Maryland real estate investment trust ("ERPT"), and
Assignor in connection with the merger of ERPT with and into Assignor.
12 ERPT is the general partner of Assignee.
13 Pursuant to the Merger Agreement, Assignor is obligated to assign to
Assignee, and Assignee has agreed to assume, all of Assignor's rights,
interests and obligations under the Phase I Tri-Party Agreement.
14 The parties hereto now desire to enter into this Assignment in order
to effectuate the above-referenced assignment and assumption of Assignor's
rights, interests and obligations under the Phase I Tri-Party Agreement and to
evidence the consent to such assignment and assumption by the parties hereto.
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
14.1 Assignment. Assignor does hereby transfer, assign, grant, delegate
and convey to Assignee, its successors and assigns, and Assignee, for itself
and its successors and assigns, does hereby assume, all of Assignor's rights,
interests and obligations in, to and under the Phase I Tri-Party Agreement
from and after the date hereof.
14.2 Consent To Assignment. Nationsbank and each other party hereto does
hereby consent to and acknowledge the above assignment and agrees to look
solely to Assignee from and after the date hereof for the performance of all
duties and obligations that were previously the responsibility of Assignor
under the Phase I Tri-Party Agreement. Any further assignment of the Phase I
Tri-Party Assignment shall require the prior written consent of Nationsbank.
14.3 Original Documents. Concurrently with the execution and delivery of
this Assignment, Assignor shall deliver to Assignee any original copies of the
Phase I Tri-Party Agreement, together with all exhibits, addenda and
amendments thereto, in Assignor's possession.
14.4 Notice to Assignee. The parties hereto agree that from and after
the date hereof, a copy of any notice or communication required or permitted
to be given to Assignor 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.
14.5 Governing Law. This Assignment shall be governed by and construed
in accordance with the laws of the State of Colorado.
14.6 Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
14.7 Headings. The headings of the paragraphs of this Assignment have
been included only for convenience, and shall not be deemed in any manner to
modify or limit any of the provisions of this Assignment or be used in any
manner in the interpretation of this Assignment.
14.8 Interpretation. Whenever the context so requires in this
Assignment, all words used in the singular shall be construed to have been
used in the plural (and vice versa), each gender shall be construed to include
any other genders, and the word "person" shall be construed to include a
natural person, a corporation, a firm, a partnership, a joint venture, a
trust, an estate or any other entity.
14.9 Partial Invalidity. Each provision of this Assignment shall be
valid and enforceable to the fullest extent permitted by law. If any
provision of this Assignment or the application of such provision to any
person or circumstance shall, to any extent, be invalid or unenforceable, then
the remainder of this Assignment, or the application of such provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected by such invalidity or unenforceability.
14.10 Further Agreements. Assignor agrees to execute and deliver to
Assignee such additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Assignment.
14.11 Limitation of Liability. This Assignment and all documents,
agreements, understandings and arrangements
relating to this Assignment have been executed by the undersigned on behalf of
Assignor in his/her capacity as an officer or trustee of Assignor which has
been formed as a Maryland real estate investment trust pursuant to a
Declaration of Trust of Assignor dated as of July 10, 1992, and not
individually, and neither the trustees, officers or shareholders of Assignor
shall be bound by or have any personal liability hereunder or thereunder. The
beneficiary of this Assignment shall look solely to the assets of Assignor for
satisfaction of any liability of Assignor in respect of this Assignment and
all documents, agreements, understandings and arrangements relating to this
transaction and will not seek recourse or commence any action against any of
the trustees, officers or shareholders of Assignor or any of their personal
assets for the performance or payment of any obligation hereunder or
thereunder. The foregoing shall also apply to all and any future documents,
agreements, understandings, arrangements and transactions between the parties
hereto with respect to the this Assignment or any matter related thereto.
14.12 Counterparts. This Assignment 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 executed this Assignment as
of the date above first written.
WELLSFORD RESIDENTIAL PROPERTY TRUST,
a Maryland real estate investment
trust
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: 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
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, Manager
--------------------------------------
Xx Xxxx, Manager
WELLSFORD PARK HIGHLANDS CORP., a Colorado
corporation
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx,
Vice President
THE XXXX COMPANY, a Colorado corporation
By: /s/ Xx Xxxx
--------------------------------------
Xx Xxxx, President
--------------------------------------
Xx Xxxx
