FIRST AMENDMENT TO OPERATING AGREEMENT
OF PARK AT HIGHLANDS LLC
THIS FIRST AMENDMENT TO OPERATING AGREEMENT OF PARK AT HIGHLANDS LLC (this
"First Amendment") is made as of the 29th day of December, 1995, by and between
XX XXXX, an individual ("Xxxx") and WELLSFORD PARK HIGHLANDS CORP., a Colorado
corporation ("WPHC").
RECITALS
X. Xxxx and WPHC constitute all of the members (collectively, the
"Members") of Park at Highlands LLC, a Colorado limited liability company (the
"Company"), which is governed by that certain Operating Agreement of Park at
Highlands LLC (the "Operating Agreement") dated as of April 27, 1995.
B. The Members now desire to amend the Operating Agreement as set forth
herein.
C. Capitalized terms not otherwise defined herein shall have the
definitions set forth in the Operating 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, Xxxx and WPHC hereby agree to amend the Operating Agreement as
follows:
1. Construction Loan Outside Date. The Construction Loan Outside Date as
defined in Section 5.2.4 of the Operating Agreement is hereby postponed to
January 5, 1996
2. Cost Savings Fee. The first sentence of Section 7.4 of the Operating
Agreement is hereby deleted in its entirety and the following is substituted
therefor:
"The Company shall pay Xxxx at Final Closing a cost savings fee equal to
twenty-five percent (25%) of cost savings, if any."
3. Attorneys Fees. The following paragraph is hereby added to the Operating
Agreement as new Section 19.17 thereof:
19.17 ATTORNEYS FEES. Should any party hereto institute any legal action or
proceeding to enforce any provision of the Operating Agreement or for
damages by reason of any alleged breach of any provision of the Operating
Agreement or for any other judicial remedy, the prevailing party shall be
entitled to receive from the non-prevailing party all reasonable attorneys'
fees and all court costs in connection with said action or proceeding, in
addition to any other award.
4. Exhibits to Operating Agreement. The Members hereby agree that the
exhibits listed below, a copy of each of which is attached hereto and
incorporated herein, are hereby attached to and made a part of the Operating
Agreement to the same effect as if each had been fully set forth in the
Operating Agreement at the date it was executed by the Members and that each of
the exhibits attached to this First Amendment is hereby substituted for and
shall supersede the corresponding exhibit attached to the Operating Agreement,
if any:
Exhibit C Deposit and Contract Administration Agreement
Exhibit E Description of Infrastructure
Exhibit F Description of Infrastructure Land
Exhibit J Property Management Agreement
Exhibit L Pledge and Security Agreement--Xxxx to WPHC
Exhibit M Pledge and Security Agreement--WPHC to Xxxx
Exhibit N Description of Plans and Specifications
Exhibit O Final Project Budget
Exhibit U Substitution Agreement
5. Full Force and Effect. The Operating Agreement, as specifically amended
herein, is hereby ratified by the Members and shall remain in full force and
effect.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which,
when taken together, shall constitute one agreement binding on the parties
hereto, notwithstanding that all the parties may not have signed the same
counterpart. Signature pages from one counterpart may be removed and attached to
another counterpart to create one fully-executed document.
[SIGNATURE PAGE FOLLOWS]
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto, being all of the Members of the
Company, have executed this Amendment as of the date first written above.
By: /s/ Xx Xxxx
--------------------
Xx Xxxx
WELLSFORD PARK HIGHLANDS CORP.,
a Colorado corporation
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------
Xxxxxx X. XxxXxxxxx, Vice President
EXHIBIT J
PROPERTY MANAGEMENT AGREEMENT
(Has been prepared by Xxxxx Xxxxxx, but I do not yet have a copy)
EXHIBIT L
PLEDGE AND SECURITY AGREEMENT--XXXX TO WPHC
THIS PLEDGE AND SECURITY AGREEMENT (THIS "AGREEMENT") is made as of the
27th day of April, 1995, by XX XXXX, an individual, having an address of 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 ("PLEDGOR"), for the
benefit of WELLSFORD PARK HIGHLANDS CORP., a Colorado corporation, having an
office at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
("PLEDGEE").
RECITALS
A. Pledgor is the Manager and a Member of Park at Highlands LLC, a Colorado
limited liability company (THE "LIMITED LIABILITY COMPANY"), which Limited
Liability Company is governed by its Operating Agreement dated as of April 27,
1995 (THE "OPERATING AGREEMENT"), by and between Pledgee and Pledgor.
B. Pledgee is also a Member in the Limited Liability Company.
C. In order to secure the full payment and performance by Pledgor of all of
Pledgor's obligations under the Operating Agreement, as such Operating Agreement
may be now or hereafter amended, modified or restated (said obligations under
the Operating Agreement are hereinafter referred to as the "OBLIGATIONS"),
Pledgor is entering into this Agreement for the benefit of Pledgee.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals, covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Definitions.
a. "Collateral" shall mean:
(i) All of Pledgor's right, title and interest in the ownership interests
of Pledgor in Limited Liability Company, whether now owned or hereafter
acquired, including, without limitation, its Interest (as defined in the
Operating Agreement) in the Limited Liability Company, the right of Pledgor, if
any, to any benefits to which Pledgor may be entitled pursuant to the Operating
Agreement or the Colorado Limited Liability Company Act, Colo. Rev. Statutes
Sections 7-80-101 to 7-80-913, as amended from time to time (the "Act"), and
Pledgor's right to receive payments, fees, distributions and allocations under
or in connection with the Operating Agreement (whether as Member or as Manager),
as such Operating
Agreement may be modified or extended from time to time with the consent of
the Pledgee; and
(ii) All proceeds, whether cash proceeds or noncash proceeds, and products
of any and all of the foregoing.
b. "Event of Default" shall mean an event of default described in Section 8
herein.
