AMENDMENT TO WELLSFORD REIMBURSEMENT AGREEMENT
This Amendment to Wellsford Reimbursement Agreement (the "Amendment"), is
made as of the 30th day of May, 1997, by and between PALOMINO PARK PUBLIC
IMPROVEMENTS CORPORATION, a Colorado nonprofit corporation (the "Company");
WELLSFORD RESIDENTIAL PROPERTY TRUST, a Maryland real estate investment trust
("Wellsford REIT"); and WELLSFORD REAL PROPERTIES, INC., a Maryland
corporation ("WRP").
WHEREAS, the Company has issued its Assessment Lien Revenue Bonds, Series
1995 (the "Bonds") pursuant to the terms of an Indenture of Trust, dated as of
December 1, 1995, as amended and supplemented (the "Indenture"), between the
Company and United States Trust Company of New York, as Trustee (the
"Trustee"); and
WHEREAS, in order to further secure the payment of principal of and
interest on the Bonds, Dresdner Bank AG, New York, a banking corporation
organized and existing under the laws of The Federal Republic of Germany,
acting by and through its New York Branch (the "Bank"), has issued an
irrevocable Letter of Credit (together with any extensions, renewals or
replacements thereof, the "Letter of Credit"), in accordance with the terms of
a Letter of Credit Reimbursement Agreement, dated as of December 1, 1995 (the
"Bank Reimbursement Agreement"), between the Bank, and the Company and
Wellsford REIT, as account parties; and
WHEREAS, WRP shall succeed to the interest of Wellsford REIT pursuant to
the terms of a First Amendment to the Bank Reimbursement Agreement, by and
between the Bank, the Company, Wellsford REIT and WRP, in accordance with the
provisions of an Assignment and Assumption Agreement between WRP and Wellsford
REIT; and
WHEREAS, the Company and Wellsford REIT executed and delivered a
Reimbursement Agreement, dated as of the 1st day of December, 1995 (the
"Reimbursement Agreement"), pursuant to which the Company agreed, among other
things, to pay, indemnify, reimburse, exonerate and hold Wellsford REIT
harmless against any loss, liability, demand or cost incurred by Wellsford
REIT in connection with the Bank Reimbursement Agreement; and
WHEREAS, the parties desire to amend the Reimbursement Agreement as
hereinafter provided.
NOW THEREFORE for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
a. Wellsford REIT hereby assigns all its right, titles and interest in
the Reimbursement Agreement to WRP. WRP hereby assumes all obligations of
Wellsford REIT arising out of or in connection with the Reimbursement
Agreement, and covenants and agrees that it shall perform the obligations of
Wellsford REIT thereunder. WRP is hereby constituted as successor to
Wellsford REIT, and Wellsford REIT is released from all liability under the
Reimbursement Agreement and documents executed in connection therewith. The
Company hereby consent to such assignment and assumption, and to the merger of
Wellsford REIT and Equity Residential Properties Trust, a Maryland real estate
investment trust. The Company hereby covenants and agrees that it shall be
obligated to WRP in like manner and to the same extend as provided in the
Reimbursement Agreement with respect to the obligations of the Company to
Wellsford REIT. Unless the context clearly requires, all references in the
Reimbursement Agreement to Wellsford Residential Property Trust shall be
deemed references to Wellsford Real Properties, Inc.
b. The Company represents and warrants to WRP as follows:
(a) The Company has all requisite power to enter into and satisfy
its obligations under this Amendment.
(b) The execution, delivery and performance of this Amendment and
the transactions contemplated hereby are (i) within the authority of the
Company, (ii) have been duly authorized by all necessary proceedings on
the part of the Company, (iii) do not and will not conflict with a result
and a breach or contravention of any provision of law, statute, rule or
regulation to which the Company is subject to any judgment, order, writ,
injunction, license or permit applicable to the Company, or its
properties, (iv) do not and will not conflict with or constitute a
default (whether with a passage of time or the giving of notice or both)
under any provision of the charter documents, partnership agreement,
declaration of trust, articles of Incorporation or other documents or
bylaws of or any other agreement or other instrument binding upon, the
Company or any of its properties, and (v) do not and will not result in
or require the imposition of any lien or encumbrances on any of the
properties, assets or rights of the Company or any of its properties.
(c) This Amendment is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms and
provisions hereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to
the extent the availability of the remedies of specific performance or
injunctive relief is subject to the discretion of the court before which
any proceedings thereof may be brought.
(d) There are no actions, suits, proceedings or investigations of
any kind pending or threatening against the Company, or any of the
subsidiaries of the Company before any court, tribunal or administrative
agency or board that, if adversely determined, might either in any case
or in the aggregate, materially adversely effect the properties, assets,
financial conditions, or business of such person or materially impair the
right of such person to carry on business substantially as now conducted
by it, or result in any liability not adequately covered by insurance, or
for which adequate reserves are not maintained on the balance sheets of
such person.
c. The Company hereby agrees to pay to WRP, upon demand, any and all
reasonable expenses of the WRP, including reasonable attorney fees and
expenses, incurred or paid by WRP, in connection with the preparation and
negotiation of this Amendment, the request for release and other documents and
agreements referred to herein or contemplated hereby.
d. Except as modified herein, the Reimbursement Agreement is hereby
ratified and confirmed in its original form.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Letter of Credit Reimbursement Agreement as of the day and year first above
written.
PALOMINO PARK PUBLIC IMPROVEMENTS CORPORATION
By:/s/ Xxxxx X. Xxxxxx
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Title: Vice President
WELLSFORD RESIDENTIAL PROPERTY TRUST
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Title: Vice President
WELLSFORD REAL PROPERTY, INC.
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Title: Vice President