2. Pledge of Collateral and Grant of Security Interest. Pledgor does hereby
unconditionally and irrevocably assign, pledge, convey, transfer, deliver, set
over and grant unto Pledgee, its successors and assigns, as security for
Pledgor's complete and timely payment and performance of the Obligations, a
continuing first lien security interest under the Uniform Commercial Code of the
State of Colorado in the Collateral. Pledgor hereby further grants to Pledgee
all rights in the Collateral as are available to a secured party of such
collateral under the Uniform Commercial Code of the State of Colorado (being the
principal place of business of Pledgor and the location of Pledgor's residence)
and, concurrently herewith, shall deliver to Pledgee duly executed UCC-1
financing statements suitable for filing in the State of Colorado with respect
to the Collateral.
3. Delivery to Pledgee.
a. Pledgor agrees to execute and to use its best efforts to cause all other
necessary parties, and any successors and assigns thereof, to execute and
deliver to Pledgee such other agreements, instruments and documentation as
Pledgee may reasonably request from time to time to effect the conveyance,
transfer, and grant to Pledgee of Pledgor's right, title and interest in and to
the Collateral as security for the Obligations.
b. Concurrently with the execution of this Agreement, Pledgor has caused
each of the Members of the Limited Liability Company, other than Pledgee, to
execute the Consent to Security Interest and Agreement in the form attached
hereto as Schedule A (THE "CONSENT") evidencing the consent of the Members to
the assignment of Pledgor's Limited Liability Company interests and their
agreement to be bound by Section 4 of this Agreement, and Pledgor covenants to
execute, if required by Pledgee, an amendment to the Operating Agreement in such
form as Pledgee may reasonably require to reflect the substitution of Pledgee in
place of Pledgor as Manager of the Limited Liability Company upon the occurrence
of an Event of Default. Pledgor further agrees to execute and to cause the other
Members of the Limited Liability Company to execute and deliver to the Pledgee
such other agreements, instruments and documentation as Pledgee may reasonably
request from time to time to effectuate the conveyance, transfer, assignment and
grant to Pledgee of all of Pledgor's right, title and interest in and to the
Collateral and to evidence the substitution of the Pledgee in place of Pledgor
as Manager in the Limited Liability Company.
4. Proceeds and Products of the Collateral.
a. Notwithstanding any of the foregoing, unless and until there occurs an
Event of Default, Pledgee agrees to forbear from exercising its right to receive
all benefits pertaining to the Collateral (except as otherwise permitted under
the Operating Agreement), and Pledgor shall be permitted to exercise all rights
and to receive all benefits of the Collateral, including, without limitation,
the right to exercise all voting, approval, consent and similar rights of
Pledgor pertaining to the Collateral, payments due under, proceeds, whether cash
proceeds or noncash proceeds, and products of the Collateral and to retain and
enjoy the same.
b. Pledgor acknowledges and agrees with Pledgee, that unless Pledgee
otherwise consents, in Pledgee's sole discretion, Pledgor shall not exercise any
voting, approval, consent or other rights with respect to the Collateral at any
time after (i) the occurrence of an Event of Default and (ii) receipt of notice
from Pledgee instructing Pledgor not to exercise any such voting, approval,
consent or other rights with respect to the Collateral, provided, however, that
Pledgor shall exercise any such right it may have under the agreements
comprising the Collateral with respect to the business affairs of the Limited
Liability Company as is reasonably necessary to protect and preserve the
Collateral.
c. Upon or at any time after the occurrence of an Event of Default,
Pledgee, at its option, to be exercised in its sole discretion by written notice
to Pledgor, may exercise all rights and remedies granted under this Agreement,
including, without limitation, the right to require the obligors under the
Collateral to make all payments due under and to pay all proceeds, whether cash
proceeds or noncash proceeds, and products of the Collateral to Pledgee. Upon
the giving of any such notice, the security constituted by this Agreement shall
become immediately enforceable by Pledgee, without any presentment, further
demand, protest or other notice of any kind, all of which are hereby expressly
and irrevocably waived by Pledgor. Pledgor hereby authorizes and directs each
respective obligor under the agreements constituting the Collateral, that upon
receipt of written notice from Pledgee of an Event of Default by Pledgor
hereunder, to assign, set over, transfer, distribute, pay and deliver any and
all Collateral or said payments, proceeds or products of the Collateral to
Pledgee, at such address as Pledgee may direct, at such time and in such manner
as Collateral and such payments, proceeds and products of the Collateral would
otherwise be distributed, transferred, paid or delivered to Pledgor. The
respective obligors under the agreements constituting the Collateral shall be
entitled to conclusively rely on such notice and make all such assignments and
transfers of the Collateral and all such payments with respect to the Collateral
and pay all such proceeds and products of the Collateral to Pledgee and shall
have no liability to Pledgor for any loss or damage Pledgor may incur by reason
of said reliance.
5. No Assumption. Notwithstanding any of the foregoing, whether or not an
Event of Default shall have occurred, and whether or not Pledgee elects to
foreclose on its security interest in the Collateral as set forth herein,
neither the execution of this Agreement, receipt by Pledgee of any of Pledgor's
right, title and interest in and to the Collateral and the payments, proceeds
and products of the Collateral, now or hereafter due to Pledgor from any obligor
of the Collateral, nor Pledgee's foreclosure of its security interest in the
Collateral, shall in any
way be deemed to obligate Pledgee to assume any of Pledgor's obligations, duties
or liabilities under the Collateral or any agreements constituting the
Collateral, as presently existing or as hereafter amended, or under any and all
other agreements now existing or hereafter drafted or executed (collectively,
the "PLEDGOR'S LIABILITIES"), unless Pledgee otherwise agrees to assume any or
all of Pledgor's Liabilities in writing. In the event of foreclosure by Pledgee
of its security interest in the Collateral, Pledgor shall remain bound and
obligated to perform the Pledgor's Liabilities to the extent required under the
Operating Agreement, and Pledgee shall not be deemed to have assumed any of the
Pledgor's Liabilities, except as provided in the preceding sentence. In the
event the entity or person acquiring the Collateral at a foreclosure sale elects
to assume the Pledgor's Liabilities, such assignee shall agree to be bound by
the terms and provisions of the applicable agreement.
6. Indemnification. Pledgor hereby agrees to indemnify, defend and hold
Pledgee, its successors and assigns harmless from and against any and all
damages, losses, claims, costs or expenses (including without limitation,
reasonable attorneys' fees) and any other liabilities whatsoever that Pledgee or
its successors or assigns may incur by reason of Pledgor's failure to comply
with the terms and conditions of this Agreement or by reason of any unpermitted
assignment of Pledgor's right, title and interest in and to any or all of the
Collateral.
7. Representations, Warranties and Covenants. In addition to the
representations made by Pledgor in the Operating Agreement, Pledgor makes the
following representations and warranties, and Pledgor covenants and agrees to
provide written notices to Pledgee within ten (10) days after Pledgor becomes
aware that any of the following is no longer true and correct and to perform
diligently all acts reasonably necessary to maintain or restore the truth and
correctness, in all material respects, of the following:
a. Pledgor acknowledges that the Operating Agreement and any other
agreements constituting the Collateral, currently are in full force and effect
and have not been amended or modified, except by Pledgor and Pledgee in writing.
b. Pledgor has the full right and title to its interest in the Collateral
and has the full power, legal right and authority to pledge, convey, transfer
and assign such interest. None of the Collateral is subject to any existing
assignment, claim, lien, pledge, transfer or other security interest of any
character, or to any attachment, levy, garnishment or other judicial process or
to any claim for set-off, counterclaim, deduction or discount. Pledgor shall
not, without the prior written consent of Pledgee, which consent may be granted
or denied in Pledgee's sole discretion, further convey, transfer, set over or
pledge to any party any of its interests in the Collateral. Pledgor agrees to
(i) warrant and defend its title to the Collateral and the security interest
created by this Agreement against all claims of all persons, and (ii) maintain
and preserve the Collateral and such security interests.
c. The pledge of the Collateral pursuant to this Agreement creates a valid
first priority security interest in the Collateral, securing the performance of
the
Obligations, which security interest shall be perfected upon the filing of the
UCC-1 Financing Statements referred to in Paragraph 2 of this Agreement.
d. Pledgor's Social Security Number is: ###-##-####, and Pledgor's
principal residence is located at Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
e. Pledgor agrees that it shall not, without at least thirty (30) days'
prior written notification to Pledgee, move or otherwise change its place of
residence.
f. To the best knowledge of Pledgor, neither the execution and delivery of
this Agreement by Pledgor nor the consummation of the transactions herein
contemplated nor the fulfillment of the terms hereof (i) violate the terms of
any agreement, indenture, mortgage, deed of trust, equipment lease, instrument
or other document to which Pledgor is a party, or (ii) conflict with any law,
order, rule or regulation applicable to Pledgor or any court or any government,
regulatory body or administrative agency or other governmental body having
jurisdiction over Pledgor or its properties, or (iii) result in or require the
creation or imposition of any lien (other than the first priority lien of
Pledgee in the Collateral contemplated hereby).
g. No consent or approval which has not been obtained prior to the date
hereof of any other person or entity and no authorization, approval or other
action by, and no notice to or filing with any governmental body, regulatory
authority or securities exchange, was or is necessary as a condition to the
validity of the pledge hereunder of the Collateral and such pledge is effective
to vest in the Pledgee the rights of Pledgee in the Collateral as set forth
herein.
h. Pledgor shall comply in all material respects with all requirements of
law applicable to the Collateral or any part thereof.
i. Pledgor shall pay and discharge all taxes, assessments and governmental
charges or levies against any Collateral prior to delinquency thereof and shall
keep all Collateral free of all unpaid charges whatsoever.
8. Event of Default. Each of the following shall constitute an Event of
Default hereunder:
a. A breach of any representation, warranty, covenant or obligation of
Pledgor shall have occurred under the Operating Agreement and such breach shall
not have been cured within any applicable grace period provided therein; or
b. Any warranty, representation or statement of the Pledgor in this
Agreement proves to have been false in any material respect when made or
furnished; or
c. There occurs the issuance of a writ, order of attachment or garnishment
with respect to any of the Collateral and such writ, order of attachment or
garnishment is not dismissed and removed within thirty (30) days thereafter; or
d. A material breach or violation of any covenant or agreement contained
herein shall have occurred, which is not cured within thirty (30) days after
notice has been given to Pledgor by Pledgee.
Any Event of Default under this Agreement shall be an event of default by
Pledgor under the Operating Agreement.
9. Remedies.
a. Upon the occurrence of an Event of Default, Pledgee may by giving notice
of such Event of Default, at its option, do any one or more of the following:
(i) Take control of the Collateral and thereafter exercise all rights and
powers of Pledgor with respect to the Collateral; and
(ii) Without notice to or demand upon Pledgor, make such payments and do
such acts as Pledgee may deem necessary to protect its security interest in the
Collateral, including, without limitation, paying, purchasing, contesting or
compromising any encumbrance, charge or lien which is prior to or superior to
the security interest granted hereunder, and in exercising any such powers or
authority to pay all expenses incurred in connection therewith; and
(iii) Require Pledgor to take all actions necessary to deliver such
Collateral to Pledgee, or an agent or representative designated by Pledgee; and
(iv) Foreclose upon this Agreement as herein provided or in any
commercially reasonable manner permitted by law, and exercise any and all of the
rights and remedies conferred upon Pledgee by the Operating Agreement, or in any
other document executed by Pledgor in connection with the Obligations secured
hereby; and sell or cause to be sold the Collateral, without affecting in any
way the rights or remedies to which Pledgee may be entitled under the other such
instruments; and
(v) Sell or otherwise dispose of the Collateral at public sale, without
having the Collateral at the place of sale, and upon terms and in such manner as
is commercially reasonable, may determine. Pledgee may be a purchaser at any
sale; and
(vi) Exercise any remedies of a secured party under the Uniform Commercial
Code of the State of Colorado or any other applicable law; and
(vii) Exercise any remedies available to Pledgee under the Operating
Agreement, including, but not limited to, the removal of the Pledgor as the
Manager and a Member of the Limited Liability Company and exercise of any rights
of offset in favor of Pledgee as the Manager and a Member of the Limited
Liability Company; and
(viii) Notwithstanding anything to the contrary contained in this
Agreement, at any time after an Event of Default Pledgee may, by delivering
written notice to the Limited Liability Company and to the Pledgor, succeed, or
designate its nominee or designee to succeed, to all right, title and interest
of Pledgor (including, without limitation, the right, if any, to vote on or take
any action with respect to the matters of the Limited Liability Company) as the
Manager and/or a Member of the Limited Liability Company in respect of the
Collateral. Pledgor hereby irrevocably authorizes and directs the Limited
Liability Company on receipt of any such notice (a) to deem and treat Pledgee or
such nominee or designee in all respects as the Manager and/or a Member (and not
merely an assignee of the Manager and/or a Member) of such Limited Liability
Company, entitled to exercise all the rights, powers and privileges (including
the right to vote on or take any action with respect to Limited Liability
Company matters pursuant to the Operating Agreement, to receive all
distributions, to be credited with the capital account and to have all other
rights, powers and privileges appertaining to the Collateral to which Pledgor
would have been entitled had the Collateral not been transferred to Pledgee or
such nominee or designee), and (b) to file amended Articles of Organization for
such Limited Liability Company, if required, admitting Pledgee or such nominee
or designee as the Manager and/or a Member of the Limited Liability Company in
place of Pledgor; and
(ix) The rights granted to Pledgee under this Agreement are of a special,
unique, unusual and extraordinary character. The loss of any of such rights
cannot be reasonably or adequately compensated by way of damages in any action
at law, and any material breach by Pledgor of any of Pledgor's covenants,
agreements, obligations representations or warranties under this Agreement will
cause Pledgee irreparable injury and damage. In the event of any such breach,
Pledgee shall be entitled, as a matter of right, to injunctive relief or other
equitable relief in any court of competent jurisdiction to prevent the violation
or contravention of any of the provisions of this Agreement or to compel
compliance with the terms of this Agreement by Pledgor. Pledgee is absolutely
and irrevocably authorized and empowered by Pledgor to demand specific
performance of each of the covenants, agreements, representations and warranties
of Pledgor in this Agreement. Pledgor hereby irrevocably waives any defense
based on the adequacy of any remedy at law which might otherwise be asserted by
Pledgor as a bar to the remedy of specific performance in any action brought by
Pledgee against Pledgor to enforce any of the covenants or agreements of Pledgor
in this Agreement.
b. Unless the Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Pledgee shall
give Pledgor at least ten (10) days' prior written notice of the time and place
of any public sale of the Collateral subject to this Agreement or other intended
disposition thereof to be made. Such notice shall be conclusively deemed to have
been delivered to Pledgor at the address set forth in subsection 7(d) of this
Agreement, unless Pledgor shall notify Pledgee in writing of any change of its
place of residence and provide Pledgee with the address of its new place of
residence.
c. The proceeds of any sale under Subsections 9(a)(iv) and (v) above shall
be applied as follows:
(i) To the repayment of all reasonable costs and expenses of retaking,
holding and preparing for the sale and the selling of the Collateral (including
actual reasonable legal expenses and attorneys' fees) and the discharge of all
assessments, encumbrances, charges or liens, if any, on the Collateral prior to
the lien hereof (except any taxes, assessments, encumbrances, charges or liens
subject to which such sale shall have been made);
(ii) To the payment of the whole amount, if any, of the Obligations, as and
when the same become due; and
(iii) The aggregate surplus, if any, shall be paid to Pledgor in a lump
sum, without recourse to Pledgee, or as a court of competent jurisdiction may
direct.
d. Pledgee shall have the right to enforce one or more remedies under this
Agreement and under the Operating Agreement, successively or concurrently, and
such action shall not operate to estop or prevent Pledgee from pursuing any
further remedy which it may have, and any repossession or retaking or sale of
the Collateral pursuant to the terms hereof shall not operate to release Pledgor
until full payment of any deficiency has been made in cash.
e. PLEDGOR ACKNOWLEDGES THAT PLEDGEE MAY BE UNABLE TO EFFECT A PUBLIC SALE
OF ALL OR ANY PART OF THE COLLATERAL AND MAY BE COMPELLED TO RESORT TO ONE OR
MORE PRIVATE SALES TO A RESTRICTED GROUP OF PURCHASERS WHO WILL BE OBLIGATED TO
AGREE, AMONG OTHER THINGS, TO ACQUIRE THE COLLATERAL FOR ITS OWN ACCOUNT, FOR
INVESTMENT AND NOT WITH A VIEW TO THE DISTRIBUTION OR RESALE THEREOF. PLEDGOR
FURTHER ACKNOWLEDGES THAT ANY SUCH PRIVATE SALES MAY BE AT PRICES AND ON TERMS
LESS FAVORABLE THAN THOSE OF PUBLIC SALES, AND AGREES THAT PROVIDED SUCH PRIVATE
SALES ARE MADE IN A COMMERCIALLY REASONABLE MANNER, PLEDGEE SHALL HAVE NO
OBLIGATION TO DELAY SALE OF ANY COLLATERAL TO PERMIT THE ISSUER THEREOF TO
REGISTER IT FOR PUBLIC SALE UNDER THE SECURITIES ACT OF 1933. PLEDGOR AGREES
THAT PLEDGEE SHALL BE PERMITTED TO TAKE SUCH ACTIONS AS PLEDGEE DEEMS REASONABLY
NECESSARY IN DISPOSING OF THE COLLATERAL TO AVOID CONDUCTING A PUBLIC
DISTRIBUTION OF SECURITIES IN VIOLATION OF THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AS NOW ENACTED OR AS
THE SAME MAY IN THE FUTURE BE AMENDED, PROVIDED THAT ANY SUCH ACTIONS SHALL BE
COMMERCIALLY REASONABLE. IN ADDITION, PLEDGOR AGREES TO EXECUTE, FROM TIME TO
TIME, ANY AMENDMENT TO THIS AGREEMENT OR OTHER DOCUMENT AS PLEDGEE MAY
REASONABLY REQUIRE TO EVIDENCE THE ACKNOWLEDGEMENTS AND CONSENTS OF PLEDGOR SET
FORTH IN THIS SECTION.
10. Attorneys Fees. Pledgor agrees to pay to Pledgee, without demand,
reasonable attorneys' fees and all reasonable costs and other reasonable
expenses which Pledgee expends or incurs in collecting any amounts payable by
Pledgor with respect to an Event of Default, hereunder or in enforcing this
Agreement against Pledgor whether or not suit is filed.
11. Further Documentation. Pledgor hereby agrees to execute, from time to
time, one or more financing statements and such other instruments as may be
required to perfect the security interest created hereby, including any
continuation or amendments of such financing statements, and pay the cost of
filing or recording the same in the public records specified by Pledgee.
12. Waiver and Estoppel. Pledgor represents and acknowledges that it
knowingly waives each and every one of the following rights, and agrees that it
will be estopped from asserting any argument to the contrary: (a) any promptness
in making any claim or demand hereunder; (b) any defense that may arise by
reason of the incapacity, lack of authority, death or disability of Pledgor; (c)
any defense based upon an election of remedies by Pledgee which destroys or
otherwise impairs any or all of the Collateral; (d) the right of Pledgor to
proceed against Pledgee or any other person, for reimbursement; and (e) all duty
or obligation of the Pledgee to perfect, protect, retain or enforce any security
for the payment of amounts payable by Pledgor hereunder.
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY TO THIS AGREEMENT SEVERALLY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, SUIT OR COUNTERCLAIM BROUGHT BY ANY PARTY TO THIS AGREEMENT
ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT.
No delay or failure on the part of Pledgee in the exercise of any right or
remedy against Pledgor or any other party against whom Pledgee may have any
rights, shall operate as a waiver of any agreement or obligation contained
herein, and no single or partial exercise by Pledgee of any rights or remedies
hereunder shall preclude other or further exercise thereof or other exercise of
any other right or remedy whether contained in this Agreement or in any of the
other documents regarding the Obligations, including without limitation the
Operating Agreement. No waiver of the rights of Pledgee hereunder or in
connection herewith and no release of Pledgor shall be effective unless executed
in writing by Pledgee. No actions of Pledgee permitted under this Agreement
shall in any way impair or affect the enforceability of any agreement or
obligation contained herein.
13. Independent Obligations. The obligations of Pledgor are independent of
the obligations of any other party which may be initially or otherwise
responsible for performance or payment of the Obligations, and a separate action
or actions for payment, damages or performance may be brought and prosecuted by
Pledgee against Pledgor, individually, for the full amount of the Obligations
then due and payable, whether or not an action is brought against any other
party, whether or not Pledgee is involved in any proceedings and whether or not
Pledgee or Pledgor or other person is joined in any action or proceedings.
14. No Offset Rights of Pledgor. No lawful act of commission or omission of
any kind or at any time upon the part of Pledgee shall in any way affect or
impair the rights of Pledgee to enforce any right, power or benefit under this
Agreement, and no set-off, recoupment, reduction or diminution of any obligation
which Pledgor has or may have against Pledgee or against any other party shall
be available against Pledgee in any suit or action brought by Pledgee to enforce
any right, power or benefit under this Agreement.
15. Power of Attorney. Pledgor hereby appoints Pledgee as his
attorney-in-fact to execute and file, effective upon the occurrence of an Event
of Default, on his behalf any financing statements, continuation statements or
other documentation required to perfect or continue the security interest
created hereby. This power, being coupled with an interest, shall be irrevocable
until all amounts secured hereby have been paid, satisfied and discharged in
full. Pledgor acknowledges and agrees that the exercise by Pledgee of its rights
under this Section 15 will not be deemed a satisfaction of the amounts owed
Pledgee unless Pledgee so elects in writing.
16. GOVERNING LAW. THE PARTIES HERETO AGREE THAT THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. SUCH PARTIES FURTHER AGREE
THAT IN THE EVENT OF DEFAULT, THIS AGREEMENT MAY BE ENFORCED IN THE DISTRICT
COURT IN AND FOR XXX XXXX XXX XXXXXX XX XXXXXX, XXXXX OF COLORADO AND THEY DO
HEREBY SUBMIT TO THE JURISDICTION OF SUCH COURT REGARDLESS OF THEIR RESIDENCE OR
WHERE THIS AGREEMENT MAY BE EXECUTED.
17. Successors and Assigns. All agreements, covenants, conditions and
provisions of this Agreement shall inure to the benefit of and be binding upon
the respective heirs, personal representatives successors and assigns of the
parties hereto.
18. Notices. Whenever any party hereto shall desire to, or be required to,
give or serve any notice, demand, request or other communication with respect to
this Agreement, each such notice, demand, request or communication shall be in
writing and shall be effective only if the same is delivered by personal service
(including, without limitation, courier or express service) or mailed certified
or registered mail, postage prepaid, return receipt requested, or sent by
telegram to the parties at the addresses shown throughout this Agreement or such
other addresses which the parties may provide to one another in accordance
herewith. If notice is sent to Pledgee, a copy of such notice shall also be
given to Xxxxx X. Xxxxx, Esq., Xxxxxxxxxx Hyatt Xxxxxx & Xxxxxxxxxx, P.C., 000
00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000. If notice is sent to Pledgor, a
copy of such
notice shall also be given to Xxxx X. Xxxxxxx, Esq., Haligman & Lottner, First
Interstate Tower North, 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000-0000. Notices delivered personally will be effective upon delivery to an
authorized representative of the party at the designated address; notices sent
by mail in accordance with the above paragraph will be effective upon execution
of the Return Receipt Requested.
19. Consent of Pledgor. Pledgor consents to the exercise by Pledgee of any
rights of Pledgor in accordance with the provisions of this Agreement.
20. Severability. Every provision of this Agreement is intended to be
severable. In the event any term or provision hereof is declared by a court of
competent jurisdiction to be illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the legality or validity of the
balance of the terms and provisions hereof, which terms and provisions shall
remain binding and enforceable.
21. Amendment. This Agreement may be modified or rescinded only by a
writing expressly relating to this Agreement and signed by all of the parties.
22. Termination. This Agreement shall terminate, and shall be of no further
force or effect, upon the earlier to occur of the following: (i) full payment
and performance of the Obligations of the Pledgor, (ii) acquisition by Pledgor
or an affiliate of Pledgor of 100% ownership interest in the Limited Liability
Company, or (iii) upon the mutual consent of Pledgor and Pledgee.
23. Certain Matters with respect to Wellsford Residential Property Trust.
This Agreement and all documents, agreements, understandings and arrangements
relating to this transaction have been executed by the undersigned on behalf of
Pledgee in his/her capacity as an officer or director of Pledgee, and not
individually, and neither the directors, officers or shareholders of Pledgee
shall be bound by or have any personal liability hereunder or thereunder. The
parties to this Agreement shall look solely to the assets of Pledgee for
satisfaction of any liability of Pledgee in respect of this Agreement and all
documents, agreements, understandings and arrangements relating to this
transaction and will not seek recourse or commence any action against any of the
directors, officers or shareholders of Pledgee 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 Collateral or this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PLEDGOR:
Xx Xxxx
PLEDGEE: WELLSFORD PARK HIGHLANDS CORP., a
Colorado corporation
By:
Name:
Title:
STATE OF ____________ )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this __ day of
__________________, 1995, by Xx Xxxx.
WITNESS my hand and official seal.
My commission expires: ______________________________________.
Address:
--------------------------------
(SEAL) Notary Public
STATE OF ____________ )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____ day of
__________, 199__, by _________________________ as _______________ of Wellsford
Park Highlands Corp., a Colorado corporation.
WITNESS my hand and official seal.
My commission expires: _____________________________________.
Address:
--------------------------------
(SEAL) Notary Public
EXHIBIT A
CONSENT TO SECURITY INTEREST AND AGREEMENT
OF THE MEMBERS
OF PARK AT HIGHLANDS LLC,
a Colorado Limited Liability Company
The undersigned, being all the members of PARK AT HIGHLANDS LLC, a Colorado
limited liability company (the "Limited Liability Company") hereby represent and
certify to Wellsford Park Highlands Corp., a Colorado corporation (the "Secured
Party") as follows:
1. The Limited Liability Company has received notice from the Secured Party
that the Secured Party has a security interest in the following collateral
("Collateral") registered to Xx Xxxx (the "Debtor"):
(i) All of the right, title and interest of the Debtor in the Limited
Liability Company, whether now owned or hereafter acquired, including, without
limitation, the Debtor's Interest (as defined in the Operating Agreement) in the
Limited Liability Company and its right to receive payments, fees, distributions
and allocations under or in connection with the Operating Agreement (whether as
Member or as Manager), as such Operating Agreement may be modified or extended
from time to time with the consent of the Secured Parties; and
(ii) All proceeds, whether cash proceeds or noncash proceeds, and products
of any and all of the foregoing.
2. Other than the notice from the Secured Party referred to above, the
Limited Liability Company has not received any notice from any entity or person
claiming an adverse claim against, lien on or security interest in the
Collateral.
3. The security interest of the Secured Party referred to above was duly
registered in the books and records of the Limited Liability Company effective
April 27, 1995.
4. Interests in the Limited Liability Company, whether as Member or as
Manager, are not represented in any certificate, instrument or document, and
such interest may be assigned, transferred or pledged without the party
receiving such assignment, transfer or pledge taking physical possession of any
certificate, instrument or document.
The Members hereby consent to the execution and delivery of the Pledge and
Security Agreement by the Debtor and agree hereby to be bound by Section 4
thereof to assign, set over, transfer, distribute, pay and deliver the
Collateral and any and all payments, proceeds or products due to Debtor under
the Collateral to the Secured Party.
The Members hereby consent to the admission of the Secured Party (or its
nominee, designee or any person acquiring its interest under the Pledge and
Security Agreement), as a Manager of the Limited Liability Company upon receipt
of notice by the Secured Party of an Event
of Default by the Debtor thereunder, and (ii) that the Secured Party or such
nominees, designees or persons acquiring the Secured Party's interest thereunder
shall not be deemed to have assumed any of Debtor's liability by virtue of such
admission as the Manager of the Limited Liability Company.
This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been executed by the undersigned
on behalf of the Secured Party in his/her capacity as an officer or trustee of
the Secured Party, and not individually, and neither the directors, officers or
shareholders of the Secured Party shall be bound by or have any personal
liability hereunder or thereunder. The parties to this Agreement shall look
solely to the assets of the Secured Party for satisfaction of any liability of
the Secured Party in respect of this Agreement and all documents, agreements,
understandings and arrangements relating to this transaction and will not seek
recourse or commence any action against any of the directors, officers or
shareholders of the Secured Party 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
Collateral or this Agreement.
EXECUTED as of the date set forth above.
MEMBERS: WELLSFORD PARK HIGHLANDS CORP., a
Colorado corporation
By:
Name:
Title:
XX XXXX, an individual
AGREED TO AND CONCURRED:
SOLE MANAGER
-------------------------------
XX XXXX
EXHIBIT M
PLEDGE AND SECURITY AGREEMENT--WPHC TO XXXX
(Prepared by BHFS)
EXHIBIT U
SUBSTITUTION AGREEMENT
THIS SUBSTITUTION AGREEMENT (this "Agreement") is made and entered into as
of the ____ day of December 1995, by and among Xx Xxxx, an individual ("Xxxx"),
Wellsford Park Highlands Corp., a Colorado corporation ("WPHC"), and The Xxxx
Company, a Colorado corporation (the "Company").
RECITALS
A. WPHC is a Member of Park at Highlands LLC, a Colorado limited liability
company (the "LLC"), which LLC is governed by its Operating Agreement dated as
of April 27, 1995 (the "Operating Agreement") by and between WPHC and Xxxx.
X. Xxxx is also a Member, as well as the Manager, in the LLC and is the
principal officer and shareholder of the Company.
C. In order to facilitate WPHC's appointment of the Company as a substitute
Member and the Manager of the LLC upon the death or disability of Xxxx in
accordance with Section 12.13 of the Operating Agreement and to bind the Company
to the agreements set forth in said Section 12.13, the parties hereto now desire
to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the execution of the Operating
Agreement and of the recitals, covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
5. Request for Substitute Manager. In the event that Xxxx should die or
WPHC shall elect to remove Xxxx as manager due to disability (such an event is
hereinafter referred to as a "Triggering Event"), WPHC shall have the right, at
its sole option, to request in writing that: (a) the Company shall acquire from
Xxxx (or from his estate, if Xxxx is deceased) the entire interest of Xxxx in
the LLC; (b) the Company shall be admitted as a Member of the LLC and
substituted for Xxxx as Member and Manager under the Operating Agreement; and
(c) the Company shall assume, in writing, all of the obligations of the Manager
and of a Member under the Operating Agreement, as the same may be amended from
time to time. The foregoing actions under items (a), (b) and (c) shall be
effective upon the next business day after WPHC delivers its written request to
the Company and Xxxx. Notwithstanding anything to the contrary contained herein
or in the Operating Agreement, if the Company is substituted for Xxxx as a
Member and Manager, then Xxxx (or his estate if Xxxx is deceased) shall remain
liable for the performance of the obligations of the Manager under the Operating
Agreement, in accordance with Section 12.12.3.2 thereof.
6. Failure to Request a Substitute Manager. If WPHC fails to exercise its
option under Section 12.13 of the Operating Agreement and this Agreement to
cause the Company to be substituted for Xxxx as the Manager within ninety (90)
days after the date of a Triggering Event, then such right shall automatically
terminate and Xxxx (and his estate) shall be released from all responsibilities
and obligations as Manager under the Operating Agreement arising after the
effective date of Xxxx'x withdrawal or Removal (as said term is defined in the
Operating Agreement,) from the LLC in connection with the Triggering Event.
7. Attorneys Fees. In the event any litigation or other legal proceedings
or alternative dispute resolution proceedings are brought for the enforcement of
or arise out of this Agreement, the prevailing party shall be entitled to
recover from the non-prevailing party all reasonable attorneys' fees and costs
and all other reasonable expenses, in addition to any other relief or damages
obtained.
8. Further Documentation. The parties hereby agree to execute, from time to
time, such other documents as may be reasonably necessary to effectuate the
intent of this Agreement and Section 12.13 of the Operating Agreement.
9. GOVERNING LAW. THE PARTIES HERETO AGREE THAT THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. SUCH PARTIES FURTHER AGREE
THAT THIS AGREEMENT MAY BE ENFORCED IN THE DISTRICT COURT IN AND FOR XXX XXXX
XXX XXXXXX XX XXXXXX, XXXXX OF COLORADO AND THEY DO HEREBY SUBMIT TO THE
JURISDICTION OF SUCH COURT REGARDLESS OF THEIR RESIDENCE OR WHERE THIS AGREEMENT
MAY BE EXECUTED.
10. Successors and Assigns. All agreements, covenants, conditions and
provisions of this Agreement shall inure to the benefit of and be binding upon
the respective heirs, personal representatives, successors and assigns of the
parties hereto.
11. Notices. Whenever any party hereto shall desire to, or be required to,
give or serve any notice, demand, request or other communication with respect to
this Agreement, each such notice, demand, request or communication shall be in
writing and shall be effective only if the same is delivered by personal service
(including, without limitation, courier or express service) or mailed certified
or registered mail, postage prepaid, return receipt requested, or sent by
telegram to the parties at the addresses shown in the Operating Agreement or
such other addresses which the parties may provide to one another in accordance
therewith. The notice address for the Company shall be the same as the notice
address for Xxxx. If notice is sent to WPHC, a copy of such notice shall also be
given to Xxxxx X. Xxxxx, Esq., Xxxxxxxxxx Hyatt Xxxxxx & Xxxxxxxxxx, P.C., 000
00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000. If notice is sent to Xxxx or
the Company, a copy of such notice shall also be given to Xxxx Xxxxxxx, Esq.,
Haligman and Lottner, First Interstate Tower North, 000 Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000-0000. Notices delivered personally will be
effective upon delivery to an authorized representative of the party at the
designated address; notices sent by mail in
accordance with the above paragraph will be effective upon execution of the
Return Receipt Requested.
12. Severability. Every provision of this Agreement is intended to be
severable. In the event any term or provision hereof is declared by a court of
competent jurisdiction to be illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the legality or validity of the
balance of the terms and provisions hereof, which terms and provisions shall
remain binding and enforceable.
13. Capitalized Terms. All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Operating Agreement.
14. Amendment. This Agreement may be modified or rescinded only by a
writing expressly relating to this Agreement and signed by all of the parties.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XX XXXX, individually
WELLSFORD PARK HIGHLANDS CORP., a
Colorado corporation
By:
-----------------------------------------------------------
Its:
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THE XXXX COMPANY, a Colorado corporation
By:
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Its:
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